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 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter A. Rules of Practice and Procedure Rule Making Procedures 28 TAC sec.sec.1.201-1.208 The Texas Department of Insurance adopts new sec.sec.1.201-1.208 concerning rule making procedures. Sections 1.202-1.204 and 1.207 are adopted with changes to the proposed text as published in the May 31, 1994, issue of the Texas Register (19 TexReg 4246). New sec.sec.1.201, 1.205, 1.206, and 1.208 are adopted without changes and will not be republished. A public hearing on the sections as published was requested June 17, 1994, but was subsequently withdrawn. The new sections are necessary and essential for an orderly and efficient process by which the department will consider the adoption of rules under the Government Code, Chapter 2001, Subchapter B, and under the Insurance Code, Articles 5.96 and 5.97. The adopted sections will provide for the more efficient administration of the Department's rule making duties through the use of a uniform and more efficient rule making process, which will result in a more effective utilization of public resources. The adopted sections provide a publicly-known and easy-to-understand set of procedures for persons interested in participating in the rule making process of the department. Three changes are made in the adoption of sec.1.202. They are clarifying changes to the scope of the sections, and to the types of information notifications to be provided to interested persons petitioning the department for rule making. Three changes are made in the adoption of sec.1.203, which add two paragraphs to subsection (b), and clarify that if a new rule or amendment to an existing rule includes a new form or change to an existing form that is incorporated by reference, the proposal shall include either the text of the new form or proposed change to the existing form, or shall include a statement of inclusion of a new or amended form, accompanied by a description of the new form or amendment to existing form sufficiently specific to provide substantive detail about the new form or change to the existing form. One change is made to the caption of sec.1.204 to make its subject matter more clear. One change is made to sec.1.207 to clarify that accessibility to the list of pending rule proposals to be maintained by the department is accompanied by the opportunity to inspect a copy of any petition for rule making in the Office of the Chief Clerk during normal business hours of the department. Adopted new sec.1.201 provides for pre-publication procedures for staff proposals for rule making. Adopted new sec.1.202 provides for pre-publication procedures for public petitions for rule making. Adopted new sec.1.203 addresses publication and comments on proposals. Adopted new sec.1.204 addresses final action by the agency in instances where no hearing is requested or required concerning a published proposal. Adopted new sec.1.205 addresses final action by the agency in instances where a hearing is held concerning a published proposal. Adopted new sec.1.206 addresses post adoption procedures by the Office of the Chief Clerk. Adopted new sec.1.207 addresses maintenance of a list of pending rules and the opportunity to inspect copies of rule making petitions at the department. Adopted new sec.1.208 addresses regular commissioner public meetings. Three sets of written comments were received. The Texas Legal Reserve Officials Association submitted written comments during the comment period and requested a public hearing on the proposed sections as published. The request for public hearing was subsequently withdrawn. In addition, the American Council of Life Insurance and the law firm of Small, Craig & Werkenthin each submitted written comments after the comment period had ended, and recommended changes to the sections as published. Oral comments were received from the Office of Public Insurance Counsel. Some comments addressed sections which state that action on a petition or on a proposed rule is solely within the discretion of the commissioner. The comments recommended that sec.1.202(c) be revised to clarify that the commissioner action in that section relates to a petition and not to action on a published proposal. The comments also stated that since many rules are legislatively mandated to be adopted, it is not within the discretion of the commissioner to adopt or not adopt certain rules, even though the commissioner has discretion about the form or wording of the rule, and recommended that sec.sec.1.204 and 1.205 be further clarified. The department responds that the wording in sec.sec.1.202(e), 1.204 and 1.205(3) is sufficiently clear to indicate the parameters of commissioner discretion. However, to clarify sec.1.202(e), the adoption includes language to emphasize that the action contemplated by its provisions relates to the petition for rule making proceedings, not to a published rule proposal. The department concludes, however, that provisions of sec.1.204 and sec.1.205(3), clearly state the intent of those sections, that the commissioner is to have sole discretion about the structure and content of the rules that are adopted. The recommendations of the staff and the public are for the commissioner's consideration, but the ultimate decision about what is included in a rule and how it is articulated rests with the commissioner. The department does not believe that the provisions of these sections in any way suggest that the commissioner is empowered with discretion not to adopt rules that are statutorily mandated. For these reasons, the adoption makes no further revisions to the sections as a result of the comments. A comment stated the proposed rules do not clarify whether the commissioner's actions-in determining whether to grant a petition to publish a proposal for rule making and/or in determining whether a rule should be promulgated-are to take place in a public meeting after notice in the Texas Register . The comment reflected the commenter's desire for such a forum. The department makes no change to the adopted sections as a result of this comment, because it believes that the rules as proposed and published are clear with respect both to the action contemplated to be taken by the commissioner and the circumstances under which that action will be in a public forum. The sections provide that any person may request a public hearing on a published rule proposal, which widens the opportunity for public hearings on rules beyond that which currently is afforded under the statutes addressing the same subject matter. The sections properly balance the public's right to address the commissioner with the allocation of limited state resources, because they require a hearing if any member of the public desires one but eliminate the need for a hearing if no member of the public desires a hearing. The that with respect to the matter of public forum, the sections properly balance the competing needs of the public to have access to the commissioner in matters over which the commissioner has jurisdiction with the need of the commissioner to effectively, efficiently and economically use time resources in the performance of the duties and responsibilities of public office. For example, the sections provide in sec.1. 