ADOPTED RULES 
 
 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 22. EXAMINING BOARDS 
 Part V. Texas State Board of Dental Examiners 
  Chapter 109. Conduct 
  
  Infection Control 
 
  22 TAC sec.109.222 
 
  The Texas State Board of Dental Examiners adopts an amendment to sec.109. 222, 
without changes to the proposed text as published in the March 8, 1994, issue of 
the Texas Register  (19 TexReg 1626). 
 The Texas State Board of Dental Examiners finds there is an imminent peril to 
the public health, safety or welfare due to the threat of infection, hepatitis 
A, B, and C, and tuberculosis and HIV being passed from infected dental lab 
workers to dental health care workers and dental patients through dental 
prostheses manufactured, repaired or handled in unsanitary conditions or by 
infectious lab workers. The rule is justified by the imminent effect of the 
North American Free Trade Agreement, resulting in commerce with many dental labs 
not subject to OSHA regulation and not in compliance with said regulation. 
 Section 109.222 states that when it is necessary to return items to a dental 
office from a dental lab said item shall be rendered non-biohazardous before 
return to the dentist by the dental lab or technician according to established 
OSHA guidelines. 
 No comments were received regarding adoption of the rule. 
 The amendment is adopted under Texas Civil Statutes, Articles 4551d(c), 4551f; 
and Texas Government Code, sec.2001.034, which provide the Texas State Board of 
Dental Examiners with the authority to adopt and enforce such rules and 
regulations not inconsistent with the laws of the state as may be necessary for 
the performance of its duties and/or to insure compliance with the state laws 
relating to the practice of dentistry to protect the public health and safety. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on April 14, 1994. 
 TRD-9439285 
  C. Thomas Camp 
 Executive Director 
 Texas State Board of Dental Examiners 
    Effective date: May 6, 1994 
 Proposal publication date: March 8, 1994 
 For further information, please call: (512) 463-6400 
         
               
  TITLE 30. ENVIRONMENTAL QUALITY 
 Part I. Texas Natural Resource Conservation Commission 
  Chapter 116. Control of Air Pollution by Permits for New Construction or 
Modification 
  
