Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 111. Executive Administration Division 1 TAC sec.sec.111.11-111.19 The General Services Commission adopts new sec.sec.111.11-111.19, concerning the historically underutilized business (HUB) certification program for minority and women-owned business. Section 111.12 and sec.111.19 are adopted with changes to the proposed text as published in the August 6, 1993, issue of the Texas Register (18 TexReg 5187). Section 111.11 and sec.sec.111.13-111. 18 are adopted without changes and will not be republished. The new sections will better ensure opportunities for historically underutilized businesses to obtain state contracts. In sec.111.12(B), reference to "subparagraph (A)(i)" is changed to the reference to "subparagraph (A)". Under sec.111.19(a), the phrase "to HUBs" was incorrectly inserted in the first sentence and, therefore was deleted. In sec.111.19(d), the phrase "for the purchase of goods or services" is changed to correctly read "for the purchase of goods, services, and public works contracts." The new sections provide for definitions, certification process, revocation, recertification, protests, certification audit/eligibility reviews, Texas Historically Underutilized Business Certification Directory, and state agency reporting requirements. Three written comments were received. The commenters recommended that the definition of Historically Underutilized Business should include persons with disabilities. The American Foundation for the Blind, ADA Coordinator Christopher J. Tome, and Maximum Mobility, Inc. commented against the sections. The commission disagrees with expanding the definition of Historically Underutilized Businesses (HUBs) outside of ethnicity and gender. It is the position of our agency that the definition of historically underutilized businesses contained in the Texas Civil Statutes, Article 601b, sec.1.02, addresses businesses of women and racial or ethnic minorities only. The new sections are adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of that Article. sec.111.12. Definitions. The following words and terms, when used in this subchapter, shall have following meanings, unless the context clearly indicates otherwise. Act-Texas Civil Statutes, Article 601b. Applicant-A corporation, sole-proprietorship, partnership, joint venture, or supplier that applies to the commission as an historically underutilized business. Application-A written request for certification as an historically underutilized business in the required format submitted to the commission. Commission-General Services Commission. Comptroller-Comptroller of Public Accounts. Directory-The Texas Certified Historically Underutilized Business Directory. Historically Underutilized Business- (A) a corporation formed for the purpose of making a profit in which at least 51% of all classes of the shares of stock or other equitable securities are owned by one or more persons who have been historically underutilized (socially disadvantaged) because of their identification as members of certain groups, including but not limited to: (i) Black Americans-which includes persons having origins in any of the Black racial groups of Africa; (ii) Hispanic Americans-which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; (iii) Women-which includes all women of any ethnicity; (iv) Asian Pacific Americans -which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific and the Northern Marianas; and (v) Native Americans-which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; and (vi) who have a proportionate interest and demonstrate active participation in the control, operation, and management of the corporation's affairs. (B) a sole proprietorship created for the purpose of making a profit that is 100% owned, operated, and controlled by a person described by subparagraph (A) of this section; (C) a partnership formed for the purpose of making a profit in which 51% of the assets and interest in the partnership is owned by one or more persons who are described by subparagraph (A) of this section; and have a proportionate interest and demonstrate active participation in the control, operation, and management of the partnership's affairs; (D) a joint venture in which each entity in the joint venture is an historically underutilized business under this subdivision; or (E) a supplier contract between an historically underutilized business under this subdivision and a prime contractor under which the historically underutilized business is directly involved in the manufacture or distribution of the supplies or materials or otherwise warehouses and ships the supplies. Non-Treasury Funds -Funds paid by a state agency that are not treasury funds. State-State of Texas. Subcontractor Funds -Payments made to certified historically underutilized businesses by a contractor or supplier under contract with the state. Term Contract-A contract establishing a source or sources of supply for a specified period of time. Treasury Funds -Funds maintained in the state treasury and paid through the comptrollers office for each state agency. USAS-Uniform Statewide Accounting System for the State of Texas. sec.111.19. State Agency Reporting Requirements. (a) The comptroller will report to the commission not later than March 15 of each year regarding the previous six-month period, and on September 15 of each year regarding the preceding fiscal year, the total number and dollar amount of purchases of goods, services, and public works contracts awarded and actually paid from treasury funds by each state agency. Subject to the capabilities of the comptroller's USAS system, the comptroller shall identify state agencies' purchases from state term contracts which are paid from treasury funds so that those purchases may be included in the commission's report of its own purchases. (b) State agencies will report to the commission, not later than March 15 of each year regarding the previous six-month period and on September 15 of each year regarding the preceding fiscal year, the total number and dollar amount of purchases of goods and services awarded and actually paid from non-treasury funds by the state agency. The report shall include information requested by the commission and shall be in a form prescribed by the commission. State agencies' purchases from state term contracts which are paid from non-treasury funds must be identified on the report as such so that they may be reflected on the commission's report of its own purchases. (c) State agencies will continuously maintain, and compile monthly, information relating to the agency's use, and the use by each operating division of the agency, of historically underutilized businesses, including information regarding subcontractors and suppliers. State agencies shall require a contractor or supplier to whom a state agency has awarded a contract to report to the agency the identity and the amount paid to each historically underutilized business to whom the contractor