208(b) that the first item on the agenda of each public meeting every first and third Monday of any month is an open forum in which any member of the public may appear before the commissioner and speak on any issue under the jurisdiction of the commissioner with the exception of pending contested cases. Certainly any pending petitions for rule making are included in the issues under the commissioner's jurisdiction, as are published rule proposals for which final action has not yet been taken. Comments Relating to sec.1.202. A comment suggested a petitioner should be provided more than the ten business days in proposed sec.1.202(d) to respond to a recommended proposal, on the basis that a trade association petition with revisions could not, in most cases, be reviewed, acted upon and returned to the Office of the Chief Clerk in ten business days. The department disagrees. Ten business days will always provide a minimum of 12 calendar days for a response, and in some instances will provide 15 calendar days for response. The department believes this is a sufficient amount of time to prepare a response. Moreover, and equally important, the trade associations will have another 30 calendar days to submit comments on any proposal authorized for publication after it is published. The department believes that extension of the preliminary comment period for the petitioner in proposed sec.1.202(d) by an additional ten business days would unnecessarily delay the rule making process. For these reasons, no change is made as a result of this comment. A comment stated that sec.1.202 does not clarify how the sections will facilitate making petitions for rule making available for public inspection in a meaningful way. The department responds that provisions relating to pending proposals are addressed in sec.1.207, and that the adoption includes a clarifying change to both the caption for this section and to the text. The textual change details that a copy of each petition for rule making, under the Government Code, sec.2001, or under the Insurance Code, Article 5.96 or 5.97, will be marked with the date received by the Office of the Chief Clerk and made available for public inspection during normal business hours in the Office of the Chief Clerk. With respect to any differences between the statutory requirements of Articles 5.96 and 5.97 and these rules as proposed, sec.1.202 clearly states that the proposed rules apply to rule making under those articles only to the extent that such articles do not specifically provide otherwise. In addition, the adoption contains a clarifying change with respect to the scope of the sections. A comment stated that sec.1.202(a) should expressly apply to all types of rule making by the Department. The department agrees and the adoption makes such a change to the subsection. A comment stated that sec.1.202(b)(2) should be changed to remove the word "conforming." The department agrees and the adoption makes such a change to the paragraph. A comment stated that sec.1.202(b)(3) should be changed to include notification of the address of the staff member and the reference number of the rule petition. The department agrees and the adoption makes such a change to the paragraph. A comment stated that in sec.1.202(e) the order of the last two sentences should be changed to provide greater clarity. The comment also suggested requiring both an order of denial and notice of proposed rule to account for those instances when a rule making petition has been denied in part. The department agrees and the adoption makes such a change to the subsection. The adoption also includes editorial changes to paragraphs (1)-(3) for greater clarity. Comments Relating to sec.1.203. A comment suggested that sec.1.203(b), relating to incorporation by reference of adopted forms, needs to be changed so that notice of the changes to a particular new form to be adopted or existing form to be amended are printed in the Texas Register . Another comment suggested actually reproducing the forms or amendments to forms in the Register, but acknowledged that sometimes such reproduction might be unduly burdensome. The department agrees that it is essential that persons who are expected to comply with a particular rule by completion of a form or forms associated with a particular regulation need to have detailed and specific information about the nature, purpose and essential elements of the form. For that reason, it has been agency practice to identify forms that are being adopted by reference and to provide a description of the new form or amendment to existing form in the published notice of proposal and the notice of adoption. In addition, it has been, and will continue to be, the practice of the agency to identify in the published notice that copies of the forms are filed with the Secretary of State, and available from that office through the Texas Register division. Finally, the practice also has included the name and mailing address of the person to contact at the department in order to obtain copies of the proposed or adopted forms or revised forms. With respect to sec.1.203, the department includes in the adoption a clarifying amendment to make it clear that the notice of a proposed amendment to an existing rule or proposed new rule under the Government Code, Chapter 2001, which includes a new form or a change to an existing form will either include the text of the new form or proposed change to the existing form, or will state that the proposal includes a new form or change to an existing form, accompanied by a description of the new form or change to the existing form sufficiently specific to provide the substantive detail about the new form or change to the existing form. The adoption also makes minor editorial changes to the caption. A comment raised the question about why the proposal in sec.1.203(d) would allow a hearing to be requested by "any person" rather than "any interested person", as provided in Article 5.96 and 5.97, or alternatively by "at least 25 persons" as provided in the Government Code, sec.2001.029. The comment suggested that the "any person" standard is inconsistent with the current statutory standard. The department disagrees that the "any person" standard is inconsistent with the current statutory standards to which it was compared. To be inconsistent with such standards it would have to provide a more narrow and restrictive window of opportunity to obtain a public hearing on rule making matters. Instead, the opposite is true. The standard in the sections provides a greater opportunity, is more generous than the statutory standards, and in no way diminishes rights and opportunities afforded by them. For these reasons it is not inconsistent with such standards. In addition such a standard affords greater accessibility to the commissioner, consistent with the provisions of Article 1.04(C)(b), which provides the commissioner develop and implement policies that provide the public with a reasonable opportunity to appear before the commissioner and speak on any issue under the jurisdiction of the commissioner. For that reason the