Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 7. BANKING AND SECURITIES Part VII. State Securities Board Chapter 101. General Administration 7 TAC sec.101.5 The State Securities Board proposes an amendment to sec.101.5, concerning an increase in the cost of copies of public records made available pursuant to the provisions of the Texas Open Records Act. The 15% increase in costs was mandated by House Bill 1009, 73rd Legislature, 1993. Tom Spradlin, director of information resources and planning, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Spradlin also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be that persons requesting copies of Board records will be on notice of the costs associated with obtaining such copies. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Denise Voigt Crawford, State Securities Board, P.O. Box 13167, Austin, Texas 78711. The amendment is proposed under Texas Civil Statutes, Article 581, sec.28-1, which provide the Board with the authority to adopt rules and regulations governing registration statements and applications; to classify securities, persons, and matters within its jurisdiction; and to prescribe different requirements for different classes. sec.101.5. Cost of Copies of Public Records.
    The cost to any person requesting photocopied reproductions of any readily available records of the State Securities Board, comprised of pages up to legal size, which are subject to public examination pursuant to the provisions of the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a, shall be as follows: (1) For noncertified copies: (A) $.12
      [$.10] per page for requests totaling 50 pages or less; (B) $.98
        [$.85] for the first page and $.17
          [$.15] for each additional page for requests totaling 51 pages or more. (2) For certified copies the charge shall be $1.15
            [$1.00] per page plus a $5.00 certification fee. (3) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326723 Richard D. Latham Securities Commissioner State Securities Board Earliest possible date of adoption: September 10, 1993 For further information, please call: (512) 474-2233 Chapter 109. Transactions Exempt From Registration 7 TAC sec.109.17 The State Securities Board proposes an amendment to sec.109.17, concerning Texas chartered savings banks to the list of financial institutions recognized in the Securities Act, sec.5.L., which is appropriate in view of the enactment of the new Texas Savings Bank Act, as set forth in Senate Bill 396, 73rd Legislature, 1993. Michael Northcutt, director, securities registration division, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Northcutt also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be parity of treatment between state chartered savings banks and state chartered savings and loan associations for purposes of the Securities Act, s5.L. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Denise Voigt Crawford, State Securities Board, P.O. Box 13167, Austin, Texas 78711. The amendment is proposed under Texas Civil Statutes, Article 581, sec.28-1, which provide the Board with the authority to adopt rules and regulations governing registration statements and applications; to classify securities, persons, and matters within its jurisdiction; and to prescribe different requirements for different classes. sec.109.17. [Federal] Savings Banks Under the Securities Act, sec.5.L. (a) The phrase "any savings and loan association organized and subject to regulation under the laws of this State" shall include any Texas state chartered savings bank. (b) The phrase "any federal savings and loan association" shall include any federally chartered savings bank. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326724 Richard D. Latham Securities Commissioner State Securities Board Earliest possible date of adoption: September 10, 1993 For further information, please call: (512) 474-2233 Chapter 123. Open-End Investment Companies 7 TAC sec.123.3 The State Securities Board proposes an amendment to sec.123.3, concerning a conditional exemption for money market funds to take into account current rules of the Securities and Exchange commission (SEC) and the National Association of Securities Dealers (NASD) as they relate to the Securities Commissioner's designation of open-end investment companies as "money market funds" for purposes of reduced registration fees. Michael Northcutt, director, securities registration division, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Northcutt also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be a money market fund designation approach that takes into account current SEC and NASD rules. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Denise Voigt Crawford, State Securities Board, P.O. Box 13167, Austin, Texas 78711. The amendment is proposed under Texas Civil Statutes, Article 581, sec.28-1, which provide the Board with the authority to adopt rules and regulations governing registration statements and applications; to classify securities, persons, and matters within its jurisdiction; and to prescribe different requirements for different classes. sec.123.3. Conditional Exemption for Money Market Funds. (a) (No change.) (b) Definition. In this section
              [Rule], a "money market fund" or "fund" is an open-end investment company which must meet all of the following conditions. (1) The fund must engage
                [engages] in a continuous offering of its securities.
                  [, which] (2) The fund must hold itself out to be a money market fund or equivalent to a money market fund and must be in compliance with the Investment Company Act of 1940, Rule 2a-7, as made effective in Securities and Exchange Commission Release Number IC-13380 and as amended in Release Numbers IC-14606, IC-14983, IC-18005, and IC-18177. (3) The fund must not pay or charge
                    [charges no] sales commissions or redemption fees except for a nominal exchange fee which may not be used for sales expenses or in lieu of an initial sales charge or redemption fee. (4) The fund's total charges against net assets for sales distribution activities and/or the servicing of shareholder accounts must not be in excess of .25% of average net assets per annum.
                      [and whose only objectives are preservation of capital, liquidity, and generation of current income derived from a portfolio consisting exclusively of evidences of indebtedness that generally may be described as money market investments such as certificates of deposit, United States government securities, commercial paper or similar obligations, 80% of whose principal amount must mature (may be redeemed or paid on demand) within one year from the date of issuance or settlement whichever is later; all of whose principal amount must mature (may be redeemed or paid on demand) within three years from the date of settlement. For these purposes, an indebtedness is deemed to "mature" on the date noted on the face of the instrument as the date on which the principal amount must be paid, or in the case of variable or floating rate instruments with longer stated dates for principal payments, such instruments are deemed to "mature" on the next stated interest rate adjustment date.] (5) Except for mergers, consolidations, or acquisitions of assets, or as noted in paragraph (6) of this subsection, the fund's investments in other investment companies must be limited to: (A) 10% of the fund's total assets; (B) other investment companies with substantially similar investment objectives; and (C) other investment companies with charges and fees substantially similar to those set forth in paragraphs (3) and (4) of this subsection. (6) In the case of a master/feeder fund structure: (A) feeder fund(s) must meet paragraph (1)-(4) of this subsection; (B) when viewed together, the master/feeder fund(s) must meet paragraphs (3) and (4) of this subsection; and (C) all feeder funds must have substantially similar investment objectives as that of the master fund. (7) A currently registered fund which has been granted money market status in not required to comply with this subsection until the fund files its Year End Report of Sales by a Money Market Fund on Form 133.27, but it is required to maintain compliance with the subsection as it was in effect at the time that the fund was designated a money market fund for purposes of this section. (c) Request for Determination. (1) At the time an applicant applies for registration of securities issued by an open-end investment company under the Act, sec.7, or at any time thereafter [when such a registration application is pending or registration is effective], the applicant may request that the Commissioner determine the issuer to be a money market fund as defined in this rule. The request shall be made in writing on Form 133.26 of this title (relating to Request for Determination as a Money Market Fund)
                        [in such form and content as prescribed by the Commissioner]. The Commissioner shall review such
                          [a] request and any other information deemed relevant by the Commissioner
                            [him] and shall determine whether or not
                              the issuer is a money market fund for purposes of this section. (2) If the request is made subsequent to the issuance of the fund's original permit, an amendment fee of $10 will be required. Also, additional sales information will be required since only the securities registered and sold after the date the Commissioner determines that the issuer is a money market fund will be subject to the reduced registration fees under subsection (d) of this section. (d)-(f) (No change.) (g) Year End Reports. All funds must file a Year End Report of Sales on Form 133.27 of this title (relating to Year End Report of Sales by Money Market Fund)
                                in January of each year which reflects the amount of securities sold in the previous year, the balance of fees paid for registration of any unsold balance in the previous year and the recalculated balance of authorized securities at the beginning of the current year. In calculating fees applied to sales during the previous year, fees are first applied at the higher rates in the subsection (d)(5) of this section scale, and then at more reduced rates as sales volume increases, and not vice versa. Funds should consult the examples contained in the form for Year End Report of Sales in determining how to compute fees. (h)-(j) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326725 Richard D. Latham Securities Commissioner State Securities Board Earliest possible date of adoption: September 10, 1993 For further information, please call: (512) 474-2233 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 405. Client (Patient) Care Subchapter D. Comprehensive Diagnosis and Evaluation 25 TAC sec.sec.405.81-405.92 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes the repeal of sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning comprehensive diagnosis and evaluation. The sections would be replaced by new sec. s405.81-405.92, concerning determination of mental retardation and appropriateness for admission to mental retardation services, which are adopted on an emergency basis and simultaneously proposed for public comment in this issue of the Texas Register. In addition, the repeal on an emergency basis of existing sec. s405.81-405.92 of Chapter 405, Subchapter D, concerning comprehensive diagnosis and evaluation also is published simultaneously in this issue of the Texas Register. The purpose of the repeals is to permit the adoption of new rules which comply with provisions of House Bill 771 of the 73rd Texas Legislature which amends portions of the Texas Health and Safety Code, Title 7, Subtitle D (Persons with Mental Retardation Act). Leilani Rose, director, financial services department, has determined that for the first five-year period that the repeals are in effect there will be cost savings to accrue to the department, but likely not in terms of cash savings to the department. The repeals will permit the department to perform determinations in a more timely fashion with savings accruing in terms of accuracy and less strain on the individual being assessed and on facility and community center staff as a result of enforcing or administering the new rules as proposed. There is no significant local economic impact anticipated. Jaylon Fincannon, deputy commissioner, Mental Retardation Services, has determined that for each year of the first five years that the repeals are in effect the public benefit anticipated will be the more timely access to services of individuals with mental retardation under the provisions of the new repeals. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. These sections are proposed under Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation Board with rulemaking authority. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 4, 1993. TRD-9326771 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 465-4670 Subchapter D. Determination of Mental Retardation and Appropriateness for Admission to Mental Retardation Services 25 TAC sec.sec.405.81-405.92 (Editor's Note: The Texas Department of Mental Health and Mental Retardation proposes for permanent adoption the new sections it adopts on an emergency basis in this issue. The text of the new sections is in the Emergency Rules section of this issue.) The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes new sec.sec.405.81-405.92 of Chapter 405, Subchapter D, concerning determination of mental retardation and appropriateness for admission to mental retardation services. The new rules replace existing sec.sec.405.81-405. 92 of Chapter 405, Subchapter D, concerning comprehensive diagnosis and evaluation, which are simultaneously proposed for repeal in this issue of Texas Register. Also published simultaneously in this issue of the Texas Register is the emergency adoption of new sec.sec.405.81-405.92, concerning determination of mental retardation and appropriateness for admission to mental retardation services, and the emergency repeal of sec.sec.405.81-405.92, concerning comprehensive diagnosis and evaluation. The purpose of the new rules is to comply with provisions of House Bill 771 of the 73rd Texas Legislature, which amends portions of the Texas Health and Safety Code, Title 7, Subtitle D (Persons with Mental Retardation Act). House Bill 771 requires the department to do away with comprehensive diagnosis and evaluations as the basis for admission into mental retardation services provided by community mental health and mental retardation centers and state facilities. Instead, a person seeking services must have a determination of mental retardation which can be performed by a physician or psychologist licensed to practice in Texas or by a psychologist certified by the department. House Bill 771 also amends the Texas Health and Safety Code to: require that an individual may not be admitted or committed to a residential care facility unless there is a determination of mental retardation and an interdisciplinary team makes a recommendation for the placement; permit an emergency admission to a residential care facility provided that both a determination of mental retardation and an IDT recommendation for the placement are forthcoming no later than 30 days after the admission; permit an individual to receive emergency services provided the services are available, the individual has an urgent need for those services, and a determination of mental retardation is performed within 30 days after the emergency services begin; and permit admission into a residential care facility for respite care without a determination of mental retardation under certain conditions. House Bill 771 also requires that a person may not be committed to a residential care facility unless the IDT report recommending the placement has been completed during the six months preceding the date of the court hearing. The proposed rules outline the procedures for implementing the provisions of HB 771 cited previously and also describe: the criteria for the certification of psychologists by the department; the various assessments that are to be performed based on the type of services requested; and a requirement that a person requesting admission to services receive a determination of appropriateness for mental retardation services that is in compliance with the TXMHMR Community Standards for Mental Retardation Services. Leilani Rose, director, financial services department, has determined that for the first five-year period the rules are in effect there will be cost savings to accrue to the department, but likely not in terms of cash savings to the department. The department will be able to perform determinations in a more timely fashion with savings accruing in terms of accuracy and less strain on the individual being assessed and on facility and community center staff as a result of enforcing or administering the rules. There is no significant local economic impact anticipated. Jaylon Fincannon, deputy commissioner, Mental Retardation Services, has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be more timely access to services of individuals with mental retardation. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Written comments on the proposal may be sent to Linda Logan, director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. A public hearing will be held to accept testimony on the sections as proposed, as well as on proposed new Chapter 403, Subchapter N concerning practice and procedure with respect to administrative hearings of the department arising under the Persons with Mental Retardation Act (PMRA). The hearing will be Monday, August 23, 1993, from 1:00-3:00 p.m., in the TXMHMR Central Office Auditorium at 909 West 45th Street, Austin, Texas 78756. If interpreters for the hearing impaired are required, please notify Ms. Logan 72 hours prior to the hearing by calling (512) 465-4670. These sections are proposed under Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation Board with rulemaking authority. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on July 29, 1993. TRD-9326613 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 465-4670 Subchapter AA. Practice and Procedure with Respect to Administrative Hearings of the Department Arising under the Mentally Retarded Persons Act of 1977 25 TAC sec.sec.405.661-405.678 (Editor's Note: The Texas Department of Mental Health and Mental Retardation proposes for permanent adoption the repealed sections it adopts on an emergency basis in this issue. The text of the repealed sections is in the Emergency Rules section of this issue.) The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes the repeal of sec.sec.405.661-405.678 of Chapter 405, Subchapter AA, concerning Practice and Procedure with Respect to Administrative Hearings of the Department Arising under the Mentally Retarded Persons Act of 1977. The sections would be replaced by new sec.sec.403.401-403.419 of Chapter 403, Subchapter N, concerning Practice and Procedure with Respect to Administrative Hearings of the Department Arising under the Persons with Mental Retardation Act which are simultaneously adopted on an emergency basis and proposed for public comment in this issue of the Texas Register . In addition, the repeal of sec.sec.405.661-405.678 is simultaneously adopted on an emergency basis and proposed for public comment in this issue of the Texas Register. The purpose of the repeal is to permit the adoption of new rules which comply with provisions of House Bill 771 of the 73rd Texas Legislature, which amends portions of the Texas Health and Safety Code, Title 7, Subtitle D (Persons with Mental Retardation Act). Leilani Rose, director, Financial Services Department, has determined that for the first five-year period that the repeals are in effect there will be cost savings to accrue to the department, but likely not in terms of cash savings to the department. The new sections will permit the department to perform determinations in a more timely fashion with savings accruing in terms of accuracy and less strain on the individual being assessed and on facility and community center staff as a result of enforcing or administering the repeals. There is no significant local economic impact anticipated. Jaylon Fincannon, deputy commissioner, Mental Retardation Services, has determined that for each year of the first five years that the repeals are in effect the public benefit anticipated will be the more timely access to services of individuals with mental retardation under the provisions of the new rules. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. These sections are proposed under Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation Board with rulemaking authority. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on July 29, 1993. TRD-9326616 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 465-4670 Subchapter FF. Consent to Treatment with Psychoactive Medication 25 TAC sec.sec.405.801-405.812 (Editor's Note: The Texas Department of Mental Health and Mental Retardation proposes for permanent adoption the new sections it adopts on an emergency basis in this issue. The text of the new sections is in the Emergency Rules section of this issue.) The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes new sec.sec.405.801-405.812, concerning consent to treatment with psychoactive medication. The new rule is proposed simultaneously with its emergency adoption in this issue of the Texas Register and with the emergency and proposed repeal of the rule it would replace, which is also known as Chapter 405, Subchapter FF. The proposed new subchapter implements provisions required by the Texas Health and Safety Code, sec.sec.574.103-574.106 and 576.024-576.025, which become effective September 1, 1993. Section 405.802 extends the provisions of the subchapter to apply to those persons receiving inpatient services in mental health facilities when the services are operated by the department or funded through a contract between the facility and the department or a community mental health and mental retardation center (CMHMRC). Section 405. 803 includes new definitions for "capacity," "emergency situation," "medication class," "psychoactive medication," and "refusal to consent to treatment with psychoactive medication." Section 405.808 establishes a prohibition on administration of psychoactive medication to a patient receiving court-ordered mental health services if the patient refuses to take the medication voluntarily unless a court-order allowing administration of the medication has been obtained. Section 405.809 addresses the process for obtaining such a court-order. Section 405.810 outlines the rights of persons for whom a petition to obtain an order to authorize administration of psychoactive medication has been filed. Leilani Rose, director, Office of Financial Services, has determined that for the first five-year period the rules are in effect there will be no significant fiscal implications for state or local government as a result of administering the rules. Local economic impact is anticipated to be insignificant. Dr. Steven Shon, deputy commissioner, Mental Health Services, has determined that the public benefit is the adoption of rules providing for the implementation of legislative requirements. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. A public hearing will be held to accept testimony on the sections as proposed on Tuesday, August 17, 1993, from 1:00-3:00 p.m., in the TXMHMR Central Office Auditorium at 909 West 45th Street, Austin, Texas 78756. If interpreters for the hearing are required, please notify Ms. Logan at (512) 465-4516 at least 72 hours prior to the hearing. These sections are proposed under Texas Health and Safety Code, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326663 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 465-4670 25 TAC sec.sec.405.801-405.810 (Editor's Note: The ** proposes for permanent adoption the repealed sections) it adopts on an emergency basis in this issue. The text of the repealed sections) is in the Emergency Rules section of this issue.) The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes the repeal of sec.sec.405.801-405.810, concerning consent to treatment with psychoactive medication. The subchapter is also repealed on an emergency basis in this Texas Register. The purpose of the repeal is to comply with the Texas Health and Safety Code, sec.sec.576.103-576.106 and 576.024-576.025, with an effective date of September 1, 1993. The subchapter would be replaced with new sections, which are also known as Chapter 405, Subchapter FF, concerning consent to treatment with psychoactive medication, which are also adopted on an emergency basis and proposed in this issue of the Texas Register . The new sections include provisions for petitioning for a court-order to administer psychoactive medications to an involuntarily committed patient who refuses to take the medication voluntarily. The subchapter includes a prohibition on administration of medication to a committed patient who refuses unless such a court-order is obtained. Leilani Rose, director, Office of Financial Services, has determined that for the first five-year period the repeals are in effect there will be no significant fiscal implications for state or local government as a result of administering the repeals as proposed. Local economic impact is anticipated to be insignificant. Dr. Steven Shon, deputy commissioner, Mental Health Services, has determined that the public benefit is the repeal of outdated rules to enable the adoption of rules that meet legislative requirements. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposal may be submitted to Linda Logan, director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin,Texas 78711-2668, within 30 days of publication. The repeals are proposed under the Texas Health and Safety Code, sec.532.015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326664 Anne K. Utley Chairman Texas Department of Mental Health and Mental Retardation Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 465-4670 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 305. Consolidated Permits Subchapter A. General Provisions The Texas Water Commission (TWC) proposes amendments to ssec.305.2, 305.50, 305.69, and 305.122, concerning consolidated permits. The purpose of the amendments is to adopt certain federal regulations as adopted by the Federal Register and to clarify certain state rules. Section 305.2 is amended by adding the definition of "component," "facility mailing list," and "functionally equivalent component." Two changes are made in sec.305.50 to reflect the concurrent adoption of 40 Code of Federal Regulations (CFR), Part 264, Subparts AA, BB, and W in Chapter 335. Those subparts address, respectively, regulation of air emission standards for process vents, air emission standards for equipment leaks, and design, operating, and closure requirements of drip pads. Section 305.50(4)(A) is amended to provide that an application for a permit to store, process, or dispose of hazardous waste, or an amendment or modification thereto, is also subject to the information requirements of 40 CFR, ssec.270.24-270.26. Section 305.50(4)(E) is amended to provide that the executive director may require the owner or operator of an existing hazardous waste management facility to submit the information specified in 40 CFR, sec.sec.270.24-270.26. 40 CFR, sec.270.24 specifies Part B information requirements for process vents; 40 CFR, sec.270.25 specifies Part B information requirements for equipment, and 40 CFR, sec.270.26 specifies the Part B information requirements for drip pads. The changes to sec.sec.305.50(4)(A) and (E) are made to comport with 56 FedReg 19290 as published on April 26, 1991, and with 57 FedReg 61492 as published on December 24, 1992. In addition, sec.305.50(14) is amended to provide that the executive director may require a permittee or an applicant to submit information in order to establish permit conditions under sec.305.127(4)(A) and sec.305.127(1) (B)(iii). This change is made to comport with 54 FedReg 45799 as published on December 1, 1987. Appendix I of sec.305.69(i)B.1.b. is amended to provide that permit modification made to incorporate changes associated with F039 (multi-source leachate) sampling or analysis methods is a Class 1 change that requires prior approval. The former sec.305.69(i)(B).1.b. is renumbered as sec.305.69(i)B.1.c to comport with 56 FedReg 3928 as published on January 31, 1991. Section 305.122 is amended to provide that compliance with a hazardous waste permit during its term constitutes compliance, for purpose of enforcement, with Subtitle C of the Resource Conservation and Recovery Act (RCRA), except for those requirements not included in the permit which become effective by statute, which are promulgated under the land ban provisions of Chapter 335, Subchapter O, or which are promulgated under Chapter 335, Subchapter F, regarding leak detection systems for new and replacement surface impoundment, waste pile, and landfill units. This change is made to comport with 57 FedReg 3495 as published on January 29, 1992. Stephen Minick, division of budget and planning, has determined that for the first five years the rules are in effect there will be no significant fiscal implications as a result of enforcement or administration of the rules. There are no significant implications for either state or local governments. The effect of these rules will be to incorporate into state regulations provisions of existing federal regulations. It is not anticipated that enforcement of these same rules by the state will have significantly different fiscal implications for affected entities than would enforcement of the equivalent federal rules. Mr. Minick also has determined that for the first five years the rules are in effect the public benefit anticipated as a result of enforcement of and compliance with the rules will be improvements in the consistency of federal and state regulation of hazardous waste treatment, storage, and disposal facilities and in the information required to be submitted in support of permit applications. There will be no effect on small businesses. There are no known costs to persons required to comply with the rules as proposed. Comments on the proposals may be submitted to Brenda Clayton, Staff Attorney, Legal Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711- 3087. Comments will be accepted until 5:00 p.m. for a period of 30 days following the date of this publication. 31 TAC sec.305.2 The amendment is proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.305.2. Definitions. The definitions contained in the Texas Water Code, sec.sec.26.001, 27.002, and 28.001, and the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, sec.2, shall apply to this chapter. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Component-Any constituent part of a unit or any group of constituent parts of a unit which are assembled to perform a specific function (e.g. a pump seal, pump, kiln liner, kiln thermocouple). Facility mailing list-The mailing list for a facility seeking a Class I injection well UIC permit. The facility mailing list, which is described in 40 CFR, sec.120.10(c)(viii), is maintained by the Texas Water Commission in accordance with sec.305.103(b). Functionally equivalent component-A component which performs the same function or measurement and which meets or exceeds the performance specifications of another component. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326689 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter C. Application for Permit 31 TAC sec.305.50 The amendment is proposed pursuant to the Texas Water Code sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.305.50. Additional Requirements for an Application for a Solid Waste Permit.
                                  Unless otherwise stated, an application for a permit to store, process, or dispose of solid waste shall meet the following requirements: (1)-(3) (No change.) (4) An application for a permit, permit amendment, or permit modification to store, process or dispose of hazardous waste shall be subject to the following requirements, as applicable: (A) In the case of an application for a permit to store, process, or dispose of hazardous waste, the application shall also contain any additional information required by 40 Code of Federal Regulations, sec.sec.270.13-270. 26
                                    [270.23], except that closure cost estimates shall be prepared in accordance with 40 Code of Federal Regulations s264.142(a)(1), (3), (4), (b), and (c) and sec.335.178 of this title (relating to Cost Estimate for Closure). (B)-(D) (No change.) (E) At any time after the effective date of the requirements contained in Chapter 335, Subchapter F, of this title (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), the executive director may require the owner or operator of an existing hazardous waste management facility to submit that portion of his application containing the information specified in 40 Code of Federal Regulations sec.sec.270.14-270.26
                                      [270.23]. Any owner or operator shall be allowed a reasonable period of time from the date of the request to submit the information. An application for a new hazardous waste management facility must be submitted at least 180 days before physical construction of the facility is expected to commence. (5)-(13) (No change.) (14) The executive director may require a permittee or an applicant to submit information in order to establish permit conditions under sec.305.127(4)(A) of this title (relating to Conditions to be Determined for Individual Permits) and sec.305.127(1)(B)(iii) of this title (relating to Conditions to be Determined for Individual Permits). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326690 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter D. Amendments, Modifications, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits 31 TAC sec.305.69 The amendment is proposed pursuant to the Texas Water Code sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Health and Safety Code sec.361.017 and sec.361.024, which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.305.69. Solid Waste Permit Modification at the Request of the Permittee. (a)-(h) (No change.) (i) Appendix I. The following appendix will be used for the purposes of Subchapter D which relate to solid waste permit modification at the request of the permittee. [graphic] (A) General Permit Provisions 1. Administrative and informational changes............................. ....1 (2) Correction of typographical errors...........................1 (3) Equipment replacement or upgrading with functionally equivalent components (e.g., pipes, valves, pumps, conveyors, controls)................... 1 (4) Changes in the frequency of or procedures for monitoring, reporting, sampling, or maintenance activities by the permittee: (a) To provide for more frequent monitoring, reporting, sampling, or maintenance............................... 1 (b) Other changes.................................. 2 (5) Schedule of compliance (a) Changes in interim compliance dates, with prior approval of the executive director.......1[sup]1 (b) Extension of final compliance date............ 3 (6) Changes in expiration date or permit to allow earlier permit expiration, with prior approval of the executive director...................... .....1[sup]1 (7) Changes in ownership or operational control of a facility, provided the procedures of sec.305.65(g) are followed............................ 1[sup]1 (B) General Standards (1) Changes to waste sampling or analysis methods: (a) To conform with agency guidance or regulations...................... .............. 1 (b) To incorporate changes associated with FO39 (multi-source leachate) sampling or analysis methods...................................... 1 point=5.02p [sup]1 (c)
                                        [(b)] Other changes..................................2 (2) Changes to analytical quality assurance/control plan: (a) To conform with agency guidance or regulations...................... .............. 1 (b) Other changes.................................. 2 (3) Changes in procedures for maintaining the operating record.......... ......................... 1 (4) Changes in frequency or content of inspection schedules............. .............................. 2 (5) Changes in the training plan: (a) That affect the type or decrease the amount of training given to employees.......... 2 (b) Other changes.................................. 1 (6) Contingency plan: (a) Changes in emergency procedures (i.e., spill or release response procedures).................................... 2 (b) Replacement with functionally equivalent equipment, upgrade, or relocate emergency equipment listed.............................. 1 (c) Removal of equipment from emergency equipment list.................. ............... 2 (d) Changes in name, address, or phone number of coordinators or other persons or agencies identified in the plan............. 1