  The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments 
to sec.116.110, concerning Applicability; sec.116.115, concerning Special 
Provisions; sec.116.211, concerning the Standard Exemption List; and 
sec.116.311(b) and (c), concerning Permit Renewal Applications. Also, the TNRCC 
adopts a new Subchapter F, Standard Permits, containing new  sec.sec.116.610, 
116. 611, 116.614, and 116.617, to establish a category of standard permits. 
Sections 116.211, 116.610, 116.611, 116.614, and 116.617 are adopted with 
changes to the proposed text as published in the November 9, 1993, issue of the  
Texas Register (18 TexReg 8145). Sections 116.110, 116.115, and 116. 311 are 
adopted without changes and will not be republished. 
 The proposed changes were developed in response to recommendations by the 
Permits Workshop Task Force and directives from the former Texas Air Control 
Board to streamline the permit process. The proposed changes to the Standard 
Exemption List consist of revisions to Standard Exemption (SE) 75, SE 107, SE 
113, and a new SE 124. The proposed revisions to SE 107, regarding vapor 
degreasers, and SE 113, regarding thermoset resin operations, were recommended 
by the Office of Air Quality, Permits staff. The proposed new SE 124, relating 
to auto body shops, and revised SE 75, relating to surface coating facilities, 
were developed by the Auto Body Shop Task Force to provide a means for the 
thousands of auto body shops located in Texas to comply with Chapter 116 
requirements. 
 The staff requested comments from the public and the regulated community 
regarding permit fees for standard permits. The staff also requested comments, 
particularly from the regulated community and the United States Environmental 
Protection Agency (EPA), regarding the requirements in the proposed sec.116. 
617(1)(D)(iii). This clause allows the facilities covered by the standard permit 
to be excluded from netting calculations for the purposes of Prevention of 
Significant Deterioration (PSD) or nonattainment review. 
 A public hearing was held on December 2, 1993, in Austin and on December 3, 
1993, in Houston to consider the proposed rule changes. Testimony was received 
from 23 commenters. The following commenters generally supported the proposed 
revisions to Chapter 116 with some suggested changes: Automotive Service 
Association of Texas (ASAT); Exxon Company USA (Exxon); Brown McCarroll & Oaks 
Hartline (Brown); Amoco Chemicals Company (Amoco Chem); Amoco Oil Company (Amoco 
Oil); Texas Chemical Council (TCC); Binks Manufacturing Company (Binks); Harris 
County Pollution Control Department (Harris County); Phillips Petroleum Company 
(Phillips); Pennzoil Company (Pennzoil); Eastman Chemical Company, Texas Eastman 
Division (Eastman); Houston Lighting & Power Company (HL&P); Texas Utilities 
Services (TU); Chuck's Custom Auto (Chuck); Exxon Chemical Americas (Exxon 
Chem); and DuPont Gulf Coast Regional Manufacturing Services (DuPont). The 
following commenters listed specific concerns without either supporting or 
opposing the overall proposal: City of Fort Worth (Fort Worth); International 
Cast Polymer Association (ICPA); City of Dallas Air Pollution Control Section 
(Dallas); Composite Fabricators Association (CFA); Benton & Associates (Benton); 
and one individual. Galveston/ Houston Association for Smog Prevention (GHASP) 
was opposed to the entire proposal but did offer suggested changes. 
 The following discussion addresses general comments followed by comments 
regarding each specific section proposed for change. 
 General Comments. Exxon and Brown suggested that standard permits should be 
excluded from amendments and alterations in sec.116.116(c). 
 Section 116.116 refers to permitted facilities that propose modifications which 
qualify for a standard exemption. Changes in representations to a facility which 
are covered by a standard permit are addressed in new sec.116. 610(e). 
Facilities that are permitted and make modifications covered by a standard 
permit are addressed in new sec.116.610(g). The purpose of requiring the 
incorporation of standard permits into future amendments or alterations, which 
are related to a facility previously permitted under sec.116.110, is to collect 
all of the Chapter 116 authorizations for a particular facility into one 
document. This saves time and confusion for both the TNRCC and the permit holder 
when renewing permits, amending permits, dealing with compliance and enforcement 
matters, etc. 
 Phillips commented that there should be no netting of emission changes 
resulting from emission reduction projects required by rule. However, voluntary 
projects should allow netting of the increases and decreases. 
 The staff has requested comments from EPA regarding netting of emissions from 
standard permits. EPA guidelines do not allow reductions required by rule to be 
included in netting calculations. However, staff has not received any formal 
written guidance from EPA on whether increases which may be associated with 
these reductions must be included in netting calculations. Staff has therefore 
decided that increases associated with the project which are used to demonstrate 
compliance with the rule will not be used to trigger netting for that project as 
long as the "WEPCO exemption" is satisfied. Staff took this position primarily 
because we recognized the practical need to get these projects approved quickly, 
and netting, especially at large facilities, could involve a great deal of time 
and effort on behalf of both the applicant and the agency. After additional 
informal discussions with EPA, staff has also decided that none of the emission 
changes associated with projects required by rule should be included in any 
netting calculations. The WEPCO language exempts pollution control projects from 
the definition of physical change or change in method of operation contained in 
40 Code of Federal Regulations, sec.52.21 and sec.51.165. Therefore, changes 
which satisfy this exemption are not modifications and do not have to be 
included in any netting calculations. Staff has elected to retain the proposed 
language in standard permit number 2 for voluntary projects. This will allow 
quick approval for these projects and still allow applicants to take credit for 
the reductions in future netting exercises. Since credit will be given for these 
decreases, any associated increases must also be accounted for in future netting 
calculations. 
 Pennzoil suggested a clarification of how the standard permits will relate to 
federal operating permits. There was a question as to when the provisions of the 
standard permit will be incorporated into the operating permit and if standard 
permits will be converted into general permits. Pennzoil commented that 
increases in production capacity under standard permits should not be restricted 
if the production increase does not result in an emission increase. In fact, 
production increases should be allowed which involve only de minimis emission 
increases of less than one ton per year. 
 Texas has structured its federal operating permit program totally separate from 
the new source review (NSR) permitting process. Therefore, there will be no 
connection between standard permits, which are part of the NSR permit process, 
and the federal operating permits. For the same reason, general permits, which 
are part of the federal operating permit program, will have no link with 
standard permits. The operating permit is basically a codification permit which 
summarizes the recordkeeping requirements and federal emission standards 
applicable to a particular facility and is required only for major source 
facilities. It does not contain all of the special provisions and allowable 
emission rates that are in the NSR permit. 
 The proposed rules do not prohibit production increases provided that there is 
no increase in emissions prior to the implementation of additional control, 
change in the character of emissions, or change in emission controls. The rules 
do prohibit changes in construction plans, operating procedures, and maximum 
emission rates if such changes exceed or conflict with conditions of the 
standard permit. 
 Eastman commented that permitting of pollution reduction projects should be 
limited to the affected unit only. Plantwide modeling to determine ambient 
impacts should not be required. 
 The new Subchapter F does not contain any modeling requirements. However, 
modeling may be required where the project will result in a significant net 
increase of a criteria pollutant. In this case, the person claiming the standard 
permit must demonstrate compliance with the National Ambient Air Quality 
Standards, PSD increment, and PSD visibility limitations. In order to make this 
demonstration, the person claiming the standard permit may have to perform a 
modeling analysis. If so, the claimant must follow federal and state modeling 
protocols which could result in a requirement to model the entire facility plus 
other sources outside the facility. 
 Dallas questioned the statement in the preamble regarding the estimated cost to 
state government of $522,000 per year to review standard exemptions for auto 
body shops. The comment followed that since the agency has already been 
reviewing exemption applications, there should be no added costs. Dallas also 
commented that control costs for auto body shops may be unaffordable for many of 
the small shop owners. It seems unreasonable to require body shop controls when 
aircraft refueling facilities do not require controls even with more potential 
volatile organic compound (VOC) reduction. 
 The estimated review costs are based on the new SE 124, which will greatly 
increase the workload on agency staff if the estimated 10,000 auto body shops in 
the state all submit exemption applications. Until now, most of the body shops 
have been operating without any TNRCC authorization and are potentially in 
violation of current rules, so the inclusion of this source category in the 
rules will definitely impact staff resources. 
 The emission control costs were considered by the Auto Body Shop Task Force 
during development of the rule language for SE 124. The body shop industry was 
represented on the task force, and it assisted in minimizing the costs of the 
proposed control requirements. Comments provided during the rulemaking process 
were also utilized to minimize costs. 
 The staff does not agree with the assertion that there are more potential VOC 
emission reductions from aircraft refueling than from auto body spraying 
operations. The TNRCC is currently studying potential control of aircraft 
refueling emissions, but has not yet determined if it is economically feasible 
or if significant reductions are even achievable. There is very little 
similarity between aircraft refueling and auto body spraying operations. The 
vapor pressure of kerosene is much lower than paint solvents, so potential 
emissions are much lower. Most of the VOC emissions from aircraft occur during 
takeoff and landing, not from refueling. In conclusion, the matter of aircraft 
refueling is a separate issue which is under review and is beyond the scope of 
the current rulemaking proposal. 
 GHASP is opposed to the use of standard permits. There is concern that air 
quality will gradually degrade because companies will not meet the requirements 
of the permit and will not maintain the emission control equipment. There is 
concern about no public input, no site review, and no review of compliance 
history. Also, GHASP is opposed to the use of offsets or netting as just a paper 
exercise without actual emission monitoring. 
 The staff has supported standard permits as a means to reduce the backlog of 
permit applications that has continued to escalate in recent years. Agency staff 
resources are limited, and standard permits are designed to provide a 
streamlined review process for pollution reduction projects and for facility 
types which have been reviewed and permitted or exempted on a routine basis. 
 During the development of future standard permits, the staff will strive to 
include specific conditions that will address the use of appropriate control 
technology. The public will be able to comment on each standard permit at the 
time that it is subject to rulemaking. Although individual standard permits are 
not subject to public notice and contested case hearing requirements, the public 
can contact the TNRCC with concerns or complaints regarding facilities operating 
under a standard permit. It is the responsibility of any permit holder to comply 
with all rules and regulations of the TNRCC. Also, standard permits at 
facilities that have other preconstruction permits may be incorporated into the 
permit upon amendment or renewal. Impacts from the permitted facility will be 
evaluated at the time of renewal. 
 The permits staff evaluates the use of reductions as offsets and in performing 
netting calculations on a case-by-case basis. Although monitoring is not 
required for every case, the permits staff does require documentation that the 
reductions are actual emissions. The best available information is used to make 
this determination. The information may include monitoring results, testing 
results, operating data, etc. 
 There were no comments received on the proposed changes to sec.116.110, 
concerning Applicability or sec.116.115, concerning Special Provisions. 
 The comments regarding sec.116.211, concerning Standard Exemption List, and SE 
75, concerning surface coating operations, are as follows. 
 Fort Worth commented that condition (h) should reference Chapter 115 rather 
than Chapter 116. Condition (j) has a lot of unclear definitions for enclosed, 
indoor, outdoor, and nonenclosed facilities. Forced ventilation should not be 
required for dipping operations as stated in condition (j)(2). It will be 
difficult to enforce pressure drop requirements stated in condition (j)(1)(A), 
unless the facility is required to install a pressure gauge. Condition (l) 
should allow indoor or enclosed facilities to be included in the exemption. 
 The staff agrees that an error was made in specifying Chapter 116 and has 
changed the reference to Chapter 115. The staff believes that "enclosed" is 
clearly defined in condition (j) and that the other terms do not need further 
clarification. 
 Forced ventilation was included in (j)(2) since the dip tanks and the dripping 
and drying parts have significant emissions that would otherwise exit the 
facility as fugitives and produce unacceptable off-property concentrations. The 
staff does not support the elimination of the ventilation requirements. 
 Compliance with the pressure drop requirements in (j)(1)(A) for the filters 
could be demonstrated with a pressure indicator such as a manometer and many new 
booths already come equipped with them. It is also incumbent upon the applicant 
to be able to demonstrate compliance with the requirements of the exemption even 
if a compliance method is not specified. The staff does not support requiring 
additional monitoring or testing. 
 Condition (l) allows many small outdoor and partially enclosed operations with 
limited ventilation to perform coating operations. The condition is primarily 
intended to allow for small touch-up operations and indoor or enclosed areas by 
definition have higher control requirements as required in condition (j). 
 Harris County stated that condition (f)(4) should clarify the meaning of no 
visible emissions. Does it mean zero opacity or less than 5.0% opacity? Also, 
how does the exemption holder demonstrate the minimum velocity and pressure drop 
requirements in condition (j)? 
 No visible emissions is a qualitative evaluation of opacity rather than a 
quantitative evaluation with a specified percent opacity based on a number of 
readings over a time period. In other words, no visible emissions is based on an 
instantaneous observance of any emissions. 
 The booth or work area velocity in condition (j) can be determined through 
actual velocity traverses and measurements, or it may be preferably done by 
calculation. For compliance through calculation, the flow rate of the 
ventilation fan (in cubic feet per minute (CFM)) is divided by the flow area of 
the booth (height times width for an end draft booth). The pressure drop can be 
demonstrated with a pressure indicator such as a manometer as stated in response 
to Fort Worth's comment. 
 Eastman commented that condition (c)(4) should be more specific in identifying 
the exclusions. It also suggested the following: clarify "pounds per hour on a 
daily basis" in (e)(2)(i); revise (f)(3) to provide for facilities that have on-
site disposal services by adding the phrase "or until emptying into authorized 
onsite waste management facilities;" and delete the requirement to operate only 
one outdoor or non-enclosed coating operation in (k)(1) and (l)(1) because 
multiple sources would produce a lower ambient impact. 
 The staff agrees that the conditions excluded in (c)(4) should be stated more 
clearly and the condition has been modified to indicate the specific exclusions. 
 The intent of pounds per hour on a daily basis in (e)(2)(i) indicates that the 
recordkeeping should be based on daily use of coatings and solvent and the 
number of hours of operation of coating use during the day. The staff has 
revised the proposed language to make this clear. 
 The staff agrees to make the suggested change in (f)(3), but the staff notes 
this change will benefit very few sources in the state. 
 The staff disagrees with the suggestion that more than one source located 
outdoors or in a non-enclosed area should be allowed to operate simultaneously. 
Dispersion modeling performed by the staff for a typical small source covered by 
this exemption indicated that there would be significant impacts problems if 
more than one source would be operating simultaneously. 
 Several suggestions were made by Dallas to revise the proposed exemption: 
define metalizing and metal spraying in condition (b); facilities that qualify 
under (c)(4) should also be excluded from the recordkeeping requirements of (e) 
(2) because of the very low consumption rates; explain why there is a 60 feet 
per minute (fpm) minimum velocity in paragraph (j) and clarify whether the 50 
fpm face velocity applies to the "all other systems" category; and clarify 
paragraph (j)(1)(B) and (j)(2) by inserting the word "vertical" before the word 
"flow." Dallas objected to the removal of site approval in paragraph (l). 
 The staff has made a clarification to condition (b) that metalizing is actually 
metal deposition or spraying of molten metal onto a surface to form a coating. 
The proposed wording could cause some confusion that metallic paints are 
included. 
 The staff agrees that facilities covered under (c)(4) should be excluded from 
the recordkeeping requirements of the exemption and has made the suggested 
change. 
 The 60 fpm velocity requirement is a reflection of Occupational Safety and 
Health Administration and National Fire Prevention Association requirements for 
electrostatic application and is the velocity at a plane perpendicular to the 
air flow that is within the booth. The 50 fpm velocity requirement is a minimum 
requirement for all booths that have inlet openings to the atmosphere. This is 
the velocity at a plane perpendicular to the air flow that is at the opening of 
the booth. The staff has reorganized this condition to add clarity. 
 The staff agrees that the word "vertical" would provide further clarification 
to the requirements of (j) and has made the suggested change. 
 The staff agrees that the site approval requirement should be included in 
condition (l) and the final rule language has been changed. 
 GHASP commented that conditions (e)(1) and (4) should require a five-year 
recordkeeping period to coincide with the five-year compliance history 
requirement. Condition (f)(1) should contain a statement requiring proper 
storage and disposal of materials. 
 Other recordkeeping requirements in Chapter 116 and contained in other standard 
exemptions are based on a two-year period. The staff believes that two years of 
operating records is a sufficient time period for verifying or making a 
determination of a compliance problem. The five-year period for compliance 
history is a statutory requirement for obtaining a preconstruction permit. The 
statute requires consideration of any adjudicated decision or compliance 
proceeding within five years before the permit application filing date before 
issuing a permit. The two-year recordkeeping requirement is used to verify or 
confirm a compliance problem; and the five-year compliance history period is 
used to evaluate a company's past enforcement matters to determine if there is a 
reasonable basis for denial of a permit. The staff supports the existing time 
frames and recommends against the suggested change to conditions (e)(1) and (4) 
on the basis that two years should be sufficient for discovering and confirming 
a compliance problem. 
 Regarding condition (f)(1), GHASP stated that materials should use proper 
storage and disposal. This requirement is contained in condition (f)(3) and does 
not need to be duplicated in (f)(1). 
 An individual commented that the proposed revisions will prohibit the use of 
VOC control equipment to meet the emission limits of the exemption. This appears 
to contravene the Texas Clean Air Act (TCAA), sec.382.057. The exemption should 
be revised to allow control equipment that reduces emissions by at least 80%. 
 The staff believes that the use of VOC control equipment to meet the exemption 
would not be appropriate, since the operation and maintenance of the equipment 
has very limited enforceability. By basing the exemption on controlled 
emissions, there is a much higher potential for uncontrolled emissions. The 
higher the emission potential, the greater the probability for excessive 
emissions and toxic emission releases, resulting in citizen complaints and 
potential health concerns. The staff believes that controlled facilities should 
undergo permit review and has not incorporated the suggested change. 
 The comments regarding SE 107, concerning degreasing operations, are as 
follows. 
 Fort Worth commented that this exemption will be difficult to enforce. Sections 
(b)(2) and (3) set pressure limitations with no requirement to monitor or 
measure. The 0.3 pounds per square inch, Absolute (psia) limitation in (b)(3) is 
different from Chapter 115, which allows 0.6 psia. With separate requirements 
for remote reservoir units in (b), and cold solvent units in (c), it is unclear 
which one applies to remote reservoir cold solvent units. Fort Worth asked why 
the total solvent makeup in (c)(6) is less than the other sections. Subsection 
(c)(4) is inconsistent with Chapter 115. The ventilation requirements in (d)(5) 
and (6), as well as (e)(5), appear to be taken from sections of Chapter 115 
which apply to different operating scenarios which should not be combined. 
 The staff disagrees with the inclusion of a requirement to use test methods to 
determine the vapor pressure of the solvent for such small units. However, the 
staff has added a reference to sec.115.415, which requires testing and specifies 
test methods. The rule requires that testing for the solvent vapor pressure be 
performed, but it appears that if the facility owner or operator has 
documentation in the form of a Material Safety Data Sheet or test results from 
the solvent supplier of the vapor pressure of the solvent that this would 
satisfy the test requirement of the rule. 
 The staff has reviewed the latest version of Chapter 115, which has no specific 
limits on solvent vapor pressure. The chapter simply requires certain controls 
be required on the unit for specific vapor pressures. Additional controls are 
required if the vapor pressure is above 0.3 psia for cold solvent with an 
exemption that allows 0.6 psia if the solvent is not heated above 120 degrees 
Fahrenheit for cold solvent units. The 0.6 psia stated in condition (c) is not a 
limitation, but a trigger for additional controls. The staff agrees that the 0.3 
psia limitation in condition (b) will be changed to 0.6 psia for consistency 
with Chapter 115. However, the staff has changed the vapor pressure and drain 
area limitations for remote reservoir cleaners in condition (b)(3) to match the 
exemption limits in Chapter 115. 
 There should be no confusion about remote reservoir units being considered as 
cold solvent units. According to the definition in Chapter 115, cold solvent 
cleaning is the batch process of cleaning and removing soils from metal surfaces 
by spraying, brushing, flushing, and/or immersion while maintaining the solvent 
below its boiling point. These units typically have a high freeboard and the 
solvent surface is exposed within the degreaser so that parts may be dipped or 
immersed in the solvent, or placed on a rack just above the solvent, and rinsed 
with a nozzle. These units may hold anywhere from 20 to 200 gallons of solvent. 
These units are typically used in manufacturing operations or in large parts 
rebuilding operations. The remote reservoir cleaners, on the other hand, usually 
consist of a small sink with a solvent spray nozzle that is manually operated 
and mounted on a small, separate reservoir. These units typically contain five 
to 20 gallons of room temperature solvent. They are found in auto repair shops 
or auto parts stores and are used for hand washing a few dirty automotive parts 
that are being repaired or serviced. The staff does not believe that any further 
clarification is needed in the exemption. 
 The staff agrees that the solvent use limits in condition (c)(6) should be 
changed for consistency with (d)(7) and (e)(7). 
 The language in condition (c)(4) matches that in the current version of Chapter 
115. However, it does not allow for a separate external drainage facility as 
covered in sec.115.417. The staff recommends adding an allowance for an external 
drainage facility that is consistent with Chapter 115. 
 The ventilation requirements were based on the limits found in Chapter 115 and 
American Conference of Governmental Industrial Hygienist's (ACGIH) Industrial 
Ventilation . The 50 fpm/square foot (sq. ft.) requirement is taken from 
Industrial Ventilation and provides enough flow to effectively capture fumes. 
The 65 cfm/sq. ft. comes from Chapter 115 and provides an upper limit on air 
flow, since flows above this level tend to increase solvent loss. The staff 
recommends no change to the ventilation requirements of the proposed exemption. 
 Eastman suggested revising condition (a)(2) to provide for facilities that have 
on-site disposal services by adding the phrase "or until emptying into 
authorized on-site waste management facilities." Solvent makeup stated in (a) 
(1)(B), (c)(5), and (d)(7) should subtract "inventory change" from "gross 
purchased" to account for facilities that inventory and service their own units. 
 The staff has added the suggested language to condition (a)(2) referencing on-
site waste management and clarified that solvent make-up should be based on 
gross usage minus waste disposal. 
 Dallas pointed out that the stack height of 1.3 times the building height as 
stated in condition (d)(6) appears to be an error. Other references to stack 
heights in the rule are based on 1.5 times the building height. 
 The staff disagrees that this is an error. The two stack heights included in 
the exemption were based on dispersion modeling run by the staff. Conveyorized 
degreasers have higher emission rates than open top units and a taller stack was 
required to provide acceptable impacts. 
 The comments regarding SE 113, concerning polyester/styrene copolymer resins 
applications, are as follows. 
 Fort Worth commented that both spraying and nonspraying operations should have 
the same limitations. The acetone usage limitations should be raised back to the 
rates allowed under the current exemption. 
 The staff disagrees that both operations should have the same limitations. 
Based on EPA AP-42, Compilation of Air Pollutant Emission Factors, emissions of 
styrene are higher for spray application than nonspray application. Therefore, 
spray application would have to use less resin and gelcoat in order to reduce 
styrene emissions to levels comparable to the nonspray application. 
 Harris County asked how an exemption holder would demonstrate compliance with 
the 95% removal efficiency requirement in condition (b)(2). 
 Similar to other coatings operations where there are particulate emissions, the 
applicant is normally requested to provide specifications or a guarantee from 
the manufacturer of the products. 
 Eastman commented that material usage stated in (b)(1) and (c)(1) should 
subtract "inventory change" from "gross purchased" to account for facilities 
that inventory and service their own units. 
 The staff agrees to revise the description of material usage for clarification 
of the rule. 
 GHASP commented that the recordkeeping requirement in condition (a)(2) should 
be extended to five years to coincide with the five-year compliance history 
requirements in Chapter 116. Conditions (b)(2) and (c)(2) should require a 98% 
control efficiency as Best Available Control Technology BACT rather than 95%. 
 The staff is opposed to the five-year recordkeeping requirement. See the 
response to the same comment by GHASP regarding SE 75. The staff is also opposed 
to raising the control efficiency which is beyond the scope of this rulemaking. 
It should be understood that BACT is not a required criteria in standard 
exemptions, which are by definition insignificant sources. 
 Both ICPA and CFA were concerned about the restriction to daylight operations 
in condition (a)(3) which will limit the ability to compete in the marketplace. 
They were also concerned about the stack height and flow rate limitations in 
conditions (b)(3) and (c)(3). Most shops cannot meet these limits with their 
existing equipment. ICPA and CFA both suggested a limitation on the stack 
concentration for styrene of 50 parts per million (ppm) instead of the flow 
limitation. CFA also suggested a 30-foot stack height. 
 The health effects screening level for styrene was reduced a couple of years 
ago from 430 micrograms per cubic meter (ug/m3) to 215 ug/m3. This change was 
made by the Toxicology & Risk Assessment Section to more accurately describe the 
odor detection level of styrene. The limitations on stack height, flow rates, 
and daylight operating hours were all the result of screening models that were 
made by the Permits staff to determine the potential ambient impacts from 
thermoset resin facilities based on the new screening levels. The staff does not 
believe that any relaxation of these limitations can be recommended without 
creating a potential of exceeding the styrene screening level. The staff is also 
opposed to substitution of a 50 ppm concentration limitation in lieu of the 
stack height and flow restrictions. Additional modeling would be required to 
confirm that the 50 ppm limitation would provide equivalent protection of the 
effects screening level. Also, it would be difficult for most facilities to 
verify compliance with the 50 ppm requirement without installing expensive 
continuous monitoring equipment. Facilities that are unable to meet the standard 
exemption can apply for a permit which allows for individual case review. 
 The proposed changes to this exemption will only affect new or modified 
facilities that are not currently authorized under standard exemption. Any 
facility that is now operating under SE 113 may continue to operate under the 
conditions that existed at the time the exemption was granted. 
 The comments regarding SE 124, concerning automobile body shops, are as 
follows. 
 The staff has decided that it would be inappropriate, within the rules, to 
specify a requirement to submit a checklist. Therefore, the reference to Table 
124 is being deleted from condition (a). Also, the Permits Division has 
developed a new simplified registration Form, PI-7-124, to be used by auto body 
shops in place of the Standard PI-7. Condition (a) will be changed to reference 
the new Form PI-7-124. 
 Eastman commented that condition (r) of SE 124 appears to allow preexisting 
