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 1. ADMINISTRATION PART I. Office of the Governor CHAPTER 5. Budget and Planning Office SUBCHAPTER A. Federal and Intergovernmental Coordination State Planning Assistance Grants 1 TAC sec.5.83 The Governor's Office adopts an amendment to sec.5.83 concerning the State Planning Assistance Grants to regional councils of governments, without changes to the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10857) and will not be republished. The adopted changes to the section conform state financial administration practices with federal audit requirements and more accurately reflect disbursement practices under the grant program. No comments were received regarding the amendment. The amendment is adopted under the Texas Local Government Code, Chapter 391, sec.391.012. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1996. TRD-9617710 Pete Wassdorf Deputy General Counsel Office of the Governor Effective date: December 27, 1996 Proposal publication date: November 5, 1996 For further information, please call: (512) 463-1788 TITLE 7. BANKING AND SECURITIES PART II. Texas Department of Banking CHAPTER 25. Prepaid Funeral Contracts SUBCHAPTER B. Regulation of Licenses 7 TAC sec.25.25 The Banking Department of Texas (the "department") adopts an amendment to sec.25.25 concerning the conversion of prepaid funeral contracts from trust funded benefits to insurance funded benefits, as provided for under Texas Civil Statutes, Article 548b (the Act), sec.1A. This amendment is adopted without changes to the proposed text as published in the September 6, 1996, issue of the Texas Register (21 TexReg 8558), and will not be republished. Only subsection (d)(2)(K) of this section is amended. The commission adopts this amendment to sec.25.25 in order to clarify what the permit holder must pay to the purchaser when a trust-funded prepaid funeral contract is canceled at the purchaser's initiative after the 60-day initial conversion cancellation period. The amendment to sec.25.25 provides that the permit holder must pay the purchaser at least the cancellation benefit when the contract is canceled at the purchaser's initiative after the 60-day initial conversion cancellation period. This amendment will eliminate any confusion that otherwise might result as to the amount the permit holder must pay on a prepaid funeral benefit contract canceled in accordance with subsection (d)(2)(K). The department received no comments on the proposed amendment. This amendment is adopted pursuant to the department's rulemaking authority under the Act, sec.2. In addition to specific grants of rulemaking authority, sec.2 permits the department to promulgate rules regarding any matter "incidental to the enforcement and orderly administration" of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1996. TRD-9617695 Everette D. Jobe General Counsel Texas Department of Banking Effective date: December 27, 1996 Proposal publication date: September 6, 1996 For further information, please call: (512) 475-1300 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 11. Health Maintenance Organizations The Texas Department of Insurance adopts amendments to Chapter 11, concerning health maintenance organizations (HMOs), by amending sec.11.2 and adding new sec.11.1404 and sec.11.1605. The sections are adopted with changes to the proposed text as published in the July 5, 1996, issue of the Texas Register (20 TexReg 6203). These amendments are necessary to implement amendments to the Insurance Code, Article 21.52B, enacted by the 74th Legislature, 1995, in Senate Bill 628, relating to access for consumers to pharmaceutical services through health insurance policies and managed care health plans, including HMOs. The amendments are also necessary to address concerns based on review of complaints and formal and informal comment that some HMOs have established unreasonable application procedures for pharmacies or pharmacists who seek to participate as contract providers in an HMO delivery network. In addition, the amendments are necessary to enhance consumer access to pharmaceutical services, to promote consumer freedom of choice in selecting qualified pharmacists, and to provide fairness to pharmacies and pharmacists by defining reasonable application fees and by requiring that HMOs apply all contract conditions to pharmacies and pharmacists uniformly. Section 11.2 provides definitions used in the sections. The definitions are consistent with statutory definitions set forth in Article 21.52B, except the definition of "pharmaceutical services" includes an additional sentence to clarify mail order prescription drug services are not included. Comments received from HMOs, pharmacists and legislative members prior to and subsequent to publication of these definitions indicated that in-state and out-of-state mail order pharmacies should not be included. The definition of "pharmacy" published in the Texas Register excluded out-of-state mail order pharmacies. Based on a comment that the exclusion would be more appropriately placed in the definition of "pharmaceutical services" than in the definition of "pharmacy" and comments that in-state as well as out-of-state mail order services should be excluded, the agency has deleted the exclusion from the definition of "pharmacy" and added a sentence to the definition of "pharmaceutical services" to clarify mail order services are not included. Section 11.1402(e) was proposed based upon information that during the calendar year 1996 some HMOs have not applied the same terms and conditions to all their pharmacy contract providers or have set terms and conditions so that only a select few pharmacies and pharmacists could qualify, thereby denying many pharmacies and pharmacists participation as contract providers in accordance with the provisions of Article 21.52B or under more favorable application provisions. The department intended to apply an initial open 20-day application period for pharmacies and pharmacists to allow HMOs to comply with the provisions of Article 21.52B and these sections. Upon review of comments and further consideration, however, proposed sec.11.1402(e) has been deleted as unnecessary because many HMOs will soon provide a 20-day open application period in 1997 for physicians and providers, including pharmacies and pharmacists. HMOs are currently required under sec.11.1402(a)(3) of this title to publish notice of an application period for physicians and providers for five consecutive days during the period of January 2nd through January 23rd of each calendar year. The notification informs providers and physicians of the specific dates of the 20- day application period during the calendar year that the HMO is accepting applications. The next notification period required of HMOs to notify physicians and providers, including pharmacies and pharmacists, is January 2nd through January 23rd, 1997. In lieu of requiring a separate application period for pharmacies and pharmacists, the department expects HMOs to allow pharmacies and pharmacists to apply to participate as contract providers at all times prior to the HMOs' 20-day open application period for 1997. Pharmacies and pharmacists must be given an opportunity to apply under the provisions of Article 21.52B and these sections. Section 11.1404(a) and (b) establishes criteria for reasonable fees for application and recertification allowed under Article 21.52B sec.2(c)(3). The agency received complaints that many pharmacists were effectively prevented from participating in HMO delivery networks because of excessive and unaffordable application and recertification fees. The agency received evidence that as much as $1000.00 per application was being charged. Evidence indicated most, if not all, insurers had not charged an application or recertification fee for pharmacists prior to passage of Article 21.52B. Based upon written comments and testimony at the public hearing, the commissioner believes $50.00 should be the maximum allowable application or recertification fee and has changed paragraph (1) of sec.11.1404(b)(1) accordingly. The criteria set forth in paragraphs (2)- (5) of sec.3.11004(b) is a reasonable interpretation of language in Article 21.52B sec.2(c)(3) and the definition of "pharmacy" in Article 21.52B sec.1(4). These criteria are established also based upon comments from independent pharmacies and pharmacists that insurers were unfairly charging only one application fee to all pharmacies rather than a separate application fee to each pharmacy participating under a single corporate owned entity. Section 11.1404(c) addresses concerns based on evidence that some HMOs have been requiring financial information and deposits or other monies, other than reasonable application fees, as a means to discourage pharmacists from applying to participate. Based on evidence received by the department, the Commissioner has determined that requiring financial information and deposits is not a reasonable term or condition imposed by insurers on pharmacies and pharmacists. Throughout sec.11.1404 it is clear that the provisions apply to application and recertification fees. Section 11.1404(c) contemplates recertification fees in the language, "any pharmacy or pharmacist participating ... as a contract provider." For this reason, "and recertification" has been added before "fees" in sec.11.1404(c)(2) to avoid confusion and to clarify that this provision applies to "application" as well as "recertification" fees. The language in sec.11.1605(a) closely follows the language of Article 21.52B sec.2(a)(2), which requires a policy or plan to apply the same administrative, financial and professional conditions to pharmacies and pharmacists applying to participate in a plan as are applied to those already participating. Subsections (b) and (c) of sec.11.1605 are intended to enhance accessibility to pharmaceutical services. The department has changed sec.11.1605(b) and (c) based upon a commenter's suggestion to use the term "additional compensation" instead of "differential compensation". This change clarifies the department's intent. The subsections allow for additional compensation and reimbursement under certain circumstances. Section 11.1605(b) is based upon information the department has received that pharmacies and pharmacists, which provide pharmaceutical services requiring specialized skill or knowledge, will not accept the same compensation and reimbursement rates as are paid for ordinary pharmaceutical services. For this reason, the department has identified pharmaceutical services which may not be accessible to enrollees when additional compensation or reimbursement is not paid by HMOs to pharmacies and pharmacists providing these services. Based upon comments that "home intravenous drug therapy" is too limiting, "home intravenous drug therapy" in subsection (b)(3) has been changed to "injectable drug therapy" as suggested by a commenter. The term intravenous drug therapy includes injectable drug therapies. This subsection is only applicable to pharmacies and pharmacists which provide pharmaceutical services, including injectable drug therapies, and does not apply to home health care agencies. This subsection permits, but does not require, an HMO to reimburse or compensate at a higher amount for preparing and dispensing injectable drug therapy. Section 11.1605(c) allows additional compensation or reimbursement rates in counties with a population of less than 40,000. Subsection (c) is based upon evidence received by the department that in many instances, HMOs negotiate very low rates on a statewide or nationwide basis with chain drug stores to provide pharmacy services in rural areas. Many small independently owned pharmacies or pharmacists are financially unable to accept such low rates and refuse to contract with the HMOs to provide pharmaceutical services in rural areas. This subsection allows HMOs to pay additional compensation or reimbursement to the small independently owned pharmacies and pharmacists in order to enhance enrollee access to pharmaceutical services in rural areas. In addition and in response to the commenters, accessibility and availability is important when HMOs contract with pharmacies. The department believes there may be certain circumstances when a variation in terms and conditions is needed for the purpose of enhancing accessibility to pharmaceutical services, including rural areas, and that flexibility may be needed when an HMO contracts with a pharmacy or pharmacist. New sec.11.1605(d) has been added in response to comments to allow HMOs to file with the department for approval terms and conditions, including increased compensation or reimbursement, that enhance accessibility. New sec.11.1605(d) has been established as an alternative for HMOs which establish terms and conditions to enhance consumer accessibility to pharmaceutical services. Proposed sec.11.1605(d) has been changed to new sec.11.1605(e). The intent of sec.11.1605(e) is to ensure that enrollees are not charged "double copayments" or any amount higher than the copayment plus the differential between the cost of a brand name drug and the generic equivalent of a drug. The word "copayment" has been changed to "an amount" and "and" has been changed to "plus" in order to clarify the provision as recommended by a commenter but the words "of the prescription drug if the prescription indicated that the drug must be dispensed as written" remain in order to delineate the application of the provision. Department staff have received information that in some cases, HMOs have charged "double copayments" or otherwise imposed charges such that enrollees have paid a full brand name price for a prescription drug, despite representations concerning pharmacy benefits. Although such practices are prohibited under the HMO Act, the subsection gives HMOs additional notice of what are considered as unacceptable practices. The department does not currently receive complaints concerning this provision in regards to insurers. The sections as adopted differ in some respect from the proposed published sections based on study generated by comments received. Specific changes and reasoned justification for the sections and agency responses to comments are addressed in Section 4, Summary of Comments. Section 11.2(b), as amended, defines "pharmaceutical services," "pharmacist," and "pharmacy." The terms are necessary to clarify the meaning of these amendments. Additionally, sec.11.2(b), as amended, corrects the existing definition of "premium" by substituting "charge" for "rate" and deleting "based on the capitation". This amendment is necessary to accurately define "premium" as the term is most commonly used by industry and the department and to minimize confusion between the definitions of "capitation" and "premium". Proposed amended sec.11.1402(e) has been deleted based upon comments. Section 11.1404, as amended, establishes criteria for reasonable fees for application and recertification, if any are charged, and prohibits an HMO from requiring financial information or the payment of compensation other than reasonable fees for application and recertification. Section 11.1605, as amended, requires HMOs to apply all administrative, financial and professional conditions to all pharmacies and pharmacists uniformly; allows HMOs to establish additional compensation or reimbursement for certain pharmaceutical services or products for purposes of enhancing access to pharmaceutical services as long as rates are uniformly applied; allows HMOs to establish additional compensation or reimbursement for pharmaceutical services in certain counties for purposes of enhancing access to pharmaceutical services in those counties as long as rates are uniformly applied within each county; allows HMOs upon receiving prior approval from the department to establish differential terms and conditions for the purpose of enhancing access to pharmaceutical services; and prohibits an HMO from charging an amount higher than the copayment charged for the generic equivalent of a prescription drug plus the differential between the cost of a brand name prescription drug and a generic equivalent prescription drug if the prescription indicates that the drug must be dispensed as written. General. Several commenters expressed appreciation to the agency for soliciting input from various interested parties. Several commenters expressed full or general support for the sections as proposed. Other commenters made suggestions for recommended changes. These commenters stated that the sections will provide equal access to pharmacies and pharmacists for consumers, will ensure quality of care and will control costs. A few commenters complimented staff for their work on the proposed rules. Agency Response: Prior to proposing these sections the agency conducted informal meetings and discussions with interested parties including HMOs, insurers and insurer organizations, pharmacists and pharmacy organizations, and legislative members. The agency based some provisions of the proposed rules upon the information it received informally. The agency also reviewed complaints received concerning the establishment of unreasonable application procedures and fees for pharmacies and pharmacists seeking to participate as contract providers. Written public comments on the proposed sections were received and a public hearing was held by the agency to receive additional public comment. Based on further study generated by the public comment, the commissioner has made changes to certain of the sections. The agency appreciates the comments it has received and the information provided at the public hearing. Additional provisions requested. A commenter requested that the word "pharmacist(s)" be substituted for the word "provider(s)" wherever it appears in the sections, including in the agency's description of the statutory authority which references Insurance Code art. 20A.14(g), because the intent is for the sections to apply to pharmacists rather than to other types of providers. The commenter believes that providers other than pharmacists may interpret the sections as applying to them. A commenter stated that it is imperative that infusion pharmacies be named as included in the sections. Another commenter seeks clarification whether home health care providers are excluded from the sections. A commenter expressed that HMOs and insurers contract directly with home health care agencies which then subcontract with pharmacists for delivery of home care infusion services. This commenter noted that HMOs and insurers avoid having to comply with Article 21.52B by not contracting directly with home infusion care pharmacists. A few commenters expressed concerns that third party payors are threatening pharmacies and pharmacists with desk-audits and penalties when generics are not substituted as much as the payor determines appropriate. One commenter requested a specified reimbursement time frame and a requirement that HMOs update drug cost daily just like pharmacies and wholesalers so that pharmacies are not reimbursed based on outdated drug costs. This commenter also expressed concerns that prescription plan payors pressure pharmacists to ask physicians to change their prescription; HMOs should not be allowed to arbitrarily delete certain drugs from the formulary; and pharmacies are not allowed to collect the full copayment for drugs. One commenter requested the addition of punitive measures to the rules to give incentives to insurers to follow the intent of Article 21.52B. Agency Response: Substitution of the word "pharmacist(s)" for the word "provider(s)" is unnecessary. The commenter has not identified any particular section which might be interpreted as applying to types of providers other than pharmacists. It is clear from the context of the sections that the sections are applicable to the provision of pharmacy services by pharmacies and pharmacists, rather than to other types services or providers. The agency's statement of its statutory authority for the sections correctly reflects the language in Insurance Code, Article 20A.14(g) which employs the term "provider." Provider is defined by Insurance Code, Article 20A.02(n) to include pharmacists and pharmacies. The sections apply to pharmacies and pharmacists, including home infusion care pharmacists, who apply to participate as contract providers under an HMO plan for the provision of pharmaceutical services. The sections do not apply to home health care providers who apply to participate as contract providers under an HMO plan. However, an HMO which provides or arranges to provide pharmaceutical services as part of its health care plan must assure that all provider contractors and subcontractors within the HMO health care delivery network comply with Article 21.52B and these sections. This means that an HMO which contracts directly with a properly licensed home health care agency must assure that the home health care agency does not deny a home infusion care pharmacist or pharmacy the right to participate as a contract provider in accordance with Article 21.52B and these sections. No provision in Article 21.52B or these sections requires an HMO to contract directly with pharmacists and pharmacies, including home infusion care pharmacists and pharmacies. Comments regarding concerns that were not addressed in the proposed sections have been noted and will be monitored by the department. Fairness to pharmacies and pharmacists which contract with HMOs is a necessary component related to the availability, accessibility, and continuity of pharmacy services. Proper utilization and cost management of pharmacy services by HMOs is also a necessary component related to the availability, accessibility, and continuity of pharmacy services. HMO practices should encompass both fairness to pharmacies and pharmacists and proper utilization and cost management of pharmacy services. HMO practices which have the effect of encouraging or pressuring pharmacies and pharmacists to violate the law should be reported to the department. The Insurance Code contains provisions which authorize the agency to take administrative enforcement actions as warranted against entities that violate the Code or rules adopted by the agency. In light of those provisions, the agency believes it is unnecessary to add "punitive measures to the rules" as suggested by the commenter. sec.11.2. Definitions. A commenter requested the addition of a definition of "HMO Delivery Network". Agency Response: This term was defined in rules adopted by the agency in March of 1996 in sec.11.2(b)(14) as a health care delivery system in which an HMO arranges for health care services directly or indirectly through contracts and subcontracts with providers, physicians, other HMOs and approved nonprofit health care corporations. Therefore it is unnecessary to add the definition to these rules. sec.11.2(19) - Pharmacy. Several commenters requested that language be added to the definition of "pharmacy" excluding in-state mail order pharmaceutical services as well as out-of-state mail order pharmaceutical services. One of these commenters suggests that the exclusion would be more appropriately placed in the definition of "pharmaceutical services" than in the definition of "pharmacy." One commenter agreed the exclusion of mail order is appropriate. One commenter seeks clarification whether home health care providers are excluded from the definition of pharmacy. Agency Response: The agency intended to exclude mail order pharmacies (whether in-state or out-of -state) in the definition. The agency has made changes by placing the exclusion language in the definition of "pharmaceutical services" as recommended by the commenter. Home health care providers are excluded from the definition of pharmacy. The definition of "pharmacy" does not include home health care providers which do not hold a license under the Pharmacy Act. Article 21.52B and these sections apply to pharmacies and pharmacists which contract or subcontract to deliver pharmacy services on behalf of an HMO. sec.11.1402. Notification to Providers. One commenter expressed support for proposed sec.11.1402(e). One commenter requested clarification whether another application period in 1996 is necessary if the HMO has already had a 20-day application period. Several commenters stated that following the initial open 20-day application period, HMOs should be allowed to apply the standard yearly open application period applicable to all other providers. These commenters requested a change to the provision requiring notification of a pharmacy application period. One commenter wants notification to pharmacists in the Texas Register. A few commenters suggested that HMO notifications should be sent to the department and the department would in turn notify interested pharmacies and pharmacists. One commenter stated that there may be problems with the department being responsible for the listing, because the HMO may file the listing after the notice period. In addition, the commenter suggested that the department publish or distribute the listing in the world wide web. A commenter suggested that a provision be added to the rule to require an insurer to acknowledge receipt of the application or recertification within 30 days of receipt. Agency Response: The department did not intend to establish a separate yearly application period for pharmacy applications following the initial application period. Upon review of comments and further consideration, proposed sec.11.1402(e) has been deleted as unnecessary because many HMOs will soon be providing a 20-day open application period for physicians and providers, including pharmacies and pharmacists. Most, if not all, HMOs have already held a 20-day open application period during 1996 and will publish notice of the 20-day open application period in January, 1997. HMOs are currently required under sec.11.1402(a)(3) of this title to publish notice of an application period for physicians and providers for five consecutive days during the period of January 2 through January 23 of each calendar year. The notification informs providers and physicians of the specific dates of the 20-day application period during the calendar year the HMO is accepting applications. The next notification period required of HMOs to notify providers, including pharmacies and pharmacists, is January 2nd through January 23rd, 1997. In lieu of the separate application period required under proposed sec.11.1402(e), the department encourages HMOs to allow pharmacies and pharmacists to apply to participate as contract providers at all times prior to the HMOs' 20-day open application period. Pharmacies and pharmacists must be given an opportunity to apply as soon as possible under the provisions of Article 21.52B and these sections. The department has received information that some HMOs have not applied the same terms and conditions to all their pharmacy contract providers or have set terms and conditions so that only a select few pharmacies and pharmacists could qualify, thereby denying many pharmacies and pharmacists participation as contract providers. HMOs must allow pharmacies and pharmacists to participate as contract providers in accordance with the provisions of Article 21.52B or under more favorable application provisions. Pursuant to sec.11.1402(c), HMOs must file a copy of the published notice of its open application period with the HMO section for information, within 15 days of publication. The department's HMO section currently maintains a database of information contained in copies of the published notices filed with the department. Some HMOs may hold their open application periods in January or the first part of February and file their published notice during this same time period. In these instances, the department receives the filed information too late to be useful to pharmacists. The department will consider publishing information it receives from HMOs in the Texas Register and the world wide web, but the information may not provide timely advanced notice of the open application period for every HMO. To remedy this problem, the department will request HMOs to notify the department of their open application periods prior to publication. At this time the agency believes that the change requested by the commenter to require an HMO to acknowledge receipt of the application or recertification within 30 days is unnecessary. Prior to receipt of this comment, the agency has not been aware that failure to acknowledge receipt of an application or recertification to participate as a contract provider is a problem. The agency will monitor and evaluate complaints concerning this matter in the future. sec.11.1404. Pharmacy Application and Recertification. sec.11.1404(a). One commenter supported the language as proposed and suggested no changes, stating that the section is entirely appropriate. Another commenter stated that this section should be stricken. Several commenters oppose the proposed $200.00 application and recertification fee as being unnecessary or excessive. One commenter stated that applying an application or recertification fee per individual licensed pharmacy is unreasonable. A few commenters expressed concern that a cap of $200.00 per application fee will become the standard fee for all HMOs and insurers. One commenter noted that Article 21.52B does not prohibit an HMO from charging reasonable application and recertification fees but does not authorize the imposition of such fees. Another commenter stated that $25.00 would be reasonable as a limit on application and recertification fees. Another commenter noted that the Board of Pharmacy administers and regulates pharmacy practice for all pharmacy licensees for less than the $200.00 proposed fee; fees for an independent pharmacy which has many plans would be cost prohibitive; and only the largest corporate providers would be able to afford the fees. Several commenters question why pharmacies are being singled out to pay an application fee. These commenters note that prior to passage of Senate Bill 628 HMOs did not charge pharmacy providers an application fee and that no other fee is charged of other health care providers to participate. One commenter stated that allowing insurers and HMOs to charge such fees to pharmacies is unfairly discriminatory against pharmacies as a class of providers; since pharmacies provide essentially one product, the level of review and cost for credentialing is much lower than for other types of providers; most insurer networks and HMOs currently require pharmacies to provide their own credentials and evidence of good standing with the Texas State Board of Pharmacy as a condition of participation; and allowing insurers and HMOs to charge an application fee of $200.00 per pharmacy will allow insurers and HMOs to subsidize administrative costs in other areas with the pharmacy application fees which was not intended by the Article 21.52B. A few commenters state that the $200.00 application or recertification fee per licensed pharmacy is not reasonable because an HMO contracts per applicant, or corporate entity, not with each individual pharmacy the applicant controls or operates. One of these commenters added that there are no additional costs to an HMO to determine the qualifications of a chain drug store company to participate within its network. One commenter, which contracts with a general pharmacy entity, not each individual pharmacy controlled or operated by the general pharmacy entity, comments that administrative expenses in the application process are generally not considerably greater than they would be for an individual pharmacy. Additionally, this commenter states that $200.00 does not begin to compensate for administrative costs and suggests that the application fee be either higher or left to the HMO's discretion. One commenter states that the section is internally inconsistent because it requires the fee to be "reasonable " but charged to "each licensed pharmacy." Because of the nature of economies of scale, the costs involved with application and recertification of a single location of a large pharmacy chain are much smaller than the cost involved with application and recertification of a single independent pharmacy. Therefore, allowing an insurer to charge the same fee to each location in a large store chain as it does for a single independent pharmacy results in the charge to the chain being "unreasonable" in comparison to the actual cost involved. One commenter stated that pharmacies currently contracting with insurers and HMOs should be "grandfathered" or not charged a fee since the insurer or HMO will incur no or little administrative fees with regard to existing providers. Another commenter requested clarification concerning how recertification fees will be applied and suggested a $200.00 recertification fee is unreasonable because less costs are involved. Agency Response: New sec.11.1404(a) is appropriate, necessary and consistent with the meaning and intent of Article 21.52B. However, based upon comments, the commissioner believes that a fee which does not exceed $50.00, instead of $200.00 as proposed, is reasonable and changes have been made accordingly to sec.11.1404(a)(1). Based on prior agency experience, the commissioner disagrees that a reasonable fee should be determined by the market place or left to other HMOs' discretion. The agency has received information that some HMOs have set application and recertification fees as high as $1000.00 per applicant. This information has indicated to the agency that a higher fee can present significant financial burdens to small independently owned pharmacies and, if such pharmacies are thus unable to apply to participate as contract providers, could ultimately result in restricting access to pharmaceutical services for many HMO enrollees. The agency did not intend this subsection to single out pharmacies to pay an application fee to insurers. HMOs are encouraged to not charge application or recertification fees. However, Article 21.52B explicitly states that it does not prohibit establishment of reasonable application and recertification fees for pharmacy contract providers. Subsection 11.1404(a) provides guidance concerning what the agency considers reasonable under Article 21.52B for HMOs which choose to impose application and recertification fees. The subsection does not mandate that HMOs must charge an application and recertification fee, nor does it mandate that HMOs must charge $50.00; rather the subsection established $50.00 as the maximum amount of charge that will be considered reasonable. If charging this amount would result in fees greatly exceeding the actual resources expended in processing applications, such fee would not be considered reasonable and a plan should charge less than the limit. The subsection contains no prohibition against spreading administrative costs among large and small pharmacies. The agency believes that spreading these administrative costs would address the commenter's concerns about excessive fees and inadequate fees. Moreover, Article 21.52B sec.2(c)(3) states that fees may be established for a "pharmacy." That term is defined in sec.1 of the statute as a facility licensed under the Pharmacy Act. Corporate entities owning multiple pharmacies are not licensed as facilities and thus do not meet this definition. The agency disagrees that current contracting pharmacies should be "grandfathered" or not charged a recertification fee. Article 21.52B requires that the fee, if there is one, be charged on a uniform basis. Current contracting pharmacies may not be charged an application fee if the application has been accepted prior to adoption of these rules. However, current contracting pharmacies would be subject to a fee upon filing for recertification if the HMO plan charges a recertification fee for other pharmacies. Recertification fees will be applied the same as application fees. However, the agency presumes that HMOs will charge a lower amount than $50.00 for recertification fees because costs to the HMO for processing a recertification should be much lower than processing an initial application. sec.11.1605. Contracts for Pharmaceutical Services. One commenter stated that it would like the opportunity to have input on this section. Agency Response: The commenter has had an opportunity to have input on this and all sections by participating in the rulemaking process, including in the informal discussions staff has conducted with interested parties and in the public hearing. sec.11.1605(b). One commenter agrees that differential rates are appropriate. One commenter supports the flexibility of the language as a means to enhance accessibility for pharmaceutical services. However, the commenter would like the department to develop guidelines which would encourage an HMO to enhance accessibility to pharmaceutical services in urban areas. One commenter questions use of the word "differential" and suggests use of the word "incremental" or "additional compensation." A few commenters suggest that an HMO should file with the department for approval only its unique criteria for creating differentials and not the actual contract. One commenter opposes prior approval from the department but suggests the filings be handled the same as all other department filings such that, if the filing is not disapproved within 30 days, the filing is deemed approved. One commenter states that it is not reasonable to apply the same financial conditions to all pharmacies and pharmacists. Rates and compensation must be allowed to vary according to the marketplace and cannot be uniformly applied throughout the state. Another commenter stated that sec.11.1605(b) is appropriate in concept in that it allows an HMO the ability to establish differential financial terms and conditions for access reasons. This commenter, however, suggested a different approach to enhance accessibility of pharmaceutical services than the language proposed. According to the commenter, HMOs should be allowed to establish varying terms and conditions to enhance access as long as they are uniformly applied to all pharmacies in compliance with criteria established by the HMO and disclosed to potential applicants in the application process. Another commenter also stated that the section should allow HMOs to develop internal criteria for varying terms and conditions to enhance access in, for example, rural areas such as differential compensation or reimbursement rates with the department having oversight of the internal criteria. Agency Response: The section as proposed allows for variation in compensation and reimbursement rates under certain circumstances. Subsection (c) allows differential compensation or reimbursement rates in counties with a population of less than 40,000. The language in the section concerning application of the same financial conditions to all pharmacies and pharmacists closely follows the language of Article 21.52B sec.2(a)(2), which requires a health insurance policy or managed care plan to apply the same administrative, financial and professional conditions to pharmacies and pharmacists applying to participate in a plan as are applied to those already participating. In addition and in response to the commenters, accessibility and availability is important when HMOs contract with pharmacies. The department agrees that there may be certain circumstances when a variation in terms and conditions is needed for the purpose of enhancing accessibility to pharmaceutical services, including rural areas, and that flexibility may be needed when an HMO contracts with a pharmacy or pharmacist. New sec.11.1605(d) has been added to allow HMOs to develop terms and conditions, including increased differential rates that enhance accessibility, with approval of the department. The department intends to establish guidelines in accordance with the requirements under Article 21.52B for review of any HMO's unique criteria for enhancing enrollee accessibility to pharmaceutical services. New sec.11.1605(d) has been established as an alternative for HMOs which establish terms and conditions to enhance consumer accessibility to pharmaceutical services. In order to efficiently determine accessibility of services, the actual contract between the HMO and pharmacy or pharmacist must be filed with the department as well as any other terms and conditions which are not stated in the contract. The department will have 30 days to review the contract from the time the filing is complete or the filing will be deemed approved. sec.11.1605(b)(1). One commenter requested that the differential reimbursement for compounding be submitted on-line to the HMO because handwritten claim forms cause payment delays and uncertainty of reimbursement rate. Agency Response: The method used by HMOs to reimburse or compensate pharmacies and pharmacists such as use of on line adjudication of claims, is beyond the scope of these sections and Article 21.52B. Furthermore, the department lacks authority to require on line adjudication of claims. sec.11.1605(b)(2). One commenter requested that the amount of the controlled substance reimbursement be defined, because pharmacies lose money on these prescriptions. Agency Response: The amount of reimbursement or compensation paid by HMOs to pharmacies and pharmacists is beyond the scope of these sections and Article 21.52B. The department lacks authority to set amounts of reimbursement or compensation. sec.11.1605(b)(3). A few commenters support the inclusion of intravenous drug therapy for home patients. One of these commenters stated that patients have been limited in their choice of provider for this type of service. Home health providers are often capitated and paid differently than pharmacists. One commenter states that home intravenous drugs is just a subset of all injectable drug therapies and that the definition may be too limiting. Several commenters stated that the provision allowing differential compensation for home intravenous drug therapy is too broad. According to the commenters, home intravenous drug therapies are basic health care services rather than pharmaceutical services and are provided by home health care agencies rather than pharmacists. The commenters believed that the agency's intent was to establish regulations for pharmaceutical services only and recommended that the language be changed to read "preparing and/or dispensing injectable drug therapies." Agency Response: The purpose of sec.11.1605(b)(3) is to enhance accessibility to pharmaceutical services. The department has received information that pharmacies and pharmacists, which provide pharmaceutical services require specialized skill or knowledge, will not accept the same compensation and reimbursement rates as are paid for ordinary pharmaceutical services. For this reason, the department has identified pharmaceutical services which may not be accessible to HMO enrollees when additional compensation or reimbursement is not paid by HMOs to pharmacies and pharmacists providing these services. The department agrees with the commenters that "home intravenous drug therapy" is too broad and too limiting. "Home intravenous drug therapy" has been changed to "injectable drug therapy" as suggested by the commenter. The term intravenous drug therapy includes injectable drug therapies. This subsection is only applicable to pharmacies and pharmacists which provide pharmaceutical services, including injectable drug therapies, and does not apply to home health care agencies. This subsection permits, but does not require, an HMO to reimburse or compensate at a higher amount for preparing and dispensing injectable drug therapy. sec.11.1605(c). A few commenters disagreed with subsection (c) allowing differential rates to be established for pharmacies in counties of less than 40,000 population. One commenter stated that while the intent of subsection (c) appears to be to recognize the special access needs for rural pharmacies, the subsection is not appropriate. Another commenter stated that the subsection might limit accessibility in rural counties because if small independent pharmacies charged higher rates, larger chain pharmacies might also demand higher reimbursement rates. Conversely, if lower reimbursement rates are paid to large chain pharmacies, independent pharmacies might not be able to contract with HMOs. The commenters request that the subsection be deleted and that language be substituted allowing HMOs to develop their own criteria which would be applied on a uniform basis. The agency could review these criteria to ensure HMOs are meeting the overriding policy of providing access in rural counties. One commenter believes the same reimbursement rate should be applied for all pharmacies and pharmacists and that the rates should be equally applied without discrimination. Agency Response: The agency agrees with the commenters that the intent of the provision was to enhance access in rural counties and has made the changes set forth in the response to comments under sec.11.1605 above. The agency disagrees that the same reimbursement rate should be applied for all pharmacies and pharmacists. The purpose of Article 21.52B is to prohibit managed care plans which provide or arrange to provide pharmaceutical services from limiting beneficiary access to pharmaceutical services. In many instances, HMOs negotiate very low rates on a statewide or nationwide basis with chain drug stores to provide pharmacy services in rural areas. Many small independently owned pharmacies or pharmacists are financially unable to accept such low rates and refuse to contract with the HMOs to provide pharmaceutical services in rural areas. This subsection allows HMOs to pay additional compensation or reimbursement to the small independently owned pharmacies and pharmacists in order to enhance beneficiary access to pharmaceutical services in rural areas. sec.11.1605(d). One commenter suggested that subsection (d) be revised as follows: An HMO shall not charge an amount higher than the copayment charged for the generic equivalent of a prescription drug plus the differential between the cost of a brand name prescription drug and a generic equivalent. A few commenters supported these clarifying revisions to subsection (d). A few commenters requested the deletion of subsection (d). One of these commenters stated that although there is no restriction regarding the subject matter of these rules, it is inappropriate to place this subsection within sections concerning pharmacy contracting. The commenter further stated that many HMOs attempt to explain pharmacy benefits to their members so that the provision is unnecessary. This commenter also stated that if the subsection is adopted it should also be applied to indemnity insurers and PPOs. Another of these commenters questioned the statutory authority for the subsection and stated that the subsection is unnecessary because HMO enrollees have not had problems with their pharmacy benefits which would warrant the inclusion of the subsection. One commenter stated support for this provision. The commenter also stated that pharmacists are often subject to desk audits and are often billed when they exceed the average dispensed name brand drugs amount. The commenter believes it is unreasonable for the pharmacist to pay the difference between the average dispensed name brand and generic drug amount. Agency Response: The intent of this subsection is to ensure that enrollees are not charged "double copayments" or any amount higher than the copayment plus the differential between the cost of a brand name drug and the generic equivalent of a drug. The word "copayment" has been changed to "an amount" and "and" has been changed to "plus" in order to clarify the provision as recommended by the commenter but the words "of the prescription drug if the prescription indicated that the drug must be dispensed as written" remain in order to delineate the application of the provision. The agency agrees that the sections need not be limited to pharmacy contract matters but disagrees that there is no need for the section. Agency staff have received information that in some cases, HMOs have charged "double copayments" or otherwise imposed charges such that enrollees have paid full brand name price for a prescription drug, despite representations concerning pharmacy benefits. Although such practices are prohibited under the HMO Act, the subsection gives HMOs additional notice of what are considered as unacceptable practices. The agency does not currently receive complaints concerning this provision in regards to insurers. For: Gary King Pharmacy, Inc., Home Intensive Care Pharmacy, Gibson's Caprock Drug; . For with changes: Texas HMO Association, The Prudential, PCA Health Plans of Texas, Harris Methodist; Sunbelt Pharmacare; Texas Pharmacy Association; Texas Federation of Drug Stores; Legend Pharmacies of Texas; Eckerd Corporation. Requested hearing: Eckerd Corporation, Texas Pharmacy Association, Texas Federation of Drug Stores. SUBCHAPTER A. General Provisions 28 TAC sec.11.2 The amendment is adopted under the Insurance Code, Articles 20A.22; 21.52B; 20A.14(g) and (h); 20A.04(b) and 1.03A. The Insurance Code, Article 20A.22 provides that the department may promulgate such reasonable rules and regulations as are necessary and proper to carry out the provisions of the Texas HMO Act. Article 21.52B, as amended by the 74th Legislature, 1995, in Senate Bill 628 relating to access to pharmaceutical services through certain managed care health plans, prohibits an HMO from limiting provider participation in an HMO delivery network by any pharmacy or pharmacist who meets the terms and requirements established by the HMO. Article 21.52B, as amended, also allows an HMO to establish reasonable application and recertification fees for a pharmacy which provides services as a network provider under an HMO health care plan, provided that the fees are uniformly charged to each pharmacy. Article 20A.14(g), as amended by enactment of the 74th Legislature, 1995, in Senate Bill 628, provides that no type of provider may be denied participation to provide health care services which are delivered by the HMO and which are within the scope of licensure or authorization of the type of provider on the sole basis of type of license or authorization; allows HMOs to set terms and conditions under which health care services will be rendered by providers; and establishes that providers must comply with the terms and conditions established by the HMO for the provision of health care services and for designation as a provider. Article 20A.14(h) establishes that an HMO that provides coverage through one or more providers or physicians who are not partners or employees of the HMO or one or more providers or physicians that are not owned or operated by the HMO shall provide a 20-calendar day period each calendar year during which any provider or physician in the geographic service area may apply to participate in the provision of health care services or medical care under the terms and conditions established by the HMO. Article 20A.04(b) provides the department may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require an HMO, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the HMO to indicate the modifications to the Texas Board of Health and the Commissioner of Insurance at the time of the next site visit or examination. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by statute. The Government Code, sec.sec.2001.004 et seq. authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and prescribes the procedures for adoption of rules by a state administrative agency. sec.11.2. Definitions. (a) (No change.) (b) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(16) (No change.) (17) Pharmaceutical services - Services, including dispensing prescription drugs, as defined in the Pharmacy Act, Texas Civil Statutes, Article 4542a-1 sec.5 that are ordinarily and customarily rendered by a pharmacy or pharmacist licensed to practice pharmacy under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1. The term does not include mail order services. (18) Pharmacist - A person licensed to practice pharmacy under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1. (19) Pharmacy - A facility licensed under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1, sec.29. (20) Physician - Consists of the following: (A) an individual licensed to practice medicine in this state; (B) a professional association organized under the Texas Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes) or a nonprofit health corporation certified under Section 5.01, Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes); or (C) another person, as defined in paragraph (16) of this subsection, wholly owned by physicians. (21) Premium - The prospectively determined charge, that is paid by or on behalf of a subscriber for specified health services. (22) Primary care physician or primary care provider - A physician or provider who is responsible for providing initial and primary care to patients, maintaining the continuity of patient care, and initiating referral for care. (23) Primary HMO - An HMO that contracts directly with, and issues an evidence of coverage to, individuals or organizations for the primary HMO to arrange for or provide a health care plan or a single health care service plan to enrollees on a prepaid basis. (24) Prospective Enrollee - In the case of a member of a group, an HMO, an individual eligible for enrollment in an HMO purchased through that individual's group. In the case of an individual who is not a member of a group or whose group has not purchased or does not intend to purchase an HMO plan, "prospective enrollee" means an individual who has expressed an interest in purchasing individual HMO coverage and who is eligible for coverage by the HMO. (25) Provider - Consists of the following: (A) any person, as defined in paragraph (16) of this subsection, other than a physician, including a licensed doctor of chiropractic, registered nurse, pharmacist, optometrist, pharmacy, hospital, or other institution or organization or person that is licensed or otherwise authorized to provide a health care service in this state; (B) a person, as defined in paragraph (16) of this subsection, who is wholly owned or controlled by a provider or by a group of providers who are licensed to provide the same health care service; or (C) a person, as defined in paragraph (16) of this subsection, who is wholly owned or controlled by one or more hospitals and physicians, including a physician-hospital organization. (26) Provider HMO - An HMO that contracts directly or indirectly, through contracts or subcontracts, with a primary HMO to provide or arrange to provide health care services on behalf of the primary HMO within an HMO delivery network. (27) Qualified HMO - An entity which has been federally approved under Title XIII of the Public Health Service Act, Public Law 93-222, as amended. (28) Rules - All sections under this chapter. (29) Schedule of charges - The specific rates or premiums to be charged for a single enrollee, a two-member family, three-member family, etc. (30) Service area - The geographical area within which direct service benefits are available and accessible to HMO enrollees. (31) Subscriber - If nongroup coverage, the person who is the policyholder and is responsible for payment of premiums to the HMO; or if group coverage, the person who is the certificate holder and whose employment or other status, except for family dependency, is the basis for eligibility for membership in the HMO. (32) Surplus - The admitted assets minus uncovered liabilities. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1996. TRD-9617531 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 25, 1996 Proposal publication date: July 5, 1996 For further information, please call: (512) 463-6327 SUBCHAPTER O. Administrative Procedures 28 TAC sec.11.1404 The new rule is adopted under the Insurance Code, Articles 20A.22; 21.52B; 20A.14(g) and (h); 20A.04(b) and 1.03A. The Insurance Code, Article 20A.22 provides that the department may promulgate such reasonable rules and regulations as are necessary and proper to carry out the provisions of the Texas HMO Act. Article 21.52B, as amended by the 74th Legislature, 1995, in Senate Bill 628 relating to access to pharmaceutical services through certain managed care health plans, prohibits an HMO from limiting provider participation in an HMO delivery network by any pharmacy or pharmacist who meets the terms and requirements established by the HMO. Article 21.52B, as amended, also allows an HMO to establish reasonable application and recertification fees for a pharmcy which provides services as a network provider under an HMO health care plan, provided that the fees are uniformly charged to each pharmacy. Article 20A.14(g), as amended by enactment of the 74th Legislature, 1995, in Senate Bill 628, provides that no type of provider may be denied participation to provide health care services which are delivered by the HMO and which are within the scope of licensure or authorization of the type of provider on the sole basis of type of license or authorization; allows HMOs to set terms and conditions under which health care services will be rendered by providers; and establishes that providers must comply with the terms and conditions established by the HMO for the provision of health care services and for designation as a provider. Article 20A.14(h) establishes that an HMO that provides coverage through one or more providers or physicians who are not partners or employees of the HMO or one or more providers or physicians that are not owned or operated by the HMO shall provide a 20-calendar day period each calendar year during which any provider or physician in the geographic service area may apply to participate in the provision of health care services or medical care under the terms and conditions established by the HMO. Article 20A.04(b) provides the department may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require an HMO, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the HMO to indicate the modifications to the Texas Board of Health and the Commissioner of Insurance at the time of the next site visit or examination. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by statute. The Government Code, sec.sec.2001.004 et seq. authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and prescribes the procedures for adoption of rules by a state administrative agency. sec.11.1404. Pharmacy Application and Recertification. (a) An HMO subject to the requirements of the Texas Insurance Code, Article 21.52B, as amended, may establish reasonable application and recertification fees for each licensed pharmacy which participates or applies to participate as a contract provider in an HMO delivery network. (b) An application or recertification fee charged under this section shall be considered reasonable provided: (1) the fee does not exceed $50.00 per licensed pharmacy; (2) the fee shall be uniformly charged per application or recertification to each pharmacy holding a license issued by the Texas State Board of Pharmacy; (3) an HMO that contracts for the pharmaceutical services of more than one licensed pharmacy under common ownership or affiliation shall charge a separate fee for each licensed pharmacy; (4) no more than one fee per licensed pharmacy is charged by an HMO for processing an application or recertification for participation as a contract provider under more than one group or individual contract or in more than one HMO delivery network; and (5) no more than one fee per licensed pharmacy is charged by any HMO or insurer within the same insurance holding company system, as defined in the Insurance Code, Article 21.49-1, sec.2, utilizing common networks. (c) An HMO shall not require any pharmacy or pharmacist participating or applying to participate as a contract provider in an HMO delivery network: (1) to provide financial statements to the HMO; and (2) to deposit with the HMO any monies or other form of consideration, except for reasonable application and recertification fees. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1996. TRD-9617529 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 25, 1996 Proposal publication date: July 5, 1996 For further information, please call: (512) 463-6327 SUBCHAPTER Q. Other Requirements 28 TAC sec.11.1605 The new rule is adopted under the Insurance Code, Articles 20A.22; 21.52B; 20A.14(g) and (h); 20A.04(b) and 1.03A. The Insurance Code, Article 20A.22 provides that the department may promulgate such reasonable rules and regulations as are necessary and proper to carry out the provisions of the Texas HMO Act. Article 21.52B, as amended by the 74th Legislature, 1995, in Senate Bill 628 relating to access to pharmaceutical services through certain managed care health plans, prohibits an HMO from limiting provider participation in an HMO delivery network by any pharmacy or pharmacist who meets the terms and requirements established by the HMO. Article 21.52B, as amended, also allows an HMO to establish reasonable application and recertification fees for a pharmacy which provides services as a network provider under an HMO health care plan, provided that the fees are uniformly charged to each pharmacy. Article 20A.14(g), as amended by enactment of the 74th Legislature, 1995, in Senate Bill 628, provides that no type of provider may be denied participation to provide health care services which are delivered by the HMO and which are within the scope of licensure or authorization of the type of provider on the sole basis of type of license or authorization; allows HMOs to set terms and conditions under which health care services will be rendered by providers; and establishes that providers must comply with the terms and conditions established by the HMO for the provision of health care services and for designation as a provider. Article 20A.14(h) establishes that an HMO that provides coverage through one or more providers or physicians who are not partners or employees of the HMO or one or more providers or physicians that are not owned or operated by the HMO shall provide a 20-calendar day period each calendar year during which any provider or physician in the geographic service area may apply to participate in the provision of health care services or medical care under the terms and conditions established by the HMO. Article 20A.04(b) provides the department may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require an HMO, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the HMO to indicate the modifications to the Texas Board of Health and the Commissioner of Insurance at the time of the next site visit or examination. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by statute. The Government Code, sec.sec.2001.004 et seq. authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and prescribes the procedures for adoption of rules by a state administrative agency. sec.11.1605. Contracts for Pharmaceutical Services. (a) An HMO must apply the same administrative, financial, and professional conditions to all pharmacies and pharmacists participating or applying to participate as contract providers in an HMO delivery network. (b) An HMO may establish additional compensation or reimbursement for the following pharmaceutical services and products, as long as rates are uniformly applied to pharmacies and pharmacists participating as contract providers in an HMO delivery network: (1) compounding as defined under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1, sec.5; (2) dispensing of controlled substances as defined under the Pharmacy Act, Texas Civil Statutes, Article 4542a-1, sec.5; and (3) preparing and dispensing injectable drug therapies. (c) In order to enhance accessibility to pharmaceutical services, an HMO may establish additional compensation or reimbursement for pharmaceutical services in counties with a population of less than 40,000 (as determined by the most recent published findings from the State Data Center of the Texas Department of Commerce) as long as the rates are uniformly applied within each county to pharmacies and pharmacists participating as contract providers in an HMO delivery network. (d) As an alternative to subsections (b) and (c) of this section, an HMO may establish differential terms and conditions, including additional compensation and reimbursement for pharmaceutical services, for the purpose of enhancing accessibility to pharmaceutical services. A copy of the contract between the HMO and pharmacy or pharmacist, which includes such terms and conditions, shall be filed with the department for prior approval and the HMO must demonstrate how the different terms and conditions will enhance accessibility to pharmaceutical services. If approved by the department, the terms and conditions shall be disclosed to potential applicants in the application process. (e) An HMO shall not charge an amount higher than the copayment charged for the generic equivalent of a prescription drug plus the differential between the cost of a brand name prescription drug and a generic equivalent of the prescription drug if the prescription indicates that the drug must be dispensed as written. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1996. TRD-9617528 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 25, 1996 Proposal publication date: July 5, 1996 For further information, please call: (512) 463-6327 PART II. Texas Workers' Compensation Commission CHAPTER 133.General Medical Provisions SUBCHAPTER C.Second Opinions for Spinal Surgery 28 TAC sec.133.206 The Texas Workers' Compensation Commission (the commission) adopts an amendment to sec.133.206, concerning the spinal surgery second opinion process, with changes to the proposed text published in the October 1, 1996 issue of the Texas Register (21 TexReg 9414). Changes made to the proposed rule are in response to public comment received in writing and at a public hearing held on November 14, 1996, and are described in the summary of comments and responses section of this preamble. As required by the Government Code, sec.2001.033(1), the commission's reasoned justification is set out in this preamble. The reasoned justification is contained throughout the preamble, including the following portions: the reasons why the amendment is necessary; the factual, policy, and legal bases for the amendment; restatement of the factual basis of the rule; a summary of comments received; names of those who commented and whether the commenters were for or against adoption of the amendment; and the reasons why the agency disagrees with some of the comments, submissions, and proposals. Section 133.206 describes the process by which a carrier becomes liable for the costs of spinal surgery. The rule sets out procedures and liability for costs of a second-opinion examination and sets the fee for second opinions. The rule also sets qualifications for doctors to perform second opinions on spinal surgery and requires the commission to maintain a list of spinal surgeons and to provide sublists of five qualified doctors from which a second opinion doctor may be chosen by the injured employee and the carrier. A doctor must be on the spinal surgery list to be reimbursed by the carrier for spinal surgery. The commission's Medical Review division is given the authority to issue orders requiring timely submission of doctor's reports, to refer for administrative violation a doctor who fails to comply with the rule or an order, and to refer a doctor to the commissioners for removal from the Spine Approved Doctor List. The rule sets out actions which may result in division action to suspend or commission action to remove a doctor from the spinal surgeon list. The rule also sets out the procedure for a doctor who has been suspended to request a hearing to contest the suspension and the procedure for appeal to a contested case hearing in the event of a dispute. None of these provisions has been amended. In addition, the rule sets out the procedure for resubmission of the issue of spinal surgery after a nonconcurrence. In the past, there has been some confusion regarding when it is appropriate to request that a second opinion doctor reconsider a nonconcurrence with the requesting doctor's recommendation for surgery. Some people have interpreted subsection (l) to allow the doctor recommending surgery to seek a second opinion doctor's reconsideration of the issue at any time. Others read the rule to allow reconsideration only upon some change in the injured worker's condition. This raised questions regarding what constituted a change of condition and how to show that a change had occurred. There were also questions as to when, if ever, a doctor recommending surgery could start over with the second opinion process and select new second opinion doctors from a new sublist. These questions arose from the confusion regarding the difference, if any, between reconsideration of a nonconcurrence and resubmitting a request for spinal surgery, as both phrases are used in subsection (l) of the current rule. This confusion regarding the reconsideration of a nonconcurrence has resulted in frustration for doctors requesting surgery who are unclear about when they can request a second opinion doctor to reconsider a non-concurring opinion, what they need to provide to the second opinion doctors for reconsideration, and when, if ever, they can start over in the system. Second opinion doctors have been frustrated by the necessity to reply to requests for reconsideration which provide no different information from what they have already considered. Commission staff has been required to spend a substantial amount of time attempting to resolve these issues. Because many of the requests for reconsideration are sent by the requesting doctor to the second opinion doctor only, staff is often unaware of the request until there is a problem. This prevents efficient case management and monitoring by the Medical Review Division. This amendment clarifies the procedure to be followed in the event a doctor recommending spinal surgery requests the second opinion doctors to reconsider their nonconcurrence because of a change in the injured worker's condition. Subsection (a)(16) has been added to provide a definition of "change of condition" as a documented worsening of condition, new or updated diagnostic test results and/or the passage of time providing further evidence of the condition, or follow up of treatment recommendations outlined by a second opinion doctor. The addition of this definition provides guidance to the second opinion doctor regarding the situations which constitute a change in an injured worker's condition and which therefore warrant reconsideration of a nonconcurrence. This definition is expected to prevent requests for reconsideration in cases where there is nothing additional for a second opinion doctor to consider, thus reducing the number of replies a second opinion doctor is required to submit. Subsection (l) has been amended to clarify the process for reconsideration of an earlier nonconcurrence with a recommendation for spinal surgery. As a result of public comment, the reconsideration process was changed to allow submission of requests for reconsideration simultaneously to the second opinion doctors and the Commission, rather than only to the Commission. Subsection (l)(1) provides that upon a change in a claimant's condition a treating doctor or surgeon may request a reconsideration of a non-concurring opinion by submitting a TWCC-63 form to both the Medical Review Division and both the second opinion doctors together with documentation of the change of condition. The second opinion doctors will review the documentation to determine if there has been a change in the injured worker's condition. The copy of the TWCC-63 sent to the Medical Review Division will keep the division informed of what is happening in the case and allow more effective case management. If the second opinion doctor believes that a change of condition has occurred, the doctor will issue an addendum to his or her original opinion. If the second opinion doctor does not believe that the claimant's condition has changed, the second opinion doctor is to submit a report to the requesting doctor and the commission indicating that, in the doctor's opinion, there is no change of condition. This report would be a brief statement regarding change of condition and eliminates any obligation to draft a full addendum, thus reducing unnecessary work by second opinion doctors where no change of condition is present. The reconsideration is always done by the same second opinion doctors who rendered the nonconcurrence, unless they are unavailable. This prevents a never-ending second opinion process while allowing for reconsideration of a nonconcurrence when the situation warrants. Subsection (l)(3) has been revised to eliminate confusion which had existed regarding whether a treating doctor or surgeon could simply begin the full spinal surgery second opinion process again with a new list of doctors, regardless of whether the claimant's condition had changed. Recent decisions of the Texas Workers' Compensation Appeals Panel ruled that the Medical Review Division had erred in providing two new second opinion doctors to review a previous nonconcurring surgical recommendation. Based on these decisions, the Medical Review Division has discontinued providing new doctor sublists for resubmissions. Because the language contained in subsection (l)(3) could have been interpreted as allowing a doctor to begin again in the spinal surgery second opinion process with new second opinion doctors, this section has been revised. This prevents a never-ending second opinion process while allowing for reconsideration of a nonconcurrence when the situation warrants. As a result of public comment received regarding the proposed new subsection (l)(3) (see summary of comments and response section of this preamble), the proposed language was revised. In its place, a provision addressing communication with second opinion doctors has been added. This provision advises that communication should be for the exchange of medical information and knowledge and that communication as described in the Texas Labor Code,, sec.418.001(a) is prohibited. Subsection (l)(2) has been revised to clarify that a second opinion doctor's report or addendum must be submitted within ten days of a physical exam of the injured employee when an examination is performed as part of the second opinion doctor's reconsideration. Subsection (m) has been revised to change the expiration date of the rule from January 1, 1997 to July 1, 1998. In the proposal, the date of January 1, 1998 was proposed as the expiration date. This date has been changed from January 1 to July 1, to allow more time for commission staff to monitor the effectiveness of the rule. This change of the expiration date has been adopted because the rule has proven to be an effective tool in maintaining cost effective, quality care for spinal injuries and without this amendment the rule would have automatically expired on January 1, 1997. Three goals were established for sec.133.206: 1) to decrease the processing time frame; 2) to ensure qualified objective second opinions; and 3) to monitor the system. Commission data for the period August 1, 1995 to October 31, 1996 shows that processing time for the second opinion process has been reduced from 59 days to 36 days; the total number of second opinion doctors on the commission's list has risen to 702; carrier selected doctors concur with a recommendation for surgery approximately 69% of the time, while employee selected doctors concur 64% of the time; and carriers were found liable in approximately 90% of the cases. These statistics show that the rule is achieving its goals. By changing the expiration date to July 1, 1998, the commission will be required to review and reevaluate the rule for it to continue in effect. This amendment is adopted in order to comply with the statutory provisions of the Texas Labor Code, sec.408.026 which provides that an insurance carrier is liable for medical costs related to spinal surgery if: the employee obtains from a doctor approved by the insurance carrier or the commission a second opinion that concurs with the treating doctor's recommendation; the carrier waives the right to request or fails to request an examination; or the commission determines that extenuating circumstances exist and orders payment for surgery. The commission considered all relevant statutory and policy mandates and objectives and designed this amendment to achieve those mandates and objectives, including the following: to ensure that injured workers receive the health care reasonably required by the nature of their injury, as and when needed; to ensure quality health care to the injured workers of Texas; and to achieve effective medical cost control. This amendment achieves these objectives by its provisions, including the following: preventing an endless spinal surgery second opinion process; providing a process by which a non-concurring opinion regarding the necessity for spinal surgery can be reconsidered when there is a change in the injured worker's condition; providing for more efficient case management by the commission staff; providing for monitoring of the rule's effectiveness; clarifying terms and procedures to provide for a more efficient spinal surgery second opinion process; and preventing unnecessary and/or ineffective surgical procedures. Public comments were received from: Healthwatch, Inc.; Neurocare Network; the Texas Orthopaedic Association (TOA); Patient Advocates of Texas (PAT); East Harris County Orthopedic Associates, P.A.; the Texas Medical Association; the Travelers Group; and Phillips & Akers. The commission held a public hearing on the proposed amendment to this rule on November 14, 1996. Testimony was received from: East Harris County Orthopedic Associates, P.A.; Neurocare Network; Patient Advocates of Texas (PAT); the Texas Orthopaedic Association; Allen J. Meril, MD, FAAOS, FACS, Garland Orthopedic Clinic; the Texas Workers' Compensation Insurance Fund; the Business Insurance Consumers Association; and Southwest Spine & Ortho Specialists. Donald D. Bacon, MD submitted written comments at the hearing, but did not testify. The following commenters were generally in support of the proposed amendment: the Business Insurance Consumers' Association; the Texas Workers' Compensation Insurance Fund; the TravelersGroup; and Philips & Akers. The following commenters were generally opposed to the proposed amendment: Neurocare Networks; the Texas Orthopaedic Association; Patient Advocates of Texas; East Harris County Orthopedic Associates, P.A.; Allen Meril M.D.; Donald Bacon M.D.; and Southwest Spine & Orthopedic Specialists. The following commenters were neither generally opposed nor generally in support of the proposed amendment, but offered suggested revisions to the proposal: Healthwatch, Inc.; the Texas Medical Association; and Pat Gongora, representing Eric Scheffey M.D.; Summaries of the comments and commission responses are as follows: COMMENT: Most of the commenters felt that the current rule is working well. Some felt that no changes were needed and some expressed the view that the Medical Review Division should not be involved further in the second opinion process. Several commenters mentioned that the length of time necessary to move through the spinal surgery second opinion process has been shortened. Another commenter felt that the rule was appropriately serving the injured worker and had accomplished the objectives of maintaining cost effective, quality care for spinal injuries. Another commenter stated that the rule was working well in ensuring qualified objective second opinions and system monitoring. RESPONSE: Staff agrees that the process works well for the majority of cases, because the majority of cases do not result in a resubmission. Monitoring has shown the rule to be effective. However, the current resubmission process is confusing as to when second opinion doctors must reconsider their opinions. Staff disagrees that there is no reason for Medical Review to be involved in the resubmission process. Cases where the injured worker is denied surgery and the doctor requests reconsideration of a nonconcurrence are often problematic for the injured worker and doctors. The current resubmission process lacks a structure within which these special cases may be consistently and fairly case- managed. The amendment as adopted clarifies when an addendum opinion is required and allows for better case management and monitoring. COMMENT: Two commenters supported the proposed amendment. RESPONSE: Staff agrees. COMMENT:Some commenters generally opposed the proposed amendment with one stating the opinion that the proposed changes in no way enhanced appropriate and proper care to the injured worker. RESPONSE: Staff disagrees. Based on comments received by division staff from both surgeons and second opinion doctors, the process for resubmitting the issue of spinal surgery is not clearly defined. As such, it creates confusion and ineffective case management. The amendment as adopted will help to clarify the process and provide for better case management. COMMENT: The commenter stated that if there is a significant change in condition then another "hands on" assessment needs to happen to ascertain the reason the "change in condition" occurred. RESPONSE: Staff agrees that if the doctor believes it is necessary to perform an examination to make a determination, then such an examination is warranted. However an examination is not required for reconsideration. In addressing this comment it has come to the staff's attention that there is no timeframe stated in the rule for submitting an addendum when a subsequent physical examination is performed. Therefore, subsection (l)(2) has been revised to read as follows: "Addendum decisions, reports, and payment shall be governed by subsections (i) and (j) of this section with the following exception. The narrative report shall be submitted within ten days of the reviewing doctor's receipt of the request for an addendum opinion or within ten days of a subsequent physical examination of the employee." This added provision makes it clear that the second opinion doctor has ten days to submit an addendum after the doctor has the information to be evaluated. COMMENT: Two commenters favored the establishment of a specific timeframe for reopening a case. One of these commenters felt that a time limit of six months should be allowed for a claimant to follow through with the recommendations of a nonconcurring physician so that the claimant does not remain in follow-up care for extended periods of time and so that second opinion doctors are not required to provide addendum reports long after the nonconcurrence. RESPONSE: Staff disagrees. Indications for reconsideration of surgery should be based on medical evidence rather than time. Claimants are entitled to lifetime medical benefits related to an on-the-job accident. If medical evidence suggests that surgery is needed, a claimant should be provided the opportunity to be evaluated, regardless of the length of time that has passed since the nonconcurrence. COMMENT: The commenter suggested that an addendum be allowed only when the second opinion doctor recommends additional treatment and/or diagnostic testing. RESPONSE: Staff disagrees. There may be other situations in which an addendum report should be provided by the second opinion doctor. For example, if an injured worker's condition worsens, a review would be appropriate regardless of whether the second opinion doctor recommended specific additional treatment and/or testing. COMMENT: The commenter expressed the opinion that an addendum should be required only if the second opinion physician's specific recommendations were followed through, and not if other alternatives were undertaken. RESPONSE: Staff disagrees. Any treatment or testing that provides new information on the need for spinal surgery should be considered for evaluation by the second opinion doctor. The treating doctor is responsible for the coordination of care and may not agree with the second opinion doctors specific recommendation. Such disagreement should not prevent the treating doctor or surgeon from requesting a reconsideration if there is a change in condition. COMMENT: The commenter stated that diagnostic testing or treatment recommended by the second opinion doctor should be approved by the treating doctor and preauthorized if appropriate. RESPONSE: Staff agrees. As with the current rule and process, the amendment will not change the fact that all treatment and diagnostic testing is subject to treating doctor approval and the provisions of sec.134.600 of this title (relating to Procedure For Requesting Preauthorization of Specific Treatments and Services), where applicable. COMMENT: The commenter expressed concern that requests for reconsideration of a spinal surgery nonconcurrence could be based only on subjective information and offer no real additional information for consideration. RESPONSE: Staff agrees. The language has been revised so that second opinion doctors will review documentation for the presence of criteria listed in subsection (a)(16) of this section. If the second opinion doctor does not think there is a change of condition, then no addendum report will be due. COMMENT: The commenter expressed concern that the amendment would cause delay and asked what kind of time delay will occur if this amendment is passed? RESPONSE: Staff agrees that the language as proposed should be revised to provide for filing with the Medical Review Division and the second opinion doctors at the same time. Because the volume of resubmissions is low, staff does not anticipate any time delays caused by the amendment as adopted. Case managers will be able to monitor resubmissions and assist with problematic cases on a more timely basis because surgeons will notify the division at the outset of the request for an addendum report. COMMENT: A great many commenters felt that it is inappropriate for the recommending spine surgeon to be unable to communicate directly with the non- concurring physicians. One commenter felt that communication between physicians should in no way be impeded because it leads to expedited care. The commenters also expressed the opinion that the review by the Medical Review Division of a submission to determine if there is documentation of a changed condition requires the Medical Review Division to make medical decisions which could be considered practicing medicine. Several commenters objected to the proposed amendment stating that the Medical Review Division's function should be one of implementing and monitoring the process rather than making medical decisions. One commenter expressed the opinion that the amendment restricts the ability of physicians to speak to each other and that hindering communication between physicians interferes with the practice of medicine. RESPONSE: Staff agrees that the text should be revised to provide clarity. It is not the commission's intent to block communication between physicians nor to direct the medical treatment of patients. The intent of the amendment is to ensure that documentation exists indicating a change of condition, as defined in subsection (a)(16), and to allow the division to be informed of the request for reconsideration so that commission case managers can ensure timely follow up. Communication between physicians is in the best interest of the injured worker. It is encouraged by the commission especially when there is a difference of opinion with respect to which treatment(s) would most benefit a patient. The commission has revised the language in the proposed rule to more accurately reflect the commission's intent as follows: The language in subsection (l)(1) has been revised to read: "If the injured employee has a change of condition at any time after a nonconcurrence, the treating doctor or surgeon may submit a TWCC-63 to the division and to both the second opinion doctors with documentation indicating the change of condition as defined in subsection (a)(16) of this section. The second opinion doctors will review the documentation for the purpose of evaluating the presence of criteria listed in subsection (a)(16) prior to submission of an addendum report. If in the doctor's opinion the documentation does not meet the criteria of subsection (a)(16), the second opinion doctor shall submit a report to the division and the treating doctor or surgeon indicating there is no change in condition. If documentation meets the criteria in subsection (a)(16), the second opinion doctors shall issue an addendum to the original decision and send a copy to the division, the treating doctor, the surgeon, and the carrier with the word "ADDENDUM" clearly indicated on the narrative report. Addendum decisions, reports, records, and payments, and appeal to a CCH are governed by all of the provisions of this section. If the addendum second opinions result in carrier liability, any pending appeal shall be dismissed. " The language in proposed subsection (l)(3) has been deleted and the following language added: "The treating doctor or surgeon may communicate with the second opinion doctor to exchange medical information and knowledge; however, communication as described in the Texas Labor Code, sec.418.001(a) (relating to Penalty For Fraudulently Obtaining or Denying Benefits) is prohibited." The new language provides guidance for the second opinion doctor to determine whether a change of condition exists and whether an addendum report is required. Subsection (l)(1) was amended to provide that documentation of changed condition be submitted to the second opinion doctors at the same time it is submitted to the commission and the proposed subsection (l)(3) was deleted to avoid any impression that the Medical Review Division intended to evaluate the medical aspects of the documentation. The language added to subsection (l)(3) advises doctors of the commission's original intent that they may communicate to exchange medical information and knowledge but are prohibited from the type of communication described in Texas Labor Code, sec.418.001(a). COMMENT: The commenter supported disallowing unilateral contact with a doctor who is in charge of settling a dispute. The commenter compared this aspect of the amendment to the TWCC designated doctor procedure, which does not allow communication with the designated doctor. RESPONSE: Staff disagrees. Like designated doctors, second opinion doctors play a role in settling disputes. However, unlike designated doctors, second opinion doctors make recommendations and have input into the treatment plan for the injured worker. Because of the important role the second opinion doctor plays in determining the care of the injured worker, doctors involved in surgical care should communicate with each other, as long as the second opinion doctor has clear guidance as to when he or she must reconsider his or her opinion. It was not the intention of the amendment to block necessary communication between physicians, but to prevent unnecessary reconsideration of, and drafting of an addendum report for, a non- concurrence where there was no indication of a changed condition. To clarify this intent, proposed subsection (l)(3) has been revised and subsection (l)(1) has been amended to state what a second opinion doctor should do when there is no documented change of condition. COMMENT: The commenter felt that subsection (i)(3) requires the second opinion doctor to contact the surgeon to discuss the second opinion and recommendations if there are any differences of opinion in the type of procedure or level proposed for the surgery. RESPONSE: Staff agrees that subsection (i)(3) provides that when a second opinion doctor agrees with the need for surgery but disagrees with the proposed procedure or levels, the doctor should contact the surgeon to discuss his or her concerns and opinions. However, this section of the rule does not pertain to nonconcurrences. COMMENT: The commenter understood the proposed amendment to mean that the commission staff was to ensure that documentation exists, not to evaluate the documentation. RESPONSE: Staff agrees. This was the intention of the proposed subsection (l)(3) and to clarify this intention, proposed subsection (l)(1) was revised to provide that documentation of changed condition be submitted to the second opinion doctors at the same time it is submitted to the commission. In addition, the proposed subsection (l)(3) was revised. See prior response on subsection (l)(3). COMMENT: The commenter did not believe the amendment called for the commission staff to engage in the practice of medicine, but rather to evaluate whether there is documentation or allegations of change of condition. RESPONSE: Staff agrees. This was the intent of the proposed amendment. To clarify this intention, proposed subsection (l)(1) was revised to provide that documentation of changed condition be submitted to the second opinion doctors at the same time it is submitted to the commission. In addition, the proposed subsection (l)(3) was revised. See prior response on subsection (l)(3). COMMENT: Several commenters from the same office stated that the Spinal Surgery Division has already placed the proposed changes to Rule 133.206 into effect for the commenters' office and expressed concern that the commission is already operating under the proposed amendment. Commenters also expressed concern that this amendment is merely clarification of an existing process. The commenters questioned the use of a rule which has not been adopted. RESPONSE: Staff disagrees. The changes proposed to Rule 133.206 have not been required of any health care provider. The Spinal Surgery Division has asked that requests for an addendum be sent to the Medical Review Division at the time the addendum is requested. Staff is unable to case-manage requests for addenda if they are unaware of the request. Health care providers are not currently obligated to send requests for addenda to the division. However, information must be sent at the time a provider requests commission assistance to resolve problems encountered during the process of requiring an addendum report. The amendment makes this procedure mandatory. In addition, the process for resubmitting the issue of spinal surgery was ruled on earlier this year in two TWCC Appeals Panel decisions. The decisions found that the Medical Review Division had erred in providing two new second opinion doctors to review a previous nonconcurring surgical recommendation. Based on these decisions, Medical Review discontinued providing new doctor sublists for resubmissions. The original second opinion doctors remain the reviewing doctors unless they are unavailable. The revision of current subsection (l)(3) prevents confusion on this issue and implements the Appeals Panel decisions. COMMENT: Many commenters addressed the definition of "change of condition". One commenter expressed the opinion that the proposed definition of "change of condition" is subjective, while another commenter felt the definition was ambiguous and unclear regarding what constitutes documentation of a change of condition. Another commenter objected to the definition stating that commission staff could interpret the definition to mean almost anything and that only a physician should determine change in condition. The commenter also expressed the opinion that a change in condition may be that no change has occurred. Still another commenter felt the definition of "change of condition" is flawed. Conditions necessitating surgery do not need to change or worsen. The commenter cited three cases in which reports were misinterpreted by radiologists and reasoned that Medical Review Division simply does not possess the training and expertise to properly evaluate a patient and of necessity would rely on records and reports which may not accurately represent the facts. RESPONSE: Staff agrees in part and disagrees in part. The definition of "changed condition" added in (a)(16) provides criteria for doctors using the spinal surgery second opinion process to follow. To clarify that there may be situations where the passage of time could provide further evidence of an injured worker's condition, the words "and/or the passage of time" have been added. This subsection now reads: (16) Change of condition - A documented worsening of condition, new or updated diagnostic test results and/or the passage of time providing further evidence of the condition, or follow up of treatment recommendations outlined by a second opinion doctor. If time was a medical factor in the judgment of a second opinion doctor, the passage of time may meet the criteria of subsection (a)(16). This is a medical decision to be made by a second opinion doctor. In some situations, a second opinion doctor may indicate that the injured worker's condition may improve with time. In these situations, if improvement is not observed after a recommended period of time, then the second opinion doctor may consider the passage of time as a change of condition as defined by subsection (a)(16). In other situations, a second opinion doctor may determine that the passage of time is not a medical treatment factor. In these situations, the second opinion doctor can provide a report to the Medical Review Division, in accordance with subsection (l)(1), indicating that time is not a treatment factor, that no change of condition exists, and therefore no addendum will be issued. Passage of time alone is not necessarily a change of condition as defined by subsection (a)(16). Each second opinion doctor shall use his or her expertise to decide on a case by case basis whether the conditions set out in subsection (a)(16) are evidenced in the documentation provided. The documentation necessary could be anything which shows a change of condition as defined in subsection (a)(16). It is not practical to attempt to list every type of documentation which may show a change of condition because it will vary from case to case and may change as technological advances are made. An example of documentation of condition would be written diagnostic test results. Subsection (l)(1) has been revised to clarify that it is the second opinion doctors who determine whether a changed condition exists. COMMENT: The commenter asked what criteria or guidelines the Medical Review Division uses to decide whether there is a change in the worker's condition. RESPONSE: Staff agrees that a definition of the term "changed condition" was needed in the rule. There are currently no guidelines that specify what constitutes a change in condition. The amendment to the rule provides that documentation submitted for reconsideration should indicate the presence of criteria listed in subsection (a)(16): worsening of condition, new or updated diagnostic test results and/or the passage of time providing further evidence of the condition, or follow up of treatment recommendations outlined by a second opinion doctor. COMMENT: Two commenters were in favor of the definition of "change of condition", one saying it is a good definition which helps physicians use a uniform and consistent definition and the other saying the definition is reasonable. RESPONSE: Staff agrees. Changes to the proposed definition are for clarification only. COMMENT: The commenter stated the rule makes no provision for resolving a dispute when communication is denied. RESPONSE: Staff agrees. The language has been revised. Subsection (l)(3) has been revised to allow physicians to communicate. See prior response on subsection (l)(3). The rule already provides for resolution of disputes. Recommendations that receive two nonconcurrences may be appealed to a contested case hearing. If the surgeon or treating doctor believes a change of condition exists, the issue of spinal surgery may be resubmitted to the original second opinion doctors for reconsideration. COMMENT: The commenter expressed the opinion that the reassignment of disputes to the field offices has denied disgruntled parties the right to take the issue to district court because only issues of compensability and income/death benefits can be argued in district court after the benefit review process (Texas Labor Code, sec.410.301). The commenter believes the reassignment of this or any medical dispute to the field office denies disgruntled parties their open courts right under the Texas Constitution. RESPONSE: Staff disagrees. Appeals Panel decisions are appealable to district court, under Texas Labor Code, sec.410.251. It is the manner of this judicial review that is governed by Labor Code, sec.sec.410.255 and sec.410.301. A number of Appeals Panel decisions on spinal surgery are currently pending in district court. Not all disputes come under the open courts provision of the Texas Constitution. COMMENT: A number of commenters supported the sunset (expiration) provision of the rule, stating that it will allow the commission to re-examine the rule and its effectiveness while providing a doorway to control reconsideration of nonconcurrences. RESPONSE: Staff agrees. The expiration date of the rule will allow the rule and the new amendments to be monitored for over a year to ensure that the spinal surgery second opinion procedure remains an effective process. The expiration date was changed from January 1, 1998 (the date which appeared in the proposal) to July 1, 1998 to allow a full year of monitoring and adequate time to analyze and evaluate the data prior to review of the rule. COMMENT: One commenter opposed the sunset provision stating that huge strides have been made in reducing the actual amount of time that the injured worker is waiting for the surgery. RESPONSE: Staff agrees that the current rule has met its goals including reducing the time necessary to process a request for spinal surgery. The sunset date will provide a time certain for the commission to review the rule to ensure that it continues its effectiveness. COMMENT: Several commenters expressed the opinion that the small number of complaints regarding reconsideration of spinal surgery non-concurrence do not justify changing the rule. One commenter cited statistics from its practice supporting the proposition that requests for reconsideration are the exception and not routine and it is a poor use of the commission's time and resources to concentrate on these cases. RESPONSE: Staff disagrees. While staff agrees that the number of resubmissions is small, this small number of cases accounts for a great deal of confusion and disagreement which requires staff intervention to resolve. It is important for the integrity of the whole process to clearly outline the process of resubmitting the issue of spinal surgery COMMENT: The commenter stated the second-opinion process should mirror the designated doctor process by having the "tie-breaking" doctor be an impartial choice of the commission, taken off of a rotating list. RESPONSE: Staff agrees that second opinion doctors should be impartial but disagrees that rule changes are needed. For this reason the insurance carrier and the employee are given a list of second opinion doctors from which to choose. These lists are comprised of doctors whose current practice includes spinal surgery. Both second opinion doctors, whether selected by the insurance carrier or the injured worker, have a role in settling the issue of carrier liability for spinal surgery. Data collected by the division shows that carrier- selected second opinion doctors concur more often than employee-selected second opinion doctors. This data illustrates that the process is not biased. COMMENT: The commenter supported the proposed amendment regarding the resubmission process. The commenter stated that there is some precedent with the designated doctor legislation that would indicate that we need to ensure that there is not undue influence on doctors who are expected to resolve issues in the medical dispute arena. RESPONSE: Staff agrees in part. Like designated doctors, second opinion doctors play a role in settling disputes. However, unlike designated doctors, second opinion doctors make recommendations and have input into the treatment plan for the injured worker. Because of the important role the second opinion doctor plays in determining the care of the injured worker, doctors involved in surgical care should communicate with each other, as long as the second opinion doctor has clear guidance as to when he or she must reconsider his or her opinion. It was not the intention of the amendment to block necessary communication between physicians, but to prevent unnecessary reconsideration of, and drafting of an addendum report for, a non-concurrence where there was no indication of a changed condition. To clarify this intent, proposed subsection (l)(3) has been revised (see prior response on subsection (l)(3)) and subsection (l)(1) has been amended to state what a second opinion doctor should do when there is no documented change of condition. COMMENT: The commenter felt the workers' compensation system contains too much bureaucracy. RESPONSE: Staff disagrees. Data indicates injured workers are receiving treatment on a more timely basis with the current second opinion rule than the former rule. COMMENT: The commenter opposed adoption of the proposed amendment stating that it added a new layer of bureaucracy. RESPONSE: Staff disagrees. Data indicates that case management provided from the outset of receiving a recommendation for spinal surgery leads to a decrease in processing time. Injured workers receive faster opinions and ultimately faster delivery of treatment. This amendment facilitates effective case management. COMMENT: The commenter stated that the amendment does not address the question of how much change is required before an addendum is ordered, or how much evidence is required from further testing/treatment to warrant the second opinion doctor seeing the patient and issuing an addendum. RESPONSE: Staff disagrees. Subsection (a)(16) defines change of condition. Each second opinion doctor shall use his or her expertise to decide on a case by case basis whether the conditions set out in subsection (a)(16) are evidenced in the documentation provided to the second opinion doctor. COMMENT: The commenter cited examples where the current resubmission process is confusing to all parties and difficult to administer consistently. The commenter did not feel the proposed amendment addressed the issue of inconsistency within the Spinal Surgery Division. RESPONSE: Staff disagrees. The amended language will increase consistency by providing guidance on what constitutes a change of condition. Currently staff has no way of knowing when an addendum report has been requested, and therefore is unable to provide effective case management in a timely manner. COMMENT: The commenter cited the TWCC System Data Report of June 1996, saying that it shows the commission ruled in favor of an insurance company 70 - 74% of the time during the period of 1992 - June 1996 and contended that this statistic indicates health care providers will not likely get impartial treatment if the proposed amendment is allowed to disrupt physician-to-physician management of injured workers. RESPONSE: Staff disagrees. The spinal surgery process is neither slanted to the carrier or injured worker. Current data indicates a 90% carrier liability rate. Data also indicates the carrier second opinion doctor concurs more often than the injured worker's doctor. COMMENT: The commenters stated that it is incredibly difficult to deal with the employees within the Spinal Surgery Division. RESPONSE: Staff disagrees. Management has not received complaints regarding behavior of staff. Staff have been trained to respond to customer inquiries promptly and professionally. COMMENT: The commenter believes that the amendment places an obstacle in the process which slows the process and may operate to deny appropriate treatment within a reasonable time. RESPONSE: Staff disagrees. With the amended language, the second opinion doctor can review a case as soon as the request is received and the Medical Review Division will be able to initiate case management at that same time. Data has shown case management to be an effective tool in reducing the time necessary to move through the second opinion process. COMMENT: The commenter stated that an unfair situation exists when an injured worker can resubmit a request for spinal surgery and start over in the process with a new list of doctors to choose from. RESPONSE: Staff agrees. If this situation existed it would be unfair. Since the appeals panel decisions of earlier this year cases have been referred back to the original second-opinion doctors for addenda. The proposed rule change would solidify this process. COMMENT: The commenter questioned how removal of instrumentation should be treated. RESPONSE: Staff are currently drafting an advisory to clarify the policy regarding removal of instrumentation. Currently this procedure requires that a TWCC-63 form (request for surgery) be submitted. COMMENT: The commenter felt that the rule should address when it would be appropriate for another TWCC-63 to be submitted. RESPONSE: Staff agrees. The amendments to subsection (l) and subsection (a)(16) provide guidance to the second opinion doctor about when to review a case and provide an addendum report. COMMENT: The commenter expressed the opinion that the proposed amendment adds another step to a long process and complains that there are no filing, time guidelines or response requirements on the part of TWCC in the current rule. RESPONSE: Staff disagrees. The division monitors the timeframes for case review with an eye towards quality assurance. External factors such as appointment no- shows, late narratives and missing films and records account for the bulk of time delays in the second opinion process. With the amended language, the second opinion doctor can review a case as soon as the request is received and the Medical Review Division will be able to initiate case management at that same time. Data has shown case management to be an effective tool in reducing the time necessary to move through the second opinion process. COMMENT: The commenter did not find the basis of any existing confusion and stated that there should be no time consuming drafting of addendum reports by second opinion doctors unless they change their opinion. Otherwise, the second opinion doctor need only say no to reconsideration. RESPONSE: Staff disagrees. The proposed language change is based on comments received by division staff from both surgeons and second opinion doctors. Comments ranged from confusion to angry frustration with the current wording of the rule and lack of clear guidance for the resubmission process. Most second opinion doctors prepare comprehensive reports even when they disagree with the need for surgery. Nonconcurrences are appealable and for that reason, the division encourages detailed reports. COMMENT: The commenter felt that the amendment does change the existing process although staff has stated that the proposed language change does not alter the basic process. RESPONSE: Staff agrees in part. The amendment clarifies the process for resubmitting the issue of spinal surgery; the process itself will be altered only by the surgeon submitting the documentation to the division at the same time as it is submitted to the second opinion doctor. Providing new doctor sublists for resubmissions was discontinued as a result of recent TWCC Appeals Panel decisions which ruled that the Medical Review Division had erred in providing two new second opinion doctors to review a previous non-concurring surgical recommendation. The rule changes solidify this process. COMMENT: The commenter questioned why subsection (l)(3) was deleted from the rule. RESPONSE: Subsection (l)(3) has been revised to eliminate confusion which had existed regarding whether a treating doctor or surgeon could simply begin the full spinal surgery second opinion process again with a new list of doctors. Recent TWCC Appeals Panel decisions ruled that the Medical Review Division had erred in providing two new second opinion doctors to review a previous non- concurring surgical recommendation. Based on these decisions, the Medical Review Division has discontinued providing new doctor sublists for resubmissions. Because the language in subsection (l)(3) could have been interpreted as allowing a doctor to repeat the second opinion process, this section has been revised. See prior response on (l)(3). COMMENT: The commenter expressed concern that some second opinion doctors did not have copies of the Spine Treatment Guidelines and suggested that they be provided to all second opinion doctors. The commenter felt that referral to the Spine Treatment Guidelines would help resolve issues between surgeons and second opinion doctors. RESPONSE: Staff disagrees. The second opinion rule clearly defines the requirements for both surgeons and second opinion doctors. The division encourages use of the guidelines, however, they must be purchased by the providers. COMMENT: The commenter believed that the proposed amendment would increase workload and cost for providers and probably for the commission. RESPONSE: Staff disagrees. Case managers will be aware of resubmissions and will be able to proactively manage cases. Staff do not anticipate any increase in cost based on the amendments as adopted. Providers will send information to both the division and the second opinion doctors, however, this cost will be minimal. In addition, it is expected that costs and workload for second opinion doctors will be reduced by not being required to submit an addendum for requests which do not document a change of condition. COMMENT: The commenter supports deletion of the expiration date. RESPONSE: Staff disagrees. The sunset date will ensure that the rule is reviewed to determine if it is continuing to meet its goals. It also provides an opportunity for the commission to analyze the rule's effectiveness and impact. COMMENT: The commenters stated that it is necessary for second opinion doctors to have access to information that the referring doctor may not have had at the time of the second opinion. RESPONSE: Staff agrees. If there is inadequate information to make a diagnosis and treatment plan at the time of examination by the second opinion doctor, then the second opinion doctor should indicate in his or her report the type of tests needed to order to properly evaluate the patient. When and if these tests are completed, the second opinion doctor can issue an addendum report. COMMENT: The commenter felt that the notice of the public hearing was too short. RESPONSE: Staff disagrees. The request for a public hearing was received close to the end of the public comment period. Because of the sunset (expiration) date of the rule, it was necessary for the hearing to be held in November. All persons who had submitted comments were advised of the public hearing date. COMMENT: The commenter suggested that the rule provide written exchange of documentation between doctors regarding the change of condition. In addition, if a doctor continually requests reevaluations when there is not a change in condition, that could be grounds for removing them from the list. RESPONSE: Staff agrees. The amendment requires that change of condition be documented before an addendum opinion will be issued. Staff will monitor surgeons over the next 1 1/2 years for abuse of this section of the rule. If data indicates abuse, proposed rule language to address the issue may be presented to the commissioners for consideration. The following comments are unrelated to the proposed rule amendment. They request general information. COMMENT: The commenter asked what types of physicians are appointed to the Medical Review Division, and if there is a list of appointees. RESPONSE: There are currently no physicians on the Medical Review staff. Staff of the Medical Review Division are not appointed, they are employees of the commission. COMMENT: The commenter asked if the Medical Review Division factors in normal aging which is separate and distinct from work activity and may have little to no correlation to the work-related injury. RESPONSE: Under the rule as adopted, it is the role of the physician to determine the correlation of the condition to the work-related injury. COMMENT: The commenter asked if there is any peer review performed on the members of the Medical Review Division and the doctors on the second opinion list. RESPONSE: No peer reviews are performed on members of the Medical Review Division. The Spine Approved Doctor List is comprised of surgeons whose current practice includes performing spinal surgery. Second opinions are rendered by spinal surgeons on the spine approved doctor list. The Division monitors doctors on the spine approved doctor list for compliance with Rule 133.206. Doctors who are in noncompliance may be referred to the Compliance and Practice Division of the commission for administrative violations. COMMENT: The commenter asked if the results of surgeries instigated by a change in the worker's condition as determined by the Medical Review Division would be tracked for outcomes. RESPONSE: The division does not presently have a specific plan to monitor surgical outcomes related to change in condition. However, the division is exploring various existing sources of outcome data related to spinal surgery. COMMENT: The commenter asked how the Medical Review Division credentials, and what are the standards of quality of care for the physicians who are on the list for spinal surgery. RESPONSE: To be included on the list of approved spinal surgeons the doctor must be included on the Approved Doctor List and the doctor's current practice must include performing spinal surgery as the primary surgeon. The Medical Review Division monitors doctors on the spine approved doctor list for compliance with Rule 133.206. Doctors who are in noncompliance may be referred to the Compliance and Practice Division of the commission for administrative violations. COMMENT: The commenter questioned the meaning of the second sentence of subsection (a)(13), the definition of "concurrence". The commenter also asked if the surgery would be allowed at a level or area different from that requested. The commenter also questioned the meaning of "adjacent level of different area" and, whether there would be causality issues if differing levels are accepted. RESPONSE: Concurrence is defined in subsection (a)(13) and specifically the second sentence says that a concurrence exists when the second opinion doctor believes that any surgical intervention is needed (to the proposed area). For the purposes of Rule 133.206, the areas of the spine include; cervical, thoracic, lumbar, sacral and coccyx. An "adjacent level of a different area" refers to the anatomical juxtaposition of two spinal areas. For example, a concurrence would exist if the second opinion doctor reported the need for surgery at the L5-S1 level when the requesting surgeon proposed surgery to the L4-L5 level of the lumbar area. Causality issues could exist regardless of the difference in proposed intervention levels and are addressed through the TWCC dispute process. Carriers are not liable for costs not associated with the work related injury. The amendment is adopted pursuant to the Texas Labor Code, sec.402.061 which requires the commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act; the Texas Labor Code, sec.402.072, which mandates that only the commission can impose sanctions which deprive a person of the right to practice before the commission, receive remuneration in the workers' compensation system, or revoke a license, certification or permit required for practice in the system; the Texas Labor Code, sec.402.073, which requires the Texas Workers' Compensation commission and the State Office of Administrative Hearings to cooperate in establishing procedures for holding hearings; the Texas Labor Code, sec.408.021, which sets out an employee's entitlement to medical benefits; the Texas Labor Code, sec.408.022, which requires an employee receiving treatment under the workers' compensation system to choose a doctor from a list of doctors approved by the commission and establishes the extent of an employee's option to select an alternate doctor; the Texas Labor Code, sec.408.023, which establishes which doctors are placed on the approved list of doctors and mandates that the commission establish rules for deleting and reinstating doctors to the list; the Texas Labor Code, sec.408.026, which establishes when a carrier is liable for costs relating to spinal surgery and mandates that the commission adopt rules necessary to effectuate the statute; the Texas Labor Code, sec.413.007, which prescribes certain statewide data which must be maintained by the Medical Review division; the Texas Labor Code, sec.413.011, which mandates that the commission by rules establish medical policies and guidelines; and sec.414.002, which requires the commission to monitor persons subject to the Act. sec.133.206. Spinal Surgery Second Opinion Process. (a) Definitions. The following words and terms, when used in this subchapter, will have the following meanings, unless the context clearly indicates otherwise. (1) Division - the Medical Review division of the Texas Workers' Compensation Commission. (2) Medical emergency - A diagnostically documented condition including but not limited to: (A) unstable vertebral fracture of such critical nature that increased impairment may result without immediate surgical intervention; (B) bowel or bladder dysfunction related to the spinal injury; (C) severe or rapidly progressive neurological deficit; or (D) motor or sensory findings of spinal cord compression. (3) Treating doctor - The doctor who is primarily responsible for coordinating the injured employee's health care for a compensable injury. (4) Surgeon - The doctor listed on the form TWCC-63 as the surgeon to perform spinal surgery. (5) Acknowledgment date - The earlier of the date on which the insurance carrier representative in Austin signs for the TWCC-63 form or narrative report, or the day after the date the TWCC-63 form or narrative report is placed in the carrier's box. (6) List - A list maintained by the division of surgeons whose current practice includes performing spinal surgery. (7) Sublist - A sublist of five qualified doctors from the List, selected as required by subsection (c) of this section, and provided by the division to the injured employee and the carrier for selection of a second opinion doctor. (8) Qualified doctor - A doctor who meets the minimum qualifications as listed in subsection (d) of this section. (9) Carrier-selected doctor - A qualified doctor selected by a carrier within 14 days of the acknowledgment date, to render a second opinion on spinal surgery. (10) Employee-selected doctor - A qualified doctor other than the treating doctor or surgeon, selected by an employee to render a second opinion on spinal surgery. (11) Commission-selected doctor - A qualified doctor selected by the commission to render a second opinion on spinal surgery. (12) Second opinion doctor - A commission-selected doctor, an employee- selected doctor and\or a carrier-selected doctor, provided that the injured employee and the carrier each may select only one second opinion doctor. (13) Concurrence - A second opinion doctor's agreement with the surgeon's recommendation that spinal surgery is needed. Need is assessed by determining if there are any pathologies in the spine that require surgical intervention. Any indication by the qualified doctor that surgery to the proposed spinal area (e.g. cervical, thoracic, lumbar, or adjacent levels of different areas of the spine) is needed is considered a concurrence, regardless of the type of procedure or level. (14) Nonconcurrence - A second opinion doctor's disagreement with the surgeon's recommendation that spinal surgery is needed. (15) Refusal - Refusal to perform second opinion exam except when due to absence from the office because of illness, accident or personal leave. (16) Change of condition - A documented worsening of condition, new or updated diagnostic test results and/or the passage of time providing further evidence of the condition, or follow up of treatment recommendations outlined by a second opinion doctor. (b) Carrier Liability for Spinal Surgery Costs. (1) The carrier is liable in any of the following situations for the reasonable and necessary costs of spinal surgery related to the compensable injury and performed by a surgeon who was on the List at the time the TWCC- 63 was filed with the commission by the treating doctor or the surgeon: (A) medical emergencies; (B) carrier waiver of second opinion; (C) no carrier request within 14 days of acknowledgment date, for a second opinion; (D) concurrence by both second opinion doctors; (E) no timely appeal after two second opinions, only one of which is a concurrence; (F) final and nonappealable commission order to pay. (2) The reasonable and necessary costs of spinal surgery include the services of the surgeons and ancillary providers during the hospital admission, and the hospital services. (3) If a carrier becomes liable for spinal surgery pursuant to the provisions of this section, any medical dispute resolution shall be limited to a dispute as to the reasonableness of the fees charged for the spinal surgery. (c) Commission List and Sublist. (1) The division will maintain a list of surgeons who perform spinal surgery, including specialty, any specialty training/certification in spinal surgery, and names of spinal surgeons with whom the surgeon is economically associated or shares office space. (2) The initial List will consist of all doctors who have billed for spinal surgery under the Texas Workers' Compensation Act (the Act), as indicated in the division's billing data base, and who have provided the required information set out in paragraph (1) of this subsection. The division will request the required information from each of these doctors. Failure of the doctor to timely respond may result in an order to respond to the division's request, issued pursuant to sec.102.9 of this title (relating to Submission of Information Requested by the Commission). A doctor may be added to the List by filing with the division a written request which includes both a statement that the doctor performs spinal surgery, and the additional information required by the division for the List. (3) If requested by an injured employee, a treating doctor or surgeon on behalf of the injured employee, or a carrier, the division will provide a sublist of five qualified doctors from which a second opinion doctor may be chosen. The sublist will be composed of qualified doctors located within 75 miles of the injured employee's residence, and will be selected from the List by the division on a rotating basis. If the List does not include five qualified doctors located within 75 miles of the injured employee's residence, the division will include on the sublist the qualified doctors who are located at a greater distance. The treating doctor or surgeon must, within seven days of receiving the sublist from Medical Review, notify Medical Review of the employee's selection of second opinion doctor, and the date and time of the employee-selected second opinion appointment. (4) A doctor may be removed from the List for just cause in compliance with the following procedures, for any of the following actions: (A) two refusals, within a 90 day period or two consecutive refusals to perform within the required time frames a requested second opinion for which the doctor is qualified; (B) two untimely submissions, within 90 day period or two consecutive untimely submissions of second opinion narrative reports or any reports, records, or forms required by this section to be filed or provided; (C) intentionally postponing or delaying a recommendation for surgery while suspended from the List. (5) A doctor who has been referred for an administrative violation pursuant to subsection (d)(4) of this section and meets the criteria of paragraph (4) of this subsection will be suspended from the List by the division for 30 days. (6) The division will notify a doctor by delivery, return receipt requested, of suspension from the List. The suspension will be effective from the date of receipt of the notice by the doctor. A doctor who has been suspended from the List for 30 days may be reinstated to the List by filing with the division a written request which includes a commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section. (7) The commissioners may suspend a doctor from the List for up to a one- year period, if a doctor who was suspended for 30 days and reinstated to the List, again meets the criteria of paragraph (4) of this subsection. (8) The division will again suspend the doctor from the List for 30 days, notify the doctor as required in paragraph (6) of this subsection and prepare a recommendation to the commissioners that the doctor be suspended from the List for a period of up to one year. (9) The division will notify the doctor by delivery, return receipt requested, of the division's intent to recommend to the commissioners that the doctor be suspended from the List. Within 20 days after receiving the notice, a doctor may request a hearing to be held as provided by sec.145.3 of this title (relating to Requesting a Hearing) or as provided by sec.148.3 of this title (relating to Requesting a Hearing) as applicable. The request must be in writing to the division and actually received in the commission's central office in Austin, Texas, within 20 days after the doctor's receipt of the notice of intent to suspend the doctor from the List. If a request for hearing is timely received, the commission will hold a hearing as provided in Chapter 145 of this title (related to Dispute Resolution - Hearings Under the Administrative Procedure Act) or the State Office of Administrative Hearings will hold a hearing as provided in Chapter 148 of this title (relating to Hearings Conducted be the State Office of Administrative Hearings). At the conclusion of a hearing conducted under the provisions of Chapter 145 or Chapter 148 of this title, the hearing officer shall propose a decision to the commission for final consideration and decision by the commission. If no request for a hearing is timely filed, the division's recommendation will be reviewed by the commissioners at a public meeting and a decision made to either suspend or maintain the doctor on the List. (10) If the commissioners decide to suspend a doctor from the List, the commissioners will issue an order of suspension which states the length of the suspension and describes the effects of the suspension. The order may also state restrictions on reinstatement or impose a specific method for reinstatement to the List. The order will be delivered to the doctor, return receipt requested. After receipt, a second opinion doctor shall inform injured employees seeking second opinions on spinal surgery under the Act, of the doctor's suspension from the List and that the insurance carrier will not be liable for the costs of a second opinion exam performed by that doctor while he is suspended from the List. After receipt, a treating doctor or surgeon shall inform injured employees seeking spinal surgery under the Act, of the doctor's suspension from the List and that the insurance carrier will not be liable for the costs of spinal surgery for which the TWCC-63 is filed with the commission while that doctor is suspended from the List. Failure to inform the injured employee in the form and format prescribed by the commission may subject the doctor to administrative penalties of up to $10,000 and other sanctions as provided by the Act. (11) Unless a different period of suspension or method of reinstatement is provided by the commission order suspending the doctor from the List, a doctor suspended from the List may be reinstated as follows. A doctor may be reinstated to the List after a six month period by written request to the division which includes a renewed commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section, provided appropriate members of the doctor's staff have attended a division seminar for providers within the suspension period. After a one year period, a doctor may be reinstated by written request to the division which includes a renewed commitment to perform timely and appropriate second opinions and to submit timely reports, records, and forms in compliance with this section. The division will immediately notify a doctor who has been reinstated to the List. The reinstatement will be effective from the date of the division's action to reinstate. (d) Second Opinion Doctor's Qualifications. (1) The doctor rendering a second opinion must meet the following minimum qualifications: (A) be a spinal surgeon on the List; (B) be a spinal surgeon with specialty training in spine surgery; (C) not be economically associated with or share office space with the treating doctor or the surgeon; (D) not be scheduled to perform or assist with the recommended surgery; and (E) currently active on the TWCC Approved Doctor List. (2) An out-of-state doctor who is not on the List may be approved by the division as a qualified doctor if the claimant is residing out-of-state. (3) When deemed necessary the division at its discretion may waive any of these requirements with the exception of paragraph (1)(B) of this subsection, to secure timely and reasonable appointments. (4) The division may issue an order requiring timely submission of a report, record, or form required by this section, recommend administrative violation proceedings, take action to remove a doctor from the List as described in subsection (c) of this section and/or take action to remove a doctor from the Approved Doctor List in compliance with sec.126.8 of this title (relating to Commission Approved Doctor List) for noncompliance with the order. (5) A second opinion doctor is responsible for performing an exam if requested by the insurance carrier, the injured worker or the commission unless the division releases the doctor from assessing a particular employee. To consider releasing a proposed second opinion doctor from the requirement to render an opinion on a specific case, Medical Review must agree that the selected second opinion doctor is not qualified due to unique or complex pathology or because the doctor's expertise excludes the involved body area. (e) Submission of Request for Spinal Surgery and for Second Opinion by Employee- Selected Doctor; Doctors' Responsibilities and Records. (1) To recommend spinal surgery, the treating doctor or surgeon shall submit to the division a TWCC-63 in the form and manner prescribed by the division. The TWCC-63 may be faxed directly to the division. (2) The doctor submitting the TWCC-63 shall advise the injured employee of the injured employee's right to obtain a second opinion from a qualified doctor. If the injured employee decides to seek a second opinion, the injured employee or the treating doctor or surgeon on behalf of the employee, shall request that the division provide a sublist of qualified doctors. The injured employee with assistance from the treating doctor or surgeon shall select a qualified second opinion doctor from the sublist and schedule the appointment date prior to submitting the TWCC-63. The second opinion appointment should be scheduled to occur within 30 days from the date the TWCC-63 is submitted to the division. The name of the selected doctor and the appointment information shall be submitted on the TWCC-63 in the form and manner prescribed by the division. (3) The surgeon shall ensure that all medical records and films arrive at each second opinion doctor's office prior to the date of the scheduled second opinion. (4) The doctor submitting the TWCC-63 shall maintain accurate records to reflect: (A) medical information regarding emergency conditions; (B) injured employee notification of right to a second opinion; (C) the submission date of the TWCC-63, and any amended TWCC-63s; (D) the date and time of any second opinion appointment scheduled with employee- selected doctor; and (E) the date the medical records were sent by the surgeon to each second opinion doctor. (f) Commission Notification to Carrier. The division will notify the carrier via the carrier representative in Austin of the receipt of any required TWCC-63's by placing copies in the carrier representative's box. The division will also provide a sublist to the carrier. The carrier representatives shall sign for the forms. The carrier representative is responsible for the receipt of and the response to TWCC-63s. (g) Carrier Waiver of or Request for Second Opinion by Carrier-Selected Doctor; Carrier Records. (1) The carrier must waive the second opinion or request a second opinion exam be performed by a carrier-selected doctor. This decision and choice of the carrier-selected doctor from a sublist must be made and submitted to the division on a TWCC-63 in the form and manner prescribed by the division and without undue delay but no later than 14 days after the acknowledgment date. The TWCC-63 may be faxed or delivered directly to the division. (2) The carrier shall set the appointment and include appointment information on the TWCC-63 in the form and manner prescribed by the division. The appointment date set by the carrier should be within 14 days and must not exceed 30 days from the acknowledgment date. (3) A carrier will be deemed to have waived a second opinion if the carrier chooses a doctor not on the sublist or sets an appointment which exceeds 30 days from the acknowledgement date. (4) The carrier shall notify in writing the injured employee, the treating doctor, and the surgeon of the appointment information. This notification shall be in the form and manner prescribed by the division and shall include a copy of the TWCC-63, and a narrative explanation of the purpose of the exam. (5) The carrier representative shall maintain accurate records to reflect: (A) the acknowledgment date of the TWCC-63; (B) the date the TWCC-63 required by paragraph (1) of this subsection was submitted to the division; (C) the date the notice required by paragraph (4) of this subsection was given; (D) if applicable, the name of the carrier-selected doctor and the date and time of the scheduled exam; and (E) the acknowledgment date of the narrative report required by subsection (i) of this section. (h) Division Notification to Employee of Option to Obtain a Second Opinion From an Employee-Selected Doctor. (1) If the carrier elects to have a second opinion and the employee has not already scheduled a second opinion from an employee-selected doctor, the division shall notify the employee of the following: (A) that the carrier will be obtaining a second opinion from a carrier- selected doctor and the date and time; (B) that the employee may obtain a second opinion from an employee- selected doctor; (C) the sublist from which the employee may select an employee- selected doctor; and (D) the procedures and the time deadlines for obtaining a second opinion from an employee-selected doctor; (2) The treating doctor or surgeon must within five days of receiving notification from the division, notify the division if the employee is going to select an employee-selected doctor. (3) If the injured employee elects to have an employee-selected second opinion, the injured employee shall select a qualified second opinion doctor from the sublist. The injured employee may seek assistance from the treating doctor or surgeon in selecting a doctor from the sublist. The appointment must be scheduled prior to the treating doctor's or surgeon's submission of an amended TWCC-63 which contains the information required by subsection (e) of this section. The amended TWCC-63 must be filed with the division no later than ten days after the treating doctor's or surgeon's receipt of notification from the division. (4) The second opinion exams scheduled in this subsection shall be set for a date later than the carrier-selected doctor second opinion appointment. (5) If the second opinion of the carrier-selected doctor is a concurrence the appointment scheduled in this subsection may be canceled. (6) Decisions, reports, records, and payments for second opinions obtained pursuant to this subsection shall be governed by the same provisions applicable to second opinions pursuant to subsections (i) and (j) of this section. (7) If the carrier selected second opinion exam results in a nonconcurrence and the division has not received notice of the employee's choice of second opinion doctor, the division will notify the employee, treating doctor and surgeon of the following: (A) that the carrier selected second opinion exam resulted in a nonconcurrence; (B) that in order for the carrier to become liable for the costs of surgery, the employee must receive a concurrence from one of the doctors on the employee sublist; and (C) that failure to inform the division of the employee's selection of a second opinion doctor, within 14 days of nonconcurrence notification from the division, will result in withdrawal of the recommendation for spinal surgery. (8) If a recommendation is withdrawn, the treating doctor or surgeon may resubmit in accordance with subsection (l)(1) of this section. (i) Second Opinion Decisions and Reports; Second Opinion Doctors' Records. (1) A second opinion doctor must provide appointments for requested second opinions within the 30-day time frames required by subsections (e)(2) and (g)(2) of this section. (2) The second opinion doctor's opinion must be based on physical examination of the injured employee and review of the medical records and films forwarded by the surgeon. The second opinion doctor shall call the designated phone number at the division within two days after the exam to submit the results of a second opinion. The message must include the injured employee's name and social security number, the date and time of the exam, the name of the second opinion doctor and a clear decision of a "concurrence" or "nonconcurrence" with the need for surgery. The second opinion doctor shall return any films within three days to the doctor who submitted the films. (3) The second opinion doctor must complete a narrative report regarding the second opinion exam which indicates the second opinion doctor's decision, and submit it to the division, the treating doctor, the surgeon, and the carrier, within ten days of the exam. The narrative must indicate any differences of opinion in the type of procedure or level proposed for surgery. The second opinion doctor should contact the surgeon to discuss the second opinion doctor's opinion and recommendations. Differences of opinion between the surgeon and the second opinion doctor do not affect the carrier's liability for the reasonable costs of spinal surgery. The division will notify the employee of the decision(s) of the second opinion doctor(s). (4) If the second opinion doctor believes an area of the spine other than the one the surgeon or treating doctor proposed, is indicated for surgery the division will notify the injured employee and advise him that he may wish to consult his treating doctor or surgeon about the differences, and that, based upon the differences, he may request an advisory opinion. (5) A second opinion doctor shall maintain accurate records to reflect the following for second opinions: (A) the date for which the exam was scheduled; (B) the circumstances regarding a cancellation, no show or other situations where the exam did not occur as scheduled; (C) the date of the examination; (D) the second opinion doctor's decision; (E) the date the decision was called into the division; (F) the date the narrative was mailed to the treating doctor, the surgeon, and the carrier; and (G) the date the narrative was sent to the division. (j) Payment for the Second Opinion Exam. (1) The division shall notify the carrier via the carrier representative of narrative reports received by the division. The carrier representative shall sign and acknowledge receipt of notice of narrative reports. Carriers shall not pay a doctor for a second opinion exam until receipt of notice of the narrative report. A carrier's time frame for payment of the bill for a second opinion begins with the receipt of the bill from the doctor or the acknowledgment date of notice of the narrative report from the division, whichever is the later of the two dates, regardless of the time frame or process established by Chapter 134 of this title (relating to Guidelines for Medical Services, Charges, and Payments). (2) The insurance carrier is responsible for paying the reasonable costs of a second opinion exam by a qualified doctor whether requested by the injured employee or the carrier. The second opinion doctor's bill and the carrier's payment for second opinion exams shall be inclusive of the exam, review of records and films, and the preparation and submission of the reports, and shall be the lesser of the charged amount or the following fees for the applicable service: (A) $350 for second opinions (use Code, WC001); (B) $100 if the injured employee fails to show up for a scheduled second opinion exam or if a scheduled second opinion exam is cancelled by the employee with less than 24 hours notice (use Code, WC002); or (C) $150 to reconsider an earlier decision (use Code, WC003). (3) A carrier shall pay for the reasonable travel expenses for an injured employee to attend a second opinion appointment. (4) The carrier shall be responsible for the reasonable copying costs of the films and records needed to perform a second opinion. (k) Appeal to a Contested Case Hearing ("CCH"). (1) An employee may appeal to a CCH if there is no second opinion concurrence. (2) A carrier may appeal to a CCH if there is a second opinion nonconcurrence. (3) The appeal must be filed within 10 days after receipt of notice from the commission regarding carrier liability for spinal surgery. The appeal must be filed in compliance with sec.142.5(c) of this title (relating to Sequence of Proceedings to Resolve Benefit Disputes). The contested case will be scheduled to be held within 20 days of commission receipt of the request for a CCH. The hearings and further appeals shall be conducted in accordance with Chapters 140 - 143 of this title (relating to Dispute Resolution/General Provisions, Benefit Review Conference, Benefit Contested Case Hearing, and Review by the Appeals Panel). (4) Of the three recommendations and opinions (the surgeon's, and the two second opinion doctors'), presumptive weight will be given to the two which had the same result, and they will be upheld unless the great weight of medical evidence is to the contrary. The only opinions admissible at the hearing are the recommendation of the surgeon and the opinions of the two second opinion doctors. (l) Resubmitting the Issue of Spinal Surgery. (1) If the injured employee has a change of condition at any time after a nonconcurrence, the treating doctor or surgeon may submit a TWCC-63 to the division and to both the second opinion doctors with documentation indicating the change of condition as defined in subsection (a)(16) of this section. The second opinion doctors will review the documentation for the purpose of evaluating the presence of criteria listed in subsection (a)(16) prior to submission of an addendum report. If in the doctor's opinion the documentation does not meet the criteria of subsection (a)(16), the second opinion doctor shall submit a report to the division and the treating doctor or surgeon indicating there is no change in condition. If documentation meets the criteria in subsection (a)(16), the second opinion doctors shall issue an addendum to the original decision and send a copy to the division, the treating doctor, the surgeon, and the carrier with the word "ADDENDUM" clearly indicated on the narrative report. Addendum decisions, reports, records, and payments, and appeal to a CCH are governed by all of the provisions of this section. If the addendum second opinions result in carrier liability, any pending appeal shall be dismissed. (2) Addendum decisions, reports, records, and payment shall be governed by subsections (i) and (j) of this section with the following exception. The narrative report shall be submitted within ten days of the reviewing doctor's receipt of the request for an addendum opinion or within ten days of a subsequent physical examination of the patient. (3) The treating doctor or surgeon may communicate with the second opinion doctors to exchange medical information and knowledge; however, communication as described in the Texas Labor Code, sec.418.001(a) (relating to Penalty For Fraudulently Obtaining or Denying Benefits) is prohibited. (m) This section affects all Form TWCC-63's filed with the commission on or after November 1, 1994 and remains effective until July 1, 1998. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1996. TRD-9617768 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: December 27, 1996 Proposal publication date: October 1, 1996 For further information, please call: (512) 440-3700 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 106. Exemptions From Permitting SUBCHAPTER G. Combustion 30 TAC sec.106.181 The commission adopts new sec.106.181, concerning Small Boilers, Heaters, and Other Combustion Devices, with changes to the proposed text as published in the September 3, 1996, issue of the Texas Register (21 TexReg 8384). The new section exempts small boilers, heaters, and other combustion devices burning used oil from the preconstruction permitting requirements of the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.057 and sec.382.0518. EXPLANATION OF ADOPTED RULE. This rulemaking action is part of the commission's plan to recodify standard exemptions in a new Chapter 106, concerning Exemptions from Permitting. This action creates a new sec.106.181, which is a partial recodification of current Standard Exemption (SE) 7 in sec.116.211, and will allow for burning used oil in small boilers, heaters, and other combustion devices. Small boilers, heaters, and other combustion devices burning used oil constructed or modified after the effective date of this section will be subject to the requirements of this new chapter. The current SE 7 should continue to be used when burning other fuels allowed by exemption. The commission plans to recodify the remainder of SE 7 into sec.106.182 in a future rulemaking. The rule addresses the following problem: a significant opportunity for recycling used oil is to use it for fuel for heating purposes. However, the current standard exemption for boilers, heaters, and other combustion devices, SE 7, does not allow for the burning of used oil. Thus, in order to burn used oil in one of these devices, the owner/operator of combustion devices burning used oil would be required to obtain a new construction permit. The rule solves this problem by creating sec.106.181 to exempt the burning of used oil in boilers, heaters, and other combustion devices as long as certain conditions are met. TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code, sec.2007.043. Promulgation and enforcement of this rule will not affect private real property. HEARING AND COMMENTERS. A public hearing was held in Austin on October 1, 1996. No oral testimony was presented. Written comments were received from the City of Wichita Falls and Environeering, Inc. The City of Wichita Falls supported the proposal and the commission's efforts to make the rules more user friendly. The commission acknowledges and appreciates the support. Environeering, Inc. commented that the size restriction for the exemption should be a range of 0.5 million Btu per hour (MM Btu/hr) to 10 MM Btu/hr with a combined total not to exceed 10 MM Btu/hr. The commenter stated that United States Environmental Protection Agency emissions factors do not differentiate between the level of emissions expected from combustion units in this range. Further, the commenter stated that the nitrogen oxide (NOx) emissions from boilers up to 10 MM Btu/hr would still be of a level at which an exemption would be appropriate. The intent of this rulemaking was to allow the burning of used oil in small combustion devices, such as water heaters, for energy recovery purposes. The size restriction established in the exemption was established to be consistent with the requirements of 40 Code of Federal Regulations, Part 279 and the requirement under the TCAA that the exemption be protective of human health and the environment. Burning of used oil generates emissions in addition to NOtype- name="sub">x that were evaluated for this purpose and resulted in the total capacity restrictions. The previous exemption (SE 7) is not being changed with this new exemption and is still applicable for boilers greater than 0.5 MM BTU/hr. Environeering, Inc. commented that the current exemption (SE 7) does not allow fuel oil to be used except as a backup fuel and that it was unclear why this proposal does not include fuel oil as exemptible since the emissions would be approximately the same as from burning used oil. The intent of this rule proposal was to allow the burning of used oil in small combustion devices for energy recovery purposes, and therefore this comment is outside the scope of this rulemaking. The commission will be considering other changes to the current exemption (SE 7) in future rulemaking and will have another public comment period. The commission has made changes to make the proposal consistent with the requirements of sec.106.102, concerning Comfort Heating. These two exemptions complete the commission's effort to exempt from permitting the burning of used oil for energy recovery purposes. STATUTORY AUTHORITY. The new section is adopted under the Texas Health and Safety Code, the TCAA, sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.106.181. Small Boilers, Heaters, and Other Combustion Devices. (a) Small boilers, heaters, drying or curing ovens, furnaces, or other combustion units, but not including stationary internal combustion engines or turbines, are exempt provided that all the conditions of this section are met. (b) Combustion units may burn used oil as a fuel as long as the used oil has not been mixed with hazardous waste and the combustion unit meets the following conditions: (1) the combustion unit or combination of combustion units at the same account have a maximum capacity of 1.0 million Btu per hour (MMBtu/hr) and each individual combustion unit is not greater than 0.5 MMBtu/hr; (2) the combustion gases from the combustion unit(s) are vented to the ambient air in accordance with the following requirements: (A) through an unobstructed vent; or (B) through a vertical vent with a cap; and (i) a flat roof, through a minimum of a three-foot stack; or (ii) a sloped roof, through a stack that is at least three feet higher than the highest point on the roof or three feet higher than a point extending ten feet horizontally from the roof; and (3) the combustion unit(s) burns only used oil the owner or operator generates on-site or used oil received from household do-it-yourself used oil generators. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1996. TRD-9617687 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 27, 1996 Proposal publication date: September 3, 1996 For further information, please call: (512) 239-1966 CHAPTER 113. Toxic Materials The Texas Natural Resource Conservation Commission (commission) adopts the repeal of sec.sec.113.1-113.3 and 113.7-113.13, regarding Purpose; Definitions; and Specific Toxic Materials; Calculations of Fluoride Concentration from Stack Samples and Measurements; Coordination of Emissions from Several Properties; Measuring and Monitoring; Use of Air Pollution Control Facilities; Exclusion from Application; Exceptions; and Effective Date and Time for Compliance; and new sec.113.21, concerning Beryllium, without changes to the proposed text as published in the September 10, 1996 issue of the Texas Register (21 TexReg 8646). New sec.113.21 will be placed in a new undesignated head, Beryllium, under new Subchapter A, Hazardous Air Pollutants. EXPLANATION OF RULES. This adoption is part of the regulatory reform effort. The regulatory reform project identifies rules and regulations which need clarification for the benefit of the public; are outdated; impose regulatory requirements in excess of their contribution to the commission's mission; or are duplicated, unnecessary, or inconsistent. Since most inorganic fluoride emissions are regulated by permit, the commission determines that sec.sec.113.1-113.3 and sec.sec.113.7-113.13 are outdated and adopts the repeal of these provisions. The commission also adopts revisions regarding beryllium in former sec.113.3(b), now codified at new sec.113.21. TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for these rules as required by Texas Government Code, Section 2007.043. The repeal of the Subchapter A fluoride rules and the new section regarding beryllium will not affect real property. HEARING AND COMMENTERS. A public hearing on the proposal was held in Austin on October 10, 1996. The comment period closed the same day. No oral comments were presented at the hearing. Two commenters presented written testimony. The American Electronic Association supported the repeal of the old fluoride rules. Texas Utilities also supported the regulatory reform effort for fluorides, but also urged the commission to consider deleting the beryllium rule. The September 10, 1996 notice proposed only to revise and renumber, not repeal, sections relating to the pollutant beryllium. A new proposal is required to entirely repeal beryllium regulations. The original intent of the staff working group was to focus on fluoride compounds, and beryllium compounds were not considered. A working team in the agency will evaluate the proposal to consider the repeal of the beryllium rule. In addition, the United States Environmental Protection Agency provided a letter which stated that it had no comments on the repeal since the fluoride rule was not part of any specific State Implementation Plan. SUBCHAPTER A. Inorganic Fluoride Compounds and Beryllium 30 TAC sec.sec.113.1-113.3, 113.7-113.13 STATUTORY AUTHORITY. The repeals are adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617628 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 26, 1996 Proposal publication date: September 10, 1996 For further information, please call: (512) 239-1966 SUBCHAPTER A. Hazardous Air Pollutants Beryllium 30 TAC sec.113.21 The new section is proposed under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617629 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 26, 1996 Proposal publication date: September 10, 1996 For further information, please call: (512) 239-1966 CHAPTER 213. Edwards Aquifer SUBCHAPTER A. Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis and Williamson Counties 30 TAC sec.sec.213.1-213.14 Texas Natural Resource Conservation Commission (commission) adopts new sec.sec.213.1-213.14, concerning the Edwards Aquifer. Sections 213.1, 213.2, 213.3, 213.4, 213.5, 213.6, 213.7, 213.9, 213.12, and 213.13 are adopted with changes to the proposed text as published in the July 16, 1996, issue of the Texas Register (21 TexReg 6562) with corrections published in the August 16, 1996, issue (21 TexReg 7761). New sec.sec.213.8, 213.10, 213.11, and 213.14 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULE This chapter regulates activities having the potential for polluting the Edwards Aquifer and hydrologically connected surface water in order to protect existing and potential uses of groundwater and maintain Texas Surface Water Quality Standards. The activities addressed are those that pose a threat to water quality. The Edwards Aquifer rules apply to all regulated developments within the recharge zone and to certain activities within the transition zone and to discharges ten miles upstream of the recharge zone within the aquifer's contributory watersheds. Regulated development includes all publicly and privately owned sites where new construction is to commence or where a change in land use from current conditions is intended. Residential subdivisions where every lot is larger than five acres and only one residence per lot is constructed are exempted. Regulated activities within regulated developments are those that modify or disturb the topographic, geologic, or existing recharge characteristics of a site or have the potential to contaminate the aquifer. Such activities may include: construction of buildings, utility stations, roads, highways, or railroads; clearing, excavation, or any other activities which alter or disturb the topographic, geologic, or existing recharge characteristics of a site; or any other activities which may pose a potential for contaminating the Edwards Aquifer. The following are not considered regulated activities for purposes under the rules: the clearing of a ten foot path for the purposes of surveying, agricultural activities (excluding feedlots/concentrated animal feeding operations); activities associated with exploration, development and production of oil, gas, or a geothermal resource within the jurisdiction of the Texas Railroad Commission; and the maintenance of existing structures which will not cause additional site disturbance and have little or no potential for polluting the aquifer. The Edwards Rules also provide more stringent requirements than statewide rules for the design, installation, monitoring, and maintenance of on-site sewerage systems (e.g., septic tanks) and under and aboveground petroleum storage tanks. The rules also prohibit certain activities on the recharge zone, such as the disposal of hazardous waste, new concentrated animal feeding operations, waste disposal wells, the use of sewage holding tanks as part of an organized sewage collection system, and Type I new municipal solid waste landfills; and prohibits in the transition zone waste disposal wells, disposal of hazardous waste, and new Type I municipal solid waste landfills. New or increased discharges of wastewater in the recharge zone and upstream of the recharge zone in the contributory watershed are prohibited. The rules also impose stringent effluent criteria for existing discharges within the recharge zone and upstream in the contributory watershed. Protection of the water quality in the Edwards Aquifer is accomplished primarily through the review and approval of Edwards Aquifer protection plans. Before commencing construction of a regulated development the property owner must submit a water pollution abatement plan to the executive director for approval. A plan is also required for the installation and rehabilitation of sewage collection lines, underground storage tanks, and aboveground storage tanks. The rules include detailed requirements for the contents of a plan. The plan includes a report from a geologist describing the geology of the area and identifying sensitive features found on the site covered by the proposed plan and downgradient of the site. The plan must also include a technical report of the measures that will be taken under the proposed plan to prevent pollution of the Edwards Aquifer. The rules also require that all abandoned water, injection, dewatering, and monitoring wells be plugged since they may be potential pathways for sources of pollution to move to the aquifer. As part of its approval of an Edwards Aquifer protection plan, the executive director requires an applicant to take measures to prevent pollution from stormwater originating on-site or up-gradient from the site, and prevent pollutants from entering the sensitive features identified in the geologist's report both during and after construction. Upon approval of a plan, the applicant must file a notice in the deed records of the county where the property is located that the property is subject to an approved plan to put all third parties on notice that a plan is in effect. Chapter 213 requirements also apply to road and highway construction and maintenance. Through a Memorandum of Understanding and a previous contract with the TxDOT, the executive director reviews water pollution abatement plans for road and highway construction. The environmental impacts of such construction are avoided or minimized through the use of required sediment control structures and the placement of hazardous materials traps for roadways and highways over the Barton Springs segment of the Edwards Aquifer. Commission staff review best management practices (BMP) and measures which may be used to achieve the performance goal of water quality protection for all TxDOT construction activities, pursuant to a contract between the two agencies. The commission staff also participates on a working committee established by TxDOT to monitor impacts of road and highway construction over the Barton Springs segment of the Edwards Aquifer. The holder of an approved Edwards Aquifer protection plan is responsible for compliance with the Edwards Aquifer rules as well as any conditions imposed by the executive director in approving the plan. If a person fails to comply with any provisions of the Edwards Aquifer rules, the commission may issue an enforcement order requiring compliance and remedial measures to be taken. The agency may also impose administrative penalties under sec.26.136 of the Texas Water code of up to $10,000 for each act of violation and for each day of violation. Additionally, a violator may be subject to civil and criminal penalties as well as court injunctions as provided by sec.26.123 and sec.26.121, Texas Water Code. Pursuant to sec.26.124 of the Water Code, local governments and the Texas Parks and Wildlife Department may also file suit in state district court for injunctive relief and civil penalties against a person who is committing or is threatening to commit a violation of water quality statutes/and or rules. New Chapter 213 strengthens existing requirements and adds additional measures to protect water quality. It also streamlines and consolidates the repealed Chapter 313, Edwards Aquifer rule. The numbering change implements a reorganization of commission rules by moving this chapter to the 200 series of Title 30 of the Texas Administrative Code that is reserved for rules related to water programs. In addition, the rule reorganizes the current Chapter 313 rule to reflect the proper sequence of steps required to obtain approval from the executive director to commence construction of a regulated activity. Obsolete cross-references to other commission rules were corrected, ambiguous language was revised, and processes and procedures were streamlined as part of the commission's regulatory reform process. The new chapter responds to public comment received during hearings held pursuant to sec.26.046 of the Texas Water Code. This provision requires the agency to hold annual public comment hearings to receive evidence from the public on actions the commission should take to protect the Edwards Aquifer from pollution. Agency staff conducted three such hearings in 1994 on March 30, April 5, and June 2, in San Antonio, Austin, and Hondo, respectively. Staff then compiled a report which recommended a two-phased approach to amending the existing rules based upon the comments received. The first phase included those changes that were supported by existing data, studies, and other information. These changes were also determined to be reasonable, necessary, and the most cost-effective way to directly address specific, demonstrated water quality threats and to avoid duplication or conflict with local regulations. Phase II of the rulemaking process will include those changes for which additional data, studies, and information must be developed. Staff held three hearings on December 6 and December 12, 1995, in San Antonio and Austin, respectively, and January 10, 1996, in Belton to receive comment on the report. This rule reflects the first phase of changes identified in the staff report. These changes include, but are not limited to, adding a non-degradation policy; requiring 150 foot setback from a sensitive feature for new Underground Storage Tank (UST) without tertiary containment and for temporary Aboveground Storage Tank (AST) facilities; the regulation of temporary ASTs on construction sites; the lowering of the threshold level for the exemption for the regulation of permanent AST facilities from 1,000 to 500 gallons of cumulative storage capacity; adding all new Municipal Solid Waste Type I facilities to the list of prohibited activities in both the recharge and transition zones, including facilities required to comply with Type I standards (i.e. Types I, II, and III facilities as defined in 30 TAC sec.330.41 (b), (c), and (d)); clarifying and redefining significant recharge feature (now sensitive feature) to aid in consistent program implementation and facilitate implementation of setback provisions and recharge protection; clarifying that no discharge from sewage collection line leakage is allowed while retaining flexibility in repair schedules; removing requirements which are duplicative of Chapter 317 design criteria for sewage collection lines; requiring Professional Engineer certification for plans which address sensitive features encountered during construction of sewage collection lines; requiring a geologic assessment for new sewage lift station applications; requiring a geologic assessment for all new sewage collection systems; and modifying the exemption for geologic assessments to be based on acreage and amount of development. The rules have been updated to reflect the current day-to-day operations of the agency relating to the protection of the water quality of the Edwards Aquifer and should make the administration of the Edwards Aquifer Protection Program more efficient and effective. These changes include: reducing the downgradient requirement for a geologic assessment from a distance of at least one mile downstream of all regulated developments to one-half mile, due to property access problems; clarifying the approved sewer line testing procedures; requiring a project that is partially located on the recharge and transition zone, where water in the transition zone drains back to the recharge zone, to meet standards as if the entire project is located within the recharge zone; placing a two-year expiration on AST and UST approvals to provide consistency with other expiration dates for approved regulated activities; and eliminating the requirement for a AST plan for electrical transformer stations containing mineral oil while clarifying that construction of supporting structures is a regulated activity subject to a water pollution abatement plan (WPAP). In addition, the commission has included a requirement for the use and inspection of best management practices and measures that are proposed as part of an Edwards Aquifer protection plan that are taken to prevent pollution of stormwater flowing onto and off a site. Maintenance and repair of these practices and measures is required. The agency is revising a technical guidance manual that will include suggested measures to avoid increased instream erosion from a site. These rules do not regulate in a totally independent manner. They build upon and expand the protection measures found in other existing commission rules under Title 30 of the Texas Administrative Code which govern various permitting, licensing, and spill response programs that address surface and groundwater pollution prevention from storage, transportation, and disposal of waste, hazardous substances, and wastewater. Some of these chapters are cross- referenced within Chapter 213 and some of these chapters have special cross- references to the Edwards Aquifer or are otherwise made applicable to the Edwards by referencing their applicability to a sole source aquifer as designated under the federal Safe Drinking Water Act. Specific cross-references in the rule relate to on-site wastewater treatment which are contained in Chapter 285 of this title (relating to On-Site Sewage Facilities). These rules contain specific and more stringent provisions for on- site sewerage facilities (including septic tanks) in the recharge zone having the potential to cause pollution of the Edwards Aquifer. Cross references in the rule also refer to Chapter 238 of this title relating to the Water Well Drillers Rules. This chapter specifically addresses the proper procedures for drilling and abandonment of wells to insure groundwater quality protection. While there are specific requirements for organized sewage collection systems contained in the rule, the general design, design plans, and specifications must also comply with Chapter 317 of this title relating to Design Criteria for Sewerage Systems. To insure proper design and installation, underground storage tank systems (USTs) are required to be installed by a person registered under Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks). More stringent requirements for the design, installation, monitoring, and containment of USTs are provided in Chapter 213. The design of wastewater treatment plants must be in accordance with Chapter 317 of this title and attain the effluent discharge standards contained in Chapter 309 of this title (relating to Effluent Limitations) and Chapter 311 of this title (relating to Watershed Protection) where applicable. Such effluent criteria are the most stringent in the state and require a 97.5% pollutant removal. The agency also regulates nonpoint source pollution from certain developments in a limited part of the contributing, recharge and transition zones of the aquifer under Chapter 216 of this title (relating to Water Quality Performance Standards for Urban Development). Prohibited activities are cross-referenced in the rule to the chapters that contain the permitting provisions under this title. Waste disposal wells under Chapter 331, new feedlot/concentrated animal feeding operation under Chapter 321, land disposal of Class I wastes under Chapter 335, and new municipal solid waste landfill facilities required to meet and comply with Type I standards under Chapter 330 are all prohibited on the recharge zone. Waste disposal wells, land disposal of Class I waste, and new municipal solid waste facilities are all prohibited on the transition zone. Chapter 335 (relating to Industrial Solid Waste and Municipal Hazardous Waste) has specific provisions in the section on location standards for hazardous waste storage, processing, or disposal that prohibit a land treatment facility, waste pile, storage surface impoundment, or landfill on the recharge zone of a sole source aquifer which cross references the Edwards Aquifer recharge zone maps under Chapter 213. Storage and processing facilities (excluding storage surface impoundments) under Chapter 335 may not be located on the recharge zone of a sole source aquifer such as the Edwards unless secondary containment is provided. Although not specifically referenced in Chapter 213, additional water quality protection from oil and hazardous substances spills is provided by staff in the Regional Offices and through the Emergency Response Center. As specified under Chapter 327 of this title (relating to Spill Prevention and Control), the Texas Natural Resource Conservation Commission is the state's lead agency for response to all hazardous substance discharges or spills, and discharges or spills of other substances and certain inland oil discharges or spills which may cause pollution of the aquifer. This authority is derived from sec.26.039 and sec.sec.26.261 through 26.268 of the Texas Water Code and through the Texas Hazardous Substances Spill Prevention and Control Act. Pursuant to sec.26.039(b), whenever an accidental discharge or spill occurs, the individual operating or responsible for the activity or facility must notify the agency as soon as possible, but not later than 24 hours after the occurrence. In addition, the Railroad Commission of Texas has authority over discharges or spills from crude oil or natural gas pipelines under their jurisdiction. However, discharges or spills from pipelines transporting refined products such as gasoline, diesel, or other fuel oils fall under the jurisdiction of the agency. As specified under the "State of Texas Oil and Hazardous Substances Spill Contingency Plan," the agency serves as the lead in directing and approving the response for the discharge or spill of a harmful quantity of crude oil (defined as five or more barrels discharged or spilled on the ground or any quantity discharged or spilled into water) during highway transportation. Rail transportation spills are reported to the National Spill Response Center under the U.S. Department of Transportation. In addition, the agency works with the Texas Department of Transportation to address both potential contamination issues surrounding the construction of highways and the placement of hazardous material traps to capture accidental spills resulting from accidents. Section 213.1, Purpose, provides the intent of this chapter, delegates authority to the executive director to act on behalf of the commission and makes all actions taken by the executive director subject to 30 TAC Chapter 50, Subchapter C. A goal of nondegradation of the existing quality of groundwater, consistent with sec.26.401 of the Texas Water Code has been added as a result of comments. Section 213.2, Applicability and Person or Entity Required to Apply, specifies that these rules are applicable only to the Edwards Aquifer and identifies who must file applications with the executive director for approval. Section 213.3, Definitions, provides definitions for terms used throughout the chapter. Definitions for best management practice, commencement of construction, and site were revised To provide clarification, new definitions for Edwards Aquifer protection plan and tertiary containment were added Section 213.4, Application Processing and Approval, identifies who needs to file an Edwards Aquifer protection plan and how the plan will be processed. Clarification was added to sec.213.4(a) regarding when input must be received from affected governmental entities. Section 213.5, Required Edwards Aquifer Protection Plans, Notification, and Exemptions, lists activities that require an Edwards Aquifer protection plan, contents of a plan, notification and inspection requirements, and exemptions from submitting a plan. Section 213.5(a) lists regulated activities by type of activity that requires an Edwards Aquifer protection plan. A water pollution abatement plan (WPAP) is required for all regulated activities on the recharge zone not specified in sec.213.5(c), (d), or (e). An organized sewage collection system plan (OSCSP) is required for rehabilitation or construction of existing or new systems on the recharge zone. An underground storage tank facility plan (USTFP) is required for the rehabilitation or construction of an underground storage tank system for the storage of static hydrocarbons and hazardous substances on the recharge or transition zone. An aboveground storage tank facility plan (ASTFP) is required for the rehabilitation or construction of an aboveground storage tank system for the storage of static hydrocarbons and hazardous substances on the recharge or transition zone. Section 213.5(b) specifies that the contents of the WPAP are the application, site location information, assessment of area geology, and a technical report. The rule provides a standard method to identify sensitive features by requiring the use of executive director approved forms. The WPAP will have to specifically address these sensitive features to insure that contamination of the aquifer does not occur. The technical report details the nature of the regulated activity including size, projected population, amount and type of impervious cover, volume and character of wastewater to be produced, volume and character of stormwater runoff expected, and activities or processes which could be a potential source of aquifer contamination. The technical report will contain a description of the best management practices and measures that will be taken to prevent pollution of stormwater originating on-site or upgradient and the best management practices and measures that will prevent polluted stormwater runoff from leaving a site during and after construction. To provide flexibility for the development of new BMPs, sec.sec.213.5(b)(4)(B) through (D) were expanded to include the phrase "Pilot-scale field testing (including water quality performance monitoring) may be required for BMPs that are not contained in technical guidance recognized by or prepared by the executive director." The report will also contain a description of measures that will be taken to prevent pollutants from entering the aquifer while, to the extent practicable, maintaining flow to naturally occurring sensitive features. This provision does not preclude local ordinances from prohibiting the sealing of features. The technical report will contain a description of measures to be taken to avoid or minimize instream erosion from water flowing off the site. The method of wastewater disposal from the site and measures that will be taken to contain any spill from the temporary storage of 250 or more gallons on site of static hydrocarbons or hazardous substance must be described. A plan for the inspection of best management practices and measures, and their maintenance and repair is required as part of the report. Section 213.5(c) provides for the submittal of an OSCSP for rehabilitation or construction related to existing or new organized sewage collection systems on the recharge zone. The general design of the system must comply with 30 TAC sec.317, Design Criteria for Sewerage Systems, and must be filed with and approved by the executive director. Section 213.5(c)(3) contains special requirement for sewage collection systems on the recharge zone. The use of newer black and white television equipment was added to the list of testing methods for sewage collection systems. The OSCSP, under sec.213.5(c)(4), must contain an application, narrative description of the proposed system, plans and specifications, and assessment of area geology. The assessment of area geology is required along the path of the sewer line(s) plus 50 feet on either side of the line(s) as described in sec.213.5(b)(3). The OSCSP will contain pollution abatement measures for sensitive features identified along the path of the proposed sewer line. Section 213.5(d), Static Hydrocarbon and Hazardous Substance Storage in Underground Storage Tanks System, specifies the design standards for an underground storage tank system and the required contents of the underground storage tank facility plan (USTFP) for facilities located on either the recharge or transition zone. New or replacement systems will be double-walled or an approved equivalent. Any new system that is within 150 feet of a domestic, industrial, irrigation, public water supply well without a sanitary control easement, or other sensitive feature requires tertiary containment. Under sec.213.5(d)(2), the required contents of an USTFP are the application; site location map as specified under sec.213.5(b)(2); assessment of area geology as described under sec.213.5(b)(3), with a change that this shall be submitted for the site and 200 feet downgradient if the site is located in the transition zone; and a technical report as described under sec.213.5(b)(4) to be submitted on forms provided by the executive director. Section 213.5(e), Static Hydrocarbon and Hazardous Substance Storage in an Aboveground Storage Tank Facility, specifies the design standards for aboveground storage tank systems, the contents of the aboveground storage tank facility plan (ASTFP), and exemptions for facilities located on either the recharge or transition zone. Under sec.213.5(d)(2), the required contents of an ASTFP are the application; site location map as specified under sec.213.5(b)(2); assessment of area geology as described under sec.213.5(b)(3), with a change that this shall be submitted for the site and 200 feet downgradient if the site is located in the transition zone; and a technical report as described under sec.213.5(b)(4) to be submitted on forms provided by the executive director. Section 213.5(d)(4)(A) was clarified to provide an exemption from sec.213.5(e) for equipment used to transmit electricity insulating oil while requiring the construction of supporting structures to be a regulated activity subject to requirements on sec.213.5(a)(1). Section 213.5(f), Notification and Inspection, specifies that written notification is required no later than 48 hours prior to commencement of construction or rehabilitation. Notice is required if any sensitive features are discovered during construction or rehabilitation. Upon completion of excavation for any lift station or tankhold, a qualified geologist is required to inspect the excavation for the presence of sensitive features. If sensitive features are discovered, methods to protect the aquifer from potentially adverse impacts from the regulated activity must be approved by the executive director. The rule was clarified that construction may continue if the geologist certifies that no sensitive features were present. Section 213.5(g) addresses on-site sewerage disposal, requiring systems located on the recharge zone to be designed, installed, maintained, repaired, and replaced in accordance with Chapter 285. Section 213.5(h), Exemption, clarifies that the installation of natural gas, telephone or electric lines, water lines, or other such utility lines which are not designed to carry and will not carry pollutants, stormwater runoff, sewage effluent, or treated effluent from a wastewater treatment facility are exempt from the Edwards Aquifer protection plan submittal requirements under this section. However, the construction of these facilities on the recharge zone is a regulated activity requiring the installation and maintenance of appropriate temporary erosion and sedimentation controls. Section 213.6, Wastewater Treatment and Disposal Systems, contains a prohibition on new discharges or increases in discharges of wastewater into or adjacent to water in the state, on the recharge zone that would create additional loading. Existing permits may be renewed for the same discharge volumes and with the same conditions and authorizations specified in those permits. New wastewater treatment plants located on the recharge zone must be designed, constructed, and operated such that there are no bypasses of the treatment facilities or any discharges of untreated or partially treated wastewater from those facilities. Wastewater treatment plants must be designed in accordance with 30 TAC sec.317. With the exception of licensed private sewage facilities, land application systems, under sec.213.6(b), that rely on percolation for wastewater disposal are prohibited on the recharge zone. Disposal of wastewater on the recharge zone utilizing land application methods, such as evaporation or irrigation, will be considered on a case-by-case basis. Land application that relies on percolation for wastewater disposal is prohibited on the recharge zone, except for licensed on-site sewage facilities Existing permits may be renewed for the same discharge volume and with the same conditions and authorizations specified in the permit. Specific standards for wastewater discharge into or adjacent to water in the state, upstream from the recharge zone, are contained in sec.213.6(c). Under sec.213.6(c)(4), any new permitted industrial wastewater discharges will be considered on a case-by-case basis, in accordance with appropriate discharge limits applicable to that industrial activity and with consideration of proximity to the recharge zone. Section 213.7, Plugging of Abandoned Wells, requires all abandoned water wells, including injection, dewatering, and monitoring wells, be plugged pursuant to Chapter 238. Section 213.8, Prohibited Activities, lists activities that are prohibited on either the recharge or transition zone. Section 213.9, Exceptions, provides for exceptions to this chapter to be granted by the executive director and specifies the procedure for requesting an exemption. Section 213.10, Enforcement, specifies that failure to comply with any provision of this chapter, any applicable statute or regulation, or order of the commission issued pursuant to this chapter may result in liability for penalties and may subject a noncompliant person to enforcement proceedings initiated by the executive director under Chapter 26 of the Texas Water Code. Section 213.11, Groundwater Conservation Districts, recognizes the authorities, powers, and duties of groundwater conservation districts to conserve, prevent waste, and protect groundwater quality and encourages districts to assist the commission in its administration of this chapter by conducting specific functions within the areal extent of their geographic jurisdiction. Section 213.12, Application Fees, requires applicants under this chapter to pay an application fee in the amount set forth in sec.213.14. The fee is due at the time the application is filed. Section 213.13, Fees Related to Requests for Extensions, requires applicants under this chapter to pay $100 for each extension request. The fee is due at the time the extension request is filed. The application must include a copy of the approved Edwards Aquifer protection plan. Section 213.14, Fee Schedule, contains the criteria for calculating the application fee for the Edwards Aquifer protection plan. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to regulate activities having the potential for causing pollution of the Edwards Aquifer. The rule will substantially advance this specific purpose by clarifying the procedures and criteria to be used by the commission in the review and approval of Edwards Aquifer protection plans for regulated activities under this chapter. Promulgation and enforcement of this rule could affect private real property which is the subject of the rule. However, there are exceptions to the application of Chapter 2007 of the Texas Government Code. One exception exists since the possibility of degradation to the quality of the water supply presents a real and substantial threat to public health and safety (see Texas Government Code sec.2007.003(b)(13)). The rule will significantly contribute to the prevention of this threat. The Edwards Aquifer is the sole or primary source of water for over 1.5 million people. To the extent this rule regulates activities over the recharge and transition zones which have the potential for causing significant pollution of the Edwards Aquifer, it significantly advances health and safety. This rule is necessary to carry out the stated authority of the commission to protect human health and the environment. Additionally, regardless of the applicability of sec.2007.003(b)(13) of the Act, sec.2007.003(c) also applies to this rule. Subsection (c) exempts the enforcement or implementation of a statute, ordinance, order, rule, regulation, requirement, resolution, policy, guideline, or similar measure that was in effect September 1, 1995, and that prevents the pollution of a reservoir or an aquifer designated as a "sole source" aquifer. This exception applies to the enforcement or implementation of the entire rule even though only part of the Edwards Aquifer has been designated as a sole source aquifer (See 40 FedReg 58344 (1975) and 53 FedReg 20897 (1988). Current Chapter 313 rules regulating activities over the recharge or transition zones of the Edwards Aquifer have been in effect since March 21, 1990,. The activities addressed by the rule are those that may pose a threat to water quality. This rule specifically applies to the Edwards Aquifer and is not intended to be applied to any other aquifers in the state of Texas. Unless otherwise provided under this chapter, the owner of an existing or proposed site such as a residential or commercial development, sewage collection system, or aboveground or underground storage tank facility for static hydrocarbons or hazardous substance, who proposes new or additional regulated activities under this chapter, must file all appropriate applications with the executive director for approval. Changes in the rule prohibit Type I, II or III municipal solid waste disposal facilities to be located over the recharge zone. However, there are no known permitted or proposed Type I, II or III municipal solid waste facilities currently located within the recharge or transition zones of the aquifer. Generally, the topography, availability of soil liner materials, and geologic factors are unsuitable and uneconomical for locating municipal solid waste landfills on the recharge zone. Other activities with high potential for pollution, including new confined animal feeding operations and disposal of hazardous waste, are already prohibited under the existing Edwards Aquifer rule. HEARINGS AND COMMENTERS Public hearings on this rule were held in San Antonio on September 4, 1996, and in Austin on September 10, 1996, with oral testimony provided at both hearings. The comment period closed September 16, 1996. Fifty-one commenters provided both general and specific comments on the overall proposal. The following thirteen commenters generally supported the rules but suggested changes: an individual; American Planning Association, Texas Chapter, San Antonio Section (APA); Barton Springs/Edwards Aquifer Conservation District (BSEACD); State Senator Gonzalo Barrientos; City of Austin (COA); City Public Service of San Antonio, Texas (CPS); Diamond Shamrock (DS); League of Women Voters of the San Antonio Area (LWV-SA); League of Women Voters of Texas (LWV-TX); Northside Neighborhoods for Organized Development (NNOD); San Antonio Open Space Advisory Board (SAOSAB); Sierra Club Lone Star Chapter (SCLSC); and Texas Department of Transportation (TxDOT). Four individuals and the Save Our Springs Alliance (SOS) opposed the rules because specific types of protection measures where not included. The following thirty-one commenters did not generally voice support or opposition to the proposal, but suggested changes: six individuals; American Society of Civil Engineers, San Antonio Branch of the Texas Section (ASCE); Aquifer Guardians in Urban Areas (AGUA); Brown Engineering Co. (BEC); Consulting Engineers Council of Texas (CEC); Dwight C. Russell Associates, Inc. (DCRA); Earth First (EF); Glenrose Engineering and Save Our Spring Alliance (GE/SOSA); HydroGeology International and HydroGeology Associates (HGI); Industrial Council on the Environment (ICE); League of Women Voters of the Austin Area (LWV-AA); New Braunfels Utilities (NBU); R. L. Masters Environmental Consulting (RLM); R. W. Opitz & Associates (RWOA); City of San Antonio Councilman Howard Peak; The Real Estate Council of Austin, Inc. (RECA); Regional Clean Air and Water Association of San Antonio, Texas (RCAWA); City of San Antonio/San Antonio Water System (SA/SAWS); Save Barton Creek Association (SBCA); Sierra Club Alamo Group (SCAG); Sierra Club Austin Regional Group (SCARG); Southwestern Bell Telephone (SWB); Texas Industries, Inc. (TI); Texas Society of Professional Engineers- Professional Engineers in Private Practice, Bexar Chapter (PEPP); Texas Mid- Continent Oil and Gas Association (TMOGA); and State Senator Jeff Wentworth. The Edwards Aquifer Authority and an individual made statements but offered no comment on the rules. GENERAL COMMENTS A large number of generally favorable comments from a wide variety of commentors were received. APA supported the detail and thoroughness of the technical rewrite of the existing Chapter 313. COA commented that the rules are clearer, easier, and more palatable. Senator Barrientos commented that he is pleased that the commission is cleaning up the rules to make them more readable and understandable. RECA, in general, supported the proposed revisions as providing both increased efficiency in the regulatory structure and increased protection for the resources. An individual commented that the rules are headed in the right direction. SCLSC stated that they are pleased with many of the changes proposed and that the rules seem more streamlined and yet more sensitive to the environmental realities that are currently facing this region. SCLSC continued that their organization is happy to see setback requirements, lower exemption levels for AST facilities, five-year testing requirements for sewer lines on the recharge zone, and inclusion of those projects partially on the recharge zone within the definition of a regulated recharge zone site. BSEACD commented that the proposed rules attempt to address some concerns that were expressed during past public comment periods on the program operation. It also comments that improvements to the program include: clarification and streamlining of rule language; setback requirements for underground and aboveground storage tanks; exempt aboveground storage tanks and reduction in their cumulative storage capacity; redefining geologic assessment expectations; and recognizing development impacts that increase storm flow, flashiness and stream scour. SCAG acknowledges that some helpful recommended changes such as prohibition of municipal landfills in the recharge zone, the testing of sewer lines by TV every five years, two-year limits on permits for regulated activities, and the requirement for a full water pollution abatement plan for projects when only a part of the property is in the recharge zone were made. Similarly, a number of generally unfavorable comments were also received. An individual commented that despite innumerable attempts to strengthen the rule by individuals and institutions, the changes are cosmetic and are so insignificant as to be laughable because all the changes lack substance. Another individual commented that the rules do not reflect any of the substantive changes recommended by the San Antonio Water System, the (former) Edwards Underground Water District, AGUA, or numerous neighborhood organizations, business groups, and individuals. Four individuals, Senator Jeff Wentworth and SA/SAWS stated they are concerned that out of the 41 suggestions proposed by SA/SAWS, only two have been accepted in the rule. Another individual commented that the rules should be more stringent. Another individual commented that in some instances the rules have been strengthened but in some areas the rules have been weakened, however not much has changed in the last couple of years. The commenter continued that the rules are weak and will almost certainly mean that the degradation of the water quality will continue as development continues. SCLSC was concerned that some of the proposed revisions may not go far enough in fulfilling or may work against the purpose of the rules. SOS commented that the proposed rules will not protect the Edwards Aquifer for the following reasons: they do not limit the impervious cover to the 10-20% shown to be the threshold for preventing degradation of surface and groundwater; they do nothing to protect the contributing zone of the aquifer; they do not prohibit gas stations and other facilities that are known to generate extremely contaminated runoff and present high risks of spills or leaks from tanks, trucks and chemical transfer operations; they do nothing to provide for meaningful enforcement of whatever rules are adopted so that wholesale violations, as is occurring now, do not continue; and they do not restrict or prohibit either directly or indirectly the use of pesticides, fertilizers and other chemicals or overstocking or over concentration of animals. The commission believes that these rule changes will substantially strengthen the Edwards Aquifer Protection Program. The commission appreciates the support from commenters and with regard to the concerns expressed, responses to specific comments are included under pertinent sections of the preamble. The commission generally responds that each of the individual changes suggested by SA/SAWS, as with all comments received by the agency during the comment period, are addressed in the preamble. Where appropriate, changes to the proposed rules were made. However, many of the comments suggested by SA/SAWS and others lacked sufficient supporting data or information, were either beyond the scope of the proposed rules, were administrative in nature and not subject to rulemaking, or were beyond the scope of the commission's jurisdiction. Some comments were on activities covered by other rules adopted by the agency. Some were not adopted because there is a regulatory policy difference between methodologies or approaches to protect the aquifer water quality. For example, to provide flexibility within the rules and to the regulated community, performance-based solutions provided in the rules to many problems can achieve the same water quality protection results as the suggested prohibitions or prescriptive actions. APA and SA/SAWS commented that the commission should consider delegating approval authority for Water Pollution Abatement Plans to local agencies, where local governments have demonstrated the resources and the willingness to enforce water pollution abatement plan requirements. SBCA commented that the commission should delegate the enforcement authority for the Barton Springs segment of the Aquifer to the Barton Springs/Edwards Aquifer Conservation District and that delegation of the enforcement role to them, would both enhance environmental protection and speed up the review and approval of water pollution abatement plans. LWV-AA supported delegation of water pollution abatement plan approval authority to the Barton Springs/Edwards Aquifer Conservation District and the Edwards Underground Water District (now the Edwards Aquifer Authority) in their respective jurisdictions because both have technical staff with resources to implement the review and approval process. LWV-AA continued that an appropriate percentage of the permit application fees should be allocated to these agencies for this purpose. SCLSC commented that a percentage of the application fees should be appropriated to the Barton Springs/Edwards Aquifer Conservation District and the Edwards Aquifer Authority so they can implement the review and approval process of water pollution abatement plans. In the Edwards Aquifer Water Quality Protection Program DRAFT 1994 Public Comment Report,agency staff identified this issue as needing further study during the second phase of rulemaking for the program. The commission is conducting a pilot delegation project with the City of Round Rock to further develop recommendations on proper oversight, fee-sharing, and jurisdictional issues. Based upon an evaluation of this pilot project, it is anticipated that future rulemaking under Phase II will address this matter. The commission has made no change to the rules at this time in response to these comments. APA commented that the rules do not provide a mechanism to determine the cumulative impact of development on the aquifer, including information on both pollutant discharges from development and the recharge displaced by development. LWV-TX stated that the agency should be closely involved in assuring that the information being collected in the water pollution abatement plan is maintained in a data base accessible to the public and used by the commission and other interested parties in a coordinated management and protection program for the Edwards Aquifer. LWV-TX continued that keeping track of the cumulative impact of urban and suburban growth and highway construction is necessary to evaluate the effectiveness of the rules and other protection measures. SCAG commented that the program should be changed to allow for the evaluation of cumulative effects of multiple projects in the drainage and recharge zone. SCLSC commented that the rule should take into account the cumulative effects of pollution generated by the projects approved under the rule. SCLSC continued that the agency should evaluate developments in terms of their pollution effects, combined with other projects, on the recharge and transition zone areas; implement a cumulative assessment that would review critical environmental factors such as stormwater runoff, underground storage tanks and pipelines, sewage lines, fuel lines, sealing of recharge features, and floodplain operations; and require the agency to provide the public with the cumulative studies at least once a year. SA/SAWS urged agency staff to begin to develop a methodology and criteria for regulating and monitoring the pollutant load (cumulative effects) of land use activities over the Edwards recharge zone. Pollutant loading has been occurring over time and the need to assess water quality in these terms must be studied. Such studies should be coordinated with appropriate local entities for technical assistance and provide necessary information. Appropriate methodologies are not currently available to specifically address total loadings which might impact the aquifer and which would fairly address the cumulative effects of widely varying kinds of development. In addition, the large amounts of data necessary to provide reasonably accurate results have not been compiled into electronic format for the necessary data analyses. This issue is an ongoing concern and the commission intends to address this issue as part of a second phase of rulemaking with input from appropriate interested and affected parties. The commission has made no change to the rules at this time in response to these comments. Senator Barrientos commented that some effort needs to be made to extend the rules into the contributing zone of the aquifer, perhaps not the entire contributing zone, but certainly the part that has been recognized in the upstream wastewater discharge section of the rules. GE/SOSA commented that approximately 67 to 75% of the areas contributing recharge to the Edwards Aquifer lie outside of the area regulated by the rules and that failure to regulate development in this contributing area will result in degradation of both the surface and groundwaters of the area. SA/SAWS requested the establishment of a drainage zone, similar to the boundaries of the catchment area, to be phased in over the next three years with similar regulations that govern the recharge zone, especially, in the areas of underground storage tanks, proper construction and inspection of sewer mains and private service laterals, and stormwater abatement controls. They suggested the addition to sec.213.3 of a definition for drainage zone to be "That area immediately to the north, northeast and northwest of the recharge zone that captures precipitation and directs it onto the recharge zone of the Edwards Aquifer." SCLSC commented that the rules should apply to the drainage area of the Edwards Aquifer and suggested that the commission adopt definitions for "drainage area" and "drainage zone"; change the definitions of "regulated activity" and "regulated development" to include the drainage area; and include the watersheds of Onion, Little Bear, Bear, Slaughter, Williamson, and Barton Creek in the jurisdictional boundaries of the rules. LWV-TX, LWV-AA, LWV-SA, EF, and an individual commented that the rules should be extended to regulate activities with the potential for generating pollution within the drainage or contributing zones. SBCA commented that the scope of the Edwards rules needs to be broadened to include the whole drainage area of the Edwards Aquifer: the contributing zone that runs off into the creeks contributes to the Aquifer when it reaches the recharge zone. SCAG commented that stronger rules are needed for the drainage and recharge zones of the whole Edwards Aquifer because the potential for the effects of pollution cross political boundaries and stated that pollution occurring in the drainage and recharge areas of northern Medina County could eventually end up in wells in San Antonio. COA and LWV-TX commented that approximately 85% of the water recharging the Barton Springs segment of the Edwards Aquifer originates as baseflow in the contributing zone and, therefore, water quality and baseflow protection in the contributing zone is critical to the prevention of degradation in the aquifer as protecting recharge features in the recharge zone. COA commented that the major flaw with the Edwards Aquifer Rules is that it does not contain underground storage tank, water pollution abatement plans, organized sewage collection system, or any other requirements in the contributing zone. In addition, COA, EF, and LWV-AA stated that the proposed Chapter 213 rules were cited in the Barton Springs Salamander agreement between the agency, U.S. Fish and Wildlife, Texas Parks and Wildlife, and the Texas Department of Transportation as one of the prime regulations to protect the species and that water quality protection in the contributing zone is imperative to remove threats to the Barton Springs ecosystem. COA continued that expanded jurisdiction across this area and more aggressive enforcement is needed. LWV-AA stated that the official withdrawal of the proposed listing, based upon the Conservation Agreement, included measures to revise, adopt, and implement regulations "to protect water quality in the Barton Springs watershed and the Barton Springs segment of the Edwards Aquifer from degradation." LWV-AA continued that the definition of regulated activity should be expanded to include construction-related activity in the contributing zone as well as on the recharge zone of the Barton Springs segment to provide the protection needed for the Barton Springs salamander. As stated above, statewide rules relating to water quality protection currently apply in the contributory watershed of the Edwards Aquifer. These rules include, but are not limited to, the regulation of petroleum storage tanks, on-site sewerage systems, the treatment and disposal of hazardous and non-hazardous waste, and the discharge of treated wastewater. The commission agrees that non- point source pollution prevention measures should be imposed in riparian areas upstream of the recharge zone in the contributory watershed. However, the costs and benefits of extending certain water quality measures in the contributing zone, the appropriate scope of such measures, and the extent of the geographic area to be covered are not fully known. The size of the area generally identified as the contributing zone for the aquifer and which has been suggested for regulation is large, encompassing significant portions of eight counties not currently subject to the regulations. The commission is concerned that the economic impacts on state government and on those subject to compliance with the regulation for extending regulations to this area may be substantial and, thus, require a substantial and thorough, scientific demonstration that the measures and geographic scope will provide a significant increase in water quality protection. There is currently insufficient information on which to base decisions about the type of activity that needs to be regulated, the scope of regulatory efforts and the most appropriate geographic area for regulation. This issue is an ongoing concern and the commission intends to address this issue in the next phase of rulemaking with input from appropriate interested and affected parties. The commission has made no change in the rules at this time in response to these comments. SCARG commented that development on the Edwards Aquifer should be limited because irreversible contamination of groundwater resources will inevitably result from over-reliance on engineered structural controls. The commenter continued that scientific studies show pollutant removal rates for all Best Management Practices' are insufficient to prevent degradation. An individual requested that the commission severely limit any additional development on the Edwards Aquifer recharge zone and severely limit development of the Edwards Aquifer drainage zone. Best management practices have been shown to be effective in controlling, but not completely eliminating, potential contamination from nonpoint sources. The commission supports the use of best management practices and engineered solutions for pollution prevention. However, nondegradation of water quality and the protection of existing and potential uses of groundwater does not mean zero contaminant discharge. The use of best management practices and engineered solutions is consistent with the goal of the chapter. The commission is also concerned that severely limiting development on the recharge and contributing zones will have economic impacts and that there has been an insufficient demonstration that the method being proposed will significantly protect water quality and outweigh such economic impacts. The commission has made no change in response to these comments. AGUA commented that the commission is passing on the burden of pollution to the community and future generations which rely on the Edwards Aquifer for drinking water under the guise of streamlining, avoiding duplication, and cost-savings. AGUA continued that the program includes a multitude of hidden costs to the San Antonio area, including the tremendous costs of monitoring and remediating contamination sources the agency has approved, such as underground storage tanks, sewer lines and septic tanks. Effective pollution prevention planning will not take place until harm is demonstrated and levels of pollutants are measurable in the aquifer. AGUA suggested that the agency should reevaluate the program for hidden costs and reduce present and future program cost by reducing the number of new toxic sites on the recharge zone with prohibition of hazardous substances the most efficient pollution abatement program. There are few instances of pollution of the aquifer and no evidence of a burden of pollution, as described by the commenter, resulting from activities regulated under the rules. Instances of pollution have generally been the result of non- compliance with the rules; not that the rules themselves were deficient. Further, remediation is generally the responsibility of the owner or operator of the facility causing the problem rather than the community. There is no evidence of a regional problem which would cause impacts to the community at large. The agency's technical guidance document was withdrawn for revision and information regarding design of pertinent facilities in the context of the water pollution abatement plan approval process is available from the commission's Regional Offices in San Antonio and Austin. With regard to limiting sites which store hazardous materials or prohibiting such storage, the commission believes that control measures other than prohibition provide adequate protection. Additional regulations to include hazardous substances other than waste presents a resource burden to the agency and a financial burden to those individuals who would be subject to such a regulation which would be substantial. Therefore, clear, convincing, and scientifically and technologically sound information must exist indicating that such measures would provide a significant increase in water quality before they would be imposed. SCAG supported the banning of the use of specific hazardous materials in the drainage and recharge zones of the Aquifer. SA/SAWS and an individual commented that the agency should take action to determine prohibiting large volumes of hazardous material being stored or used on the Edwards recharge zone and developing a permitting process for small quantity storage and usage. SA/SAWS has clarified this recommendation to mean "to develop a process of permitting the storage and usage of small quantities of hazardous materials over the recharge zone, while continuing to prohibit large-volume storage and usage." The prohibition of storage or use of "hazardous materials" over the Edwards recharge zone as proposed by the commenters is unreasonable and unnecessary to protect water quality. Rather, existing, stringent, design, installation, maintenance, monitoring, and containment regulations are sufficient and less costly to protect water quality. Prohibiting the storage and usage of all liquid hazardous materials in either aboveground or underground storage tanks or the storage and usage of solid hazardous material is not justified because problems and benefits have not been demonstrated. The commission believes that current and proposed design criteria for underground and aboveground storage tank systems under sec.213.5(d) and (e) and under Chapter 334 (related to Underground and Aboveground Storage Tanks) are protective of the aquifer and should prevent leaks and spills which could contaminate the aquifer. Additionally, this action would result in a significant financial burden on those regulated and an inconvenience for the general public. It would limit or prohibit many commercial activities and businesses from being located in the recharge zone. The commission believes that engineering solutions are a viable approach to pollution prevention rather than this total prohibition. The commission has made no change in response to these comments. LWV-TX, LWV-AA commented that they support the addition of Bell County to the area covered by the Edwards Aquifer rules because of the significant groundwater and springs in the Edwards and associated limestones of Bell County, and the importance of Salado and other springs to local drinking water supply and recreation. SCLSC commented that Bell County should be included in the definition of the Edwards Aquifer. The commission held a public hearing in Bell County on January 10, 1996, to accept comments on this issue. Many comments were generally favorable to the extension of these rules to Bell County because of the similar hydrogeology and potential for contamination of the Edwards Aquifer from surface activities. However, other commenters noted the lack of existing development on the recharge zone and requested the opportunity to develop a local approach. The commission will continue to evaluate the proposal to include Bell County in the area subject to the rules during the second phase of rulemaking. GE/SOSA stated that municipalities, regulating development over the Edwards Aquifer, routinely require programs to limit the application of pesticides and herbicides to protect water quality and that the rules are inadequate to protect the water quality and quantity of the aquifer because they fail to address this issue. SBCA commented that the commission should limit the use of pesticides, herbicides, and chemical fertilizers throughout the Edwards Aquifer recharge zone, and especially near recharge features such as caves, sinkholes, and fissures. SCAG commented that the rules should provide for the inclusion of a plan to minimize the use of fertilizers, pesticides and herbicides in all water pollution abatement plans. SCLSC commented that the use of fertilizers, pesticides, and herbicides in critical areas overlying the aquifer should be restricted, preferably using an approach similar to the SOS rules in Austin to limit their use or, at a minimum, require all water pollution abatement plans to include a plan to minimize the use of fertilizers, pesticides and herbicides for the care of vegetative cover. SA/SAWS commented that the agency should require the certification of commercial fertilizer and pesticide applicators operating within the Edwards Aquifer recharge zone. The commission lacks jurisdiction to regulate the use and application of pesticides, the labeling of pesticides, or license pesticide applicators. These regulatory activities are the jurisdiction of the Texas Department of Agriculture under both the Texas Agriculture Code and the Federal Insecticide, Fungicide, Rodenticide Act. However, sec.26.121 of the Texas Water Code prohibits the unlawful discharge of these pollutants to waters in the state and the Texas Agriculture Code allows the commission address through enforcement contamination of water by pesticides. The technical guidance document that is being developed by the agency will also contain a section on non-structural BMPs that will address the proper use of pesticides and fertilizers. The LWV-TX suggested that the commission is relying on the continued high quality of water in Barton Springs, and the continued counting of a few salamanders there as evidence that the Edwards rules are working properly. They continued that the agency has many rules regulating point-source discharges and hazardous materials, but has been reluctant to develop specific rules for adequately controlling nonpoint pollution. LWV-TX commented that studies show that, while the overall water quality in Barton Springs is still predominantly "high quality," additional pollutant loadings resulting from construction and urbanization in portions of the entire Barton Springs watershed are entering the aquifer -- even though the Edwards rules have been in place for over six years. It is the long-term effect of the continuing degradation that is of concern to LWV-TX. LWV-TX recommended the commission openly recognize that there are threats and risks to the Edwards Aquifer; that the current Edwards Rules do not provide all the protection needed for that resource. They continued that the commission should work with others to develop regulatory and nonregulatory management and protection programs for the maintenance of the water quality and quantity in the aquifer. The Edwards Aquifer protection program, including the rules adopted and administered by the commission and the newly adopted Chapter 216 rules (relating to Water Quality Protection Zones), are nonpoint source regulatory programs applicable to the Barton Springs segment of the Edwards Aquifer. The commission's awareness of potential threats to the quality of the aquifer is evidenced by the previous adoption of these rules as well as the proposal of these new rules and the continuing efforts to update the rules to provide effective, cost-efficient regulation. The agency is working diligently with other signatories of the "Barton Springs Salamander Conservation Agreement and Strategy" to develop regulatory and nonregulatory management and protection programs to address specific issues related to the Barton Creek Watershed. SA/SAWS commented that the commission should establish formal communications with the Texas Railroad Commission (RRC) and the Texas Department of Transportation (TxDOT) on new construction, repairs, accidental spills from oil and gas pipelines, and transportation of hazardous materials. The