                                          Note: When a permit modification (such as introduction of a new unit) requires a change in facility plans or other general facility standards, that change shall be reviewed under the same procedures as the permit modification. (No change) (C) Ground-water Protection (1) Changes to wells: (a) Changes in the number, location, depth, or design of upgradient or downgradient wells of permitted groundwater monitoring system.................. ....................... 2 (b) Replacement of an existing well that has been damaged or rendered inoperable, without change to location, design, or depth of the well........... ................... 1 (2) Changes in groundwater sampling or analysis procedures or monitoring schedule, with prior approval of the executive director............. ..... 1[sup]1 (3) Changes in statistical procedure for determining whether a statistically significant change in groundwater quality between upgradient and downgradient wells has occurred, with prior approval of the executive director. ................. 1 point=5.02p [sup]1 (4) Changes in point of compliance..................... 2 (5) Changes in indicator parameters, hazardous constituents, or concentration limits (including ACLs): (a) As specified in the groundwater protection standard................. ..................... 3 (b) As specified in the detection monitoring program.................... .................... 2 (6) Changes to a detection monitoring program as required by sec.335. 164(10) of this title (relating to Detection Monitoring Program), unless otherwise specified in this appendix......... 2 (7) Compliance monitoring program: (a) Addition of compliance monitoring program pursuant to sec.335.164(7) (D) of this title (relating to Detection Monitoring Program), and sec.335.165 of this title (relating to Compliance Monitoring Program)................. 3 (b) Changes to a compliance monitoring program as required by sec.335. 165(11) of this title (relating to Compliance Monitoring Program), unless otherwise specified in this appendix.... 2 (8) Corrective action program: (a) Addition of a corrective action program pursuant to sec.335.165(9)(B) of this title (relating to Compliance Monitoring Program) and sec.335.166 of this title (relating to Corrective Action Program)..................... 3 (b) Changes to a corrective action program as required by sec.335.166(8), unless otherwise specified in this appendix........... 2 (D) Closure (1) Changes to the closure plan: (a) Changes in estimate of maximum extent of operations or maximum inventory of waste on-site at any time during the active life of the facility, with prior approval of the executive director............................ 1 [sup]1 (b) Changes in the closure schedule for any unit, changes in the final closure schedule for the facility, or extension of the closure period, with prior approval of the executive director....................................... 1[sup]1 (c) Changes in the expected year of final closure, where other permit conditions are not changed, with prior approval of the executive director...... ................ 1 [sup]1 (d) Changes in procedures for decontamination of facility equipment or structures, with prior approval of the executive director....... 1[sup]1 (e) Changes in approved closure plan resulting from unexpected events occurring during partial or final closure, unless otherwise specified in this appendix..................... 2 (f) Extension of the closure period to allow a landfill, surface impoundment or land treatment unit to receive non-hazardous wastes after final receipt of hazardous wastes under 40 CFR, sec.264.113(d) and (e)................ ...... 2 (2) Creation of a new landfill unit as part of closure.................. ......................... 3 (3) Addition of the following new units to be used temporarily for closure activities: (a) Surface impoundments........................... 3 (b) Incinerators................................... 3 (c) Waste piles that do not comply with 40 CFR, sec.264.250(c)........... ................... 3 (d) Waste piles that comply with 40 CFR, sec.264.250(c).................. ............ 2 (e) Tanks or containers (other than specified below).................... ..................... 2 (f) Tanks used for neutralization, dewatering, phase separation, or component separation, with prior approval of the executive director............ ...........................1 point=5.02p [sup]1 (E) Post-Closure (1) Changes in name, address, or phone number of contact in post-closure plan........................ 1 (2) Extension of post-closure care period.............. 2 (3) Reduction in the post-closure care period.......... 3 (4) Changes to the expected year of final closure, where other permit conditions are not changed...... 1 (5) Changes in post-closure plan necessitated by events occurring during the active life of the facility, including partial and final closure.... ........................................ 2 (F) Containers (1) Modification or addition of container units: (a) Resulting in greater than 25% increase in the facility's container storage capacity, except as provided in F(1)(c) and F(4)(a) below.............. ................ 3 (b) Resulting in up to 25% increase in the facility's container storage capacity, except as provided in F(1)(c) and F(4)(a) below...................... .................... 2 (c) Or treatment processes necessary to treat wastes that are restricted from land disposal to meet some or all of the applicable treatment standards or to treat wastes to satisfy (in whole or in part) the standard of "use of practically available technology that yields the greatest environmental benefit" contained in 40 CFR, sec.268.8(a)(2)(ii), with prior approval of the executive director. This modification may also involve addition of new waste codes or narrative descriptions of wastes. It is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028) ....... 1[sup]1 (2) (a) Modification of a container unit without increasing the capacity of the unit............ 2 (b) Addition of a roof to a container unit without alteration of the containment system......................................... 1 (3) Storage of different wastes in containers, except as provided in F(4) below: (a) That require additional or different management practices from those authorized in the permit.................................. 3 (b) That do not require additional or different management practices from those authorized in the permit.................................. 2
                                            Note: See sec.305.69(g) of this title (relating to Newly Listed Solid Waste Permit Modification at the Request of the Permittee or Identified Wastes) for modification procedures to be used for the management of newly listed or identified wastes. (4) Storage or treatment of different wastes in containers: (a) That require addition of units or change in treatment process or management standards, provided that the wastes are restricted from land disposal and are to be treated to meet some or all of the applicable treatment standards, or that are to be treated to satisfy (in whole or in part) the standard of "use of practically available technology that yields the greatest environmental benefit" contained in 40 CFR, sec.268.8(a)(2)(ii), with prior approval of the executive director. This modification is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028).............. .......... 1 [sup]1 (b) That do not require the addition of units or a change in the treatment process or management standards, and provided that the units have previously received wastes of the same type (e.g., incinerator scrubber water). This modification is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028)....... 1 (5) Other changes in container management practices (e.g., aisle space, types of containers, segregation)........................................ 2 G Tanks (1) (a) Modification or addition of tank units resulting in greater than 25% increase in the facility's tank capacity, except as provided in G(1) (c), G(1)(d), and G(1)(e) below of this appendix................. 3 (b) Modification or addition of tank units resulting in up to 25% increase in the facility's tank capacity, except as provided in G(1)(d) and G(1)(e) below of this appendix............................... 2 (c) Addition of a new tank (no capacity limitation) that will operate for more than 90 days using any of the following physical or chemical treatment technologies: neutralization, dewatering, phase separation, or component separation.................. 2 (d) After prior approval of the executive director, addition of a new tank (no capacity limitation) that will operate for up to 90 days using any of the following physical or chemical treatment technologies: neutralization, dewatering, phase separation, or component separation...... 1[sup]1 (e) Modification or addition of tank units or treatment processes necessary to treat wastes that are restricted from land disposal to meet some or all of the applicable treatment standards or to treat wastes to satisfy (in whole or in part) the standard of "use of practically available technology that yields the greatest environmental benefit" contained in 40 CFR, sec.268. 8(a)(2)(ii), with prior approval of the executive director. This modification may also involve addition of new waste codes. It is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028).............. .................. 1[sup]1 (2) Modification of a tank unit or secondary containment system without increasing the capacity of the unit................................ 2 (3) Replacement of a tank with a tank that meets the same design standards and has a capacity within +/-10% of the replaced tank provided:...... .. 1 (a) The capacity difference is no more than 1,500 gallons; (b) The facility's permitted tank capacity is not increased; and (c) The replacement tank meets the same conditions in the permit. (4) Modification of a tank management practice......... 2 (5) Management of different wastes in tanks: (a) That require additional or different management practices, tank design, different fire protection specifications, or significantly different tank treatment process from that authorized in the permit, except as provided in G(5)(c) below...................... 3 (b) That do not require additional or different management practices, tank design, different fire protection specifications, or significantly different tank treatment process from that authorized in the permit, except as provided in G(5)(d) below.................................. 2 (c) That require addition of units or change in treatment processes or management standards, provided that the wastes are restricted from land disposal and are to be treated to meet some or all of the applicable treatment standards or that are to be treated to satisfy (in whole or in part) the standard of "use of practically available technology that yields the greatest environmental benefit" contained in 40 CFR, sec.268.8(a)(1)(ii), with prior approval of the executive director. The modification is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028).............. ......................... 1[sup]1 (d) That do not require the addition of units or a change in the treatment process or management standards, and provided that the units have previously received wastes of the same type (e.g., incinerator scrubber water). This modification is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028)................... 1
                                              Note: See sec.305.69(g) of this title (relating to Newly Listed Solid Waste Permit Modification at the Request of the Permittee or Identified Wastes) for modification procedures to be used for the management of newly listed or identified wastes. H Surface Impoundments (1) Modification or addition of surface impoundment units that result in increasing the facility's surface impoundment storage or treatment capacity. .. 3 (2) Replacement of a surface impoundment unit........... 3 (3) Modification of a surface impoundment unit without increasing the facility's surface impoundment storage or treatment capacity and without modifying the unit's liner, leak detection system, or leachate collection system..... 2 (4) Modification of a surface impoundment management practice........... ................................ 2 (5) Treatment, storage, or disposal of different wastes in surface impoundments: (a) That require additional or different management practices or different design of the liner or leak detection system than authorized in the permit........... 3 (b) That do not require additional or different management practices or different design of the liner or leak detection system than authorized in the permit.................................. 2 (c) That are wastes restricted from land disposal that meet the applicable treatment standards or that are treated to satisfy the standard of "use of practically available technology that yields the greatest environmental benefit" contained in 40 CFR, sec.268.8(a)(2)(ii), and provided that the unit meets the minimum technological requirements stated in 40 CFR, sec.268.5(h)(2). This modification is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028)........................ 1 (d) That are residues from wastewater treatment or incineration, provided that disposal occurs in a unit that meets the minimum technological requirements stated in 40 CFR, sec.268.5(h)(2), and provided further that the surface impoundment has previously received wastes of the same type (for example, incinerator scrubber water). This modification is not applicable to dioxin- containing wastes (F020, 021, 022, 023, 026, 027, and 028).............. .................... 1
                                                Note: See sec.305.69(g) of this title (relating to Newly Listed or Identified Wastes) for modification procedures to be used for the management of newly listed or identified wastes. I. Enclosed Waste Piles. For all waste piles except those complying with 40 CFR, sec.264.250(c), modifications are treated the same as for a landfill. The following modifications are applicable only to waste piles complying with 40 CFR, sec.264.250(c). (1) Modification or addition of waste pile units: (a) Resulting in greater than 25% increase in the facility's waste pile storage or treatment capacity............................. 3 (b) Resulting in up to 25% increase in the facility's waste pile storage or treatment capacity.................................. 2 (2) Modification of waste pile unit without increasing the capacity of the unit................. 2 (3) Replacement of a waste pile unit with another waste pile unit of the same design and capacity and meeting all waste pile conditions in the permit.............................................. 1 (4) Modification of a waste pile management practice... 2 (5) Storage or treatment of different wastes in waste piles: (a) That require additional or different management practices or different design of the unit.................................... 3 (b) That do not require additional or different management practices or different design of the unit.................................... 2
                                                  Note: See sec.305.69(g) of this title (relating to Newly Listed or Identified Wastes) for modification procedures to be used for the management of newly listed or identified wastes. (J) Landfills and Unenclosed Waste Piles (1) Modification or addition of landfill units that result in increasing the facility's disposal capacity................................... 3 (2) Replacement of a landfill........................... 3 (3) Addition or modification or a liner, leachate collection system, leachate detection system, run-off control, or final cover system.............. 3 (4) Modification of a landfill unit without changing a liner, leachate collection system, leachate detection system, run-off control, or final cover system........................................ 2 (5) Modification of a landfill management practice..... 2 (6) Landfill different wastes: (a) That require additional or different management practices, different design of the liner, leachate collection system, or leachate detection system................... 3 (b) That do not require additional or different management practices, different design of the liner, leachate collection system, or leachate detection system...................... 2 (c) That are wastes restricted from land disposal that meet the applicable treatment standards or that are treated to satisfy the standard of "use of practically available technology that yields the greatest environmental benefit" contained in 40 CFR, sec.268.8(a)(2)(ii), and provided that the landfill unit meets the minimum technological requirements stated in 40 CFR, sec.268.5(h)(2). This modification is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028).............. .......... 1 (d) That are residues from wastewater treatment or incineration, provided that disposal occurs in a landfill unit that meets the minimum technological requirements stated in 40 CFR, sec.268.5(h)(2), and provided further that the landfill has previously received wastes of the same type (for example, incinerator ash). This modification is not applicable to dioxin-containing wastes (F020, 021, 022, 023, 026, 027, and 028).............. 1
                                                    Note: See sec.305.69(g) of this title (relating to Newly Listed or Identified Wastes) for modification procedures to be used for the management of newly listed or identified wastes. (K) Land Treatment (1) Lateral expansion of or other modification of a land treatment unit to increase areal extent...... 3 (2) Modification of run-on control system............... 2 (3) Modify run-off control system....................... 3 (4) Other modifications of land treatment unit component specifications or standards required in the permit....................................... 2 (5) Management of different wastes in land treatment units: (a) That require a change in permit operating conditions or unit design specifications....... 3 (b) That do not require a change in permit operating conditions or unit design specifications................................. 2