facilities to qualify for standard exemption authorization. The TNRCC should 
advise the regulated community of the authorizing mechanism for existing 
insignificant sources of air contaminants that have not previously applied for 
permit or exemption. 
 Condition (r) is only intended to allow existing facilities a grace period for 
achieving compliance with certain conditions of the exemption. It has nothing to 
do with the applicability of the exemption to existing facilities. Any facility 
which is not grandfathered is required by law to obtain a permit or qualify for 
a standard exemption before start of construction. Any such facility that is 
operating without preconstruction authorization is in violation of Chapter 116. 
There are approximately 10,000 body shops operating statewide, and the TNRCC is 
aware that many of them do not have a permit or standard exemption. Whenever the 
TNRCC performs an unscheduled investigation at one of these facilities in 
response to a citizen complaint, compliance action is initiated for any Chapter 
116 violation. The TNRCC does not have the staff or resources to attempt to 
track down and take enforcement action against all of the auto body shops across 
the state. Many of these facilities are very small with relatively insignificant 
emissions. Many existing body shops have been authorized to construct under SE 
75. Others have been unable to meet all of the conditions of SE 75 and have not 
applied for a permit due to their lack of knowledge regarding the permit process 
or the need for a permit. The new SE 124 has been developed with input from auto 
body shop owners and operators to provide a mechanism for most of the shops to 
comply with Chapter 116. SE 75 has been revised to specifically exclude auto 
body shops in the future-they must either satisfy SE 124 or else apply for a 
permit. Following the grace period stated in condition (r), compliance action 
will be initiated against existing facilities that still fail to register for SE 
124 or apply for a permit. 
 ASAT, Binks, Chucks, and Benton commented that the 15,000 cfm flow rate 
requirement for spray booths is not reasonable. Spray booth equipment 
manufacturers produce units designed for flow rates in the range of 10,000 to 
12,000 cfm. It would be costly and impractical to attempt to modify existing 
booths to generate the additional flow capacity. Also, the benefits of such a 
move is questionable, as existing booth designs appear to perform efficiently in 
capturing and removing paint fumes. 
 The staff agrees with this assessment and has revised the flow rate 
requirements to 10,000 cfm. 
 Fort Worth commented that the exemption should not be made retroactive to cover 
all facilities. Many existing facilities, especially small shops, will be unable 
to comply with the distance limitations and ventilation requirements. 
 The exemption contains different emission control requirements depending on the 
capacity of the shop. Therefore, smaller shops which would have fewer capital 
resources, are allowed to operate with less controls. Also, the smaller capacity 
shops would generate lower emissions just by the fact that the use of coatings 
is less. The staff believes that existing shops will have sufficient time to 
implement the control requirements. 
 Harris County stated that facilities qualifying under condition (b) should also 
be required to meet the requirements under (c). Harris County requested 
clarification of the meaning of no visible emissions in (d). 
 The staff supports the recommendation of including good housekeeping 
requirements from condition (c) for sources exempted under condition (b). 
 No visible emissions is a qualitative evaluation of opacity rather than a 
quantitative evaluation with a specified percent opacity based on a number of 
readings over a time period. In other words, no visible emissions is based on an 
instantaneous observance of any emissions. 
 Chuck was concerned about the distance limitation. Chuck requested that 
condition (l) be revised by eliminating the "or other structure" phrase with 
regard to how close a body shop may be located to its neighbors since it is too 
restrictive. 
 The staff agrees that the wording as proposed is too restrictive and has made 
the distance restriction apply only to specified receptors. 
 Dallas suggested several changes to the exemption. Subsection (b) should set 
the limit at one pint per hour rather than 1/2 pint. Dallas questioned the time 
frame for the nine square foot limitation in subsection (f). A carbon adsorption 
system should not be required in subsection (f)(2) for small facilities when it 
is not required for larger facilities. Subsection (h) should allow electrostatic 
spray guns if usage is less than one pint per hour. Dallas requested 
clarification as to whether electric heaters are allowed in subsection (j). 
Condition (k)(3) may be too restrictive for compliance by existing facilities. 
The list of coating categories in condition (o) should be better defined. 
 The staff agrees that the options for low usage facilities should be somewhat 
broader. A second category which specifies a maximum of two gallons per week 
will be added to condition (b) to provide more flexibility. 
 The time frame for compliance with all of the conditions of this exemption will 
be listed in condition (r). 
 A carbon adsorption system is not specifically required in condition (f). The 
condition states that IF one is used it shall be maintained properly. 
 The staff does not support the change to condition (h) for the use of 
electrostatic application equipment. The exemption as written allows for the use 
of electrostatic spray equipment regardless of the hourly use rate with a 
minimal demonstration of transfer efficiency. 
 Language has been added to condition (j) to clarify that electric heaters are 
not prohibited. 
 Condition (k)(3) was included in the proposed exemption to protect the public 
in hilly terrain from adverse health effects, since the stack height 
requirements were based on dispersion models run using simple terrain. Shops 
that cannot use the proposed exemption need to pass through a permit review and 
more detailed modeling to insure that public health is protected. 
 The coating categories used in condition (o) are based on the definitions found 
in Chapter 115 for auto refinish products. The staff believes that no further 
definition is necessary. 
 GHASP suggested several changes to the proposed exemption: condition (c) should 
also require those liquids to be stored in covered containers; condition (f)(2) 
should require covering or enclosure to avoid degassing from the activated 
carbon; each coating category in condition (o) should specify the units; a five-
year recordkeeping period should be required in condition (p) to coincide with 
the five-year compliance history requirements. 
 The staff supports the proposal to require covered containers for liquid waste 
in condition (c). 
 Covering or enclosing the activated carbon referenced in (f)(2) is impractical, 
since it is in the form of carbon panels which are in the exhaust duct of the 
preparation stations. The staff does not support this change. 
 The units for each coating category in condition (o) are gallons per month. 
 The staff is opposed to the five-year recordkeeping requirement. See the 
response to the same comment by GHASP regarding SE 75. 
 The comments regarding sec.116.311, concerning Permit Renewal Applications, are 
as follows. 
 Exxon requested an explanation in the preamble for the meaning of the phrase 
"for cause" in the new sec.116.311(c)(3). 
 The use of the term "for cause" in the proposed rule echoes the TCAA, 
sec.382.055(a)(3). While it is not possible, or necessary, to identify all 
possible situations in which the TNRCC might limit a permit's term, we provide 
the following generic situations to illustrate our understanding of the 
legislative intent. First, the TNRCC might be issuing a permit timed so that a 
major regulatory development (promulgation of an EPA rule that will affect the 
facility or development of a new TNRCC policy on certain processes, for example) 
is scheduled to occur before the expiration of the usual permit term. Second, a 
particular facility may have a negative compliance history which suggests that 
the operator's maintenance efforts are not acceptable. In that case, a shorter 
permit term could provide the TNRCC a mechanism to review maintenance efforts in 
addition to standard enforcement options. In addition, certain types of process 
equipment may be more prone to technical performance degradation, such as 
equipment which operates at high temperatures or pressures. 
 Amoco Oil commented that compliance history should be used as a basis to 
determine whether existing emission controls are acceptable given the age of the 
facility. No additional controls should be required at renewal if compliance 
history and impacts are acceptable. 
 Section 116.311(a)(4) contains the requirement that in order to be granted a 
permit renewal the facility must use "that control technology determined by the 
Executive Director to be economically reasonable and technically practicable 
considering the age of the facility and the impact of its emissions on the 
surrounding area." Although not requiring BACT, this paragraph does require a 
review of control technology to evaluate whether it is reasonable considering 
the age of the facility and the impact of its emissions. In those limited cases 
where additional controls have been required at a facility during permit 
renewal, the requirement to add the controls was either because the impacts from 
the emissions were not acceptable, or because the staff determined that the 
additional controls were reasonable with consideration given to the age of the 
facility. 
 Fort Worth commented that the sentence in sec.116.311(b) that is proposed for 
deletion should be retained. A facility that is out of compliance should not be 
granted a permit. 
 The proposed changes resulted from instructions to the staff from the former 
Texas Air Control Board (TACB) at the August 23, 1993, Board meeting to revise 
the compliance history requirements for renewals. A special Permits Workshop was 
conducted on July 26, 1993, to resolve concerns over the compliance history 
requirements for permit renewals that were raised at the July 16, 1993, Board 
meeting. The proposed language resulted from that workshop. 
 The new language proposed to be added to this section still contains provisions 
for denial of a permit renewal. The new language is more specific in stating the 
basis for denial. 
 Dallas expressed strong opposition to the proposed language in sec.116.311(b) 
as being very nebulous. Dallas and GHASP commented that there are too many 
undefined terms that will complicate the enforcement process. GHASP is also 
opposed to the ten-year renewal cycle in subsection (c) and favors a five-year 
renewal. 
 As stated previously in the response to Fort Worth's comment, the changes to 
this section resulted from a special Permits Workshop that was ordered by the 
TACB. A lot of the terms used in enforcement are legal terms. Since compliance 
action typically involves lawyers, these terms are generally understood by the 
parties involved in the action. Writing definitions could severely limit the 
ability of the TNRCC to resolve some of the enforcement matters, which can 
become very complex and diverse. Some violations are very serious in nature and 
others are not, so flexibility is needed to deal with the variety of situations 
that occur. The staff favors retaining the proposed language. 
 In response to the comment by GHASP regarding the ten-year renewal cycle, this 
is an existing statutory requirement. The proposed rule change will merely adopt 
rule language that is consistent with the statute. 
 The comments regarding sec.116.610, concerning Applicability, are as follows. 
 Exxon commented that subsections (a)(1)-(5), (c), (d), (e), (f), and (g) in 
sec.116.610 appear to be general conditions that should be located in a new 
section titled "General Conditions" rather than part of the applicability 
section. 
 The staff agrees that most of the items in sec.116.610 do not relate to 
applicability, but should be considered conditions for obtaining a standard 
permit. However, the Texas Register does not allow a new section number to be 
adopted without being proposed. Therefore,  sec.116.610 will be retitled 
"Applicability and General Conditions" to provide some clarification. Creation 
of a new section to contain the general conditions will be considered in future 
rulemaking. 
 Exxon, Brown, and Exxon Chem commented that sec.116.610(a)(1) should be revised 
by deleting the words "project which results in a" to clarify that the 
applicability is to the emissions increase and not the project itself. Exxon, 
Brown, and TCC suggested that this subsection should be moved to sec.116.617(2) 
so that increases of toxic emissions required to comply with SE 106 and SE 118 
will only apply to voluntary emission reduction projects. 
 The TNRCC does not permit emissions, it permits facilities and physical or 
operational changes to facilities. The applicability of this rule is to the 
project, meaning the facility or change to the facility as outlined in sec.116. 
610(a), not the emissions increase. The staff believes that there should be some 
protection of the environment against increases of toxic emissions from all 
standard permits. In lieu of evaluating every possible scenario prior to 
proposing a standard permit, the staff has elected to include this requirement 
as a general condition applicable to both standard permits. Staff also realizes 
that there may be specific situations where this requirement may not be 
necessary. Staff has agreed to consider this in future rulemaking. Two possible 
standard permits which staff has agreed to consider are for CFC substitutions 
and changes required by the federal Title 3 maximum achievable control 
technology standards. 
 Exxon Chem suggested adding a phrase, for clarification, at the end of 
sec.116.610(a)(4) which reads "in order to prevent increased emissions at a 
facility of a particular chemical of concern." 
 The staff believes that the addition of this phrase would imply that if there 
is no increase in emissions of the particular pollutant in question, a standard 
permit may be claimed even though an existing NSR permit specifically prohibits 
a standard permit. If a permit contains such an exclusion, it is generally to 
flag a potential impacts concern for future changes at the facility. The staff 
is opposed to this suggested language. 
 Exxon and Brown commented that sec.116.610(b) should replace the closing phrase 
"of this rule" with the phrase "of sec.116.110 of this title" rather than "this 
Subchapter F." 
 The staff agrees that the language is clearer if sec.116.110 is specified and 
will make this change. 
 Brown, TCC, and DuPont suggested that the meaning of sec.116.610(e) should be 
clarified. Brown suggested adding the phrase "as compared to the representations 
in the registration" at the end of the second to last sentence. This will 
establish a benchmark for determining whether or not a change in representations 
will cause an emissions increase. 
 Staff agrees to the suggested change with minor rewording as follows: "as 
compared to the representations in the original registration or any previous 
notification of a change in representations." 
 GHASP had several comments about sec.116.610. Standard permits do not provide 
for case-by-case BACT review. No changes in representations should be allowed in 
subsection (e) without review by the TNRCC and public input. Recordkeeping 
requirements in subsection (f) should be for five years to track compliance 
history requirements. 
 It is true that standard permits will not include a case-by-case BACT review 
for each permit. The purpose of the first two standard permits is to simplify 
and accelerate the permit review process for pollution reduction projects. These 
two standard permits contain specific conditions which limit applicability. 
Future standard permits may target specific industries or types of facilities 
and will also contain specific conditions and requirements that the applicant 
will have to meet in order to qualify for the standard permit. These future 
standard permits may include the requirement that the facilities utilize best 
available control technology. The public will have an opportunity for comment 
during the rulemaking process. 
 The changes allowed under sec.116.610(e) are very limited. Section 116.610(e) 
does not prohibit changes in representations provided that there is no increase 
in emissions, change in the character of emissions, or change in emission 
controls. It does prohibit changes in construction plans, operating procedures, 
and maximum emission rates if such changes exceed or conflict with conditions of 
the standard permit. 
 The staff is opposed to changing subsection (f) to a five-year recordkeeping 
requirement. See the response to the same comment by GHASP regarding SE 75. 
 Dallas commented that the proposed wording of sec.116.610(f) would allow an 
applicant to discard all records, including the permit and application. 
Operational records should be maintained for a two-year rolling average and all 
other records should be retained permanently. 
 Unlike a preconstruction permit, there is no document or permit certificate 
issued on a standard permit. The applicant is required to register for and 
document that it complies with the conditions of the permit as stated in the 
rule. The TNRCC retains copies of the registrations both in Austin and the 
regional offices. The rule language has also been changed to require the 
applicant to send a copy of the registration to all local programs with 
jurisdiction. With regard to operating records, it is unreasonable to require a 
facility to retain these records forever. The staff does agree to revise the 
language in sec.116.610(f) to clarify that the recordkeeping should be on a two-
year "rolling" average. 
 The comments regarding sec.116.611, concerning Registration Requirements, are 
as follows. 
 Exxon suggested a revision to sec.116.611(a)(2) to eliminate the 45-day waiting 
period and allow construction to commence upon mailing of the standard permit 
registration. Alternatively, it suggested that the TNRCC tie the 45 days to 
beginning of actual construction, which is less nebulous than commencement of 
construction. 
 The wording used in sec.116.611(a)(2) is "commencement of the project." This 
wording was chosen because there may be projects for which a standard permit is 
used which do not involve "construction;" therefore, the staff does not agree 
that the wording should be changed. The staff also believes that for the type of 
projects contemplated by standard permits 1 and 2, some opportunity for prior 
review by the staff is necessary. During internal discussions regarding possible 
future standard permits, the staff has discussed the possibility of not 
requiring the 45-day period for prior review of certain of these future standard 
permits. The staff will consider whether to change this requirement from a 
general condition to a condition specific to only certain standard permits in 
future rulemaking. 
 Harris County commented that the registration required in sec.116.611(a) should 
also be sent to any affected local program. Pennzoil suggested sending the 
registration only to the central office. 
 The staff agrees that the local programs should be kept apprised of the 
existence of standard permits to avoid unwarranted enforcement actions. The rule 
language has been revised to include this provision. The staff does not agree 
that the regional offices should be excluded from notification. 
 GHASP is opposed to sec.116.611 on the basis that facilities may be constructed 
without public input, hearings, or TNRCC approval. 
 GHASP repeated its general opposition to standard permits in the general 
comments. The staff response is the same as it was to the general comment. 
 The comments regarding sec.116.614, concerning Standard Permit Fees, are as 
follows. 
 DuPont, TCC, and Brown suggested revising sec.116.614 by deleting the words 
"applies for" and substituting "claims" to eliminate the presumption of 
preapproval requirements. 
 The staff agrees with this comment and has made the suggested change. 
 In response to a solicitation for comments regarding the proposed fee structure 
in the preamble, Brown, Exxon, and Exxon Chem have all stated that there should 
be no fee for standard permits. The argument is that the level of staff review 
is comparable to standard exemptions which assess no fee. If the staff decides 
to include the fee, it should be a minimal flat fee. 
 Seven commenters responded to the permit fee issue by suggesting a minimum fee. 
Amoco Oil, TCC, Fort Worth, TU, and DuPont suggested a minimum flat fee without 
specifying what the amount should be. Phillips suggested a flat fee of $200 and 
HL&P suggested a flat fee of less than $450. Justifications for the flat fee 
included the comments that fewer agency resources are needed to review standard 
permits versus regular permits, and capital based fees are inappropriate because 
no BACT or impacts review is performed. 
 The staff appreciates the comments received in response to this issue. Staff 
agrees that the amount of agency resources needed to review standard permits is 
less than regular permits and therefore is changing the fee to a flat fee of 
$450. 
 The comments regarding sec.116.617, concerning Standard Permits List, are as 
follows. 
 EPA Region 6 responded to the TNRCC solicitation of comments in the proposed 
rule preamble regarding future netting calculations for emission control 
projects that qualify for a standard permit. EPA Region 6 supported the proposal 
to defer netting calculations for the facilities covered by the standard permit, 
but to include those emission increases and decreases associated with the 
standard permit in any future netting demonstration. Subsequent discussions with 
industry and EPA Office of Air Quality Planning and Standards caused the staff 
to revise the netting requirements for projects required by rule as indicated in 
the response to Phillips' previous general comment. EPA commented on the 
provisions of sec.116.611, which allow a facility to commence construction upon 
written notification from the TNRCC, or 45 days after receipt of the 
registration, whichever occurs first. The public record should address any 
procedures that the TNRCC will implement to ensure timely and effective review 
of the standard permit registrations. EPA also commented that 
sec.116.617(1)(D)(ii)(I) and (2)(D)(ii)(I) should include emissions of 
pollutants which are precursors to the primary pollutant. 
 Staff has every intention of reviewing all of the standard permit registrations 
within the 45-day time frame. If the 45-day time period expires without agency 
review, the applicant is free to begin the project. However, this does not mean 
that the agency agrees that the applicant meets the conditions of the standard 
permit. The agency would still be free to take enforcement action against the 
applicant if it is later determined that the project began without the applicant 
meeting the conditions of the standard permit. This is similar to the current 
situation with standard exemptions, except that the staff believes that because 
of the potential for a great variety of project types under the first two 
proposed standard permits a 45-day review period is necessary. 
 Staff agrees with EPA's comment concerning precursors and has made the 
suggested changes. 
 Exxon commented that, in sec.116.617, any of the conditions in the two standard 
permits that are considered to be general conditions that will be used in other 
standard permits, should be moved to the general condition list. Also, it 
suggested that the TNRCC revise the wording in sec.116.617(1) by substituting 
"to comply" instead of "required by" and substitute "requirement" for "rule, 
standard, or regulation." 
 The conditions in standard permits 1 and 2 are only applicable to emission 
reduction projects. As more standard permits are added to the list in the 
future, each will have specific conditions attached, but not necessarily any of 
the conditions from standard permits 1 and 2. No action is necessary in regard 
to this comment. 
 The staff does not see a need to revise the wording in  sec.116.617(1). 
 Exxon, Brown, Amoco Chem, Amoco Oil, Eastman, and HL&P commented that the 
prohibition against production increases in sec.116.617(1)(A) and (2)(A) should 
be removed. The suggestions ranged from deleting both subparagraphs entirely, 
deleting the second sentence from each subparagraph, or revising the 
subparagraphs to allow production increases that occur solely as a result of 
implementing the control measures. There was a general consensus that industry 
should not be penalized for production increases that can be achieved with 
emission reductions. Also, according to HL&P, there is no mechanism in Chapter 
116 for authorizing production increases that have no related emission 
increases. 
 In general, the staff does not agree with these comments. The NSR program staff 
have historically looked at whether an increase in production will result in an 
increase in emissions prior to the implementation of any additional control. The 
primary reason for this is that if we were to look at whether there has been an 
increase in emissions (a modification) only after the addition of controls, it 
would result in facilities installing "just enough control technology" to get 
out of review instead of BACT as is required by the TCAA. This would in effect 
extend the life of the facility without ever achieving the intent of the TCAA of 
replacing outdated controls with the "best available controls." In addition, 
staff disagrees with Brown's comment that the standard permit will authorize the 
increase in emissions, but not the increase in production. As currently written, 
the language will authorize an increase in emissions subject to certain 
limitations. However, the increase in emissions will only be that portion 
coincidental with the pollution reduction project. It is not our intent to 
authorize any additional increases in emissions which might result from an 
increase in capacity. However, staff has agreed to change the language in 
sec.116.617(1)(A) to allow production increases that occur solely as a result of 
implementing required controls provided that the increased production does not 
result in an exceedance of any current emission limit. The emissions increase 
resulting from the increase in production must also be less than the decrease 
resulting from the installation of control equipment or implementation of a 
control technique. 
 Exxon suggested clarifying sec.116.617(1)(D)(i) and (2)(D)(i) by moving the 
phrase "considering the emissions reductions that will result from the project" 
out of paragraphs (1)(D)(i)(I) and (2)(D)(i)(I) and inserting it in clause (i) 
in each case so that it will apply to both nonattainment and PSD cases. Also, 
add the word "net" before "emissions increase" in clause (i). 
 Section 116.617(1)(D)(i)(I) and (2)(D)(i)(I) already apply to both PSD and 
nonattainment cases. The language in sec.116.617(1)(D) and (E) and (2)(D) and 
(E) was adopted from the so-called "WEPCO exclusion" contained in 40 Code of 
Federal Regulations 51.165 and 52.21. The staff does not see the need to change 
this language. Our procedure for netting is outlined in the rule and the 
response to Phillips' general comment above. 
 Pennzoil suggested allowing de minimis increases of one ton per year under the 
two standard permits in sec.116.617. This will allow operational flexibility and 
encourage voluntary reduction projects. 
 As long as emissions increases of criteria pollutants are less than significant 
(these levels are much higher than one ton per year (TPY)), they are allowed 
under the standard permit without additional review. Emission increases of non-
criteria pollutants must meet the requirements of either SE 106(c) or (d) or SE 
118(c). In many cases, these limits are also greater than one TPY. The staff has 
retained the proposed language, because it provides more flexibility than the 
suggested one TPY. 
 Commenters from Exxon, Brown, TCC, Phillips, Eastman, HL&P, and DuPont 
suggested revising sec.116.617(2) to allow implementation of control techniques 
on voluntary emission reduction projects. Brown stated that subparagraphs (A) 
and (C) already protect against construction of projects where the agency 
believes permitting should be required. TCC commented that the TNRCC already has 
adequate authority to take action against companies that improperly represent a 
project as a voluntary reduction. In general, the commenters believe that 
disallowing control techniques as an option, will discourage many companies from 
making voluntary emission reductions. 
 The staff believes that the term "control techniques" should be better defined 
before allowing the use of standard permits to authorize these types of projects 
in "voluntary" situations. The use of control techniques in standard permit 1 is 
appropriate, since the scope of these projects is limited to those required by 
the regulations. Unless this term is narrowed down, there may be opportunities 
for projects which should be required to be reviewed under sec.116.110 to slip 
through by attaching themselves to the term "voluntary pollution control 
technique." The staff has determined that control techniques should remain 
excluded from standard permit 2. After the rule is effective and the staff has 
an opportunity to review some standard permit applications, this issue may be 
revisited. 
 Amoco Chem commented that sec.116.617(1)(D) and (2)(D) should allow credit for 
emission reductions in voluntary projects. 
 Section 116.617(1)(D) does not address voluntary projects. Section 116. 
617(2)(D) does not prohibit credit for reductions obtained by voluntary 
projects. What this subparagraph does, along with subparagraph (E), is exclude 
these projects from the definition of major modification. Therefore, no netting 
is required for these specific projects. However, as stated in response to 
Phillips' general comment, any increases and decreases associated with these 
projects are still creditable and must be included in the netting calculations 
for future projects, as long as the reductions are not excluded by other rule 
requirements. 
 Exxon and Brown suggested revising sec.116.617(1)(D)(iii) to allow emission 
increases that are associated with state or federally required emission 
decreases to be excluded from netting and to take credit for all decreases that 
are not state or federally required. TCC went further in stating that standard 
permits should not be included in netting calculations at all. Netting is a NSR 
concept and not part of a mandated emission reduction project. Section 
116.617(1)(D)(iii) should be rewritten to eliminate all netting considerations. 
Voluntary reductions under sec.116.617(2)(D)(iii) should also be excluded from 
netting unless the source chooses to take credit for the reductions, in which 
case, the increases will also be netted. 
 See the response to general comments by Phillips. In regard to the last 
sentence of this comment, the staff believes that all sources should be treated 
the same with regard to whether increases and decreases from voluntary projects 
are included in the netting calculations. Tracking of emissions credits is 
complicated enough without having to keep track of which projects an individual 
source decides should and should not be included in the netting exercise. 
 TCC, Brown and DuPont suggested revising the last sentence in sec.116.617(1) 
(A) and (2)(A) to cover standard exemptions by adding "or qualifies for" before 
"any necessary authorization." 
 The staff agrees with this comment and has made the suggested change. 
 GHASP objected to allowing installation of control equipment without the TNRCC 
approval in sec.116.617. GHASP repeated its general opposition to standard 
permits in the General Comments. 
 The staff response is the same as it was to the general comment. 
   