or supplier has awarded a subcontract for the purchase of supplies, materials, services, or equipment. Contractors or suppliers should document progress payments made to subcontractors certified as historically underutilized businesses by submitting invoices to the paying state agency. (d) State agencies will report to the commission, not later than March 15 of each year regarding the previous six-month period and on September 15 of each year regarding the preceding fiscal year, the total number and dollar amount of historically underutilized business subcontracting participation in all of the agencies' contracts for the purchase of goods, services, and public works contracts. State agencies may include subcontracting participation paid from Treasury and Non-Treasury funds. (e) State agencies that participate in a group purchasing program under the Act, sec.3.01(a)(5), shall include a separate report to the commission, not later than March 15 of each year regarding the previous six-month period and September 15 of each year regarding the preceding fiscal year, of purchases from historically underutilized businesses that are made through the group purchasing program and shall report the dollar amount of each purchase that is allocated to the reporting agency. (f) The commission shall prepare a consolidated report based on a compilation and analysis of the reports submitted by each state agency and information provided by the comptroller in the format specified by the commission. These reports of historically underutilized business purchasing and contracts shall form a record of each agency's purchases in which the agency selected the vendor. If the vendor was selected by the commission as part of its state term contract program, the purchase will be reflected on the commission's report of its own purchases. The commission report will contain the following information: (1) the total number of contracts (if available from the comptroller) and dollar amount of contracts awarded by each state agency; (2) the total number of contracts (if available from the comptroller) and dollar amount of contracts awarded and actually paid by each state agency to historically underutilized businesses certified by the commission; (3) the total number of contracts (if available from the comptroller) and dollar amount of contracts awarded and actually paid by each state agency to the following groups certified by the commission: (A) Black Americans; (B) Hispanic Americans; (C) Women; (D) Asian Pacific Americans; and (E) Native Americans. (g) On April 15 of each year, the commission shall submit the consolidated report regarding the previous six-month period to the joint committee, referenced in House Bill 2626, sec.3, charged with monitoring the implementation of the historically underutilized business goals. The commission shall submit a consolidated report on October 15 of each year regarding the preceding fiscal year to the presiding officer of each house of the legislature, the members of the legislature and the joint committee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1993. TRD-9329538 Judith M. Porras General Counsel General Services Commission Effective date: October 19, 1993 Proposal publication date: August 6, 1993 For further information, please call: (512) 463-3583 Chapter 113. Central Purchasing Division Purchasing 1 TAC sec.113.19 The General Services Commission adopts new sec.113.19, concerning the catalogue purchase procedure for automated information systems. The section is adopted with changes to the proposed text as published in the August 6, 1993, issue of the Texas Register (18 TexReg 5169). The new section establishes the application process and sets the standards and criteria vendors must satisfy to be designated by the commission as qualified information systems vendors so they may market automated products and services from their catalogues. In sec.113.19, subsection (a), the phrase "in accordance with the rule" was added for clarification. Subsection (b)(1)(D) was added which reads "a separate alphabetical index referencing the page number of all products offered in the vendor's catalogue." Subsection (b)(1)(E) was added which reads "licensing agreements or other contracts to distribute each product listed in the vendor's catalogue to the eligible purchasers." Subsection (b)(4) was amended to read "a guarantee that the vendor will make available repair and replacement parts for products sold as well as technical information required for repair of products sold for at least three years from the date of a product's discontinuance." A reference to sec.311(e) in subsection (d)(2) is corrected to read " sec.3.11(e)." Subsection (k)(1) corrects the phrase, "three calendar months" to read "six calendar months." The new section provides the application procedures and requirements a vendor must meet to be designated as a qualified information systems vendor. It also provides guidelines for state agencies in making automated information purchases using the catalogue purchase procedure. One written comment was received from EDS. EDS recommended that subsection (a) be amended to clarify that the catalogue purchase procedure does not apply to vendors who sell or lease automated information systems pursuant to alternative state purchasing methods. The new section is adopted under Texas Civil Statutes, Article 601b, sec.3. 081, which gives the General Services Commission the authority to promulgate rules to accomplish the purpose of sec.3.081. sec.113.19. Catalogue Purchase Procedure for Automated Information Systems. (a) Upon registration on the commission's bidders list, a vendor wishing to sell or lease automated information systems to eligible purchasers in accordance with this rule shall apply to the commission for designation as a qualified information systems vendor by submitting a written application on company letterhead detailing its: (1) abilities to satisfy the state's automation information systems needs; (2) number of years in business; (3) name, address, telephone number, and point of contact for three business references; and (4) signature of an authorized representative. (b) The following must accompany a vendor's application: (1) the vendor's catalogue describing: (A) all products and services eligible for purchase or lease; (B) the list price of each product or service; and (C) the discounted price to the state for each product and service to the state; (D) a separate alphabetical index referencing the page number of all products offered in vendor's catalogue; and (E) licensing agreements or other contracts authorizing vendor to distribute each product listed in vendor's catalogue. (2) the vendor's maintenance, repair, and support plan for all eligible products and services; (3) proof of the vendor's financial resources and ability to perform; (4) a guarantee that the vendor will make available repair and replacement parts for products sold as well as technical information required for repair