                                                      Note: See sec.305.69(g) of this title (relating to Newly Listed or Identified Wastes) for modification procedures to be used for the management of newly listed or identified wastes. (6) Modification of a land treatment management practice to: (a) Increase rate or change method of waste application................. ................... 3 (b) Decrease rate of waste application............. 1 (7) Modification of a land treatment unit management practice to change measures of pH or moisture content, or to enhance microbial or chemical reactions............................... 2 (8) Modification of a land treatment unit management practice to grow food chain crops, or add to or replace existing permitted crops with different food chain crops, or to modify operating plans for distribution of animal feeds resulting from such crops..................... 3 (9) Modification of operating practice due to detection of releases from the land treatment unit pursuant to 40 CFR, sec.264.278(g)(2).............. . 3 (10) Changes in the unsaturated zone monitoring system, resulting in a change to the location, depth, or number of sampling points, or that replace unsaturated zone monitoring devices or components thereof with devices or components that have specifications different from permit requirements......... ................... 3 (11) Changes in the unsaturated zone monitoring system that do not result in a change to the location, depth, or number of sampling points, or that replace unsaturated zone monitoring devices or components thereof with devices or components having specifications not different from permit requirements...... 2 (12) Changes in background values for hazardous constituents in soil and soil- pore liquid.......... 2 (13) Changes in sampling, analysis, or statistical procedure............ .............................. 2 (14) Changes in land treatment demonstration program prior to or during the demonstration................ 2 (15) Changes in any condition specified in the permit for a land treatment unit to reflect results of the land treatment demonstration, provided performance standards are met, and the executive director's prior approval has been received...................................... 1[sup]1 (16) Changes to allow a second land treatment demonstration to be conducted when the results of the first demonstration have not shown the conditions under which the wastes can be treated completely, provided the conditions for the second demonstration are substantially the same as the conditions for the first demonstration and have received the prior approval of the executive director.................. 1[sup]1 (17) Changes to allow a second land treatment demonstration to be conducted when the results of the first demonstration have not shown the conditions under which the waste can be treated completely, where the conditions for the second demonstration are not substantially the same as the conditions for the first demonstration.............. 3 (18) Changes in vegetative cover requirements for closure............... ............................. 2 (L) Incinerators, Boilers, and Industrial Furnaces (1) Changes to increase by more than 25% any of the following limits authorized in the permit: a thermal feed rate limit; a feedstream feed rate limit; a chlorine feed rate limit, a metal feed rate limit, or an ash feed rate limit. The executive director will require a new trial burn to substantiate compliance with the regulatory performance standards unless this demonstration can be made through other means............................ 3 (2) Changes to increase by up to 25% any of the following limits authorized in the permit: A thermal feed rate limit; a feedstream feedrate limit; chlorine/chloride feed rate limit, a metal feed rate limit, or an ash feed rate limit. The executive director will require a new trial burn to substantiate compliance with the regulatory performance standards unless this demonstration can be made through other means.................................. ............. 2 (3) Modification of an incinerator, boiler, or industrial furnace unit by changing the internal size of geometry of the primary or secondary combustion units, by adding a primary or secondary combustion unit, by substantially changing the design of any component used to remove HC1/C1 [sub]2,
                                                        point=9.03p set=9.03p>metals or particulate from the combustion gases, or by changing other features of the incinerator, boiler, or industrial furnace that could affect its capability to meet the regulatory performance standards. The executive director will require a new trial burn to substantiate compliance with the regulatory performance standards unless this demonstration can be made through other means....... 3 (4) Modification of an incinerator, boiler, or industrial furnace unit in a manner that would not likely affect the capability of the unit to meet the regulatory performance standards but which would change the operating conditions or monitoring requirements specified in the permit. The executive director may require a new trial burn to demonstrate compliance with the regulatory performance standards.................... 2 (5) Operating requirements: (a) Modification of the limits specified in the permit for minimum or maximum combustion gas temperature, minimum combustion gas residence time, oxygen concentration in the secondary combustion chamber, flue gas carbon monoxide and hydrocarbon concentration, maximum temperature at the inlet to the particulate matter emission control system, or operating parameters for the air pollution control system. The executive director will require a new trial burn to substantiate compliance with the regulatory performance standards unless this demonstration can be made through other means............ ........... 3 (b) Modification of any stack gas emission limits specified in the permit, or modification of any conditions in the permit concerning emergency shutdown or automatic waste feed cutoff procedures or controls................. ................... 3 (c) Modification of any other operating condition or any inspection or recordkeeping requirement specified in the permit........................ 2 (6) Burning different wastes: (a) If the waste contains a POHC that is more difficult to burn than authorized by the permit or if burning of the waste requires compliance with different regulatory performance standards than specified in the permit. The executive director will require a new trial burn to substantiate compliance with the regulatory performance standards unless this demonstration can be made through other means....................... 3 (b) If the waste does not contain a POHC that is more difficult to burn than authorized by the permit and if burning of the waste does not require compliance with different regulatory performance standards than specified in the permit..................................... 2
                                                          Note: See sec.305.69(g) of this title (relating to Newly Regulated Wastes and Units) for modification procedures to be used for the management of newly regulated wastes and units. (7) Shakedown and trial burn: (a) Modification of the trial burn plan or any of the permit conditions applicable during the shakedown period for determining operational readiness after construction, the trial burn period, or the period immediately following the trial burn................................. 2 (b) Authorization of up to an additional 720 hours of waste burning during the shakedown period for determining operational readiness after construction, with the prior approval of the executive director ............... ........................1 point=5.02p [sup]1 (c) Changes in the operating requirements set in the permit for conducting a trial burn, provided the change is minor and has received the prior approval of the executive director... 1[sup]1 (d) Changes in the ranges of the operating requirements set in the permit to reflect the results of the trial burn, provided the change is minor and has received the prior approval of the executive director....... 1[sup]1 (8) Substitution of an alternate type of nonhazardous waste fuel that is not specified in the permit....... 1 This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326691 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter F. Permit Characteristics and Conditions 31 TAC sec.305.122 The amendment is proposed under the Texas Water Code, sec.5.103 and sec.5. 105, which provides the Texas Water Commission the authority to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and under the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further provides the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.305.122. Characteristics of Permits. (a) Compliance with a Resource Conservation and Recovery Act (RCRA) permit during its term constitutes compliance, for purposes of enforcement, with Subtitle C of RCRA except for those requirements not included in the permit which: (1) become effective by statute; (2) are promulgated under Part 268 of this chapter restricting the placement of hazardous wastes in or on the land; or (3) are promulgated under Chapter 335, Subchapter F, regarding leak detection systems for new and replacement surface impoundment, waste pile, and landfill units. The leak detection system requirements include double liners, CQA programs, monitoring, action leakage rates, and response through the Class 1 permit modifications procedures of sec.305.69 of this title (relating to Amendments, Modifications, Renewals, Transfers, Corrections, Revocations, and Suspensions of Permits). (b)
                                                            [(a)] A permit issued within the scope of this subchapter does not convey any property rights of any sort, nor any exclusive privilege, and does not become a vested right in the permittee. (c)
                                                              [(b)] The issuance of a permit does not authorize any injury to persons or property or an invasion of other property rights, or any infringement of state or local law or regulations. (d)
                                                                [(c)] Except for any toxic effluent standards and prohibitions imposed under the Clean Water Act (CWA), sec.307, and standards for sewage sludge use or disposal under CWA, sec.405(d), compliance with a Texas pollutant discharge elimination system (TPDES) permit during its term constitutes compliance, for purposes of enforcement, with the CWA, sec.sec.301, 302, 306, 307, 318, 403, and 405; however, a TPDES permit may be amended or revoked during its term for cause as set forth in sec.305.62 and sec.305.66 of this title (relating to Permit Denial, Revocation and Suspension.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326692 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Chapter 330. Municipal Solid Waste Subchapter Q. Memorandum of Understanding and Joint Rules With Other Agencies 31 TAC sec.330.732 The Texas Water Commission (TWC) proposes new sec.330.732, concerning the adoption of a memorandum of understanding by reference. The memorandum proposed for adoption by reference complies with the Environmental Protection Agency's (EPA) requirements as delineated in sec.239.9 of the State/Tribal Implementation Regulations (STIR). STIR provides states with requirements which must be met in order to demonstrate that they have incorporated the recent federal amendments to Subtitle D of the Resource Conservation Recovery Act of 1976, as amended (42 United States Code, sec.6901 et seq). By publication in the June 18, 1993, Texas Register (18 TexReg 4023), the TWC adopted new Chapter 330, Subchapters A-L in order to incorporate the new federal requirements which were adopted by the EPA on October 9, 1991 (Vol. 56, No. 196 FedReg). These new federal requirements set forth revised minimum federal criteria for municipal solid waste landfills. Both the federal rules and the TWC's newly adopted rules are effective on October 9, 1993, excluding a delayed implementation date for financial assurance requirements in Subchapter K. STIR, sec.239.9, requires those states intending to administer the federal Subtitle D program to provide for intervention in the state civil enforcement process. The memorandum of understanding, which is proposed to be adopted by reference contains the TWC's and Office of the Attorney General's policies in regard to intervention in the civil enforcement process. Proposed sec.330.273 adopts the memorandum of understanding by reference and provides the public with information on how to obtain a copy of this document. The effect date of this rule is proposed to be October 9, 1993, in order to coincide with the effective date of the new federal and state municipal solid waste regulations. Stephen Minick, division of budget and planning, has determined that for the first five-year period this rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Minick also has determined that the public benefit anticipated as a result of enforcement of or compliance with the rule as proposed will be improvements in public awareness and involvement in proceedings related to enforcement of environmental protection requirements for municipal solid waste facilities. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Steven Shepherd, Staff Attorney, Legal Services Division, P.O. Box 13087, Austin, Texas 78711-3087. The deadline for submitting written comments is at 5:00 p.m., 30 days following the date of this publication. To facilitate public comment on the proposed new rule, a public hearing has been scheduled for Thursday, September 9, 1993 at 9:00 a.m., in Room 1149A, 1700 North Congress Avenue, Stephen F. Austin State Office Building, Austin, Texas 78711. The new section is proposed under the Texas Water Code (Vernon 1988), sec.5. 103, which provides the Texas Water Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, this section is adopted pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, Chapter 361 (Vernon 1992), which provides the Texas Water Commission with the authority to regulate municipal solid waste and adopt rules and necessary to regulate the operation, management, and control of solid waste under its juridication. sec.330.732. Adoption by Reference. (a) The Texas Water Commission adopts by reference a memorandum of understanding among the Texas Water Commission and the Attorney General of Texas. The memorandum contains the Water Commission's and the Attorney General's interpretation concerning intervention in the civil enforcement process under the Texas Solid Waste Disposal Act. (b) Copies of the memorandum of understanding are available upon request from the Waste Management Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087, (512) 908-6087. (c) The effective date of the memorandum of understanding is October 9, 1993. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 3, 1993. TRD-9326773 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 10, 1993 For further information, please call: (512) 463-8069 Chapter 331. Underground Injection Control Subchapter G. Consideration Prior to Permit Issuance 31 TAC sec.331.121 The Texas Water Commission (TWC) proposes an amendment to sec.331.121, concerning underground injection control. The purpose of the amendments is to adopt federal regulations as published and adopted in 52 FedReg 45797 as promulgated on December 1, 1987. Section 331.121(e) is added to require additional information for Class I hazardous waste injection well permits. Section 331.121(e) reflects the requirements of 40 Code of Federal Regulations (CFR) sec.144.31(g)(1)-(3). Section 331.121(f) is added to clarify the interim status under the Resource Conservation and Recovery Act (RCRA) for Class I hazardous waste injection wells. The section provides that the issuance of an underground injection well permit does not automatically terminate RCRA interim status. However, a class I well's interim status does automatically terminate upon issuance to that well of a RCRA permit, or upon the well's receiving a RCRA permit-by-rule under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). Section 331.121(f) reflects the provisions of 40 CFR sec.144.1(h). Stephen Minick, division of budget and planning, has determined that for the first five years the rule is in effect there will be no significant fiscal implications as a result of enforcement or administration of the rule. There are no significant implications for either state or local governments. The effect of the rule will be to incorporate into state regulations provisions of existing federal regulations. While application of the rule to a specific facility may have fiscal implications, it is not anticipated that enforcement of the rule by the state will have significantly different fiscal implications for affected entities than would enforcement of the equivalent federal rules. Mr. Minick has also determined that for the first five years the rule will be in effect the public benefit anticipated as a result of enforcement of and compliance with the rule will be improvements in the consistency of federal and state regulation of hazardous waste disposal facilities and in the information required to be submitted in support of permit applications. There are no anticipated effects on small businesses. There are no known economic costs to persons required to comply with the rule as proposed. Comments on the proposals may be submitted to Brenda Clayton, Staff Attorney, Legal Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711- 3087. Comments will be accepted until 5:00 p.m. for a period of 30 days following the date of this publication. The amendment is proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Health and Safety Code, sec.361.017 and sec.361.024, which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.331.121. Class I Wells. (a)-(d) (No change.) (e) Information requirements for Class I hazardous waste injection well permits. (1) The following information is required for each active Class I hazardous waste injection well at a facility seeking a underground injection control permit: (A) dates well was operated; and (B) specification of all wastes that have been injected in the well, if available. (2) The owner or operator of any facility containing one or more active hazardous waste injection wells must submit all available information pertaining to any release of hazardous waste or constituents from any active hazardous waste injection well at the facility. (3) The owner or operator of any facility containing one or more active Class I hazardous waste injection wells must conduct such preliminary site investigations as are necessary to determine whether a release is occurring, has occurred, or is likely to have occurred. (f) Interim status under the Resource Conservation and Recovery Act (RCRA) for Class I hazardous waste injection wells. The minimum state standards which define acceptable injection of hazardous waste during the period of interim status are set out in sec.331.9 of this title (relating to Injection Authorized by Rule) and sec.331.44 of this title (relating to Corrective Action Standards). The issuance of an underground injection well permit does not automatically terminate RCRA interim status. A Class I well's interim status does, however, automatically terminate upon issuance to that well of a RCRA permit, or upon the well's receiving a RCRA permit-by-rule under sec.335.47 of this title (relating to Special Requirements for Persons Eligible for a Federal Permit by Rule). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326688 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste Subchapter A. Industrial Solid Waste and Municipal Hazardous Waste Management in General The Texas Water Commission (TWC) proposes amendments to ssec.335.1, 335.2, 335.10, 335.13, 335.29, 335.41, 335.47, 335.61, 335.69, 335.74, 335.111, 335. 112, 335.115, 335.152, 335.155, 335.166, 335.167, 335.168, 335.173, 335.211, 335.224, and 335.504 and the repeal of sec.335.431 and new sec.335.431, concerning industrial solid waste and municipal hazardous waste. The purpose of the amendments is to adopt certain federal hazardous waste regulations and to clarify existing state regulations. Section 335.1 is amended to supplement the definition of "designated facility." The additional language will provide that when a waste is destined for a facility in an authorized State which has not yet obtained authorization to regulate that particular waste as hazardous, then the designated facility must be a facility allowed by the receiving state to accept such waste. Section 335.1 is also amended to add the definition of a "drip pad" and to add the words "tank system" to the definitions of "elementary neutralization unit" and "wastewater treatment unit." Section 335.2(c) is amended to provide that generators who generate greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month and who process, store, or dispose of these wastes on-site, a Part A permit application shall be submitted to the U.S. EPA by March 24, 1987, as required by 40 Code of Federal Regulations, sec.270.10(e)(1)(i-ii). Section 335.2(i) is amended to provide that owners and operators of surface impoundments, landfills, land treatment units, and waste pile units that received wastes after July 26, 1982, or that certified closure after January 26, 1983, must have a post-closure permit. If a post-closure permit is required, the permit must address applicable provisions of 40 Code of Federal Regulations (CFR), 264, and of Subchapter F of 31 TAC Chapter 335. Also, sec.335.2(k) is added to adopt by reference the references listed in 40 CFR, sec.260.11. Section 335.10 is amended to provide that the generator who ships hazardous waste to a designated facility in an authorized state which has not yet obtained authorization to regulate that particular waste as hazardous must assure that the designated facility agrees to sign and return the manifest to the generator, and that any out-of-state transporter signs and forwards the manifest to the designated facility. Section 335.13(a) is amended to provide that the generator or primary exporter that receives a signed copy of the manifest from the designated facility that received its waste must keep the signed copy for at least three years from the date the waste was accepted by the initial transporter. Section 335.13(c) and (d) are amended to clarify that those subsections apply only to generators of greater than 1,000 kilograms of hazardous waste in a calendar month or to a generator of Class I waste. Simultaneously, sec.335. 13(g) is added to require generators of greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month to report to the executive director if he does not receive a copy of the manifest with the signature of the owner or operator of the designated facility within 60 days of the date the waste was accepted by the initial transporter. Section 335.29 is amended to change the effective date of the adoption of Appendix III of 40 CFR, Part 261, from April 1, 1987 to March 9, 1990. Section 335.41(c) is amended to eliminate the exemption from Subchapters E and F for persons disposing of hazardous waste by means of underground injection. After the rule change is promulgated, persons disposing of hazardous waste by means of underground injection will be subject to the interim status standards for owners and operators of hazardous waste storage, processing, or disposal facilities and to the special requirements for persons eligible for a federal permit by rule under sec.335.47. Section 335.41(d) is amended to provide that a farmer who disposes of waste pesticides from his own use in compliance with sec.335.77 is exempt from Subchapters E and F of Chapter 335. Section 335.41(i) is added to provide that the permitting standards of Subchapter F do not apply to persons disposing of hazardous waste by means of underground injection, except as provided under sec.335.47 (which relates to special requirements for persons eligible for a federal permit by rule). Section 335.47(c)(3) is amended to provide that where an underground injection well is the only unit at a facility which requires a permit, the owner and operator of an injection well used to dispose of hazardous waste must comply with the information requirements of 40 CFR, sec.270.14(d). Section 335.61 is amended to provide that generators who store, process, or dispose of hazardous waste must also comply with sec.335.73 (which relates to additional reporting), sec.335.73 (which relates to additional reporting), and, if applicable, sec.335.77 (which relates to farmers) and sec.335.69 (which relates to accumulation time). In addition, sec.335.61(f) is added to provide that a generator who treats, stores, or disposes of hazardous waste on-site must comply with the permitting and standard requirement for storage, treatment, and disposal facilities. Section 335.69(a) is amended to provide that the generator that accumulates hazardous waste on-site without a permit and that places the hazardous waste on drip-pads must comply with 31 TAC sec.335.112(a)(18) (which relates to drip pads) and must maintain certain documentation. Section 335.69(a)(4) is amended to provide that the generator who accumulates hazardous waste on-site without a permit or interim status must also comply with the land disposal restrictions of 40 CFR, sec.268.7(a)(4). Section 335.69(f)(4) is amended to provide that the generator who generates greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month may accumulate hazardous waste on-site for 180 days or less without a permit or without interim status if he also complies with the land ban provisions of 40 CFR, sec.268.7(a)(4). Section 335.74 is amended to provide that the generator of between 100 and 1,000 kilograms per month of hazardous waste is also subject to the recordkeeping and reporting provisions of sec.335.13(a) and (g). Section 335.111(c) is added to provide that the land disposal restrictions of 40 CFR, Part 268, are material conditions or requirements of interim status standards. Sections 335.112(a)(17), (18), (19), and (20) are added to adopt by reference 40 CFR, Part 265, Subparts R, W, AA, and BB, respectively. Subpart R provides that the owner or operator of a facility which disposes of hazardous waste by underground injection is excluded from the requirements of Subparts G and H, which relate to closure and post-closure plans and to financial requirements. Subpart W regulates the use of drip pads to convey treated wood drippage, precipitation, and/or surface water run-on to an associated collection system. Texas will regulate drip pads for the first time with the adoption of Subpart W. Texas is required, to retain authorization, to adopt the drip-pad rules promulgated through July 1, 1991. However, we consider it appropriate to incorporate the more recent amendments adopted by the EPA in 57 FedReg 61492 on December 24, 1992. Subpart AA sets air emission standards for certain process vents associated with distillation, fractionalization, thin-film evaporation, solvent extraction, or air or stream stripping operations that manage hazardous wastes with organic concentrations of at least 10 ppmw. Subpart BB sets air emission standards for certain equipment leaks if that equipment contains or contacts hazardous wastes with organic concentrations of at least 10% by weight. The TWC also proposes to move amendment dates subsequent to June 1, 1990, from the preamble of sec.335.112(a) to the individual paragraphs. The effective date of sec.335.112(a)(1), which adopts by reference 40 CFR, Part 265, Subpart A, is amended from June 1, 1990, to April 26, 1991. In doing so, amendments made in 55 FedReg 25506 on June 21, 1990, and in 56 FedReg 19290 on April 26, 1991, are incorporated. The effective date of sec.335.112(a)(4), which adopts by reference 40 CFR, Part 265, Subpart E, is changed from June 1, 1990, to April 26, 1991. In doing so, amendments made in 55 FedReg 25507 on June 21, 1990, and in 56 FedReg 19290 on April 26, 1991, are incorporated. The effective date of sec.335.112(a)(7), which adopts by reference 40 CFR, Part 265, Subpart H, is changed from June 1, 1990, to July 1, 1991. In doing so, amendments made in 56 FedReg 30200 on July 1, 1991, are incorporated. The effective date of sec.335.112(a)(9), which adopts by reference 40 Code of Federal Regulations, Subpart J, is changed from June 1, 1990, to December 6, 1990. In doing so, amendments made in 56 FedReg 50486 on December 6, 1990, are incorporated. Section 335.115(a)(4) is added to require the owner and operator of storage, processing, or disposal facilities to submit any reports required by 40 CFR, Part 265, Subparts AA and BB. The TWC is proposing to renumber old sec.335.152(a)(14) as new sec.335.152(a) (15). Sections 335.152(14), (16), and (17) are added to adopt by reference 40 CFR, Part 264, Subparts W, AA, and BB, respectively. Subpart W regulates the use of drip pads to convey treated wood drippage, precipitation, and/or surface water run-on to an associated collection system. Texas will regulate drip pads for the first time with the adoption of Subpart WW. Texas is required, to retain authorization, to adopt the drip-pad rules promulgated through July 1, 1991. However, we consider it appropriate to incorporate the more recent amendments adopted by the EPA in 57 FedReg 61492 on December 24, 1992. Subpart AA sets air emission standards for process vents associated with distillation, fractionalization, thin-film evaporation, solvent extraction, or air or stream stripping operations that manage hazardous wastes with organic concentrations of at least 10 ppmw. Subpart BB sets air emission standards for equipment leaks if that equipment contains or contacts hazardous wastes with organic concentrations of at least 10% by weight. Section 335.152 is also amended to move the amendment dates subsequent to June 1, 1990 from the preamble of sec.335.152(a) to the individual paragraphs. The effective date of sec.335.152(a)(1), which adopts by reference 40 CFR, Part 264, Subparts B and E, is changed from June 1, 1990, to June 21, 1990. Amendments made in 55 FedReg 25494 on June 21, 1990, are thereby incorporated. The effective date of sec.335.152(a)(4), which adopts by reference 40 CFR, Part 264, Subpart E, is changed from June 1, 1990, to June 21, 1990. Amendments made in 55 FedReg 25494 on June 21, 1990, are thereby incorporated. The effective date of sec.335.152(a)(8), which adopts by reference 40 CFR, Part 264, Subpart J, is changed from June 1, 1990, to December 6, 1990. Amendments made in 55 FedReg 50484 on December 6, 1990, are thereby incorporated. Section 335.155 is amended to require the owner and operator of storage, processing, or disposal facilities to submit any reports required by 40 CFR, Part 264, Subparts AA and BB. Section 335.166(5) is amended to provide that the owner or operator who is required to implement a corrective action program must conduct that program beyond the facility boundary, if possible. Section 335.167(c) is added to require the owner or operator of solid waste management units to implement corrective actions beyond the facility boundary, if possible. Section 335.168(c) is amended to clarify that the requirements of the subsection apply with respect to all waste received after the issuance of the permit for units where Part B of the permit application is received by the executive director after November 8, 1984. Section 335.173(c) is amended to clarify that the requirements of that subsection apply with respect to all waste received after the issuance of the permit for units where Part B of the permit application is received by the executive director after November 8, 1984. Section 335.211(b) is amended in three respects. First, it is amended to provide that the exemption for products produced for the general public's use that are used in a manner that constitutes disposal and that contain recyclable materials must meet the applicable treatment standards in 40 CFR, Part 268, Subpart D. Second, the exemption for commercial fertilizers that contain recyclable materials is conditioned on meeting those same treatment standards or prohibition levels for each recyclable material that the fertilizers contain. Third, the section is amended to provide the zinc-containing fertilizers using hazardous waste K061 that are produced for the general public's use are not subject to regulation. Section 335.224(7) is amended to allow the owner and operator of a boiler and industrial furnace that burns hazardous waste to use compliance test data from one unit in lieu of testing a similar on-site unit. Section 335.431 is repealed due to the extensive changes need to clarify the subchapter. New sec.335.431 will incorporate later amendments to the land ban provisions of 40 CFR, Part 268, and will clarify the language of the Texas regulation. Except as provided in sec.335.431(c)(2), and subject to the changes in sec.335.431(d), the regulations contained in 40 CFR, Part 268, as amended through June 26, 1992, in 57 FedReg 29632, are adopted by reference in sec.335. 431(c)(1). Section 335.431(c)(2) excludes from adoption 40 CFR, sec. s268.5, 268.6, 268. 7(a)(10), 268.10-268.13, 268.42(b), and 268.44. Sections 268.5, 268.6, 268. 42(b), and 268.44 are excluded because those provisions are not delegable to the states. Section 268.7(a)(10) is excluded because Texas did not adopt the tolling provision of 40 CFR, sec.262.20(e), that is referred to in that section. Since Texas does not recognize the tolling agreement manifest exception allowed by 40 CFR, sec.262.20(e), Texas will require LDR certifications with each shipment. Sections 268.10-268.13 are excluded because those sections are merely deadlines set for EPA by Congress. Section 335.431(d) changes portions of 40 CFR, Part 268, that are adopted by reference. The changes are necessary to integrate the federal regulations into the state regulatory scheme. Section 335.504 is amended to provide that a person who generates hazardous waste must test that waste to comply with the land disposal restrictions. Stephen Minick, division of budget and planning, has determined that for the first five years the rules are in effect there will be fiscal implications as a result of enforcement or administration of the rules. There are no significant implications for either state or local governments. The effect of these rules will be to incorporate into state regulations provisions of existing federal regulations. It is not anticipated that enforcement of these same rules by the state will have significantly different fiscal implications for affected entities than would enforcement of the equivalent federal rules. The Environmental Protection Agency (EPA) has determined that none of the rules proposed to be incorporated constitute a "major rule" with significant national impact (greater than $100 million). EPA has estimated the industry-wide annualized costs of compliance with organic air emission standards for process vents and equipment leaks for hazardous waste management units at $48 million (see 55 FedReg 25492, June 21, 1990). It is not known what part of the national total is represented by treatment storage or disposal facilities in Texas, however, approximately 10% of the total of potentially affected permitted hazardous waste facilities are in Texas. EPA has also determined that the regulations relating to drip pads, while not a major rule, could have potential significant impacts on the wood preserving industry. The total national annualized cost to wood preserving facilities of the proposed drip pad rules (see 55 FedReg 50471, December 12, 1990) was estimated to be between $11 million and $14 million. The state rules as proposed, however, incorporate changes adopted in the final federal rule (57 Federal Register 61501, December 24, 1992) which will reduce the anticipated costs of these rules. These changes relate to exemptions from listing of certain hazardous wastes, construction standards for drip pads and management requirements for wastes from drip pads. Of the approximately 440 wood preserving facilities anticipated to be affected by the rule nationally, no more than 10 (2.3%) are located in Texas. Other provisions of these proposed rules will have fiscal implications which have not been specifically identified at the state level, but which should not be different from the equivalent federal regulation. Mr. Minick also has determined that for the first five years the rules will be in effect the public benefit anticipated as a result of enforcement of and compliance with the rules will be improvements in the consistency of federal and state regulation of hazardous waste treatment, storage, and disposal facilities, reductions in potential releases of hazardous constituents to the environment and improved protection of human health and safety. No significant impacts to small businesses are anticipated. There are no known costs to persons required to comply with the rules as proposed. Comments on the proposals may be submitted to Brenda Clayton, Staff Attorney, Legal Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711- 3087. Comments will be accepted until 5:00 p.m. for a period of 30 days following the date of this publication. 31 TAC sec.sec.335.1, 335.2, 335.10, 335.13, 335.29 The amendments are proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly requires otherwise. Designated facility -A Class I or hazardous waste storage, processing, or disposal facility which has received an Environmental Protection Agency (EPA) permit (or a facility with interim status) in accordance with the requirements of 40 Code of Federal Regulations, Parts 270 and 124; a permit from a state authorized in accordance with 40 Code of Federal Regulations, Part 271 (in the case of hazardous waste); a permit issued pursuant to sec.335.2 of this title (relating to Permit Required) (in the case of non-hazardous waste); or that is regulated under sec.335.24(f), (g), or (h) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials) or sec.335.241 of this title (relating to Applicability and Requirements) and that has been designated on the manifest by the generator pursuant to sec.335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste). If a waste is destined to a facility in an authorized State which has not yet obtained authorization to regulate that particular waste as hazardous, then the designated facility must be a facility allowed by the receiving State to accept such waste. Drip Pad-An engineered structure consisting of a curbed, free-draining base, constructed of a non-earthen materials and designed to convey preservative kick-back or drippage from treated wood, precipitation, and surface water run-on to an associated collection system at wood preserving plants. Elementary neutralization unit-A device which: (A) (No change.) (B) meets the definition of tank, tank system,