  Subchapter B. New Source Review Permits 
 
  Permit Application 
 
  30 TAC sec.116.110, sec.116.115 
 
  The amendments are adopted under the Texas Health and Safety Code (Vernon 
1990), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC 
with the authority to adopt rules consistent with the policy and proposes of the 
TCAA. 
 
  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 April 6, 1994. 
 TRD-9439069 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: May 4, 1994 
 Proposal publication date: November 9, 1993 
 For further information, please call: (512) 239-0615 
         
           
  Subchapter C. Permit Exemptions 
 
  30 TAC sec.116.211 
 
  The amendment is adopted under the Texas Health and Safety Code (Vernon 1990), 
the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the 
authority to adopt rules consistent with the policy and proposes of the TCAA. 
 
 
  sec.116.211. Standard Exemption List. 
 
  (a) Pursuant to the Texas Clean Air Act (TCAA), sec.382.057, the facilities or 
types of facilities listed in the Standard Exemption List, dated April 6, 1994, 
as filed in the Secretary of State's Office and herein adopted by reference, are 
exempt from the permit requirements of the TCAA, sec.382.0518, because such 
facilities will not make a significant contribution of air contaminants to the 
atmosphere. A facility shall meet the following conditions to be exempt from 
permit requirements: 
 
  (1) (No change.) 
   
  (2) Total actual emissions authorized under standard exemption from the 
proposed facility which is located in a nonattainment area shall not exceed: 
 
  (A)-(C) (No change.) 
   
  (D) in an ozone nonattainment area, the applicable major modification 
threshold of NO [sub]x in Table 1 of the definition of "major modification" in 
sec.116.12 of this title. 
     
  (3)-(6) (No change.) 
     
  (b) Notwithstanding the provisions of this section, any facility which 
constitutes a new major source, or any modification which constitutes a major 
modification under nonattainment review or Prevention of Significant 
Deterioration review as amended by the FCAA Amendments of 1990, and regulations 
promulgated thereunder shall be subject to the requirements of sec.116.110 of 
this title (relating to Applicability) rather than this section. 
   
  (c)-(f) (No change.) 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on April 6, 1994. 
 TRD-9439066 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: May 4, 1994 
 Proposal publication date: November 9, 1993 
 For further information, please call: (512) 239-0615 
         
             
  Subchapter D. Permit Renewals 
 
  30 TAC sec.116.311 
 
  The amendment is adopted under the Texas Health and Safety Code (Vernon 1990), 
the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the 
authority to adopt rules consistent with the policy and proposes of the TCAA. 
 
  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 April 6, 1994. 
 TRD-9439067 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: May 4, 1994 
 Proposal publication date: November 9, 1993 
 For further information, please call: (512) 239-0615 
         
         
  Subchapter F. Standard Permits 
 
  30 TAC sec.sec.116.610, 116.611, 116.614, 116.617 
 
  The new sections are adopted under the Texas Health and Safety Code (Vernon 
1990), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC 
with the authority to adopt rules consistent with the policy and proposes of the 
TCAA. 
 
 
  sec.116.610. Applicability and General Conditions. 
 
  (a)  Pursuant to the Texas Clean Air Act (TCAA), sec.382.051, projects 
involving the types of facilities or physical or operational changes to 
facilities which meet the requirements for a standard permit listed in 
sec.116.617 of this title (relating to Standard Permits List) are hereby 
entitled to the standard permit; provided however, that: 
 
  (1) any project which results in a net increase in emissions of air 
contaminants from the project other that those for which a National Ambient Air 
Quality Standard has been established must meet the emission limitations of 
Standard Exemption 106(c) or (d) or Standard Exemption 118(c); 
   
  (2) construction or operation of the project shall be commenced prior to the 
effective date of a revision to sec.116.617 of this title under which the 
project would no longer meet the requirements for a standard permit; 
   
  (3) the proposed project shall comply with the applicable provisions of the 
Federal Clean Air Act (FCAA), sec.111 (regarding Federal New Source Performance 
Standards) and sec.112 (regarding Hazardous Air Pollutants); 
   
  (4) there are no permits under the same Texas Natural Resource Conservation 
Commission (TNRCC) account number that contain a condition or conditions 
precluding use of a standard permit or standard permits under this subchapter; 
   
  (5) the owner or operator of the facility registers the proposed project in 
accordance with sec.116.611 of this title (relating to Registration 
Requirements). 
     
