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 13. CULTURAL RESOURCES Part IV. Texas Antiquities Committee Chapter 41. Practice and Procedure 13 TAC sec.41.15 The Texas Antiquities Committee (Committee) adopts new sec.41.15, concerning the Memorandum of Understanding (MOU) with the Texas Parks and Wildlife Department (TPWD), without changes to the proposed text as published in the February 14, 1995, issue of the Texas Register (20 TexReg 1003). This MOU is needed to clarify, streamline and more effectively provide for the location, protection, and preservation of significant cultural resources on State Lands under the control of the TPWD. No comments were received regarding adoption of the new rule. The new section is adopted under the Natural Resources Code, Title 9, Chapter 191 (revised by Senate Bill 231, 68th Legislature, 1983, and by House Bill 2056, 70th Legislature, 1987), Section 191.02, which provides the Texas Antiquities Committee with authority to promulgate rules and require contract or permit conditions to reasonably effect the purposes of Chapter 191. 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 April 24, 1995. TRD-9504951 Mark H. Denton Staff Archeologist Texas Antiquities Committee Effective date: May 15, 1995 Proposal publication date: February 14, 1995 For further information, please call: (512) 463-5711 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 330. Municipal Solid Waste Subchapter T. Use of Land Over Closed Municipal Solid Waste Landfills 30 TAC sec.sec.330.951-330.963 The Texas Natural Resource Conservation Commission (TNRCC) adopts new sec.sec.330.951-330.963, constituting Subchapter T, concerning the use of land over closed municipal solid waste landfills. Sections 330.951-330.954, 330.957, 330.959, and 330.963 are adopted with changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 9124). Sections 330.955, 330.956, 330.958, and 330.960-330.962 are adopted without changes and will not be republished. The new rules implement the requirements of House Bill 2537, Acts of the 73rd Legislature, which amended the Texas Solid Waste Disposal Act, Chapter 361, Texas Health and Safety Code. The statute establishes standards for the use and development of land over closed municipal solid waste landfills, and directs TNRCC to adopt rules which implement the requirements of the bill. In drafting rules, TNRCC has been cognizant of the importance of establishing practical requirements while maintaining strict standards for human health and safety, and environmental protection. Toward this end, the commission subjected the new proposed rules to an extensive review process of interested and affected parties. TNRCC conducted a public hearing on this proposal on December 5, 1994, in Austin, Texas. Two persons attended, and none provided comment. Written comments were received from the following entities during the comment period: The University of Texas System, Rio Vista Apartments, L.C., Texas Utilities Services, Inc., Technico Environmental, Inc., Texas Congress of Parents and Teachers, and the City of Dallas. One commenter expressed general support for the proposed rules because they are protective of the public health and environment. One general comment expressed concern that the proposed regulations seem to go well beyond the necessary prudent actions and considerations to safely develop a structure upon a closed landfill site. The regulations seem to force the developer to remediate anything related to the former landfill. The commission believes methane gas is a very serious concern for structures built over closed landfills. There have been several instances around the country where explosions have occurred due to landfill gas accumulation. The commission believes the regulations are reasonable and not overly burdensome, and from experience, represent prudent measures that are undertaken to provide a reasonable level of human health and safety and environmental protection. The intent of the regulations is not to require the developer to undertake a complete remediation of the site; however, an owner, lessee or developer may be required to remediate the site in order to bring it into compliance with the regulations. With regard to sec.330.951, the commission received four comments concerning the definition of "Alteration." One comment recommended retaining the definition as proposed. The commission received two comments stating that the definition of alteration is unreasonable and contradicts the intent of the legislation. If a structure is demolished or destroyed in such a manner that the foundation stays intact, reconstruction of the building should not follow the procedures required for a new slab which includes installation of a geomembrane and a 12 inch permeable layer of aggregate material. Installation of such appurtenances will be extremely difficult if not impossible. According to the commenter, House Bill 2537 intended the foundation requirements found in sec.330.957(l) to only apply to new structures. The reconstruction should only require installation of a passive/active methane venting system for which the preexisting slab could easily be modified. Furthermore, one commenter noted that under sec.330.954(a)(5), a developer is exempted from the permit requirement if that person conducts Soil Test II or Soil Test III and does not discover a landfill, but discovers a closed landfill later in development. This person may still have an opportunity to install the membrane and permeable layer. The rules appear to penalize reconstruction projects. Alteration should be "a major reconstruction of an existing structure affecting the foundation or increasing the horizontal extent of the foundation." The commenter requests deletion of the phrase "external frame" from the proposed definition. The term "alteration" appears in the definition for "Develop/development," and a permit is required in order to develop over a closed municipal landfill. A definition for Alteration was proposed to clarify that major reconstruction projects are subject to the permit requirements, because the commission believes it is the intent of the legislation to require a permit for such a project. Although the slab remains intact, this does not mean that the structure will be free of methane intrusion. The commission will retain the definition of Alteration. However, the commission does agree that installation of a geomembrane and a 12 inch permeable layer is not feasible if the slab has remained intact. Furthermore, this underlayer is intended to mitigate gas migration into the structure. If the landfill is not producing gas, there may be no reason for this additional requirement. Therefore, sec.330.957(l) "Foundation Plans" in the permit application has been amended to reflect that existing structures with slabs intact will be exempt from the membrane and layer requirements. The subsection has also been amended to state that if the permit applicant can meet the requirements of sec.330.957(s)(1)(B) which allows suspension of gas monitoring requirements, the applicant can request a variance from the underlayer requirement. The commission will consider such factors as age of the landfill, composition of waste, and other factors in determining if a variance is warranted. The commission does not believe that the rules penalize reconstruction of structures because both reconstruction projects and new structures are required to obtain permits where the landfill's existence is known prior development. In the case of new structures, the discovery of a CMSWLF by a soil test will require a permit for a new structure. The commission recognizes the small but real possibility that Tests II and III may miss old landfills. In those instances, the commission allows registration for those developments that discover the landfills later in development, because the cost of stopping construction to obtain a permit would be extremely costly. With regard to the definition of "Closed Municipal Solid Waste Landfill," the commission received one comment that the definition is too vague. In order to assure uniformity of application of the rule, a definition for a closed MSWLF should have parameters such as: minimum amount or percentage of municipal solid waste; and/or minimum aerial coverage. During development of the proposed rules, the commission considered including percentage of waste, aerial coverage, and age of the landfill in the definition of Closed Municipal Solid Waste Landfill. After much discussion, it became clear that it is very difficult to define old landfills in those terms, because of their non-uniformity and the general poor quality of