adoption does not include any change with respect to this comment. A comment stated that sec.1.203(c) should be changed to require a second copy of comments when "requested." The department agrees and the adoption makes such a change to the subsection. Comments Relating to sec.1.204. One commenter stated that the drafting of sec.1.204 was confusing because the text stated that the commissioner need not have a hearing where there is no request for a hearing and no hearing is required by statute, while the caption for the section stated that it relates to final action where no hearing is requested or required. The department fails to see how any confusion could arise based on the manner in which either the caption or the text is drafted. Each clearly indicates that if a statute requires a hearing, regardless of whether one is requested, a hearing will be had. Each also clearly indicates that if any person requests a hearing on a published rule proposal, a hearing will be had, even if not statutorily required. Though each of these outcomes is conversely indicated in sec.1.204, they are nonetheless clearly indicated. However, in order to reduce the perceived confusion, the adoption includes a change to the caption to make its intent and meaning even more clear. Comments Realting to sec.1.205. A commenter stated that sec.1.205(3) is confusing, in its limiting reference to the commissioner being able to take under advisement at the conclusion of a hearing only rules which are adopted under the Government Code, Chapter 2001, and requested clarification. The department points out that the reason such limiting language is present is because the proposed sections relate not only to rules subject to the Government Code, Chapter 2001, but also to rule making proceedings under the Insurance Code, Article 5.96. Article 5.96(c) provides that, at the time of either the meeting or hearing pursuant to which a proposal is considered, action is to be taken on the rule, rating plan, classification plan, statistical plan, etc., for which notice has been provided under the article. The statute thereby contemplates that action is to be taken at the meetings or hearings scheduled for such items, including rules, rather than for the matter to simply be taken under advisement at the conclusion of the meeting or hearing and acted upon at some later date. The new sections are adopted pursuant to the Insurance Code, Article 1.03A and Article 1.04C. Article 1.03A authorizes the commissioner of insurance to promulgate and adopt rules and regulations for the conduct and execution of the duties and functions of the department. Article 1.04C requires the commissioner to develop and implement policies that provide the public with a reasonable opportunity to appear before the commissioner and to speak on any issue under the jurisdiction of the commissioner. The adopted new sections affect regulation pursuant to the following statutes: Articles 5.96 and 5.97. sec.1.202. Public Proposals or Petitions for Rule Making. (a) Scope of Sections. The procedures for public petitions for all rule making, including rule making under Government Code, sec.2001.021, and the Insurance Code, Articles 5.96(b) and 5.97(b), shall be governed by the provisions of these sections to the extent not governed by statute. (b) Filing of Petition and Duties of Chief Clerk. Petitions for rule making from interested persons shall be submitted to the Office of the Chief Clerk. Once the petition has been submitted, the Office of the Chief Clerk will take the actions described in paragraphs (1)-(3) of this subsection, as follows: (1) assign a reference number to the petition and add it to the list of rule proposals pending before the department; (2) provide a copy to the appropriate department staff for review and response; and (3) notify the petitioner of the name, address and telephone number of the staff person reviewing the proposal and designated as contact person for inquiries, as well as the reference number assigned to the petition. (c) Staff Response. The Department staff shall provide its analysis and recommendation on the proposal, through the appropriate associate commissioner, to the commissioner in Texas Register form. (d) Action by Office of the Chief Clerk. Unless staff's recommendation is substantively identical to the petitioner's recommendation or the petitioner has agreed to staff's changes, the Chief Clerk's Office shall complete items in paragraphs (1) and (2) of this subsection, as follows: (1) provide a copy of the recommended proposal in Texas Register form to the petitioner, and provide the petitioner ten business days to file a written response to the recommended proposal; and (2) after the petitioner files a response or the time for filing has expired, provide the commissioner with the original petition, the department staff's proposal in Texas Register form, the petitioner's response (if any), and any additional written comments from the public addressing the proposal. (e) Commissioner Action. Action on the petition seeking to initiate a rule making proceeding is in the sole discretion of the commissioner; staff's recommendations are not binding on the commissioner. The commissioner may act on the petition without a hearing. After review and consideration the commissioner shall take one of the actions set out in paragraphs (1)-(3) of this subsection. In all cases, the Office of the Chief Clerk shall provide to the petitioner a copy of the commissioner's order and/or notice of proposed rule filed with the Texas Register. (1) Instruct the Office of the Chief Clerk to submit the proposed rule as recommended by the petitioner to the Texas Register for publication. (2) Instruct the Office of the Chief Clerk to submit the commissioner's proposed rule to the Texas Register for publication and issue an order stating the reasons the petition was denied in part if the published version of the rule is substantially different from the petitioner's recommendation. (3) Issue an order disapproving the petition and stating the reasons for denial. The Office of the Chief Clerk shall inform the petitioner of the right to request that the commissioner reconsider the decision and that the petitioner's request may either be in writing or at the open forum portion of a regularly scheduled commissioner meeting. sec.1.203. Publication and Comments on Proposals for Rule Making. (a) Submission. Publication of proposed rules shall request that written comments be filed with the Office of the Chief Clerk, including proposed rules under the Insurance Code, Articles 5.96 and 5.97. (b) Incorporation Of Forms By Reference. Notice of a proposed new rule or amendment to an existing rule under Government Code, Chapter 2001, which includes a new form or a change to an existing form incorporated by reference in the new or existing rule shall: (1) include the text of the new form or proposed change to the existing form; or (2) state that the proposal includes a new form or change to the existing form, accompanied by a description of the new form or change to the existing form sufficiently specific to provide the substantive detail about the new form or change to the existing form. (c) Public