of products sold for at least three years from the date of a product's discontinuance; (5) a statement detailing the geographic area in Texas to which the vendor desires to market catalogue products and services; (6) a statement certifying that: (A) the vendor has reviewed the rules promulgated by the Department of Information Resources (DIR) and that all products and services offered in the vendor's catalogue conform and comply with all applicable standards adopted by the DIR; (B) the vendor has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with catalogue purchase transactions; (C) the vendor is not currently delinquent in the payment of any franchise tax owed the State of Texas under the Tax Code, Chapter 171; (D) the vendor assigns to purchaser any and all claims for overcharges associated with any catalogue transaction which arise under the antitrust laws of the United States or the State of Texas; and (E) the vendor will protect eligible purchasers from claims involving infringement of patents or copyrights; and (7) a statement acknowledging that any terms and conditions in the vendor's catalogue that conflict with the Constitution or laws of the State of Texas shall not be enforceable and, therefore, will not be binding. (c) The State of Texas is committed to assisting Historically Underutilized Businesses (HUBs) to receive at least 30% of the total value of all state business transactions. If the vendor is certified as a Texas HUB, the vendor shall provide its five digit certification number in the application. If the vendor qualifies as a HUB, but is not certified by the State of Texas as such, the vendor should contact the commission to obtain a certification application. Upon the request of eligible purchasers, the vendor will be required to detail the amount of expenditures that have been made to material suppliers and subcontractors that are Texas certified HUBs. A vendor that has demonstrated past HUB participation is still expected to provide documentation using the reporting forms provided by eligible purchasers to show its good faith effort in achieving the state's 30% goal. (d) Upon receipt of a properly completed application, the Director for Purchasing or the Director's designee shall give consideration to the following standards and criteria when deciding to designate a vendor as a qualified information systems vendor: (1) the technical adequacy and reliability of the vendor's products as demonstrated by conformity to all state and federal requirements, including but not limited to ANSI, FCC, NEMA, OSHA, and UL standards; (2) all factors set forth in Texas Civil Statutes, Article 601b, sec.3.11(e); (3) the vendor's past and current status on the commission's bidders list and any unresolved complaints on record; and (4) the ability of the vendor, as determined by the commission in its sole discretion, to provide adequate and reliable support and maintenance, currently and in the future, for all products and services detailed in the vendor's catalogue for the geographic area in Texas to which the vendor desires to market products and services. (e) A vendor designated as a qualified information systems vendor shall be notified in writing of the designation by the commission. Once designated as a qualified information systems vendor, the vendor shall publish and maintain a catalogue listing all products and services available for purchase. Catalogues shall be provided to all eligible purchasers upon request. (f) An application that is incomplete or that contains inaccurate information will be rejected and the vendor notified. (g) Each catalogue supplied by a vendor shall: (1) be printed on 8-1/2 by 11-inch recycled paper; (2) be three-hole punched for inclusion in a three-ring binder of catalogues; (3) list available products and services utilizing the five digit class and item numbering structure of the commission's Commodity Code Book; (4) describe all products and services eligible for purchase; (5) include the list price of each product or service; (6) show the discounted price to the state for each product and service; (7) show discounted pricing for quantity discounts and specific terms for prompt payment discounts that may be earned; (8) bear its effective date; (9) detail the geographic area in Texas the vendor has been authorized by the commission to cover; (10) provide necessary ordering information (vendor name, ordering address, points of contact, phone numbers, etc.); and (11) bear the statement: "This is a true and accurate copy of the catalogue approved and on file with the General Services Commission." (h) The vendor is encouraged to include an itemization in their catalogue or otherwise identify any and all automation information systems products which: (1) contain recycled or remanufactured parts, including the percentage of the total product that is recycled or remanufactured and the percentage of recycled material that is post-consumer; and (2) possess energy saving features. (i) The vendor shall update its catalogue as needed to reflect changes in price and the availability of products or services offered. Updates may be in the form of amendments to the current catalogue or issuance of supplemental catalogues in compliance with subsection (g) of this section. Copies of updated catalogues shall be provided to the commission and all eligible purchasers who have previously been provided catalogues. (j) Each vendor is encouraged to make its catalogue available to eligible purchasers using an electronic format to allow electronic data interchange. (k) The vendor must provide the commission with the following information to maintain its qualification status: (1) semiannual reports, due to the commission by the 15th of March and September, detailing the volume and value of orders placed by each eligible purchaser during the preceding six calendar months, showing: (A) the eligible purchaser's identity; (B) the purchaser's requisition or purchase order number and its date; (C) the class and item designations of the products and services ordered; (D) a brief description of the items ordered; (E) the quantity of each item ordered; and (F) each item's unit cost and the order total; or semiannual reports shall be provided indicating no orders placed with the vendor during the reporting period, if applicable. (2) immediate reports of any and all additional terms and conditions negotiated with eligible purchasers; such additional terms and conditions are subject to disclosure under the Texas Open Records Act. (l) Failure of a vendor to provide required reports or failure to conform with any other commission rules may result in suspension or removal from the commission's bidders list. A vendor that has been suspended or removed may not market or sell products or services to the state until the cause of the suspension or removal has been resolved and the vendor reinstated to the commission's bidders list. (m) The vendor shall retain all records related to any business transaction