information on old landfills. The commission has not added parameters to the definition of CMSWLF. The commission has removed the reference to permits received from TNRCC, Texas Department of Health, and local permitting authorities because of complaints that the language was to confusing. With regard to the definition of "Development," the commission received one comment. The comment was concerned that the mere act of selling property meets the definition of Development, and triggers obligations by the seller under the regulations. Development means activities leading toward construction. As an individual act, selling property does not constitute development, and therefore does not trigger the soil test, permit, or registration requirements of Subchapter T. If a closed landfill is known to exist on property for sale, sellers do have an obligation to provide notice of the landfill's existence to buyers under sec.330.962. The commission will retain the definition of Development as proposed. With regard to the definition of "Enclosed Structure", the commission received two comments. One comment recommended retaining the definition as proposed. The second comment was concerned that the definition of Enclosed Structure will cause a significant economic burden because it is too broad and will include parking garages, patios, parking lots, utility substations, and other structures which are not continuously occupied. It was suggested that the definition be modified as follows: "Any permanent structure which is intended to be or has the potential of being occupied by people for an industrial, commercial, public or residential purpose." Enclosed Structure is defined as "Any permanent structure which is intended to be or has the potential of being used or occupied by people for an industrial, commercial, public, or residential purpose." Inclusion of "use" is based upon the definition of Development in House Bill 2537 and the rules which state that development is "an activity on or related to real property that is intended to lead to the construction or alteration of an enclosed structure for the use or occupation of people..." Permanent enclosed structures that are not continuously occupied, but used by people, still represent a potential health threat if they are constructed over closed landfills. Furthermore, the commission disagrees that the definition of Enclosed Structure as proposed will lead to regulation of open air structures because the rules clearly apply only to enclosed structures. The commission will retain this language. The commission received several comments concerning the Soil Test requirements set forth in sec.330.953. With regard to sec.330.953(a) one comment stated that the requirement for a soil test for any tract of land greater that one acre is excessive. The requirement for a soil test prior to the development of any tract of land greater than one acre is an explicit requirement of House Bill 2537. The commission will retain this language. Two comments were received concerning sec.330.953(c). One comment noted that the three testing modalities to be chosen by registered professional engineers are contradictory in objective and outcome. If the P.E. chooses Test I, he will be exempt from the subsurface testing requirements of Tests II and III. If the P.E. chooses Test I and discovers after foundation construction that it is over a closed landfill, the requirements for installing a geomembrane and aggregate material base are waived. This will negate the purpose and objectives of the regulation and will negatively reflect on the P.E. The commenter suggests one optimal testing modality to be performed before structures are built on any land suspect of being a closed landfill. Three options are provided in the rules in order to allow flexibility. One test method would not be practical for every case because developments are not uniform. As an example, it does not always make sense to require optimal testing such as soil borings on a limestone outcrop, or any other place where it is highly unlikely or improbable that a landfill could be placed or would exist. The commission is concerned about unnecessary cost burdens on businesses and therefore has built flexibility into the rules. The commission does not believe inaccurate test results will reflect negatively on the P.E. The P.E. is only certifying that the test does or does not indicate the existence of waste materials rather than certifying that a landfill does or does not exist on the property. To address the hypothetical situation posed by the commenter, the rules do not waive the requirements for installing a geomembrane liner and permeable base layer if Test I is chosen. A developer choosing Test I is always required to meet those requirements unless applying for a waiver as discussed earlier in this preamble, or the foundation requirement is waived for certain reconstruction projects. The commission disagrees with the recommendation for one test. The rules retain the option of choosing one of three tests. However, the commission will amend sec.330.954(a)(3) to clarify that only construction on the enclosed structure must cease until a permit is issued rather than the stopping the entire development. The second comment regarding sec.330.953(c) stated that soil tests should only be required for tracts of land over one acre for which there is a reasonable likelihood of finding a threshold amount of municipal solid waste based on land use records or anecdotal information. During development of the proposed rules, the commission considered allowing the use of record searches such as Phase I Environmental Site Assessments to be used as soil tests; however, the quality of such reports is inconsistent because there are no rules providing guidance for their preparation. For this reason, this type of investigation is not allowed as a soil test. The commission retains the proposed language for soil tests. With regard to sec.330.953(d), the commission received one comment concerning the requirement that a P.E. discovering a closed landfill as a result of the soil test must notify the regional planning council. Because sec.330.961 and sec.330.962 require Local Government Officials and Land Owners to file deed records to reflect existence of landfills, the additional requirement in sec.330.953(d) seems redundant. Providing notice to the COGs is not required in House Bill 2537, but was added to the rules to assure that COGs are provided with all pertinent information for their inventories which are required by Section 2 of House Bill 2537. The commission believes that it is not redundant nor administratively difficult to require that COGs be notified, and that removal of this requirement will seriously impair the COGs ability to conduct a comprehensive inventory of closed landfills. The commission will retain this language. With regard to sec.330.953(f), one commenter was concerned that backfilling of soil test holes with clean CH or CL clay is unnecessary and economically burdensome. Instead, soil excavations should be backfilled with the excavated material or other fill brought in. The requirement to use clay as backfill is intended to apply to soil test holes and excavations where waste is discovered. The waste must be removed and the clay used to fill the cavity and recap that portion of the landfill. The commission agrees that requiring holes and borings to be backfilled with clay where no waste is present is an economic and possibly logistical burden. The language has been amended to only require the clay for excavations where waste is encountered. The commission received several comments concerning sec.330.954 which sets forth development permit and registration requirements, procedures, and processing. With regard to sec.330.954(a)(1)(B), one commenter wanted to know if sec.330.255, "Post-Closure Land Use," will be amended to conform to Subchapter T or be deleted. Section 330.255 requires special construction provisions within 1,000 feet of waste disposal areas. The adoption of Subchapter T, sec.sec.330.951-330.963, will clarify that the adopted chapters affect closed and abandoned municipal landfills and dumps that are not in post-closure care under an existing TNRCC MSW permit. Section 330.255 affects only landfill units in post-closure care. Section 330.255 will remain in the current regulations and will not be amended. An exemption has been added to sec.330.952(b) for permitted MSWLFs in post-closure care, but the exemption clearly states that owner/operators of those facilities are required to comply with sec.330.255. Concerning the 1,000 foot requirement, sec.330.255(f) states that "any on-site permanent enclosed structures built within 1,000 feet of any waste-holding area for a closed MSWLF unit or MSW site shall, at a minimum, be designed and constructed in accordance with the following criteria in order to prevent gas migration..." The phrase "on-site" indicates that the structure is within the permitted landfill facility boundaries. House Bill 2537 does not provide authority to require permits for structures off waste areas for those landfills governed by Subchapter T; however, it is prudent for any builder or developer to take the necessary precautions when constructing a building near a closed landfill. The commission will retain this language. With respect to sec.330.954(a)(7) which addresses the application fee, the commission received two comments. One comment stated that some maximum amount should be listed to minimize cost liability to the applicant from being unlimited. According to the second comment, the application fee is onerous and economically burdensome. The fee should be $500 which is the application fee for a RCRA permit. House Bill 2537 is clear that the agency shall charge the applicant the cost of reviewing the permit application. As stated in the Preamble to the proposed rules, the $2,500 figure is based upon 60 hours of staff time and associated costs to review the application, conduct the hearing, and perform the internal processing for an expected average permit. Due to the strict time frames that TNRCC is required to follow under the statute, the commission believes that 60 hours is a very reasonable estimate and it is likely that many applications will be reviewed for a fee less than $2,500, in which case the applicants would receive a refund. The commission will retain this language. Within a reasonable amount of time after the program has been implemented, the commission may consider a ceiling if it appears that one is needed. With regard to sec.330.954(b)(5)(A), the commission received one comment that stated that denial of the permit should state the exact reason for the denial and what the applicant must modify to be granted approval. Although the commission assumed that stating reasons for the denial was implicit in the rule, the commission concurs that the language should be added to clarify the executive director's responsibilities. Furthermore, the commission agrees that as part of a denial, modifications necessary to be granted approval should be identified and formally presented to the applicant. The section has been amended. Concerning sec.330.954(c)(1), the commission received three comments. One commenter expressed concern that requiring an existing structure to obtain a registration and to meet the requirements of sec.330.959, "Requirements for Registration of an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit," seems to be regulating something that has already occurred and should be grandfathered. Methane gas can be an immediate health threat regardless of when a structure was built over the landfill. The statute recognizes the potential threat of methane gas, and is clear that existing structures are subject to the statute and regulations. Section 361.536(a) of House Bill 2537 requires an owner or lessee of an existing or new structure that overlies a closed landfill to install automatic methane gas sensors. Furthermore, sec.361.536(c) requires the owner or lessee of a structure built over a closed landfill unit to modify the structure to comply with rules for new structures that overlie closed landfills. Although not explicitly required by House Bill 2537, the commission proposed a registration in order to ensure that owners and lessees take proper safety measures in buildings over closed landfills. The commission will retain the proposed language. Another commenter was concerned that criteria for existing structures do not state how old closed landfills may be or when the structure was constructed other than prior to September 1, 1993. Some old landfills may be so old that methane gas is not present. The commission has avoided specifying ages for closed landfills because extremely old landfills have been known to continue producing and/or storing methane at potentially dangerous levels. Although all existing structures must submit registrations, sec.330.959(5)(A) (ii) allows for the suspension of gas monitoring requirements if the owner or lessee can demonstrate that there exists no potential for migration of landfill gases. The commission will retain the proposed language. One commenter wanted clarification that the owner/lessee of an enclosed structure should not have an affirmative obligation to initiate an investigation to determine if a closed landfill exists on his property unless and until he undertakes development as the term is defined. This rule is not a requirement for owners of every structure in Texas to initiate an environmental investigation to determine if the property overlies a closed landfill. The registration requirement for an existing structure becomes effective only when the owner/lessee becomes aware that the structure overlies a closed landfill. The commission agrees that this should be clarified in the rule. The language has been amended. With respect to sec.330.955(c), the commission received one comment concerning the requirement that any non-hazardous municipal solid waste including residuals from soil tests removed from a CMSWLF be disposed at a permitted municipal solid waste facility. The commenter believes this requirement is unnecessary, and the rules should allow for the waste materials to be redeposited in the closed landfill. Existing commission rules require excavated waste to be transported and disposed at a permitted municipal solid waste landfill. Waste being deposited, or redeposited, at a location other than a permitted facility could result in the closed landfill being considered an unauthorized municipal solid waste facility operating without a permit. This could subject the owner/operator to possible enforcement actions. The commission will retain this language. Concerning sec.330.957(s)(1)(A)(i), the Structures Gas Monitoring Plan, the commission received one comment requesting the rationale in requiring a methane concentration of 20% to be monitored when the allowable concentration stated within this proposed regulation and Subtitle D is 25% of the lower explosive limit. The requirement to set methane gas sensors to trigger an audible alarm when the concentration of methane in air is greater than 1.0% (20% of LEL) is a statutory requirement established in sec.361.536(a) of House Bill 2537. The 25% limit set forth in sec.330.957(s)(1)(A) and sec.330.959(5)(A) (i) is a typographical error. The limit has been corrected to reflect that the volume of gas shall not exceed 20% of the lower explosive limit. Regarding sec.330.959(5)(A)(ii), landfill gas monitoring requirements in this section are for a registration and not a development permit. The language has been changed to reflect this. With regard to sec.sec.330.961-330.963, one commenter requested clarification that for all notice requirements, there is no obligation to give these notices unless the owner of land has learned of a closed landfill as a result of soil tests in response to development activities. Furthermore, in the absence of any proposed time frame for giving these notices, the rules should require that notice be given within 180 days after determining the existence of the closed landfill. The notice requirements shall be provided in any instance where a closed landfill is known to exist, not just if it is discovered as a result of the soil test. There are many instances where landfills are known to exist and no soil test is necessary. Owners of property who may have a landfill on their property, but have no reason to suspect its existence, are protected by the rule because there is no requirement that property owners initiate environmental investigations. The commission also disagrees with the 180-day timeframe for giving notice. All notices should be made immediately upon discovery of the closed landfill. The commission will retain this language. With respect to sec.330.963 specifically, the commission received two comments. One commenter expressed concern that prohibiting an individual the use of an existing structure built over a CMSWLF for not obtaining a registration and meeting all the requirements would appear to be cause for legal action against the State. Section 330.963 was taken directly from sec.361. 