Comment. Comments on each published proposal shall be filed with the Office of the Chief Clerk, with an additional copy to the division contact person in the department for the proposal if requested in the Texas Register notice. (d) Request for Hearing. Any person may request a hearing on a published rule proposal. Unless the request is withdrawn, the commissioner shall grant the request and hold a hearing. sec.1.204. Final Action for Rule Proposals Where a Hearing is Neither Requested nor Required. When there is no request for a hearing and no hearing is required by statute, the commissioner may take final action on a proposed rule by signing an order of adoption without a hearing. Action on the proposed rule is solely within the discretion of the commissioner. sec.1.207. List and Copies of Pending Petitions for Rule Proposals. The Office of the Chief Clerk shall maintain a list of public petitions to initiate rule making before the department which have not yet been published for public comment or denied by commissioner's order. The list will be posted in the lobby of the offices of the Texas Department of Insurance in a place accessible to the public. The list of pending rule proposals shall be updated weekly. A copy of each petition for rule making, regardless of whether it relates to rule making under the Government Code, Chapter 2001, or under the Insurance Code, Articles 5.96 or 5.97, shall be marked with the date it was received by the Office of the Chief Clerk, and made available for public inspection during normal business hours in the Office of the Chief Clerk. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 6, 1994. TRD-9447648 D. J. Powers General Counsel and Chief Clerk Texas Department of Insurance Effective date: September 27, 1994 Proposal publication date: May 31, 1994 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 312. Sewage Sludge Use, Disposal and Transportation Subchapter G. Transporters and Temporary Storage Provisions 30 TAC sec.sec.312.141-312.150 The Texas Natural Resource Conservation Commission adopts new sec.sec.312.141, 312.142, 312.144, 312.145, 312.147, and 312.148, with changes and sec.sec.312.143, 312.146, and 312.149-312.150, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3558) concerning Sewage Sludge Use and Disposal. Public comment was solicited and received until June 10, 1994. A public hearing on these rules was held in Harlingen on June 8, 1994. Over 20 different groups and individuals submitted comments on the proposed rules. These commenters reflected a broad range of interests, representing cities, agriculture, industry, business, water and wastewater treatment operators, and various interest groups. All suggested changes to the proposed rules have been considered and have been incorporated into the rules where appropriate. Commenters included: Scientific Consulting Laboratories, Inc., Exxon Company, U.S.A.G., American WasteWater Ltd., Texas Chemical Council, Browning-Ferris Industries, CH [sub]2M Hill, Brown McCarroll & Oak Hartline, Oppenheimer Environmental Company, Bio-Gro System, Texas Municipal League, Tyler Water Utilities, Fort Worth Water Department, El Paso Water Utilities Public Service Board, City of Houston, City of Houston, Gulf Coast Waste Disposal Authority, City of Wichita Falls, Dallas Water Utilities San Antonio Water System, Harris County Pollution Control Department, City of Abilene, City of Amarillo, San Patricio Municipal Water District, Texas Association of Metropolitan Sewerage Agencies, TNRCC staff and other interested citizens. One person commented on sec.312.141(a) requesting deletion of the word "generating" from the first sentence of this provision. The commenter stated that this subchapter is not applicable to the generator of waste. The commission strongly disagrees as the generator of waste is responsible for the proper disposal of the waste and this includes the transportation of the waste. One person commented on sec.312.141(b) requesting the addition of "Class I Industrial Waste" to the second sentence of this provision between "hazardous waste" and "as defined in Chapter 335." The commission agrees with the commenter and the sentence has been changed. One person commented on sec.312.141(d) questioned "What sludges are approved for marketing and distribution?". Under Subchapter B of this Chapter, the commission can authorize a permittee to market and distribute sewage sludge to the public. The commission does not want to require a person who receives this sludge to register as a transporter of waste. The sentence has been modified to clarify where the marketing and distribution requirements are located. One person commented on sec.312.141 requesting clarification on whether transportation registration will be required when sludge is disposed on-site or on property under the control of the treatment plant operator. The Commission is not requiring a person to register as a transporter if the waste does not leave the property were the waste is generated. Several individuals commented on sec.312.142(d) on the term "bi-annually" stating that the commission should use "biennially." The commission agrees with the commenters and the term has been changed. One person commented on sec.312.142(f) suggesting the commission change the first sentence in this provision to the following "... within 15 days of the following changes of their operation." The commission agrees with this change and the sentence has been modified. Several individuals commented on sec.312.142(j) regarding the authorization stickers. One person suggested that the authorization sticker should not be required to be placed on all containers. The commission agrees with this commenter and has modified this provision and other provisions within this subchapter. The commission will only issue authorization stickers to registered motor transport vehicles. If a vehicle is pulling a trailer or hauling receptacle(s) with waste that is authorized by this subchapter those vehicles will need to be registered with the commission and will be required to have an authorization sticker. Another person stated that the sticker program should not be required in a city that already has a liquid waste program. The commission strongly disagrees with this commenter, because transporters do not operate only within the city limits of a city. Another person questioned why the commission is requiring authorization stickers because they were not required in the past transporter rules. The commission is requiring the authorization stickers because in the past a person could register as a transporter and get a registration number and would not register again and continue using the number. By requiring the authorization sticker, the commission staff, the generator of waste, the facility that receives the waste, and other transporters will know that vehicle is authorized to transport the waste. The commission is also changing the date that it will start issuing the stickers from September 1, 1994 to February 1, 1995 in order to give the transporters time to apply for the stickers. One person questioned sec.312.144(a) as to why a city would be required to put a telephone number on the transport vehicle. The