  (b) Any project which constitutes a new major source, or major modification 
under the new source review requirements of Part C (Prevention of Significant 
Deterioration review) or Part D (nonattainment review) of the FCAA and 
regulations promulgated thereunder shall be subject to the requirements of 
sec.116.110 of this title (relating to Applicability) rather than this 
subchapter. 
   
  (c) No persons shall circumvent by artificial limitations the requirements of 
sec.116. 110 of this title. 
   
  (d) The emission from the facility shall comply with all applicable rules and 
regulations of the TNRCC adopted under the Texas Health and Safety Code, Chapter 
382, and with intent of the Texas Clean Air Act (TCAA), including protection of 
health and property of the public and all emissions control equipment shall be 
maintained in good condition and operated properly during operation of the 
facility. 
   
  (e) All representations with regard to construction plans, operating 
procedures, and maximum emission rates in any registration for a standard permit 
become conditions upon which the facility or changes thereto, shall be 
constructed and operated. It shall be unlawful for any person to vary from such 
representations if the change will affect that person's right to claim a 
standard permit under this section. Any change in conditions such that a person 
is no longer eligible to claim a standard permit under this section requires 
proper authorization under sec.116. 110 of this title. The owner or operator of 
the facility must notify the TNRCC of any other change in conditions which will 
result in a change in the method of control of emissions, a change in the 
character of the emissions, or an increase in the discharge of the various 
emission as compared to the representations in the original registration or any 
previous notification of a change in representations. Notice of changes in 
representations must be received by the TNRCC no later than 30 days after the 
change. 
   
  (f) All records relating to the applicability of and compliance with the terms 
of a standard permit shall be maintained by the permittee for at least a two-
year rolling retention basis, and made available for review by authorized 
representatives of the TNRCC, United States Environmental Protection Agency, or 
local air pollution control agencies. 
   
  (g) All changes authorized by standard permit to a facility previously 
permitted pursuant to sec.116.110 of this title shall be administratively 
incorporated into that facility's permit at such time as the permit is amended 
or renewed. 
 
     
  sec.116.611. Registration Requirements.  Registration for a standard permit 
shall be sent by certified mail, return receipt requested or hand delivered to 
the Texas Natural Resource Conservation Commission (TNRCC) Office of Air 
Quality, the appropriate TNRCC Regional Office, and any local air pollution 
program with jurisdiction, before a standard permit can be claimed. The 
registration shall: 
 
  (1) document compliance with the requirements of this section, including, but 
not limited to: the basis of emission estimates, quantification of all emission 
increases and decreases associated with the project being registered, sufficient 
information as may be necessary to demonstrate that the project will comply with 
sec.116.610(b) of this title (relating to Applicability), information that 
describes efforts to be taken to minimize any collateral emissions increases 
that will result from the project, a description of the project and related 
process, and a description of any equipment being installed; 
   
  (2) be received by the TNRCC no later than 45 days prior to the commencement 
of the project. Work may begin on the project any time upon receipt of written 
notification from the TNRCC that there are no objections to the project or 45 
days after receipt by the TNRCC of the registration for the project, whichever 
occurs first. 
 
     
  sec.116.614. Standard Permit Fees. Any person who claims a standard permit 
shall remit, at the time of registration, a flat fee of $450 for each standard 
permit claimed. All standard permit fees will be remitted in the form of a check 
or money order made payable to the Texas Natural Resource Conservation 
Commission (TNRCC) and delivered with the permit registration to the TNRCC, P.O. 
Box 13087, Austin, Texas 78753. No fees will be refunded. 
 
   
  sec.116.617. Standard Permits List. Pursuant to the Texas Clean Air Act, 
sec.382.051, projects involving the types of facilities or physical or 
operational changes to facilities listed in this section qualify for a standard 
permit subject to the conditions stated in sec.116.610 of this title (relating 
to Applicability and General Conditions). 
 
  (1) Installation of emissions control equipment or implementation of control 
techniques as required by any state or federal rule, standard, or regulation. 
 
  (A)  Installation of the control equipment or implementation of the control 
technique must not result in an increase in the facility's production capacity 
unless the capacity increase occurs solely as a result of the requirement to 
install the control equipment or implement the control technique on existing 
units required to meet applicable emission limitations. The owner or operator 
must obtain or qualify for any necessary authorization pursuant to sec.116.110 
of this title (relating to Applicability) prior to utilizing any production 
capacity increase that: 
 
  (i) results in the exceedance of any emission limit in an existing permit, 
other authorization, or grandfathered baseline; or 
   
  (ii) does not result solely from the installation of control equipment or 
implementation of control techniques; or 
   
  (iii)  results in an emissions increase which exceeds the emission reduction 
due to the installation of control equipment or implementation of control 
techniques. 
     
  (B) Any emission increase of an air contaminant must occur solely as a result 
of the requirement to install an emission control device or implement a control 
technique. 
   
  (C) Installation of emission control equipment or implementation of a control 
technique shall not include the installation of a new production facility, 
reconstruction of a production facility as defined in 40 Code of Federal 
Regulations (CFR) 60.15(b)(1) and (c) , or complete replacement of an existing 
production facility. 
   
  (D) If the project, without consideration of any other increases or decreases 
not related to the project, will result in a significant net increase in 
emissions of any criteria pollutant, a person claiming this standard permit 
shall submit, with the registration, information sufficient to demonstrate that 
the increase will meet the conditions of clause (i) of this subparagraph. 
 
  (i)  The emissions increase shall not: 
 
  (I) considering the emission reductions that will result from this project, 
cause or contribute to a violation of any national ambient air quality standard; 
or 
   
  (II)  cause or contribute to a violation of any Prevention of Significant 
Deterioration (PSD) increment; or 
   
  (III) cause or contribute to a violation of any PSD visibility limitation. 
     
  (ii) For purposes of this section, "significant net increase" means those 
emissions increases resulting solely from the installation of control equipment 
or implementation of control techniques that are equal to or greater than 
subclauses (I) or (II) of this clause: 
 
  (I) the major modification threshold listed in sec.116. 12 of this title 
(relating to Nonattainment Review Definitions), Table I, for pollutants for 
which the area is designated as nonattainment, or for precursors to these 
pollutants; 
   
  (II) significant as defined in Title 40 CFR sec.52.21(b)(23) for pollutants 
for which the area is designated attainment or unclassifiable, or for precursors 
to these pollutants. 
     
  (iii) Netting is not required when determining whether this demonstration must 
be made for the proposed project, and the increases and decreases resulting from 
this project should not be included in any future netting calculation. 
     
  (E) For purposes of compliance with the PSD and nonattainment new source 
review provisions of Part C and Part D of the Federal Clean Air Act (FCAA) and 
regulations promulgated thereunder, any increase that is less than significant, 
or satisfies the requirements of subparagraph (D) of this paragraph shall not 
constitute a physical change or a change in the method of operation. For 
purposes of compliance with the Standards of Performance for New Stationary 
Sources regulations promulgated by the United States Environmental Protection 
Agency (EPA) at 40 CFR 60.14, an increase that satisfies the requirements of 
subparagraph (D) of this paragraph shall satisfy the requirements of 40 CFR 
60.14(e)(5). 
     
  (2) Voluntary installation of emissions control equipment. 
 
  (A) Installation of the control equipment must not result in an increase in 
the facility's production capacity unless the capacity increase occurs solely as 
a result of the installation of control equipment on existing units. Any 
production capacity increase resulting from the installation of controls shall 
not be utilized until the owner or operator obtains or qualifies for any 
necessary authorization pursuant to sec.116.110 of this title (relating to 
Applicability). 
   
  (B)  Any emission increase of an air contaminant must occur solely as a result 
of installing an emission control device. 
   
  (C) Installation of emission control equipment shall not include the 
installation of a new production facility, reconstruction of a production 
facility as defined in 40 CFR 60.15(b)(1) and (c), or complete replacement of an 
existing production facility. 
   
  (D) If the project, without consideration of any other increases or decreases 
not related to the project, will result in a significant net increase in 
emissions of any criteria pollutant, a person claiming this standard permit 
shall submit, with the registration, information sufficient to demonstrate that 
the increase will meet the conditions of clause (i) of this subparagraph. 
 
  (i) The emissions increase shall not: 
 
  (I) considering the emission reductions that will result from this project, 
cause or contribute to a violation of any national ambient air quality standard; 
or 
   
  (II) cause or contribute to a violation of any PSD increment; or 
   
  (III) cause or contribute to a violation of any PSD visibility limitation. 
     
  (ii) For purposes of this section, "significant net increase" means those 
emissions increases resulting solely from the installation of control equipment 
that are equal to or greater than subclause (I) or (II) of this clause: 
 
  (I) the major modification threshold listed in sec.116.12 of this title, Table 
I, for pollutants for which the area is designated as nonattainment, or for 
precursors to these pollutants; 
   
  (II) significant as defined in Title 40 CFR sec.52.21(b)(23) for pollutants 
for which the area is designated attainment or unclassifiable, or for precursors 
to these pollutants. 
     
  (iii) Although netting is not required when determining whether this 
demonstration must be made for the proposed project, the increases and decreases 
resulting from this project must be included in any future netting calculation 
if they are determined to be otherwise creditable. 
     
  (E) For purposes of compliance with the PSD and nonattainment new source 
review provisions of the FCAA, Part C and Part D and regulations promulgated 
thereunder, any increase that is less than significant, or satisfies the 
requirements of subparagraph (D) of this paragraph shall not constitute a 
physical change or a change in the method of operation. For purposes of 
compliance with the Standards of Performance for New Stationary Sources 
regulations promulgated by the United States Environmental Protection Agency at 
40 CFR 60.14, an increase that satisfies the requirements of subparagraph (D) of 
this paragraph shall satisfy the requirements of 40 CFR 60. 14(e)(5). 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on April 6, 1994. 
 TRD-9439068 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: May 4, 1994 
 Proposal publication date: November 9, 1993 
 For further information, please call: (512) 239-0615 
         