commission has established formal communication with other appropriate state agencies, including RRC and TxDOT, as a programmatic issue rather than as a rule requirement. The agency works with TxDOT to address both potential contamination issues surrounding the construction of highways and the placement of hazardous material traps to capture accidental spills. The commission has a Memorandum of Understanding with TxDOT which provides for, among other things, commission review and approval of TxDOT projects on the recharge zone of the Edwards Aquifer. Staff are working formally on a team with TxDOT to address issues related to accidental spills under the Barton Springs Salamander Conservation Agreement and Strategy. Additional water quality protection from spills is provided by staff in Regional Offices and through the Emergency Response Center. As specified under Chapter 327 of this title (relating to Spill Prevention and Control), the commission is the state's lead agency for response to all hazardous substance discharges or spills, and discharges or spills of other substances, and certain inland oil discharges or spills which may cause pollution of the aquifer. This authority is derived from sec.26.039 and sec.sec.26.261 through 26.268 of the Texas Water Code through the Texas Hazardous Substances Spill Prevention and Control Act. Pursuant to sec.26.039(b), whenever an accidental discharge or spill occurs, the individual operating or responsible for the activity or facility must notify the agency as soon as possible, but not later than 24 hours after the occurrence. If the individual or facility lacks the capability to take immediate, remedial action, the agency performs this task or contracts it to a private company and obtains reimbursement from the responsible parties. The agency may also request the assistance of local governmental entities such as a fire department, river authority, or district. In addition, the Railroad Commission of Texas has authority over discharges or spills from crude oil or natural gas pipelines under their jurisdiction. However, discharges or spills from pipelines transporting refined products such as gasoline, diesel, or other fuel oils fall under the jurisdiction of the agency. As specified under the "State of Texas Oil and Hazardous Substances Spill Contingency Plan," the agency serves as the lead in directing and approving the response for the discharge or spill of a harmful quantity of crude oil (defined as five or more barrels discharged or spilled on the ground or any quantity discharged or spilled into water) during highway transportation. SA/SAWS commented that the rule should encourage education and awareness of the Edwards Aquifer recharge zone among Homeowner Associations, Commercial Developers, and the general public, located on or traveling on the Edwards Aquifer recharge zone. The commission agrees that public information and education is an important element in protecting the quality of water in the Edwards Aquifer. The commission will include a section on public information and education and non- structural BMPs in its revised Edwards Aquifer Technical Guidance Manual. The commission coordinates the preparation and implementation of the state management program for urban runoff, construction, land disposal, hydrologic modification and other categories of nonpoint source pollution under sec.319 of the Federal Clean Water Act. Over seventeen projects, that include public information and education dissemination, have been funded through the agency for projects related to the Edwards Aquifer. sec.213.1. PURPOSE BSEACD commented that sec.213.1 should include the State's policy on nondegradation for groundwater taken from sec.sec.26.401(a)(5) and (b) of the Texas Water Code which states "it is the goal of groundwater policy in this state that the existing quality of groundwater not be degraded." SCLSC and Senator Barrientos commented that the rules should clearly state that a minimum goal of the rule is nondegradation of the water in the Edwards Aquifer. SOS commented that the proposed rules, like the existing rules, fail to comply with the State and Federal Antidegradation rule and, as a result, violate the federal Clean Water Act. The commission agrees with BSEACD's comment. Commission rules seek to maintain and protect the water quality standards and related aquatic life uses designated for the Barton Creek watershed in accordance with the state's nondegradation policies for surface and ground water. To make this clear, sec.213.1 has been expanded to include the State's policy regarding nondegradation of groundwater as set forth in sec.26.401(b) of the Texas Water Code. The full citation from the Code reads "The legislature determines that, consistent with the protection of public health and welfare, the propagation and protection of terrestrial and aquatic life, the protection of the environment, the operation of existing industries, and the maintenance and enhancement of the long-term economic health of the state, it is the goal of groundwater policy in this state that existing quality of groundwater not be degraded. This goal of nondegradation does not mean zero-contaminant discharge." Section 26.401(c) provides that "It is the policy of the state that...discharges of pollutants, disposal of wastes, or other activities subject to regulation by state agencies be conducted in a manner that will maintain present uses and not impair potential uses of groundwater.." While the proposed sec.213.1 stated that "The purpose of the chapter is to regulate activities...to protect existing and potential uses of groundwater and maintain Texas Surface Water Quality Standards," the explicit inclusion of a nondegradation goal is consistent with the purpose of the rule. The Clean Water Act requires each state to develop and enforce water quality standards. Such standards must include the federal antidegradation policy. This antidegradation policy applies to "navigable waters in the U. S." The policy has been approved by the U.S. Environmental Protection Agency and incorporated into commission rules contained in sec.307.5 of this title. This antidegradation policy also helps to protect goundwater quality. All discharges are subject to the Texas Surface Water Quality Standards promulgated by the commission and approved by the U.S. Environmental Protection Agency under the Clean Water Act. Streams crossing the recharge zone, and providing recharge to the aquifer, fall under one of the following "tiers" contained in the antidegradation policy: Tier I - all surface waters are addressed by the basic provision of the antidegradation policy, which states that "water quality sufficient to protect existing uses will be maintained;" Tier II - no activities subject to state and federal regulatory action are allowed to cause degradation of "waters which exceed fishable/swimmable quality," unless it can be shown that "the lowering of water quality is necessary for important economic or social development." This provision applies to water bodies which have an aquatic-life use of at least high quality. COA commented that the rules do not fully provide for nondegradation of the aquifer and current state standards are incompatible with the city's nondegradation goal for the Barton Springs zone. LWV-AA commented that the rules should explicitly state that a minimum goal of the rule is nondegradation of the aquifer. The commission disagrees that its rules are incompatible with COA's nondegradation goal for the Barton Creek Watershed. The agency and COA both have the same performance goal but their regulatory approaches are different. The COA assumes nondegradation has been achieved if a certain impervious cover limitation is met. On the other hand, the commission allows a regulated entity the flexibility to demonstrate that alternatives may achieve the same performance goal. This does not preclude the applicant's choice of the COA's impervious cover limitation. In either case, the nondegradation goals of both the COA and commission must be met. SOS commented that the rule fails to protect the habitat of the Barton Springs Salamander and other endangered species of the Edwards Aquifer and, therefore, is a violation of the Endangered Species Act. The commission disagrees that the rules fail to protect the Barton Springs Salamander and federally listed species. As previously stated, the rules seek to maintain and protect water quality standards and related aquatic life uses designated for the Barton Creek watershed. The commenter does not state specifically how compliance with the rules would fail to adequately protect the species. Additionally, the USFWS, in its notice that it would not list the Barton Springs Salamander as an endangered species, has found that the existing rules as well as the adoption of the proposed rules were sufficiently protective of the salamander's aquatic habitat. Furthermore, the USFWS has not filed any comments regarding the proposed rules. Actions, not rules, would be a violation of the Endangered Species Act, and the adoption of a rule seeking to protect water quality would not be a violation. The person committing a takings of an endangered species would be in violation of the Act. LWV-AA commented that under sec.213.1, the rules should represent minimum standards to regulate activities which may pollute the aquifer. They continued that nothing within the rules should be interpreted or construed to limit the right or authority of any governmental entity to impose different or stricter standards to regulate or prevent aquifer pollution. COA commented that where local governments have adopted a nondegradation strategy for the areas within their jurisdiction, the state rules should provide support rather than a hindrance. APA agreed that commission rules should not duplicate or unnecessarily conflict with local regulations. APA and LWV-SA commented that the commission should give further consideration to local ordinances and regulations which are more stringent than Chapter 213. APA and SAOSAB suggested that the City of San Antonio ordinances should be applied uniformly throughout the region. SCLSC commented that the rule should be baseline requirements on activities conducted in regulated areas and should be considered to be the minimum requirements for regulated activities. SCLSC commented that the rules should explicitly state that local jurisdictions may impose more stringent regulations than the agency on projects in the recharge zone. SA/SAWS commented that the agency should acknowledge the efforts of localities that have municipal ordinances or regulations in place which are more stringent than the existing rules and use them as guidelines for future regional application. SA/SAWS suggested that sec.213.5 be changed to read: "Those elements of Pollution Prevention Criteria required for Category 2 and Category 3 properties as applicable in Ordinance Number 81491 will be adopted for properties located over the recharge zone of the Edwards Aquifer. Pollution Prevention for these categories include, but are not limited to; impervious cover limits, floodplain and floodplain buffer protections, protective measures around recharge features assessed as highly significant and Best Management Practices. The applicant must submit all contents listed in Chapter 34, Article VI, Division 6, Section 34-911 of the City Code, that would be required to obtain a Letter of Certification from the Watershed Protection and Management Department of the San Antonio Water System." RCAWA comments that the State's Edwards Rules are taking precedence over local ordinances and the City of San Antonio could be fined for not meeting required standards for nonpoint source pollution reduction and water quality under NPDES mandates. RCAWA states that subsection (b) of the City of San Antonio ordinance prescribes the intended BMP to prevent pollutant loading in stormwater from entering the Edwards Aquifer. RCAWA did not ask that these best management practices be applied to the entire recharge zone, but that the city be allowed to enforce their own rules. The commission agrees that Chapter 213 is the minimum aquifer-wide standard for regulated activities. However, sec.213.1 states that "Nothing in this chapter is intended to restrict the powers of the commission or any other governmental entity to prevent, correct, or curtail activities that result or might result in pollution of the Edwards Aquifer." This assures that nothing in the Edwards Aquifer rules prohibits local governments from imposing additional standards to prevent aquifer pollution, as long as the local standards are as protective of water quality as the Edwards Aquifer rules. Although Chapter 213 and other applicable rules are sufficiently protective of water quality, the commission encourages each municipality or local governmental entity to adopt ordinances or regulations more suitable to local conditions and acceptable to local voters. As long as there is no irreconcilable conflict between a state law and a city ordinance, the ordinance may be imposed as well as the state regulations. Local entities are not prohibited from enforcing local ordinances within their area of jurisdiction. An individual commented that the new Edwards Aquifer Authority also has protection powers which overlap with the commission, and apparently the City of San Antonio among others. The commenter suggested that an inter-agency cooperative effort be formalized in order to clarify what happens in areas of overlapping jurisdiction so that the aquifer can be protected efficiently and effectively, and clarify what rules the people have to follow. The commission agrees with the comment. The purpose of Chapter 213 is to regulate activities on the designated recharge and transition zones having the potential for causing pollution of the Edwards Aquifer. The activities addressed are those that pose direct threats to water quality. As ambiguous situations occur, the commission will work closely with the EAA to resolve problems. If jurisdictional conflicts arise, they can be addressed through memorandum of understanding between the agencies. SA/SAWS proposed the following modification to the definition of aboveground storage tank system to conform with their Ordinance 81147 definition of UST which states it is 10% or more volume below grade--delete "on or above the surface of the floor of a structure below ground, such as a mineworking, basement, or vault" and replace with "less than 10% of the volume below grade". AGUA suggested that the definition of underground storage tank should be changed from "10% or more beneath the surface of the earth" to "below grade." SA/SAWS commented that the definition of underground storage tank system should be changed to be consistent with city ordinance Number 81147 to read beneath grade rather than beneath the surface of the ground. The commission made no change in response to these comments. The definition of underground storage tank used in these rules is consistent with agency rules in Chapter 334 of this title (regarding to Underground and Aboveground Storage Tanks) and with the federal regulations contained in 40 CFR Part 280, Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks (UST). sec.213.3. DEFINITIONS. ASCE suggested that the definition of Best Management Practice be plural Practices and that the definition is misleading by including reference to groundwater and the Texas Surface Water Quality Standards in the same phrase and suggested the following rewording: "...existing and potential uses of groundwater and maintains surface water quality in compliance with Texas Surface Water Quality Standards, as..." The commission agrees with the comment and has made the suggested changes. SA/SAWS commented that they support the proposed definition of Best Management Practice. PEPP commented that the definition of Best Management Practices could be construed to require individual landowners to monitor the effectiveness of their BMPs. In addition, it does not establish the authority or the technical guidelines on which staff will rely to determine if the BMP selected has had appropriate field testing and monitoring. They suggested that the definition should be clarified to insure that a wide range of BMPs can be utilized from different technical sources and new innovations. They also recommended that the definition include some language that would allow for the agency to adopt a Technical Guidance Manual without having to revise the rules. RECA commented that under the definition of Best Management Practices that the phrase "verified through performance monitoring" refers to an agency preference for the use of BMPs that have been shown to be effective by field studies. The commenter continued that the reference be clarified to make clear that it is not anticipated that individual BMPs will be subject to performance monitoring in the sense of monitoring of water quality for particular constituents as opposed to maintenance and inspection requirements, which are appropriate. RECA stated that water quality monitoring of individual BMPs would be extremely and unnecessarily time-consuming and expensive to administer and would place a large economic burden on landowners. RECA also suggested that the rules should provide flexibility to allow for BMPs pursuant to sec.213.9, even where they have not been "verified through performance monitoring." The commission agrees with the comments. The definition of Best Management Practices has been modified to include a reference to technical guidance prepared by the executive director and to provide for other BMPs which are technically justified based upon studies and reports that are generally relied upon by professionals in the environmental protection field. Such studies or information may include, but not be limited to, guidance developed by the EPA, or studies performed by trade and professional organizations such as the American Society of Civil Engineers or the Water Environment Research Foundation. Additionally, sec.213.5(b)(4)(B)-(D) have been modified to state that pilot-scale field testing (including water quality performance monitoring) may be required for BMPs that are not addressed in technical guidance prepared by the executive director or provided in other acceptable studies or guidance. The commission also agrees that all BMPs, including those specified in technical guidance or those otherwise authorized for use by the executive director, are subject to monitoring in the form of inspection and maintenance activities. RECA commented that under the definition of Best Management Practices that the "performance standard" is protection of existing uses and maintenance of Surface Water Quality Standards, without reference to any specific numeric standards relative to particular constituents removed by the BMP. The commenter continued that this interpretation is consistent with the existing regulatory definition of BMP in sec.307.3 (relating to Surface Water Quality Standards) and that numeric standards for removal of particular constituents by BMPs have not been generally determined and have not been used by the agency. The commenter recommended that the reference to "performance standard" be clarified to reflect that the standard is generally protective of existing uses (rather than numerically based removal standards) and that at this time the imposition of specific, numeric standards for BMPs is not intended. The commission agrees, in part, with the comment. Protection of groundwater uses and maintenance of surface water quality standards are goals of the appropriate use of best management practices. These goals are achieved through the performance of best management practices in the removal of specific water quality constituents. The use of BMPs, rather than the imposition of numeric effluent criteria, is consistent with the EPA's interim guidance on stormwater permitting. However, demonstrated performance efficiencies for the removal of contaminants will be a basis for identifying acceptable BMPs in the technical guidance prepared by the executive director. RECA commented that Best Management Practices are defined in sec.307.3 of this title and that this existing and accepted definition is adequate for the purposes of Chapter 213. If some form of the proposed definition is retained, the commenter suggested that the nebulous reference to "professionals in the environmental protection field" be changed to "Texas Registered Professional Engineers with experience in water quality protection." The commission disagrees with the comment pertaining to the adequacy of the definition of BMPs in sec.307.3 for the purposes of Chapter 213. The definition proposed in Chapter 213 provides additional information necessary for the efficient implementation of the regulation as it is specifically applied in the context of the protection of the Edwards Aquifer. The commission also disagrees with the comment pertaining to references to "professionals in the environmental protection field." The commission does not believe that licensure as a Registered Professional Engineer in Texas is a necessary prerequisite for the proper evaluation of studies and other information on the performance of BMPs. An individual commented on the use of the word "best" in Best Management Practice, stating that "best" means different things to an ecologist verses an engineer. The commenter requested that some guidelines for the term "best" be developed that would balance the environmental needs with the development economics. The individual also requested that the commission provide research direction and seek funding for research. The commission has made no change to the rule in response to this comment. The term "Best Management Practice" is a term of art adopted from the EPA. The word "best" is not intended to be used in its common usage. However, examples of "best" management practices will be identified in the revised Edwards Aquifer Technical Guidance Manual which is currently being revised by the agency. PEPP commented that under the definition for commencement of construction, the phrase "activities will be considered on a case-by-case basis to have commenced" should be finite and not leave any gray areas. Either construction has started or the applicant has not met the rest of the definition of commencement of construction. BEC commented that this should not be a subjective decision which is done on a case-by-case basis and should not require that the owner obtain all necessary non-agency permits. SA/SAWS commented that the definition for commencement of construction needs to be modified so that the signing of a contract to begin construction is not the same as actually starting construction. They continued that because a reasonable time is not defined that a water pollution abatement plan may be validated and have no time limit just by signing a contract. The commenter suggested the following changes to the last sentence: "Activities will be considered on a case-by-case basis to have commenced if the owner has obtained all necessary federal, state, and local approvals or permits required to begin a regulated activity; and if either on- site construction directly related to the development has begun, [or the owner has entered into contractual obligations, for physical construction to be completed within a reasonable time, which cannot be canceled or modified without substantial loss."] The commission agrees with the comments and has changed the definition to more clearly define commencement of construction to mean the construction of physical facilities including but not limited to buildings, roads, and utility infrastructure. Section 213.4(h) has been modified to clarify when expiration of an approved plan will occur relating to commencement of construction. Substantial construction, defined as when more than 10% of total construction has commenced, will be the standard that commencement of construction will be based. In addition, sec.213.4(h)(2) has been revised to state that an extension will not be granted if not more than 50% of the total construction has been completed within ten years from initial plan approval. Section 213.5(f) has been modified to establish that to get an extension of an approved plan, subsequent notification verifying that construction has commenced is received by the appropriate regional office. SA/SAWS commented that physical removal and fill operations within the 100-year floodway should be prohibited unless the project involves the perpendicular crossing of roadway construction, is shown to improve drainage, enhance recharge, and protect water quality. The commenter recommended the addition of a definition as follows: "Floodplain-those areas designated on the FEMA maps or creek beds within watersheds of greater than 300 acres. Physical removal and fill operations within the 100-year floodplain should be prohibited unless the project involves the perpendicular crossing of roadway construction, is shown to improve drainage, enhance recharge, and protect water quality." The commission has made no change in response to the comment. The commission agrees that regulated activities within the 100-year floodplain may present a potential for increased pollution to the aquifer; however, it is unnecessary to prohibit such activities in order to protect water quality. The rule requires that developers proposing regulated activities follow construction methods which will prevent pollutants from leaving the developed site during and after construction. Such activity may also be subject to sec.401 water quality certification by the state if it requires a federal permit such as a sec.404 dredge or fill permit under the Clean Water Act. RLM commented that the new term "Edwards Aquifer Protection Plan" should be further defined or replaced with the old "Water Pollution Abatement Plan." The commenter continued that individual plans do not constitute an Edwards Aquifer Protection Plan nor do they or can they in the aggregate. TI requests that a definition be added for Edwards Aquifer Protection Plan. The commission comments that in the past, the term "water pollution abatement plan" has been the general term used for the proposed pollution prevention measures for all types of regulated activities. This has been very confusing to a portion of the regulated public that were installing USTs, ASTs, or sewage collection systems; therefore, the new term Edwards Aquifer protection plan has been established to clarify and encompass the different types of regulated activities (water pollution abatement plan, organized sewage collection system, underground storage tank facility plan, aboveground storage tank facility plan, or an exception or variance granted by the executive director). In response to the comment, a definition for Edwards Aquifer protection plan has been added to the rule. SCLSC commented that aquaculture should be included in the definition of feedlot/confined animal feeding operation. The rule prohibits new confined animal feeding operations on the recharge zone. Feedlot/ concentrated animal feeding operations are not allowed to discharge or dispose of waste or wastewater to water in the state, except in accordance with sec.321, Subchapter K of this title (relating to Concentrated Animal Feeding Operations). Aquaculture facilities are allowed to discharge if they have a wastewater discharge permit and meet the requirements for discharges in this rule. The agency is currently drafting specific rules related to discharges from aquaculture production facilities. These rules will contain specific protection provisions for aquaculture facilities located in the Edwards Aquifer recharge zone. The commission has made no change in response to this comment. SA/SAWS commented that the definition for geologic or manmade features is just a restatement of commonly known definitions. The commission agrees with the comment. TI commented that the definition of hazardous substance should include any solid waste. The commenter continues that under Chapter 335 of this title, the definition for solid waste includes inert solid wastes and that these inert wastes should be excluded from the regulations. The definition of hazardous substance, in addition to the CERCLA hazardous substances, includes only those solid wastes that are "designated to be hazardous by the commission," and does not include inert solid wastes. The commission has made no change in response to this comment. SAWS comments that the definition of regulated activity combines the old definition of regulated development with regulated activity, identifies the installation of USTs and ASTs as a regulated activity, and that the installation of utility lines is now included. The commission agrees with the comment. PEPP commented that the regulated activity definition exception under subparagraph (A) which refers to "the clearing of vegetation in a 10-foot wide path, for the sole purpose of surveying" causes confusion on what type of clearing is acceptable on a piece of property. The commenter continues that an agriculture user, such as a rancher, appears to be able to clear all the cedar from his land by using bulldozers while a developer can only clear cedar in 10- foot paths for survey. They suggest that mechanical clearing of cedar should be approved for all properties as long as it was done with a rubber tire machinery and could be done on some basis equal to the agricultural activity. Neither the clearing of vegetation in a 10-foot wide path for the sole purpose of surveying nor the clearing of vegetation as a part of or relating to agricultural activities is considered a "regulated activity." The former is considered to have a low potential to degrade water quality. The latter, agriculture related clearing and the resulting potential nonpoint source pollution, falls under the jurisdiction of the Texas State Soil and Water Conservation Board, as provided by the Texas Agriculture Code. All other clearing that has a potential to adversely impact water quality must be covered by an Edwards Aquifer protection plan. The commission has made no change in response to this comment. BSEACD commented that the regulated activity definition exception under subparagraph (D) which refers to "routine maintenance of existing structures that does not involve additional site disturbance, such as: resurfacing of roads, parking lots, sidewalks, or other development-related impervious surfaces;..."is currently being used by developers to convert unpaved, primitive pasture trails and jeep roads into paved roads complete with box culverts, curbs, and sometimes bridges prior to or as part of subdividing a property. They continue that this loophole allows some developers to conduct what is normally a regulated activity (construction of paved roads) without submitting a water pollution abatement plan. BSEACD recommended that the language be changed to read "...such as; resurfacing of existing paved roads, parking lots, sidewalks, or other development related impervious surfaces;...". The commission agrees with the comment and has incorporated the suggested changes. The construction of roads is a regulated activity and subject to an Edwards Aquifer protection plan. Anyone conducting activities as described by the commenter, without an approved plan is subject to enforcement under sec.213.10. BSEACD commented that the regulated activity definition exception under subparagraph (E) is being used by developers to plat in lots of 5 acres or greater to avoid the Edwards Rules, and one platted "lot" is jointly owned by all the subdivision property owners. This "lot" becomes a paved and "privately owned road." This road is unregulated by the Edwards Rules since it is a legal lot of greater than 5 acres in an approved subdivision. Similarly, some extremely long and wide "driveways" are being constructed for use by more than one property owner to circumvent the rules. BSEACD suggested that language be added under the definition of "regulated activity" to include "construction of any paved or otherwise impervious roadway, box culverts, or bridges..." and to subparagraph (E) "...where no more than one single-family residence is located on each lot, and paved driveway access serves no more than one single-family residence and is limited to no more than 5000 square feet of pavement." PEPP commented that the regulated activity definition exception under subparagraph (E) is confusing and needs to be clarified. They state that some are interpreting this to mean that developments of five acre lots or greater do not need a pollution abatement plan for the development; however, commission staff have interpreted that the development requires a pollution abatement plan, but the construction of the house does not require a plan. Under the referenced definition a regulated activity does not include construction of single-family residences on lots that are larger than five acres, where no more than one single-family residence is located on each lot. The definition also states that the construction of roads and highways is a regulated activity. Therefore, roadways (including those in a subdivision composed of five acre lots) are subject to regulation under sec.213.4, whereas private drives to a single-family residence are not regulated under sec.213.4. The commission has made no change in response to this comment. BSEACD commented that the definition for a regulated activity needs to be amended to include mining or quarrying activities and asked if these activities are covered under the part of the definition that reads "..excavation or any other activities which alter or disturb...". SCLSC commented that the definition of regulated activity should include quarrying. RLM commented that all quarries should be classified as sensitive recharge features due to their type of business and location. RLM continued that classification may nullify current concerns with the percentage of sink hole and significant recharge features that are being sealed up as a result of development because the number of acres of open quarries should positively mitigate the few acres that are being or have been sealed up. TI commented that the proposed regulations do not address existing activities on sites--in particular clearing and excavation in quarries as an existing and ongoing activity. TI continued that the preparation of a water pollution abatement plan for an entire site, including an existing industrial operation associated with a quarry is a significant imposition and cost. TI suggested that the time to apply for and implement the protection plan for existing and ongoing activities should be considered. The definition of regulated activity is intended to include activities impacting water quality, including those conducted at quarries, and is based on authority to regulate discharges to waters in the state under Chapter 26, Texas Water Code. Agency staff agree that more specific regulations regarding quarry operations need to be developed. However, there is insufficient information on many of the specific impacts that may result from quarry operations. This issue is an ongoing concern and the commission intends to address this issue under the second phase of rulemaking with input from appropriate interested and affected parties. The commission has made no change to these rules in response to these comments. BSEACD stated that revisions to definitions, such as "sensitive environmental feature" and "regulated development" may help clarify some of the program expectations. TxDOT commented that they support the development of a standard method to identify sensitive features, but would hope that there would be an opportunity to review or otherwise provide input into the development of such a form. SA/SAWS commented that the definition for sensitive feature needs to be clarified because it is unclear whether the assessment of low, medium, or high will come from the geologic assessment chart. They recommend the incorporation of the assessment chart as part of the rule. The instructions to the geologist contained on the geologic assessment form and the form itself are standard methods to identify features. All applicable forms will be modified to incorporate the definition of sensitive features. The commission has made no change in response to these comments. PEPP and BEC commented that the definition of "sensitive feature" is critical to the protection of both water quality and water quantity of the Edwards Aquifer but the current definition is not necessarily consistent with the new standard method and new forms developed by agency staff. PEPP continued that there is a difference between a "sensitive recharge feature" and a "significant recharge feature" because a sensitive recharge feature can provide a direct conduit to the aquifer and should be evaluated from a point source concern. A significant recharge feature is likely to take large quantities of runoff water and is a direct conduit to the aquifer. However, a feature located on the top of a hill is not considered a significant recharge feature as very little natural recharge occurs through this feature. BEC stated that it appears that this term is not clearly defined, but is the trigger for many special requirements. LWV-AA commented that the definition needs to require identification of any critical environmental feature, including any cave, sinkhole, spring, bluff, wetland, canyon rimrock, or solution-enlarged fault, fracture, or feature and that the apparent surface area contributing to these features often inaccurately reflects their subsurface importance. SCLSC commented that the definition of geologic or manmade features should include springs, bluffs, wetlands, canyon rimrocks, and solution-enlarged faults or fractures. GE/SOSA commented that the rules have set no standards for establishing whether a potential recharge feature is to be treated as significant or not. The current, very general, Instruction to Geologists leaves room for widely different interpretations. GE/SOSA continued that a lack of specific numerical standards for significant features assessment has resulted in a purely arbitrary process and that only precise and quantifiable requirements will result in uniform rule application and aquifer protection. The agency agrees that there is a difference between "sensitive feature" and "significant recharge feature" (SRF). A sensitive feature includes all conduits or potential conduits of pollution or contamination to the aquifer, whereas a SRF is limited to conduits where flowing streams or stormwater runoff is observed to enter the ground. The "sensitive feature" concept is more protective of the aquifer and includes all potential ports of entry for recharge as well as pollutants and contaminants. The executive director has developed forms to clarify and standardize the identification of sensitive features. The commission had made no change in response to the comments. CPS commented that under the definition of site, "regulated activities located partially on the recharge and transition zones shall be treated as if the entire site is located on the recharge zone." They requested that this statement be qualified to take into account how much of the regulated activity will fall within the recharge or transition zone and treat the area according to the zone of greater impact. They continued that this provision will be unnecessarily burdensome. TxDOT commented that the proposed language for the definition of site could be interpreted on a linear project, such as highways, to regulate activities miles from the recharge zone. The commenter continued that it does not seem reasonable to apply constraints to a portion of a project that would otherwise not require constraints were it not for a small piece of the project being on the recharge zone. They stated that this interpretation could also lead to unnecessary and non-beneficial cost increases for water quality control measures on the transition zone. TI commented that the proposed regulations do not limit themselves to new activities at existing sites. The commenter requested clarification be made on how regulated activities will be impacted by these regulations. TI commented that the definition for site includes the entire area within the legal boundaries which for a large industrial facility could include thousands of acres. TI suggested that the rule should include a definition for "regulated activity site" which would allow a limiting of the affected area or the term site could be redefined to limit it to a regulated activity site. TI also suggested that the second sentence be reworded to read "Regulated activities that are located partially on the recharge zone and transition zone shall be treated as if the entire regulated activity is located on the recharge zone. TI continued that any regulated activity on the recharge zone requires a protection plan. Portions of the various plans apply to the whole site, regardless of the actual area of impact of the regulated activity. The area of impact and surrounding areas is what should be evaluated for purposes of protection plans. SA/SAWS commented that the proposed definition for site puts into writing the procedure which has been followed by the local commission office, and no change is needed. However, later in their comments they stated that the definition of site applies the rules to non-recharge zone property. SA/SAWS suggested the definition be changed to read: "Regulated activities on a site that is located partially on the recharge zone and transition zone shall [be treated as if the entire site is located on the recharge zone] regulate only those activities located on the recharge zone. The commission agrees with the comments that the definition should be qualified and the definition has been revised to clarify that the portion of the site which is in the transition zone, but drains back to the recharge zone, shall be treated as if the entire site is located on the recharge zone. DS and TMOGA commented that tertiary containment under sec.213.5(d)(1)(B) is not defined. They stated that tertiary containment consisting as a physical barrier such as a liner or vault, has not been proven a cost effective method of ensuring environmental protection. The addition of a physical barrier adds up to $40,000 to the average cost of a typical Edwards Aquifer UST system installation. The concept of "tertiary protection" has been accepted by the City of San Antonio as a viable alternative to the containment barrier systems. DS and TMOGA suggested a definition be added to the rules for tertiary protection as follows: "Tertiary protection - A method by which a third level of protection is provided for underground storage tanks systems by means of either 1) a physical barrier to be installed around a double-walled tank and piping system designed to prevent a release of the regulated substance from migrating into the environment, should such a release go undetected at the secondary containment level; or 2) equivalent technology, which shall include: a. continuous leak detection for the entire system at a centralized location with dedicated personnel; b. site specific training; and c. Annual testing for system integrity. DS and TMOGA also commented that sec.213.5(d)(1)(B) should be modified to include this definition for tertiary protection to replace the term tertiary containment. ICE commented that they support the comments presented by DS. In response to these comments, the commission has added a definition of tertiary containment to sec.213.3. Tertiary containment is defined as "a containment method by which an additional wall or barrier is installed outside of the secondary storage vessel (e.g., tank or piping) in a manner designed to prevent a release from migrating beyond the tertiary wall or barrier before the release can be detected. Tertiary containment systems include, but are not limited to, impervious liners and vaults surrounding a secondary tank and piping system, or equivalent triple wall tank or piping system as approved by the executive director." The requirement for tertiary containment applies only in a limited number of sites, if the tank owner chooses to install a new underground storage tank within 150 feet of a domestic, industrial, irrigation, or public water supply well without a sanitary easement, or other sensitive feature. In requiring tertiary containment rather than tertiary "protection," the commission has provided added protection from releases from double-walled systems. The commission wants to ensure that, in areas near sensitive features or water wells, any possible release from a double-wall system is discovered in a timely manner and contained before the released substance affects groundwater. Other than a tertiary physical barrier, the commission does not agree with the commenters' assertion that "tertiary protection" provides an adequate means to prevent releases to the aquifer in areas near sensitive features or water wells. Continuous leak detection is already required under this chapter for all underground storage tank systems and the commission does not agree that annual tank integrity tests in addition to double-wall systems will provide the desired level of protection. While it is true that "triple-wall" tanks can be expensive, there are alternative and less expensive methods of providing the tertiary containment. COA suggested that the maps of the Edwards Aquifer recharge zone and transition zone be updated to include the Jollyville Plateau portion of the Northern Edwards Aquifer to provide protection under the rules to this segment of the aquifer that feeds numerous springs which discharge into Bull Creek, an important water supply for the city. The commission has made no changes in response to this comment. Based upon dates available to the commission, the areas identified by the commenter provide little or no recharge to the Edwards Aquifer. Therefore, additional regulations to include this area present an unnecessary resource burden to the agency and a financial burden to those individuals who would be subject to a regulation that would be substantial and would outweigh the increase, if any, in environmental protection afforded the aquifer. An individual commented that the definition of recharge zone is a line on a map someplace but if you live next to that line you can't hardly define it. Another individual commented that the rules cover the whole recharge zone without regard to the differences in the recharge features and recharge potential in a regional sense. The individual continued that a distinction should be made between each zone--San Antonio, Austin region, north of the Colorado River, Williamson County, and Bell County. The commission responds that the boundaries of the recharge zone are geologic and hydrologic boundaries that are essential to delineating potential recharge areas where groundwater impacts may occur. Such boundaries are easily identified by qualified persons when the geologic site assessments are performed in conjunction with plan approval. The commission agrees with the comment that the recharge zone does not distinguish relative sensitivities of different areas. The commission responds that a more refined mapping of recharge potential has only become possible with recent, new mapping efforts in only a few counties of the recharge zone. In addition, the scope of regulatory techniques which could be applied in more sensitive areas has not been adequately studied. The commission notes that this issue is an ongoing concern and intends to address this issue in future research with input from appropriate interested and affected parties. SCLSC commented that the definition of pollution should incorporate "aesthetic quality" within the list of alterable qualities (physical, thermal, chemical, and biological). The commission has made no change in response to this comment. The definition contained in the rule is identical to the definition contained in Chapter 26 of the Texas Water Code and includes the protection of water for aesthetic purposes. This definition includes the alteration or contamination of water that impairs the usefulness or public enjoyment of the water. Water quality standards contained in Chapter 307 of this title include narrative criteria relating to the aesthetic quality of the water. sec.213.4. APPLICATION PROCESSING AND APPROVAL. BEC questioned how much time will be given for "timely input from local government entities" under sec.213.4(a). Input must be received within 30 days from the date the submittal is mailed to affected incorporated cities and groundwater conservation district to be considered by the executive director. This clarification has been incorporated into the rule. LWV-TX commented that there is a lack of ways for the public to be notified of a water pollution abatement plan submittal and approval under sec.213.4(a) and to ask for review of actions by the executive director under sec.213.1, which is critical because of the lack of protection standards in the rule. They continued that the county is not notified of applications, even though application may be for activities requiring some level of county approval and that there is no requirement that approvals of water pollution abatement plans be noticed to affected cities, conservation districts, counties, or to the public. LWV-SA objected to the allowance for variance of the rule by simple decision of the executive director without public notification or opportunity for public comment. The commission partially agrees with these comments. The executive director has routinely provided a copy of all plan applications and plan approval letters to affected incorporated cities, groundwater conservation districts, and counties through the county judge. This routine practice is now incorporated into the rules. The commission also notes that exceptions under sec.213.9 may be granted on a case-by-case basis only when the requestor can demonstrate equivalent protection for the Edwards Aquifer. BEC commented, under sec.213.4(b)(1)(D)(ii), that laterals should not be included in fee assessment since they are not part of the OSCS. An organized sewage collection system includes the main line and the portion of the private service lateral stubouts which are located within the street and utility easement. The private service lateral, outside the utility easement and within the private lot, is regulated by the local plumbing code. The executive director's review and the review fee will include all portions of the sewage collection system including the private service lateral stubouts. The commission has made no change in response to this comment. SWB commented, under sec.213.4(d)(1)(A) and (d)(2), that all large corporations will have a very difficult time obtaining the principal executive officer's signature on these documents. To be a representative, a submittal of written proof of authorization is required and this will take time and be difficult to obtain. The commenter suggested that perhaps this delegation of authority could be placed on Environmental Managers or Environmental Departments within these very large corporations since this would be their primary responsibility for their companies without the submittal of written proof of authorization. The commission responds that the proposed rules allow for a principal executive officer to delegate signature authority to a duly authorized representative and that it is the responsibility of the corporate official to determine how and to whom the authority is delegated. The commission has made no change in response to the comment. PEPP commented that they are disappointed that the commission has increased the available time for review from 120 to 150 days under sec.213.4(e), and the increase in time for review is unnecessary and unacceptable. BEC commented that the time allowance should remain at 30-60 days. The commission agrees with the comment and clarifies that one of the two 30-day periods allowed for review of administrative completeness in the current sec.313.4(a) has been eliminated. To reflect this change, the phrase "60 days" has been changed to "30 days" in sec.213.4(e) of the rule. SWB commented that, under sec.213.4(g), deed recordation for sites which are already in existence and property totally utilized to the maximum seems a bit extreme. They continued that this is especially true when an aboveground tank is added to the facility. They stated that the need for this process to occur for all new development is understandable. When no new construction at the facility could ever occur, the delaying of the installation of a tank system could jeopardize utility service, national defense, and so on. In sec.213.4(i), notification to new owners by the current one is very clear and defined. They suggested that this would be the time to assure that the deed is updated and the new owner is made aware of the Edwards Aquifer protection plan and construction schedules are often driven by budgets and interim interest rates during construction. This could be a very costly factor to a corporation or to a small business trying to get a new business started. The commission comments that the former Chapter 313 rules required applicants to record water pollution abatement plans within 30 days of receiving written approval, and required the applicant to submit proof of deed recordation to the appropriate regional office prior to commencing construction. (Under the proposed sec.213.4(g), this same requirement was made for all approved Edwards Aquifer protection plans). Upon review, the commission recognized that the deed recordation requirement to for OSCS plans would be difficult because this activity is located in public easements with multiple owners. The rule has been revised to eliminate this requirement for this reason. However, the commission does not believe that deed recordation of approved tank systems (ASTs or USTs) would result in a significant delay in tank installation and has made no change to this requirement. LWV-SA supported sec.213.4(h) which establishes a two-year permit term in the recharge zone. SCLSC comments that the two-year approval limit on regulated activities is a promising improvement in the rules. SA/SAWS commented that USTs and ASTs were not previously addressed by a term limit and agreed that all projects should have equal term limits. CPS commented that the operational control of a construction site may transfer from one operator to another before stabilization has occurred and requested guidance in addressing this issue under sec.213.4(i). A standard condition of approval for all plans is that temporary erosion and sedimentation controls remain in place until the construction site has stabilized. The new owner of a site would have to comply with all standard and special conditions of the approved plan. The commission has made no change in response to this comment. BEC commented that sec.213.4(i) should include legal transfer that includes dedication or giving to a "Municipality." Once title to real property is transferred by properly executing and recording the deed in the county courthouse, it is "legally transferred." The deed, when transferred to the new owner, such as a municipality, must contain the restriction that the property is subject to the terms of the approved Edwards Aquifer protection plan. If the new owner intends to commence any new regulated activity on the site, a new plan must be filed that specifically addresses the new activity. The commission has made no change in response to this comment. SWB commented that, under sec.sec.213.4(j)(5) and (6), modifications to approved plans for physical modifications to underground and aboveground storage tanks needs to be clarified. This could mean a minute change to an existing tank system would require a very costly rewrite and approval process before the work is done. The commenter continued that if the work is substantial, this would certainly be warranted. If the work is minimal; for example, changing the grounding lugs on the tank from one lug to two lug style, the commenter questioned if this would really be necessary. They suggested that the section needs to be clarified to specify the details for when this requirement would be in effect. Minor equipment changes will not require the submission of a modified plan. A list of activities related to significant modifications requiring prior executive director approval is part of each application form. Additionally, the Edwards Aquifer Technical Guidance Manual will address this issue and commission staff are available to provide assistance and clarification whenever needed. If an environmental problem exists as a result of equipment failure or repair, the appropriate regional office should be notified and repairs should commence immediately. The commission has made no change in response to this comment. sec.213.5. REQUIRED EDWARDS AQUIFER PROTECTION PLANS, NOTIFICATION, AND EXEMPTIONS. sec.213.5(a) REQUIRED PLANS. SCLSC comments that under sec.213.5(a), the rules for water pollution abatement plans should apply to regulated activities on the transition zone. Not all requirements of a water pollution abatement plan are applicable to the transition zone because of the absence of surface recharge features. However, activities such as the use of petroleum storage tanks that could cause potential pollution of the aquifer from leaks to subsurface features are regulated. The commission has made no changes in response to this comment. SWB commented under sec.213.5(a)(3) and (4) that it is completely understandable for a plan to be required for new construction for the installation or the replacement of a tank system. The word "repair" could be misunderstood and the section should state "major repair" where concrete breaking is required or something of this nature to distinguish them from the many minor repairs which are done on a more frequent basis. In addition, the repair must not be for an emergency response. If a tank system is having a problem, the owner/operator would not want to be out of business five or six months, awaiting plan approval, before he could repair his system, or stop the contamination which may be occurring, and clean up the environment which may have been impacted. This should be clarified to distinguish between regularly scheduled maintenance items which can and should be planned for by the owners/operators and an emergency response to a potential environmental impact due to a release. It may be best to remove the word "repair" totally from the document rather than clarifying when it applies. Releases and emergency response protocol is addressed under Subchapter D of Chapter 334.76 of this title relating to Underground and Aboveground Storage Tanks. Commission staff are available to provide clarification for the requirements for submitting a modification application for emergency repairs. The commission has made no change in response to this comment. SA/SAWS commented that Water Pollution Abatement Plans approved prior to 1987, in which some construction was performed but the development was never completed, should be required to modify their Water Pollution Abatement Plan to address the new requirements. They proposed a change to sec.213.5(a)(1) to read as follows: "(a) water pollution abatement plans submitted prior to 1987, in which some construction was performed but the development was never completed, must modify their Water Pollution Abatement Plan to address the new requirements of the application." Changes to the Texas Government Code (SB 1704, 1995,) prohibit the agency from retroactively applying new rules on previously approved plans. However, the agency retains the ability to require a person to take appropriate steps to prevent or cease the pollution of water in the state. The commission has made no change in response to this comment. sec.213.5(b) WATER POLLUTION ABATEMENT PLAN SA/SAWS commented that the rules should require Master Water Pollution Abatement Plans for large developments and that a mechanism for a group of smaller developments willing to develop under a single Master Water Pollution Abatement Plan should be developed so that a credit system on the required fees could be implemented for applicants that attempt to implement a Master Water Pollution Abatement Plan. By using the Master Water Pollution Abatement Plan process, the pollutant load of the development can be evaluated at one time rather than in a piecemeal development process. The following change to sec.213.5(b)(1) was suggested: "Developments larger than 250 acres will require a Master Water Pollution Abatement Plan addressing the overall intended land use for the property. Water pollution abatement plans will not be submitted on a unit per unit basis within this large development in an attempt to assess the pollutant load and consider the overall impact of the development. Developments that consist of smaller acreage may opt to submit a Master Water Pollution Abatement Plan in conjunction with surrounding smaller developments. In this instance the applicants will evenly divide the fee assessed for the submittal of the one Water Pollution Abatement Plan application. A Master Water Pollution Abatement Plan shall include all of the information required for a Water Pollution Abatement Plan listed under sec.213.5(b)." In the Edwards Aquifer Water Quality Protection Program DRAFT 1994 Public Comment Report, agency staff raised regulatory concerns regarding this concept if phased development takes more than a few years. Texas Government Code provisions, as recently amended by SB 1704 (1995,), state that only the rules in place at the time an application is approved may apply. This could result in portions of a large development being "grandfathered" from new requirements, even if construction has not yet begun nor will begin in the foreseeable future. However, under the second phase of rulemaking for the Edwards Aquifer program, the concept of Master Water Pollution Abatement Plan will be studied. If it can be demonstrated to be useful and workable, the agency will work with the regulated community and other interested parties to develop appropriate definitions and procedures for evaluation and approval within the limits of state law. The commission has made no change in response to this comment. BSEACD commented that sec.sec.213.5(b)(2)(C)(iv) and (b)(3) should also include areas beyond the site that are not in the 100-year flood plain. They continued that many drainage ways that carry runoff away from development sites are not within the 100-year floodplain and could contain sensitive geologic features. The commission responds that measures to prevent pollution downgradient of the site by stormwater runoff from the site during construction and after completion of construction are sufficient to protect sensitive features that are located outside the 100-year floodplain and no modifications to the proposed rules have been made. BSEACD commented that to aid in both reviewer and applicant assessment of the viability and location of proposed temporary and permanent BMPs and local geology sensitive to stormwater runoff impacts, sec.213.5(b) should require an applicant to include a map drawn at the site plan scale that graphically depicts a site's topography according to the following groups: 0-5% grades, 5-10% grades, 10-15% grades, and grades greater than 15%. The commission responds that the site plan information required in sec.213.5(b)(2)(C) provides adequate data to determine the varying slope of the site and drainage paths, and that production of the map requested would not be a justifiable additional expense for the applicant. No change has been made in response to this comment. SA/SAWS commented that buffers should be established along 100-year floodplain in the recharge zone and the drainage zone. The commenter also stated that the floodplain should be defined as those designated on the FEMA maps or on creek beds with watersheds of greater than 300 acres. They recommended changes to sec.213.5(b)(2)(C)(i) that included the addition of floodplain buffer zones on the site plan that are parallel to all 100-year floodplains. They suggest that the outer perimeter of each floodplain buffer zone extend outward from the outer boundaries of the 100-year floodplain, based on an increasing slope and to a distance determined by taking the average slope of the first 50 ft. of buffer width from the floodplain preservation area. SCARG commented that there are no provisions currently in the Edwards Rules for setbacks from floodplains and suggested a prohibition on building in these areas and on steep hillsides. The commission has not included specific management measures such as setbacks or other mandatory management measures. Under sec.213.5(b)(4), the developer is required to provide a description of the best management practices and measures that will be taken to prevent pollution of stormwater originating on-site, upgradient from the site, or leaving the site and to provide a description of best management practices and measures that will be taken to prevent pollutants from entering the aquifer and measures that will be taken to avoid or minimize changes in the way water enters a stream as a result of construction that would increase instream erosion. This information will be reviewed by staff and approved on a case-by-case basis. The commission believes that best management practices have been shown to be effective in controlling potential contamination from nonpoint sources and supports the use of best management practices and engineered solutions for pollution prevention. The commission responds that insufficient data are currently available to determine appropriate, environmentally supported setback distances. Additional information is also needed on the relative impacts of different activities related to significant recharge features. The commission notes that this issue is an ongoing concern and intends to address this issue in future research with input from appropriate interested and affected parties. The commission has made no change in response to this comment. PEPP commented that sec.213.5(D)(2)(c)(ii) should include the language "within the site boundary" and that the current requirement of the location of all known wells could be construed to mean all known wells within Bexar County. The commission responds that there is no sec.213.5(D)(2)(c)(ii) contained in the rules; however there is a sec.213.5(b)(2)(C)(iii) that requires the location of all known wells (including but not limited to water well, oil wells, and unplugged and abandoned wells) on the site plan. If this is the section the commenter is referring to, the rule limits the extent of the location of wells to the site as part of the site location data and maps. The commission has made no change in response to this comment. SCLSC comments that sec.213.5(b)(2)(C)(iii) should be revised to include all known wells within a one-mile radius of the site. The necessity of identifying all wells within a one-mile radius of the site is questionable, considering that flow within the aquifer is not radial, but usually confined to natural sensitive features. On the recharge zone, wells that are within the 100-year floodplain and the shorter distance of either one-half mile downgradient of the site or the downgradient boundary of the recharge zone, will be identified as part of the geologic assessment. For UST and AST sites in the transition zone, wells that are 200 feet downgradient of the site will be identified. The commission has made no changes in response to this comment. LWV-TX commented that under sec.213.5(b)(3) the modification of the exemption for geologic assessments to apply only to single-family residential developments constructed on less than 10 acres still leaves the possibility of that acreage having 40 or more homes and no assessment. They suggested that this exemption needs further discussion in order to assure adequate aquifer protection. SCLSC and SA/SAWS commented that all residential developments, no matter what their size, should have to submit a geological assessment along with a complete water pollution abatement plan. SCLSC continued that the exemption for 10-acre residential subdivisions could still be a fairly dense development of 40 homes on 1/4 acre lots and have significant pollution possibilities. SA/SAWS suggested that the last sentence be struck in sec.213.5(b)(3) and replaced with the following: "All residential, commercial and multi-family developments, regardless of acreage, must provide a geologic assessment along with a complete Water Pollution Abatement Plan." The commission has made no change in response to these comments. The expense for an assessment is a large financial burden for a small development. A geologic assessment is provided by commission staff for these small developments during their pre-approval inspection conducted for all regulated activities. SCLSC commented that the requirement under sec.213.5(b)(3) to extend the geologic assessment the shorter distance of either one-half mile downgradient of the site or the distance to the downgradient boundary of the recharge zone could mean a half-mile shortening in some geologic assessments. The commenter suggested that perhaps the answer to property access problems is not in shortening the distance required for the assessment, but to sticking with the one-mile requirement and working with the problems as they come. An individual commented that the requirement for a geologic assessment should be kept at one mile downgradient, not the proposed one-half mile. SA/SAWS commented that access to private property is quite difficult and may not be safe sometimes and that this change will result in decreased cost for assessment work. TxDOT supported the change under sec.213.5(b)(3) which shortens the distance required for surveys of sensitive recharge features within the 100-year floodplain because it is difficult to survey off of their right-of-way, especially for the previous required distance of one mile. The commission believes that measures to prevent pollution downgradient of the site by stormwater runoff from the site during construction and after completion of construction are sufficient to protect sensitive features that are located downgradient of the site. No change has been made in response to these comments. BEC commented on sec.213.5(b)(3)(A) that by definition non-sensitive features do not need to be shown on the geologic map; however, this is not consistent with sec.213.5(i) which requires assessment of all geologic and man-made features. The commission disagrees with the comment and clarifies that according to sec.213.5(b)(3)(A), a geologic map showing all geologic and manmade features must be included in the geologic assessment which is consistent with the requirement in sec.213.5(b)(3)(C)(i). No change has been made in response to this comment. APA, AGUA, COA, LWV-SA, and four individuals stated that sec.213.5(b)(4)(D) should not allow the sealing of sensitive recharge features and that the sealing of sensitive recharge features and filling of caverns should be the last resort to prevent pollution, rather than a policy of choice. One commenter stated that appropriate measures, such as buffer zones, diversion of stormwater runoff, and the treatment of stormwater runoff, should be considered first and that these alternatives are not given enough emphasis in the proposed rules. SCARG commented that there are no provisions currently in the Edwards Rules for setbacks from critical environmental features such as sinkholes and suggested a prohibition on building in these areas and on steep hillsides. SBCA, LWV-AA, SA/SAWS, SAOSAB, and RCAWA commented that the rules should prohibit the sealing of recharge features, include a requirement for construction setbacks from such features, and contain siting and buffering policies, which will allow recharge features to remain open instead of being closed. Another individual commented that the executive director should take into consideration the following before allowing a sink hole or cave to be sealed: the dilution power of significant run off from rain; the court demanding that ratepayers seek supplementary water to the aquifer and lost recharge that will need to be replaced; and ratepayers feeling the effects of new 400 million dollar drainage projects due to plugging sink holes and caves. Another individual commented that in order to leave sinkholes open, any source of pollution should be contained and remediated, which raises the question of the commission responsibilities' to interface with federal stormwater regulations. SA/SAWS commented that their Ordinance Number 81491 states that the sealing of significant recharge features, as defined by the commission, shall be prohibited and that the last sentence of sec.213.5(b)(4)(D) should be changed to read: "The sealing of sensitive features as a pollution control measure will be prohibited. (Note: Water Quality Ord. Number 81491 "Sealing of significant recharge features shall be prohibited.") RCAWA, SA/SAWS and SAOSAB suggested that the width of the buffer area measured from the outer perimeter of the recharge feature be based upon an increasing buffer width with increasing percent slope. RCAWA did not ask that these best management practices be applied to the entire recharge zone, but that the city be allowed to enforce their own rules. HGI commented that whether to plug an open karst feature or to trap sediments and pollutants is a dilemma; while either option can lessen the risk of contamination to groundwater and both reduce recharge (with trapping considerably less so than plugging), both require monitoring to assure that the structures are functioning. HGI continued that both will ultimately fail and either engineering fix must be monitored and that the agency should avoid plugging and opt for surface structures and mandate regular surveillance. PEPP stated that they support the City of San Antonio's effort to prevent the sealing of significant recharge features, however they also support the commission's decision as defined in sec.213.5 that allows the sealing of high concern features on a case-by-case basis. COA suggested the final sentence in sec.213.5(b)(4)(D) be modified to read "The sealing of sensitive features as a pollution control