purpose of the telephone number is so the public will have a number to contact the transporter. One person commented on sec.312.144(a)(4)(A), regarding the requirement of requiring the registration number to be a minimum of three inches in height more stringent than necessary. The commission agrees and has modified the provision to read, "The registration number shall be a minimum of two inches in height, in block numbers permanently affixed. The registration number must be clearly visible at a distance of 50 feet." One person suggested that the commission modify sec.312.144(c) to include "and/or products" to the mixing of incompatible waste. The commenter stated "it has occurred on several occasions that a transporter has hauled a product and then hauled wastes in the same vehicle without proper cleaning thinking that the container does not need to be cleaned since the next load is going to be a waste." The commission believes this is already addressed in sec.312.144(c) . Several comments were received on sec.312.144(d), regarding the requirement of installing site gauges on all closed vehicles. Commenters stated that site gauges do not work properly when the transporters haul grease and oil. The commission agrees with the commenters and has added a sentence to this provision which states "An alternate method to measure actual volumes may be utilized with prior written approval from the Executive Director." One person commented on sec.312.145(a), stated that the requirements for the trip tickets are clearly defined within this section and getting approval from the executive director is unnecessary. The commission agrees with this commenter, but the executive director approval is intended for the transporter who hauls the same waste from the same facility to the same disposal facility every day. This subsection has been clarified to indicate that only similar documentation needs written approval from the executive director. Another person also questions, "Will a city transporting sludge to a beneficial use site be required to issue a trip ticket from every load?" Yes, but as stated above, the city could request approval from the executive director for a different form of documentation. One person commented on sec.312.145(a)(2) that the commission should require the signature of the generator of the waste. The commission agrees with this commenter and the signature of the generator has been added to the subsection. Several individuals commented on the sec.312.145(b) regarding the order of the trip tickets. The commission is not concerned with what order the five part trip tickets are in, as long as all parties get a copy and the copies clearly show the required information. The commission has modified this subsection taking out the order of each part of the trip ticket. Several individuals commented that the volume of the grease or grit trap and the volume of the septic tank should be included on the trip ticket. The commission agrees with this comment and has added sec.312.145(a)(8) which will require the volume of the grease or grit trap and the volume of the septic tank to be added to the trip ticket. One person commented on sec.312.145(b)(1)(E) wanting to know the meaning of "within 15 days." The commission reviewed this and has clarified the subsection to read "within 15 days after the waste is received at the disposal or processing facility." Two individuals commented on sec.312.145(b)(4), regarding the submission of the annual summary report to the commission, by June 15 of each year. One is requesting that the report be on the same reporting period as the annual sludge report in the wastewater discharge permit. The commission disagrees with this because the sludge report period in wastewater permits are not the same in all permits. The other commenter wanted to move the reporting due date to June 30 stating that 15 days is not enough time to get the report filed with the commission. The commission agrees that 15 days is a short period of time to report the information to the commission if the transporter has not maintained adequate records. The commission believes that if records are adequately maintained that 15 days is sufficient time to submit the report. Several individuals commented on sec.312.145(c) regarding discrepancies on the trip tickets. The commenters believe responsibilities of the discrepancies should not be placed on the facility which receives the waste. The commission agrees with the commenters that the total burden should not fall on the owner/operator and the subsection has been modified to put most of the responsibility on the transporter to reconcile any discrepancies. Two individuals commented on modifying sec.312.145(d) to allow the receiving facility to turn back a load with improperly prepared trip tickets or from an unregistered transporter. The commission rules do not require a facility to take waste from an unregistered transporter or improperly documented trip tickets, but does encourage the facility to take this waste if it can be properly treated or disposed of at the facility. Two individuals commented on deleting sec.312.147(b)(2), the subsection on prohibiting the use of lagoon and/or in-ground storage tanks. The commenters stated that during bad weather they should be able to store the waste in lagoons. The commission totally disagrees with these commenters. The use of a lagoon on a temporary basis could cause odor problems, may contaminate groundwater if the liner is not properly maintained, and the commission believes that a permit should be required for this type of unit and not a transporter registration. One person commented on sec.312.147(b), that the fixed temporary storage facility guideline should include some minimum protective mechanisms to control routine minor and potential major spillage. The commission agrees with this commenter that protective mechanisms should be at all temporary storage sites and this will be an essential part of all agency reviews for temporary storage. One person commented on sec.312.148 recommending that the language be modified slightly to tighten the definition of registered or permitted to specify TNRCC registered or permitted as a Type V transfer station. The commission agrees with this comment and has changed the section. The new sections are adopted under the Texas Water Code (Vernon 1992), sec.5. 