537 of House Bill 2537 and is a statutory requirement. The commission will retain the proposed language. One commenter noted that the rules should clearly reflect that a lessor has no affirmative duty to a lessee to investigate to determine if the site is over a closed landfill, unless he undertakes development of the land. Again, this rule is not a requirement for owners of every structure in Texas to initiate an environmental investigation to determine if the property overlies a closed landfill. The owner is only obligated to notify a lessee if the owner knows of the existence of a closed landfill on the property. The commission agrees that clarification is needed, and the rule has been amended. The new sections are adopted under the Texas Health and Safety Code, Chapter 361, as amended by House Bill 2537, Acts of the 73rd Legislature, 1993, which provides the Texas Natural Resource Conservation Commission with the authority to establish rules necessary to adequately administer a permit program for the construction of an enclosed structure over a closed municipal solid waste landfill (MSWLF) unit, to establish requirements for an existing structure built over a closed MSWLF unit, to establish procedures for conducting soil tests to determine the existence of closed MSWLFs, and to establish procedures for providing notice of the existence of closed MSWLFs; and under Texas Water Code, sec.5.103, which gives the Texas Natural Resource Conservation Commission (TNRCC or commission) the authority to promulgate any rules necessary to carry out its power, duties, and responsibilities. The proposed new rules affect Health and Safety Code, Chapter 361. sec.330.951. Definitions. Unless otherwise noted, all terms contained in this section are defined by their plain meaning. This section contains definitions that are applicable only to this subchapter and which supersede definitions in sec.330.2 of this title (relating to Definitions) where those terms appear in this subchapter. As used in this subchapter, words in the singular include the plural and words in the plural include the singular. The following words and terms, when used in this subchapter, shall have the following meanings. Alteration-Major reconstruction of an existing structure affecting the external frame or the foundation of the structure, or increasing the horizontal extent of the foundation. Standard redesign activities common in commercial structures, such as moving walls and doors, are not considered alterations. Closed Municipal Solid Waste Landfill (CMSWLF) -A discrete area of land or an excavation that has received only municipal solid waste or municipal solid waste combined with other solid wastes, including but not limited to construction/demolition waste, commercial solid waste, nonhazardous sludge, conditionally exempt small-quantity generator hazardous waste, and industrial solid waste, and that is not a land application unit, surface impoundment, injection well, or waste pit as those terms are defined by 40 CFR sec.257.2. Closure plan-A plan addressing the placement of a final cap on a CMSWLF where waste is exposed or the existing cap is inadequate. Construction-The inception of an activity that provides improvements necessary for the utilization of an enclosed structure. Develop and/or development-Any activity on or related to real property that is intended to lead to the construction or alteration of an enclosed structure for the use and/or occupation of people for an industrial, commercial, or public purpose or to the construction of residences for three or more families, including subdivisions that will include single-family homes and duplexes. Development permit -A written permit issued by the commission that, by its conditions, may authorize a person or persons to develop an enclosed structure over a CMSWLF unit. The development permit does not supersede local building and development permits, but is an additional permit. Enclosed structure or structure-Any permanent structure which is intended to be or has the potential of being used or occupied by people for an industrial, commercial, public, or residential purpose. Essential improvements -All improvements and appurtenances including, but not limited to, the excavations for the structure, installation of utilities, on-site wastewater disposal facilities, grading and drainage improvements, access drives and parking lots, foundation, security, fencing, landscape plantings and irrigation systems necessary for the utilization of an enclosed structure. Existing structure -Any enclosed structure that began development prior to September 1, 1993. Garbage-Solid waste consisting of putrescible animal and vegetable waste materials resulting from the handling, preparation, cooking, and consumption of food, including waste materials from markets, storage facilities, handling, and sale of produce and other food products. Hazardous waste -Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency (EPA) pursuant to the Federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 USC sec.6901 et seq, as amended. Industrial Solid Waste (ISW)-Solid waste resulting from or incidental to any process of industry or manufacturing, or mining or agricultural operation, which may include hazardous waste. Municipal Solid Waste (MSW)-Solid waste resulting from or incidental to municipal, community, commercial, institutional, and recreational activities, including garbage and rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all other wastes other than industrial solid wastes. Permitted development -An enclosed structure or group of enclosed structures that have been issued a development permit. Rubbish-Nonputrescible solid waste (excluding ashes), consisting of both combustible and noncombustible waste materials. Site Operating Plan (SOP)-A prepared document that provides guidance for operations and procedures necessary to maintain human safety and environmental protection at the development, permitted development, or existing structure in a manner consistent with the development permit and the commission's regulations. Structures Gas Monitoring Plan (SGMP)-A document prepared by a registered professional engineer that provides procedures to ensure the detection of landfill gases and the prevention of migration of landfill gases into enclosed structures. sec.330.952. Applicability and Exemptions. (a) Applicability. The requirements in this subchapter apply to: (1) persons owning, leasing, or developing property or structures overlying a CMSWLF, except as noted in subsection (b) of this section; (2) persons developing a tract of land greater than one acre, except as noted in subsection (b) of this section; (3) local government officials; and (4) professional engineers. (b) Exemptions. The following persons shall be exempt from certain requirements of this subchapter. (1) An owner of property constructing a single-family or double-family home, other than a developer of a housing subdivision, shall be exempt from sec.330.953 of this title (relating to Soil Test Required Before Development), sec.330.954 of this title (relating to Development Permit and Registration Requirements, Procedures, and Processing), and sec.330.960 of this title (relating to Operational Requirements for an Enclosed Structure Built Over a Closed Municipal Solid Waste Landfill Unit). (2) An owner of an existing structure built over a CMSWLF unit and that is a single-family or double-family home shall be exempt from sec.330.954, sec.330.959 of this title (relating to Requirements for Registration of an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit) and sec.330.960. (3) An owner/operator of a Type I, II, III, or IV municipal solid waste landfill facility that has received a municipal solid waste permit under sec.330.4 of this title (relating to Permit Required) and is currently in post- closure care, is exempt from the requirements of this subchapter. The owner/operator must comply with the provisions of sec.330.255 of this title (relating to Post-Closure Land Use). sec.330.953. Soil Test Required Before Development. (a) A person may not undertake the development of a tract of land that is greater than one acre in area unless the person conducts a soil test prior to or during development and construction. The soil test is intended to determine if a landfill exists on the property planned for development. (b) A soil test under this section shall be conducted by a registered professional engineer (P.E.). (c) The P.E. must choose one of the following tests. (1) Test I. The P.E. shall observe all subsurface disturbances, undertaken for whatever reason, during development through the completion of the foundation. A subsurface investigation prior to construction is not required by Test I. (2) Test II. A subsurface investigation