                                                                  container, transport vehicle, or vessel as defined in this section. Landfill-A disposal facility or part of a facility where hazardous waste is placed in or on land and which is not a pile, a
                                                                    land treatment facility, a surface impoundment, an injection well, a saltdome formation, a saltbed formation, an underground mine or a cave. Wastewater treatment unit-A device which: (A)-(B) (No change.) (C) meets the definition of tank or tank system
                                                                      as defined in this section. sec.335.2. Permit Required. (a)-(b) (No change.) (c) Any owner or operator of a solid waste management facility that is in existence on the effective date of a statutory or regulatory change that subjects the owner or operator to a requirement to obtain a hazardous waste permit who has filed a hazardous waste permit application with the commission in accordance with the rules and regulations of the commission, may continue the storage, processing, or disposal of hazardous waste until such time as the Texas Water Commission approves or denies the application, or, if the owner or operator becomes subject to a requirement to obtain a hazardous waste permit after November 8, 1984, except as provided by the United States Environmental Protection Agency or commission rules relative to termination of interim status. If a solid waste facility which has become a commercial hazardous waste management facility as a result of the federal toxicity characteristic rule effective September 25, 1990, and is required to obtain a hazardous waste permit, such facility that qualifies for interim status is limited to those activities that qualify it for interim status until the facility obtains the hazardous waste permit. Owners or operators of municipal hazardous waste facilities which satisfied this requirement by filing an application on or before November 19, 1980, with the United States Environmental Protection Agency are not required to submit a separate application with the Texas Department of Health. Applications filed under this section shall meet the requirements of sec.335.44 of this title (relating to Application for Existing On-Site Facilities). Owners and operators of solid waste management facilities that are in existence on the effective date of statutory or regulatory amendments under the Solid Waste Disposal Act, Chapter 361, Texas Health and Safety Code (Vernon's Supplement 1991), Texas Civil Statutes, Article 4477-7, or the Resource Conservation and Recovery Act of 1976, as amended, 42 United States Code, sec.sec.6901 et seq, that render the facility subject to the requirement to obtain a hazardous waste permit, may continue to operate if Part A of their permit application is submitted no later than six months after the date of publication of regulations by the United States Environmental Protection Agency pursuant to the Resource Conservation and Recovery Act of 1976, as amended, which first require them to comply with the standards set forth in Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), or Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities); or 30 days after the date they first become subject to the standards set forth in these subchapters, whichever first occur; or for generators who generate greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month and who process, store, or dispose of these wastes on-site, a Part A permit application shall be submitted to the United States Environmental Protection Agency by March 24, 1987, as required by 40 Code of Federal Regulations, sec.270.10(e)(1)(iii)
                                                                        . This subsection shall not apply to a facility if it has been previously denied a hazardous waste permit or if authority to operate the facility has been previously terminated. Applications filed under this section shall meet the requirements of sec.335.44 of this title (relating to Application for Existing On-Site Facilities). For purposes of this subsection, a solid waste management facility is in existence if the owner or operator has obtained all necessary federal, state, and local preconstruction approvals or permits, as required by applicable federal, state, and local hazardous waste control statutes, regulations, or ordinances; and either: (1)-(2) (No change.) (d)-(h) (No change.) (i) Owners or operators of hazardous waste management units must have permits during the active life (including the closure period) of the unit. Owners or operators of surface impoundments, landfills, land treatment units, and waste pile units that received wastes after July 26, 1982, or that certified closure (according to 40 Code of Federal Regulations, s265.115) after January 26, 1983, must have post-closure permits, unless they demonstrate closure by removal as provided under 40 Code of Federal Regulations, s270. 1(c)(5) and (6). If a post-closure permit is required, the permit must address applicable provisions of 40 Code of Federal Regulations, Part 264, and Subchapter F of this Chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities) provisions relating to Groundwater Monitoring, Unsaturated Zone Monitoring, Corrective Action, and Post-closure Care Requirements. The denial of a permit for the active life of a hazardous waste management facility or unit does not affect the requirement to obtain a post-closure permit under this section.
                                                                          [and, for any unit that receives hazardous waste after July 26, 1982, during any post-closure care period required under 40 Code of Federal Regulations, sec.264.117, and during any compliance period specified under sec.335.162 of this title (relating to Compliance Period) including any extension of that period.] (j) (No change.) (k) When used in this Chapter, (relating to Industrial Solid Waste and Municipal Hazardous Waste) the references contained in 40 Code of Federal Regulations, sec.260.11 are incorporated by reference. sec.335.10. Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste. (a) Except as provided in subsection (g) of this section, no generator of hazardous or Class I waste consigned to an off-site solid waste storage facility within the United States or primary exporters of hazardous waste consigned to a foreign country shall cause, suffer, allow, or permit the shipment of hazardous waste or Class I waste unless: (1)-(5) (No change.) (6) For shipments of hazardous waste to a designated facility in an authorized State which has not yet obtained authorization to regulate that particular waste as hazardous, the generator must assure that the designated facility agrees to sign and return the manifest to the generator, and that any out-of-state transporter signs and forwards the manifest to the designated facility. (b)-(h) (No change.) sec.335.13. Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste. (a) The generator or primary exporter shall retain a copy of each manifest required by sec.335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class I Waste and Primary Exporters of Hazardous Waste) for a minimum of three years from the date of shipment by the generator or primary exporter or until the generator or primary exporter receives a signed copy from the designated facility which received the waste. This signed copy must be retained as a record for at least three years from the date the waste was accepted by the initial transporter. (b) (No change.) (c) A generator of greater than 1,000 kilograms of hazardous waste in a calendar month or a generator of Class I waste
                                                                            who does not receive a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 35 days of the date the waste was accepted by the initial transporter must contact the transporter and\or the owner or operator of the designated facility to determine the status of the hazardous waste or Class I waste. (d) A generator of greater than 1,000 kilograms of hazardous waste in a calendar month or a generator of Class I waste
                                                                              must submit an exception report to the commission if he has not received a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 45 days of the date that the waste was accepted by the initial transporter. Primary exporters of hazardous waste must submit an exception report to the executive director as set forth in s335. 76(c) of this title (relating to Additional Requirements Applicable to International Shipments). The exception report must be retained by the generator or primary exporter for at least three years from the date the waste was accepted by the initial transporter and must include: (1)-(2) (No change.) (e)-(f) (No change.) (g) A generator of greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month who does not receive a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 60 days of the date the waste was accepted by the initial transporter must submit a legible copy of the manifest, with some indication that the generator has not received confirmation of delivery, to the executive director. sec.335.29. Adoption of Appendices by Reference. The following appendices contained in 40 Code of Federal Regulations, Part 261 [which are in effect as of April 1, 1987, except Appendix II which is in effect as of September 25, 1990], are adopted by reference[:] as amended and adopted through April 1, 1987 and as further amended as indicated in each paragraph: (1) Appendix I-Representative Sampling Methods; (2) Appendix II-Method 1311 Toxicity Characteristic Leaching Procedure (TCLP) (as amended through September 25, 1990); (3) Appendix III-Chemical Analysis Test Methods (as amended through March 9, 1990 at 55 FedReg 8948); (4) Appendix VII-Basis for Listing Hazardous Waste; (5) Appendix VIII-Hazardous Constituents; (6) Appendix IX-Wastes Excluded Under sec.260.20 and sec.260.22; and (7) Appendix X-Method of Analysis for Chlorinated Dibenzo-p-dioxins and Dibenzofurans. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326693 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter B. Hazardous Waste Management General Provisions 31 TAC sec.335.41, sec.335.47 The amendments are proposed pursuant to the Texas Water Code, sec.5.103, and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.41. Purpose, Scope, and Applicability. (a)-(b) (No change.) (c) Except as provided in sec.335.47 of this title (relating to Special Requirements for Persons Eligible for a Federal Permit by Rule), Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing or Disposal Facilities) and Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste, Storage, Processing, or Disposal Facilities) do not apply to the owner or operator of a publicly-owned treatment works (POTW) which processes, stores, or disposes of hazardous waste.
                                                                                [:] [(1) The owner or operator of a publicly-owned treatment works (POTW) which processes, stores, or disposes of hazardous waste; and [(2) Persons disposing of hazardous waste by means of underground injection. However, Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities) and Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities) do apply to the above ground storage or processing of hazardous waste before it is injected underground.] (d) Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities) and Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste, Storage, Processing, or Disposal Facilities) do not apply to: (1)-(3) (No change.) (4) a farmer disposing of waste pesticides from his own use in compliance with sec.335.77 (relating to Farmers) of this title. (e)-(h) (No change.) (i) Except as provided in sec.335.47 of this title (relating to Special Requirements for Persons Eligible for a Federal Permit by Rule), Subchapter F of this Chapter (relating to Permitting Standards for Owners and Operators of Hazardous waste Storage, Processing, or Disposal Facilities) does not apply to persons disposing of hazardous waste by means of underground injection. However, Subchapter F does apply to the aboveground storage or processing of hazardous waste before it is injected underground. sec.335.47. Special Requirements for Persons Eligible for a Federal Permit by Rule. (a)-(b) (No change.) (c) In addition to the requirements stated in subsection (b) of this section, the owner or operator of an injection well used to dispose of hazardous waste shall: (1)-(2) (No change.) (3) for underground injection control permits issued after November 8, 1984, comply with sec.335.167 of this title (relating to Corrective Action for Solid Waste Management Units). Where the underground injection well is the only unit at a facility which requires a permit, comply with 40 Code of Federal Regulations sec.270.14(d) (relating to information requirements for solid waste management units).
                                                                                  Persons who dispose of hazardous waste by means of underground injection must obtain a permit under the Texas Water Code, Chapter 27. (d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326694 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter C. Standards Applicable to Generators of Hazardous Waste 31 TAC sec.sec.335.61, 335.69, 335.74 The amendments are proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.61. Purpose, Scope, and Applicability. (a) (No change.) (b) The provisions of this subchapter with which a generator who stores, processes or disposes of hazardous waste on-site must comply are sec.335.62 of this title (relating to Hazardous Waste Determination), sec.335.63 of this title (relating to EPA Identification Numbers),
                                                                                    [and] sec.335.70 of this title (relating to Recordkeeping), sec.335.73 of this title (relating to Additional Reporting), and, if applicable, sec.335.77 of this title (relating to Farmers), and sec.335.69 of this title (relating to Accumulation Time). (c)-(e) (No change.) (f) A generator who treats, stores, or disposes of hazardous waste on-site must comply with the applicable standards and permit requirements set forth in Subchapters E, F, H, and O of 31 TAC Chapter 335 and with 31 TAC Chapter 305. sec.335.69. Accumulation Time. (a) Except as provided in subsections (f)-(h) of this section, a generator may accumulate hazardous waste on-site without a permit or interim status for 90 days or less if the generator complies with paragraphs (1) -(4) of this subsection. In addition, such a generator is exempt from all requirements adopted by reference in sec.335.112(a)(6) and (7) of this title (relating to Standards), except 40 Code Of Federal Regulations, sec.265.111 and sec.265.114. The exemptions apply if:
                                                                                      [,provided that:] (1) the waste is placed: (A) in containers and the generator complies with the provisions adopted by reference in sec.335.112(a)(8) of this title (relating to Standards); or (B) in tanks and the generator complies with the requirements adopted by reference in sec.335.112(a)(9) of this title (relating to Standards), except 40 Code of Federal Regulations, sec.265.197(c) and sec.265.200; or (C) on drip pads and the generator complies with sec.335.112(a)(18) (relating to drip pads) and maintains the following records at the facility; (i) a description of procedures that will be followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and (ii) documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal. [(1) the waste is placed in containers and the generator complies with the provisions adopted by reference in sec.335.112(a)(8) of this title (relating to Standards) or the waste is placed in tanks, and the generator complies with the requirements adopted by reference in sec.335.112(a)(9) of this title (relating to Standards), except 40 Code of Federal Regulations, sec.265.197(c) and sec.265.200. In addition, such a generator is exempt from all requirements adopted by reference in sec.335.112(1)(6) and (7) of this title (relating to Standards), except 40 Code of Federal Regulations, sec.265.111 and sec.265.114;] (2)-(3) (No change.) (4) the generator complies with the requirements for owners or operators contained in 40 Code of Federal Regulations, Part 265, Subparts C and D, as incorporated by reference in s335.112 of this title (relating to Standards), with
                                                                                        40 Code of Federal Regulations, sec.265.16, with 40 Code of Federal Regulations, sec.268.7(a)(4),
                                                                                          and s335.113 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator). (b)-(e) (No change.) (f) A generator who generates greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month may accumulate hazardous waste on-site for 180 days or less without a permit or without having interim status provided that: (1)-(3) (No change.) (4) the generator complies with the requirements of subsections (a)(2) and (3) of this section and the requirements of 40 Code of Federal Regulations, Part 265, Subpart C ,the requirements of 40 Code of Federal Regulations, s268.7(a)(4)
                                                                                            ; and (5) (No change.) (g)-(i) (No change.) sec.335.74. Special Requirements for Generators of Between 100 and 1, 000 Kilograms Per Month. A generator who generates greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month is exempt from the recordkeeping and reporting requirements of this subchapter, except for [the recordkeeping requirements in] sec.335.70(a) and (c) (relating to Recordkeeping);
                                                                                              and sec.335.73 of this title (relating to [Recordkeeping; and] Additional Reporting);
                                                                                                [.] and sec.335.13(a) and (g) (relating to Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste and Primary Exporters of Hazardous Waste.