measure will be evaluated by the executive director on a case-by-case basis, and only as a last resort." The commission is also concerned with the issues described by the commenters related to maintaining recharge to the aquifer as opposed to the need to insure that recharge that enters the aquifer is of high quality. However, the commission notes that according to the U.S. Geological Survey, 80 to 90% of recharge enters the aquifer through streambeds in the recharge zone, not in areas typically under construction. Plans submitted for development over the recharge and transition zones must satisfy the purpose of Chapter 213. To provide flexibility to the regulated community, the agency does not prescribe specific management measures that would prohibit development near features. There are engineered solutions to many problems that can achieve the same water quality protection results as prohibitions or prescriptive action. As part of sec.213.5(b)(4), the developer of the property is required to provide a description of the best management practices and measures that will be taken to prevent pollution of stormwater originating on-site, upgradient from the site, or leaving the site. They are also required to provide a description of best management practices and measures that will be taken to prevent pollutants from entering the aquifer while to the extent practicable, maintaining flow to naturally occurring sensitive features identified in either the assessment of area geology or during excavation, blasting, or construction. While staff will review a proposal for the sealing of naturally occurring sensitive features as a pollution control measure, this will only be considered on a case-by-case basis, when no other practical alternative to protect water quality is possible. Nothing in the Edwards Aquifer rules or the program prohibits local governments from addressing this issue or enforcing local ordinances within their area of jurisdiction. The rules recognize the authority of local entities to regulate activities which may be included in sec.213.1 and state that "Nothing in this chapter is intended to restrict the powers of the commission or any other governmental entity to prevent, correct, or curtail activities that result or might result in pollution of the Edwards Aquifer." Additionally, the commission has modified sec.213.5(b)(4)(D) which requires the maintenance of flow to naturally occurring sensitive features. This change was made to clarify that manmade features, such as abandoned wells, should be plugged to prevent contamination from entering the aquifer. Also sec.213.5(b)(4)(D) was modified to indicate that the sealing of naturally occurring sensitive features as a pollution control measure will be avoided where reasonable and practicable alternatives exist. COA commented that the narrative description of the site-specific geology in sec.213.5(b)(3)(D) should be based on investigations specific to the site. Further, if insufficient exposures of bedrock limit the ability to evaluate the potential for fluid movement to the aquifer, then subsurface investigations using borings or shallow trenches should be conducted. The commission responds that the language of the proposed rule, sec.213.5(b)(3)(D) clearly indicates that the assessment must be site specific. Further the proposed rule is not intended to restrict the methods that may be used to make the appropriate assessment. The commission believes such flexibility is necessary for accomplishing the purpose of the rule. SCLSC commented that, under sec.213.5(b)(4)(A), the assessment for a water pollution abatement plan should contain an estimate of the number and type of vehicles expected to be parked on the lots of the development. The commission disagrees with the comment. A requirement to estimate the number and types of vehicles expected to be parked on lots in the development represents a level of detail that is not normally utilized in the design of best management practices. Potential water quality concerns from parking lots (and other land uses) are more typically addressed through a consideration of their area, runoff volume and average constituent concentrations. BSEACD commented that the technical report under sec.213.5(b)(4) should explicitly address each phase of construction and that the applicant should be required to comply with the approved water pollution abatement plan. They continued that often only road building and infrastructure were addressed in the past and that later phases of construction, such as home-building, may not have obtained or complied with water pollution abatement plan requirements. They stated that these later phases of development may rely on water quality detention ponds installed during an earlier phase or upon nothing at all and that it is unclear whether the use of these structures is appropriate or if the structures are capable of handling the additional flow and sediment. In addition, maintenance may not be undertaken or may be compromised by new demands. They stated that this problem is exacerbated by a commission policy that does not require water quality detention ponds in residential subdivisions. The commission notes that a regulated activity includes construction of residential subdivisions, where each lot is 5 acres or less, including home construction. The technical report provided with the Edwards Aquifer protection plan should include all regulated activities. If it does not, or if the regulated activity is modified at a later time, the holder of the plan must notify the regional office in writing and obtain approval from the executive director as required under sec.213.4(j). The commission has made no change in response to this comment. LWV-TX commented that under sec.213.5(b)(4) no specific mention of erosion and sedimentation control is made in describing the requirements for a water pollution abatement plan. They continued that controlling sediments from construction sites is especially important in maintaining water quality, and sediments from highway construction sites in the Austin area have impacted the water quality at Barton Springs. LWV-TX stated that the proposed rules do not adequately provide for controlling such sediments. They commented that there is a need for specific language about agency inspections to determine the adequacy of erosion and sedimentation controls during construction. The commission responds that sec.213.5(b)(4)(B) and (C) require a description of best management practices which may include the temporary or permanent structural controls that will be in place both during and after completion of construction. The agency is developing a Technical Guidance Document that will provide information on erosion and sedimentation control. Therefore, no modifications to the proposed rules are necessary. BSEACD commented that sec.213.5(b)(4)(A)(iii) remains unchanged since its adoption in 1990, and is potentially one of the most useful sections within the rule; however, the information submitted by the applicants and accepted by staff does not adequately address a development's potential impact to surface water or groundwater. They stated that the commission should amend this section and require applicants to submit estimates of pollutant loading expected from a site prior to treatment. A number of techniques exist to quantify either the quantity or quality of stormwater runoff. This information could be used to determine which treatment system(s) will be used at the site or what degree of treatment is necessary. The need for estimation of average annual constituent loadings from a site prior to new development and after new development has occurred will be considered as the agency examines BMP performance standards as part of the second phase of rule revisions and the cumulative assessment issue. The commission has made no change in response to the comment. COA commented that under sec.213.5(b)(4)(C), the description of the best management practices and measures to be taken to prevent pollution of the Edwards Aquifer should be based on established stormwater management practices and rely upon known performance standards or design standards. GE/SOSA commented that the rules are almost completely devoid of design or performance standards and water quality regulations which typically specify standards for water quality control capture volume, pollutant reduction, construction-phase erosion and sedimentation controls, and/or setbacks from environmental features. GE/SOSA continued that lacking standards, there is no assurance that implementation of the rules will achieve any effective water quality protection. The commission disagrees with the comment pertaining to the need to prescribe best management practices, performance standards, design standards, capture volumes, construction-phase controls or setbacks from environmental features in the rule. The commission agrees, however, that these issues need to be clarified and has included references in the rules to technical guidance to be prepared by the executive director that will specify these requirements. LWV-TX commented that as currently proposed under sec.213.5(b)(4), the judgement is left of the agency staff as to whether the proposed protections, described on the application for water pollution abatement plan, are adequate to protect existing and potential uses of groundwater and maintain Texas Surface Water Quality Standards. They continued that the rule contains insufficient requirements and no publicly reviewed and referenced technical guidance document, by which an applicant or interested member of the public may adequately be assured that plans that meet the submittal language of the rules will not actually result in degradation of the water in the aquifer, is available. APA and LWV-SA urged the commission to adopt a technical guidance manual to inform the regulated community about effective Best Management Practices (both structural and non-structural) and what is acceptable to regulators. SA/SAWS recommended that the agency should evaluate comments on the old Edwards Aquifer Technical Guidance Document for their content, amend the manual for increasing effectiveness and accuracy where needed, and then release a new edition of the manual. PEPP commented that they strongly support the development of a Technical Guidance Manual by the agency and are concerned that they may end up having to work under two different manuals, the agency's and one developed by the San Antonio Water System. LWV-AA stated that the agency should establish a formal process for public comment and review of the Edwards Aquifer Technical Guidance Manual. RLM commented that variations in design and function of measures to prevent pollution of stormwater originating on-site do not provide for reliable sedimentation and filtration of stormwater and that the agency should issue a call for review and standardization of specific guidelines. SAOSAB and SA/SAWS commented that the commission should formally adopt the Technical Guidance Manual as a component of the Edwards Rules and unless it is incorporated into the new Chapter 213, it is little more than another important document, often ignored and gathering dust on office shelves. SCAG stated that the use of a Technical Guidance Manual with specific performance standards for items such as filtration basins is needed. NNOD requested that the Technical Guidance Manual be reinstituted to give engineers, cities and other who depend upon the agency's expertise some guidelines by which to deal with issues. The commission agrees with the comments and has incorporated references in the rule to a technical guidance manual to be prepared by the executive director as well as acceptable guidance provided by EPA or trade or professional organizations. The Edwards Aquifer Technical Guidance Manual is currently in revision and will contain a section on structural and non-structural BMPs. This document should be available in the summer of 1997. The commission disagrees that the guidance manual should be incorporated into the rules and believes that guidance documents should be advisory and explain how regulated entities can accomplish compliance with the rules. The technical guidance manual shall be updated periodically based upon the availability of new information and changing circumstances. SA/SAWS proposed the addition of a new section to sec.213.5(b)(4) as follows: "All commercial or multifamily projects to be located over the recharge zone of the Edwards Aquifer must utilize a pollution abatement structure to isolate and capture the first half inch of stormwater runoff. All water discharging from the pollution abatement structure must be sampled for constituents based on the associated land use. This testing should be done after each significant rainfall event and results submitted to the commission within two weeks of the event. Sampling should continue until such time that the executive director has deemed it no longer necessary." The commission does not propose to prescribe specific best management practices, treatment volumes or monitoring requirements in this rule. The executive director will accept best management practices for Edwards Aquifer protection plans that are consistent with technical guidance manual prepared by the executive director, EPA guidance, or studies by trade and professional organizations. The executive director may also accept other best management practices, however, these practices must be justified through technical analyses based upon studies and reports that are generally relied upon by professionals in the environmental protection field. Water quality performance monitoring shall not be required of applicants that utilize best management practices that are consistent with the technical guidance manual prepared by the executive director. The executive director may require pilot scale testing (including water quality performance monitoring) by an applicant for a water pollution abatement plan which proposes to utilize best management practices that are not consistent with the technical guidance manual recognized by or prepared by the executive director. COA recommended that sec.213.5(b)(4)(B) through (E) include minimum standards for BMP pollutant removal efficiency and monitoring requirements to verify compliance. As an alternative, COA recommended that minimum technology based requirements, such as those contained in draft Chapter 216 of this title related to Water Quality Performance Standards for Urban Development, be established. COA recommended that the new rule include measures to minimize instream channel erosion by including a requirement for detention of the two-year storm to reduce overbank and channel peak stormwater velocities. COA also commented that the agency should establish minimum standards for permanent BMP pollutant removal efficiency, or establish technology-based requirements for BMP sizing. SBCA commented that the proposed sec.sec.213.5(b)(4)(B) through (D) do not include any specific requirement of pollution prevention or elimination measures for ordinary residential and commercial development, other than during the period of construction. They continued that the proposed new rule would merely require that a developer's water pollution abatement plan describe the "best management practices" that will be used and that this requirement offers no guidance to a developer on what is expected or adequate, and it invites the laxness and arbitrariness that goes with total reliance on a case-by-case evaluation of each plan. The commenter urged the commission to review all of the approaches that have been tried in Texas and elsewhere to control nonpoint source pollution, and then to propose new amendments of the Edwards Rules that are suitable to assure the Aquifer is protected. BSEACD stated that sec.sec.213.5(b)(4)(B)-(4)(E) lack information, guidance or expectations which underscores an obvious weakness in the program. They stated that a set(s) of minimum expectations placed upon applicants will remove any uncertainty regarding proposed stormwater treatment expectations and that this information coupled with information from sec.213.5(b)(4)(A)(iii) could form the basis for a cumulative assessment of groundwater impacts within the Edwards Aquifer. The commission agrees with the comment to modify sec.sec.213.5(b)(4)(B) through (D) and has included references to procedures for the approval of BMPs including those that are consistent with technical guidance manual prepared by or recognized by the executive director or those that can be technically justified. The rule further clarifies that approval of BMPs that are not consistent with technical guidance manual prepared by the executive director may be required to be field tested on a pilot-scale prior to executive director authorization for full-scale implementation. The commission disagrees with the comment to require detention of the two-year storm to reduce overbank and channel peak flow velocities. The commission does not propose to prescribe specific BMPs in the rule, but will consider BMPs proposed by applicants that are consistent with technical guidance prepared by the executive director or otherwise approved for use by the executive director. EF commented that the HAZMAT trap technology, water quality ponds with sediment accumulations, and silt fences are all inadequate. They stated that the commission needs to examine the methodology for these designs. The commission believes that HAZMAT traps, ponds and silt fences are adequate to perform certain water quality protection functions. The design of BMPs will be examined as part of the preparation of the technical guidance manual. RLM commented that requirements for sampling and analyzing stormwater runoff entering or exiting sedimentation/filtration basins are not currently uniform. The commenter continued that if there is a potential that parking lot runoff has the potential to contribute various pollutants and therefore is a threat to recharge quality then every basin should be sampled for standard indicator pollutants such as BTEX, TPH, and lead. The commission agrees that stormwater sampling procedures are not currently uniform. The commission notes, however, that under the rule, stormwater sampling is only required for applicants proposing BMPs that are not consistent with technical guidance and which, in the judgement of the executive director, require additional documentation of performance effectiveness. The executive director shall review stormwater sampling procedures proposed by the applicants in these cases. The commission has made no change in response to this comment. AGUA suggested that the agency should immediately adopt either the Austin Manual or LCRA Technical Guidance Manual to provide the best information to the development and regulator community of effective engineering and landscaping designs. The commission disagrees with the comment pertaining to adopting technical guidance prepared by the City of Austin or the LCRA. The commission proposes to develop a technical guidance manual. This document will incorporate information from a wide range of resources, including the City of Austin and the LCRA, as deemed appropriate by the executive director. SCLSC commented that the rules should include water quality performance standards. They suggested that the agency should develop a technical guidance manual that would include real performance standards for nonpoint runoff, sizing and siting of filtration basins, and impervious cover limits. The commenter continued that the rules should set impervious cover limits for both residential and non-residential development. In the second phase of rule revisions, the commission will consider performance standards. The commission has incorporated references in the rule to a technical guidance manual to be prepared by the executive director. The commission disagrees with the comment pertaining to the rule setting impervious cover limits. The commission believes impervious cover limitations are one among many valid best management practices for achieving equivalent levels of water quality protection. The commission believes applicants should be provided with flexibility in achieving water quality protection goals in a manner that is best suited to their particular circumstances. The commission has made no change to these rules in response to the comment. COA recommended that the agency should examine the use of impervious cover limits as a nonpoint source pollution control measure because they can reduce the reliance on structural controls, provide less uncertainty about long-term effectiveness, and reduce costly maintenance requirements. BSEACD suggested that the agency create a sliding treatment scale based upon percent impervious cover, which would allow an applicant to determine the degree of treatment necessary. GE/SOSA commented that research shows that impervious cover is the single measurable aspect of development that correlates with water quality degradation and that research across the country and in the Texas Hill Country indicates that degradation begins at 10 to 20% imperviousness. COA stated that nonpoint source pollution monitoring studies have shown that annual per acre discharges of urban stormwater pollution are positively related to the amounts of imperviousness in the land use with the greater the imperviousness the greater the annual nonpoint pollution load. COA continued that the monitoring database on the effectiveness of structural controls is not as extensive as the database on stormwater pollution loading from different levels of urban development and imperviousness. COA stated that sole reliance on structural controls is a poor strategy because their long-term reliability has not yet been demonstrated and requires a heavy reliance on regular maintenance and periodic clean-outs. SCAG commented that the rules should establish impervious cover limits for both residential and non-residential development. LWV-TX commented that impervious cover limits should be incorporated into the strategy for protecting the Edwards Aquifer and in the language of the rule. They continued that these limits are seen by some as an interference with private property rights; however, in the conflicts between private interest and public welfare, precedence should be give to the public interest and protection of the quality and quantity of the Edwards Aquifer is for the public benefit. LWV-AA stated the rules should incorporate impervious cover limits for residential and non-residential development and that it should reflect levels which will protect the filtering and recharging capacity of existing natural areas. LWV-AA continued that allowable impervious cover should not exceed limits which will maintain base flow in recharging streams, and should not exceed the pollution reduction potential of water quality control technology. The commission disagrees with the comments pertaining to the rule incorporating language establishing impervious cover limits. The commission believes impervious cover limitations are one among many valid best management practices for achieving equivalent levels of water quality protection. The commission believes applicants should be provided with flexibility in achieving water quality protection goals in a manner that is best suited to their particular circumstances. Impervious cover limits along with other BMPs may be included in the technical guidance to be prepared by the executive director. SCARG commented that developments with less than 10% impervious cover should be exempt from having to build structural controls. The commenter continued that developments with greater than 10% impervious cover should be required to retain polluted stormwater on-site and, following construction, runoff from all impervious surfaces would be conveyed to a lined, on-site retention pond. The pond should be sized to retain the volume of an average month's rainfall and be located out of the 100-year floodplain. Finally, the commenter suggested that disposal of impounded stormwaters should only occur on-site, above the 100-year floodplain, through spray irrigation (in an area that drains back to the control structure). The commission disagrees with the comment that the rule should exempt developments with less than 10% impervious cover from having to build structural controls. The technical guidance to be prepared by the executive director will establish a methodology for determining water quality control requirements. The commission also disagrees with the comments relating to the size and location of retention structures and the disposition of retained stormwater runoff. The commission does not propose to prescribe specific BMPs in the rule but will consider those that are proposed by the applicant and which are consistent with technical guidance prepared by the executive director or otherwise approved by the executive director. SCARG commented that there should be restraints to development in the Barton Springs recharge and contributing zones. Under sec.213.5(b)(4), all site plans should be reviewed to ensure that planned streets, roads and other construction do not cause runoff problems. Floodplain crossing should be minimized and roads should follow topographic contour lines. The proposed rule in sec.sec.213.5(b)(4)(A) through (D) requires the technical report to identify and assess stormwater characteristics and measures to be taken to prevent contamination both on-site and downgradient from the site. This requirement would include all roads and related construction. The commission has made no change in response to the comment. BSEACD stated that, under sec.sec.213.5(b)(4)(B) through (4)(E), developers should be required to install structural BMPs in residential subdivisions and to designate or create a responsible party (such as a neighborhood association) for ongoing maintenance and repair. They continued that the rule language requiring applicants to submit inspection, maintenance, and repair plans should address concerns related to a lack of maintenance. The commission recognizes the need for ongoing maintenance and repair of structural BMPs. Improperly maintained structural BMPs pose a threat to the water quality of the Edwards Aquifer by allowing pollutants to accumulate in concentrated quantities and potentially washing downstream during a heavy rainfall. Nonstructural BMPs will be emphasized in the Edwards Aquifer Technical Guidance Manual as a way of meeting the requirements of sec.213.4, for single- family residential developments. BEC commented that sec.213.5(b)(4)(E) should focus on outfall conditions only not "instream conditions." This would force a flood peak shaving basin to be utilized. They continued that measures related to instream erosion are usually not under the control of the developer/owner. The commission disagrees with the comment and believes that both outfall conditions and downstream conditions should be addressed in the technical report. The commission notes that, while instream erosion is not totally within the control of individual developers/owners, individual developers/owners contributing to instream flows have an obligation to ensure that runoff from their properties do not contribute to increased downstream erosion and associated water quality degradation. RECA commented that under sec.213.4(b)(4)(E) the principles being espoused in this new section dealing with instream impact of stormwater are not applicable to rock bed channels as is evidenced by clear waters during periods of high base flow in streams of the Hill Country and recharge zone. A literal interpretation of this section would preclude any new development from occurring because development of property results in placement of impervious cover on property which, in turn, increases the volume of runoff that is delivered to streams. They continued that this is not necessarily bad on the recharge zone as it has been reported that 85-90% of the recharge to the aquifer occurs in the stream beds. Retention of stormwater and subsequent disposal on developed property is the only option available to satisfy the rule. The commenter supported the concepts that measures should be taken to avoid or minimize changes that will result in increases in stronger flow or velocity in receiving streams for public safety and downstream property protection. However, broad ambiguous clauses like "otherwise increases instream erosion and further water quality degradation" do not provide sufficient guidance. The commission agrees with the comment that further clarification of the requirements necessary to satisfy sec.213.4(b)(4)(E) would be useful and proposes to include such clarification in the technical guidance to be prepared by the executive director. The commission disagrees with the comment that instream impacts of stormwater are not applicable to the areas within the jurisdiction of this rule. Increased stormwater flows and flow velocities can erode downstream channels degrading water quality. The commission does not agree with the comment that increased runoff due to urban development is an appropriate mechanism for increasing recharge to the aquifer due to the potential adverse water quality and hydrologic impacts resulting from this runoff. A variety of BMPs are potentially available for satisfying the requirements of this paragraph, in addition to retention and subsequent disposal on the property. SA/SAWS commented that Hazardous Material Traps should be required in close proximity to sensitive recharge areas, and where highways cross stream channels based on guidelines set in the old Edwards Aquifer Technical Guidance Manual and all roadway projects with anticipated or actual Average Daily Traffic volumes in excess of 30,000 vehicles per day should be required to construct hazardous material traps to capture a hazardous spill. The commenter requested that the following be inserted into sec.213.5(b)(4)(F): "Hazardous Material Traps are required in close proximity to sensitive recharge areas, and where highways cross stream channels based on guidelines set in the "Edwards Aquifer Technical Guidance Manual" and all roadway projects with anticipated or actual Average Daily Traffic volumes in excess of 30,000 vehicles per day should be required to construct hazardous material traps to capture a hazardous spill." The commission agrees that Hazardous Material Traps near or adjacent to sensitive features will continue to be required and the commission will continue to evaluate highway construction on a project-by-project basis along with other appropriate control measures. However, no modifications to the proposed rules to prescribe specific requirements are made because such case-by-case guidance is more appropriate to the technical manual than to rulemaking. Section 213.5(b)(4)(G) has been modified to explicitly cover spills of hydrocarbons or hazardous substance on a roadway or from a pipeline. SWB commented that sec.213.5(b)(4)(G) and (e)(3) could be deleted due to the requirements already in place by the National Fire Code and/or Uniform Fire Code or emergency cases should be addressed and defined to avoid confusion. The commenter continued that they operate under very stringent Federal regulations and guidelines which mandate that service be maintained or restored in specific time frames. When a tank system has a problem, it must be taken out of service and a temporary tank must be introduced to provide the fuel system. A temporary tank of 250 gallons and up to 660 gallons would be placed inside the facility and would present no danger to the environment. If over 660 gallons are required, a temporary location would be found outside of the building in close proximity to the emergency engine. If the facility is small, 150 feet distance from a water well or sensitive feature could be impossible to obtain. The commenter continued that all due care should be taken to assure the safety of the environment, but all Fire Codes have these covered adequately by requiring security, safeguarding from damage, proper signage, and containment dikes for all aboveground tanks installed whether they are permanent or temporary. Permits can not be obtained for the placement of the aboveground tank without meeting these requirements with the local Fire Marshall. ICE commented that the regulations including temporary tanks could adversely effect their utility members from providing service to their clients as required by Federal laws and asked that these sections be removed to allow hospitals and utility companies to provide service. The commission agrees that the local fire codes should always be consulted to determine local requirements for installation of tank systems. However, such codes are not applicable in all areas of the state and may vary from place to place. Should an emergency situation require the installation of an aboveground or underground storage tank within 150 feet of a water well or other sensitive feature, the local commission region office should be consulted to request an exception in emergency situations as provided in sec.213.9. APA endorsed the requirement under sec.213.5(b)(4)(H) for maintaining and inspecting Best Management Practices. BSEACD stated that inspection, maintenance and repair plans are the hallmark of any viable stormwater pollution prevention program; however the rules place no minimum expectations on an applicant. BEC commented that the rules should incorporate a provision that any such inspection may be performed by an appropriate city or county inspector. GE/SOSA commented that many municipalities implementing water quality regulations have required a financial commitment from the developer in the form of fiscal surety to assure construction and maintenance of proposed best management practices. GE/SOSA continued that the current rules provide no checks on the actual implementation of any proposed BMPs. RLM commented that maintenance plans and schedules for sedimentation/filtration basins should be standardized and requirements set out by the commission, not by individual applicants. SCARG commented that maintenance of structural controls is an area where builders have fallen short in the past, and that a pollution control fee should be charged to developers and then deposited in an interest-bearing account to cover all the expected annual expenses for maintaining stormwater facilities in perpetuity. SCLSC suggested that the requirement for inspection may not be enough because studies have shown best management practices to be less than ideal in satisfying the requirements for suspended solids, oils, greases, nutrients, metals, and other pollutants. SA/SAWS commented that the responsibility for maintenance and upkeep of stormwater abatement structures should be addressed by adding the following to sec.213.4(b): "For water pollution abatement plans, an affidavit from the appropriate affiant showing the acceptance of legal and financial responsibility for structural controls, maintenance cost, monitoring, and remediation." The commission agrees with comments that additional clarification is needed on the actual requirements for BMP owner inspection, maintenance and repair and proposes to include such clarification in the technical guidance to be prepared by the executive director. Section 213.5(b)(4)(H) has been modified to include timely maintenance and repair and, if necessary, retrofit. The commission disagrees with the comment that compliance inspections should be performed by city or county personnel. BMP compliance inspections are to be performed by personnel in the agency's regional offices. The commission disagrees that financial assurances should be required of applicants for the maintenance and repair of BMPs. Persons or entities responsible for an Edwards Aquifer protection plan shall be held responsible for maintaining BMPs in accordance with appropriate maintenance procedures or be subject to enforcement proceedings as specified in sec.213.10. sec.213.5(c) ORGANIZED SEWAGE COLLECTION SYSTEMS. NBU commented that the proposed rules seem to have a significant impact on the cost of maintaining an organized collection system and while it is important to provide the best protection possible for the aquifer, the proposed changes will substantially increase maintenance cost with very little increase in overall protection. The commission responds that the new rules have not significantly changed the special requirements for or testing of an organized sewage collection system from the existing rules. Most of the changes to Chapter 213 have been for the purpose of clarifying testing methods. The commission agrees that testing of sewer lines is costly and notes that sec.213(c)(3)(E)(i)(IV) allows the executive director to review and approve alternative testing methods, on a case- by-case basis, which are shown to be accurate and reliable. SA/SAWS commented that sewer line PVC pipe required for gravity collection systems should be upgraded to City of San Antonio standards of SDR 26 and suggest sec.213.5(c)(3)(B)(i) reflect a SDR change to 26. The commission has made no change in response to the comment. The commission does not have sufficient data to indicate that SDR 26 PVC pipe will provide a significant increase in protection of the aquifer than what is obtained from SDR 35 PVC pipe when it is installed in compliance with Chapters 213 and 317 of this title and the manufacturer's specifications. The commission also responds that PVC pipe with a SDR of 26 or less or other stiffer pipe would be required if the deflection analysis for sewage collection systems found in Chapter 317 indicates that a stiffer pipe is needed. However, in the recharge zone, trenches in limestone allow very deep pipe burials due to the inherent strength of the rock, which prevents excessive pipe deflections. Therefore, the use of SDR 26 PVC pipe instead of SDR 35 PVC pipe for sewage collection systems installed within the Edwards Aquifer recharge zone would increase the cost of development without providing a significant increase in protection. NBU commented that sec.213.5(c) needs to better define what constitutes repair. The commenter continues with the following questions: does it mean a full set of plans, specification report, and approval will be required to repair an existing sewer main that is found broken or crushed during a scheduled inspection or as a result of a flow problem; is maintenance considered a repair; and what determines the limits of each? The commission agrees with the commenter that the requirements for repairing sewage collection system lines needs to be better defined. Generally, repairs to facilities on the recharge zone are addressed in sec.213(c)(3)(E)(ii). That section requires repairs to an organized sewage collection system be certified by a registered professional engineer. In response to the comment, all references in the rule to repairs will be clarified by replacing the phrase "repair, replacement" with rehabilitation. Repairs that are routine maintenance that do not have the potential to contaminate the aquifer are not subject to a plan. LWV-SA supported sec.213.5(c)(3)(E), the testing of sewer lines on the recharge zone every five years by television, although there is no money to implement the program. They recommended a monitoring and annual inspection fee for this purpose. SCLSC commented that they are happy to see a five-year testing requirement for sewer lines on the recharge zone; however, under sec.213.5(c)(3)(E), existing sewer collection systems should be tested every 3 years to determine types and locations of structural damage and defects. The commission responds that the five year testing requirement is not new. As in the past, local entities are responsible for the inspection, repair, and maintenance of sewage collection systems and can establish fees for that purpose. The commission has made no change in response to the request for a three-year test period. A three-year test period for existing sewage collection system lines would be too costly and onerous to undertake. However, local entities can identify problem areas and take the initiative to require more frequent monitoring in order to locate damaged lines that may potentially contaminate the aquifer. NBU commented that under sec.213.5(c)(3)(E) new manholes and lift station wet wells are commonly tested by imposing a vacuum on the structure or filling with water and measuring any exfiltration (leakage) volumes; however, neither of these methods are very practical on a live (active) system. The commenter continued that all incoming and outgoing piping will have to be plugged during testing and all existing sewage flows will have to be held or rerouted during the test period. They stated that this is very difficult and costly when dealing with large capacity lines. The commission responds that the testing requirements specified in sec.213.5(c)(3)(E) are the same as currently required in repealed Chapter 313 for the Edwards Aquifer and Chapter 317 for the entire of the state; therefore, the rule does not impose any new requirements or expenses to the responsible party. Again, the commission agrees that testing of sewer lines is costly and notes that sec.213(c)(3)(E)(i)(IV) allows the executive director to review and approve alternative testing methods, on a case-by-case basis, which are shown to be accurate and reliable. NBU commented that to reduce costs, the regulations should allow more alternative testing, such as flow monitoring of key drainage areas to determine the problem areas, then detail testing of only the problem areas. Another alternative would be to analyze continuous flow monitoring results for unexplained changes in flow quantity. The commenter continued that with alarms on continuous flow monitoring, significant flow changes could alert the operator to a problem shortly after they occur, instead of finding the problem four or five years later. NBU concluded that the rule requires a Texas Registered Professional Engineer to certify that new systems are tested, inspected, and meet the requirements of the regulation. The same approach should be allowed to determine the most cost effective and practical method of insuring the integrity of the system by allowing for more alternative test techniques. Section 317.2(c)(5)(H) allows the use of alternative testing methods which ensures compliance with allowable leakage standards; however, the alternative methods must be approved by the commission prior to the commencement of testing of the sewage collection system. Section 213.5(c)(3)(E)(i)(IV) also allows for other testing methods to be used, upon executive director approval. The commission has made no change in response to the comment. PEPP and BEC commented that under sec.213.5(c)(3)(E), private sewer laterals are not part of the organized sewage collection system and should not be included in this section. BEC continued that in residential units, private service laterals are owned by home buyers and that sec.213.5(c)(3)(E)(i)(II) should be deleted for this reason. The commission responds that the testing of private service laterals under sec.213.5(c)(3)(E) is not a new requirement of these rules. The commission states that by definition, the operation and maintenance of private service laterals are the responsibility of the owner or tenant. However, private service laterals can be a source of contamination; therefore, the commission feels that testing of the laterals is necessary. Repair of leaking laterals located on private property remains the responsibility of the property owner. Testing of lateral lines by smoke testing is provided under sec.213.5(c)(3)(E)(i)(III). Television testing, specified in sec.213.5(c)(3)(E)(i)(II), is not required for laterals. CEC commented that sec.213.5(c)(3)(E)(i) is unclear as to whether the rule is intended to require any or all of these testing methods for wastewater collection lines. The commission agrees that clarification is needed to identify what testing methods are appropriate for new sewer lines and for existing sewer lines. The use of only one of the acceptable methods which are described in sec.213.5(c)(3)(E) is required to satisfy the testing requirement for sewage collection systems. The rule has been changed to clarify this requirement. NBU commented on sec.213.5(c)(3)(E)(i)(I) that inplace deflection testing was designed for testing newly installed flexible pipe such as PVC and is not applicable for ridged pipe such as Ductile Iron. They continued that pulling a mandrel though an active line risks line blockage and possible sewer over flows. To do a deflection test safely, the line segments would need to be cleaned and then tested while pumping the existing sewage flow around the test section; however, this type of testing on active lines would be extremely expensive. NBU stated that a mandrel also does not tell you that a leakage problem exists. PVC pipe can be displaced far beyond 5% deflection and not experience leakage; however, a mandrel can bridge across small breakage areas or holes in the pipe that actually leak and not detect a problem. The commission responds that deflection testing is not required under Chapters 213 or 317 of this title for rigid pipe. The testing requirements specified in sec.213.5(c)(3)(E) are the same as required in repealed Chapter 313 for the Edwards Aquifer and Chapter 317 for the remainder of the state; and therefore, the rule does not impose any new requirements or expenses on the responsible party. NBU commented on sec.213.5(c)(3)(E)(i)(II) that internal line inspection by television camera is one of the better ways to inspect lines although the process is very expensive. Black and white cameras should be allowed to help reduce inspection cost and would be better than deflection testing. The cost to clean and TV is $2.00 to $2.50 per foot and for NBU's system that has more than 42 miles of collection lines over the Edwards Aquifer, the inspection cost will be $400,000 to $500,000. NBU continued that TV testing will not detect any leakage below the flow line unless the leakage was a majority of the total flow in the pipe. SA/SAWS commented that they currently use color TV when televising and that they currently smoke test mains 12 inches or less in diameter and private service laterals. They stated that additional TV equipment and personnel will be needed. The commission responds that older black and white television inspection equipment have not provided acceptable inspections. If a party responsible for testing the sewage collection systems can demonstrate to the executive director that newer black and white equipment will provide acceptable results, prior to line testing, the new equipment may be used. In-line smoke testing of mains and lines which are covered by several feet of fill will not provide good results and in line smoke testing is acceptable for private service laterals only. Section 213.5(c)(3)(E)(i)(II) will be revised to indicate that newer black and white television cameras may be used with prior approval of the executive director. NBU commented on sec.213.5(c)(3)(E)(i)(III) that smoke testing is the most economical means of testing lines and cost $60,000 to $70,000 to test NBU's 42 miles of collection system. Restricting smoke testing to only service laterals will greatly increase the cost of system testing. The commenter continued that since it is not practical without major modification to allow more access points to televise service laterals, the entire collection system will have to be smoke tested to check service laterals and then another method such as televising will have to be used for inspection of mains, greatly compounding the cost of inspection. Breakage in the top of the pipe is typically the type of problem that can be found by smoke testing. NBU continued that since most small leaks go undetected by deflection testing and by TV inspection, smoke testing should remain as an acceptable means of testing. The commenter stated that 80-90% of all defects have been found on private service laterals and that the total number of defects also seem to decrease after each series of tests, which means the customers are adequately fixing the problems. NBU suggested that the regulations should allow more alternative testing such as flow monitoring of key drainage areas to determine problem areas or to analyze continuous flow monitoring results for unexplained changes in flow quantity. The regulations should allow for a Texas Register Professional Engineer to determine the most cost effective and practical method of insuring the integrity of the system by allowing for more alternative test techniques. The commission responds that in line smoke testing of most sewage collection system main lines do not provide adequate results because the lines are generally installed at greater depths and beneath street paving; therefore, any smoke leaking from the mains require extended periods to surface, can be absorbed in the trench backfill, or may never reach the surface because of the street paving. These obstructions will give the impression that no defects or leaks exist. Again, the commission notes that sec.317.2(c)(5)(H) allows the use of alternative testing methods which ensure compliance with allowable leakage standards; however, the alternative methods must be approved by the executive director prior to commencing testing of the sewage collection system. SCLSC commented that sec.213.5(c)(3)(E)(ii) should be changed to provide for quicker initiation of repair of defects in sewage collections to give the system owner 30 days to initiate repairs. SA/SAWS commented that sec.213.5(c)(E)(ii) should require that immediate emergency measures for detected defects be implemented to prevent pollution as referenced in Chapter 26 of the Texas Water Code using methods as deemed necessary to prevent contamination to the water quality of the Edwards Aquifer. Final repairs should be initiated within 90 days of detection of structural defects. LWV-TX stated that the language providing the maximum infiltration/exfiltration rate for sewer pipes has been deleted and the requirements of sec.317.2 of this title referred to instead. They stated that it is not clear whether there is a different, more stringent infiltration/exfiltration rate for sewer lines over the aquifer recharge zone than anywhere else and that it is not specifically stated that sewer line leakage is not allowed. The commission recognizes that repairs may be a significant expense to a municipality or utility and allocation of funds may take time. However, sec.26.121 of the Texas Water Code prohibits pollution during the repair period, no matter how much time the repair requires. The rule requires that defects be repaired within one year; however, the rule also requires that all leakage be immediately contained to prevent any discharge to the waters of the state or pollution of the Edwards Aquifer whether necessary repairs have been completed or not. Failure to contain leakage from a defect is a violation of sec.26.121 of the Texas Water Code. The commission also responds that the current infiltration/exfiltration rate requirements of Chapter 317 of this title are as stringent as the requirements in the repealed Chapter 313. Section 213.5(c)(3)(E)(ii) has been modified to clarify that except as otherwise provided in an enforcement order of the commission, that as soon as possible but at least within one year repairs must be completed. Leakage is a violation of sec.26.121 of the Texas Water Code and it has been emphasized that the rules are not intended to excuse such unlawful discharge. AGUA commented that to save all recharging features, sec.213.5(c)(3)(F) (regarding blasting regulations) should consider the study work accomplished by the Edwards Underground Water District, and should take into account the special circumstances of the recharge zone not reflected in the National Fire Protection Association criteria. They continued that to save recharging features, sec.213.5(c)(3)(K) should protect caverns for their integrity to the water supply system and caverns should not be filled to save a sewer route, rather the sewer lines should be rerouted. SA/SAWS commented that an inter-local agreement should be established between the commission and local regulatory agencies to regulate blasting throughout the county. The commenter recommended that the commission require detailed reporting of conditions surrounding blasting on the recharge zone; especially the proximity of a blast to the closest sewer lines, amount of explosive, and monitoring of the blast with a copy of the monitoring device printout. They suggested the following items for rule consideration: (1) date of blast, (2) location description, (3) blaster's name, (4) contractor, (5) purpose of blasting, (6) number of shots, (7) depth and diameter, (8) type of explosive, (9) amount of explosive, (10) directional or not, (11) utility map with distances to shot points, (12) utilities contacted, (13) fire department contacted, (14) type of monitoring-seismic or sound, (15) include copy of monitoring device printout, (16) significant recharge features in the area including map with distances and, (17) any comments or special conditions. The commenter proposed that the following be added to the end of sec.213.5(c)(3)(F): "Prior to utilizing blasting for sewer line excavation, the applicant must notify the commission and submit detailed information as to the length and duration of the blasting project, location of the proposed blast in relation to significant recharge features and existing sewer lines, amount of explosives to be used, and number of holes to be drilled, their depth and diameter." Section 26.121 of the Water Code provides protection to the aquifer by prohibiting unauthorized discharges of sewage to water in the state. The utility owner should cease unauthorized discharges if the integrity of the line is compromised by blasting. Section 213.5(c)(3)(F) requires the owner of the system to repair and retest the damage sewer line immediately. With regards to the suggestion for requiring a detailed blasting report, the commission is uncertain if the benefits of this proposed action are justified for the costs to implement. In addition, information on how this record keeping would address specific water quality concerns from blasting and how this activity would fall under the commission's existing statutory authority is unclear. Potential overlap with the local Fire Marshall jurisdiction may occur. With regard to the comment on sec.213.5(c)(3)(K) of the rules, the commission responds that requiring rerouting of the line or prohibition against sealing the feature limits the ability to adequately address protection of the aquifer through engineered solutions. The newly required geologic assessment under sec.213.5(c)(4)(D) should allow for the identification and rerouting of lines prior to construction. Staff are developing technical guidance to standardize protocols for protecting solution features encountered during sewer line trenching. The commission has made no change in response to the comment. APA, AGUA commented that sewers should be sited outside the 100- year floodplain whenever possible (sec.213.5(c)(3)(H)), and lift stations over the recharge zones should be strongly discouraged (sec.213.5(c)(3)(C). The commission agrees that the construction of sewage lines in the 100-year floodplain and lift stations on the recharge zone present the potential for polluting the aquifer; however, topographic restraints and the prohibition of new wastewater discharges on the Edwards Aquifer recharge zone necessitates the construction of these facilities on the recharge zone. The commission emphasizes that sewage collection lines and lift station components are required to be designed and constructed to assure that they comply with the requirements of Chapters 213 and 317; therefore, the construction of lift stations on the recharge zone cannot be prohibited. The commission has made no change in response to the comment. BSEACD and BEC commented that sec.213.5(c)(3)(K) refers to sewer lines bridging caverns or other sensitive features and refers applicants to section (g) which describes on-site sewerage systems and they question if this is the appropriate reference. The commission responds that this is not the appropriate cross reference and published a correction of errors in the August 16, 1996, Texas Register stating that the appropriate reference is sec.213.5(f). SA/SAWS commented that plans submitted for protection of significant recharge features discovered during construction should be required to be certified by a Texas Registered Professional Engineer. They suggested that this be added to the end of sec.213.5(c)(3)(K). SA/SAWS also commented that sec.213.5(c)(3)(K) is a necessary change that makes a phone call to the regional office insufficient notification that a feature has been discovered. A plan holder who discovers features under sec.213.5(c)(3)(K) must comply with sec.213.5(f) which requires a Texas Registered Professional Engineer to submit proposed plans for insuring the structural integrity of the sewer line or modifying the proposed collection system alignment around the feature. Regulated activities near the sensitive feature may not proceed until the executive director has reviewed and approved the methods proposed to protect the sensitive feature and the Edwards Aquifer from potential adverse impacts to water quality. The commission has made no change to the rules in response to this comment. AGUA commented that under sec.213.5(c)(3)(N) the agency should require liability insurance for all sewage lift stations. The commission disagrees with the comment to require liability insurance for all sewage lift stations. Obligations pertaining to the operation of sewage lift stations are specified in state and federal waste water permits. Discharges from sewage lift stations are the responsibility of the permit holder. Claims for damages resulting from discharges from sewage lift stations can be sought in civil court. SA/SAWS commented that sec.213.5(c)(4)(C)(ii) will provide more detailed delineation of line routes in regards to floodplains and that sec.213.5(c)(4)(C)(iii)(IV) will address sensitive features and provide for more detailed maps and better information as to where lines need to be inspected during construction. SA/SAWS commented that sec.213.4(c)(4)(D) will provide more detail for exact line route. The commission agrees with the comments. BEC commented that under sec.213.5(c)(4)(C)(iii)(III) it should be possible to reference specifications if a standard municipal set is being utilized. The commission agrees and notes that the organized sewage collection system application form requires that this information be provided. No change to the rule has been made in response to the comment, because the commission does not specify every contingency in the rule. APA commented that, under sec.213.4(c)(4)(D), a geologic assessment should be required for an entire development site to determine the least sensitive route for sewers. AGUA commented that, to save all recharging features, sec.213.5(c)(4)(D) should require a geologic assessment for the entire development to ascertain the least sensitive areas for sewer placement. LWV-TX stated that if the sewage collection system is being proposed for a water pollution abatement plan by itself and not as part of a water pollution abatement plan requiring a full area-wide geologic assessment, then the 50 feet on each side limit under sec.213.5(c)(4)(D) may not adequately reflect the full impact that sewer line construction and installation might have. EF commented that a geologic assessment 50 feet on either sided of the trench is not adequate and should be expanded to incorporate historical records and a better geologic assessment in the vicinity of these trenches. The commission has made no change in response to these comments. Section 213.4(c)(4)(D) is the requirement for a geologic assessment for a proposed sewer line which is not associated with additional development and that the 100-foot wide assessment path covers the alignment of the proposed trench. Based upon the geologic assessment, placement of a sewer line should be adjusted for sensitive features before an application is submitted for review by the executive director. If the sewer line is associated with a development site, a geologic assessment is required for the entire development site as specified under sec.213.5(b)(3). The commission notes that avoiding all recharge features may require the construction of lift stations. Section 213.5(c)(3)(K), states the requirements for notification and approval of methods to protect when sensitive features are encountered during construction. sec.213.5(d) STATIC HYDROCARBON AND HAZARDOUS SUBSTANCE STORAGE IN UNDERGROUND STORAGE TANKS SYSTEM. CEC, DCRA, RWOA and BEC commented that under sec.213.5(d)(1), the requirement for designs to be prepared and signed by a "contractor" registered under Chapter 334 should be changed to require the preparation and sealing by a registered professional engineer because system design is an engineering function and the special designs needed to protect the environmentally sensitive area require the appropriate technical oversight of a professional engineer. RWOA continued that the current Edwards Aquifer Program form (TNRCC-0583) requires such a signature certification. CEC and DCRA commented that under sec.213.5(e)(1) the design standards and contents of aboveground tank facility plans should be prepared and signed by a registered professional engineer because system design is an engineering function and the special designs needed to protect the environmentally sensitive area require the appropriate technical oversight of a professional engineer. The commission responds that its certification program for contractors registered under Chapter 334 requires a working knowledge of Subchapter "C" (Technical Standards) for underground storage tank systems. Section 334.42(a) states, "All components of any new or existing underground storage tank system subject to the provisions of this subchapter shall be designed, installed, and operated in a manner that will prevent releases of regulated substances due to structural failure or corrosion for as long as the underground storage tanks system is used to store regulated substances." Therefore, a contractor registered under Chapter 334 is required to install the tank and piping system to ensure that structural failure of the system does not occur. Should a solution opening be discovered in the tank pit excavation, a geologist would evaluate the feature and determine its sensitivity. An engineer would then be the appropriate consultant to determine if the tank system would be compromised by questionable structural support from the floor of the tankhold. An engineer meeting the certification requirements of Chapter 334 could perform both functions. The commission has deleted the reference to system design from sec.213.5(d). The Edwards Aquifer program form (TNRCC-0583) will be modified to reflect the requirements in Chapter 334. APA, AGUA commented that sec.213.5(d)(1) should be changed to allow no new underground storage tanks in the recharge zone because underground storage is a hazardous practice and leaks occur. The commission has made no change in response to this comment. The current requirements for double containment of new underground storage tanks and the upgrading of existing systems with release detection, spill and overfill control, and corrosion protection is adequate to prevent releases to the environment. APA, AGUA stated that sec.213.5(d)(1) should be changed to require all existing tanks be upgraded to provide tertiary containment. SCLSC commented that they are concerned that only USTs without tertiary containment and temporary ASTs are required to be setback 150 feet from sensitive features. SA/SAWS commented that the rules should require tertiary containment for USTs on the recharge zone as well as the transition zone and offers that following change to sec.213.5(d)(1): "Standards for Underground Storage Tank Systems. For all facilities located on the recharge zone, new or replacement systems for underground storage of static hydrocarbons or hazardous substances shall [be of double-walled or an equivalent method approved by the executive director] require tertiary containment. For all facilities located on the transition zone, tertiary protection shall be required for new and replacement systems for the underground storage of static hydrocarbons or hazardous substances. Methods for detecting leaks in the inside wall of a [double-walled] system shall be included in the facility's design and construction." SA/SAWS suggested that the rest of the section should read the same. SA/SAWS also commented that a five-year to ten-year timetable based on compliance with state or EPA compliance should be established to require the upgrade of existing single-wall tanks and piping on the recharge zone and the transition zone by December 22, 2003 (to conform with the latest date for upgrade over the transition zone as given by Ordinance 81147 adopted by the City of San Antonio). These tanks would be upgraded to at least double-wall tanks and double wall piping. If tertiary requirements are to be extended to the recharge zone and the transition zone, then the single walled systems should be upgraded to tertiary containment by December 22, 2003. The commission has made no change in response to these comments. To address the most immediate threat to groundwater, sec.213.5(d)(1)(B) requires tertiary containment for any new underground storage tank system that is within 150 feet of a domestic, industrial, irrigation, or public water supply well without a sanitary easement, or other sensitive feature. In addition, this issue will be studied further, including an analysis of the frequency of double wall tank failures and a cost/benefit analysis. Should readers have information on double containment failures, the commission would appreciate assistance in this study. The commission believes that double containment along with other tank standards adequately prevents releases to the environment in areas not adjacent to a sensitive feature. Commission rules require that existing underground storage tanks which contain hazardous substances (as defined in Chapter 334 of this title), be upgraded to secondary containment by December 22, 1998. Such secondary containment can be, but does not have to be, double wall construction. Existing underground storage tanks are those which were installed prior to December 22, 1988. Commission rules have required that all regulated underground storage tanks installed over the Edwards transition or recharge zones be double walled with continuous interstitial monitoring since September 29, 1989. Chapter 313 provided for earlier compliance with this requirement, depending upon the county in which the facility was located. Commission rules require that all existing regulated underground storage tanks be upgraded to meet requirements for release detection monitoring (by December 22, 1993), spill/overfill prevention (by December 22, 1994) and corrosion protection (by December 22, 1998). Owners of a single walled tank and piping system have already spent a significant sum of money to meet current requirements and will be spending another $6000 to $15,000 per 3-tank site to meet corrosion protection requirements. If those same owners are then required to further upgrade to double or triple wall containment, all monies spent to that point to maintain compliance will be lost, as the upgraded single wall tanks will have to be removed and completely replaced. This imposes an unreasonable hardship on tank owners who have complied with existing regulations and would be especially damaging to small business owners. AGUA, APA, and LWV-SA commented that no tanks or hazardous materials should be sited within 150 feet of a public water supply well or sensitive recharge feature. AGUA continued that the national model ordinances for Well Head Protection suggests an area free of toxics of at least 150 feet and preferably a half-mile radius. SA/SAWS commented that sec.213.5(d)(1)(B) would allow for USTs to be placed next to or over sensitive features and suggest the following changes: "Any new underground hydrocarbon and hazardous substance storage tank system shall be located a minimum horizontal distance of 300 feet from any domestic, industrial, irrigation, or public water supply well, or other sensitive feature. RWOA commented that sec.213.5(d)(1)(B) is in conflict with 30 TAC sec.290.41(c)(1)(A) for Water Sources of Public Water Systems that restricts well to be no closer than 150 feet to any underground petroleum storage tank, regardless of containment method. The commenter continued that the proposed revision is less restrictive than current rules for water wells and should be more restrictive, not less. The commenter continued that engineers currently conform to sec.290.41(c)(1)(A) and have been doing so for some time without problems and that no UST system should be placed closer than 150 feet to any well, no matter what effort is taken to protect the tanks. The commission responds that current agency rules under Chapter 238 (related to Water Well Drillers Rules) and sec.290.41(c)(1)(A) (related to Water Hygiene) govern the placement of a well adjacent to potential sources of contamination and do not govern the later placement of a potential source of contamination adjacent to an existing well. Section 213.5(d)(1)(B) provides a higher standard of protection for tanks placed within 150 feet of a sensitive feature as determined by the assessment of area geology (which includes geologic features and manmade features, such as domestic, industrial, irrigation, or public water supply wells; borings; and excavations, that have a potential for hydraulic interconnectedness between the surface and the aquifer and where rapid infiltration to the subsurface may occur). The rule has been modified to recognize the sanitary control easement for public water supply wells contained under sec.290.41(c)(1)(F) which prohibits the placement of an underground petroleum and chemical storage tank within 150 of an existing public water supply well without an exception from the executive director. However numerous public water supply wells were placed in service prior to the adoption of the sanitary easement requirement. Section 213.5(d)(1)(B) has been modified to apply to all sensitive features and for public water supply wells without a sanitary control easement of 150 feet around the well. The commission has made no change in response to the comment that the radius should be increased to 300 feet because the 150 foot diameter is consistent with protection provisions under Chapters 290 and 238. SCLSC commented that the requirement for 150 foot setback from a sensitive feature under sec.213.5(d)(1)(B) for new underground storage tanks without tertiary containment and temporary above ground storage tank facilities under sec.sec.213.5(b)(4)(G) and 213.5(e)(3) are a step in the right direction; however, the rule still allows tertiary-contained underground tanks and permanent aboveground tanks to be placed right next to sensitive features such as public wells and recharge features. The commenter suggested that under the rule, all underground storage of hazardous materials should be prohibited in the recharge and transition zone areas; that a minimum setback distance for underground storage tanks of 150 feet from any unplugged Edwards well be included, whether in use or abandoned; spacing requirements for USTs to avoid accumulation of USTs in a single area on the recharge and transition zones be included; and that the rules should require annual testing/inspection by the commission of primary and secondary containment for all tanks and piping to insure that they are in compliance with the rules and specific conditions of their approved permit. The commission has made no change in response to the comment suggesting prohibition of underground storage of hazardous materials in the recharge and transition zone areas as stated earlier. The commission has made no change in response to the comment suggesting spacing requirements for USTs to avoid accumulation of USTs in a single area. The commission responds that the agency's experience with tank failures indicates that failures have affected individual tanks. The commission is not aware of any simultaneous multiple tank failures. Lacking data to the contrary, the commission believes that double-walled or equivalent containment, required in the proposed rules, along with other tank standards, such as upgrades required by Chapter 334 of the commission's rules for underground storage of hazardous materials, adequately prevents releases to the environment and is protective of the Edwards Aquifer. The commission has previously responded to setback requirements for active wells. Abandoned well when plugged as required by sec.213.7, are no longer a sensitive feature. Testing requirements have been responded to earlier. AGUA commented that the agency should require liability insurance for all sited hazardous materials. Regulation of particular activities, and associated requirements for liability insurance, may be covered under other commission programs. For example, financial assurance requirements for owners and operators of underground storage tanks are specified in sec.sec.334.91-334.110 (relating to Financial Responsibility). The commission has made no change in response to this comment. SWB commented under sec.213.5(d)(1)(B) a horizontal distance of 150 feet as a minimum may not be obtainable depending on the size of the plot of land for a hydrocarbon UST system installation. However, the siting of the UST should be carefully planned and all due consideration taken to assure that pollution to any water system is avoided. Tertiary containment would not prevent pollution in the event of a severe rupture due to a catastrophic occurrence and the only way to assure no pollution would be to disallow the installation of the tank systems totally. This is not feasible due to the needs of the public for fuel supplies, medical care with backup emergency power, and utility services for the public to assure their comfort