undertaken for the purpose of finding a CMSWLF unit. The investigation must incorporate a sufficient number of borings or excavations, the number of which shall be determined on a site-specific basis by the P.E. Each boring or excavation shall be to a minimum depth of ten feet. (3) Test III. A subsurface investigation conducted at the development site for geotechnical or environmental purposes, or a Housing and Urban Development (HUD) test for a homeowner's warranty. (d) Pursuant to Texas Health and Safety Code, sec.361.538(c), the Texas Engineering Practice Act, sec.22(a)(4), and in accordance with 22 TAC sec.131.156 (relating to Responsibility to the Engineering Profession), any engineer who conducts a soil test and determines that part of the tract overlies a CMSWLF shall notify the following persons of that determination within 30 days of the completion of the test: (1) each owner and each lessee of the tract; (2) the executive director of the commission; (3) local government officials with the authority to disapprove the application for development; and (4) the regional council of governments. (e) The responsible engineer shall affix his seal, signature, and date of execution to the soil test results as required by the Texas Engineering Practice Act, sec.15c, and in accordance with 22 TAC sec.131.138 (relating to Engineer's Seal). (f) All soil test excavations where waste is removed shall be backfilled and compacted with clean CH or CL clay. The excavation shall be backfilled to exceed the existing grade and provide positive drainage. sec.330.954. Development Permit and Registration Requirements, Procedures, and Processing. (a) Permit Required for Development Over a CMSWLF Unit. (1) No person may commence or continue physical construction of an enclosed structure over a CMSWLF unit without first submitting a development permit application in accordance with sec.330.956 of this title (relating to Permit Application for Development Over a Closed Municipal Solid Waste Landfill Unit) and receiving a development permit from the commission, except as noted in paragraph (5) of this subsection. (A) The permit issued by the commission under this subchapter is a development permit and not a permit for the management of solid waste. A permit application for a development permit shall comply with those requirements in this subchapter. A permit application to manage municipal solid waste shall comply with the applicable sections of Chapters 281 and 305 of this title (relatng to Applications and Consolidated Permits) and Subchapters (A)-(L) of this chapter (relating to Municipal Solid Waste). (B) A development permit is not required for an enclosed structure that is to be built on a tract of land that contains a CMSWLF, if the enclosed structure is not built over the waste disposal area. (2) The permit application under this subchapter must be received at least 45 days prior to the proposed commencement of construction over the CMSWLF unit. (3) If a person directs his engineer to conduct Soil Test I, and the soil test reveals the existence of a CMSWLF unit after the commencement of construction, construction of the enclosed structure being built over the CMSWLF shall cease immediately, and a permit application shall be submitted and a development permit issued before construction of the enclosed structure over the CMSWLF unit can resume. The person may proceed with construction and development of other facilities including those items listed in the definition of essential improvements. (4) If a person directs his engineer to conduct either Soil Test II or Soil Test III and the engineer discovers a CMSWLF unit as a result of the test, he shall submit a permit application. Development of an enclosed structure over the CMSWLF unit cannot begin until a development permit is issued. (5) If a person directs his engineer to conduct either Soil Test II or Soil Test III and the engineer does not detect a CMSWLF unit as a result of the test, but subsequently discovers a CMSWLF unit during the development, the person is not required to submit a permit application but must meet the provisions of sec.330.959 of this title (relating to Requirements for Registration of an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit). (6) As part of the application, the applicant shall provide the name and physical and mailing addresses of a public building with normal operating hours such as library, city hall, or county courthouse where the application can be viewed by the general public, and information on the location for the public hearing including physical and mailing addresses and the name and phone number of a contact person. The facilities where the public hearing will be held and where the permit can be viewed shall be in compliance with all applicable requirements of the Americans With Disabilities Act. The application shall also include an adjacent land-owner list. (7) The Health and Safety Code, sec.361.532, requires TNRCC to charge an application fee equal to the actual cost of reviewing the application prior to the issuance of a development permit. The applicant shall submit an initial application fee of $2,500 to be submitted in the form of a check or money order made payable to the Texas Natural Resource Conservation Commission. Upon completion of the review process, including the public hearing, the commission will present the applicant with a refund for an overcharge, or an invoice for an undercharge. (8) If the municipal solid waste facility is covered by an existing permit for the management of solid waste, no person may commence physical construction of an enclosed structure without submitting an amendment application for the existing permit in accordance with sec.sec.330. 50-330.65 of this title (relating to Permit Procedures) and receiving the amended permit from the commission. (b) Review and Approval of Permit Application. (1) The commission shall set a public hearing to be held not later than the 30th day after the application has been received. (2) The commission shall notify the applicant by mail of the date and time of the hearing not later than the 15th day before the hearing. (3) The commission shall publish notice of the hearing in a newspaper that is generally circulated in the county in which the property proposed for development is located. The published notice must appear at least once a week for the two weeks before the date of the hearing. The commission shall also notify all individuals on the list of adjacent land-owners at least 15 days prior to the hearing. The notice shall list the location, date, and time of the public hearing, and the location of the public building where the development permit application can be viewed. (4) TNRCC Municipal Solid Waste staff will conduct the public hearing at the designated location. The applicant will make a presentation of their application, TNRCC staff will describe the development permit, and public comment will be received. The public hearing is not an evidentiary proceeding. (5) On or before the fifth day following the public hearing but not later than 35 days following receipt of the application by the commission: (A) The executive director will issue his decision either to approve or to deny the development permit application. The executive director shall base his decision on whether the application meets each of the requirements of sec.330.956 of this title (relating to Permit Application for Development Over a Closed Municipal Solid Waste Landfill Unit) and sec.330.957 of this title (relating to Technical Requirements of Part A of the Application). A decision denying the permit shall state the deficiencies that were cause for the denial and any modifications necessary to correct those deficiencies. (B) A person may submit in writing to the chief clerk of the commission a request to be notified of the executive director's decision on the application. (6) The date on which the executive director issues the order shall be construed as the date on which notice of the decision is mailed to the applicant and to each person who requested notification of the Executive Director's decision pursuant to paragraph (5)(B) of this subsection (relating to Development Permit and Registration Requirements, Procedures, and Processing). (7) Petition for review of executive director's decision. (A) The applicant or a person may file a petition for review not later than the tenth day after the date the executive director issues the order. The applicant or person who files a petition shall file the petition with the chief clerk of the commission, and shall mail a copy of the petition to the applicant and to