under the Catalogue Purchase Procedure for Automated Information Systems for five years from the date of the purchase order. The records shall be provided on request to the commission or the actual purchaser. (n) State agencies covered by the Information Resources Management Act and local governments that have complied with the commission's rules regarding participation in the Cooperative Purchasing Program may purchase or lease automated information systems products and services directly from a qualified information systems vendor, and may negotiate additional terms and conditions to be included in contracts for the purchase or lease, provided the purchase or lease represents the best value available and is in the state's best interests. Preference shall be given to qualified information systems vendors who sell or lease products or services pursuant to Texas Civil Statutes, Article 601b, sec.3.20. In this section, the best value available means the lowest overall cost of considering the following factors, as well as any other relevant factors: (1) the overall life-cycle cost of the system or equipment, including the purchase price, installation costs, and hardware costs; (2) estimated cost of employee training and estimated increase in employee productivity; (3) estimated software and maintenance costs; (4) compatibility to facilitate exchange of existing data; (5) capacity for expansion and upgrading to more advanced levels of technology; (6) quantitative reliability factors; (7) the level of training required to bring end-users to a stated level of proficiency; (8) the technical support requirements for maintenance of data across a network platform and management of the network's hardware and software; and (9) compliance with applicable statewide standards adopted by the DIR or a subsequent entity as validated by criteria established by administrative rule. (o) Purchases of automated information systems shall be made using the catalogue purchase procedure unless the commission or eligible purchaser determines that the best value available accrues from an alternative purchase method authorized by Texas Civil Statutes, Article 601b, in which case the purchase shall be made using that method of purchase. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1993. TRD-9329539 Judith M. Porras General Counsel General Services Commission Effective date: October 19, 1993 Proposal publication date: August 6, 1993 For further information, please call: (512) 463-3583 TITLE 13. CULTURAL RESOURCES Part VII. State Preservation Board Chapter 111. Rules and Regulations of the Board 13 TAC sec.111.24 The State Preservation Board adopts an amendment to sec.111.24, without changes to the proposed text as published in the July 23, 1993, issue of the Texas Register (18 TexReg 4815). The amendment allows more flexibility in managing the agency while strengthening reporting requirements to the Board. The amendment functions by stipulating that changes shall be dealt with in the manner described in the specific contract documents. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, Chapter 443, which provides the State Preservation Board with the authority to adopt rules concerning the buildings, their contents, and their grounds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1993. TRD-9329513 Dealey Herndon Executive Director State Preservation Board Effective date: October 19, 1993 Proposal publication date: July 23, 1993 For further information, please call: (512) 463-5495 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.91 The Railroad Commission of Texas (commission) adopts new sec.3.91 (Rule 91) , relating to the cleanup of spills of crude oil from oil and gas exploration and production activities, including transportation by pipeline, with changes to the proposed text as published in the March 30, 1993, issue of the Texas Register (18 TexReg 1985). The section establishes the standards and procedures for he cleanup of crude oil spills into soil. The section is adopted to prevent the pollution of surface and subsurface waters of the state. With this section, the commission intends to provide a standard to be applied to crude oil spills into non-sensitive areas. The commission intends to set the standards for cleanup, but to allow flexibility in the choice of method used to achieve the final cleanup level. For those spills that occur after the effective date of this section, the section replaces the Interim Guidelines for Cleanup of Soil Contaminated with Crude Oil from a Spill Incident. Most commenters accepted the basic premise of different cleanup standards for environmentally sensitive and non-sensitive areas, although some criticized the scope of the proposed rule either as over-inclusive or under-inclusive. One commenter disagreed with a regulatory division between sensitive and non- sensitive areas on the basis that designating sensitive areas and applying different cleanup standards for these areas is arbitrary and subject to interpretation. The commission considered the wide range of environmental situations into which crude oil is spilled and the difficulty in designing cleanup standards appropriate for each situation. The commission believes that the best approach is to develop a standard for those areas with common characteristics; however, because of the complex and sometimes fragile nature of environmentally sensitive areas, the commission believes the appropriate-cleanup level for these areas should be based on site-specific criteria. These proposed standards and procedures do not apply to spills into sensitive areas, which present unique circumstances and are often fragile. Sensitive areas are those areas with factors that cause them to be more vulnerable to pollution and, therefore, may require more stringent cleanup standards or procedures. Factors that might characterize an area as sensitive include proximity to surface water; proximity to wildlife refuges or residential areas; or the existence of shallow groundwater or possible pathways for communication with deeper groundwater. Spills of crude oil into sensitive areas will be handled on a case-by-case basis and not by rule. Some commenters suggested clarifications of or additions to the list of factors. The commission believes that the list of factors permits a common sense determination of those areas that might be considered environmentally sensitive. The commission also believes it would be arbitrary to try to define these factors for the entire State of Texas. The commission will provide guidance for determining whether a given area is environmentally sensitive. A number of commenters ask for guidelines in the rule for managing spills in environmentally sensitive areas because these areas should receive greater consideration. One commenter states that these guidelines should address notification, emergency response, monitoring, reporting, coordination with commission staff, and risk-assessment protocols. The commission believes that providing