                 Chapter 330. Municipal Solid Waste 
  
  Subchapter P. Fees and Reporting 
 
  30 TAC sec.sec.330.601-330.604, 330.621, 330.641 
 
  The Texas Natural Conservation Commission (TNRCC) adopts amendments to 
sec.sec.330.601-330.603, 330.621, and 330.641, and new sec.330.604, concerning 
fees and reports. Sections 330.601-330.603 and new sec.330.604 are adopted with 
changes to the proposed text as published in the October 15, 1993, issue of the  
Texas Register (18 TexReg 7130). Section 330.621 and sec.330.641 are adopted 
without changes and will not be republished. 
 The adopted amendments and the new section implement the new provisions of the 
Solid Waste Disposal Act, Chapter 361, Health and Safety Code, promulgated by 
the 73rd Legislature in Senate Bill 1051 (SB 1051) and clarify certain operating 
procedures, related primarily to solid waste fees, measurement options, and 
reporting requirements. 
 The amended rules and the new rule provide new procedures and rates for 
calculating solid waste disposal fees and criteria for providing refunds to 
facilities that compost source-separated yard waste. The amended rules also 
clarify reporting requirements and add interest penalties for late payment of 
fees. 
 As a result of the public comment process, 49 specific comments and several 
general comments were received from five organizations, corporations, and 
political subdivisions. 
 The commission received comments from North Central Texas Council of 
Governments; City of Dallas; City of Plano; Texas Chapter, National Solid Wastes 
Management Association; and Laidlaw Waste Systems, Inc. 
 One commenter recommended that the following be added at the end of sec.330. 
601(b)(1): "The commission shall credit any fee payment due under this 
subsection for any material received and converted to compost or product for 
composting through a composting process. Any compost or product for composting 
that is not used as compost and is deposited in a landfill is not exempt from 
the fee." The statements have been added as they are contained in the Health and 
Safety Code (HSC), sec.361.013(f), as amended by SB 1051. 
 Another comment concerning sec.330.601(b)(1) took exception to the use of the 
definition of "yard waste" as contained in the Health and Safety Code, 
sec.361.421. The commenter expressed concern that with this definition a 
facility operator would be required to inspect loads for oversized material for 
the fee exemption and then put it back in the load to be composted. However, the 
Health and Safety Code, sec.361.0135(e), as added by  sec.1.09 of SB 1051 states 
that: "In this section, 'yard waste' has the meaning assigned by the Health and 
Safety Code, sec.361.421." Therefore, the commission will retain the original 
language. Nonsource-separated yard waste, or yard waste that contains material 
larger than six inches in diameter, is not exempt from a fee. The operator 
therefore has the responsibility in accordance with sec.330.602(b) to assess a 
fee of one half of the rate assessed for waste destined for landfilling on the 
entire load if all of the waste is to be composted. The hauler should be 
forewarned that he will be assessed a fee if unallowable waste is discovered 
upon unloading unless the operator chooses to segregate the wastes at the gate 
and assess the one-half disposal fee rate on only that waste that exceeds six 
inches in diameter. Haulers and customers must be educated on the need for 
source separation. 
 Also with respect to sec.330.601(b)(1), two commenters were concerned that wood 
waste greater than six inches in diameter was excluded from the term "source-
separated yard waste" and hence not exempt from the fee, although when such wood 
is regularly collected and chipped into mulch and then composted there is no 
distinction in the process or the end product. The commission appreciates the 
concern; however, the statute is specific in exempting only source-separated 
yard waste from the fee. 
 Also with respect to sec.330.601(b)(1), two commenters were concerned that the 
collection of bulk yard waste inevitably results in some contamination level of 
other waste items, including plastic bags in which leaves and brush are placed. 
They noted, however, that these contaminants are removed during the composting 
operation. The commission recognizes that some amounts of contaminants are 
always a possibility in source-separated materials and will make allowances for 
minor amounts. 
 Again, also with respect to sec.330.601(b)(1), another commenter recommended 
that there be no limit to the diameter of vegetative material if the intent of 
waste reduction is achieved since modern grinding equipment can handle large 
diameter wastes. The diameter of the vegetative waste is specified in the 
statutory definition of yard waste and the intent is for beneficial use of the 
composted product, not for waste reduction. For that reason, any compost or 
product for composting that is not used as compost and is deposited in a 
landfill is not exempt from the fee. Materials larger than six inches in 
diameter may be added to the composting operation after grinding but they are 
not exempt from a fee. In accordance with the Health and Safety Code, sec.361. 
013(a); and sec.330.602(b) of this title (relating to Fees), such waste received 
at a shredding and composting facility will pay one half of the fee set for 
waste received at a landfill for disposal. 
 With respect to sec.330.601(b)(4), two comments were received recommending that 
the provisions requiring the commission to assess interest penalties be made 
flexible by using the term "may" instead of "shall" to be consistent with the 
use in  sec.330.602 and sec.330.603. One of the commenters also suggested that a 
flat penalty be set rather than a sliding scale. The commission believes that 
the use of "shall" and a sliding scale is necessary to conform to the language 
in House Bill 2605, 73rd Legislature, which requires the commission to establish 
uniform and consistent requirements for the assessment of penalties and interest 
for late payment of fees owed the state under the commission's jurisdiction with 
the provision that penalties and interest not exceed rates established under Tax 
Code, sec.111.060 and sec.111.061. Therefore, the commission will retain the 
language as proposed. However, the commission will take into consideration any 
extenuating circumstances in determining whether or not to assess penalties. The 
use of "may" in other sections of the regulations in connection with the 
assessment of penalties refers to the option available to the commission that it 
may assess administrative penalties in addition to interest penalties. 
 With respect to sec.330.602(a)(2)(A) and sec.330.602(b)(2)(A), two comments 
were received on each, pointing out a conflict with sec.330.602(a) concerning 
the recommended method of measuring waste. The commission recognizes the 
conflicts and the sentences in question in sec.330.602(a)(2)(A) and (b)(2)(A) 
have been replaced by "The recommended method for measuring and reporting waste 
received for disposal is in short tons." This will make the three compatible. 
These required changes had been overlooked in the proposal when four similar 
changes were made as a result of changes in statutory language. 
 With respect to sec.330.602(c), two commenters recommended that recycling 
activities, beneficial use land application, and waste-to-energy incineration be 
added as example of facilities and processes not for disposal which are not 
subject to a fee. Processing of solid waste for fuel or recycling (recycling 
activities) was deleted in the proposal from sec.330.602(b) as a process not for 
disposal. Only the nonrecyclable waste from the processing facility directed to 
a disposal site is subject to a fee. The Health and Safety Code, sec.361.013, 
does not exempt beneficial use land application or waste-to-energy incinerators 
from a fee, but sets the fee at one half of the fee for disposal at a landfill. 
 325.603 was erroneously used instead of sec.330.603 in several places. The 
corrections have been made. 
 With respect to sec.330.603(a)(2)(B), two commenters questioned the need to 
retain the conversion factors since the Legislature deleted "the greater of" 
language for fee calculation. The commission agrees that the conversion factors 
are no longer needed for fee calculations but is retaining them for use in the 
annual summary report. 
 With respect to sec.330.604(a), two commenters suggested that yard waste brush 
mulch, if it has a beneficial use, should qualify as compost and be eligible for 
the compost refund. The commission disagrees because brush mulch does not fall 
within the definition of compost which requires a decomposition process. 
Pursuant to the Health and Safety Code, sec.361.0135, this subsection specifies 
three conditions by which a facility is entitled to a refund: the refunds are 
used to lease or purchase and operate equipment necessary to compost yard waste; 
composting operations are actually performed; and the finished compost material 
produced by the facility is returned to beneficial use. 
 Also, with respect to sec.330.604(a), one commenter recommended that the first 
sentence,since it relates to the fee exemption rather than the composting 
refund, should be added to sec.330.601(b)(1) which pertains to fees. The 
commission agrees that similar language is appropriate in sec.330.601(b)(1) and 
has added it therein but believes the current language should remain in 
sec.330.604(a) for emphasis. The commenter asked what the statutory authority is 
for disallowing the fee exemption for compost when it is used as daily cover. 
The authority is what the commenter had previously asked to be added to 
sec.330.601(b)(1): "Any compost or product for composting that is not used as 
compost and is deposited in a landfill is not exempt from the fee." This is 
contained in the Health and Safety Code, sec.361.013(f), as added by SB 1051. 
The commenter also stated that SB 1051 required the commission to set a fee by 
rule to review composting plans. SB 1051 actually states that the commission may 
set a fee by rule for reviewing a plan. Since this was an optional matter, the 
commission chose not to charge a fee for plan reviews as a further incentive to 
encourage composting operations. 
 Again, with respect to sec.330.604(a), one other commenter recommended that at 
times when the supply of compost exceeds the market demand or a lack of markets 
exists at startup a suggested five-year period be allowed to use compost as 
alternative daily cover until the demand for compost grows to allow proper 
investment depletion. The commission does not object to the use of compost as 
alternative daily cover; however, the statute does not allow for a composting 
refund when the compost is deposited in a landfill. One of the conditions for a 
composting refund in the Health and Safety Code, sec.361.0135, is that the 
compost be returned to beneficial reuse, and the Health and Safety Code, 
sec.361.428(c), as added by SB 1051, states that beneficial reuse does not 
include landfilling or the use of compost as daily landfill cover. An acceptable 
use for compost at a landfill is for final cover as artificial topsoil to 
stimulate vegetative growth. 
 With respect to sec.330.604(b), one commenter was concerned that the proposed 
entitlement to a refund of up to 15% of the fees collected would give the State 
authority to release any amount of funds between zero and 15%, even if all 
conditions were met, and suggested that the wording be changed from "refund of 
up to 15%" to "refund of 15%". However in commenting on  sec.330. 604(d), the 
commenter expressed concern that a simple 15% refund without tying it to the 
amount of yard waste diverted would allow a landfill operator to do a minimal 
amount of composting just to be able to be eligible for a refund without an 
incentive to achieve maximum diversion of the waste stream. The suggestion was 
made that the 15% refund be tied to performance-based requirements, by requiring 
the size of the refund to be proportional to the yard waste amounts diverted 
from the communities served by the landfill. The amount of diversion could be 
determined and reported on an annual basis rather than predetermined in the 
composting plan. The commission had the same concerns stated previously and for 
that reason proposed that the refund be "up to 15%". Since the statute requires 
that three conditions be met to qualify for a 15% refund, the commission 
proposed to provide a lower refund, rather than totally disallow the refund, if 
the required conditions were only partially met. Therefore, the commission will 
retain the language as proposed. More specific details on determining the amount 
of refunds will be provided when the regulations on composting and composting 
plans are developed in the near future. 
 With respect to sec.330.604(b)(1), two commenters recommended that the 
requirement for a refund tied to leasing or purchasing and operating equipment 
necessary to compost yard waste be expanded to allow for the payment of contract 
services that compost the yard waste. The commission believes that leasing and 
operating can include procurement of services which provide the necessary 
equipment with operating personnel, and is including that provision. 
 Two comments were received concerning the use of the term "up to" in sec.330. 
604(b) and (c). The commission's rationale for using this term is explained in 
the response to sec.330.604(b). 
 Three commenters expressed concern with the provision in  sec.330.604(d) which 
limits the amount of refund to that identified in the facility's composting plan 
when no criteria are given as to what should be in the composting plan. Although 
specific guidance on preparation of a composting plan will be provided in 
composting and composting plan rules currently under development and use of an 
interim policy is explained as follows, the commission believes that the 
composting plan should be a well-thought out document based on reasonable 
estimates of amounts and types of material to be processed and the corresponding 
equipment and personnel required in order to do the composting properly. A plan 
designed to process 50 tons per month is not going to provide for proper 
composting of 200 tons per month. It must be revised and supported with proper 
equipment and personnel as necessary, and refunds would be tied to performance 
based on the plan. 
 Four comments were received concerning the eligibility of municipalities to 
receive composting refunds when they do not operate landfills but have their own 
composting operations, either individually or jointly with other municipalities. 
Two commenters supported their eligibility, one on the condition that the 
landfill operator chooses not to compost or that the municipality have a 
contractual agreement with the landfill that serves the municipality, and the 
other commenter opposed their eligibility. Inasmuch as SB 1051 only exempted 
off-site composting facilities from payment of the solid waste disposal fees and 
did not address their eligibility to receive composting refunds, the commission 
will not address that issue herein. However, the commission will consider the 
issue for possible future rulemaking. 
 One commenter recommended that credits against billed fees be the preferred 
method of refund to reduce government expense in refund processing. The 
commission concurs and is changing the language in sec.330.604(e) to provide 
that the commission will normally make the composting refund by applying it as 
credit against fees required to be collected. 
 An example of an exception may be in a situation in which a facility operator 
is delinquent in previous fee payments due. 
 Pending adoption of the composting plan rules currently under development, the 
commission is extending the Interim Enforcement Policy on Composting adopted May 
26, 1993, to be applicable as guidance for the preparation of composting plans 
in order to allow facility operators that are eligible for compost refunds in 
accordance with the previously mentioned explanations can develop interim 
composting plans to qualify for composting refunds. It should be noted that such 
plans, when approved, will be of an interim nature and are subject to change 
upon adoption of final standards. In addition to assuring that adequate 
capacity, trained personnel and proper equipment are provided, the underlying 
requirement is that the public health, environment, and ground and surface 
waters be protected. Facility operators wishing to initiate composting plans at 
this time and need a copy of the policy document should contact the Municipal 
Solid Waste Division at (512) 239-6695. 
 The amendments and new rule are adopted under the Texas Health and Safety Code, 
Chapter 361, which provides the commission with all powers necessary and 
convenient under that chapter to carry out its responsibilities concerning the 
regulation and management of municipal solid waste. 
 The sections will implement the provisions of the Health and Safety Code, 
sec.sec.361.013, 361.0135, 361.014, 361.136, 361.252, and House Bill 2605, Acts 
of the 73rd Legislature, 1993. 
 
 
  sec.330.601. Purpose and Applicability. 
 
  (a) Purpose. 
 
  (1)  Fees. The commission is mandated by the Solid Waste Disposal Act, Health 
and Safety Code, Chapter 361, to collect a fee for solid waste disposed of 
within the state, and from transporters of solid waste who are required to 
register with the state. Fee requirements for persons who collect and/or 
transport municipal wastewater treatment plant sludges, water supply treatment 
plant sludges, grit trap waste, grease trap waste, and septage are contained in 
sec.330.448 of this title (relating to Transporter Fees). Transportation fee 
schedules for persons who engage in the collection and/or transportation of used 
or scrap tires are contained in sec.330.817 of this title (relating to 
Transporter Fees). Persons desiring to transport or deliver waste in enclosed 
containers or enclosed vehicles to a Type IV municipal solid waste management 
facility are subject to special route permit application and maintenance fees 
set forth and described in  sec.330.32 of this title (relating to Collection and 
Transportation Requirements). The fee amount may be raised or lowered in 
accordance with spending levels authorized by the legislature. 
   
  (2)  Industrial solid waste and hazardous waste fees. The assessment of fees 
for the generation, treatment, storage or disposal of industrial solid waste or 
hazardous waste is governed by regulations contained in Chapter 335, Subchapter 
J of this title (relating to hazardous Waste Generation, Facility and Disposal 
Fees System). 
   
  (3) Reports. The commission requires reports in order to track the amount of 
waste being stored, treated, processed, or disposed of in the state, to track 
the amount of processing and disposal capacity and reserve (future) disposal 
capacity, and to enable equitable assessment and collection of fees. 
     
  (b) Applicability. 
 
  (1)  Fees. Each operator of a municipal solid waste disposal facility or 
process for disposal is required to pay a fee to the commission based upon the 
amount of waste received for disposal. For the purpose of these sections, 
landfills, waste incinerators, and sites used for land treatment or disposal of 
wastes, sites used for land application of sludge or similar waste for 
beneficial use, composting facilities, and other similar facilities or 
activities are determined to be disposal facilities or processes. Recycling 
operations or facilities that process waste for recycling are not considered 
disposal facilities. Source separated yard waste composted at a composting 
facility, including a composting facility located at a permitted landfill, is 
exempt from the fee requirements set forth and described in these sections. For 
the purpose of these sections, source separated yard waste is defined as leaves, 
grass clippings, yard and garden debris and brush, including clean woody 
vegetative material not greater than six inches in diameter, that results from 
landscape maintenance and land-clearing operations which has been separated and 
has not been commingled with any other waste material at the point of 
generation. The commission will credit any fee payment due under this subchapter 
for any material received and converted to compost product for composting 
through a composting process. Any compost or product for composting that is not 
used as compost and is deposited in a landfill or used as landfill daily cover 
is not exempt from the fee. 
   
  (2) Industrial solid waste and hazardous waste fees. A fee for disposal of an 
industrial solid waste or hazardous waste in a municipal solid waste disposal 
facility shall be assessed under the authority of Chapter 335, Subchapter J of 
this title (relating to Hazardous Waste Generation, Facility and Disposal Fees 
System). If no fee under Chapter 335, Subchapter J is applicable to the disposal 
of an industrial solid waste or hazardous waste, then such waste shall be 
assessed a fee under this chapter for the disposal of solid waste in a municipal 
solid waste facility. 
   
  (3) Reports. All registered or permitted facility operators are required to 
submit reports to the commission covering the types and amounts of waste 
processed or disposed of at the facility or process location; other pertinent 
information necessary to track the amount of waste generated and disposed of, 
recovered, or recycled; and the amount of processing or disposal capacity of 
facilities. The information requested on forms provided by the commission shall 
not be considered confidential or classified information unless specifically 
authorized by law, and refusal to submit the form complete with accurate 
information by the applicable deadline shall be considered as a violation of 
this section and subject to appropriate enforcement action and penalty. 
   
  (4) Interest penalty. Owners or operators of a facility failing to make 
payment of the fees imposed under this subchapter when due shall be assessed a 
penalty of 5.0% of the amount due; and, if the fees are not paid within 30 days 
after the day on which the fees are due, an additional 5.0% penalty shall be 
imposed. An annual interest rate of 12%, compounded monthly, shall be imposed on 
delinquent fees beginning 60 days from the date on which the fees is due. 
 
       
  sec.330.602. Fees. 
 
  (a) Landfilling. Each operator of a facility in Texas that disposes of 
municipal solid waste by means of landfilling, including landfilling of 
incinerator ash, is required to pay a fee to the commission for all waste 
received for disposal. The fee rate for waste disposed of by landfilling is 
dependent upon the reporting units used. It is recommended that waste amounts be 
measured and reported in short tons (2, 000 pounds); however reporting by cubic 
yards is acceptable. 
 
  (1) Fee rates. For purposes of this subsection, uncompacted waste means any 
waste that is not a liquid or a sludge, has not been mechanically compacted by a 
collection vehicle, has not been driven over by heavy equipment prior to 
collection, or has not been compacted subsequent or prior to collection by any 
type of mechanical device other than small, in-house, compactor devices owned 
and/or operated by the generator of the waste. Compacted waste is a liquid, 
sludge or similar waste or any waste that has been reduced in volume by a 
collection vehicle or by any other means including, but not limited to, 
dewatering, composting, incineration, and similar processes. 
 