each person who requested notification of the Executive Director's decision pursuant to paragraph (5)(B) of this subsection (relating to Development Permit and Registration Requirements, Procedures, and Processing). (B) If a petition for review is filed, the commission shall act on the petition for review within 35 days after issuance of the executive director's order or at the next scheduled commission meeting, whichever is later. The commission may affirm or reverse the order issued by the executive director. (C) A commission order ruling on a petition for review is final and effective on the date issued. (8) If no petition for review is filed ten days after the executive director issues his decision, the decision is final and effective on the 11th day after the date the decision was issued. (9) If the actual cost of reviewing the permit is not equal to the application fee, the applicant will be presented with either a refund or an invoice pursuant to subsection (a)(7) of this section (relating to Development Permit and Registration Requirements, Procedures, and Processing). If an invoice is submitted, a development permit will not be issued until the invoice is paid. (10) An applicant who is denied a development permit may submit a new application to the commission. (c) Registration for Existing Structures. (1) The owner or lessee of an existing structure that existed or began development prior to September 1, 1993 and is built over a CMSWLF unit, shall submit a registration application to the TNRCC. The registration application shall be submitted to the executive director and shall include those items listed in sec.330.959 of this title (relating to Requirements for Registration of an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit). This paragraph is not intended to require that owners and lessees of enclosed structures initiate investigations for CMSWLFs. (2) A registration issued by the commission under this subchapter is a not a registration for the management of solid waste. A registration application for an existing structure shall comply with those requirements in this subchapter. A registration application to manage municipal solid waste shall comply with the applicable sections of Chapters 281 and 305 of this title and Subchapters (A)- (L) of this chapter. (3) The owner shall submit the registration within 180 days from one of the following dates: (A) the effective date of these regulations; or (B) determination that the structure overlies a CMSWLF. (4) Upon receipt of written approval of the SGMP or approval with modifications to the SGMP from the executive director, the owner or lessee of the existing structure shall implement the plan in accordance with its approved schedule. sec.330.957. Technical Requirements of Part A of the Application. (a) Preamble. (1) Title page. The title page shall show the name of the project, the TNRCC development permit application number if known, the name of the applicant, the location by city and county, the date the part was prepared, and, if appropriate, the number and date of the revision. It shall be sealed as required by the Texas Engineering Practice Act. (2) Table of contents. The table of contents shall list and give the page numbers for the main sections of the application. It shall be sealed as required by the Texas Engineering Practice Act. (3) Certification. Pursuant to the Health and Safety Code, sec.361.533, the registered professional engineer preparing a development permit application shall include the following certification: Certification of No Potential Threat to Public Health or the Environment. "I, ___________, P.E. #_____________, certify that the proposed development is necessary to reduce a potential threat to public health or the environment, or that the proposed development will not increase or create a potential threat to public health or the environment. Further, I certify that the proposed development will/will not damage the integrity or function of any component of the Closed Municipal Solid Waste Landfill Unit, including, but not limited to, the final cover, containment systems, monitoring system, or liners. This certification includes all documentation of all studies and data on which I relied in making these determinations." (signed, sealed, and dated by the registered professional engineer). (4) Existing conditions summary. The applicant shall discuss any land use, environmental, or special issues that affect the site. This shall include but not be limited to: (A) condition of final cover; (B) waste characterization; (C) gas production; and (D) potential environmental impacts. (b) Legal authority. The applicant shall provide verification of his/her legal status. Normally, this is a one-page certificate of incorporation issued by the Secretary of State. (c) Evidence of competency. The names of the principals and supervisors of the applicant's organization relative to the development shall be provided. (d) Notice of Appointment. The applicant shall provide a notice of appointment identifying the applicant's engineer. (e) Notice of coordination. The applicant shall provide notice of coordination with all local, state, and federal government officials and agencies. (f) Legal description. The applicant shall: (1) provide the legal description of the property and the county, book, and page number of the current ownership record from the county deed records or a certified copy of the written notice submitted to the county deed records required by sec.330.961 of this title (relating to Notice to Real Property Records); (2) for property that is platted, provide the county, book, volume, and page number of the final plat record of that acreage encompassed in the application and a copy of the final plat document in addition to a written legal description; (3) provide a boundary metes and bounds drawing and description of the site signed and sealed by a Registered Professional Land Surveyor; and (4) provide a boundary metes and bounds drawing and description of the limits of the waste disposal area on the site signed and sealed by a Registered Professional Land Surveyor. (g) Site drawing. The applicant shall provide a site drawing, drawn to scale, that indicates the location of all waste disposal areas, existing and proposed structures, creeks, and ponds. (h) Maps. All maps shall clearly show the boundaries of the tract of land under development and the actual fill areas. (1) General location maps. These maps shall be all or a portion of county maps prepared by Texas Department of Transportation (TxDOT). At least one general location map shall be at a scale of one-half inch equals one mile. If the TxDOT publishes more detailed maps of the proposed site area, the more detailed maps shall also be included. The latest published revision of all maps shall be used. In addition, the applicant shall provide maps as necessary to accurately show proximity of the site to surrounding features and structures. (2) General topographic maps. These maps shall be United States Geological Survey 7-1/2 minute quadrangle sheets or equivalent. At least one general topographic map shall be at a scale of one inch equals 2,000 feet. (i) Aerial photograph. Applicants shall provide an aerial photograph approximately nine inches by nine inches with a scale within a range of one inch equals 1,667 feet to one inch equals 3,334 feet and showing the area within at least a one-mile radius of the site boundaries. The site boundaries and actual fill areas shall be marked. Photocopies of photographs are not acceptable substitutes for photographs. (j) General geology and soils statement. The application shall include a discussion in general terms of the geology and soils of the proposed site, including any known pathways for leachate and landfill gas migration. (k) Groundwater and surface water statement. The application shall include a description of the groundwater and surface water resources at or near the site and how they will be impacted by the development. (l) Foundation plans. The applicant shall provide foundation plans, including geotechnical soil investigation and design reports. (1) In order to prevent gas migration into buildings and other structures, structures shall be designed and constructed in accordance with the following criteria. (A) A geomembrane or equivalent system with very low gas permeability shall be installed between the slab and the subgrade, and a permeable layer of a minimum thickness of 12 inches, composed of an open-graded, clean aggregate material, shall be installed between the geomembrane and the subgrade. (B) A geotextile filter shall be utilized to prevent introduction