guidance for cleaning up crude oil spills in environmentally sensitive areas is more appropriately addressed through separate guidelines than through a rulemaking initiative. Some commenters insisted that the responsible party seek a determination from commission staff as to whether the area of contamination is in an environmentally sensitive area prior to cleanup. Response activities must be initiated by the operator immediately upon discovery of any crude oil spill. The commission will make the initial determination with the responsible operator as to whether the spill is in an environmentally sensitive area. The final determination in the event of any question will be made by the commission. A couple of commenters suggested that hydrocarbon condensate be included in the definition of crude oil. Hydrocarbon condensates or the liquids produced in association with natural gas exhibit a greater mobility in the subsurface than crude oil because of their lighter density and higher solubility. Hydrocarbon condensate also typically contains a greater proportion of benzene than crude oil. For these reasons, hydrocarbon condensate poses a greater hazard to surface and subsurface water than does crude oil. Therefore, the section was revised to clarify that this section does not apply to hydrocarbon condensate spills, which will be handled on a case-by-case basis. Several commenters expressed concern about past spills of crude oil. couple of commenters were concerned that new spills or spills that occur after the effective date of the section onto past spill areas would require cleanup of a larger area of contamination than was anticipated by the section. One commenter suggested that where the contamination is due in part to past spills and in part to new spills, the cleanup standard will be determined according to which type of spill caused the majority of the contamination. Another commenter suggested that cleanup of these sites should be handled on a case-by-case basis. The commission has revised the section to clarify that it will not be applied retroactively and that, for those spill areas that are a mixture of past spills and new spills, the cleanup standards will be determined by the commission on a case-by-case basis. Operators are expected to contact the district office for direction in cleaning up these spill areas. One commenter claimed that past spills frequently form "hard-pan" or a compacted oily soil cover that acts as a seal to prevent further contamination. In the experience of the commission, the "hard-pan" soil does not create an even seal and, therefore, is an imperfect protective cover. Furthermore, significant contamination of soil and water have been discovered beneath such "hard-pan" areas. Several commenters asked that de minimis spills and spills within fire walls or bermed areas around tanks be exempted, while another commenter recommended that cleanup of de minimis spills be deferred until after site abandonment. To exempt these spills or to delay their cleanup until after abandonment of the site defeats the reason for the section. Continual small drips and leaks can add up to a large volume of contaminated soil, which may pose a threat to surface and subsurface water. One commenter asserts that a case-by-case determination of cleanup standards fails to provide the regulated community with clarity or certainty about government's expectations for cleanup and does not provide a uniform standard of cleanup. The commission believes that numerical criteria are appropriate for those types of spills that may require less monitoring by regulators than spills into environmentally sensitive areas. Response and remediation of spills in sensitive areas need to be individually tailored to each unique spill site to ensure that cleanup is adequate to protect human health and the environment. Remediation actions on these spills are expected to be more closely monitored by the commission. Cleanup levels tailored to the specific site are actually more protective of the environment because factors unique to the site can be considered. Several comments emphasize the need for immediate action in responding to a crude oil spill to avoid extensive contamination of soil or water while another asks for daily monitoring of a spill location for the presence of free oil. With regard to the requirement to begin cleanup by removing free oil, other commenters suggest changing "immediate" to "as soon as practicable, "as soon as possible," or "as soon as feasible." One commenter claims that a reasonable timeframe of one week after discovery to remove free oil is sufficiently "immediate." The commission is aware of the remote location of many oil and gas facilities and of industry practice regarding the frequency of visits to those locations. "Immediate" is intended to mean that action will be initiated at the time of discovery without delay. The commenter's suggestion that a reasonable time to commence removal of free oil is one week after discovery is not reasonable to the commission. Any free oil may well have soaked into the ground in a week's time. Several commenters suggested using a visual or olfactory standard for determination of the extent of contamination. Any method of delineation may be used, whether visual, olfactory, or analytical testing, provided that sufficient training and corroborative testing has been performed to assure the alternative method will yield a result that is consistent with laboratory testing. A number of commenters asked that in-situ bioremediation (bioremediation in place without excavation) be permitted. One commenter believes the section creates the impression that other technologies like low-temperature thermal stripping are not allowed. The commission intends to set the standards for cleanup, but to allow flexibility in the choice of method used to achieve the final cleanup level. A number of methods exist to achieve the final cleanup level including natural or enhanced bioremediation; thermal treatment, incineration, or other heat-driven process; and solvent extraction. Although the section contains specific requirements for bioremediation, it allows for the use of any remediation method as long as all of the other requirements of the section can be met. The commission has added a new subsection (f) to the section to clarify that alternative standards and procedures may be approved if they are equally protective of the environment. Some commenters questioned the 1.0% total petroleum hydrocarbon cleanup level as overly stringent while others questioned the cleanup level as too lenient. Other commenters supported the 1.0% cleanup level. Still other commenters stated that the commission's cleanup standards for cleanup of crude oil spills should be the same standards as those used by other federal and state agencies. While other state or federal agencies have developed cleanup standards for soil contaminated by refined petroleum products, there are no cleanup standards specifically