  (A) Tons. For waste reported in tons, the fee rate is $1.25 per ton received 
for disposal. 
   
  (B) Cubic yards (compacted). For waste reported in compacted cubic yards, the 
fee rate is $0.40 per cubic yard received for disposal. 
   
  (C) Cubic yards (uncompacted). For waste reported in uncompacted cubic yards, 
the fee rate is $0.25 per cubic yard received for disposal. 
     
  (2) Measurement options. 
 
  (A) The recommended method for measuring and reporting waste received for 
disposal is in short tons. The fee for waste reported in short tons will be 
calculated by the commission at an amount equal to $1.25 per ton. 
   
  (B) If scales are not available for landfill use to determine the weight of 
compacted waste received, the facility operator must accurately measure and 
report the number of cubic yards of such waste received for disposal. The fee 
for compacted waste reported in cubic yards will be calculated by the commission 
at an amount equal to $0.40 per cubic yard. 
   
  (C) If scales are not available for landfill use to determine the weight of 
uncompacted waste received, the facility operator must accurately measure and 
report the number of cubic yards of such waste received for disposal. The fee 
for uncompacted waste reported in cubic yards will be calculated by the 
commission at an amount equal to $0.25 per cubic yard. 
   
  (D) If a landfill operator chooses to report the amount of waste received 
utilizing the population equivalent method authorized in sec.330.603(a)(3) of 
this title (relating to Reports), the fee for such waste received shall be 
calculated by the commission at an amount equal to $1. 25 per ton. 
     
  (3) Fee calculation. The fee shall be calculated by the commission using 
information obtained from the quarterly solid waste summary report. A billing 
statement will be generated quarterly by the commission and forwarded to the 
applicable permittee/registrant or a designated representative. 
   
  (4) Fee due date. All solid waste fees shall be due within 30 days of the date 
the payment is requested. 
   
  (5) Method of payment. The required fee shall be submitted in the form of a 
check or money order made payable to the Texas Natural Resource Conservation 
Commission and delivered or mailed to the return address designated by the 
commission in the billing statement distributed quarterly. 
   
  (6) Penalties. Failure of the landfill operator to submit the required fee 
payment by the due date shall be sufficient cause for the commission to revoke 
the landfill permit and authorization to process or dispose of waste. The 
commission may assess interest penalties for late payment of fees and may also 
assess penalties (fines) in accordance with the Health and Safety Code, 
sec.361.252 (relating to Administrative Penalty by Commission) or take any other 
action authorized by law to secure compliance. 
     
  (b) Incinerators and processes for disposal. Each operator of a facility that 
disposes of or processes municipal solid waste for disposal by a means other 
than landfilling is required to pay a fee to the commission for all waste 
received for processing or disposal. Facilities and/or processes included in 
this category include, but are not limited to, incineration; composting; 
application of sludge, septic tank waste or shredded waste to the land; and 
similar facilities or processes. Not included as a process for disposal is land 
application of waste that has already been properly composted in one of the 
facilities named. It is recommended that waste amounts be measured and reported 
in short tons (2,000 pounds); however reporting by cubic yards is acceptable. 
 
  (1) Fee rates. For purposes of this subsection, uncompacted waste means any 
waste that is not a liquid or a sludge, has not been mechanically compacted by a 
collection vehicle, has not been driven over by heavy equipment prior to 
collection, or has not been compacted subsequent or prior to collection by any 
type of mechanical device other than small, in-house, compactor devices owned 
and/or operated by the generator of the waste. Compacted waste is a liquid, 
sludge or similar waste or any waste that has been reduced in volume by a 
collection vehicle or by any other means including, but not limited to, 
dewatering, composting, incineration, and similar processes. 
 
  (A) Tons. For waste reported in tons, the fee rate is $0.62 and one half cent 
per ton received. 
   
  (B) Cubic yards (compacted). For waste reported in compacted cubic yards, the 
fee rate is $0.20 per cubic yard received. 
   
  (C)  Cubic yards (uncompacted). For waste reported in uncompacted cubic yards, 
the fee rate is $0.12 and one half cent per cubic yard received. 
     
  (2)  Measurement options. 
 
  (A) The recommended method for measuring and reporting waste received for 
disposal is in short tons. The fee for compacted waste reported in short tons 
will be calculated by the commission at an amount equal to $0.62 and one half 
cent per ton. 
   
  (B) If scales are not available for facility use to determine the weight of 
compacted waste received, the operator must accurately measure and report the 
number of cubic yards of such waste received. The fee for compacted waste 
reported in cubic yards will be calculated by the commission at an amount equal 
to $0.20 per cubic yard. 
   
  (C) If scales are not available for facility use to determine the weight of 
uncompacted waste received, the facility operator must accurately measure and 
report the number of cubic yards of such waste received. The fee for uncompacted 
waste reported in cubic yards will be calculated by the commission at an amount 
equal to $0.12 and one half cent per cubic yard. 
   
  (D) If a landfill operator chooses to report the amount of waste received 
utilizing the population equivalent method authorized in sec.330.603(a) (3) of 
this title (relating to Reports), the fee shall be calculated by the commission 
at an amount equal to $0.62 and one half cent per ton. 
     
  (3)  Fee calculation. The solid waste fee shall be calculated by the 
commission using information obtained from the quarterly solid waste summary 
report. A billing statement will be generated quarterly by the commission and 
forwarded to the applicable permittee/registrant or a designated representative. 
   
  (4) Fee due date. All solid waste fees shall be due within 30 days of the date 
the payment is requested. 
   
  (5) Method of payment. The required fee shall be submitted in the form of a 
check or money order made payable to the Texas Natural Resource Conservation 
Commission and delivered or mailed to the return address designated by the 
commission in the billing statement distributed quarterly. 
   
  (6) Penalties. Failure of the facility or process operator to submit the 
required fee payment by the due date shall be sufficient cause for the 
commission to revoke the permit or registration and authorization to process or 
dispose of waste. The commission may assess interest penalties for late payment 
of fees and may also assess penalties (fines) in accordance with the Health and 
Safety Code, sec.361.252 (relating to Administrative Penalty by Commission) or 
take any other action authorized by law to secure compliance. 
     
  (c) Facilities and processes not for disposal. Facilities or processes not 
included in the scope of subsections (a) and (b) of this section shall be 
considered as "facilities and processes not for disposal." Facilities and 
processes not for disposal are those facilities that are permitted or registered 
independently from landfill, incinerator, or disposal processing operations and 
include, but are not limited to, such facilities or processes as transfer 
stations, shredders, balers, methane extractors, etc. Facilities and processes 
not for disposal are not required to pay a fee to the commission but are 
required to submit reports. 
 
     
  sec.330.603. Reports. 
 
  (a) Disposal facilities and processes. 
 
  (1) Municipal Solid Waste Fee Report frequency, report form, and report 
information. 
 
  (A) Report frequency. Quarterly, each disposal facility or process operator 
shall report to the commission the information requested on the report form for 
the appropriate reporting period including the amount of source separated yard 
waste converted to compost or product for composting. Annually, the operator 
shall submit a summary of the information to show the yearly totals and year-end 
status of the facility or process, as requested on the report form, for the 
appropriate reporting period. An operator shall file a separate report fore each 
facility which has a unique permit, permit application number, or registration 
number. 
   
  (B) Report form. The report shall be on a form furnished by the commission or 
reproduced from a form furnished by the commission. Forms reproduced by the 
facility operator are not recommended because each report form for each 
reporting period will have two unique numbers on each form. One number will 
specifically identify the facility for which the report is made; the other 
number will specifically identify the individual form. To use the wrong form, or 
the form intended for a different reporting period, will automatically make the 
data incorrect for that facility report. The operator will receive one form from 
the commission for each facility or process prior to the due date. The operator 
must assure that the data entered on the form are applicable for the particular 
facility and period for which the data are reported. 
   
  (C)  Report information. In addition to a statement of the amount of waste 
received for processing or disposal, the report shall contain other information 
requested on the form, including the facility operator's name, address, and 
phone number; the permit number, permit application number, or registration 
number; the facility type, size, and capacity; and other information the 
commission may request. 
     
  (2) Reporting units. The amount of waste received for processing or disposal 
shall be reported in short tons (2,000 pounds) or in cubic yards. If accounting 
of the waste is recorded in cubic yards, then separate accounting must be made 
for waste that comes to the facility in open vehicles or without compaction, and 
waste that comes to the facility in compactor vehicles. If scales are not 
available and accounting of the waste received is in cubic yards, gallons, or 
drums then those volumetric unites may be converted to tones for reporting 
purposes, using the conversion factors set forth in subparagraphs (A) and (B) of 
this paragraph. 
 
  (A) (No change) 
 
  (i)-(v) (No change.) 
     
  (B)  Conversion factors to be used for waste transport vehicles relative to 
waste volume and weight in vehicles shall be as follows: 
 
  (i) (No change.) 
   
  (ii) one cubic yard = 666.66 pounds (medium compaction); and 
   
  (iii) one cubic yard = 800 pounds (heavy compaction). 
       
  (3) Use of population equivalent. In determining the amount of waste deposited 
in a landfill serving less than 5,000 people or the amount of waste processed 
for disposal at a processing facility serving less than 5,000 people, the 
owner/operator may use the number of tons calculated or derived from the 
population served by the facility in lieu of maintaining records of the waste 
deposited at the facility. The amount of waste shall be calculated on the basis 
of one ton per person per year. The report shall document the population served 
by the facility and reflect any changes since the previous report. 
   
  (4) Reporting units for beneficial land use application sites. Wastewater 
treatment plant sludge and septage received for disposal at registered 
beneficial use land application sites in vacuum or closed tank trucks may be 
reported in dry weight equivalent units, provided the site operator either 
produces satisfactory documentation indicating the percent solids present in the 
received waste materials or uses the dry weight/volume conversion factors set 
forth in subparagraphs (A) and (B) of this paragraph: 
 
  (A) one gallon = 0.5 pounds (sludge--dry weight equivalent); and 
   
  (B) (No change.) 
     
  (5) Report due date. The required quarterly solid waste summary report shall 
be submitted to the commission not later than 20 days following the end of the 
fiscal quarter for which the report is applicable. The commission's fiscal year 
begins on September 1, and concludes on August 31. 
   
  (6) Method of submission. The required report shall be delivered or mailed to 
the Texas Natural Resource Conservation Commission and delivered or mailed to 
the return address designated by the commission in the billing statement 
distributed quarterly. 
   
  (7) Penalties. Failure of the facility or process operator to submit the 
required report by the due date shall be sufficient cause for the commission to 
revoke the permit or registration and authorization to process or dispose of 
waste. The commission may assess interest penalties for late payment of fees and 
may also assess penalties (fines) in accordance with the Health and Safety Code, 
sec.361.252 (relating to Administrative Penalties by Commission) or take any 
other action authorized by law to secure compliance. 
     
  (b) Facilities and processes not for disposal. Facilities and processes not 
for disposal (as defined in sec. 330.602(c) of this title (relating to Fees) are 
subject to reporting requirements but are not required to pay a fee. 
 
  (1) Municipal Solid Waste Annual Summary Report frequency, report form, and 
report information. 
 
  (A) Report frequency. Annually, each facility or process operator shall report 
to the commission the information requested on the report form for the 
appropriate reporting period. An operator shall file a separate report for each 
facility which has a unique permit, permit application number, or registration 
number. 
   
  (B)-(C) (No change.) 
     
  (2)-(3) (No change. ) 
   
  (4) Report due date. The required annual report shall be submitted to the 
commission not later than 45 days following the calendar year for which the 
report is applicable. 
   
  (5) Method of submission. The required report shall be delivered or mailed to 
the Texas Natural Resource Conservation Commission and delivered or mailed to 
the return address designated by the commission in the billing statement 
distributed quarterly. 
   
  (6)  Penalties. Failure of the facility or process operator to submit the 
required report by the due date shall be sufficient cause for the commission to 
revoke the permit or registration and authorization to process or dispose of 
waste. The commission may assess interest penalties for late payment of fees and 
may also assess penalties (fines) in accordance with the Health and Safety Code, 
sec.361.252 (relating to Administrative Penalties by Commission) or take any 
other action authorized by law to secure compliance. 
 
       
  sec.330.604. Composting Refund. 
 
  (a) Applicability. Any compost or product for composting that is not used as 
compost and is deposited in a landfill or used as daily landfill cover is not 
exempt from fees due under sec.330.602 of this title (relating to Fees). In 
order to be eligible to receive a refund authorized by this subsection, the 
operator of the facility must submit to the commission a composting plan and 
receive written approval of the plan by the executive director. 
   
  (b) The operator of a public or privately owned municipal solid waste facility 
is entitled to a refund of up to 15% of the solid waste fees collected under 
sec.330.602 of this title if: 
 
  (1) the refunds are used to lease or purchase and operate equipment necessary 
to compost yard waste or to contract for the on-site composting of yard waste; 
and 
   
  (2) composting operations are actually performed; and 
   
  (3) the finished compost material produced by the facility is returned to 
beneficial reuse. 
     
  (c) The amount of refund authorized by this subsection shall increase to up to 
20% of the total solid waste fees collected by the facility if, in addition to 
composting the yard waste, the operator of the facility voluntarily bans the 
disposal of yard waste at the facility. 
   
  (d) The total amount of the refund authorized by this subsection shall be 
limited to the amount identified in the facility's composting plan. 
   
  (e) The composting refund is collectable beginning on the date that the first 
composting operations occur in accordance with the approved composting plan. The 
commission will normally allow the composting refund to be applied as a credit 
against fees required to be collected under sec.330.602 of this title (relating 
to Fees). The operator is entitled to a refund of a percentage of the fees 
collected by the facility on or after the date which the commission approves the 
composting plan. 
   
  (f) The commission shall conduct an annual assessment of the composting 
operation to ensure composting activities are conducted in accordance with the 
approved composting plan. Failure to comply with the composting plan may result 
in the suspension of the composting refund. 
 