of fine soil or other particulate matter into the permeable layer. (C) A landfill gas ventilation or active collection system shall be installed consistent with the Structures Gas Monitoring Plan required by subsection (s) of this section. (2) Alterations of existing structures are exempt from the requirements of paragraph (1) of this subsection. (3) An applicant who requests suspension of gas monitoring based upon the demonstration required by subsection (s)(1)(B) of this section (relating to Technical Requirements of Part A of the Application), may submit to the commission a request for a variance from the requirements of paragraph (1) of this subsection. The commission shall base its decision on site-specific factors including, but not limited to, age of the CMSWLF, type of waste deposited in the CMSWLF, and testing methods utilized by the applicant. (m) Other plans. The application shall include plans the following: (1) grading and drainage; (2) irrigation systems; and (3) a dimensional control plan of the site relating all existing and/or proposed enclosed structures and essential improvements of the development, and the locations of all required improvements and appurtenances, to the legal description boundary of the site and the limits of the waste disposal area, signed and sealed by a registered professional land surveyor. (n) Soil tests. The applicant shall provide all soil tests and/or other information relied upon to make the determination that the site was used as a municipal solid waste disposal area as required by sec.330.953 of this title (relating to Soil Test Required Before Development), including procedures performed to identify the limits of the waste disposal area. (o) Certified copies of required notices. The applicant shall provide certified copies of all notices having been made by the professional engineer, by the owner, and by the lessor/lessee in accordance with sec.330.953 of this title (relating to Soil Test Required Before Development), sec.330.961 of this title (relating to Notice to Real Property Records), sec.330.962 of this title (relating to Notice to Buyers, Lessees, and Occupants), and sec.330.963 of this title (relating to Lease Restrictions). (p) Closure plan. The applicant shall provide a closure plan for any part of the waste disposal area that will not have a structure built over it, including placement of the final cover. (q) Operational requirements plan. The applicant shall provide a plan discussing the necessary procedures and practices to be implemented and followed to ensure that the applicant meets the provisions of sec.330.960 of this title (relating to Operational Requirements for an Enclosed Structure Over a Closed Municipal Solid Waste Landfill Unit). (r) Site Operating Plan (SOP). The applicant shall provide a Site Operating Plan, which at a minimum shall include specific guidance, procedures, instructions, and schedules for the following: (1) a description, including size, type, and function, of the equipment to be utilized at the structure other than methane monitoring equipment; (2) a detailed description of the procedures that the operating personnel shall follow to utilize the equipment; and (3) a plan to implement and maintain the operational requirements of sec.330.960 of this title (relating to Operational Requirements for an Enclosed Structure Over a Closed Municipal Solid Waste Landfill Unit). (s) Structures Gas Monitoring Plan. The applicant shall provide a Structures Gas Monitoring Plan in accordance with the following. (1) General. (A) The owner or lessee of a new structure to be built over a CMSWLF unit shall ensure that the concentration of methane gas generated by the CMSWLF unit does not exceed 20% of the lower explosive limit for methane (1.0% by volume methane in air) in facility structures (excluding gas control or recovery system components) overlying the CMSWLF unit. (i) Any new enclosed structures shall contain automatic methane gas sensors approved by the commission and designed to trigger an audible alarm if the volumetric concentration of methane in the air is greater than 1.0% (20% of the Lower Explosive Limit (LEL)). (ii) Any new enclosed structures built over a CMSWLF shall utilize a ventilation system or an active gas extraction and collection system. (B) Landfill gas monitoring requirements for a development applying for a development permit under this subchapter may be suspended by the executive director if the applicant can demonstrate that there is no potential for migration of the landfill gases listed in paragraph (2)(G) of this subsection. This demonstration shall be certified by a registered professional engineer and approved by the executive director, and shall be based upon site-specific field- collected measurements, sampling, and analysis of physical, chemical, and biological processes. (2) Requirements for Structures Gas Monitoring Plan (SGMP). The owner or lessee shall submit a SGMP, designed by a registered professional engineer, to the commission for review and approval. The SGMP shall ensure detection of the presence of landfill gas entering on-site structures. All design drawings shall bear the registered engineer's seal and signature. The SGMP shall include, but not be limited to, the following: (A) a discussion of specific site characteristics and potential migration pathways or barriers in the development of the SGMP, including, but not limited to: (i) locations of buildings and structures relative to the waste disposal area; (ii) the nature and age of waste and its potential to generate landfill gas; (iii) routes of entry for the intrusion of landfill gas into structures; (iv) ignition sources within structures; (v) the location of any utility lines or pipelines that cross, are adjacent to, or are near the CMSWLF unit; (vi) number of people occupying the structures and duration of occupation; and (vii) depth of final cover over deposited waste; (B) a narrative describing design characteristics of proposed structures related to landfill gas accumulation prevention, detection and elimination including, but not limited to: (i) structural; (ii) electrical; and (iii) mechanical; (C) a description of the ventilation system or active gas collection and destruction system to be utilized including engineering drawings and manufacturer's specification sheets. Active gas collection and destruction systems shall comply with applicable parts of sec.sec.115.152-115.159 of this title (relating to Control of Air Pollution from Volatile Organic Compounds); (D) a description of landfill gas monitoring equipment to be used in existing and proposed structures, complete with manufacturer's specification sheets; (E) a detailed implementation schedule for the installation of landfill gas monitoring equipment; (F) a sampling and analysis plan for determining landfill gas components which includes provisions for: (i) sample withdrawal equipment and techniques; (ii) sampling protocol for field measurements of diluted gas emissions; and (iii) a Quality-Assurance\Quality-Control Sampling Plan to include, but not be limited to: (I) field sampling; (II) analytical methods; (III) quality-control samples and methods; (IV) laboratory data reduction; and (V) documentation required; and (G) a complete analysis of the landfill gas to include, but not be limited to: (i) a mass balance analysis for major components such as methane, other light hydrocarbons, carbon monoxide, and water vapor measured with fairly high precision (i.e., 5.0%-10% relative error) ; (ii) trace analyses for hydrogen sulfide, mercaptans, and ammonia; and (iii) analysis for volatile organic compounds using an evacuated steel canister collection device (similar to EPA Method T014) and gas chromatography/mass spectrometry detection system. (t) Safety and evacuation plan. The applicant shall provide a plan describing evacuation procedures and safety measures in the event the methane gas sensors sound the audible alarms. sec.330.959. Requirements for Registration of an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit. The registration application shall consist of the following: (1) the owner's name, company name, mailing address, physical street address, city, state, ZIP Code, and name, title, and telephone number of a contact person; (2) a legal description as set forth in sec.330.957(f) of this title (relating to Technical Requirements of Part A of the Application); (3) certified copies of all notices having been made by the owner and the lessor/lessee in accordance with sec.330.961 of this title (relating to Notice to Real Property Records), sec.330.962 of this title (relating to Notice to Buyers, Lessees, and Occupants), and sec.330.963 of this title (relating to Lease Restrictions); (4) a Site Operating Plan (SOP) as set forth in sec.330.257(r) of this title (relating to Technical Requirements of Part A of the Application); (5) a Structures Gas Monitoring Plan (SGMP). (A) General. (i) The owner or lessee of an existing structure built over a CMSWLF unit shall ensure that the concentration of methane gas generated by the structure does not exceed 20% of the lower explosive limit for methane (1.0% by volume methane in air) in facility structures (excluding gas control or recovery system components). Any new enclosed structures shall contain automatic methane gas sensors approved by the commission and designed to trigger an audible alarm if the volumetric concentration of methane in the air is greater than 1.0% (20% LEL). (ii) Landfill gas monitoring requirements for a registration under this section may suspended by the executive director as provided for in sec.330. 