and standard of living. The commenter states that double wall containment would safeguard the public just as adequately as the tertiary in most cases. The requirement for release detection monitoring will notify the owner/operator immediately so that action could be taken to control any release. The commenter continues that technology and best management practices should be adequate to safeguard the drinking water supply along with the natural filtration system to the Edwards region as migration moves through hundreds of feet of limestone before the water source is impacted. The owner of the property may decide whether or not to install an underground storage tank or utilize a temporary aboveground storage tank within 150 feet of a water well or other sensitive feature. An alternative to installing an underground storage tank is the installation of a permanent aboveground storage tank where allowed by local government and other regulatory entities. The decision to install an underground storage tank rests with the owner. The commission disagrees with the comment that tertiary containment would not prevent pollution in the event of a severe rupture. Installation of underground storage tanks necessary in emergency situations may be allowed on a case-by-case basis. The commission has made no change in response to this comment. SWB commented on sec.213.5(d)(1)(B) that technology and best management practices may not be adequate to safeguard the drinking water supply along with the natural filtration system to the Edwards region as migration moves through hundreds of feet of limestone before the water source is impacted for hazardous chemicals and perhaps this storage should be banned over the aquifer. SWB and ICE commented that especially the storage of dry cleaning chemicals such as "PERC", tetrachloroethylene, which is a know sinker and heavier than water would pose a threat to a water system and that this chemical has already been documented to have reached excessive limits in drinking water wells over this region. ICE continued that these dry cleaning fluid UST systems should be banned over both the recharge and transition zone. SWB continued that if they are allowed in the aquifer region, tertiary containment would be necessary. Double containment of hazardous substances in underground storage tanks has been required for all new tanks since September 29, 1989, and all existing hazardous substance tanks must upgrade to the new standards by December 23, 1998. The commission responds that double containment is adequate to prevent releases to the environment. The commission has received no information that tetrachloroethylene has "already been documented to have reached excessive limits in drinking water wells over this region." The commission has made no change in response to this comment. SWB commented that the requirement under sec.sec.213.5(d)(2)(C) and (e)(2)(C) for a complete geological assessment for a site within the transition zone seems to be excessive. In the current regulations, a 200-foot area is required to be reviewed rather than a complete geological study as stated and proposed. This requirement should be reconsidered and clarified to reduce this requirement over the transition zone. The area is not a great contributor to the recharging of the aquifer and therefore, the cost of the complete geological study may not be justified. Best management practices should be applied to avoid the possibility of contamination to the water source. The commission clarifies that for both an aboveground storage tank facility and an underground storage tank facility where aboveground storage tank systems or underground storage tank systems are placed, the applicant should delineate the areal extent of the system and confine the assessment of area geology to the system and one half mile downgradient, or 200 feet downgradient, as appropriate for the recharge or transition zone. The following sentence has been added to sec.sec.213.5(d)(2)(C) and 213.5(e)(2)(C) in response to this comment: "For regulated activities to be located on the transition zone, the assessment of area geology shall be submitted for the site and 200 feet downgradient." SA/SAWS commented that the submittal of an Emergency Spill Response Plan should be a condition of the approval of an underground storage tank facility. They proposed a new sec.213.5(d)(2)(E) be added that states: "A description of measures that will be taken to contain a spill of hydrocarbons or hazardous substances from an underground storage tank shall be included with the plan." Requirements for spill response are already contained in Chapter 334; therefore, it is unnecessary to repeat them in Chapter 213. The inclusion of spill response requirements for underground storage tanks, that are consistent with Petroleum Storage Tank rules, are required on the UST application forms and in the Edwards Aquifer program implementation procedures. By reference to 30 TAC 334.50(a)(1)(B), the USTFP application form addresses requirements for releases detected from tank and piping systems. For surface spills, reference to sec.sec.334.75, 334.76 and 334.77 will be added to the application forms. The commission has made no change to the rule in response to this comment. SA/SAWS commented that a new section on testing should be added to sec.213.5(d)(1) that would require sites containing underground storage tanks to test run-off prior to entering permanent stormwater abatement structures and upon discharge from said abatement structures. These analytical tests should be for an approved list of potential contaminants and should be performed by an EPA approved laboratory. They also commented that the overfill method of testing underground storage tanks should be prohibited on the recharge zone and transition zone and that the tanks should be tested using an approved underfill method in order to prevent an accidental leak. The commission disagrees with the comment to require stormwater testing for sites containing underground storage tanks. The commission believes that provisions of this rule pertaining to underground storage tanks are sufficient to protect water quality and the additional monitoring is not warranted. The commission disagrees that overfill methods of testing underground storage tanks pose an unreasonable risk of a release. Overfill does not mean overtopped. No change has been made in response to this comment; however, as of December 22, 1998, the commission will no longer recognize tank tightness testing of any type as meeting release detection requirements pursuant to sec.334.50 (relating to Release Detection). sec.213.5(e) STATIC HYDROCARBON AND HAZARDOUS SUBSTANCE STORAGE IN AN ABOVEGROUND STORAGE TANK FACILITY. APA and LWV-SA stated that no hazardous materials should be sited aboveground within 150 feet of a public drinking supply well or sensitive recharge feature. SCLSC was concerned that only temporary aboveground storage tanks are required to be setback 150 feet from sensitive features. The commission responds that current agency rules under Chapter 238 (related to Water Well Drillers Rules) and sec.290.41(c)(1)(A) (related to Water Hygiene) govern the placement of a well adjacent to potential sources of contamination and do not govern the later placement of a potential source of contamination adjacent to an existing well. Because of the potential for construction related accidents, sec.213.5(e)(3) provides a higher standard of protection for temporary tanks by prohibiting their placement within 150 feet of a sensitive feature. The prohibition was not extended to permanent aboveground tanks because the design standards in sec.213.5(e)(1); which include controlled drainage, a one and one-half times storage capacity capture area lined with a material impervious to the substance(s) being stored, and removal and disposal of any spill within 24-hours of the spill; are considered by the commission to be adequate to protect the aquifer. The commission has made no change in response to these comments. CPS commented that sec.213.5(e)(1) should be reworded to take into account that some spills are not discovered within 24 hours of occurrence (especially for small leaks at remote sites, which are not commonly detectable by release monitoring systems unless the leaks result in catastrophic or complete failure of tank equipment). They continued that the wording should be consistent with the provisions of 30 TAC 327 Spill Prevention and Control and require the cleanup of spills within 24 hours of spill discovery. Although, sec.327.3 does require notification of reportable discharges or spills as soon as possible but not later than 24 hours after the discovery of the spill or discharge, Chapter 327 does not apply to most AST facilities. Those facilities are addressed under Chapter 334. If the commenter is referring to transformers utilizing insulating oil, those facilities are exempt from the AST requirements under sec.213.5(e)(4), and would be subject to Chapter 327. Additionally, Texas Water Code sec.26.069(b) states that whenever an accidental discharge or spill occurs at or from any activity or facility which causes or may cause pollution, the individual operating, in charge of, or responsible for the activity or facility shall notify the commission as soon as possible and not later than 24 hours after occurrence. The Water Code section directly addresses water quality control and the rule is consistent with state law and Chapter 334 provisions. This is not a new provision. The same removal requirement is contained in repealed sec.313.11. The commission has made no change in response to this comment. TI comments that under sec.213.5(e)(2)(C), the assessment of area geology is for the entire site and for areas beyond the site boundary. Thousands of acres may need to be evaluated for the addition of one hazardous substance storage tank. This is a significant cost for a small impact. The commission agrees with the comment and states that the farthest downgradient that an assessment would be required is one-half mile in the recharge zone or 200 feet in the transition zone. The requirement for an assessment for the aboveground storage tank facilities has been modified to require an assessment of the area containing the aboveground storage tank system, which has a specific definition related to where the system is placed and does not include the entire site. SA/SAWS commented that temporary aboveground tanks were not addressed previously and that some additional review time will be needed. SA/SAWS comments that there is more control on these facilities that will require additional review. However, no change to the rule was requested. SA/SAWS commented that the submittal of an Emergency Spill Response Plan should be a condition of the approval of any aboveground storage tank facility not just temporary ones and that sec.213.5(e)(3) should include permanent storage of 500 gallons or more. They also state that permanent aboveground storage tank systems should be setback from sensitive features. The commenter suggests the following addition: "A description of measures that will be taken to contain any spill of hydrocarbons or hazardous substances from temporary or permanent storage of 250 gallons or more shall be included with the plan unless described under subsection (b)(4)(F) of this section. Any new temporary or permanent aboveground hydrocarbon and hazardous substance storage tank system shall be located a minimum horizontal distance of 150 feet from any domestic, industrial, irrigation, or public water supply well, or other sensitive feature. The facility is required to be constructed within controlled drainage areas that are sized to capture one and one-half times the storage capacity of the aboveground storage tank system. The controlled drainage area is to be constructed of and in a material impervious to the substance(s) being stored, and will direct spills to a convenient point for collection and recovery. Any spills from the storage tank facilities shall be removed from the controlled drainage area for disposal within twenty-four hours of the spill. The inclusion of spill response requirements for aboveground storage tanks, that are consistent with Petroleum Storage Tank rules, are required on the AST application forms and in the Edwards Aquifer program implementation procedures. By referencing sec.334.129, the AST application form addresses requirements of releases detected from tank and piping systems. This requirement does not need to be repeated in the Chapter 213 rule. The commission has made no change to the rule in response to this comment. CPS commented that under sec.213.5(e)(4)(A) the term mineral oil should be replaced with the term insulating oil. In addition, they commented that although the oil-filled equipment is exempt from the requirements of sec.213.5(e), it is unclear whether a water pollution abatement plan submittal is required during installation or construction of the supporting structures. They requested that the paragraph be modified to read "Electrical substations and other oil-filled equipment facilities containing mineral oil or other insulating oil shall be exempt from this section." SA/SAWS commented that mineral oil is not assumed to be a potential pollutant and that this will allow CPS not to have to file Pollution Abatement Plans. The commission agrees that the term insulating oil is more appropriate than the term mineral oil and has revised sec.213.5(e)(4)(A) to reflect this change. Also, sec.213.5(e)(4)(A) has been clarified to reflect that electrical equipment utilizing insulating oil is exempt from sec.213.5(e) relating to requirements for Static Hydrocarbon and Hazardous Substance storage in an Aboveground Storage Tank Facility. However, construction of supporting structures is a regulated activity for which a water pollution abatement plan under sec.213.5(a)(1) is required. SCLSC stated that their organization is happy to see lower exemption levels for AST facilities; however, the exemption for aboveground storage tanks with smaller capacities than 500 gallons should be struck from the rules. The commission has no historical data to indicate these smaller tanks represent a threat to the aquifer. Therefore, the additional resources and financial expenditures can be better utilized by the agency elsewhere in the program. The commission has made no changes in response to this comment. sec.213.5(f) NOTIFICATION AND INSPECTION. SWB asked in what format must notification under sec.213.5(f)(1) be given. The commenter continued that written notice is given by construction notification 30-days prior to installation and asked if a form would be made available for use. The commenter also requests that the word "repair" be clarified and detailed since many minor repairs could send mass mailing to the district offices in response to this request. The commission responds that a notification form has not been developed. Minor equipment changes should not require the submission of a modified plan. The Edwards Aquifer Technical Guidance Manual will address this notification issue and staff is available to assist the regulated community in determining when a modification is necessary. The commission has made no change in response to the comment. SA/SAWS commented that sec.213.5(f)(1) is clearer and provides better commencement of construction notification requirements. SA/SAWS also commented that sec.sec.213.5(f)(2)(A)(i) and (f)(2)(B) were necessary changes regarding notification when sensitive features are discovered. SWB commented that they concur with the need for sensitive feature discovery information to be given to the regional offices under sec.213.5(f)(2). The commission agrees with the comment. BEC commented that under sec.sec.213.5(c)(3)(K) and 213.5(f)(2) the time period should be five working days to report so that protective measures can be fully developed. In addition, under sec.213.5(f)(2)(A)(i) construction should continue without notice to the executive director if the inspection is clean. COA commented that sec.213.5(f)(2)(A)(i) suggests that the requirement for a geologist to inspect the lift station excavations could be interpreted to only be required if a sensitive feature is discovered rather than on a continual basis or at completion of the pit. COA continued that a geologist should inspect these excavations to determine if sensitive features are present and requests that this be clarified. Under sec.sec.213.5(c)(3)(K) and 213.5(f)(2), the commission responds that the reporting of a cavern or sensitive feature encountered during sewer line trenching can be done within the specified two days. The plan for protective measures may be submitted at any time after that, and is not limited to two days. Under sec.213.5(f)(2)(A)(i), the following wording has been added for clarity: "Construction may continue if the geologist certifies that, in their assessment of the excavation, no sensitive feature or features were present." Absence of sensitive features does not relieve the geologist of their responsibility to provide certification to the executive director. COA commented that sec.213.5(f)(2)(B) suggests that the requirement for a geologist to inspect the tankhold excavations could be interpreted to only be required if a sensitive feature is discovered rather than on a continual basis or at completion of the tank hold. COA continued that a geologist should inspect these excavation to determine if sensitive features are present and requests that this be clarified. BEC commented that construction should continue without notice to the executive director if the inspection is clean. Under sec.213.5(f)(2)(B), the commission has added the following wording for clarity: "Construction may continue if the geologist certifies that, in their assessment of the excavation, no sensitive feature or features were present." Absence of sensitive features does not relieve the geologist of their responsibility to provide certification to the executive director. AGUA commented that due to staffing and office resource deficiencies, that the one week review time for staff to determine the acceptability of plans intended to demonstrate methods to mitigate potential contamination associated with sensitive features under sec.213.5(f)(3) is too short. The commission has made no change in response to the comment. The time frame of one week remains unchanged from the current rule and procedure, and staff anticipates that they will be able to complete reviews within one week. sec.213.5(g) ON-SITE SEWERAGE SYSTEMS. SA/SAWS commented that septic tanks should have a mandatory pumping requirement of every three years. They continued that the use of conventional septic systems utilizing soil absorption trenches or beds is an area of concern over the Edwards Aquifer recharge zone, because septic systems may pose a threat to water quality and suggested that a review of conventional versus alternative type systems be performed and that a setback of 150 feet be required between septic tanks and significant recharge features. They recommended that the following be added to the end of sec.213.5(g): "Septic tanks must be pumped out every three years." The commission has made no change in response to this comment. The pumping of septic tanks is a best management practice. However, the establishment of a mandatory three year requirement may not be appropriate due to the wide variability in systems used across the area. In addition, the operation of the on-site program in the Edwards recharge zone has been delegated to local authorized agents and any local authorized agent may adopt a mandatory every three year pump-out provision under sec.366 of the Health and Safety Code. The enforcement of a mandatory pump-out provision, if so desired, would be the responsibility of the authorized agent. sec.213.5(h) EXEMPTION. ASCE stated that sec.213.5(h) does not reference utility lines designed to carry reclaimed, recycled or reuse water and that the use of the term "pollutants" in the first sentence should be better defined. The commission has revised sec.213.5(h) to include treated effluent from a wastewater treatment facility as an example of pollutant in the first sentence. BSEACD stated that sec.213.5(h) which covers activities not explicitly designed to carry pollutants should be amended to recognize that these features may become conduits or preferential pathways for pollutants and trenches should be inspected by qualified geologists and if they bridge caverns or sensitive features, remedial action similar to those prescribed for sewer lines should be undertaken. While "feature" can be encountered during the installation of activities under sec.213.5(h), the fluids carried in these structures are not considered a threat to the aquifer. Potential pollution from adjacent point sources has been addressed directly within the rule and control and containment of potential contaminant movement has been addressed at its source. No evidence has been presented to the commission that indicates that an ongoing threat is present. The commission has made no change in response to the comment. PEPP commented that sec.213.5(h) appears to exempt dry utilities from these regulations, but clarification is needed on whether or not construction of these facilities requires an erosion control plan be submitted to the agency. BEC stated that temporary erosion and sediment controls under sec.213.5(h) for non Edwards Aquifer protection plan items are required but not submitted to the agency for approval and that this language should be taken out. The commission responds that sec.213.5(h) exempts the installation of dry utilities from the requirement to submit an Edwards Aquifer protection plan. However, the activity is not exempt from requirements to provide protection to the aquifer during construction and until the construction area is stabilized. Temporary erosion and sedimentation controls are required to be in place during construction and are to remain in place until the construction area has stabilized. An Edwards Aquifer protection plan is not required for the placement of temporary controls. CPS requested that the commission establish a minimum size requirement for compliance under sec.213.5(h) similar to those established by EPA under its NPDES Storm Water Program (5 acres or more of site disturbance). They stated that the agency should consider the size of the project and its potential for erosion, sedimentation and contamination of the aquifer when establishing these requirements. CPS also recommended that the commission define when construction is stabilized or when vegetation is considered established and suggests that the commission adopt the EPA's definition for final stabilization under the federal stormwater program. They continued that a construction site is considered stabilized when "all soil disturbing activities at the site have been completed, and that a uniform perennial vegetative cover with a density of 70% of the cover for unpaved areas and areas not covered by permanent structures has been established or equivalent permanent stabilization measures (such as the use of riprap, gabions, or geotextiles) have been employed." The commission has made no change in response to this comment relating to minimum size requirement for projects involving the construction of dry utilities under sec.213.5(h). The commission disagrees that the five acres or more of site disturbance is appropriate for utility lines and notes that a utility line installed in an area only 10 feet wide and having a total area of only one acre would involve a linear area of construction of greater than 4300 feet. The commission has elected not to define the point at which a construction area is stabilized at this time. This issue will be addressed as part of the revised Edward Aquifer Technical Guidance Manual. RLM commented that all activities that are deemed not to carry pollutants, stormwater runoff, or sewage effluent and are therefore exempt from water pollution abatement plan submittal under sec.213.5(h), should be exempt from the Deed Recordation requirement. The commission has made no change to the rule in response to this comment. Because this type of activity is exempt from the submittal of a water pollution abatement plan application under sec.213.4, no deed recordation is required. SA/SAWS commented that sec.213.5(h) regarding exemptions was a necessary change to the rule. sec.213.6. WASTEWATER TREATMENT AND DISPOSAL SYSTEMS. SA/SAWS commented that sec.213.6 clarifies language from the current rules. SBCA commented that wastewater disposal systems utilizing surface irrigation as a means of disposal be prohibited over the recharge zone. SCLSC commented that all wastewater land application systems should be prohibited over the recharge zone. The commission is not aware of impacts to the aquifer attributable to irrigation of wastewater. The commission believes that prohibition of wastewater irrigation presents a financial burden to those individuals who would be subject to such a regulation that would be substantial and which outweighs the increase in environmental protection afforded the aquifer. The commission has made no changes in response to this comment. BEC questioned, under sec.213.6(b), what is a licensed private sewage facility and what rule allows the use of a percolation system. The commenter continued that land application systems using percolation should be allowed if soil profile and percolation rates are suitable. Licensed private sewage facilities are on-site sewerage facilities and are regulated under Chapter 285 (related to On-Site Sewage Facilities). The term includes septic tanks, pit privies, cesspools, sewage holding tanks, injection wells used to dispose of sewage, chemical toilets, treatment tanks, and all other facilities, systems, and methods used for the disposal of sewage other than the disposal systems operated under a permit issued by the commission. Such facilities on the recharge zone are regulated by sec.285.40. Land application systems for facilities in the recharge zone that are larger than those allowed under Chapter 285 are allowed under the Chapter 213 rules based on a case-by-case evaluation and are permitted under Chapter 305, related to Consolidated Permits. GE/SOSA commented that sec.213.6(b) should include as additional requirements for land application systems: minimum six-month storage capacity; sufficient application area, considering nitrogen and phosphorous utilization of the vegetation; controlled application rates so that hydraulic, phosphorous, and nitrogen loads do not exceed storage and assimilative capacity of the soils and vegetation; and downstream monitoring. Storage capacity, adequate application area, hydraulic loading and the assimilative capacity of the soil and cover crop are considered during the case- by-case consideration of sites for disposal by evaporation or irrigation as required in commission rules governing wastewater treatment and discharge. Nitrogen and phosphorus loading are considered as a function of final treated effluent limitations, and are included in loading calculations. Adding specific language to this rule could eliminate staff flexibility in making recommendations based on case-by-case reviews. The commission has made no changes in response to this comment. SCLSC commented that under sec.213.6(c), the concentration standards for upstream treated wastewater discharge should be revised by applying the concentration standard for ammonia nitrogen to total nitrogen and setting the concentration standard for nitrogen at less than 1 milligram per liter and the concentration standard for phosphorous at 0.1 milligram per liter. The commission disagrees with the comment pertaining to modifying effluent treatment requirements for wastewater discharges upstream of the aquifer recharge zone to be less than 1 milligram per liter total nitrogen and 0.1 milligram per liter phosphorus. The commission does not have reason to believe that current effluent limitations and siting limitations are not adequate to protect the aquifer. Further, the commission believes the recommended effluent limits are not realistically achievable with conventional wastewater treatment technologies. An individual questioned why industrial wastewater discharges are exempted from discharge upstream and even downstream and thinks that this should be clarified so it could be better understood. Industrial treatment facilities are permitted under Chapter 26, Texas Water Code using 30 TAC 309 and 30 TAC 317, along with the best professional judgement of agency staff. Section 213.6(c)(4) provides for permitting of industrial wastewater discharges to be considered on a case-by-case basis, not "exempted" from regulation. Section 213.6(c)(1) does not exempt industrial discharges from regulation but rather exempts the discharges from the particular effluent limitations specified in Chapter 213, which are more appropriate for municipal discharges. Effluent limitations for industrial discharges depend upon the specific type of industrial facility and are more appropriately regulated on a case-by-case basis. The commission has made no change in response to this comment. sec.213.7. PLUGGING OF ABANDONED WELLS. COA suggested that sec.213.7 should include a statement that geotechnical exploration borings should also be plugged. Exploration borings are excluded from regulation under Chapter 238. However, with the addition of "permeable geologic or manmade feature" in the definition of "sensitive feature," applicants shall be required by sec.213.5(b)(4)(D) to provide "a description of the best management practices and measures that will be taken to prevent pollutants from entering the aquifer while, to the extent practicable, maintaining flow to sensitive features identified in either the assessment of area geology or during excavation, blasting, or construction." This would include any geotechnical borings. The commission has made no change in response to the comment. SA/SAWS suggested that sec.213.7 be modified so that no closed loop, vertical Geo-Thermal wells shall be drilled in the recharge zone of the Edwards Aquifer nor shall they penetrate the Del Rio Clay Formation. Closed loop, vertical Geo-Thermal wells are regulated by the agency under the Class V injection well program. Staff have evaluated the construction of these wells and the fluids used for thermal exchange and determined that no threat of contamination to the aquifer exists. The commission is not aware of impacts to the aquifer attributable to geothermal well operation. The commission believes that prohibition of such wells presents a financial burden to those individuals who would be subject to such a regulation that would be substantial and which outweighs the increase in environmental protection afforded the aquifer. The commission has made no changes in response to this comment. SA/SAWS commented that the plugging requirements should be strengthened (upgrade Chapter 287). The commenter also proposed the following modifications to sec.213.7. "All identified abandoned water wells which penetrate formations included in the Edwards Aquifer, including injection, dewatering, and monitoring wells are subject to the requirements listed below. (a) Wells must be plugged pursuant to requirements under Chapter 338 of this title (relating to Water Well Drillers) and all other locally applicable rules, as appropriate. (b) Plugging operations shall be performed by a licensed water well driller. (c) A wireline log shall be performed prior to plugging. (d) Plugging procedure. The uncased portion of the drilled hole shall be filled with washed, disinfected gravel from the bottom of the hole to within three to five feet of the bottom of the casing. A neat cement plug should be set above the gravel, extending upwards approximately eight to ten feet into the casing. Once the plug has set for a minimum of 24 hours, the water above the plug shall be pumped or bailed out to verify the seal. The entire casing shall then be filled with cement from the top of the plug to the land surface. (e) A state inspector shall be present throughout plugging operations to ensure that proper procedures are followed." Section 213.7 requires that abandoned wells be plugged pursuant to requirements under Chapter 238 (relating to Water Well Drillers). With the exception of comments (c) and (e) above, these provisions are already required by the Water Well Drillers program under Chapter 238 under a blanket plugging exception for the area of the Edwards that is contained in groundwater conservation districts (Edwards Aquifer Authority and Barton Springs/Edwards Aquifer District). Nothing in Chapter 213 prohibits the implementation of more stringent groundwater conservation district rules regarding the plugging of wells, such as the running of a wireline log prior to plugging. The commission does conduct site inspections if an individual driller is suspected of violating the agency rules, but the cost of overseeing every plugging is beyond the scope of the Drillers program. The commission has made no change in response to this comment. sec.213.8. PROHIBITED ACTIVITIES. APA endorses the provisions banning Type I solid waste landfills on the recharge and transition zones. LWV-SA supports the prohibition of Class 4D landfills. SCLSC comments that the prohibition of Type 1 Municipal Solid Waste facilities is a promising improvement in the rules. SA/SAWS comments that all landfills should be prohibited from being placed on the recharge zone and transition zone which requires a permit from commission, however the commenter also notes that no modification of the proposed rule is necessary. sec.213.9. EXCEPTIONS. TI comments that under sec.213.9 a person may apply for an exception prior to starting construction. If these regulations apply to existing and ongoing activities, some protection from enforcement should be given for persons who apply for an exception. Exceptions are granted if the requestor can demonstrate equivalent water quality protection for the Edwards Aquifer. All exceptions are granted prior to starting construction, and existing and ongoing activities should be in compliance with an approved Edwards Aquifer protection plan. Section 213.9 has been clarified to indicate that prior approval under that section must be obtained for the exception to be authorized. sec.213.10. ENFORCEMENT. COA supported the premise that increased compliance monitoring, inspection, and enforcement activities are necessary for successful implementation of the rule and recommended that the agency develop criteria for determining whether construction sites are in compliance with BMP requirements. COA suggested that EPA's NPDES General Permit for Construction Activities or the Texas Department of Transportation Guidance Manual are adequate guidance for developing agency criteria and that the agency should require and enforce accountability for discharges that are not in compliance with these requirements using all of the penalties and enforcement procedures available through Chapter 26 of the Texas Water Code. COA strongly supported increased post-construction inspection activities, particularly of BMPs. The commission responds that it will consider a number of existing references as staff revises the technical guidance manual, including those recommended by the commenter. The commission agrees with the commenter regarding the premise that increased inspections and enforcement activities are necessary for successful implementation of the rule. The commission is currently developing an Edwards Aquifer Technical Guidance Manual which will include a chapter on inspections. Staff have developed specific guidelines for inspectors regarding inspections. The commission believes that its enforcement authority under this and other provisions of the Texas Water Code provide sufficient disincentives for noncompliance. GE/SOSA stated that on-site inspection is absolutely critical to the adequate implementation of water quality provisions for construction-phase erosion and sedimentation controls. GE/SOSA continued that currently the agency makes no provision for on-site inspection and that the rules are inadequate to protect the water quality and quantity of the aquifer because they fail to address this issue. BSEACD stated that due to agency staff limitations, few post-construction site inspections are performed. They suggested that regular post-construction site inspections to cover maintenance and repair of structures will enhance the program and that a portion of the regional office staff time would be better spent in the field performing inspections on completed development sites. They continued that if additional staff members cannot be hired, then a reallocation of staff time with a possible outcome of slowing application review could be possible. They stated that staff infrequently use the statutory allotted time to approve applications. The commission disagrees with the comments that it makes no provision for on- site inspections during the construction phase of projects and that few post- construction inspections are performed. Commission staff completed more than 450 compliance inspections during fiscal year 1996. However, the commission agrees that regular post construction site inspections to cover maintenance and repair of structures will enhance the program, and the agency is striving to improve program efficiency to provide for additional field work. Staff are currently reviewing program administration procedures in an effort to find ways to increase the number of inspections that are conducted during all phases of the project including pre-construction, during construction, and post-construction. LWV-TX commented that specific inspection and enforcement provisions to be performed by the agency should be included in the rules and should cover the installation and maintenance of erosion and sedimentation controls during construction, identification and protection of sensitive features, proper installation and maintenance over the years of water quality control structures and other approved best management practices. LWV-AA commented that the rules do not require inspection by the agency for water pollution abatement plans and the Barton Springs Salamander Conservation Strategy lists enforcement and monitoring of compliance with regulations to protect the Barton Springs recharge zone as the first conservation action to be implemented. They commented that the rules should include as a minimum, requirements for initial site inspections, inspections during construction to check for erosion and sedimentation control, and post-construction inspections as now performed. They continued that the rules should more specifically provide compliance and enforcement of on-going operation and maintenance of water quality control structures. The commission believes that inspection requirements are a program administration issue and are not appropriate for inclusion in the rules. The commission's enforcement authority under this and other provisions of the Texas Water Code provide sufficient authority for inspections and other enforcement activities. The commission has made no change in response to this comment. APA and SA/SAWS commented that, related to the Edwards Rules, authority for final decisions should be granted to the local District Office, along with appropriate staffing and funding levels. They continued that the commission's Central Office is unable to devote sufficient staff and budget resources to meet the needs of the Edwards Region. SA/SAWS commented that the local Region 13 agency staff should be granted additional authority to penalize violations in the field and that enforcement be expedited for such violations through the Region 13 Office. They also commented that Region 13 staff should be provided priority access to legal staff for enforcement of Edwards rules violations or in-house legal staff should be provided for consultation on Edwards issues. The commenter continued that additional manpower should be provided for the Edwards Aquifer program in Region 13 for review and enforcement purposes. They suggested the following change and addition to sec.213.10: "Failure to comply with any provision of this chapter or of any applicable regulation or order of the commission issued pursuant to this chapter and in accordance with Chapter 26 and other relevant provisions of the Texas Water Code may result in liability for penalties and may subject a noncompliant person to enforcement proceedings [initiated by the executive director under the Texas Water Code, Chapter 26.] The executive director may initiate enforcement proceedings under the Texas Water Code, Chapter 26, and local Commission staff is granted additional enforcement authority to penalize violations within their regions. A person who has been found in violation by local Commission staff may file a request for appeal within 20 working days from the date of citation. All such appeals shall be made in writing to the executive director and shall include all pertinent information which the person requesting the appeal wishes to be considered. The executive director may require additional information from, or request a meeting with the person making the appeal. A written decision from the executive director, or authorized designee, on the appeal shall be rendered within 20 working days from the date the appeal is received by the executive director. If the executive director, or authorized designee fails to render an opinion on the appeal within the twenty working day period, the relief requested in the appeal shall be considered to have been wholly denied. Local Commission staff shall be provided priority access to legal counsel in the Commission's Austin Office for enforcement of Edwards Rules violations, or an in-house legal staff member shall be provided for consultation on Edwards issues at the local commission offices. " The concept of field citations was considered by the legislature last session but no legislation was passed. Although the U.S. Environmental Protection Agency has the authority to issue field citations, and has done so in conjunction with the commission in the past, the commission has not implemented such a program as of this date. Currently, the commission has an expedited enforcement procedure in place for the PST program which gives regional offices the authority to issue enforcement orders when there is no compliance with issued Notices of Violation. This procedure will be studied in more detail in order to determine whether it can be expanded to include other programs including the Edwards Aquifer protection program. sec.213.11. GROUNDWATER CONSERVATION DISTRICTS. BSEACD stated that groundwater districts are rarely equipped or staffed to develop and maintain maps of regulated activities, and furthermore, derive no income from the Edwards Program. They encouraged the agency to help groundwater districts develop a mechanism to track regulated activities throughout the Edwards Aquifer recharge, transition, and contributing zones. They suggested that the agency require applicants to submit site plans and information about water quality treatment systems, as well as other information, in an electronic format that could be entered into a geographic information system (GIS). They continued that this information would be fundamental to any cumulative assessment of development's impact on groundwater in the Edwards aquifer. The commission responds that while the suggestion to require submission of Edwards Aquifer protection plan information in an electronic GIS-compatible format would contribute to the ability of the agency and others to cumulatively assess development impacts, such a change in the agency's application process is resource intensive and not currently feasible for this rule. The commission plans to study the GIS issues in future research efforts regarding cumulative assessment. sec.213.14. FEE SCHEDULE. APA, AGUA, and LWV-SA commented that the funds which are generated by the Edwards Aquifer program should be dedicated to the Edwards Aquifer regulatory programs. These funds should not be used to subsidize unrelated programs while enforcement of the Edwards Rules remains inadequate. PEPP commented that the current proposed regulations ignore requests to direct all fees paid in the Edwards program back into the program. SA/SAWS commented that funds derived from fees and penalties from the related Edwards Aquifer Program, should be put directly back into the process for pollution abatement evaluation and active enforcement of approved activities which include such things as monitoring temporary and permanent abatement practices. They continued that these fees should not go to the waste treatment facility inspection fund. In FY 1996, the Edwards Aquifer Protection Program in the Austin and San Antonio Regional Offices collected a total of approximately $622,000 in fees for the review and approval of Water Pollution Abatement Plans, Sewage Collection System Plans, Aboveground Storage Tank Plans, and Underground Storage Tank Plans. Although the fees are consolidated under sec.26.0461 of Texas Water Code with other revenue streams into the waste treatment facility inspection fund, the monies generated by the program are devoted to the program. The fees collected are just sufficient to cover the current program costs and support for the existing program. The commission is seeking legislative approval to consolidate fee funds to provide the flexibility to direct funding to problem areas, rather than creating dedicated fee funding for specific programs. This is especially important when the fee collection structure under the program is considered. Section 26.0461 of the Texas Water Code authorizes a one-time only fee paid when the initial plans are submitted for review. However, many of the projects reviewed and approved by program staff require several years to complete and are subject to repeated follow-up inspections. Further, inspections of permanent stormwater structures must be conducted for the life of the structure. With the one-time only fee structure, it is assumed that the initial fee for the review of other plans will be sufficient to continue to pay for program support in subsequent years. However, this can lead to program shortfalls if the construction boom slows down but the demand on the program for system oversight and re-inspection remain constant. The commission has made no change in response to this comment. PEPP stated that they have commented at previous public hearings on the Edwards Aquifer program that the manpower in the program should be increased and that the continued under staffing of the program weakens the agency's ability to effectively monitor activities over the recharge zone. APA, AGUA, and LWV-SA commented that the program should be adequately staffed and funded for effectiveness. COA commented that enforcement must be accomplished consistently for the rules to be effective and that an increase in fees is justified to fund enforcement, to hire additional inspectors, and to train inspection staff. An individual commented that the agency should budget for active monitoring and policing of polluters, assuming that the identification of pollution and the regulations regarding pollution control are in place. SCAG commented that the use of program fees to better support the mandate of aquifer protection needs to be addressed. SCLSC commented that the fee process should be revised to return more fees collected from the program to the enforcement of program mandates. They suggested that the fee schedule should be changed to more accurately reflect the pollution potential of the proposed activity rather than the simple size of the activity for water pollution abatement plans and that new fee schedules, for areas other than development application approval, are needed. AGUA commented that the program should implement new fees for annual inspections and long-term enforcement of approved permits. They suggested that the fee schedule be revised for the entire program to reflect the increasing costs of administering projects with more acreage and bigger sewage facilities and that additional fees should be implemented for ongoing inspection and permit compliance and enforcement activities. LWV-TX commented that they would like to discuss further with agency staff the adequacy of current fees and funding, possible changes in the fee schedules to better reflect the pollution potential of the proposed activity rather than simply the raw acreage involved, and any legislation that might be necessary to accomplish such changes. The agency is restricted by legislation to the maximum $2,000 fee for all applications for the Edwards Aquifer program. Any changes to the upper limit of the fee schedule or changes in fee structure would have to be initiated through a legislative change. The commission has made no change in response to these comments. AGUA suggested that the agency should assist local and regional agencies to find funding sources to accomplish mandates such as TV monitoring of sewer lines and studies on septic tank placement, blasting effects and sensitive recharge areas. They continued that the agency should provide for program costs and should have a high level (Assistant Executive Director) to coordinate the activities of the regional and administrative function of the program. The commission responds that the funding mandates indicated by the commenter regarding the monitoring of sewer lines are not new and have been in effect since March 21, 1990,. The commission has made no change to the rule in response to this comment because the funding of studies is beyond the scope of the rules, which is the regulation of activities having the potential to contaminate the aquifer. The commission also responds that the proposed position is unnecessary. The program is under the Office of Compliance and Enforcement headed up by a Deputy Director and is under the Field Operations Division headed by a Division Director. Both positions are filled with staff who are aware of the issues and coordinate internally through the Managers of both the San Antonio and Austin Regional Offices and can deal directly with external, local and federal regulatory authorities. ADDITIONAL CHANGES TO THE RULE The commission has provided addition citations in the paragraph on statutory authority. Section 213.1(2) has been clarified to indicate that an applicant may also be required to comply with local ordinances and regulations providing for the protection of water quality. Section 213.1(3) was clarified to refer to the specific section in Chapter 50 of this title related to Motion for Reconsideration. The rule has been modified throughout to clarify that water quality in surface streams that are hydrologically connected to the aquifer must also be protected. Sections 213.4(c) and 213.9(b) have been changed to provide for the submittal of an original and three copies from four copies. Minor typographical errors were corrected and wording clarifications were made throughout the rule. Rule citations were changed to reflect new rule adoptions since the proposal was published for the following chapters: Chapter 338 to Chapter 238 (related to Water Well Drillers Rules), Chapter 377 to Chapter 70 (related to Enforcement) and revised Chapter 285 (related to On-site Sewage Facilities). Section 213.5(d)(1)(B) was clarified to provide for siting requirement based upon sensitive features identified under the assessment of area geology or as part of the tankhold inspection. Sections 213.5(d)(2)(D) and 213.5(e)(2)(D) were clarified to indicate that the technical report should be submitted on forms provided by or approved by the executive director. Section 213.5(e)(1) was clarified to be the design standards for aboveground storage tank systems rather than facilities. Section 213.5(c)(3)(L) was clarified to provide guidance for when temporary erosion and sediment controls can be removed after construction is completed under an organized sewage collection system plan. STATUTORY AUTHORITY This new chapter is adopted under Texas Water Code, sec.sec.5.103, 5.105, 26.011, 26.341 and Texas Health and Safety Code, sec.sec.361.024 and 366.012 which provide the commission with the authority to promulgate rules necessary for the exercise of its jurisdiction and powers provided by the Codes and other laws. Additionally, Texas Water Code sec.26.046 requires the commission to hold annual public hearing to receive evidence form the public on actions the commission should take to protect the Edwards Aquifer from pollution, sec.26.0461 allows the commission to impose fees for processing plans or amendments that are subject to review or approval under the commission's Edwards Aquifer rules, sec.26.121 prohibits unauthorized discharges, sec.26.401 gives the goal for groundwater protection in the state, and sec.28.011 authorizes the commission to make and enforce rules for the protection and preservation of ground-water quality. No other codes or statutes will be affected by this proposal. sec.213.1. Purpose. The purpose of this chapter is to regulate activities having the potential for polluting the Edwards Aquifer and hydrologically connected surface streams in order to protect existing and potential uses of groundwater and maintain Texas Surface Water Quality Standards. The activities addressed are those that pose a threat to water quality. (1) Consistent with sec.26.401 of the Water Code, the goal of this chapter is the existing quality of groundwater not be degraded, consistent with the protection of public health and welfare, the propagation and protection of terrestrial and aquatic life, the protection of the environment, the operation of existing industries, and the maintenance and enhancement of the long-term economic health of the state. (2) Nothing in this chapter is intended to restrict the powers of the commission or any other governmental entity to prevent, correct, or curtail activities that result or may result in pollution of the Edwards Aquifer or hydrologically connected surface waters. In addition to the rules of the commission, an applicant may also be required to comply with local ordinances and regulations providing for the protection of water quality. (3) The executive director shall review and act on an application subject to this chapter. The applicant or a person affected may file with the chief clerk a motion for reconsideration, under sec.50.39(b)-(f) of this title (relating to Motion for Reconsideration), of the executive director's final action on an Edwards Aquifer protection plan, modification to a plan, or exception. sec.213.2. Applicability and Person or Entity Required to Apply. These rules specifically apply to the Edwards Aquifer and are not intended to be applied to any other aquifers in the state of Texas. Unless otherwise provided under this chapter, the owner of an existing or proposed site, such as a residential or commercial development, sewage collection system, or aboveground or underground storage tank facility for static hydrocarbons or hazardous substances, who proposes new or additional regulated activities under this chapter, must file and receive executive director approval of all appropriate applications prior to commencement of construction of new or additional regulated activities. sec.213.3. Definitions. The definitions in sec.26.001, sec.26.263, and sec.26.342 of the Texas Water Code are applicable to this chapter. When used in this chapter, those definitions shall have the same meaning as the following definitions unless the context in which they are used clearly indicates otherwise, or those definitions are inconsistent with the definitions listed below. Abandoned well- A well that has not been used for six consecutive months. A well is considered to be in use in the following cases: (A) a non-deteriorated well which contains the casing, pump and pump column in good condition; or (B) a non-deteriorated well which has been capped (as defined by Chapter 238 of this title relating to Water Well Drillers Rules). Aboveground storage tank facility- The site, tract, or other area where one or more aboveground storage tank systems is located, including all adjoining contiguous land and associated improvements. Aboveground storage tank system- A non-vehicular device (including any associated piping) that is made of nonearthen materials; located on or above the ground surface, or on or above the surface of the floor of a structure below ground, such as a mineworking, basement, or vault; and designed to contain an accumulation of static hydrocarbons or hazardous substances. Appropriate regional office- For regulated activities covered by this chapter and located in Hays, Travis and Williamson counties, the appropriate agency regional office is Region 11, located in Austin, Texas. For regulated activities covered by this chapter and located in Kinney, Uvalde, Medina, Bexar, and Comal counties, the appropriate agency regional office is Region 13, located in San Antonio, Texas. Assessment of area geology- A report which is prepared by a geologist describing area and site-specific geology. Best management practices (BMPs)- schedule of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of water in the State. BMPs also include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. BMPs are those measures that are reasonable and necessary to achieve a performance standard that protects existing and potential uses of groundwater and maintains surface water quality in compliance with Texas Surface Water Quality Standards, as contained in technical guidance prepared by the executive director or other BMPs which are technically justified based upon studies and other information that are generally relied upon by professionals in the environmental protection field and are supported by existing or proposed performance monitoring studies, including, but not limited to, U.S. Environmental Protection Agency, American Society of Civil Engineers, and Water Environment Research Foundation guidance. Commencement of construction - Construction of physical facilities including but not limited to buildings, roads, and utility infrastructure. Edwards Aquifer- That portion of an arcuate belt of porous, waterbearing, predominantly carbonate rocks known as the Edwards and Associated Limestones in the Balcones Fault Zone trending from west to east to northeast in Kinney, Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson counties; and composed of the Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, Edwards Formation, and Georgetown Formation. The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less- permeable Comanche Peak and Walnut formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally. Edwards Aquifer protection plan - A general term which includes water pollution abatement plan, organized sewage collection system plan, underground storage tank facility plan, aboveground storage tank facility plan, or a modification or exception granted by the executive director. Edwards Aquifer protection plan holder- Person who is responsible for compliance with an approved water pollution abatement plan, organized sewage collection system plan, underground storage tank facility plan, aboveground storage tank facility plan, or a modification or exception granted by the executive director. Feedlot/concentrated animal feeding operation - A concentrated, confined livestock or poultry facility operated for meat, milk or egg production, growing, stabling, or housing, in pens or houses wherein livestock or poultry are fed at the place of confinement and crop or forage growing or production of feed is not sustained in the area of confinement. Geologic or manmade features- Features including but not limited to closed depressions, sinkholes, caves, faults, fractures, bedding plane surfaces, interconnected vugs, reef deposits, wells, borings, and excavations. Groundwater conservation district - Any groundwater district created by the Texas Legislature or the commission under the Texas Water Code, Chapter 36, as a groundwater conservation district to conserve, preserve, and protect the waters of an underground water reservoir. Hazardous substance- Any substance designated as such by the administrator of the Environmental Protection Agency pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act; regulated pursuant to sec.311 of the Federal Water Pollution Control Act; or any solid waste, or other substance that is designated to be hazardous by the commission, pursuant to the Texas Water Code sec.26.263 or Texas Health and Safety Code sec.361.003. Industrial wastewater discharge- Any category of wastewater except: (A) those that are primarily domestic in composition; or (B) those emanating from feedlot/concentrated animal feeding operations. Land application system- A wastewater disposal system designed not to discharge wastewater into a surface drainage way. Organized sewage collection system - Any public or private sewerage system for the collection and conveyance of sewage to a treatment and disposal system that is regulated pursuant to rules of the commission and provisions of Chapter 26 of the Texas Water Code. A system includes lift stations, force mains, gravity lines, and all appurtenances necessary for conveying wastewater from a generating facility to a treatment plant. Pollution - The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to public health, safety or welfare, or impairs the usefulness of the public enjoyment of the waters for any lawful or reasonable purpose. Private sewage facilities - On-site sewage facilities as defined under Chapter 285 of this title (relating to On-site Sewage Facilities). Private service lateral- Facilities extending from the building drain to an existing private or public sewage collection system or other place of disposal that provides service to one individual household or building whose operation and maintenance are the sole responsibility of the tenant or owner of the building. Facilities extending from the convergence of private service laterals from more than one building is considered a sewage collection system. Recharge zone - Generally, that area where the stratigraphic units constituting the Edwards Aquifer crop out, including the outcrops of other geologic formations in proximity to the Edwards Aquifer, where caves, sinkholes, faults, fractures, or other permeable features would create a potential for recharge of surface waters into the Edwards Aquifer. The recharge zone is identified as that area designated as such on official maps located in the appropriate regional office and groundwater conservation districts. Regulated activity - Any construction-related activity on the recharge zone of the Edwards Aquifer, such as, but not limited to: construction of buildings, utility stations, roads, highways, or railroads; clearing, excavation or any other activities which alter or disturb the topographic, geologic, or existing recharge characteristics of a site; any installation of aboveground or underground storage tank facilities on the recharge or transition zone of the Edwards Aquifer; or any other activities which may pose a potential for contaminating the Edwards Aquifer and hydrologically connected surface streams. "Regulated activity" does not include: (A) the clearing of vegetation in a 10-foot wide path, for the sole purpose of surveying; (B) agricultural activities, except feedlots/concentrated animal feeding operations; (C) activities associated with the exploration, development, and production of oil or gas or geothermal resources as defined in Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste); (D) the routine maintenance of existing structures that does not involve additional site disturbance, such as but not limited to, the resurfacing of existing paved roads, parking lots, sidewalks, or other development-related impervious surfaces and the building of fences, or other similar activities in which there is little or no potential for contaminating groundwater, or there is little or no change to the topographic, geologic, or existing sensitive features; or (E) construction of single-family residences on lots that are larger than five acres, where no more than one single-family residence is located on each lot. Sensitive feature - Permeable geologic or manmade feature located on the recharge zone or transition zone where: (A) a potential for hydraulic interconnectedness between the surface and the Edwards Aquifer exists, and (B) rapid infiltration to the subsurface may occur. Sewage holding tank - A tank or other containment structure used to receive and store sewage until its ultimate disposal in an approved treatment facility. Site - The entire area included within the legal boundaries of the property. Regulated activities on a site that is located partially on the recharge zone and transition zone, where the natural drainage in the transition zone flows back to the recharge zone, shall be treated as if the entire site is located on the recharge zone. Static hydrocarbon - A hydrocarbon which is liquid at atmospheric pressure and 20o centigrade. Stub out - A wye, tee, or other manufactured appurtenance placed in a sewage collection system providing a location for a future extension of the collection system. Tertiary containment - A containment method by which an additional wall or barrier is installed outside of the secondary storage vessel (e.g., tank or piping) or other secondary barrier in a manner designed to prevent a release from migrating beyond the tertiary wall or barrier before the release can be detected. Tertiary containment systems include, but are not limited to, impervious liners and vaults surrounding a secondary tank and/or piping system, or equivalent triple wall tank or piping system as approved by the executive director. Transition zone - That area where geologic formations crop out in proximity to and south and southeast of the recharge zone and where faults, fractures, and other geologic features present a possible avenue for recharge of surface water to the Edwards Aquifer, including portions of the Del Rio Clay, Buda Limestone, Eagle Ford Group, Austin Chalk, Pecan Gap Chalk, and Anacacho Limestone. The transition zone is identified as that area designated as such on official maps located in the appropriate regional office and groundwater conservation districts. Underground storage tank facility —The site, tract, or other defined area where one or more underground storage tank systems are located, including all adjoining contiguous land and associated improvements. Underground storage tank system - Any one or combination of underground tanks and any connecting underground pipes used to contain an accumulation of regulated substances, the volume of which, including the volume of the connecting underground pipes, is 10% or more beneath the surface of the ground. Well - A bored, drilled or driven shaft, or an artificial opening in the ground made by digging, jetting or some other method, where the depth of the well is greater than its largest surface dimension. A well is not a surface pit, surface excavation, or natural depression. sec.213.4. Application Processing and Approval. (a) Approval by the executive director. No person shall commence the construction of any regulated activity until an Edwards Aquifer protection plan or modifications to the plan as required by sec.213.5 of this title (relating to Required Edwards Aquifer Protection Plans, Notification, and Exemptions) has been filed with the appropriate regional office, and the application has been reviewed and approved by the executive director. The appropriate regional office shall provide copies of submittals to affected incorporated cities, groundwater conservation districts, and counties having jurisdiction over the area potentially affected by a proposed regulated activity, for the purpose of considering timely comment from local government entities. Such comments must be received within 30 days from the date the submittal is distributed to affected incorporated cities and groundwater conservation districts to be considered by the executive director. A complete application for approval, as described in this section, must be submitted with the appropriate fee as specified in sec.213.12 of this title (relating to Application Fees). (b) Contents of Application. (1) Forms provided by the executive director. Applications for approval filed under this chapter must be made on forms provided by or approved by the executive director. Each application for approval must, at a minimum, include the following: (A) name of the development, subdivision, or facility for which the application is submitted; (B) a narrative description of the location of the project or facility for which the application is submitted, presenting sufficient detail and clarity so that the project site and its boundaries can be located during a field inspection; (C) name, address, and telephone number of the owner or any other persons signing the application; and (D) information needed to determine the appropriate fee under sec.213.14 of this title (relating to Fee Schedule) for the following plan types: (i) for water pollution abatement plans and modifications to plans, the total acreage of the site where regulated activities will occur; (ii) for organized sewage collection system plans and modifications to plans, the total linear footage of all lines; or (iii) for static hydrocarbon and hazardous substance storage in underground or permanent aboveground storage tank facility plans, the total number of tanks or piping systems. (2) Additional information. Each application must also include the following information, as applicable: (A) for water pollution abatement plans, the information required under sec.213.5(b) of this title; (B) for organized sewage collection system plans, the information required under sec.213.5(c) of this title; (C) for static hydrocarbon and hazardous substance storage in underground storage tank systems, the information required under sec.213.5(d) of this title; (D) for static hydrocarbon and hazardous substance storage in aboveground storage tank systems, the information required under sec.213.5(e) of this title; and (E) any other pertinent information related to the application which the executive director may require. (c) Application submittal. An original and three copies of the application must be submitted to the appropriate regional office. Only owners, their authorized agent(s), or those persons having an option to purchase or having the right to possess and control the property which is the subject of the Edwards Aquifer protection plan may submit the plan for review and approval by the executive director. (d) Signatories to Applications. (1) Required Signature. All applications must be signed as follows. (A) For a corporation, a principal executive officer (president, vice-president, or a duly authorized representative) must sign the application. A representative must submit written proof of the authorization. (B) For a partnership, a general partner must sign the application; (C) For a political entity such as a municipality, state, federal or other public agency, either a principal executive officer or a duly authorized representative must sign the application. A representative must submit written proof of the authorization. (D) For an individual or sole proprietorship, the individual or sole proprietor must sign the application. (2) Proof of Authorization to Sign. The executive director requires written proof of authorization for any person signing an application. (e) Executive director review. The executive director must complete the review of an application within 90 days after determining that it is administratively complete. The executive director must declare that the application is administratively complete or deficient within 30 days of receipt by the appropriate regional office. Grounds for a deficient application include, but are not limited to, failure to pay all applicable application fees. (f) Additional provisions. As a condition of approval, the executive director may impose additional provisions deemed necessary to protect the Edwards Aquifer from pollution. The executive director may conditionally approve an Edwards Aquifer protection plan or impose special conditions on the approval of a plan. (g) Deed recordation. Within 30 days of receiving written approval of a water pollution abatement plan, an aboveground storage tank plan, an underground storage tank plan, or modifications/exceptions to any of these plans for a proposed regulated activity, the applicant must record in the county deed records that the property is subject to an approved Edwards Aquifer protection plan. Prior to commencing construction, the applicant must submit, to the appropriate regional office, proof of application for recordation of notice in the county deed records. (h) Term of approval. The executive director's approval of an Edwards Aquifer protection plan will expire two years after the date of initial issuance, unless prior to the expiration date, substantial construction related to the approved plan has commenced. For purposes of this subsection, substantial construction is where more than 10% of total construction has commenced. If a written request for an extension is filed under the provisions of this subsection, the approved plan shall continue in effect until the executive director makes a determination on the request for the extension. (1) A written request for an extension must be received not earlier than sixty (60) days and no later than 30 days prior to the expiration date of an approved Edwards Aquifer protection plan or a previously approved extension. Requests for extensions are subject to fees outlined in sec.213.13 of this title (relating to Fees Related to Requests For Extensions). (2) An executive director's approved extension will expire six months after the original expiration date of the approved Edwards Aquifer protection plan or a previously approved extension unless prior to the expiration date, commencement of construction, repair, or replacement related to the approved plan has occurred. An extension will not be granted if not more than 50% of the total construction has not been completed within 10 years from the