103, which provides the TNRCC with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, these sections are adopted pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992) , sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. sec.312.141. Transporters-Applicability and Responsibility. (a) Rules contained in this subchapter establish standards applicable to persons, including municipalities, state and federal agencies, collecting, generating and/or transporting sewage sludge, water treatment sludge, domestic septage, chemical toilet waste, grit trap waste, or grease trap waste. This chapter also establishes standards applicable to persons and facilities who receive waste from transporters regulated under this subchapter. Methods of transportation shall include measures utilizing roadway, rail, and water. (b) Transporters of waste subject to control under this subchapter shall only transport the waste types specified in subsection (a) of this section. Each transporter shall take reasonable precautions to ensure that waste handled in accordance with rules contained in this subchapter is not hazardous waste, as defined in Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). (c) The processing of wastes is not authorized under this subchapter, except for domestic septage under sec.312.144(e) of this title (relating to Transporters-Vehicle and Equipment). (d) These rules are not applicable to persons transporting sewage sludge that meets the metal concentration limits in sec.312.43(b)(3), (Table 3) of this title (relating to Metal Limits), the requirements in sec.312.82(a) of this title (relating to Pathogen Reduction), and one of the requirements in sec.312.83(b)(1)-(8) of this title (relating to Vector Attraction Reduction) and has been approved for marketing and distribution as authorized in Subchapter B of this chapter (relating to Land Application for the Beneficial Use). sec.312.142. Transporter Registration. (a) Persons who plan to transport sewage sludge, water treatment sludge, domestic septage, chemical toilet waste, grit trap waste, or grease trap waste regulated under this subchapter shall apply for registration with the commission on forms furnished by the executive director and receive a registration from the executive director prior to commencing operations. (b) Failure to submit a complete and accurate application or other information requested by the executive director will result in the return of the application to the applicant. Applications for transportation registrations shall include: (1) a complete application form(s), signed and notarized, and appropriate copies provided; (2) the verified legal status of the applicant(s); (3) the signature of the applicant(s), checked against agency requirements, in accordance with sec.305.44 of this title (relating to Signatories to Applications); (4) the attachment of technical reports and supporting data required by the application; and (5) any other information as the executive director or the commission may reasonably require. (c) Persons who apply to the commission for registration and receive a registration shall maintain a copy of the registration authorization, as annotated by the executive director with an assigned registration number, at their designated place of business and in each vehicle operated under that registration. This registration shall be produced and shown to the operator of the facility receiving the waste at the time of delivery. (d) The expiration date of the registration shall be August 31 of the year in which it expires. Registrations are required to be renewed biennially prior to the expiration date. Application for renewal shall be submitted by June 15 of the year in which the registration expires. Any registrant shall notify the executive director in writing within 15 days of cessation of operation and request that the registration be cancelled, and request all forms and reports needed to report waste hauled during the period of registration. (e) A new registration application is required to be submitted within 15 days of the following, whereupon the old registration number will be voided and the old registration cancelled: (1) change in ownership of the operating entity; or (2) determination by the executive director that operations or management methods are no longer adequately described by the existing registration; or (3) failure of the registrant to submit an annual summary report. (f) Transporters shall notify the executive director, by letter, within 15 days of the following changes of their operation: (1) the office or place of business is moved or its address or telephone number changes; (2) the name of the operating entity is changed; or (3) a transporter plans to handle a waste not included in the existing registration. (g) The commission may revoke or void a registration for cause as provided in sec.312.150 of this title (relating to Penalties). An opportunity for a formal hearing on the revocation may be requested by the registrant within 20 days after a Notice of Revocation has been sent from the executive director to the last known address of the registrant. If the registration is revoked or voided, a transporter shall not continue to transport the wastes regulated under this subchapter. (h) An applicant owing delinquent fees or an applicant who has failed to submit required reports will not be eligible to renew their registration to transport waste until all fees and reports are submitted and accepted by the executive director. (i) A registrant failing to submit the annual summary report by the date due is subject to payment of the maximum fees specified in sec.312.9(c) of this title (relating to Sludge Fee Program). (j) The commission will issue, beginning February 1, 1995, authorization stickers for all registered motor transport vehicles. The commission will charge a fee of ten dollars per motor transport vehicle. sec.312.144. Transporters-Vehicle and Equipment. (a) Marking and identification. Owners or operators of specially equipped vacuum pump trucks, tanks, or containers used for the collection and/or over- the-road transportation of wastes regulated under this subchapter shall prominently mark such trucks, tanks, or containers to show the following: (1) company name; (2) telephone number; (3) authorization stickers (motor vehicles only); and (4) the commission assigned registration number on both sides of the vehicles or receptacle. (A) The registration number shall be a minimum of two inches in height, in block numbers permanently affixed. The registration number must be clearly visible at a distance of 50 feet. (B) The company name and phone number, authorization stickers, and the registration number shall be removed from the trucks, tanks, or containers, by the registrant, when it is no longer authorized by the commission or leaves the control of the person(s) holding the registration. (b) Sanitation standards. All vehicles and equipment used for the collection and transportation of the wastes regulated under this subchapter shall be constructed, operated, and maintained to prevent loss of liquid or solid waste materials and to prevent health nuisance and safety hazards to operating personnel and the public. Collection vehicles and equipment shall be maintained in a sanitary condition to preclude nuisance conditions such as odors and insect breeding. (c) Mixing of incompatible wastes. Mixing of incompatible wastes within the same container is prohibited. Transporters shall not use the same container or pumping equipment to collect or transport incompatible waste without first emptying and cleaning the container and equipment of all previously handled wastes. For purposes of this subsection, incompatible waste are wastes which have different processing, storage, or disposal requirements. However, transporters may mix wastes with different characteristics provided the facility to which the waste is being transported is authorized to store, process, or dispose of such mixed wastes. (d) Site gauges. All closed vehicles, tanks, or containers