                                                                                                  Such generators are subject to the requirements of sec.335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326695 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter E. Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities 31 TAC sec.sec.335.111, 335.112, 335.115 The amendments are proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.111. Purpose, Scope, and Applicability. (a)-(b) (No change.) (c) The requirements of this section apply to owners or operators of all facilities which process, store or dispose of hazardous waste referred to in 40 Code of Federal Regulations, Part 268, and the 40 Code of Federal Regulations, Part 268 standards are considered material conditions or requirements of the Part 265 interim status standards incorporated by reference in sec.335.112 of this title (relating to Standards). sec.335.112. Standards. (a) The following regulations contained in 40 Code of Federal Regulations, Part 265 (including all appendices to Part 265) (except as otherwise specified herein), are adopted by reference as amended and adopted in the Code of Federal Regulations through June 1, 1990 (see 55 FedReg 22685) and as further amended as indicated in each paragraph of this section:
                                                                                                    [published and adopted in the February 21, 1992, July 17, 1991, August 27, 1991, and September 5, 1991 issues of the Federal Register
                                                                                                      (see 56 FedReg 7239, and 56 FedReg 32688, 56 FedReg 42504, and 56 FedReg 43874.)] (1) Subpart B-General Facility Standards (as amended through April 26, 1991 in (56 FedReg 19290); (2)-(3) (No change.) (4) Subpart E-Manifest System, Recordkeeping and Reporting[,] (as amended through April 26, 1991 in 56 FedReg 19290),
                                                                                                        except 40 Code of Federal Regulations, sec.sec.265.71, 265.72, and 265.75-265.77; (5) (No change.) (6) Subpart G-Closure and Post-Closure (as amended through February 21, 1991 in 56 FedReg 7207);
                                                                                                          except 40 Code of Federal Regulations, sec.265.112 (d)(3) and (4) and s265.118(e) and (f); (7) Subpart H-Financial Requirements (as amended through July 1, 1991 in 56 FedReg 30200);
                                                                                                            except 40 Code of Federal Regulations, sec.265. 142(a)(2); and facilities qualifying for a corporate guarantee for liability are subject to sec.265.147(g)(2); (8) (No change.) (9) Subpart J-Tank Systems (as amended through December 6, 1990 at 55 FedReg 50486); (10)-(13) (No change.) (14) Subpart O-Incinerators (as amended through February 21, 1991 at 56 FedReg 7208); (15) Subpart P-Thermal Treatment (as amended through July 17, 1991 at 56 FedReg 32692
                                                                                                              ; and (16) Subpart Q-Chemical, Physical, and Biological Treatment;
                                                                                                                [.] (17) Subpart R-Underground Injection; (18) Subpart W-Drip Pads (as amended through December 24, 1992 at 57 FedReg 61492); (19) Subpart AA-Air Emission Standards for Process Vents (as amended through through April 26, 1991 at 56 FedReg 19290); and (20) Subpart BB-Air Emission Standards for Equipment Leaks (as amended through April 26, 1991 at 56 FedReg 19290). (b) (No change.) sec.335.115. Additional Reports.
                                                                                                                  In addition to submitting the annual report and waste reports described in sec.335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners and Operators of Storage, Processing, or Disposal Facilities) and s335.114 of this title (relating to Reporting Requirements), the owner or operator must also report to the executive director: (1) (No change.) (2) groundwater contamination and monitoring data as specified in 40 Code of Federal Regulations, sec.265.93 and sec.335.117 of this title (relating to Recordkeeping and Reporting); [and] (3) facility closure as specified in 40 Code of Federal Regulations, sec.265.115; and
                                                                                                                    [.] (4) as otherwise required by sec.335.112(a)(2) of this title (relating to Standards), which incorporates the requirements of 40 Code of Federal Regulations, Part 265, Subparts AA and BB. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326696 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter F. Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities 31 TAC sec.sec.335.152, 335.155, 335.166-335.168, 335.173 The amendments are proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.152. Standards. (a) The following regulations contained in 40 Code of Federal Regulations, Part 264 (including all appendices to Part 264), are adopted by reference as amended and adopted in the Code of Federal Regulations through June 1, 1990 (see 55
                                                                                                                      FedReg 22685) and as further amended and adopted as indicated in each paragraph of this section:
                                                                                                                        [published and adopted in the February 21, 1991, July 17, 1991, August 27, 1991, and September 5, 1991, issues of the Federal Register (see 56 FedReg 7239, and 56 FedReg 19290, 56 FedReg 30196, 56 FedReg 32688, 56 FedReg 42504, and 56 FedReg 43874):] (1) Subpart B-General Facility Standards (as amended through June 21, 1990, at 55 FedReg 25494);
                                                                                                                          in addition, the facilities which are subject to 40 Code of Federal Regulations, Part 264, Subpart X, are subject to regulation under 40 Code of Federal Regulations, sec.264.15(b)(4) and sec.264. 18(b)(1)(ii); (2)-(3) (No change.) (4) Subpart E-Manifest System, Recordkeeping, and Reporting (as amended through June 21, 1990, at 55 FedReg 25494)
                                                                                                                            , except 40 Code of Federal Regulations, sec.sec.264.71, 264.72, and 264.75-264.77; facilities which are subject to 40 Code of Federal Regulations, Part 264, Subpart X, are subject to 40 Code of Federal Regulations, sec.264.73(b)(6); (5) Subpart G-Closure and Post-Closure (as amended through February 21, 1991, at 56 FedReg 7207);
                                                                                                                              facilities which are subject to 40 Code of Federal Regulations, Part 264, Subpart X, are subject to 40 Code of Federal Regulations, sec.sec.264.90(d), 264.111(c), 264.112(a)(2), 264.114, 264. 117(a)(1)(i) and (ii), and sec.264.118(b)(1) and (2)(i) and (ii); (6)-(7) (No change.) (8) Subpart J-Tank Systems (as amended through December 6, 1990, at 55 FedReg 50484); (9)-(12) (No change.) (13) Subpart O-Incinerators (as amended through February 21, 1991, at 54 FedReg 7207);
                                                                                                                                and (14) Subpart W-Drip Pads (as amended through December 24, 1992, at 57 FedReg 61492); (15)
                                                                                                                                  [(14)] Subpart X -Miscellaneous Units;
                                                                                                                                    [.] (16) Subpart AA-Air Emission Standards for Process Vents (as amended through April 26, 1991, at 56 FedReg 19290); (17) Subpart BB-Air Emission Standards for Equipment Leaks (as amended through April 26, 1991, at 56 FedReg 19290). (b)-(c) (No change.) sec.335.155. Additional Reports.
                                                                                                                                      In addition to submitting the annual report and waste reports described in sec.335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners and Operators of Storage, Processing, or Disposal Facilities) and s335.154 of this title (relating to Reporting Requirements for Owners and Operators), the owner or operator must also report to the executive director: (1)-(2) (No change.) (3) as otherwise required by 40 Code of Federal Regulations, Part 264, Subparts F, K-N,
                                                                                                                                        [and] X,
                                                                                                                                          [.] AA and BB. sec.335.166. Corrective Action Program. An owner or operator required to establish a corrective action program must, at a minimum, discharge the following responsibilities: (1)-(4) (No change.) (5) In addition to the other requirements of this section, the owner or operator must conduct a corrective action program to remove or treat in place any hazardous constituents under sec.335.159 of this title (relating to Hazardous Constituents) that exceed concentration limits under sec.335.160 of this title (relating to Concentration Limits) in groundwater between the compliance point under sec.335.161 of this title (relating to Point of Compliance) and the downgradient facility property boundary and beyond the facility boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the executive director that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner/operator is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis.
                                                                                                                                            The plan will specify the measures to be taken. (A)-(B) (No change.) (6)-(8) (No change.) sec.335.167. Corrective Action for Solid Waste Management Units. (a)-(b) (No change.) (c) The owner or operator must implement corrective actions beyond the facility boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the executive director that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner/operator is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis. Assurances of financial responsibility for such corrective action must be provided to the executive director. sec.335.168. Design and Operating Requirements (Surface Impoundments). (a)-(b) (No change.) (c) The owner or operator of each new surface impoundment, each new surface impoundment unit at an existing facility, each replacement of an existing surface impoundment unit, and each lateral expansion of an existing surface impoundment unit, must install two or more liners and a leachate collection system between such liners. The liners and leachate collection system must protect human health and the environment. The requirements of this subsection shall apply with respect to all waste received after the issuance of the permit [.] for units where Part B of the permit application is received by the executive director after November 8, 1984.
                                                                                                                                              The requirement for the installation of two or more liners in this subsection may be satisfied by the installation of a top liner designed, operated, and constructed of materials to prevent the migration of any constituent into such liner during the period such facility remains in operation (including any post-closure monitoring period), and a lower liner designed, operated, and constructed to prevent the migration of any constituent through such liner during such period. A lower liner shall be deemed to satisfy this requirement if it is constructed of at least a three-foot thick layer of recompacted clay or other natural material with a permeability of no more than 1 X 10 point=5.02p [sup]-7 centimeter per second. (d)-(i) (No change.) sec.335.173. Design and Operating Requirements (Landfills). (a)-(b) (No change.) (c) The owner or operator of each new landfill, each new landfill unit at an existing facility, each replacement of an existing landfill unit, and each lateral expansion of an existing landfill unit, must install two or more liners and a leachate collection system above and between the liners. The liners and leachate collection systems must protect human health and the environment. The requirements of this subsection shall apply with respect to all waste received after the issuance of the permit for units where the Part B of the permit application is received by the executive director after November 8, 1984.
                                                                                                                                                The requirement for the installation of two or more liners in this subsection may be satisfied by the installation of a top liner designed, operated, and constructed of materials to prevent the migration of any constituent into such liner during the period such facility remains in operation (including any post-closure monitoring period), and a lower liner designed, operated, and constructed to prevent the migration of any constituent through such liner during such period. A lower liner shall be deemed to satisfy this requirement if it is constructed of at least a three-foot thick layer of recompacted clay or other natural material with a permeability of no more than 1 X 10 point=5.02p [sup]-7 centimeter per second. (d)-(j) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326697 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter H. Recyclable Materials Used in a Manner Constituting Disposal; Standards for the Management of Specific Wastes and Specific Types of Facilities 31 TAC sec.335.211 The amendment is proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.211. Applicability. (a) (No change.) (b) Products produced for the general public's use that are used in a manner that constitutes disposal and that contain recyclable materials are not presently subject to regulation if the recyclable materials have undergone a chemical reaction in the course of producing the product so as to become inseparable by physical means and if such products meet the applicable treatment standards in 40 Code of Federal Regulations, Subpart D of Part 268 (or applicable prohibition levels in sec.268.32 or RCRA, sec.3004(d), where no treatment standards have been established) for each recyclable material (i.e. hazardous waste) that they contain.
                                                                                                                                                  Commercial fertilizers that are produced for the general public's use that contain recyclable materials also are not presently subject to regulation provided they meet these same treatment standards or prohibition levels for each recyclable material that they contain. However, zinc-containing fertilizers using hazardous waste K061 that are produced for the general public's use are not presently subject to regulation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326698 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter H. Hazardous Waste Burned for Energy Recovery;
                                                                                                                                                    Standards for the Management of Specific Wastes and Specific Types of Facilities 31 TAC sec.335.224 The amendment is proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.224. Additional Interim Status Standards for Burners. In addition to the interim status standards for burners under sec.335. 221(a)(7)-(14) of this title (relating to Applicability and Standards), owners and operators of "existing" boilers and industrial furnaces that burn hazardous waste are subject to the following provisions, including the applicable provisions of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General) and Subchapter E of this Chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), as follows. (1)-(6) (No change.) (7) Compliance testing must be conducted under conditions for which the owner or operator has submitted a certification of precompliance under 40 Code of Federal Regulations (CFR) s266.103(b) and paragraphs (4)-(5) of this section, and under conditions established in the notification of compliance testing required by 40 CFR, sec.266.103(c)(2).