developed for the cleanup of soil contaminated by crude oil spills. The commission considered data on the physical and chemical properties of crude oil and refined petroleum products, studies evaluating action levels for crude oil contaminated soil, Interstate Oil and Gas Compact Commission guidelines for landfarming, American Petroleum Institute guidelines-for management of oil and gas waste ad the commission's own experience with spills of crude oil in the development of this section. Based on this information, the commission believes that the 1.0% cleanup level for soil contaminated by crude oil spills is protective of the environment in non-sensitive areas. Two commenters complained that mixing soil contaminated with crude oil with other soil is dilution and, therefore, an inappropriate procedure for bioremediation. The commission believes that the addition of native soils is a cost effective mechanism to arrive at an appropriate loading rate to begin the bioremediation process. Several comments expressed concern about sampling protocols and testing for contamination. The commission believes that mandating a specific analytical method or sampling protocol to apply across a wide variety of spill scenarios reduces flexibility and can provide an incorrect determination if an inappropriate method is selected. The commission believes that sampling protocols should be tailored to the particular site, and the commission acknowledges that there are a variety of standards. Guidance regarding preferred sampling protocols and testing procedures will be provided through agency guidelines. Some commenters were concerned that the one-year time limit for completion of bioremediation would be too short while other commenters insisted that six months was an appropriate time limit for bioremediation. The commission believes that achieving 1.0% total petroleum hydrocarbon cleanup is ordinarily possible within three to six months; therefore, the one-year limit includes an additional margin for unforeseen problems. Operators who choose bioremediation are expected to take all steps necessary to ensure that bioremediation is completed as soon as technically feasible. In extraordinary circumstances where more than one year might be necessary for completion of the bioremediation process, an operator may submit a written request for extension to the district office. Under the provisions of the new subsection (f), the request for extension must include a complete explanation of why an extension is necessary, and the steps that will be taken to ensure that the bioremediation process is completed as quickly as technically feasible. One commenter suggested the requirement for reporting crude oil spills to "water" be changed to "waters of the U.S." The commission intends for all crude oil spills to water, whether surface or subsurface, be immediately reported to the commission. One commenter asked for clarification of the reporting requirement while a couple of commenters asked that spills less than five barrels of oil be reported to the commission. The commission expects operators to report all spills of crude oil exceeding five barrels of oil, which means total volume spilled and not net volume spilled. The commission believes that the increased administrative burden that reporting crude oil spills less than five barrels would entail is not warranted. The requirement for immediate reporting of all crude oil spills into water addresses the issue of pollution to water. Several commenters requested that commission form H-8 relating to the reporting of spills be modified to incorporate the reporting requirements of subsection (e)(1). The commission will amend its form H-8 to reflect the reporting requirements of this section. A couple of commenters thought that the reporting requirements of subsection (e) of this section would delay submission of the Form H-8 because operators could not wait to certify that all soil had been brought to the surface for remediation and properly mixed to the appropriate loading rate and still meet the commission's deadlines for spill reporting under sec.20 of this title (relating to Notification of Fire, Breaks, Leaks, or Blow-outs). The commission notes that the instructions printed on Form H-8 state that immediate notification is to be given first by telephone or telegraph followed by the filing of the Form H-8 "when appropriate measures have been taken." The certification requirements are not contingent upon completion of bioremediation. Excavation and mixing should take place as quickly as possible and should not unduly delay the filing of form H-8. Some comments indicated that additional reporting requirements for spills over 10 barrels are unnecessarily burdensome. The commission agrees with the commenters and will change the requirement for a final report for crude oil spills over 10 barrels to crude oil spills over 25 barrels. Other commenters thought that the section should include requirements for spill prevention and response plans, pipeline construction, produced water or salt water spills, and penalty provisions. The commission notes that the statutory penalty provisions that apply to the commission's other sections will apply to this section as well. This section is intended to address spills of crude oil into non-sensitive areas and not any of the other issues raised by these comments, which are more appropriately addressed either by other state and federal agencies' requirements for spill prevention and response plans or other regulations of the commission. Spills of produced water or salt water are more appropriately addressed in a separate rulemaking. The commission intends this section to be interpreted and implemented in a manner consistent with other commission rules. Other federal or state laws may also apply to spills of crude oil and should be consulted for additional guidance. Commenting in favor of the section were West Central Texas Oil and Gas Association; Holliday Environmental Services, Inc.; and Permian Basin Petroleum Association. Commenting in favor of the section with modifications were Texas Mid-Continent Oil and Gas Association; North Texas Oil and Gas Association; Amoco Production Company; and Texas Independent Producers and Royalty Owners Association. The new section is adopted under the Texas Natural Resources Code, sec.91. 101, which provides the commission with the authority to prevent pollution of surface or subsurface water in the state from the exploration, development, or production, including transportation, of oil, gas, or geothermal resources; and under the Texas Natural Resources Code, sec.85.042, which authorizes the commission to make and enforce rules pertaining to field operations that pose a danger to life or property. sec.3.91. (Rule 91) Cleanup of Soil Contaminated by a Crude Oil Spill. (a) Terms. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Free oil-crude oil that has not been absorbed by the soil and is accessible for removal. (2) Sensitive areas-these areas are defined by the presence of factors, whether one or more, that make an area vulnerable to pollution from crude oil spills. Factors that are characteristic of sensitive areas include the presence of shallow groundwater or pathways for communication with deeper groundwater; proximity to surface water, including lakes, rivers, streams, dry or flowing creeks, irrigation canals, stock tanks, and wetlands; proximity to natural wildlife refuges or parks; or proximity to commercial or residential areas. (3) Hydrocarbon condensate-the light hydrocarbon liquids produced in association with natural gas. (b) Scope. These cleanup standards and procedures apply to the cleanup of soil in non-sensitive areas contaminated by crude oil spills from activities associated with the exploration, development, and production, including transportation, of oil or gas or geothermal resources as defined in sec.3.8(a) (30) of this title (relating to Water Protection). For the purposes of this section, crude oil does not include hydrocarbon condensate. These standards and procedures do not apply to hydrocarbon condensate spills, crude oil spills in sensitive areas, or crude oil spills that occurred prior to the effective date of this section. Cleanup requirements for hydrocarbon condensate spills and crude oil spills in sensitive areas will be determined on a case-by-case basis. Cleanup requirements for crude oil contamination that occurred wholly or partially prior to the effective date of this section will also be determined on a case-by-case basis. Where cleanup requirements are to be determined on a case- by-case basis, the operator must consult with the appropriate district office on proper cleanup standards and methods, reporting requirements, or other special procedures. (c) Requirements for cleanup. (1) Removal of free oil. To minimize the depth of oil penetration, all free oil must be removed immediately for reclamation or disposal. (2) Delineation. Once all free oil has been removed, the area of contamination must be immediately delineated, both vertically and horizontally. For purposes of this paragraph, the area of contamination means the affected area with more than 1.0% by weight total petroleum hydrocarbons. (3) Excavation. At a minimum, all soil containing over 1.0% by weight total petroleum hydrocarbons must be brought to the surface for disposal or remediation. (4) Prevention of stormwater contamination. To prevent stormwater contamination, soil excavated from the spill site containing over 5. 0% by weight total petroleum hydrocarbons must immediately be: (A) mixed in place to 5.0% by weight or less total petroleum hydrocarbons; or (B) removed to an approved disposal site; or (C) removed to a secure interim storage location for future remediation or disposal. The secure interim storage location may be on site or off site. The storage location must be designed to prevent pollution from contaminated stormwater runoff. Placing oily soil on plastic and covering it with plastic is one acceptable means to prevent stormwater contamination; however, other methods may be used if adequate to prevent pollution from stormwater runoff. (d) Remediation of soil. (1) Final cleanup level. A final cleanup level of 1.0% by weight total petroleum hydrocarbons must be achieved as soon as technically feasible, but not later than one year after the spill incident. The operator may select any technically sound method that achieves the final result. (2) Requirements for bioremediation. If on-site bioremediation or enhanced bioremediation is chosen as the remediation method, the soil to be bioremediated must be mixed with ambient or other soil to achieve a uniform mixture that is no more than 18 inches in depth and that contains no more than 5.0% by weight total petroleum hydrocarbons. (e) Reporting requirements. (1) Crude oil spills over five barrels. For each spill exceeding five barrels of crude oil, the responsible operator must comply with the notification and reporting requirements of sec.3.20 of this title (relating to Notification of Fire, Breaks, Leaks, or Blow-outs) and submit a report on a Form H-8 to the appropriate district office. The following information must be included: (A) area (square feet), maximum depth (feet), and volume (cubic yards) of soil contaminated with greater than 1.0% by weight total petroleum hydrocarbons; (B) a signed statement that all soil containing over 1.0% by weight total petroleum hydrocarbons was brought to the surface for remediation or disposal; (C) a signed statement that all soil containing over 5.0% by weight total petroleum hydrocarbons has been mixed in place to 5.0% by weight or less total petroleum hydrocarbons or has been removed to an approved disposal site or to a secure interim storage location; (D) a detailed description of the disposal or remediation method used or planned to be used for cleanup of the site; and (E) the estimated date of completion of site cleanup. (2) Crude oil spills over 25 barrels. For each spill exceeding 25 barrels of crude oil, in addition to the report required in subsection (e)(1) of this section, the operator must submit to the appropriate district office a final report upon completion of the cleanup of the site. Analyses of samples representative of the spill site must be submitted to verify that the final cleanup concentration has been achieved. (3) Crude oil spills of five barrels or less. Spills into the soil of five barrels or less of crude oil must be remediated to these standards, but are not required to be reported to the commission. All spills of crude oil into water must be reported to the commission. (f) Alternatives. Alternatives to the standards and procedures of this section may be approved by the commission for good cause, such as new technology, if the operator has demonstrated to the commission's satisfaction that the alternatives provide equal or greater protection of the environment. A proposed alternative must be submitted in writing and approved by the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 27, 1993. TRD-9329477 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: November 1, 1993 Proposal publication date: March 30, 1993 For further information, please call: (512) 463-6857 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 217. Licensure and Practice 22 TAC sec.sec.217.1, 217.6, 217.8 The Board of Nurse Examiners adopts amendments to sec. sec.217.1, 217.6, and sec.217.8, without changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 5010). These amendments are being adopted as a result of recent changes in the Nursing Practice Act made during the 73rd Legislative Session, specifically House Bill 756 and House Bill 2180. The changes include the provision for the board to issue a temporary permit to a nurse who has been disciplined and is required to go through board action to meet requirements for relicensure. House Bill 756 grants the board the authority to adopt rules in relation to the retired nurse. There