used to transport liquid wastes regulated by this subchapter shall have sight gauges maintained in a manner which can be used to determine whether or not a vehicle is loaded and the approximate capacity. Gauges are not required to read in gallons or liters, but shall show what percentage of the tank capacity is filled. An alternate method to measure actual volumes may be utilized with prior written approval from the Executive Director. (e) Septage transport. If the vehicles, tanks, or containers are used to transport domestic septage to a beneficial use site, the registrant shall keep records showing how the domestic septage met the pathogen and vector attraction reduction requirements listed in sec.312.82(c) of this title (relating to Pathogen Reduction) and sec.312.83 of this title (relating to Vector Attraction Reduction). Copies of records pertaining to the pathogen and vector attraction reduction requirements shall be maintained on the vehicles for a minimum of one month and at the beneficial use site and transporter office for a minimum of five years. (f) Discharge valves. All closed vehicles, tanks, or containers used to transport liquid wastes regulated by this subchapter shall prominently mark all discharge valves and ports. All discharge ports shall be visible and readily accessible. (g) Inspection. All transport vehicles shall include, but are not limited to, trucks, portable tanks, trailers, barges, or similar transport vehicles/receptacles and are subject to inspection by commission staff authorized by the executive director. If a transport vehicle fails the inspection, the authorization sticker and the commission assigned registration number are to be removed from the vehicle and that vehicle is not authorized to transport waste until the vehicle is reinspected and passes. sec.312.145. Transporters-Record Keeping. (a) Trip tickets. Persons who collect and transport waste subject to control under this subchapter shall maintain a record of each individual collection and deposit. Such records shall be in the form of a trip ticket. Similar documentation may be used with written approval by the executive director. The trip ticket shall include: (1) name, address, telephone, and commission registration number of transporter; (2) name, signature, address, and phone number of the person who generated the waste and the date collected; (3) type and amount(s) of waste collected or transported; (4) name and signature(s) of responsible person(s) collecting, transporting, and depositing the waste; (5) date and place where the waste was deposited; (6) identification (permit or site registration number, location, and operator) of the facility where the waste was deposited; and (7) name and signature of facility on-site representative acknowledging receipt of the waste and the amount of waste received; (8) the volume of the grease and grit trap or the septic tank. (b) Maintenance of records and reporting. (1) Trip tickets. Trip tickets shall be divided into five parts and records of trip tickets shall be maintained as follows. (A) One part of the trip ticket shall have the generator and transporter information completed and be given to the generator at the time of waste pickup. (B) The remaining four parts of the trip ticket shall have all required information completely filled out and signed by the appropriate party before distribution of the trip ticket. (C) One part of the trip ticket shall go to the receiving facility. (D) One part shall go to the transporter, who shall retain a copy of all trip tickets showing the collection and disposition of waste. (E) One copy of the trip ticket shall be returned by the transporter to the person who generated the wastes within 15 days after the waste is received at the disposal or processing facility. (F) One part of the trip ticket shall go to the local authority, if needed. (2) Copies. Copies of trip tickets shall be retained for five years and be readily available for review by commission's staff or be submitted to the executive director upon request. (3) Rail or barge transport. Persons who transport waste via rail, or barge may use an alternate record keeping system if approved by the executive director. (4) Submission of reports. By June 15th, transporters shall submit to the executive director an annual summary of their activities for the previous period of June 1 through May 31, showing the following: (A) amounts and types of waste collected; (B) disposition of such wastes; and (C) amounts and types of waste delivered to each facility. (c) Discrepancies. A facility which receives waste must note any significant discrepancies on each copy of the trip ticket. (1) Trip ticket discrepancies are differences between the quantity or type of waste designated on the trip ticket, and the quantity or type of waste a facility actually received. Significant discrepancies in type are obvious differences which can be discovered by inspection or waste analysis. Significant discrepancies in quantity are: (A) for bulk weight, variations greater than 10% in weight; and (B) for liquid waste, any variation greater than 15% in gallons. (2) Upon discovering a significant discrepancy, the transporter must attempt to reconcile the discrepancy with the waste generator or owner or operator of the receiving facility (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after delivering the waste, the transporter must immediately submit to the executive director a letter describing the discrepancy and attempts to reconcile it, and a copy of the trip ticket. (d) Notification. A facility which receives waste from a transporter who cannot produce a registration acknowledgement pursuant to sec.312.142(c) of this title (relating to Transporter Registration) shall notify the appropriate Regional Office of the TNRCC within three days of the waste receipt of the transporters failure to produce a current registration authorization. (e) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of subsection (a) of this section, transporters may use such controls and records to satisfy the commission's requirement under this section. sec.312.147. Temporary Storage. (a) Transporters who store waste in a mobile closed container (container on wheels), shall not store the waste for more than four days. (b) Transporters who temporarily store waste at a fixed or permanent site shall obtain approval in writing from the executive director prior to engaging in such activities. The storage site shall comply with the following standards. (1) The temporary storage of waste shall not exceed 30 days. (2) The use of lagoons and/or in-ground storage tanks are not authorized under the provision of this section. (3) If the waste is not stored in a closed vessel, the location of the storage site shall meet the buffer zone requirement in sec.312.44(d) of this title (relating to Management Practices). (4) The storage of waste shall not cause or contribute to the harm of a threatened or endangered species of plant, fish, or wildlife or result in the destruction or adverse modification of the critical habitat of a threatened or endangered species. (5) The waste shall be stored by a method and under conditions that prevent runoff and protect the quality of the surface water and groundwater. (6) The storage site shall not be located on land within a designated base flood zone (100-year floodplain). (7) A storage site location shall be selected and the site operated in a manner to prevent public health nuisances. Where nuisance conditions exist, the operator shall take necessary action to abate such nuisances. sec.312.148. Secondary Transportation of Waste. Persons who engage in the secondary transportation of waste (meaning receiving waste from other transporters and transporting the waste to a disposal, beneficial use, or processing site) shall transfer the waste at a commission's registered or permitted Type V transfer stations only. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 6, 1994. TRD-9447689 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: September 28, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 463-8069 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 29. Purchased Health Services The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.29. 201-29.207, and the repeal of sec.sec.29.2301-29.2306 without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5457). The justification for the repeals is for the department to have a rulebase free of obsolete rules. The repeals will function by deleting rules from DHS's rulebase, because the sections are now administered by the Texas Department of Mental Health and Mental Retardation. Also in this issue of the Texas Register, DHS is adopting similar repeals in Chapter 31, Case Management Services, concerning case management for individuals with mental retardation or related condition and for persons with chronic mental illness, and in Chapter 48, Community Care for Aged and Disabled, concerning home and community-based services and 1915(c) Medicaid home and community-based waiver services for persons with mental retardation and/or related conditions requiring alternatives to nursing facility placement. Subchapter C. Rehabilitative Services for Persons with Mental Illness 40 TAC sec.sec.29.201-29.207 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413(502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and 32.001-32.040 of the Human Resources Code. 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 authority. Issued in Austin, Texas, on September 2, 1994. TRD-9447565 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 23, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 450-3765 Subchapter X. Diagnostic Services for Persons with Potential of Mental Retardation 40 TAC sec.sec.29.2301-29.2306 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. The repeals implement sec.sec.22.001-22.024 and 32.001-32.040 of the Human Resources Code. 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 authority. Issued in Austin, Texas, on September 2, 1994. TRD-9447564 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 23, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 450-3765 Chapter 31. Case Management Services The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.31. 1, 31.3, 31.5, 31.7, 31.9, 31.11, and 31.13, and the repeal of sec.sec.31.201- 31. 205, without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5458). The justification for the repeals is for the department to have a rulebase free of obsolete rules. The repeals will function by deleting rules from DHS's rulebase, because the sections are now administered by the Texas Department of Mental Health and Mental Retardation. Also in this issue of the Texas Register, DHS is adopting similar repeals in Chapter 29, Purchased Health Services, concerning rehabilitative services for persons with mental illness and diagnostic services for persons with potential of mental retardation, and in Chapter 48, Community Care for Aged and Disabled, concerning home and community-based services and 1915(c) Medicaid home and community-based waiver services for persons with mental retardation and/or related conditions requiring alternatives to nursing facility placement. Subchapter A. Program Requirements 40 TAC sec.sec.31.1, 31.3, 31.5, 31.7, 31.9, 31.11, 31.13 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and 32.001-32.040 of the Human Resources Code. 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 authority. Issued in Austin, Texas, on September 2, 1994. TRD-9447563 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 23, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 450-3765 Subchapter C. Case Management for Persons with Chronic Mental Illness 40 TAC sec.sec.31.201-31.205 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. The repeals implement sec.sec.22.001-22.024 and 32.001-32.040 of the Human Resources Code. 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 authority. Issued in Austin, Texas, on September 2, 1994. TRD-9447562 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 23, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.48. 2201-48.2217, the repeal of sec.sec.48.2401-48.2416, and the repeal of sec.48.9802 without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5458). The justification for the repeals is for the department to have a rulebase free of obsolete rules. The repeals will function by deleting rules from DHS's rulebase, because the sections are now administered by the Texas Department of Mental Health and Mental Retardation. Also in this issue of the Texas Register, DHS is adopting similar repeals in Chapter 29, Purchased Health Services, concerning rehabilitative services for persons with mental illness and diagnostic services for persons with potential of mental retardation, and in Chapter 31, Case Management Services, concerning case management for individuals with mental retardation or related condition and case management for persons with chronic mental illness. Home and Community-based Services 40 TAC sec.sec.48.2201-48.2217 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and 32.001-32.040 of the Human Resources Code. 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 authority. Issued in Austin, Texas, on September 2, 1994. TRD-9447561 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 23, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 450-3765 1915(c) Medicaid Home and Community-based Waiver Services for Persons with Mental Retardation and/or Related Conditions Requiring Alternatives to Nursing Facility Placement 40 TAC sec.sec.48.2401-48.2416 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeals implement sec.sec.22.001-22.024 and 32.001-32.040 of the Human Resources Code. 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 authority. Issued in Austin, Texas, on September 2, 1994. TRD-9447560 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 23, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 450-3765 Support Documents 40 TAC sec.48.9802 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeal implements sec.sec.22.001-22.024 and 32.001-32.040 of the Human Resources Code. 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 authority. Issued in Austin, Texas, on September 2, 1994. TRD-9447559 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: September 23, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 450-3765