  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 April 13, 1994. 
 TRD-9439113 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Natural Resource Conservation Commission 
    Effective date: May 4, 1994 
 Proposal publication date: October 15, 1993 
 For further information, please call: (512) 239-6087 
         
                   
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part III. Texas Commission on Alcohol and Drug Abuse 
  Chapter 146. Approved Drug and Alcohol Driving Awareness Programs 
  
  General Provisions 
 
  40 TAC sec.sec.146.1-146.9 
 
  The Commission on Alcohol and Drug Abuse adopts new sec. sec.146.1-146.9, 
concerning certified Drug and Alcohol Driving Awareness Programs. sec.146.1 and 
sec.146.5 are adopted with changes to the proposed text as published in the 
February 22, 1994, issue of the Texas Register  (19 TexReg 1320). Sections 
146.2-146.4 and  sec.sec.146.6-146.9 are adopted without changes and will not be 
republished. 
 The new sections are adopted to define terms commonly used; outline the purpose 
of the new sections; describe the process for program 
certification/recertification and grounds for denial, revocation or non-renewal 
of a program's certification; and establish requirements for the issuance of 
uniform certificates of course completion. In sec.146.1, the certification 
period was changed to end on August 31 of every even-numbered year rather than 
every odd-numbered year allowing new programs a longer initial certification 
period. Also in sec.146.1, the legal citation in the definition of an approved 
Drug and Alcohol Driving Awareness Program was corrected to read sec.461.013(b). 
In sec.146.5, the date of certificate of approval was changed to expire on 
August 31 of every even-numbered year rather than every odd-numbered year. 
 The new sections will establish quality programming in Drug and Alcohol Driving 
Awareness Programs certified by the commission. 
 No comments were received regarding adoption of the new sections. 
 The new sections are adopted under the Texas Health and Safety Code, sec.461. 
013(b), which provides the commission with the authority to promulgate rules and 
regulations for educational programs designed to prevent or deter misuse and 
abuse of controlled substances and to evaluate procedures, projects, techniques, 
and controls conducted as part of the educational programs. 
 
 
  sec.146.1. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
     Approved Drug and Alcohol Driving Awareness Program-An educational program 
for persons eligible to receive a mandatory discount on personal automobile 
coverage by completing a drug and alcohol driving awareness program which has 
been certified by the Texas Commission on Alcohol and Drug Abuse pursuant to 
this chapter and authorized under the Texas Health and Safety Code, 
sec.461.013(b). 
   
     Certificates of course completion-Uniform certificates of completion issued 
by the Texas Commission on Alcohol and Drug Abuse which are serially numbered 
and provided to certified programs for dissemination to program participants. 
   
     Certification period -That period of time beginning with the date the 
program certification/recertification was granted and ending August 31 of every 
even-numbered year. 
   
     Class records-Personal data forms, pre- and post-test scores, self-
assessments and any other written material required or utilized in the class 
instruction. 
   
     Class roster-A form which shall include information on those participants 
officially enrolled and in attendance at the first class session and is used to 
collect data on those participants throughout the course. Class rosters shall 
contain the following information for each participant: individual pre-course 
and post-course test scores; class averages of pre-course and post-course test 
scores; attendance records; driver's license numbers; and serial number of each 
certificate of completion issued. 
   
     Class size-The number of participants officially enrolled and in attendance 
at each class session. 
   
     Commission-The Texas Commission on Alcohol and Drug Abuse which shall 
develop the approved course, adopt rules for the qualification and certification 
of providers of the Drug and Alcohol Driving Awareness Programs, process all 
applications for program certification/recertification, and monitor and 
coordinate the educational programs. 
   
     Department-The Texas Department of Insurance through the State Board of 
Insurance adopted the establishment of a mandatory discount on personal 
automobile coverage for each eligible person completing a Drug and Alcohol 
Driving Awareness Program certified by the commission. 
   
     Discount-A 5.0% discount on personal auto coverage for successful 
completion on a Drug and Alcohol Driving Awareness Program certified by the 
commission. 
   
     Driver-Any State of Texas licensed driver is eligible to receive the 5.0% 
discount by successfully completing a Drug and Alcohol Driving Awareness Program 
certified by the commission. Drivers convicted of driving while intoxicated or 
minor in possession, consumption or purchase of alcoholic beverages within the 
last seven years from the date of anticipated program enrollment are not 
eligible for the discount. Drivers convicted of driving while intoxicated or 
minor in possession, consumption or purchase of alcoholic beverages after taking 
the course will not be eligible for the discount for seven years from the date 
of conviction. 
   
     Reporting period -That period of time beginning with the date the program 
was certified/recertified by the commission and ending August 31 of each year. 
   
     Self-assessment-A tool used by program participants to evaluate one's own 
risk for developing problems with alcohol. 
   
     Texas Drug and Alcohol Driving Awareness Program -An educational course 
designed for licensed drivers which consists of prescribed registration, 
administrative records, classroom instruction, written coursework, and post-
course recordkeeping. 
 
   
  sec.146.5. Program Certification: Application and Issuance of Certificate of 
Approval. 
 
  (a) Applications for initial program certification must be made by the entity 
or person who will administer and supervise the actual certified Drug and 
Alcohol Driving Awareness Program. 
   
  (b) Application for program certification shall be made on a form prescribed 
and furnished by the commission. 
   
  (c) Each application for initial program certification shall be accompanied by 
the application fee. 
   
  (d) Upon successful completion of requirements to obtain a certificate of 
approval under this chapter, the commission will issue a certificate. 
   
  (e) A certificate of approval will become effective on the first day of the 
following month after approval and will expire on August 31 of every even-
numbered year. 
 
  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 April 14, 1994. 
 TRD-9439231 
  David P. Tatum 
 Interim Executive Director 
 Texas Commission on Alcohol and Drug Abuse 
    Effective date: May 6, 1994 
 Proposal publication date: February 22, 1994 
 For further information, please call: (512) 867-8720 
         
             
  Drug and Alcohol Driving Awareness Program Standards and Procedures 
 
  40 TAC sec.sec.146.25-146.36 
 
  The Commission on Alcohol and Drug Abuse adopts new sec. sec.146.25-146.36 
concerning certified Drug and Alcohol Driving Awareness Programs. Section 146. 
25 and sec.146.28 are adopted with changes to the proposed text as published in 
the February 22, 1994, issue of the Texas Register  (19 TexReg 1322). Sections 
146.26, 146.27, 146.29-146.36 are adopted without changes and will not be 
republished. 
 The sections establish minimum operational standards and criteria for the 
operation of certified Drug and Alcohol Driving Awareness Programs for persons 
wishing to receive a 5.0% discount on their automobile insurance premium. The 
new sections describe the purpose and content of the program, admission 
criteria, program operation requirements, address participant complaints, 
establish program administrator/instructor, classroom facility, recordkeeping, 
and reporting requirements. In sec.146.25, the text describing the program 
purpose was changed in order to provide clarity. In sec.146.28, additional data 
was added to include social security number, educational attainment and sex that 
certified programs must collect on each participant. 
 The new sections will establish quality programming in certified Drug and 
Alcohol Driving Awareness Program certified the Commission. 
 No comments were received regarding adoption of the new sections. 
 The new sections are adopted under the Texas Health and Safety Code, sec.461. 
013(b), which provides TCADA with the authority to promulgate rules and 
regulations for educational programs designed to prevent or deter misuse and 
abuse of controlled substances and to evaluate procedures, projects, techniques, 
and controls conduct as part of the educational proposal. 
 The code affected by the new sections is the Texas Health and Safety Code, 
sec.461.013(b). 
 
 
  sec.146.25. Program Purpose.  The purpose of a certified Drug and Alcohol 
Driving Awareness Program shall be to educate participants on the dangers of 
alcohol and drug use/abuse and problems associated with such use; to provide 
information on the physiological and psychological effects of alcohol and drugs; 
legal aspects of alcohol and drug use; the effects of alcohol and drugs on the 
driving task; signs of abuse; and to assist participants in developing a plan to 
reduce the probability that they will be involved in alcohol/drugs and driving 
situations. 
 
   
  sec.146.28. Program Operation Requirements. All certified Drug and Alcohol 
Driving Awareness Programs shall be required to: 
 
  (1) utilize in the instruction the state-approved curriculum entitled the 
Texas Drug and Alcohol Driving Awareness Program and present the curriculum in 
the manner and sequence prescribed therein; 
   
  (2) insure that all program instructors have attended and successfully 
completed the Administrator/Instructor DWI Education Training Program or the 
Administrator/Instructor Drug and Alcohol Driving Awareness Training Program 
approved by the commission; 
   
  (3) insure that all classes are conducted by certified instructors; 
   
  (4) provide a minimum of six hours of instruction per course; 
   
  (5) insure that instruction does not exceed three hours per class session; 
   
  (6) conduct no more than one class session per day; 
   
  (7) conduct the program a minimum of two times during each reporting period; 
   
  (8) conduct classes no larger than 30 participants; 
   
  (9) insure that participants attend the class sessions in the sequence 
prescribed in the Texas Drug and Alcohol Driving Awareness Program; 
   
  (10) make provisions for persons unable to read and/or speak English; 
   
  (11) develop and utilize a form to collect the following data from each 
participant: 
 
  (A) name; 
   
  (B) street address; 
   
  (C) city/zip code; 
   
  (D) date of birth; 
   
  (E) driver's license number; 
   
  (F) social security number; 
   
  (G) education attainment; 
   
  (H) sex; 
     
  (12) complete all registration, data collection, and pre-course testing prior 
to the first class session; 
   
  (13) maintain attendance records, class rosters, and other administrative 
records as outlined in the Texas Drug and Alcohol Driving Awareness Program; 
   
  (14) insure that class rosters contain the following information for each 
participant: 
 
  (A) date of enrollment in course; 
   
  (B) date of completion of course; 
   
  (C) participant's name; 
   
  (D)  participant's driver's license number; 
   
  (E)  individual pre- and post-test scores; 
   
  (F)  pre- and post-test class averages; 
   
  (G) percent of knowledge increase; 
   
  (J) participant's attendance record; and 
   
  (K) certificate of completion number for each participant; 
     
  (15) administer and evaluate pre- and post-test instruments; 
   
  (16) utilize all required videos, transparencies, booklets, and any other 
resources or written materials required in the Texas Drug and Alcohol Driving 
Awareness Program; 
   
  (17) display transparencies and videos in a manner which: 
 
  (A) produces a clear image when projected on a surface; 
   
  (B) utilizes a television monitor which should be at least 25 inches in 
diameter; 
   
  (C) utilizes high-quality videotapes; and 
   
  (D) allows all participants to have an unobstructed view; 
     
  (18) insure that any supplemental videotapes used in the program have received 
prior approval from the commission according to the following criteria: 
 
  (A) the program uses the required videotapes in the appropriate modules; 
   
  (B) the program exceeds the minimum of six hours of instruction; and 
   
  (C) the videotapes relate directly to the objectives of the curriculum module 
in which it is used; 
     
  (19) administer a participant course evaluation at the end of each course; 
   
  (20) insure that a commission issued certificate of completion is provided to 
all participants successfully completing the course for use by the participant 
to document successful completion; 
   
  (21) provide appropriate facilities for class instruction which are in 
compliance with the Americans with Disabilities Act-1990; 
   
  (22) set definite and reasonable course fees; 
   
  (23) course fees should be utilized to maintain and enhance the program's 
operations; and 
   
  (24) prominently display the certificate of program approval at the principal 
location where classes are provided. 
 
  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 April 14, 1994. 
 TRD-9439230 
  David P. Tatum 
 Interim Executive Director 
 Texas Commission on Alcohol and Drug Abuse 
    Effective date: May 6, 1994 
 Proposal publication date: February 22, 1994 
 For further information, please call: (512) 867-8720 
         
               Chapter 154. DWI Repeat Offender Program Standards and Procedures 
  
  General Provisions 
 
  40 TAC sec.154.2 
 
  The Texas Commission on Alcohol and Drug Abuse adopts an amendment to 
sec.154.2, concerning DWI Repeat Offender Program Standards and Procedures, 
without changes to the proposed text as published in the January 18, 1994, issue 
of the Texas Register (19 TexReg 342). 
 Section 154.2 revises text wording due to amendments made to the Code of 
Criminal Procedure, Article 42.12,sec.13(j), during the last legislative 
session, making the DWI Repeat Offender Programs mandatory rather than optional. 
 The section establishes quality programming in DWI Repeat Offender Education 
Programs approved by the commission. 
 One comment was received regarding the anticipated economic cost to persons who 
will be required to comply with this section and who may be indigent. The 
respondent felt that the cost for the course may be a form of economic 
discrimination for some offenders and believed that there should be provisions 
made for those unable to pay the cost of the course and that certified programs 
should be required to make allowances for those who cannot pay the course fee. 
Comments against the amendment were received from the Texas Department of 
Criminal Justice, Community Justice Assistance Division. 
 The commission does not feel that it can require independent program providers 
to waive their established course fees and the decision should be left with each 
individual certified program. In addition, if an offender is truly indigent as 
defined by community supervision and correction departments and the courts, then 
the commission believes that the court can waive the program attendance 
requirement. However, indigence must be proved. Another option would be to allow 
community supervision and correction departments to utilize their Community 
Corrections Plan funds to pay the course fee for the indigent offender. 
 The amendment is adopted under the Texas Code of Criminal Procedure, Article 
42.12, sec.13(j), which provides the Texas Commission on Alcohol and Drug Abuse 
with the authority to promulgate written rules and regulation setting forth 
minimum standards and procedures for the operation of approved DWI Repeat 
Offender Programs for persons who are convicted of the offense of DWI more than 
once and a court has referred that person to attend a DWI Repeat Offender 
Educational Program. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on April 14, 1994. 
 TRD-9439232 
  David P. Tatum 
 Interim Executive Director 
 Texas Commission on Alcohol and Drug Abuse 
    Effective date: May 6, 1994 
 Proposal publication date: January 18, 1994 
 For further information, please call: (512) 867-8720 
         
         
  DWI Repeat Offender Program Standards 
 
  40 TAC sec.154.28 
 
  The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.154.28 
concerning DWI Repeat Offender Educational Program Standards and Procedures, 
without changes to the proposed text as published in the January 18, 1994, issue 
of the Texas Register (19 TexReg 343). 
 Section 154.28 is adopted in order to allow a wider range of persons to quality 
for admittance into the DWI Repeat Offender Educational Program 
Administrator/Instructor training workshop. 
 The section establishes quality programming in DWI Repeat Offender Education 
Programs approved by the commission. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Texas Code of Criminal Procedure, Article 
42.12, sec.13(j), which provides the Texas Commission on Alcohol and Drug Abuse 
with the authority to promulgate written rules and regulations setting forth 
minimum standards and procedures for the operation of approved DWI Repeat 
Offender Educational Programs for persons who are convicted of the offense of 
DWI more than once and a court has referred that person to attend a DWI Repeat 
Offender educational program. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on April 14, 1994. 
 TRD-9439229 
  David P. Tatum 
 Interim Executive Director 
 Texas Commission on Alcohol and Drug Abuse 
    Effective date: May 6, 1994 
 Proposal publication date: January 18, 1994 
 For further information, please call: (512) 867-8720