957(s)(1)(B) of this title (relating to Technical Requirements of Part A of the Application). (B) Requirements for Structures Gas Monitoring Plan (SGMP). The owner or lessee shall submit a SGMP, designed by a registered professional engineer, to the commission for review and approval. The SGMP shall ensure detection of the presence of landfill gas entering on-site structures. All design drawings should bear the registered engineer's seal and signature. The SGMP shall include, but not be limited to, the following: (i) an analysis of specific site characteristics and potential migration pathways or barriers as set forth in sec.330.957(s)(2)(A) of this title (relating to Technical Requirements of Part A of the Application); (ii) a site drawing, drawn to scale, which indicates the location of all waste disposal areas, existing structures, creeks, and ponds; (iii) a narrative describing modifications to the existing structures including, but not limited to, the following: (I) structural; (II) electrical; (III) mechanical; and (IV) landfill gas monitoring equipment including manufacturer's specification sheets and any gas ventilation or active gas extraction systems if the development utilizes such systems; (iv) a detailed implementation schedule for the installation of landfill gas monitoring equipment; (v) a sampling and analysis plan as set forth in sec.330.957(s)(2)(F) of this title (relating to Technical Requirements of Part A of the Application); and (vi) a landfill gas analysis as set forth in sec.330.957(s)(2)(G) of this title (relating to Technical Requirements of Part A of the Application); and (6) a safety and evacuation plan describing evacuation procedures and safety measures in the event the methane gas sensors sound the audible alarms. sec.330.963. Lease Restrictions. This section is not intended to require that owners and lessees of property initiate investigations for CMSWLFs. A person may not lease or offer for lease property that overlies a CMSWLF unit unless: (1) existing development on the land is in compliance with this subchapter; or (2) the person gives notice to the prospective lessee of what is required to bring the property and any development on the property into compliance with this subchapter and the prohibitions or requirements for future development imposed by this subchapter and by any development permit issued for development of the property under this subchapter. 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 26, 1995. TRD-9505014 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: May 17, 1995 Proposal publication date: November 18, 1995 For further information, please call: (512) 239-6087 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 3. Income Assistance Services Subchapter I. Income 40 TAC sec.3.902 The Texas Department of Human Services (DHS) adopts an amendment to sec.3.902, concerning the budgeting of income payments received from the National Community Service Act (NCSA) program, in its Income Assistance Services rule chapter. The purpose for the amendment is to comply with federal regulations that mandate that states exempt NCSA payments except for on-the-job training income received by an adult in the food stamp program and count the NCSA payments as earnings for Aid to Families with Dependent Children (AFDC) adults but exempt the first six months of income for an AFDC child. The amendment will function by making DHS's Food Stamp Program and AFDC program rules consistent with federal regulations. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment is adopted to be effective April 1, 1995, to comply with federal requirements. The amendment implements the Human Resources Code, sec.22.001 and sec.33.002. sec.3.902. Types. (a) Aid to Families with dependent children. The Texas Department of Human Services (DHS) counts the following as income: (1)-(3) (No change.) (4) children's earned income. DHS counts this income unless the child is a full-time student, as defined by the school, or a part-time student employed less than 30 hours a week. There is no limit on the number of hours a full-time student can work. DHS exempts earned income from Job Training Partnership Act (JTPA) and National Community Services Act (NCSA) for six months each calendar year. (5)-(11) (No change.) (12) National Community Services Act (NCSA) of 1990 payments. (13) noneducational grants as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(iv)(B). (14) Nonrecurring Lump Sum Payments. DHS counts lump sum payments as income as stipulated in 45 Code of Federal Regulations sec.233.20(a)(3)(ii)(F) except when shortening the period of ineligibility. For this procedure DHS shortens the ineligibility period only if: (A) the lump sum becomes unavailable because it is lost, stolen, or become inaccessible to the certified group, or (B) the family faces a life-threatening situation. Life threatening is defined as dire financial need. The family has dire financial need if the amount remaining from the lump sum payment, plus other countable net income and resources, are less than the budgetary needs figure for the family's size. The family must prove that the lump sum payment was or will be spent on the items included in the department's standard of need (excluding recreation), medical expenses, or both. (15) military pay and allowances. DHS count military pay and allowances for quarters, housing, food, base and flight pay. (16) minor parent income. DHS counts the earned or unearned income of a minor parent. (17) disqualified legal parent. DHS counts the income of a disqualified legal parent. (18) pensions. (19) retirement, survivors and disability insurance (RSDI). (20) reimbursement. DHS counts reimbursements as income unless the reimbursement is irregular and unpredictable or the reimbursement is for a special item not included in DHS's standard of need. (21) retirement benefits. (22) royalties. (23) self-employment income. DHS counts self-employment income according to requirements in 45 Code of Federal Regulations sec.233.20(a)(6)(v) (B). (24) stepparents. DHS counts stepparents' income according to requirements in 45 Code of Federal Regulations sec.233.20(a)(3)(xiv) except for stepparent budgeting as stipulated in the Omnibus Budget Reconciliation Act of 1993. (25) trust funds. DHS counts as income trust withdrawals or dividends which could be received by the applicant. (26) unemployment compensation. (27) veteran's benefits. DHS counts veterans' benefits as income but exempts benefits that meet a special need not included in DHS's standard of need. (28) wages, salaries, and commissions received in cash or in kind. (29) worker's compensation. DHS exempts any amount of the benefits that is for payment of medical expenses incurred before Medicaid eligibility began in the client uses the benefit to pay these expenses. (b)-(c) (No change.) (d) Food stamps. DHS excludes as income the types of income stipulated in Public Laws 101-201 and 101-425, and 7 Code of Federal Regulations sec.273.9(c) and in Public Law 103-66, the Mickey Leland Childhood Hunger Relief Act, except for child support payments, educational assistance, certain types of income of SSI recipients, and non on-the-job training income from the National Community Services Act (NCSA) programs (Public Laws 101-610 and 103-82). DHS excludes educational assistance and income of SSI recipients as stipulated in United States Code sec.2014, Part 5(d) and (e). DHS does not exclude any portion of child support payments. 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 25, 1995. TRD-9504965 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: April 1, 1995 For further information, please call: (512) 450-3765