                                                                                                                                                      [;] The owner and operator may seek approval on a case-by-case basis to use compliance test data from one unit in lieu of testing a similar on-site unit. To support the request, the owner or operator must provide a comparison of the hazardous waste burned and other feedstreams, and the design, operation, and maintenance of both the tested unit and the similar unit. The director shall provide a written approval to use compliance test data in lieu of testing a similar unit if he finds that the hazardous wastes, the devices, and the operating conditions are sufficiently similar, and the data from the other compliance test is adequate to meet the requirements of sec.266.103(c). (8)-(15) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326699 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter O. Land Disposal Restrictions 31 TAC sec.335.431 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Water Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which provides the Texas Water Commission the authority to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further provides the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.431. Purpose, Scope, and Applicability. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326700 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 The new section is proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.431. Purpose, Scope, and Applicability. (a) Purpose. The purpose of this subchapter is to identify hazardous wastes that are restricted from land disposal and define those limited circumstances under which an otherwise prohibited waste may continue to be land disposed. (b) Scope and Applicability. (1) Except as provided in paragraph (2) of this subsection, the requirements of this subchapter apply to persons who generate or transport hazardous waste and owners and operators of hazardous waste processing, storage, and disposal facilities. (2) The requirements of this subchapter do not apply to any entity that is either specifically excluded from coverage by this subchapter or would be excluded from the coverage of 40 Code of Federal Regulations (CFR), Part 268 by 40 CFR, Part 261, if those parts applied. (c) Adoption by Reference. (1) Except as provided in paragraph (2) of this subsection, and subject to the changes indicated in subsection (d) of this section, the regulations contained in 40 CFR, Part 268, as amended through June 26, 1992, in 57 FedReg 29632, are adopted by reference. (2) The following sections of 40 CFR, Part 268 are excluded from the sections adopted in paragraph (1) of this subsection: sec.sec.268.5, 268.6, 268. 7(a)(10), 268.10-268.13, 268.42(b), and 268.44. (3) Appendices I-IX of 40 CFR, Part 268 are adopted by reference as amended through June 26, 1992, in 57 FedReg 29632. (d) Changes to Adopted Parts. The parts of the CFR that are adopted by reference in subsection (c) of this section are changed as follows: (1) the words "Administrator" or "Regional Administrator" are changed to "Executive Director;" (2) the word "treatment" is changed to "processing;" (3) the words "Federal Register," when they appear in the text of the regulation, are changed to "Texas Register
                                                                                                                                                        ;" (4) in sec.sec.268.7(a)(6) and (7), the applicable definition of hazardous waste and solid waste is the one that is set out in 31 TAC Chapter 335 rather than the definition of hazardous waste and solid waste that is set out in 40 CFR, Part 261. (5) in sec.268.501(a)(1), the citation to "sec.262.34" is changed to "sec.335.69." This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326701 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 Subchapter R. Waste Classification 31 TAC sec.335.504 The amendment is proposed pursuant to the Texas Water Code, sec.5.103 and sec.5.105 (Vernon 1988), which authorizes the Texas Water Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the Texas Water Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. sec.335.504. Hazardous Waste Determination. A person who generates a solid waste must deterine if that waste is hazardous waste using the following method: (1) (No change.) (2) for purposes of complying with 40 Code of Federal Regulations Part 268 or if
                                                                                                                                                          [If] the waste is not listed as a hazardous waste in 40 Code of Federal Regulations Part 261, Subpart D, he or she must then determine whether the waste is identified in 40 Code of Federal Regulations Part 261, Subpart C, by either: (A)-(B) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326702 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: September 6, 1993 For further information, please call: (512) 463-8069 TITLE 34. Public Finance Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter BB. Battery Sales Fee 34 TAC sec.3.711 The Comptroller of Public Accounts proposes an amendment to sec.3.711, concerning the batteries that are subject to the battery sales fee. The 73rd Legislature, 1993, amended the Health and Safety Code, sec.361, effective August 30, 1993, to exempt certain batteries from the fee and to impose the fee on some batteries that were previously exempted. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on state or local government. Mr. Reissig also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be in providing new information regarding tax responsibilities. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to persons who are required to comply with the proposed rule. Comments on the proposal may be submitted to Charles C. Johnstone, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. This amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. sec.3.711. Collection and Reporting Requirements. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Dealer-A wholesaler, retailer, or any other person who sells or offers to sell lead-acid batteries. (2) Lead-acid battery-Any battery, new or used, which contains lead and sulfuric acid, in liquid or gel form. (3) Sale for resale-A sale of a lead-acid battery to a purchaser for the purpose of reselling the battery in the normal course of business in the form or condition in which it is acquired (i.e., as a separate item). A sale of a battery that is attached to or becomes an integral part of a vehicle, boat, or other equipment that is being sold, rented, or leased is not a sale for resale. The battery sales fee is due on the sale prior to the battery becoming a part of this equipment. (b) Collection and remittance of the fee. (1) Except as provided in subsection (g) of this section, every
                                                                                                                                                            [Every] dealer must collect the fee on each sale of a lead-acid battery [of six volts or more, except a sale for resale or a sale for disposal or reclamation]. A fee shall not be charged, collected, or allowed as an offset on a battery taken as a trade-in. (2) The fee is not due on the sale of a vehicle, boat, or other equipment that has a battery as an integral part of it. (3) The amount of the fee due must be separately stated on the invoice, bill, or contract to the customer and shall be identified as the Texas battery sales fee. (4) A dealer may not advertise, make public, indicate, or imply that the dealer will absorb, assume, or refund any portion of the fee. (c) Report forms. The battery sales fee is to be reported on the Texas battery sales fee/waste tire recycling fee report form as prescribed by the comptroller. The fact that the dealer does not receive the form or does not receive the correct form from the comptroller for the filing of the return does not relieve the dealer of the responsibility of filing a return and paying the required fee. (d) Reporting period. (1) Monthly filing. The battery sales fee is due and payable on or before the 20th day of the month following the end of each calendar month. Every dealer also required to report the waste tire recycling fee must file at the same time the battery sales fee is filed. Returns must be filed on a monthly basis unless a dealer qualifies as a quarterly filer under paragraph (2) of this subsection. (2) Quarterly filing. A dealer who owes an average, as computed for the year, of less than $50 for a calendar month or less than $150 for a calendar quarter is required to file a return and pay the fee on or before the 20th day of the month following the end of the calendar quarter. The waste tire recycling fee liability is not included in determining the requirement for quarterly filing; however, a dealer required to file the waste tire recycling fee return on a monthly basis must file the battery fee return at the same time. The comptroller will notify a dealer when the report and payment may be submitted quarterly. (e) Payment of the fee. (1) On or before the 20th day of the month following each reporting period, every person subject to the fee shall file a consolidated return for all businesses operating under the same fee payer number and remit the total fee due. (2) Every dealer may retain.025 for each fee (i.e., battery) reported and paid on his return. (3) The returns must be signed by the person required to file the return or by the person's duly authorized agent, but need not be verified by oath. (f) Records required. (1) Invoices or other records must be kept for at least four years after the date on which the invoices or records are prepared. (2) The comptroller or an authorized representative has the right to examine any records or equipment of any person liable for the fee in order to verify the accuracy of any return made or to determine the fee liability in the event no return is filed. (g) Exemptions. (1) Sales for resale are not subject to the fee. (2) The sale of a battery that under the sales contract is shipped to a point outside Texas is not subject to the fee imposed by this rule if the shipment is made by the seller by means of: (A) the facilities of the seller; (B) delivery by the seller to a carrier for shipment to a consignee at a point outside this state; or (C) delivery by the seller to a forwarding agent for shipment to a location in another state of the United States or its territories or possessions. (3) Exports beyond the territorial limits of the United States are not subject to the fee. Proof of export may be shown only by: (A) a copy of a bill of lading issued by a licensed and certificated carrier showing the seller as consignor, the buyer or purchaser as consignee, and a delivery point outside the territorial limits of the United States; (B) documentation provided by a licensed United States customs broker certifying that delivery was made to a point outside the territorial limits of the United States; (C) formal entry documents from the country of destination showing that the battery was imported into a country other than the United States. For the country of Mexico, the formal entry document would be the pedimento de importaciones document with a computerized, certified number issued by Mexican customs officials; or (D) a copy of the original airway, ocean, or railroad bill of lading issued by a licensed and certificated carrier which describes the items being exported and a copy of the freight forwarder's receipt if the freight forwarder takes possession of the property in Texas. (4) There is no exemption provided for any organization or governmental agency, except as provided in paragraph (5) of this subsection. (5) The United States, its instrumentalities and agencies are exempted from the battery sales fee. (6) Sales for disposal or reclamation are not subject to the fee. (7) A battery is exempt from this fee if it meets all of the following criteria: (A) the ampere-hour rating of the battery is less than 10 ampere-hours; (B) the sum of the dimensions of the battery (height, width, and length) is less than 15 inches; and (C) the battery is sealed so that no access to the interior of the battery is possible without destroying the battery. (h) Replacements covered by a warranty or service contract. (1) The replacement of a battery under a manufacturer's warranty, without an additional charge to the purchaser, is not the sale of a battery to the purchaser. This replacement, therefore, is not subject to the fee. If there is a charge to the customer for the replacement (such as a pro rata warranty adjustment), then the customer must pay the battery sales fee. (2) The replacement of a battery under an extended warranty or a service contract, for which the customer pays an extra charge, depends on the terms of the contract. (A) If the replacement is free of charge to the customer, the dealer is responsible for paying the fee. (B) If there is a charge to the customer for the replacement, the customer must pay the fee. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 2, 1993. TRD-9326708 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: September 10, 1993 For further information, please call: (512) 463-4852 TITLE 40. Social Services and Assistance Part I. Texas Department of Human Services Chapter 29. Purchased Health Services Subchapter L. General Administration 40 TAC sec.sec.29.1104, 29.1126, and 29.1127 The Texas Department of Human Services (DHS) proposes amendments to sec.29. 1104 concerning the Texas Medicaid Reimbursement Methodology, sec.29.1126 concerning reimbursement for in-home total parenteral hyperalimentation services and sec.29.1127 concerning reimbursement for in-home respiratory therapy services for ventilator-dependent persons. These rule amendments are required to eliminate any cost-of-living adjustment for these services for the 1994-1995 biennium as mandated in the appropriations act effective September 1, 1993. In addition, the rules are being revised to state that future cost-of-living adjustments are dependent on available funding. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed amendments will be in effect there will be fiscal implications as a result of enforcing or administering the amendments. The effect on state government for the first five year period the amendments will be in effect is an estimated reduction in cost of $18,733,629, for fiscal year 1994, and $45,123,388, for fiscal year 1995. For fiscal years 1996, 1997, and 1998, DHS cannot determine at this time if funding will be available to allow a cost-of-living adjustment since such an adjustment is dependent on the appropriations bill passed by the Texas Legislature. There will be no fiscal implications for local government. Mr. Raiford also has determined that for each year of the first five years the amendments are in effect the public benefit anticipated as a result of enforcing the amendments will be the continuation of Medicaid services at the current level. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed amendments. Questions about the content of the proposal may be directed to Genie DeKneef at (512) 338-6509 in DHS's Purchased Health Services. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-193, Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714- 9030, within 30 days of publication in the Texas Register. DHS will hold a public hearing on the proposal at 1:00 p.m. Wednesday, August 25, 1993, in the public hearing room of the John H. Winters Building, first floor, east tower, 701 W. 51st Street, Austin. A copy of the proposal will be available for review in DHS local offices. The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.29.1104. Texas Medicaid Reimbursement Methodology (TMRM). (a) Reimbursement for physicians and certain other practitioners. (1) (No change.) (2) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (A)-(C) (No change.) (D) Conversion Factor-The dollar amount by which the sum of the three cost component RVUs is multiplied in order to obtain a reimbursement fee for each individual service. The initial value of the conversion factor is $26.873 for fiscal year 1992 and 1993. If funding is available,
                                                                                                                                                              the conversion factor will be updated based on the adjustments described in subparagraph (E) of this paragraph at the beginning of each state fiscal year biennium. Unless the cost savings specified in the Appropriations Act for the 1994-1995 biennium are realized, there will be no adjustment of the conversion factor for the 1994- 1995 biennium.
                                                                                                                                                                DHS may, at its discretion, develop and apply multiple conversion factors for various classes of service such as obstetrics, pediatrics, general surgeries, and/or primary care services. (E) (No change.) (3) (No change.) (b)-(c) (No change.) sec.29.1126. In-Home Total Parenteral Hyperalimentation Services. (a)-(d) (No change.) (e) The Texas Department of Human Services (DHS) or its designee reimburses each provider on a monthly basis. Reimbursement is based on one-twelfth of the maximum yearly fee established by DHS. If funding is available
                                                                                                                                                                  , DHS will adjust the allowable fees or rates each state fiscal year by applying the projected rate of change of the implicit price deflator for personal consumption expenditures (IPD-PCE). DHS uses the lowest feasible IPD-PCE forecast consistent with the forecasts of nationally-recognized sources available to DHS at the time rates are prepared. The first adjustment will be effective January 1, 1993. Unless the cost savings specified in the Appropriations Act for the 1994- 1995 biennium are realized, there will be no adjustment for the 1994 and 1995 fiscal years.
                                                                                                                                                                    [Subsequent adjustments will occur at the beginning of each state fiscal year.] DHS or its designee does not reimburse more than a one-week supply of solutions and additives if the solutions and additives are shipped and not used because of the recipient's loss of eligibility, change in treatment, or inpatient hospitalization. The provider must exclude from its monthly billing any days that the recipient is an inpatient in a hospital or other medical facility or institution. Payment for partial months will be prorated based upon actual days of administration. Hospital outpatient departments furnishing in- home total parenteral nutrition must be separately enrolled as a provider meeting all requirements stipulated in subsection (d) of this section. Reimbursement to hospital outpatient departments furnishing in-home total parenteral nutrition may not exceed the maximum yearly fee established by DHS. sec.29.1127. In-Home Respiratory Therapy Services for Ventilator-Dependent Persons. (a)-(e) (No change.) (f) The department or its designee reimburses each respiratory therapy provider on a per-visit basis. Reimbursement for the visit is based on the lesser of the provider's customary charge or the maximum allowable fee or rate established by the department or its designee. Reimbursement for supplies furnished by the respiratory care practitioner is the lesser of the provider's customary charges or the maximum allowable fees or rates established by the department or its designee. If funding is available,
                                                                                                                                                                      the department updates its allowable fees or rates each state fiscal year by applying the implicit price deflator for personal consumption expenditures. Unless the cost savings specified in the Appropriations Act for the 1994-1995 biennium are realized, there will be no adjustment for the 1994 and 1995 state fiscal years. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 4, 1993. TRD-9326797 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Earliest possible date of adoption: October 15, 1993 For further information, please call:(512) 450-3765