were no comments received regarding adoption of the sections. The amendments are adopted under Texas Civil Statutes, Article 4514, sec.1, which provide the Board of Nurse Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting a proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 27, 1993. TRD-9329490 Louise Waddill, Ph.D., R.N. Executive Director Texas Board of Nurse Examiners Effective date: October 18, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 835-8650 22 TAC sec.217.4, sec.217.5 The Board of Nurse Examiners adopts the repeal of sec.217.4, and sec.217.5, without changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 5011). The repeal of the sections allows for new sections to be adopted as a result of recent changes in the Nursing Practice Act passed during the 73rd Legislative Session. There were no comments received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4514, sec.1, which provide the Board of Nursing Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 27, 1993. TRD-9329482 Louise Waddill, Ph.D., R.N. Executive Director Texas Board of Nurse Examiners Effective date: October 18, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 835-8650 The Board of Nurse Examiners adopts the new to sec.217.4, and sec.217.5, without changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 5011). The new sections are adopted to comply with recent changes in the Nursing Practice Act made during the 73rd Legislative Session, specifically in relation to the issuance of the temporary license and endorsement procedures and to assure that nurses licensed by other authorities do not have discipline against their license prior to being endorsed into Texas. Any nurse seeking licensure in Texas will be required to provide documentation regarding licensure in all other states where the applicant is licensed, thus assuring the public that the nurse has no prior discipline in other state, or if disciplined the board may establish requirements for the nurse to meet in order to practice in Texas safely. There were no comments received regarding adoption of the sections. The new sections are adopted under Texas Civil Statutes, Article 4514, sec.1, which provide the Board of Nurse Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting a proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 27, 1993. TRD-9329483 Louise Waddill, Ph.D., R.N. Executive Director Texas Board of Nurse Examiners Effective date: October 18, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 835-8650 Chapter 223. Fees 22 TAC sec.223.1 The Board of Nurse Examiners adopts an amendment to sec.223.1, without changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 5012). House Bill 756, passed during the 73rd Legislative Session, provides for the Board of Nurse Examiners to adopt a mandatory newsletter fee to be paid by each nurse upon renewal of his/her license. Texas Civil Statutes, Article 4525a, sec.16, also requires the board to notify nurses and employers of nurses of information and actions taken by the board. Fees collected will be used to fund the newsletter, which will be mailed to all currently licensed Texas RNs four times per year. The board views this tool as a mechanism to keep nurses and employers of nurses apprised of information and actions taken by the board, such as changes in the law and/or Board's rules and regulations. There were no comments received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4514, sec.1, which provide the Board of Nursing Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting a proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 27, 1993. TRD-9329481 Louise Waddill, Ph.D., R.N. Executive Director Texas Board of Nurse Examiners Effective date: October 18, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 835-8650 Chapter 235. Licensing Issuance of Licenses 22 TAC sec.235.47 The Board of Vocational Nurse Examiners adopts an amendment to sec.235.47, concerning Issuance of Licenses, without changes to the proposed text as published in the August 27, 1993, issue of the Texas Register (18 TexReg 5699). This rule is adopted to remove conflict with the other rules that have been adopted. No comments were received regarding adoption of the rule. The rule is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 27, 1993. TRD-9329494 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: October 19, 1993 Proposal publication date: August 27, 1993 For further information, please call: (512) 835-2071 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 330. Municipal Solid Waste Subchapter A. General Information 30 TAC sec.330.15 The Texas Natural Resource Conservation Commission ("TNRCC") adopts new sec.330.15, concerning the effective date of the federally mandated 40 Code of Federal Regulations (CFR), Parts 257 and 258 and the equivalent state requirements. Section 330.15 is adopted without changes to the proposed text as published in the August 13, 1993, issue of the Texas Register (18 TexReg 5384). The new section contains language that clarifies that the federally mandated requirements of 40 Code of Federal Regulations, Parts 257 and 258 and the equivalent state requirements are effective on the same date(s) . By publication in the June 18, 1993, Texas Register (18 TexReg 4023), the TNRCC adopted new Chapter 330, Subchapters A-L, in order to incorporate the new federal requirements which were adopted by the Environmental Protection Agency (EPA) on October 9, 1991 (Volume 56, Number 196 Fed. Reg.). These new federal requirements set forth revised minimum federal criteria for municipal solid waste landfills. Both the federal rules and the TNRCC's newly adopted rules are effective on October 9, 1993, excluding a delayed implementation date for financial assurance requirements in subchapter K. However, on July 28, 1993 (Volume 58, Number 143 Fed. Reg.), the Environmental Protection Agency proposed a delay of the effective date of 40 CFR, Part 258. It is the intention of the TNRCC that the equivalent state requirements become effective on the same date as the federal requirements. Therefore, new sec.330.15 has been added to clarify this intent. The new section is not intended to change the Municipal Solid Waste Landfill (MSWLF) criteria, but will provide certain owners/operators with additional time to come into compliance with the MSWLF criteria requirements. The TNRCC received no public comments regarding adoption of the rule. The new section is adopted under the authority of the Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of the state. Additionally, the new rule is promulgated pursuant to the Texas Solid Waste Disposal Act, the Texas Health and Safety Code, sec.361.024, which provides the Texas Natural Resource Conservation Commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 29, 1993. TRD-9329547 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 20, 1993 Proposal publication date: August 13, 1993 For further information, please call: (512) 908-6087