initial approval of a plan. (3) Any requests for extensions received by the executive director after the expiration date of an approved Edwards Aquifer protection plan or a previously approved extension will not be accepted and a new application for the purposes of this chapter must be submitted with the appropriate fees for the review and approval by the executive director. (4) An extension will not be granted if the proposed regulated activity or approved plan for the regulated activity(s) under this chapter has changed. (i) Legal Transfer of Property. Upon legal transfer of property, sewage collection systems, force mains, lift stations, underground storage tank system, or aboveground storage tank system, the new owner(s) is required to comply with all terms of the approved Edwards Aquifer protection plan. If the new owner intends to commence any new regulated activity on the site, he/she must file an Edwards Aquifer protection plan that specifically addresses the new activity. (j) Modification of previously approved plans. The holder of any approved Edwards Aquifer protection plan must notify the appropriate regional office in writing and obtain approval from the executive director prior to initiating any of the following: (1) any physical or operational modification of any water pollution abatement structure(s), including but not limited to ponds, dams, berms, sewage treatment plants, and diversionary structures; (2) any change in the nature or character of the regulated activity from that which was originally approved or a change which would significantly impact the ability of the plan to prevent pollution of the Edwards Aquifer; (3) any development of land previously identified as undeveloped in the original water pollution abatement plan; (4) any physical modification of the approved organized sewage collection system; (5) any physical modification of the approved underground storage tank system; or (6) any physical modification of the approved aboveground storage tank system. (k) Compliance. The holder of the approved or conditionally approved Edwards Aquifer protection plan shall be responsible for compliance with this chapter and any special conditions of an approved plan through all phases of plan implementation. Failure to comply with any condition of the executive director's approval is a violation of this rule. sec.213.5. Required Edwards Aquifer Protection Plans, Notification, and Exemptions. (a) Required plans. A plan must be submitted for the following, as appropriate: (1) a water pollution abatement plan under subsection (b) of this section to conduct regulated activities on the recharge zone not covered by subsections (c), (d), or (e) of this section; (2) an organized sewage collection system plan under subsection (c) of this section for rehabilitation or construction related to existing or new organized sewage collection systems on the recharge zone; (3) an underground storage tank facility plan for static hydrocarbon and hazardous substance storage under subsection (d) of this section for the construction or rehabilitation of an underground storage tank system; including tanks, piping, and related systems located on the recharge zone or transition zone; and (4) an aboveground storage tank facility plan for static hydrocarbon and hazardous substance storage under subsection (e) of this section for the construction or rehabilitation of an aboveground storage tank system; including tanks, piping, and related systems, for the storage of hydrocarbon or hazardous substance located on the recharge zone or transition zone. (b) Water Pollution Abatement Plan. A water pollution abatement plan must contain the following information. (1) Application. The information required under sec.213.4 of this title (relating to Application Processing and Approval) is part of the plan and shall be filed with the executive director at the appropriate regional office. (2) Site location. The location data and maps shall include the following: (A) a legible road map with directions, including mileage, which would enable the executive director to locate the site for inspection; (B) a general location map showing: (i) the site location on a copy (or spliced composite of copies, if necessary) of an official recharge zone map(s) with quadrangle name(s) and recharge and transition zone boundaries clearly labeled; and (ii) a drainage plan, shown on the recharge zone map, indicating all paths of drainage from the site to the boundary of the recharge zone; and (C) a site plan with a minimum scale of 1 inch to 400 feet, showing: (i) the 100-year floodplain boundaries (if applicable); (ii) the layout of the development, and existing and finished contours at appropriate, but not greater than five foot contour intervals; (iii) the location of all known wells (including but not limited to water wells, oil wells, and unplugged and abandoned wells); and (iv) the location of any sensitive feature on the site of the proposed regulated activity or in areas beyond the site boundary as identified in the assessment of area geology under paragraph (3) of this subsection. (3) Assessment of area geology. For all regulated activities, the applicant must submit a report prepared by a geologist describing area and site-specific geology identifying all potential pathways for contaminant movement to the Edwards Aquifer. For areas beyond the site boundary that are within the 100-year floodplain and are the shorter distance of either one-half mile downgradient of the site or the downgradient boundary of the recharge zone, the geologic assessment must include an identification of sensitive features. If access to downgradient property is denied, these features may be inventoried from literature searches, recognized from aerial photographs, or identified from other sources of information. Where the 100-year floodplain has not been delineated, the applicant shall delineate the 100-year floodplain, showing all applicable data and calculations used to make such a delineation. Single-family residential subdivisions constructed on less than 10 acres are exempt from this requirement. The geologic assessment must include: (A) a geologic map at site-plan scale showing the outcrop of surface geologic units and all geologic and manmade features, specifically identifying caves, sinkholes, faults, permeable fractures, solution zones, surface streams, and other sensitive features; (B) a stratigraphic column showing at a minimum, formations, members, and thicknesses; (C) forms provided by or approved by the executive director, which describe and evaluate all geologic and manmade features to assess and determine if they are sensitive features, and include: (i) identification of each geologic or manmade feature, with a cross reference to the site-plan map coordinates; and (ii) the type of geologic or manmade feature, including but not limited to, sinkholes, caves, faults, wells, surface streams, or potentially permeable fractures and solution zones; (D) a narrative assessment of site-specific geology, detailing the potential for fluid movement to the Edwards Aquifer, including discussion of the stratigraphy, structure, and karstic characteristics of the site; and (E) a narrative description of soil units and a soil profile, including thickness and hydrologic characteristics. (4) Technical report. For regulated activities, a technical report shall address the following issues. (A) An assessment of: (i) the nature of the regulated activity (such as residential, commercial, industrial, or utility), including the size of the site in acres; the projected population for the site; the amount and type of impervious cover expected after construction is complete, such as paved surface or roofing; the amount of surface expected to be occupied by parking lots; and other factors that could affect surface and groundwater quality; (ii) the volume and character of wastewater expected to be produced (such as wastewater generated at a site should be characterized as either domestic or industrial, or if commingled, by approximate percentages of each type); (iii) the volume and character of stormwater runoff expected to occur (estimates of stormwater runoff quality and quantity should be based on area and type of impermeable cover, as described in clause (i) of this subparagraph); and (iv) any activities or processes which may be a potential source of contamination. (B) A description of the best management practices and measures that will be taken during and after construction to prevent pollution of surface or groundwater or of stormwater originating on-site or upgradient from the site and potentially flowing across the site. Pilot-scale field testing (including water quality performance monitoring) may be required for BMPs that are not contained in technical guidance recognized by or prepared by the executive director. (C) A description of the best management practices and measures that will be taken during and after construction to prevent pollution of surface or groundwater downgradient of the site, including pollution caused by contaminated stormwater runoff from the site. Pilot-scale field testing (including water quality performance monitoring) may be required for BMPs that are not contained in technical guidance recognized by or prepared by the executive director. (D) A description of the best management practices and measures that will be taken during and after construction to prevent pollutants from entering surface streams or the aquifer while, to the extent practicable, maintaining flow to naturally occurring sensitive features identified in either the assessment of area geology or during excavation, blasting, or construction. Pilot-scale field testing (including water quality performance monitoring) may be required for BMPs that are not contained in technical guidance recognized by or prepared by the executive director. The sealing of naturally occurring sensitive features as a pollution control measure will be avoided where reasonable and practicable alternatives exist and will be evaluated by the executive director on a case-by- case basis. (E) Measures to be taken to avoid or minimize surface stream contamination or changes in which water may enter a stream as a result of construction and development that would increase flashing, create stronger flow and stream velocity; or otherwise increase instream erosion and further water quality degradation; (F) A description of the method of disposal of wastewater from the site: (i) if wastewater is to be disposed of by conveyance to a sewage treatment plant for treatment and disposal, the existing or proposed treatment facility must be identified; or (ii) if wastewater is to be disposed of by an on-site sewage facility, the application must be accompanied by a written statement from the appropriate authorized agent, stating that the site is suitable for the use of private sewage facilities and will meet the special requirements for on-site sewage facilities located on the Edwards Aquifer recharge zone as specified under Chapter 285 of this title (relating to On-site Sewage Facilities), or identifying those areas that are not suitable. (G) A description of measures that will be taken to contain any spill of hydrocarbons or hazardous substances such as on a roadway or from a pipeline or from temporary aboveground storage of 250 gallons or more. Temporary storage facilities are those used on site for less than one year. Temporary aboveground storage tank systems of 250 gallons or more cumulative storage capacity shall be located a minimum horizontal distance of 150 feet from any domestic, industrial, irrigation, or public water supply well, or other sensitive feature. (H) A plan for the inspection of best management practices and measures and for their timely maintenance and repair and, if necessary, retrofit. (c) Organized Sewage Collection Systems. (1) No person shall commence rehabilitation or construction related to an existing or new organized sewage collection system on the recharge zone, until design plans, specifications, and an engineering report, as specified in Chapter 317 of this title (relating to Design Criteria for Sewerage Systems) and appropriate special requirements of this section, have been filed with and approved by the executive director. (2) General design of sewage collection systems. Design of new sewage collection systems on the recharge zone must comply with Chapter 317 of this title. (3) Special requirements for sewage collection systems. In addition to the requirements in paragraph (2) of this subsection, sewage collection systems on the recharge zone must meet the following special requirements. (A) Manhole rehabilitation or construction. All manholes rehabilitated or constructed after March 21, 1990, must be watertight, with watertight rings and covers and must be constructed and tested to meet the requirements of sec.317.2(c)(5)(H) of this title (relating to Sewage Collection System). (B) Piping for gravity and pressurized collection systems. Compliance with the following is required, unless local regulations dictate more stringent standards: (i) for gravity collection systems, all PVC pipe must have a Standard Dimension Ratio (SDR) of 35 or less and meet the requirements of sec.317.2(a) through sec.317.2(c)(4) of this title; and (ii) for all pressurized sewer systems, all PVC pipe must have a minimum working pressure rating of 150 pounds per square inch and meet the requirements of sec.sec.317.2(d)(2)-(d)(4) and sec.sec.317.3(d)(5)-(d)(7) of this title (relating to Sewage Collection System and Lift Stations). (C) Lift station design. Lift stations must be designed and constructed to assure that bypassing of any sewage does not occur. All lift stations must be designed to meet the requirements of sec.317.2(d) and sec.317.3 of this title. A lift station submittal must include final construction plans and a design report prepared by or under the direct supervision of a Texas Registered Professional Engineer. All design information must be signed, sealed, and dated by a Texas Registered Professional Engineer. (D) Certification of new sewage collection system lines by a Texas Register Professional Engineer. Owners of sewage collection systems must insure that all new gravity sewer system lines having a diameter greater than or equal to six inches and all new force mains are tested for leakage following construction. Such lines must be certified by a Texas Registered Professional Engineer to meet the appropriate requirements of sec.317.2 of this title (relating to Design Criteria for Sewerage Systems). The engineer shall retain copies of all test results which shall be made available to the executive director upon request. The engineer shall submit a letter certifying that all wastewater lines have passed all required testing to the appropriate regional office within 30 days of test completion and prior to use of the new collection system. Following the completion of the new sewer lines and manholes, they must be tested every five years thereafter in accordance with subparagraph (E) of this paragraph. (E) Testing of existing sewer lines. Owners of sewage collection systems must insure that all existing sewer lines having a diameter greater than or equal to six inches, including private service laterals, manholes, and connections, are tested to determine types and locations of structural damage and defects such as offsets, open joints, or cracked or crushed lines that would allow exfiltration to occur. Existing manholes and lift station wetwells shall be tested using methods for new structures which are approved by the executive director. (i) Testing of all sewage collection systems shall be completed within five years of commencement. Any sewage collection system in place as of March 21, 1990, shall have commenced and completed testing. Every five years thereafter, existing sewer collection systems must be tested to determine types and locations of structural damage and defects such as offsets, open joints, or cracked or crushed lines that would allow exfiltration to occur. These test results shall be certified by a Texas Registered Professional Engineer. The use of one of the following methods will satisfy the requirements for the five year testing of existing sewer lines. (I) In-place deflection testing shall meet the requirements of sec.317.2(a)(4)(C) of this title. No pipe shall exceed a deflection rate of 5.0%. (II) Internal line inspections, using a color television camera to verify that the lines are free of structural damage such as offsets, open joints, or cracked or crushed lines, that would allow exfiltration to occur, are acceptable. The use of older black and white television equipment will not be accepted by the executive director. Newer black and white television equipment may be used following demonstration to the executive director that an acceptable inspection can be performed as provided in subclause (IV) of this clause. (III) In-line smoke testing is acceptable only for the testing of private service laterals. (IV) Testing methods other than those listed above must be approved by the executive director prior to initiating the sewer line testing. (ii) Except as otherwise provided in an enforcement order of the commission, as soon as possible, but at least within one year of detecting defects, repairs to the sewage collection system must be completed by the system's owner. However, all leakage must be immediately contained to prevent any discharge to water in the state or pollution of the Edwards Aquifer whether necessary repairs have been completed or not. Leakage is a violation of sec.26.121 of the Texas Water Code and these rules are not intended to excuse such unlawful discharge of waste into or adjacent to water in the state. All repairs must be certified by a Texas Registered Professional Engineer. Repairs must be tested within 45 days of completion using the methods described in clause (i) of this subparagraph. Results must be submitted to the appropriate regional office within 30 days of testing. (F) Blasting for sewer line excavation. Blasting for sewer line excavation must be done in accordance with appropriate criteria established by the National Fire Protection Association. Should such blasting result in damage to an existing or newly completed sewer line or any of its appurtenances, the owner of the sewer system and appurtenances must repair and retest the damaged sewer line and its appurtenances immediately. The use of sand for pipe embedment or backfill in blasted rock is prohibited. (G) Sewer line stub outs. New collection system lines must be constructed with stub outs for the connection of anticipated extensions. The location of such stub outs must be marked on the ground such that their location can be easily determined at the time of connection of the proposed extensions. All stub outs must be sealed with a manufactured cap to prevent leakage. Extensions that were not anticipated at the time of original construction or that are to be connected to an existing sewer line not furnished with stub outs must be connected using a manufactured saddle in accordance with accepted plumbing techniques. (i) Main line stub outs. Manholes shall be placed at the end of all sewer lines that will be extended at a future date, as specified in sec.317.2(c)(5) of this title. If the main line is to be extended within one (1) year, a variance to allow the use of a stub out until the line is extended will be considered on a case-by-case basis. At the time of original construction, new stub outs must be constructed sufficiently to extend beyond the end of the street pavement. Stub outs that were not anticipated at the time of original construction must enter the manhole using a bored or drilled hole. Chiseling or hammering to enter a manhole is prohibited. (ii) Private service lateral stub outs. Such stub outs must be manufactured using wyes or tees that are compatible in size and material with both the sewer line and the extension. Private service lateral stub outs that were not anticipated at the time of original construction must be connected using a manufactured saddle in accordance with accepted plumbing techniques. (H) Locating sewer lines within a five-year floodplain. Sewer lines shall not be located within the five-year floodplain of a drainageway, unless an exemption is granted by the executive director. If the applicant demonstrates to the executive director that such location is unavoidable, and the area is subject to inundation and stream velocities which could cause erosion and scouring of backfill, the trench must be capped with concrete to prevent scouring of backfill, or the sewer lines must be encased in concrete. All concrete shall have a minimum thickness of six inches. (I) Inspection of private service lateral connections. After installing and prior to covering and connecting a private service lateral to an organized sewage collection system, a Texas Registered Professional Engineer, Texas Registered Sanitarian, or appropriate city inspector shall inspect the private service lateral and the connection to the collection system and certify that construction conforms with the applicable provisions of this subsection. The owner of the collection system must maintain such certifications for three years and forward copies to the appropriate regional office upon request. No connections may be made to an approved sewage collection system until the executive director has received certification of new construction or repairs, and subsequent testing has been performed as required by paragraph (D) or (E) of this subsection. Private service laterals may only be connected to approved sewage collection systems. (J) Embedment materials. Embedment materials must meet the specification for bedding contained in sec.317.2(a)(5) of this title. (K) Sewer lines bridging caverns or other sensitive features. Sewer lines that bridge caverns or sensitive features must be constructed in a manner that will maintain the structural integrity of the line. When such geologic features are encountered during construction, the location and extent of those features must be reported to the appropriate regional office in writing within two working days of discovery and must comply with the requirements under subsection (f) of this section. (L) Erosion and sedimentation control. A temporary erosion and sedimentation control plan must be included with all construction plans. All temporary erosion and sedimentation controls must be installed prior to construction, must be maintained during construction, and shall be removed when sufficient vegetation is established to control the erosion and sedimentation and the construction area is stabilized. (M) Alternative sewage collection systems. The executive director may approve an alternative procedure which is technical justified; signed, sealed and dated by a Texas Register Professional Engineer indicating equivalent environmental protection; and which complies with the requirements of sec.317.2(d) of this title (relating to Design Criteria for Sewerage Systems). (N) Required corrective action. Notwithstanding compliance with the requirements of subparagraphs (A)-(M) of this paragraph, sewage collection systems must operate in a manner that will not cause pollution of the Edwards Aquifer. Any failure must be corrected in a manner satisfactory to the executive director. (4) Contents of organized sewage collection system plan. (A) Application. For organized sewage collection systems, the information required under sec.213.4 of this title (relating to Application Processing and Approval) shall be filed with the executive director at the appropriate regional office. (B) Narrative description of proposed organized sewage collection system. A narrative report must include at a minimum a geographic description and anticipated type of development within the sewage collection system service area. A technical report that was submitted under subsection (b) of this section satisfies this requirement, provided it properly addresses the proposed sewage collection systems. (C) Plans and specifications. Plans and specifications addressing all the requirements in paragraphs (2) and (3) of this subsection, must include at a minimum: (i) a map showing the location of the organized sewage collection system lay-out in relation to recharge zone boundaries; (ii) a map showing the location of the organized sewage collection system lay- out, overlaid by topographic contour lines, using a contour interval of not greater than five feet, and showing the area within both the 5-year floodplain and the 100-year floodplain of any drainage way; (iii) construction documents prepared by or under the supervision of a Texas Registered Professional Engineer, which have also been signed, sealed, and dated by that Texas Register Professional Engineer, at a minimum, shall include: (I) plan and profile views of the collection system; (II) construction details of collection system components; (III) specifications for all collection system components; and (IV) proposed pollution abatement measures for sensitive features identified along the path of the proposed sewer line. (D) Assessment of area geology. An assessment of area geology shall be performed along the path of the proposed sewer line(s), plus 50 feet on each side of the proposed sewer line as described in subsection (b)(3) of this section. (d) Static Hydrocarbon and Hazardous Substance Storage in Underground Storage Tanks System. (1) Standards for Underground Storage Tank Systems. New or replacement systems for the underground storage of static hydrocarbons or hazardous substances shall be of double-walled or an equivalent method approved by the executive director. Methods for detecting leaks in the inside wall of double-walled system shall be included in the facility's design and construction. The leak detection system shall provide continuous monitoring of the system and shall be capable of immediately alerting the system's owner of possible leakages. (A) Installation. All underground hydrocarbon and hazardous substance storage tank systems shall be installed by a person possessing a valid certificate of registration in accordance with the requirements of Subchapter I of Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks). (B) Siting. Any new underground hydrocarbon and hazardous substance storage tank system that does not incorporate a method for tertiary containment shall be located a minimum horizontal distance of 150 feet from any domestic, industrial, irrigation well, or other sensitive feature as determined under the assessment of area geology at the time of construction or replacement under subparagraph (C) of this subsection or the tankhold inspection under subsection (f)(2)(B) of this section. This method of tertiary containment shall also apply to the placement of a tank system within 150 feet of a public water supply well without a sanitary control easement of 150 feet as defined in sec.290.41(c)(1)(F) of this title (relating to Water Sources). (2) Contents of an Underground Storage Tank Facility Plan. An underground storage tank facility plan must, at a minimum, contain the following information. (A) Application. The information required under sec.213.4 of this title (relating to Application Processing and Approval) shall be filed with the executive director at the appropriate regional office. (B) A site location map as specified in subsection (b)(2) of this section including a legible road map, a general location map, and a site plan, shall be submitted as part of the plan. (C) Assessment of area geology. For all facilities, located on either the recharge zone or transition zone, an assessment of area geology, as described in subsection (b)(3) of this section, shall be submitted for the site and for areas beyond the site boundary that are within the 100-year floodplain the shorter distance of either one-half mile downgradient of the site or the downgradient boundary of the recharge zone. For regulated activities located on the transition zone, the assessment of area geology shall be submitted for the site and 200 feet downgradient. (D) Technical report. For all facilities, located on either the recharge zone or transition zone, a technical report as described in sec.213.5(b)(4) of this title (relating to Technical Report), shall be submitted on forms provided by or approved by the executive director. (e) Static Hydrocarbon and Hazardous Substance Storage in an Aboveground Storage Tank Facility. (1) Design standards. Systems used for the temporary and permanent aboveground storage of static hydrocarbon and hazardous substance shall be constructed within controlled drainage areas that are sized to capture one and one-half times the storage capacity of the system. The controlled drainage area shall be constructed of and in a material impervious to the substance(s) being stored, and shall direct spills to a convenient point for collections and recovery. Any spills from storage tank facilities shall be removed from the controlled drainage area for disposal within hours of the spill. (2) Contents of an Aboveground Storage Tank Facility Plan. A permanent aboveground storage tank facility plan must contain, at a minimum, the following information. (A) Application. For an aboveground storage tank facility, the information required under sec.213.4 of this title shall be filed with the executive director at the appropriate regional office. (B) A site location map as specified in subsection (b)(2) of this section, including a legible road map, a general location map, and a site plan, shall be submitted as part of the plan for a permanent facility. (C) Assessment of area geology. For all facilities, located on either the recharge zone or transition zone, an assessment of area geology, as described in subsection (b)(3) of this section, shall be submitted for the area containing the aboveground storage tank system and for areas beyond the site boundary that are within the 100-year floodplain the shorter distance of either one-half mile downgradient of the site or the downgradient boundary of the recharge zone. For regulated activities located on the transition zone, the assessment of area geology shall be submitted for the site and 200 feet downgradient. (D) Technical report. For all facilities, located on either the recharge zone or transition zone, a technical report as described in subsection (b)(4) of this section, shall be submitted on forms provided by or approved by the executive director. (3) A description of measures that will be taken to contain any spill of hydrocarbons or hazardous substances from temporary storage of 250 gallons or more shall be included with the plan unless described under subsection (b)(4)(G) of this section. Any new temporary aboveground hydrocarbon and hazardous substance storage tank system shall be located a minimum horizontal distance of 150 feet from any domestic, industrial, irrigation, or public water supply well, or other sensitive feature. (4) Exemptions from this section. (A) Equipment used to transmit electricity that utilizes insulating oil for insulation or cooling purposes, including transformers and oil circuit breakers, are exempt from this subsection. Construction of supporting structures is a regulated activity for which a water pollution abatement plan under subsection (a)(1) of this section is required. (B) Permanent storage facilities with a cumulative storage capacity of less than 500 gallons are exempt from this section. (f) Notification and Inspection. (1) The applicant must provide written notification of intent to commence construction, replacement, or rehabilitation to the appropriate regional office 48 hours prior to commencing such regulated activity. Written notification shall include the date on which the regulated activity will commence and identify the approved plan under which the regulated activity will proceed. For purposes of determining whether the applicant is eligible to an extension of the approval of a plan, construction will not be deemed to have commenced until receipt by the appropriate regional office of a subsequent notice verifying that construction was commenced on a specific date. (2) If any sensitive feature is discovered during construction, replacement, or rehabilitation, all regulated activities near the sensitive feature must be suspended immediately. The holder of an approved Edwards Aquifer protection plan must immediately notify the appropriate regional office of any sensitive features encountered during construction before continuing construction. Regulated activities near the sensitive feature may not proceed until the executive director has reviewed and approved the methods proposed to protect the sensitive feature and the Edwards Aquifer from potentially adverse impacts to water quality. (A) The holder of an approved sewage collection system plan, must meet the following. (i) Upon completion of any lift station excavation, a geologist shall certify that the excavation has been inspected for the presence of sensitive features. Certification that the excavation has been inspected shall be submitted to the appropriate regional office. Further excavation and installation activities shall not proceed until the executive director has reviewed and approved the methods proposed to protect any sensitive feature discovered during this inspection and the Edwards Aquifer from potentially adverse impacts to water quality from the lift station. Construction may continue if the geologist certifies that, in their assessment of the excavation, no sensitive feature or features were present. (ii) A Texas Registered Professional Engineer shall submit proposed plans for insuring the structural integrity of the sewer line or modifying the proposed collection system alignment around the feature. (B) Upon completion of tankhold excavation under an approved underground storage tank facility plan, a geologist shall certify that the excavation has been inspected for the presence of sensitive features. Certification that the excavation has been inspected shall be submitted to the appropriate regional office. Installation activities shall not proceed until the executive director has reviewed and approved the methods proposed to protect any sensitive feature found during this inspection and the Edwards Aquifer from potentially adverse impacts to water quality from the underground storage tank system. This protection method shall be consistent with subsection (d)(1)(B) of this section. Construction may continue if the geologist certifies that, in their assessment of the excavation, no sensitive feature or features were present. (3) The executive director must determine the acceptability of plans intended to demonstrate methods to mitigate potential contamination associated with the sensitive feature within one week of receiving the plans. (g) On-site sewerage systems. On-site sewerage systems located on the recharge zone of the Edwards Aquifer must be designed, installed, maintained, repaired, and replaced in accordance with sec.285.40 of this title (relating to OSSFs on the Recharge Zone of the Edwards Aquifer) and other applicable provisions contained in Chapter 285. (h) Exemption. The installation of natural gas, telephone or electric lines, water lines, or other such utility lines which are not designed to carry and will not carry pollutants, stormwater runoff, sewage effluent, or treated effluent from a wastewater treatment facility is exempt from the Edwards Aquifer protection plan submittal requirements under this section. The construction of these facilities on the recharge zone is a regulated activity and the installation and maintenance of appropriate temporary erosion and sedimentation controls is required. All temporary erosion and sedimentation controls must be installed prior to construction, must be maintained during construction, and shall be removed when vegetation is established and the construction area is stabilized. The executive director may monitor stormwater discharges from these projects to evaluate the adequacy of the temporary erosion and sedimentation control measures. Additional protection will be required if the executive director determines that these controls are inadequate to protect water quality. sec.213.6. Wastewater Treatment and Disposal Systems. (a) General. New discharges or increases in discharges into or adjacent to water in the state that would create additional loading by treated wastewater are prohibited on the recharge zone. Existing permits may be renewed for the same discharge volumes and with the same conditions and authorizations specified in the permit unless the facility becomes non-compliant, as defined in Chapter 70 of this title (relating to Enforcement). New land application wastewater treatment plants located on the recharge zone must be designed, constructed, and operated such that there are no bypasses of the treatment facilities or any discharges of untreated or partially treated wastewater. Design of wastewater treatment plants must be in accordance with Chapter 317 of this title (relating to Design Criteria for Sewerage Systems). (b) Land application systems. Except for licensed private sewage facilities, land application systems that rely on percolation for wastewater disposal are prohibited on the recharge zone. Wastewater disposal systems for disposal of wastewater on the recharge zone utilizing land application methods, such as evaporation or irrigation, will be considered on a case-by-case basis. At a minimum, those systems must attain secondary treatment as defined in Chapter 309 of this title (relating to Effluent Limitations). Existing permits may be renewed for the same discharge volumes and with the same conditions and authorizations specified in the permit unless the facility becomes non- compliant, as defined in Chapter 70 of this title (relating to Enforcement). (c) Discharge upstream from the recharge zone. (1) All new or increased discharges of treated wastewater into or adjacent to water in the state, other than industrial wastewater discharges, within zero to five miles upstream from the recharge zone, at a minimum, shall achieve the following level of effluent treatment: (A) five milligrams per liter of carbonaceous biochemical oxygen demand, based on a 30-day average; (B) five milligrams per liter of total suspended solids, based on a 30-day average; (C) two milligrams per liter of ammonia nitrogen, based on a 30-day average; and (D) one milligram per liter of phosphorus, based on a 30-day average. (2) All new or increased discharges into or adjacent to water in the state, other than industrial wastewater discharges, more than five miles but within ten miles upstream from the recharge zone and any other discharges that the agency determines may affect the Edwards Aquifer, at a minimum, must achieve the level of effluent treatment for 2N based on a 30-day average as set out in Table 1 of Chapter 309 of this title. More stringent treatment or more frequent monitoring may be required on a case-by-case basis. (3) All discharges, other than industrial wastewater discharges, more than five (5) miles upstream from the recharge zone which enter the main stem or a tributary of Segment 1428 of the Colorado River, or Segment 1427, main stem Onion Creek, or a tributary of Onion Creek must comply with sec.311.43 of this title (relating to Effluent Requirements for All Tributaries of Segment 1428 of the Colorado River and Segment 1427, Onion Creek, and Its Tributaries, of the Colorado River Basin), and to sec.311.44 of this title (relating to Disinfection). More stringent treatment or more frequent monitoring may be required on a case-by-case basis. (4) Any existing permitted industrial wastewater discharges within zero to ten (0 to 10) miles upstream of the recharge zone must, at all times, discharge effluent in accordance with permitted limits. Any application for new industrial wastewater discharge permits for facilities zero to ten (0 to 10) miles upstream of the recharge zone will be considered on a case-by-case basis, in accordance with appropriate discharge limits applicable to that industrial activity and with consideration of its proximity to the recharge zone. sec.213.7. Plugging of Abandoned Wells. All identified abandoned water wells, including injection, dewatering, and monitoring wells must be plugged pursuant to requirements under Chapter 238 of this title (relating to Water Well Drillers) and all other locally applicable rules, as appropriate. sec.213.9. Exceptions. (a) Granting of exceptions. Exceptions to any substantive provision of this chapter related to the protection of water quality may be granted by the executive director if the requestor can demonstrate equivalent water quality protection for the Edwards Aquifer. Requests for exceptions will be reviewed by the executive director on a case-by-case basis. Prior approval under this section must be obtained for the exception to be authorized. (b) Procedure for requesting an exception. A person requesting an exception to the provisions of this chapter relating to the protection of water quality must file an original and three copies of a written request with the executive director at the appropriate regional office stating in detail: (1) the name, address, and telephone numbers of the requestor; (2) site and project name and location; (3) the nature of the exception requested; (4) the justification for granting the exception as described in (a) of this section; and (5) any other pertinent information that the executive director requests. sec.213.12. Application Fees. The person submitting an application for approval or modification of any plan under this chapter must pay an application fee in the amount set forth in sec.213.14 of this title (relating to Fee Schedule). The fee is due and payable at the time the application is filed. The fee must be sent to the appropriate regional office or the cashier in the Austin Office of the agency, accompanied by an Edwards Aquifer Fee Application Form, provided by the executive director. Application fees must be paid by check or money order, payable to the "Texas Natural Resource Conservation Commission". If the application fee is not submitted in the correct amount, the executive director is not required to consider the application until the correct fee is submitted. sec.213.13. Fees Related to Requests for Extensions. The person submitting an application for an extension of an approval of any plan under this chapter must pay $100 for each extension request. The fee is due and payable at the time the extension request is filed, and should be submitted as described in sec.213.12 of this title (relating to Application Fees). If the extension fee is not submitted in the correct amount, the executive director is not required to consider the extension request until the correct fee is submitted. The extension request must be submitted to the appropriate regional office and must include a copy of the Edwards Aquifer protection plan and approval letter that is the subject of the extension request. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1996. TRD-9617718 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 27, 1996 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 CHAPTER 313. Edwards Aquifer The Texas Natural Resource Conservation Commission (commission) adopts the repeal of sec.sec.313.1-313.27, concerning the Edwards Aquifer, without changes to the proposed text as published in the July 16, 1996, issue of the Texas Register (21 TexReg 6611). EXPLANATION OF ADOPTED RULE Chapter 313 is repealed because the Edwards Aquifer rules are relocated in new Chapter 213 in concurrent rulemaking. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that assessment. The specific purpose of the rule is to regulate activities having the potential for causing pollution of the Edwards Aquifer. The rule will substantially advance this specific purpose by clarifying the procedures and criteria to be used by the commission in the review and approval of Edwards Aquifer plans for regulated activities under this section. Promulgation and enforcement of this rule could affect private real property which is the subject of the rule. However, there are exceptions to the application of Chapter 2007 of the Texas Government Code. One exception exists since the possibility of degradation to the quality of the water supply presents a real and substantial threat to public health and safety (see Texas Government Code sec.2007.003(b)(13)). The rule will significantly contribute to the prevention of this threat. The Edwards Aquifer is the sole or primary source of water for over 1.5 million people. To the extent this rule regulates activities which have the potential for causing significant pollution of the Edwards Aquifer over the recharge and transition zones, it significantly advances health and safety. This rule is necessary to carry out the stated authority of the commission to protect human health and the environment. Additionally, regardless of the applicability of sec.2007.003(b)(13) of the Act, sec.2.007.003(c) also applies to this rule. Subsection (c) exempts the enforcement or implementation of a statute, ordinance, order, rule, regulation, requirement, resolution, policy, guideline, or similar measure that was in effect September 1, 1995, and that prevents the pollution of a reservoir or an aquifer designated as a "sole source" aquifer. This exception applies to the enforcement or implementation of the entire rule even though only part of the Edwards has been designated as a sole source aquifer (See 40 FedReg 58344 (1975) and 53 FedReg 20897 (1988)). Current Chapter 313 rules regulating activities over the recharge or transition zones of the Edwards Aquifer have been in effect since March 1990. The activities addressed by the rule are those that may pose a threat to water quality. This rule specifically applies to the Edwards Aquifer and is not intended to be applied to any other aquifers in the state of Texas. Unless otherwise provided under this chapter, the owner of an existing or proposed site such as a residential or commercial development, sewage collection system, or aboveground storage tank facility for static hydrocarbons or hazardous substance, who proposes new or additional regulated activities under this chapter, must file all appropriate applications with the executive director for approval. Changes in the rule would prohibit Type I, II or III municipal solid waste disposal facilities to be located over the recharge zone. However, there are no known permitted or Type I, II or III municipal solid waste facilities currently located within the recharge or transition zones of the aquifer. Generally, the topography, availability of soil liner materials, and geologic factors are unsuitable and uneconomical for locating municipal solid waste landfills on the recharge zone. Other activities with high potential for pollution, including new confined animal feeding operations and disposal of hazardous waste, are already prohibited under the existing Edwards Aquifer rule. SUBCHAPTER A. Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis and Williamson Counties 30 TAC sec.sec.313.1-313.6, sec.sec.313.8-313.15 STATUTORY AUTHORITY The sections are repealed under Texas Water Code, sec.sec.5.103, 5.105, 26.011, 26.341 and Texas Health and Safety Code, sec.sec.361.024 and 366.012, which provides the commission with the authority to promulgate rules necessary for the exercise of its jurisdiction and powers provided by the Codes and other laws. Texas Water Code sec.26.046 which require the commission to hold public hearing to receive evidence form the public on actions the commission should take to protection the Edwards Aquifer from pollution and sec.26.0461 which allows the commission to impose fees for processing plans or amendments that are subject to review or approval under the commissions' Edwards Aquifer rules, sec.26.121 prohibiting unauthorized discharges, and sec.28.011 which provides for the commission to make and enforce rules and regulations for the protection and preservation of the quality of underground water. The repeals are adopted under the Texas Water Code, sec.sec.5.103, 5.105, 26.011, 26.046, and 28.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties as provided by the Code and other state law and under the Texas Water Code, sec.26.0461, which provides the commission with the authority to impose fees for the filing of certain plans subject to review by the agency under its rule for the protection of the Edwards Aquifer. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 6, 1996. TRD-9617719 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 27, 1996 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER B. Application Requirements and Processing Fees For Approval of Plans and Amendments 30 TAC sec.sec.313.21-313.27 These repeals are adopted under the Texas Water Code, sec.sec.5.103, 5.105, 26.011, 26.046, and 28.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties as provided by the Code and other state law and under the Texas Water Code, sec.26.0461, which provides the commission with the authority to impose fees for the filing of certain plans subject to review by the agency under its rule for the protection of the Edwards Aquifer. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 25, 1996. TRD-9617720 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 27, 1996 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 CHAPTER 327.Spill Prevention and Control Spill Reporting 30 TAC sec.327.1, sec.327.5 The commission adopts amendments to sec. 327.1 and sec.327.5, concerning spill prevention and control. Section 327.1 is adopted with changes to the proposed text as published in the July 16, 1996, issue of the Texas Register (21 TexReg 6612). Section 327.5 is adopted without changes and will not be republished. BRIEF EXPLANATION OF ADOPTION. On April 24, 1996, the commission adopted new rules that establish reporting and response action requirements for discharges or spills of hazardous substances, oil, used oil, petroleum product, industrial solid waste, and other substances. The new rules are codified as 30 TAC sec.327.1 and sec.327.5 and were published in the May 14, 1996, issue of the Texas Register (21 TexReg 4228), and became effective May 23, 1996. Section 327.1 of the new rules establishes applicability, and sec.327.1(b) explicitly identifies those discharges or spills that are not subject to the new rules. Section 327.5 sets forth actions required by the responsible party in the event of an unauthorized spill or discharge, and sec.327.5(c) requires a follow-up report not later than 30 days following discovery of the spill or discharge. The amendment to sec.327.1 changes sec.327.1(b)(9) which states that Chapter 327 does not apply to discharges or spills occurring during the normal course of transportation about which carriers are required to give notice and report under United States Department of Transportation (U.S. DOT) regulations in 49 Code of Federal Regulations (CFR) sec.171.15 and sec.171.16. Paragraph 327.1(b)(9) is amended to remove the exemption for all transportation except rail transportation. Additionally, to ensure consistency with U.S. DOT regulations concerning hazardous materials, the commission is amending sec.327.5(c) to not require the 30-day written follow-up for spills or discharges reported to U.S. DOT under 49 CFR sec.171.15 and sec.171.16. TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for these rules under Texas Government Code Annotated sec.2007.043. The following is a summary of that assessment. The purpose of the spill rules is to clarify the reporting requirements in the Texas Water Code sec.26.039, and achieve the policy stated in the Texas Water Code, Texas Hazardous Substances Spill Prevention and Control Act sec.26.262, which is to prevent the discharge or spill of hazardous substances into the waters in the state and to cause the removal of discharges or spills without undue delay. The rule substantially advances this purpose by establishing clear reporting and response action guidelines, which should improve the timeliness, adequacy, coordination, efficiency, and effectiveness of responses to discharges or spills subject to the commission's regulatory jurisdiction. The changes to this rule further the purpose of the rule by requiring most spills in transportation to be reported and responded to. Promulgation and enforcement of these changes will not burden private real property that is the subject of the rules, because the rules just establish reporting requirements for unauthorized spills or discharges. Also, the following exceptions to the application of the Texas Government Code Chapter 2007 listed in Texas Government Code sec.2007.003(b) apply to these rules: this section is taken in response to a real and substantial threat to public health and safety; the action significantly advances this health and safety purpose; and the action imposes no greater burden than is necessary to achieve the health and safety purpose. HEARINGS AND COMMENTERS. The commission did not hold a public hearing on the proposed rule. Written comments were submitted by the following persons during the public comment period: Burlington Northern Santa Fe (BNSF); Texas Chemical Council (TCC); and Union Pacific Railroad Company (UPRC). BNSF and UPRC opposed the proposed amendment, and BNSF supported UPRC's comments. TCC did not generally support or oppose revisions, but requested clarification on notification. ANALYSIS OF TESTIMONY. TCC requested general clarification that Chapter 327 is satisfied by reporting spills to a 911 telephone number, Texas Department of Public Safety, city or county emergency response organizations, or local law enforcement. The commission disagrees with this interpretation. The current rules provide three specific methods of reporting: by calling the 1-800 number, or by calling, faxing, or visiting the Texas Natural Resource Conservation Commission (TNRCC) central or regional offices. No other methods were proposed in this rulemaking. Thus, the commission cannot change the rules to allow reporting to other entities. UPRC and BNSF asserted that the Hazardous Materials Transportation Act (HMTA) preempts the commission from requiring reporting of hazardous materials spills from transporters. The commission disagrees with UPRC and BNSF with regard to initial notification. Section 327.1, will no longer exempt spills of hazardous substances that are reported to the U.S. DOT under 49 CFR sec.171.15 and sec.171.16, because those regulations require immediate reporting only for spills of extremely hazardous substances. The commission is responsible for ensuring that responses to all spills are timely and properly conducted. Transportation spills are, for the most part, in areas accessible to the public. Additionally, those spills can flow into waters in the state through conduits such as storm drainage systems. Thus, the commission considers timely reporting of all reportable quantity spills or discharges to be critical. After reviewing the U.S. DOT regulations and inconsistency rulings on incident and spill reporting, the commission has determined that the initial notification required by sec.327.3(b) can be required for interstate transporters. The U.S. DOT, in several inconsistency rulings, has recognized the authority of states to require immediate reporting of incidents involving hazardous substances to support state emergency response. Inconsistency Ruling 2 (IR-2), 44 FedReg 75566 (December 20, 1979); appeal of IR-2, 45 FedReg 71881 (October 30, 1980), correction to IR-2, 45 FedReg 76838 (November 20, 1980); affirmed in National Tank Truck Carriers v. Burke, 535 F.Supp. 509 (D.R.I. 1982), aff'd 698 F.2d 559 (1st Cir. 1983); Inconsistency Ruling 3 (IR-3), 46 FedReg 18918 (March 26, 1981); appeal of IR-3, 47 FedReg 18457 (April 29, 1982); Inconsistency Ruling 28 (IR-28), 55 FedReg 8884 (March 8, 1990); appeal of IR-28 dism'd, 57 FedReg 41165 (September 9, 1992); Inconsistency Ruling 31 (IR-31), 55 FedReg 25572 (June 21, 1990); appeal of IR-31 dism'd, 57 FedReg 41165 (September 9, 1992); Inconsistency Ruling 32 (IR-32), 55 FedReg 36736 (September 6, 1990); appeal of IR-32 dism'd, 57 Fed Reg 41165 (September 9, 1992). However, the commission does agree with the commenters that sec.327.5(c), which addresses the 30-day follow-up to the TNRCC regional manager, may be inconsistent with U.S. DOT's required 30-day written incident notification. See IR-2, Id.; IR-3, Id., IR-31, Id. Therefore, sec.327.5(c) does not apply to spills or discharges of hazardous substances for which written reports are filed under 49 CFR 171.16. U.S. DOT's 30-day report includes notice of the incident and a description of the response actions. The commission cannot require interstate transporters reporting under 49 CFR sec.171.16 to submit written incident reports to the TNRCC regional manager; however, the executive director will request copies from the U.S. DOT. The commission emphasizes that this only applies to those spills for which a written report is filed under 49 CFR sec.171.16. All other transportation spills are subject to all requirements of Chapter 327. Second, UPRC and BNSF claim that the commission is improperly attempting to expand the definition of "hazardous materials." They commented that the HMTA preempts the commission from requiring notice of transportation spills because the commission has expanded the definition of hazardous materials. Specifically, BNSF and UPRC suggested that by regulating "other substances," the commission is expanding the definition of "hazardous material." The commenters also asserted that the inclusion of any substance "designated by the commission," in the definition of hazardous substance in Chapter 327 expands the definition of hazardous materials. The commission disagrees that it is expanding the definition of "hazardous material." First, the commission is not asserting that other substances are hazardous materials. Rather, these substances are regulated under the Texas Water Code sec.26.039, which requires reporting of spills of other substances that cause pollution of waters in the state. This is not a declaration that these substances are hazardous materials. Second, the commission has not expanded the definition of hazardous materials. The only substances designated by the commission as hazardous substances are those designated by the United States Environmental Protection Agency under Comprehensive Environmental Responsibility, Compensation and Liability Act and the Clean Water Act. These are federal definitions. The commission has not designated any materials not already designated by federal law. Thus, the commission disagrees with the commenters and believes that the HMTA does not preempt these rules. BNSF and UPRC commented that the Federal Railroad Safety Act (FRSA) preempts the commission from requiring railroads to report spills. The commission agrees that preemption under the FRSA is much broader than under the HMTA and, thus, will continue to exempt railroads from the spill reporting requirements of this chapter. STATEMENT OF STATUTORY AUTHORITY. The amendments are adopted under Texas Water Code sec.5.103, which provides the commission with the authority to adopt any regulation necessary to carry out its powers and duties under the Texas Water Code and other laws of this state, and Texas Water Code sec.26.264, which provides the commission with the authority to issue rules necessary and convenient to carry out the purposes of Texas Water Code, Chapter 26, Subchapter G. These amendments are also adopted under Texas Water Code sec.26.039, which authorizes the commission to issue reasonable rules establishing safety and preventive measures concerning activities that are inherently or potentially capable of causing or resulting in the accidental discharge or spillage of waste or other substances and which pose serious or significant threats of pollution. Further, they are adopted under Texas Health and Safety Code, Solid Waste Disposal Act, sec. 361.024, which authorizes the commission to adopt and promulgate rules consistent with the general intent and purposes of the Act and to establish minimum standards of operation for all aspects of the management and control of municipal hazardous waste and industrial solid waste. sec.327.1.Applicability. (a) (No change.) (b) This chapter does not apply to: (1)-(8) (No change.) (9) discharges or spills occurring during the normal course of rail transportation. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5*, 1996. TRD-9617676 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 26, 1996 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-6087 CHAPTER 334. Underground and Aboveground Storage Tanks The commission adopts amendments to sec.sec.334.481, 334.482, and 334.484; the repeal of sec.sec.334.485-334.510; and new sec.sec.334.485-334.508, concerning Underground and Aboveground Storage Tanks. Sections 334.484 and 334.508 are adopted with changes to the proposed text as published in the July 26, 1996, issue of the Texas Register (21 TexReg 6974). Sections 334.481, 334.482, the repeals, and new sec.sec.334.485-334.507 are adopted without changes and will not be republished. Section 334.509 is being withdrawn by the commission. EXPLANATION OF ADOPTED RULES. The new rules are adopted to provide: terminology updates; an executive director variance; denial, suspension, and revocation of registrations; new renewal of registration provisions; an exemption from the requirements of this chapter for petroleum contaminated soil treatment facilities located at municipal landfills; new notice/public meeting requirements; a change to the spill reporting requirement; and movement of general financial assurance requirements to a new chapter. The revisions to sec.334.508 added a missing but necessary cross-reference to 30 Texas Administrative Code (TAC) Chapter 37, Subchapter B, sec.37.131, concerning Annual Inflation Adjustments to Closure Cost Estimates. Other administrative corrections were also made. Section 334.484 was amended to add a new subsection (h), which allows the applicant or a person affected to file a motion for reconsideration of an executive director's final decision to approve or deny a petroleum contaminated soil treatment facility application for registration. Section 334.509 is withdrawn because it is redundant to sec.335.508(i). TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for this chapter pursuant to Texas Government Code, sec.2007.043. The following is a summary of that assessment. The purposes of the amendments, repeals, and new sections are to: add a provision for an executive director granted variance; add provisions for denial, suspension, revocation, and renewal of registration; add an exemption from regulation under this chapter (concerning Underground and Aboveground Storage Tanks) for petroleum contaminated soil treatment facilities located at municipal landfills and registered under 30 TAC Chapter 330 to eliminate dual regulation of these facilities; change a provision for notice to provide public opportunity to comment on a registration and request a public meeting; allow a registrant to hold a public meeting only when requested by the executive director; allow spill reporting within 24 hours of "discovery" instead of within 24 hours of "occurrence"; and movement of financial assurance requirements to new Chapter 37, concerning general financial assurance requirements. The rules substantially advance these specific purposes by amending this chapter (concerning Petroleum Substance Waste). Promulgation and enforcement of these rules will not affect private real property, because the amendments merely provide more efficient regulation of petroleum contaminated soil treatment and do not affect property values. HEARING AND COMMENTERS. A public hearing was not requested or held. Written comments were received from two commenters. Browning-Ferris Industries, Inc., supported the rules as proposed. Exxon Baytown Refinery commented that: "These regulations appear to require manifesting of petroleum contaminated soil without regard to Total Petroleum Hydrocarbon (TPH) and/or Class II levels. We believe the current management requirements for Class II material which does not require manifesting are adequate and do not require changing at this time." 30 TAC Chapter 335 (regarding Industrial Solid Waste and Municipal Hazardous Waste) does not require manifesting of industrial Class II waste, which has no significant environmental risk. However, Chapter 334, Subchapter K (regarding Storage, Treatment, and Reuse Procedures for Petroleum-Substance Contaminated Waste) has always required manifesting of petroleum contaminated soil without regard to Total Petroleum Hydrocarbon (TPH) levels. Therefore, the manifesting requirement is not a new requirement added by these rule amendments. The commenter's Class II waste remarks relate to Chapter 335 requirements that do not apply to petroleum contaminated soils from leaking petroleum substance storage tanks. Discussions with the commenter indicate that the company would like to see the new Texas Risk Reduction Rule address soil criteria in a consistent manner for all waste programs. A second Concept Document on the Texas Risk Reduction Program will be published and opened to public comment. The Concept Document will be addressing health-based risk assessment and not soil reuse and waste management issues directly. The commission has made no change to the current rules in response to these comments. Exxon Baytown Refinery also commented: "The use of petroleum contaminated soil as an ingredient in cold and hot mix asphalt has limitations on Benzene, Toluene, Ethyl benzene, and Xylene (BTEX) of 0.5 mg/kg for each constituent. Similarly the use of this material as a road base covered by asphalt has proposed BTEX limits of 0.5 mg/kg and a proposed TPH limit of 500 mg/kg. Finally the use of this material as a road base or parking lot stabilized base has a proposed TPH limit of 200 mg/kg. In all cases the BTEX levels specified are less than levels specified in the Texas Risk Reduction Standards (RRS) for residential areas. In addition, the TPH levels that are specified appear to have been set arbitrarily without any scientific basis for the limitation level. We believe that rather than set arbitrary levels, a risk reduction approach using sound science should be used to establish permissible levels. We also believe that it is appropriate to integrate these reuse levels into the "Texas Risk Reduction Program" concept paper which is currently under development by TNRCC staff." The commenter further states: "Finally, these rules propose that petroleum contaminated soil be considered clean with levels of less than 0.5 mg/kg for each BTEX constituent and less than 10 mg/kg for TPH. Again these levels appear to be arbitrarily low with no basis as to why these numbers are proposed. Our comments relative to reuse are also applicable here." The commission's intention is to apply the new risk rule that results from the Texas Risk Reduction Program concept papers to the Petroleum Storage Tank Program. The actual risk should be determined by the generator and end user of the waste on a case-by-case site specific basis as outlined in the final risk reduction rules when they are promulgated. The commission currently applies health-based risk levels wherever their application is appropriate. Section 334.503(c)(3)(F) and (G) currently allows the generator to seek authorization from the executive director for alternate contaminant levels. Risk-based alternate contaminant levels are currently approved wherever valid. The commission has made no change to the current rules in response to these comments. SUBCHAPTER . Storage, Treatment, and Reuse Procedures for Petroleum-Substance Contaminated Soil 30 TAC sec.sec.334.481, 334.482, 334.484 STATUTORY AUTHORITY. The amendments and new sections are adopted under Texas Water Code, Chapter 26, Subchapter I, sec.sec.26.341-26.363, which provides the commission with the authority to establish a program to regulate underground and aboveground storage tanks and under Texas Water Code, sec.5.103 and sec.5.105, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve any general policy of the commission. sec.334.484. Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities. (a)-(b) (No change.) (c) Any person who intends to store or treat petroleum-substance waste at a Class A or Class B facility after the effective date of this subchapter shall submit an application for registration on a form approved by the executive director. Such person shall submit information to the executive director which is sufficiently detailed and complete to enable the commission to determine whether such storage or treatment is compliant with the terms of this subchapter. Such information shall include, at a minimum: (1)-(10) (No change.) (11) facility closure plan and closure cost estimate (see sec.334.508 of this title (relating to Closure Requirements Applicable to Class A and Class B Facilities)); (12)-(15) (No change.) (16) documentation on the financial assurance required (see sec.334.508 of this title); (17)-(21) (No change.) (d)-(e) (No change.) (f) Any information required by this subsection shall be submitted to the executive director's office in Austin and to the appropriate region office. (g) The registration is not transferable to any other facility or facility owner. Any transfer of ownership shall require a change in registration of the facility. However, a change in registration of a facility shall not relieve the transferor of any liability which may have been incurred prior to the change in registration. (h) The applicant or a person affected may file with the chief clerk of the commission a motion for reconsideration under sec.50.39(b)-(f) of this title (relation to Motion for Reconsideration) of the executive director's final approval or denial of an application for registration. sec.334.508.Closure Requirements Applicable to Class A and Class B Facilities. (a) The facility owner or operator shall submit his closure plan to the executive director for approval with the application for registration. (b) In the closure plan, the facility owner or operator shall address the following objectives and indicate how they will be achieved: (1) removal and decontamination of all structures, equipment, or improvements which will no longer be utilized at the facility; (2) removal and proper disposal or treatment and reuse of all petroleum- substance wastes from the facility; and (3) removal or treatment of any petroleum-substance waste and petroleum- substance waste constituents which exist above the established cleanup levels that have been released from the facility into the soil, groundwater, or surface water. (c) During the closure period, the facility owner or operator of a petroleum- substance treatment facility shall: (1) continue the contaminant assessment or corrective action at the facility as directed by the executive director; (2) maintain the run-on and run-off control systems required under sec.334.502 of this title (relating to Design and Operating Requirements of Stockpiles and Land Surface Treatment Units); (3) control wind dispersal of particulate matter which may be subject to wind dispersal. (d) When closure is completed, the facility owner or operator shall submit to the executive director for approval certification both by the facility owner or operator and by an independent qualified hydro geologist, geologist, or an independent registered professional engineer, that the facility has been closed in accordance with the specifications in the approved closure plan. (e) The facility owner or operator shall prepare a written estimate, in current dollars, of the cost of closing the facility in accordance with the closure plan as specified in subsections (a) and (b) of this section. The closure cost estimate shall equal the cost of closing at the point in the facility's operating life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan. The closure cost estimate shall be based on the costs to the facility owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary for the facility owner or operator. Notwithstanding other closure costs, such estimate shall also include the costs associated with third party removal, shipment off-site, and treatment or disposal off-site of the following wastes to an authorized storage, treatment, or disposal facility: (1) maximum inventory of wastes possible in storage and/or treatment units; (2) any contaminated soils, groundwater, or surface water generated as a result of releases at the site; (3) wastes generated as a result of closure activities; (4) contaminated storm water or leachate. (f) The closure cost estimate may not incorporate a positive cost that may be realized by the sale of petroleum-substance wastes, facility structures or equipment, land, or other facility assets at the time of partial or final closures rather than or in addition to waste disposal and clean-up costs. The facility owner or operator may also not incorporate a zero cost for petroleum- substance waste that might have economic value rather than the waste disposal cost. (g) The facility owner or operator shall revise the closure cost estimate whenever a change in the closure plan increases the cost of closure. The revised closure cost estimate shall be adjusted for inflation as specified in sec.37.131 of this title (relating to Annual Inflation Adjustments to Closure Cost Estimates). (h) The facility owner or operator shall keep the following at the facility during the operating life of the facility: the latest closure cost estimate prepared in accordance with subsections (e) and (f) of this section and, when this estimate has been adjusted for inflation, the latest adjusted closure cost estimate. (i) For the remaining financial assurance requirements, see Chapter 37, Subchapter K of this title (relating to Financial Assurance Requirements for Class A or B Petroleum-Substance Contaminated Soil Storage, Treatment, or Reuse Facilities). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1996. TRD-9617706 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 27, 1996 Proposal publication date: July 26, 1996 For further information, please call: (512) 239-1966 30 TAC sec.sec.334.485-334.510 The repeals are adopted under Texas Water Code, Chapter 26, Subchapter I, sec.sec.26.341-26.363, which provides the commission with the authority to establish a program to regulate underground and aboveground storage tanks and under Texas Water Code, sec.5.103 and sec.5.105, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve any general policy of the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1996. TRD-9617707 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: December 27, 1996 Proposal publication date: July 26, 1996 For further information, please call: (512) 239-1966 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART III. Texas Youth Commission CHAPTER 83. Purchasing Youth Services 37 TAC sec.sec.83.1, 83.3, 83.21, 83.23, 83.25, 83.27, 83.35, 83.37, 83.39, 83.47, 83.49, The Texas Youth Commission (TYC) adopts new sec.sec.83.1, 83.3, 83.21, 83.23, 83.25, 83.27, 83.35, 83.37, 83.39, 83.47, 83.49, concerning contracts for parole supervision service, contracts for airport assistance service, purchasing youth services, rate setting for youth service contracts, request for proposal, start- up funds, quality assurance of contract programs, variance/waiver requests, problem solving mechanism, private sector involvement, and admission and referral to residential contract programs. The proposed chapter title, Contracted Youth Services, is being adopted and changed to Purchasing Youth Services to more accurately reflect the scope of the chapter as proposed. Sections sec.sec.83.3, 83.25, 83.27 and 83.49 are adopted without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10663). Section sec.sec.83.1, 83.21, 83.23, 83.35, 83.37, 83.39, and 83.47 are adopted with changes. The change to the proposed text of sec.83.1, clarifies that no Texas counties seeking to contract with TYC to provide youth services will be given priority over a private vendor, unless a contract with a private vender has already been executed. Changes in sec.83.21 add criteria for determining whether youth services TYC seeks to purchase require a contract or not. Procedures for purchasing services not requiring a contract have also been added. The title of the section is changed from Contracting for Youth Services to Purchasing Youth Services. The change in sec.83.23 clarifies that no fixed monthly payments for non-residential services will be allowed. Changes in sec.83.35 include the addition of and explanation of the below average finding in evaluating overall performance of a vender from whom TYC is purchasing youth services. The term agents is being changed to providers in referencing the venders. Changes in sec.sec.83.37, 83.39, and 83.47 are simple edits and do not affect the meaning or intent. The justification for the new sections is the streamlining of the rules effecting general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will establish procedures for contracting with TYC to provide services for TYC youth. TYC contracts for airport assistance service for transporting youth between locations, with county probation departments for parole services when cost effective and with private service providers for supervision services including residential services. Generally Requests for Proposals are used to initiate the contracting process. TYC consistently monitors contract providers to assure quality and contract compliance. A system for resolving complaints including appeals of decisions regarding the contracts is provided. No comments were received regarding adoption of the new rules. The new rules are adopted under the Human Resources Code, sec.61.0937, which provides the Texas Youth Commission with the authority to enter into agreements with appropriate public or private agencies for the separate care and treatment of persons subject to the control of the commission. The proposed rules implement the Human Resource Code, sec.61.034. sec.83.1. Contracts for Parole Supervision Service. (a) Purpose. The purpose of this rule is to establish considerations for the Texas Youth Commission (TYC) to contract with Texas counties and private providers for the provision of parole supervision and services. (b) TYC will pursue development of a contract for parole services with a county or private provider when TYC is unable to provide services at an equal or lower cost. (c) Counties and private providers contracting with TYC to provide parole supervision and services for TYC youth returned to the county shall be provided in accordance with established agency policies and rules affecting parole supervision. (d) The following factors shall be considered in contracting for parole supervision and services. (1) Cost of services offered by TYC parole versus that of contracting for services. (2) County requesting a contract shall be given priority over a private provider, unless a private provider contract has already been executed. (3) Budgeted funds (4) Ability of the contractor to provide services (e) TYC shall negotiate the rates paid for parole supervision and services. (f) Contract compliance shall be ensured through a TYC monitoring system. (g) Youth shall neither be placed on contract nor any funds encumbered for parole services prior to the full execution of the contract. sec.83.21. Purchasing Youth Services. (a) Purpose. The purpose of this rule is to establish the basic requirements for purchasing youth services. (b) The Texas Youth Commission (TYC) may purchase from private service providers for residential and nonresidential services to meet the needs of TYC youth as authorized in Human Resources Code sec.61.037. (c) Potential service providers will be identified through a process of initial assessments or Requests for Proposal. (d) Contracts may be for a term up to two years unless otherwise specified in the Request for Proposal process or may be extended based on good cause. (e) Contract compliance and service delivery are ensured through a quality assurance program of monitoring by TYC staff. (f) A youth shall not be placed into a residential program, except on an emergency basis, nor any funds obligated prior to the full execution of the contract. (g) Purchase of services from an individual provider of more than or anticipated to be more than a total of $2,500 during a TYC fiscal year requires a contract for the purchase. Purchase of services anticipated to be less than that amount do not require a contract but may require a bid process. (h) Some non-residential services require a contract, without regard to the total amount of dollars. These services are: (1) Youth advisors; (2) Parole supervision and services, both governmental and non-governmental; (3) Youth Advocate, Inc.; (4) Specialized Aftercare: (A) sex offender; (B) capital offender; (C) chemical dependency; (D) emotionally disturbed. (i) Contracting. (1) Potential service providers will be identified through a process of initial assessments or Requests for Proposal. To contract with TYC, non-residential providers must meet: (A) basic qualifications in accordance with the services to be provided; (B) special requirements set forth by a statement of work; and (C) all requirements in the contract for services. (2) To contract with TYC, residential service providers must meet: (A) requirements of: (i) TYC's Basic Core Standards; or (ii) licensing standards of the Department of Protective and Regulatory Services; or (iii) Texas Department of Mental Health and Mental Retardation Community Standards; or (iv) Texas Commission on Drug and Alcohol Licensing Standards; or (v) Texas Department of Health Standards; or (vi) Texas Rehabilitation Commission Standards; or (vii) local juvenile board certification or Texas Juvenile Probation Commission certification; and (B) special requirements set forth by a statement of work; and (C) all requirements in the contract for services. (j) New Contracts. (1) Providers will be required to submit all information to TYC in writing. (2) New service providers will be assessed for acceptability for contracting based on: (A) agency needs and budget; (B) license or certification; (C) cost; and (D) specific requirements addressed in statement of work. (k) Contract With Existing Service Providers. (1) Residential. Existing contracts shall not be automatically renewed. The performance and service delivery of residential programs having existing contracts will be evaluated in accordance with the criteria as outlined in the Residential Contract Monitoring System Manual. New contracts may be negotiated. (2) Non-residential. Existing contracts shall not be automatically renewed. The performance and service delivery of programs having existing contracts will be reviewed in accordance with the contract expectations. All contracts will be monitored according to schedule. sec.83.23. Rate Setting for Youth Service Contracts. (a) Purpose. The purpose of this rule is to establish the basis on which TYC will set rates of payment for contracted youth services. (b) All rates will be negotiated based on actual costs; or through an appropriate competitive process; or if hourly fees, based on fair, reasonable and consistent rates which are the usual and customary fees for such services and by providers with demonstrated competence and qualifications. (c) Except where payment is fixed, rates and payments for residential services are made on a per day per youth basis for all contract services for each contract cycle. (d) Fixed monthly payments are not made for non-residential services. sec.83.35. Quality Assurance of Contract Programs. (a) Purpose. The purpose of this rule is to establish procedures and sanctions whereby the Texas Youth Commission (TYC) ensures compliance with contract and service delivery requirements by a contract program. (b) Explanation of Terms Used. (1) On-Site Visit - a visit by TYC monitoring staff to a contract program. The visit may or may not be announced. (2) Technical Assistance - the assistance, advice or training that TYC staff offer in areas of contract implementation, performance standards, clarification, problem analysis, staff training, and program implementation. (3) Monitoring - a formal review of the service provider's contract and service delivery. (4) Sanctions - actions that may be taken by TYC to facilitate service provider compliance with TYC stated requirements or deficient service delivery. (5) Evaluation - a process used to measure and evaluate the quality and effectiveness of a service agency and/or a program. (6) Overall Performance Measure Rating - program performance on the four most recent reports. (7) Overall Performance Measure Rating, Below Average - Two or more reports (of the last four) with three or more measures below average. (8) Risk Assessment - a process by which programs are identified by specific risk factors that present the greatest risk to agency resources and responsibility. (c) TYC shall implement a quality assurance process that identifies exceptions and standards and requires corrective action to bring the service providers into compliance with applicable standards. (d) All programs contracting with the TYC shall be monitored and evaluated to ensure contract compliance and service delivery performance. (1) TYC shall establish a monitoring schedule based on risk, for all residential and non-residential programs. The schedule may be shared with service providers. (2) High risk programs shall be monitored more frequently than lower risk programs. (e) TYC may require a contract program to comply with corrective action recommended and to do so within a designated time limit. (f) TYC staff may initiate an appropriate sanction for the performance deficiency and shall communicate such in writing to the service provider. Sanctions may be initiated if the service provider: (1) fails to complete the corrective action specified and no extenuating circumstances exist; or (2) is non-compliant with any area of the contract; or (3) is below average in any single TYC performance measure; or (4) is below average in overall performance measure rating. (g) TYC may impose any of the following sanctions. (1) Minor sanctions: (A) Letter documenting deficiencies, correction action needed, and timetable to program director/executive director; and/or (B) Letter to program director/executive director with copies to the program's board president; and or (C) Conference with the quality assurance administrator. (2) Major sanctions: (A) Moratorium on placements; or (B) Limited contract period; or (C) Removal of youth; or (D) Contract termination. sec.83.37. Variance/Waiver Requests. (a) Purpose. The purpose of this rule is to allow for variances and waivers in contract agreements between TYC and services providers when conditions warrant such changes. (b) Explanation of Terms Used. (1) Variance - permission for the requester to meet the intent of a standard or contractual agreement through some means other than that stated in the standard or the contract. (2) Waiver - permission for the requester to avoid compliance with the stated standard. (c) The Texas Youth Commission may permit variances and waivers of standards in contractual agreements with contract programs under certain conditions. (d) Variance/waivers shall be time limited and may be considered for renewal through a new request. (e) A contract care program administrator may request a variance or waiver by submission of the proper form provided by TYC staff. The request must include the specific desired consideration and documentation supporting the request. The program may be asked to provide additional documentation. (f) The contract provider shall receive in writing a response of approval or disapproval to the request. The provider may be asked to agree to other stipulations. sec.83.39. Problem Solving Mechanism. (a) Purpose. The purpose or this rule is to establish a problem solving mechanism whereby contract service providers and TYC staff may make known and resolve any problems that are detrimental to the provision of contract services for TYC youth. (b) Informal Resolution. Contract service providers and TYC staff will communicate regularly and engage in informal problem solving efforts as a routine measure, thus preventing differences from becoming major problems. When routine measures have been exhausted, TYC staff are encouraged to utilize the mechanism to resolve problems. (c) Formal Resolution. (1) Contract service providers or TYC staff who wish to submit problems for resolution may do so in writing, including all relevant information and a recommended resolution. (2) The statement of problem will be submitted to the TYC contact specialist unless the problem specifically involves the contract specialist, in which case, it will be submitted to the quality assurance administrator. (3) Problems are resolved within ten working days; written responses will be sent to the: (A) individual or program who submitted it; (B) the TYC contact specialist; and (C) the quality assurance administrator. (d) Appeal. (1) Individuals or service providers desiring to appeal the decision may do so within ten days by writing all pertinent information relevant to the appeal to the: (A) quality assurance administrator if the problem was resolved by the TYC contract specialist; or (B) director of contract and support programs if the problem was resolved by the quality assurance administrator. (2) When appealed, the problem shall be resolved within 14 workings days; responses will be sent to: (A) the individual or program who submitted it; (B) the TYC contact specialist; (C) the quality assurance administrator; and (D) the director of contract and support programs. sec.83.47. Private Sector Involvement. (a) Purpose. The purpose of this rule is to provide for private sector involvement in the development of TYC contract program administration operations by encouraging comments and opinions from interested segments of the private sector. (b) TYC quality assurance administrators shall regularly schedule service provider meetings to: (1) obtain input regarding implementing new operations relating to contract services. (2) encourage the private sector to communicate suggestions for improved efficiency and effectiveness of contract operations. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1996. TRD-9617577 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 91.Program Services SUBCHAPTER A.Basic Services 37 TAC sec.sec.91.1, 91.3, 91.5, 91.7, 91.13, 91.15, 91.17, 91.21 The Texas Youth Commission (TYC) adopts new sec.sec.91.1, 91.3, 91.5, 91.7, 91.13, 91.15, 91.17, and 91.21, concerning daily living; living environment; youth personal property; food and nutrition; youth orientation; structured activity/recreation; and moral values, worship and religious education, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10689). New sec.91.5 concerning clothing is adopted with changes. The changes to the proposed text consist of adding references to contract providers so that the section applies to facilities operated by both TYC directly and by those operated under contract with TYC. The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will provide for certain basic services within the TYC system. The daily activities include structured programming including education, dorm cleanup, and basic hygiene. TYC facilities may require youth to wear uniforms during regular routine. Special clothing for temporary use in special events like community service, sports, or work assignments may be issued. Youth are allowed no personal property while in the Marlin Orientation and Assessment Unit. They may be allowed a minimum amount of personal property in less restrictive programs. Property received inappropriately will be returned to the youth's home. Standards are established whereby food services in TYC will comply with federal and local regulations. Each youth receives an orientation to TYC soon after arrival at the first facility and at any subsequent program assignments. Structured activity is scheduled and the schedule made available in each living area. Religious services are made available. Any may be attended by youth on a voluntary basis. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.045, which provides the Texas Youth Commission with the authority to organize a way of life that will meet the spiritual, moral, physical, emotional, intellectual, and social needs of the children under its care as those needs would be met in an adequate home. The proposed rules implement the Human Resource Code, sec.61.034. sec.91.5.Clothing. (a) Purpose. The purpose of this rule is to provide for adequate and appropriate clothing for youth in residential programs. (b) Programs may require all youth in the program to wear uniform clothing in order to ensure a safe and efficient operation and program. (c) Youth will wear clothing issued and required by the agency or contract provider. (d) Clothes shall be appropriate to the season and fit properly. (e) As needed, the program will issue clothing for temporary use in special events such as community employment or service, sports, camping and protective clothing for work activity. (f) Individual programs may allow youth to purchase some personal clothing. (g) Laundry services shall be sufficient to provide clean clothing at least three times per week except clean underwear and socks which shall be provided daily. (h) Clothing will be is disinfected when necessary and before storage of personal items. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617608 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER B.Education Programs 37 TAC sec.sec.91.41, 91.43, 91.45, 91.49 The Texas Youth Commission (TYC) adopts new sec.sec.91.41, 91.43, 91.45, and 91.49, concerning education administration, basic education, career and technology education, and college/technical institute financial assistance. New sec.sec.91.43, 91.45, and 91.49 are adopted without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10692). New sec.91.41 is adopted with changes. The changes to the proposed text consist of clarifying the statement that TYC school schedules ensure that youth attend at least four hours of core curriculum classes. The schedule actually must include a minimum of six hours of instruction, of which four hours must be core curriculum. The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will provide for academic and career technology education in schools conducted on the campuses of each TYC operated institution. Rules require that TEA standards be met. GED preparation classes will be available for qualified youth. Basic education includes reading, language arts, math, science, social studies, computer literacy and prevocational or vocational courses. A limited number of youth who meet criteria may be eligible to receive assistance to attend institutions of higher education or technical institutes in Texas. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to adopt rules for the government of the schools, facilities, and programs under its authority. The proposed rules implement the Human Resource Code, sec.61.034. sec.91.41. Education Administration. (a) Purpose. The purpose of this rule is to establish basic requirements for the administration of educational services consistent with federal and state laws and the educational needs of TYC youth. (b) All youth shall attend school unless staff has approved a youth over the compulsory school attendance age for alternative training or a work program. Youth under the state compulsory school attendance majority age will be enrolled in school. (c) Institutions. (1) TYC schools shall be accredited by the Texas Education Agency (TEA). (2) Educational programs will comply with TEA alternative schools accreditation standards. (3) All youth will be enrolled in an education program. Youth who have completed high school will be in a post high school training/education program or employed full-time. (4) The principal, educational counselor, diagnostician, Reintegration of Offenders - Youth (RIO-Y) Counselor, licensed school psychologist, or qualified teacher will provide educational and vocational counseling to youth. (5) The school schedule will include a minimum of six hours of instruction according to the school calendar established annually by the central office education department. Four of the six hours must be in core curriculum areas. Waivers for less than six hours of school may be granted by the superintendent of education. (6) High school graduation credit classes and GED preparation classes will be available. (7) Schools will provide library services for youth on campus. (8) Schools will use available community resources to provide required specialized education and vocational training instruction/training not available in the institution. (9) Teaching schedule provides a minimum of one hour per day for preparation. (d) Halfway Houses and Contract Programs. (1) Staff will ensure that all community facilities serving TYC youth have access to approved educational services. (2) Staff will ensure that community facilities follow the guidelines established jointly by TYC and TEA for their utilizing public school services. (e) Parole. (1) Youth who have not received a high school diploma or high school equivalency certificate are expected to be enrolled in an education program and attending regularly. (2) Staff will assist youth who have received a high school diploma or high school equivalency certificate in enrolling in college or a post secondary training program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617611 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER C.Youth Employment and Work 37 TAC sec.sec.91.61, 91.63, 91.65 The Texas Youth Commission (TYC) adopts new sec.sec.91.61, 91.63, 91.65, concerning youth employment and work; youth industries program, initial preparation; and payment for youth employment by TYC, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10694). The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will establish guidelines whereby youth may be required to perform certain uncompensated work. Qualified youth may be allowed compensated employment through an approved vocational training program. Qualified youth may be allowed to work in industries programs in the private sector when such programs are developed. No comments were received regarding adoption of the new sections The new sections are adopted under the Human Resources Code, sec.61.121, which provides the Texas Youth Commission with the authority to establish an industries program to provide adequate employment and vocational training for children. The proposed rules implement the Human Resource Code, sec.61.034. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617612 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER D.Health Care Services 37 TAC sec.sec.91.81, 91.83, 91.85, 91.87, 91.87, 91.89, 91.91, 91.93, 91.95, 91.97 The Texas Youth Commission (TYC) adopts new sec.sec.91.81, 91.83, 91.85, 91.87, 91.87, 91.89, 91.91, 91.93, 91.95, and 91.97, concerning medical consent, criteria for health care, medical care, health insurance, suicide alert, psychopharmacotherapy, family planning services, pregnancy and abortion, and acquired immune deficiency syndrome/HIV. Minor edits with no change in meaning have been made in several sections. New sec.sec.91.81, 91.85, 91.89, 91.91, and 91.97 are adopted without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10696). New sec.sec.91.83, 91.93, and 91.95 are adopted with changes. The changes to the proposed text of sec.91.83 consist of clarifying which physician by location, will make medical decisions and allowing for a designee of the executive director for approval for certain medical procedures. The changes to the proposed text of sec.91.93 clarify that family planning education will be made available in TYC operated residential placements. The changes to the proposed text of sec.91.95 clarify that certain limitations set by TYC on medical services apply only to services for which TYC contracts. A Change has been made to eliminate the over age 18 specification in the statement requiring that a TYC youth and/or her parents are financially responsible for any abortion related services they may seek. TYC is not financially responsible regardless of the youth's age. The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new sections will provide for medical and health care procedures for youth in TYC. By law, TYC may consent to certain medical treatment when the person having consent has been notified and has not specifically objected to TYC having consent authority. TYC establishes criteria for care and contracts for services with health care professionals. Efforts are made to utilize third party reimbursement if available. Youth in facilities are provided screening and examinations. Youth who indicate suicidal gestures may be placed on suicide alert by mental health professionals. Family planning education and services may be provided by referral prior to release from the facility. TYC provides for a safe and healthful environment for youth in facilities as it relates to HIV and AIDS within limitations of the law. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.076, which provides the Texas Youth Commission with the authority to provide any medical or psychiatric treatment that is necessary. The proposed rules implement the Human Resource Code, sec.61.034. sec.91.83.Criteria for Health Care. (a) Purpose. The purpose of this rule to establish the criteria for providing medical care to TYC youth while they are under TYC jurisdiction. (b) Explanation of terms used. (1) Responsible Physician - an individual licensed to practice medicine and providing health services to the TYC youth population through a contractual arrangement. (2) Responsible Dentist - an individual licensed to practice dentistry and providing dentistry services to the TYC youth population through a contractual arrangement. (c) The responsible physician or dentist shall have final responsibility for decisions related to medical/dental judgments at the respective facility. (d) The TYC medical director shall establish criteria for providing medical and dental health care to youth under agency jurisdiction. Procedures outside of the criteria for care must be approved by the TYC medical director and the TYC executive director or designee. (e) Criteria for Providing Medical Care. (1) The responsible physician will provide primary medical care according to the following criteria established by the agency medical director: (A) life saving treatment; (B) limb saving treatment; (C) reasonable care to relieve pain; and (D) reasonable care for a degenerative condition. (2) The responsible physician will develop the youth's medical treatment plan. (f) Criteria for Providing Dental Care. (1) The responsible dentist will assure equitable access to basic preventive services and essential treatment procedures based upon the occurrence of disease, significant malfunction or injury. Priority of treatment categories are: (A) emergency/urgent - treatment for conditions which will worsen or become life-threatening or acute without immediate intervention. (B) interceptive - intermediate treatment for asymptomatic advanced hard or soft tissue disease or loss of masticatory function. (C) rehabilitative - definitive treatment for chronic hard or soft tissue disease or loss of masticatory function. (D) elective or special needs. (2) The attending dentist may vary from this prioritization on an individual basis if judged to be necessary for the protection of the youth's overall health. (3) TYC will provide for necessary care to orthodontic braces to prevent injury to the mouth. Maintenance and treatment will be arranged by and paid for by the parent/guardian after notification of TYC policy. TYC staff will assist in making appointments and providing transportation for orthodontic care. sec.91.93.Family Planning Services. (a) Purpose. The purpose of this rule is to establish TYC's role in providing family planning education and services to its youth. (b) Family planning education will be made available to youth in TYC operated residential placements, either on-site or by referral to appropriate community agencies. (c) Family planning services (including provision of contraceptive methods) will be made available to youth in TYC residential placements at the time of their release by referral to appropriate community agencies, if requested by the youth. (d) The TYC staff will act as liaison with community organizations to provide comprehensive family planning services for TYC youth. (e) Physicians paid, either directly or indirectly, by TYC will not provide contraceptives to TYC youth as a family planning service. sec.91.95. Pregnancy and Abortion. (a) Purpose. The purpose of this rule is to establish the agency's role in managing a pregnant youth committed to TYC. New commitment, recommitment, or revocation of a female in her seventh month of pregnancy is not encouraged by TYC. Committing counties are encouraged to make arrangements for the youth's care until delivery of the child. (b) The agency shall provide prenatal care to pregnant youth committed to the TYC. (c) A youth who is committed, recommitted or had parole revoked during pregnancy will be placed appropriate to risk and need as determined by TYC centralized placement. (d) Therapeutic measures may be required in instances of imminent or inevitable abortion, incomplete abortion, or missed abortion. Surgical procedures may be required to terminate the pregnancy to preserve life of the mother. Termination will be allowed as a therapeutic measure when necessary; however, a written documentation of need must be provided by two physicians. Written documentation may be provided by the facility physician and an obstetrician or family practitioner. (e) TYC will neither provide funds for nor allow contract medical providers to perform an induced abortion, solely for the purpose of terminating a normal pregnancy, on any female committed to the TYC. (f) Upon request, TYC personnel may direct a youth requesting abortion services to available resources. The youth or youth's parent/guardian will be responsible for arranging appointments and paying for all services related to the abortion. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617613 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 93.Youth Rights and Remedies 37 TAC sec.sec.93.1, 93.11, 93.31, 93.53 The Texas Youth Commission adopts new sec.sec.93.1, 93.11, 93.31, and 93.53, concerning basic youth rights, access to attorneys and courts, complaint resolution system, and appeal to executive director, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10700). New sec.93.13, use of telephone, is adopted with changes. The change to the proposed text allows for telephone massages to be left by callers rather than staff taking the messages which may occur in TYC facilities having an automated telephone system. New sec.93.33, alleged mistreatment is adopted with changes. The changes to the proposed text add reporting and investigating procedures for alleged exploitation to those already included for alleged abuse and neglect. The changes require that the Texas Department of Protective and Regulatory Services be notified of any allegations of abuse, neglect or exploitation. The justification for the new sections is the streamlining of Texas Youth Commission rules through recodification. The new sections will establish the basic restrictions within which rules made by TYC staff regarding TYC youth must be made. Section 93.1 provides for basic youth rights which are not absolute but may be limited to the extent reasonably necessary for the TYC to discharge its statutory responsibilities with respect to public protection, treatment, and care and supervision. Section 93.11 assures that youth have access to their attorneys or courts through the use of mail, telephone and visitation. Section 93.13 ensures reasonable access of a youth to his or her family by telephone. Section 93.31 provides procedures whereby youth and/or their parents may file complaints about a youth's care and treatment and assured of prompt, reasonable responses. Section 93.33 provides procedures for the protection of youth through the reporting the investigation of all alleged abuse and neglect by TYC and contract employees and volunteers. Section 93.53 provides for TYC youth, their parents, and TYC or contract programs employees to appeal decisions made by employees to the TYC executive director. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rules implement the Human Resource Code, sec.61.034. sec.93.13.Use of Telephone. (a) Purpose. The purpose of this policy is to facilitate TYC youth contact with their families by affording reasonable access and equal opportunity within a facility to use the telephone. (b) Applicability. (1) For rules regarding telephone calls to attorneys and courts, see (GAP) sec.93.11 of this title (relating to Access to Attorneys and Courts). (2) See related (GAP) sec.93.1 of this title (relating to Basic Youth Rights). (c) Calls to attorneys may not be restricted. (d) Youth may place a reasonable number of collect phone calls each month. Calls are restricted to the youth's parents, guardian, family members, approved volunteers or other adult responsible for the youth. (e) Youth may make or receive calls only during hours when they do not interfere with required activities, e.g., school, group meetings. Messages may be left when youth are not available to receive calls. (f) TYC is not obligated to pay for calls by youth. TYC will be responsible for calls by or on behalf of the youth in cases of emergency as approved by the primary service worker (PSW). All out-going calls are to be placed on pay or coinless phones provided for that purpose. (g) Calls placed by youth may be recorded for the purpose of detecting fraudulent telephone calls or possible illegal activity. Youth upon entering the assessment unit and/or other initial placement are to be notified that any call placed by the youth, except calls to the youth's legal counsel, may be recorded. (h) When a youth is found through investigation to have abused telephone privileges by placing fraudulent calls, the PSW may restrict the youth's use of the telephone for a reasonable period of time. sec.93.33.Alleged Mistreatment. (a) Purpose. This chapter should be implemented in a way that best achieves the following purposes: (1) to provide definitions of abuse and neglect of any youth who receives or has received care, treatment or services from a facility, contract program or agent of the Texas Youth Commission (TYC); (2) to provide procedures for the protection of youth through the reporting and investigation of all alleged abuse, neglect, and exploitation by TYC and contract employees and volunteers; and (3) to prescribe principles and methods for the prevention of abuse, neglect, and exploitation. (b) Explanation of terms used. (1) Abuse - an act or omission by any TYC staff member, contract employee or volunteer that endangers or impairs a youth's physical, mental or emotional health and development. Abuse includes the following: (A) mental or emotional injury to the youth that results in an observable and material impairment in the youth's growth, development, or psychological functioning; (B) causing or permitting the youth to be in a situation in which the youth sustains a mental or emotional injury that results in an observable and material impairment in the youth's growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the youth, or the genuine threat of substantial harm from physical injury to the youth, including an injury that is at variance with the history or explanation given and excluding an accident, reasonable discipline, or justified use of force that does not expose the youth to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action by the youth or another person that results in physical injury that results in substantial harm to the youth; (E) sexual conduct harmful to a youth's mental, emotional or physical welfare; (F) failure to make a reasonable effort to prevent sexual contact harmful to a youth; (G) compelling or encouraging the youth to engage in sexual conduct harmful to the youth or others; (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the youth if the person know or should have known that the resulting photograph, film or depiction of the youth is obscene or pornographic. (2) Neglect - an act or omission by any TYC staff member, contract employee or volunteer who is either directly responsible for providing adequate food, clothing, shelter, protection, medical care and supervision, or arranging to have someone else to provide such needs and whose failure to do so, results in harm or the substantial risk of harm. Neglect includes the following: (A) the leaving of a youth in a situation where the youth would be exposed to a substantial risk of harm, without arranging for necessary care for the child, and a demonstration of an intent not to return by a parent, guardian, TYC employee, contract provider or volunteer; (B) the following acts or omissions by any person: (i) placing the youth in or failing to remove the youth from a situation that a reasonable person would realize requires judgment or actions beyond the youth's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the youth; (ii) the failure to seek, obtain, or follow through with medical care for the youth, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the youth; (iii) the failure to provide the youth with food, clothing or shelter necessary to sustain the life or health of the youth, excluding failure caused primarily by financial inability unless relief services had been offered and refused; or (iv) placing a youth in or failing to remove the youth from a situation in which the youth would be exposed to a substantial risk of sexual conduct harmful to the youth; or (v) the failure by the person responsible for the youth's care, custody or welfare to permit the youth to return to the youth's home without arranging for the necessary care for the child after the youth has been absent from the home for any reason, including having been in residential placement, or having run away. (3) Exploitation - an illegal or improper act or process of a TYC or contract employee or volunteer, who uses the resources of the youth for monetary or personal benefit, profit, or gain without the informed consent of the youth. (c) Application. The Texas Youth Commission shall be responsible for investigating allegations of abuse, neglect, and exploitation involving youth served by employees and volunteers in TYC-operated facilities, contracted residential facilities and community corrections. (d) Reporting and Investigation Requirements. (1) Any employee or volunteer who has cause to believe that a youth has been or may be abused, neglected, or exploited shall report the allegation to the local administrator no later than the end of the work shift. (2) Upon receipt of the allegation, the local administrator shall immediately notify the appropriate law enforcement agency when there is cause to believe that a youth has been or may be abused, neglected, or exploited. The Texas Department of Protective and Regulatory Services (DPRS) shall be immediately notified of any allegation of abuse, neglect, or exploitation involving a private residential program licensed by DPRS. However, if DPRS decides not to investigate, TYC shall conduct an investigation. (3) An employee or volunteer accused of mistreatment shall be notified in writing of the allegations prior to the commencement of the investigation. (4) Findings shall be based upon a preponderance of the evidence. A summary of the findings and conclusions shall be provided to the accused employee or volunteer, the youth, and the reporter at the conclusion of the investigation. A written copy of the same shall be given to the accused employee. (5) All allegations of mistreatment are thoroughly investigated, including new allegations that arise during the course of the initial investigation. (6) Each investigator shall submit an accurate and thorough report which indicates he/she has: (A) interviewed witnesses and gathered relevant documents and physical evidence (when necessary); (B) developed a written finding for each allegation based on a preponderance of the evidence, which describes what the investigator believes actually happened during the time mistreatment is alleged to have occurred; and (C) documented a conclusion indicating whether each allegation is confirmed or unconfirmed, and summarized the evidence relied upon to support each conclusion. (7) When necessary, additional staff will be assigned to conduct investigations. Priority will be given to situations threatening the immediate safety and well- being of the youth. (8) The allegation of mistreatment is filed by the facility or program where the alleged incident occurred even though the alleged victim and other witnesses may have moved prior to the filing; (9) The youth rights administrator may aid or assume an investigation at any stage of the investigation process. This shall include enlisting the assistance of additional investigators when all parties are not located in the same place. (e) Appeal to the Executive Director. (1) A youth or someone on the behalf of the youth, may appeal an unsatisfactory decision or lack of response to an allegation of mistreatment that has been assigned a case file number. (2) Appeals shall be handled under the provisions of (GAP) sec.93.53 of this title (relating to Appeal to Executive Director). (f) The TYC Board shall be responsible for: (1) receiving and reviewing complaints about the manner in which investigations have been conducted by the agency; and (2) if necessary, conducting an independent investigation. (3) ensuring that the internal audit department annually assesses the level of risks to clients and the agency represented by the investigation procedure, and audits the procedure(s) as indicated by the level of risk determined. (g) The alleged mistreatment report is confidential and not subject to public release under Chapter 522, Government Code. However, an employee who challenges a disciplinary action of Level 3 or above, which was based on information gathered during an alleged mistreatment investigation, may make a written request for access to such information if it is not otherwise confidential and it has been edited to protect youth confidentiality. The employee may not be given copies of the information but may make notes during inspection. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617622 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 95.Youth Discipline SUBCHAPTER A.Disciplinary Practices 37 TAC sec.sec.95.1, 95.3, 95.5, 95.7, 95.9, 95.11, 95.13 The Texas Youth Commission (TYC) adopts new sec.sec.95.1, 95.3, 95.5, 95.7, 95.9, 95.11, and 95.13, concerning discipline system overview references; rules of conduct, contraband and dress; referral to criminal court; reclassification consequence; parole revocation consequence; disciplinary transfer/assigned minimum length of stay consequence; and one-site disciplinary consequences, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10705). The justification for the new sections is the streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will provide for consequences which are proportionate to the severity and extent of the violation of a rule by a youth in the TYC system. Consequences range from a simple reprimand to having minimum period of time in placement extended and being moved into a placement of greater restriction and/or being referred to criminal court. Due process is provided wherein extenuating circumstances are considered. Corporal punishment, purposeless or degrading work, and denial of the most basic rights as consequences are prohibited. Only staff may impose disciplinary consequences. Criteria for each level of consequence is established in these rules. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to order the child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. The proposed rules implement the Human Resource Code, sec.61.034. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617614 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER B.Due Process Hearings Procedures 37 TAC sec.sec.95.51, 95.53, 95.55, 95.57, 95.71 The Texas Youth Commission (TYC) adopts new sec.sec.95.51, 95.53, 95.55, 95.57, and 95.71, concerning level I hearing procedure, level I hearing by telephone, level II hearing procedure, level III hearing procedure, and mental health status review hearing procedure, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10709). New sec.95.59, concerning level IV hearing procedure is adopted with a change. The change is to reformat the existing text to establish information regarding the hearing decision in a separate subsection (f). The justification for the new sections is streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will The new sections will establish a system of administrative reviews or due process for reviewing facts prior to administering a disciplinary consequence. A level I hearing affords the highest level of process in that the youth is represented by an attorney. Level I hearing is afforded for such consequences as revocation of parole status, reclassification, etc. A mental health status review is used to extend the period of time during which a youth is treated for a mental disturbance. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to order the child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. The proposed rules implement the Human Resource Code, sec.61.034. sec.95.59.Level IV Hearing Procedure. (a) Purpose. The purpose of this rule is to establish a procedure to determine whether justification exists to warrant holding a youth in detention pending a hearing when the hearing cannot be held within ten days of the detention. (b) Applicability. (1) The level I due process procedures referred to herein are found in (GAP) sec.95.51 of this title (relating to Level I Hearing Procedure). (2) The level II due process procedures referred to herein are found in (GAP) sec.95.55 of this title (relating to Level II Hearing Procedure). (c) A detention review hearing procedure (level IV hearing) shall be held to determine whether justification exists to warrant holding a youth in detention pending a hearing when the hearing cannot be held within ten days of the detention. The level IV hearing requirement applies to youth held in: (1) county detention pending a level I or II hearing when the county does not hold a detention hearing; or (2) TYC institutional security unit in lieu of detention in a county facility pending a level I hearing. (d) Decision Maker. A parole supervisor, quality assurance administrator, or an institution superintendent shall appoint a hearing administrator, an impartial decision maker, who schedules the hearing. (e) Detention Review Hearings. (1) The youth has a right and shall be informed of his right to be represented: (A) in a level I hearing, a youth shall be represented by counsel. Counsel is: (i) an attorney obtained by the youth; or (ii) the attorney appointed to represent the youth. (B) in a level II hearing, a youth shall be represented by a youth advocate. (2) The youth may waive the level IV hearing after being advised by an attorney (for level I hearing) or an advocate (for a level II hearing). (3) When a detention review is necessary due to the adjournment of a Level I telephone hearing under (GAP) sec.95.53 of this title (relating to Level I Hearing by Telephone), the hearings examiner may conduct a Level IV hearing following adjournment of the telephone hearing. (4) Hearings may be held by conference call if necessary. (5) The staff responsible for calling for the level I or II hearing must show cause to detain the youth pending the hearing. The attorney or advocate must show cause why the youth should not be detained. (f) The Decision. (1) The decision of the decision maker shall be based on criteria for detaining/extending the stay of the youth. See criteria in (GAP) sec.97.41 of this title (relating to Detention). (2) If criteria are not met, the youth must be released to his assigned location. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617615 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 97.Security and Control SUBCHAPTER A.Security and Control 37 TAC sec.sec.97.1, 97.7, 97.9, 97.11, 97.21, 97.27, 97.29, 97.35, 97.37, 97.39, 97.41 The Texas Youth Commission (TYC) adopts new sec.sec.97.1, 97.7, 97.9, 97.11, 97.21, 97.27, 97.29, 97.35, 97.37, 97.39, and 97.41, concerning facility security, custody and supervision rating, search, disposition of unauthorized items seized, mechanical restraint equipment, riot control, escape/abscondence and apprehension, temporary segregation of youth out of control, security unit, isolation, and detention, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10716). New sec.97.23, use of force, is adopted with a change to the proposed text. The change clarifies that this section does not allow for the use of chemical agents as a use of force. New sec.97.25, use of chemical agents, is adopted with a change to the proposed text. The change consists of stating that one condition for using is when criteria for the use of force has been met rather than simply when "justified". The justification for the new sections is streamlining of Texas Youth Commission rules through recodification. The new sections will provide rules whereby TYC staff may exercise control and in the interest of safety for TYC staff, youth and the public. Rules set limits on ingress and egress of facilities operated by TYC. A rating system is establish is established to regulate the physical restriction placed on youth who may be allowed to leave institution campuses. Staff may search the rooms and property of youth randomly to detect contraband. Unauthorized items seized are disposed of in accordance with Texas law or returned to the youth's parents. Assistance of law enforcement is sought when youth escape an assigned program or abscond from parole supervision. A youth temporary out-of-control may be segregated from the group. For serious rule violations and disturbance a youth may be placed in a special unit with increased security or even be placed in isolation. Youth may, when necessary, be detained in county detention centers or in institution security units as detention centers. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rules implement the Human Resource Code, sec.61.034. sec.97.23.Use of Force. (a) Purpose. The purpose of this rule is to provide: (1) criteria for using physical or mechanical force when necessary to control a volatile situation; and (2) restrictions and guidelines to promote safety of youth and staff. Force is used as a last resort and only when necessary. When use of physical force is necessary, it should be measured and progressive in nature, however, when impractical, the amount and type of force necessary to control violence should be used. Measured and progressive force may be impractical when it would likely result in injury to youth and staff. (b) Applicability. This rule does not allow for the use of chemical agents. See (GAP) sec.97.25 of this title (relating to use of chemical agents). (c) Explanation of Terms Used. (1) Force - Any physical contact exerted upon a person to compel or arrest bodily movement. (2) Physical Restraint - Use of a person's physical exertion to completely or partially constrain another person's bodily movement. (3) Escort - The physical force used to cause the movement of a person from one location to another. (4) Mechanical Restraint - Use of a mechanical device(s) to aid in the restriction of a person's bodily movement. (5) Full Body Restraint - The use of cloth or leather mechanical restraint devices to secure a person on a bed in the security unit, face upward (Permitted only in the TYC institutions and in contract facilities approved by the executive director or designee.) (d) Criteria for Use. Force may be used only as a last resort and only as a control measure to ensure the safety and welfare of youth and staff. The use of force (to restrain or compel movement) shall be limited to instances of: (1) protection of the youth from imminent self-harm; (Including the administration of medical treatment in a situation that is life threatening and/or youth is engaging in imminently serious self-injurious behavior). (2) self-protection from imminent harm. (3) protection of third parties from imminent harm; (including resistance to search for contraband in compliance with (GAP) sec.97.09 of this title (relating to Search). (4) prevention of imminent property damage. (5) prevention of escapes/abscondence or attempted escapes; (including transportation, when circumstances create a risk of escape/abscondence or harm). (6) movement of a referred youth to the security/detention unit or alternative education classroom. A youth may also be moved within the security or detention unit when the youth's behavior is substantially disruptive and the youth refuses to follow a reasonable order of the security/detention staff. (e) Restrictions. (1) Force shall not be used as punishment, discipline, or as a convenience for staff. (2) Staff, not youth, shall be solely responsible for the exercise of force and restraint. (3) Staff shall use the amount and type of force necessary to control the situation except when a staff member is acting alone in which case he/she shall not be expected to use force or restraint when the risk of harm presented by the youth's conduct does not outweigh the possible risk of harm to youth or staff which would likely result if the staff acted alone. (4) When physical or mechanical restraint is employed, staff shall ensure the youth's safety by ensuring adequate respiration and circulation, providing continuous visual supervision, and providing assistance as appropriate until the restraint is terminated. (5) Physical force should be used as a last resort and only when necessary. When use of physical force is necessary, it should be measured and progressive in nature, however, when measured and progressive use is impractical, the amount and type of force necessary to control violence should be used. Physical restraint may be impractical when to do so would likely result in injury to staff. (6) A physical or mechanical restraint, other than during transportation or a riot shall be terminated within a short period of time unless the youth is exhibiting or threatening to continue behaviors which justify the use of restraint. If continued restraint is justified, restraint must be terminated when the youth's behavior ceases to pose a threat or if used during transportation, when the destination is reached. (f) Use of Restraints During Transportation. (1) Transportation by the transportation unit. Mechanical wrist and ankle restraints shall be used routinely during transportation by the transportation unit to prevent escape or violent behavior and to ensure the safety of the youth and the community. (2) Transportation by other than the transportation unit. (A) Mechanical ankle restraints shall be used during transportation when a youth is being transported to a high restriction program. (B) Mechanical wrist restraints may also be used when a youth's behavior prior to or during transportation leads staff to believe the youth is likely to attempt to escape/abscond, engage in violent behavior, or harm himself if not restrained. sec.97.25.Use of Chemical Agents. (a) Purpose: The purpose of this rule is to establish criteria and rules for the use of chemical agents by TYC staff to prevent or control an incident. (b) Applicability: (1) This rule applies to authorized institutions. (2) This rule does not apply to the use of chemical agents by TYC apprehension specialists. See (GAP) sec.97.75 of this title (relating to Peace Officer: Continuum of Force). (c) Criteria For Use. (1) Chemical agents may be used only when: (A) the criteria for use of force has been met in accordance with (GAP) sec.97.23 of this title (relating to Use of Force) and (B) the use of physical restraint, under the circumstances, would likely result in injury to the staff or others; and (C) verbal commands to stop are ineffective or impractical. (2) Chemical agents may not by used when the youth: (A) is physically restrained or otherwise under control; or (B) has been identified as having respiratory problems, diseases, or conditions which would make use of chemical agents dangerous, unless necessary to prevent loss of life or serious bodily injury; or (C) has been assigned to a mental health treatment program or has been identified by mental health professional as having a psychiatric condition or mental health diagnosis that would contraindicate the use of chemical agents until the mental health professional has been given the opportunity to establish control unless it is necessary to prevent loss of life, serious bodily injury. (d) Restrictions. (1) Chemical agents shall not be used as a form of punishment. Employees in violation will be subject to disciplinary action. (2) Chemical agents may be used in TYC operated facilities and only in those facilities individually authorized for use by the executive director. (3) Only TYC staff who have received appropriate training in the use of chemical agents and who have been approved by the facility administrator may use chemical agents. (4) Use of a chemical agent must be approved by the facility administrator or designee prior to application except in an emergency. In an emergency, where prior authorization is not possible, the staff member employing a chemical agent shall justify such use following the action. (5) Immediately following the incident, the medical staff will examine and if necessary, treat youth and staff exposed to the agent. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617616 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER B.Peace Officers 37 TAC sec.sec.97.71, 97.73, 97.75, 97.77 The Texas Youth Commission (TYC) adopts new sec.sec.97.71, 97.73, 97.75, and 97.77, concerning peace officer: commissioning, peace officer: jurisdiction, peace officer: continuum of force, and peace officer: firearms management, without changes to the proposed text as published in the November 1, 1996, issue of the Texas Register (21 TexReg 10802). The justification for the new sections is streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new sections will establish rules whereby TYC will employ and commission peace officers to perform as apprehension specialists for TYC. Apprehension specialists must be licensed by the Texas Commission of Law Enforcement Officers Standards and Education prior to being commissioned as peace officers. Their priority function will be to apprehend TYC youth who have absconded or escaped from facilities. Rules are established for use of force and for the handling of weapons. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.0931 , which provides the Texas Youth Commission with the authority to employ and commission apprehension specialists as peace officers for the purpose of apprehending a child under sec.61.093. The proposed rules implement the Human Resource Code, sec.61.034. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617617 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 99.General Provisions SUBCHAPTER A.Youth Records 37 TAC sec.sec.99.1, 99.9, 99.11, 99.19 The Texas Youth Commission (TYC) adopts new sec.sec.99.1, 99.9, 99.11, and 99.19, concerning confidentiality regarding youth alcohol and drug abuse, access to youth records, youth masterfile records, and youth record disposition, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10722). The justification for the new sections is streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new sections will establish rules whereby information on youth in the TYC system may and may not be made available in compliance with laws effecting confidentiality. TYC complies with Federal rule 42 CFR part 2 regarding release of identity of youth involved in drug abuse and alcohol abuse diagnosis and treatment. TYC complies with state and federal laws which limit access to youth physical records. Section rules require that requests for information be sent to the records custodian. Staff maintain a master file for each youth which consists of a medical and a casework subfile. Master files remain in the custody and control of authorized personnel at all times. Rules establish that a discharged youth's records will be maintained in the Texas Youth Commission youth records repository located in central office for 25 years after discharge. No comments were received regarding adoption of the new rules. The new rules are adopted under the Human Resources Code, sec.61.073, which provides the Texas Youth Commission with the authority to keep written records of all examinations and conclusions based on them and of all orders concerning the disposition or treatment of each child subject to its control. The proposed rules implement the Human Resource Code, sec.61.034. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617618 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER A.Youth Funds 37 TAC sec.99.31, sec.99.33 The Texas Youth Commission (TYC) adopts new sec.99.31 and sec.99.33, concerning youth banking and spending money for released youth, without changes to the proposed text as published in the November 1, 1996), issue of the Texas Register (21 TexReg 10803.) The justification for the new sections is streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new rules will provide for certain minimum banking or student trust fund procedures. Each youth's money is deposited into an individual trust fund. A youth may be allowed to withdraw his funds for limited purposes when the need arises. TYC shall not withdraw money from a youth's trust fund without the youth's consent. Any youth who is returning to his home using public transportation will be given ten dollars cash for expenses during the trip. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.0432, which provides the Texas Youth Commission with the authority to deposit money belonging to a child committed to the commission that is in excess of the amount the commission allows in a child's possession in a trust fund, and sec.61.082, which provides that the commission shall ensure that each child it releases under supervision has money in an amount authorized by the rules of the commission. The proposed rules implement the Human Resource Code, sec.61.034. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617619 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 SUBCHAPTER C.Miscellaneous 37 TAC sec.sec.99.51, 99.67, 99.75 The Texas Youth Commission (TYC) adopts new sec.sec.99.51, 99.67, and 99.75, concerning death of a youth, court ordered child support, and state inscription, without changes to the proposed text as published in the October 29, 1996), issue of the Texas Register (21 TexReg 10723). New sec.99.59, transportation of youth, is adopted with changes. The changes to the proposed text consist of eliminating specific requirements regarding the use of mechanical restraints during transportation and adding a reference to sec.97.23 relating to use of force which more appropriately addresses mechanical restraints. The justification for the new sections is streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new sections will provide procedures for a variety of activities. Section 99.51 establishes notification and investigation responsibilities of TYC staff at the death of a youth who is in either a residential program or at home on parole. Section 99.59 establishes authority and responsibility of the statewide transportation unit to transport youth between TYC facilities and other programs. Section 99.67 provides procedures whereby TYC receives court ordered child support payments for youth committed to the agency's care and deposits these payments in the General Revenue Fund in compliance with the Texas Family Code. Section 99.75 establishes a requirement that state vehicles bear the inscription of the agency with certain exceptions as provided by law. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rules implement the Human Resource Code, sec.61.034. sec.99.59.Transportation of Youth. (a) Purpose. The purpose of this policy is establish a system whereby TYC staff transport youth among assigned placements. (b) The statewide transportation unit, area transportation unit, and individual program staff may transport or coordinate the transportation of Texas Youth Commission (TYC) youth among its facilities and community corrections programs. (c) The statewide transportation unit will provide transportation primarily between programs involving an institution. The unit may provide courtesy transportation and may assist in coordinating transportation of youth between TYC programs not involving an institution, including interstate compact movements, and some new commitments. (d) Counties are responsible for transporting all new commitments to a TYC assessment unit and for providing all transportation necessary to meet requirements of a bench warrant. (e) Use or possession of chemical agents is prohibited during transportation. (f) All use of mechanical restraint during transportation shall be in accordance with (GAP) sec.97.23 of this title (relating to Use of Force). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617620 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 111.Contracting for Services Other Than Youth Services 37 TAC sec.sec.111.1, 111.7, 111.9, 111.21, 111.25, 111.35 The Texas Youth Commission (TYC) adopts new sec.sec.111.1, 111.7, 111.9, 111.21, 111.25, and 111.35, concerning contracting for services, professional and consultant contracts, architect/engineer contracts, training and education contracts, student intern contracts, and contract disputes and protests, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10725). New sec.111.11, construction contracts, is adopted with a change. The change to the proposed text clarifies that the TYC Board's authority for final selection of any general contractor for certain projects applies to contracts exceeding $100,000. The justification for the new sections is to provide a more efficient process whereby entities may contract with TYC. The new sections will provide policy whereby TYC contracts with private and other entities for goods and services other than residential services directly to TYC youth. Section 111.1 provides basic rules consistent with contracting for any type goods and services. Section 111.7 provides the rules consistent with state laws and regulations, for contracting for professional and consultant services. Section 111.9 establishes restrictions within which TYC contracts for architect and engineer services. Section 111.11 provides for construction contracts including notification procedures. Section 111.21 provides for contracts for training services for TYC staff and for education services for qualified TYC youth. Section 111.25 provides for TYC contracting for services of interns which may be compensated. Section 111.35 provides procedures whereby decisions regarding contracts with TYC may be disputed and protested. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rules implement the Human Resource Code, sec.61.034. sec.111.11.Construction Contracts. (a) Purpose. The purpose of this rule is to establish the responsibility and authority of the Texas Youth Commission in the procurement of construction services for the renovation of existing facilities or for the construction of new facilities. (b) Explanation of Terms Used. (1) Construction Contract - the agreement between the owner and contractor to commence and complete certain public works for use and benefit of the Texas Youth Commission as shown in the plans and described in the specifications for such public works project. (2) General Contractor - the individual corporation, company, partnership, firm, or other organization that has contracted to perform the work, under the contract with the State of Texas acting through the Texas Youth Commission, its agents and representatives. (3) Working plans or drawings - one copy of all drawings, specifications, addenda, approved shop drawings and contract modifications maintained by general contractor at the site in good order and marked to record all changes made during construction. (c) Applicability. (1) This rule applies to all construction services procured by TYC for new construction or for renovation of existing facilities. (2) This rule does not apply to construction projects for which the staff has the ability to meet the legal and functional requirements for design and completion of the project or for those projects that do not require working plans or drawings. (d) The Board of the Texas Youth Commission retains the authority and responsibility for the final selection of any general contractor for the construction or oversight of projects undertaken by the agency where the value of the contract exceeds $100,000. (e) The board may contract for construction management services of a private or government entity for the purpose of managing construction projects undertaken by the agency. (f) Construction projects may be undertaken by the agency without complying with this rule if the total cost of the project to the agency is less than $100,000 and if the labor and materials are procured through competitive bidding or if the labor is done with existing staff, or if the project is of such a scope that it does not require the preparation of working plans or drawing, and the project is approved by the executive director. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617623 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 117.Interstate Compact on Juveniles Chapter 37 TAC sec.sec.117.1, 117.3, 117.5, 117.7, 117.9, 117.11, 117.13, 117.15, 117.17, 117.19, 117.21, 117.23, 117.25 The Texas Youth Commission (TYC) adopts new sec.sec.117.1, 117.3, 117.5, 117.7, 117.9, 117.11, 117.13, 117.15, 117.17, 117.19, 117.21, 117.23, and 117.25, concerning cooperative supervision - other states supervising Texas youth (Article VII, NAJCA); exception - emergency home evaluations (Article VII, NAJCA); terminations/discharges (Article VII, NAJCA); cooperative supervision - Texas juvenile probation departments supervising youth from other states (Article VII, NAJCA); voluntary consent to return (Article VI, NAJCA); runaway amendment, non-delinquent only, (Article XVI, NAJCA); existing rights and remedies (Article II, NAJCA); return of runaways (Article IV, NAJCA); return of escapees and absconders (Article V, NAJCA); rendition amendment (Article XVI, NAJCA); detention; and airport surveillance, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10729). Section 117.1, concerning overview of Interstate Compact on Juveniles, is adopted with a change. The change consists of changing the rule name from "Overview" to "Overview of Interstate Compact on Juveniles", for clarification. The justification for the new sections is streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new sections in the entire chapter establish rules and procedures implementing requirements of the Uniform Interstate Compact on Juveniles Articles and the Texas Family Code. The TYC executive director has been appointed by the Governor of Texas as the compact administrator. The sections establish procedures whereby all communication, written and verbal, regarding youth on cooperative supervision, non-delinquent runaways, absconders, and escapees must be conducted with the Texas Interstate Compact on Juveniles office, deputy administrator. Rules and regulations, as promulgated by the national Association of Juvenile Compact Administrators are incorporated in rules in this chapter. No comments were received regarding adoption of the new sections. The new sections are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rules implement the Human Resource Code, sec.61.034. sec.117.1.Overview of Interstate Compact on Juveniles. (a) Purpose. The purpose of this chapter is to establish rules and procedures implementing requirements of the Uniform Interstate Compact on Juveniles Articles, Chapter 60 of the Texas Family Code. (b) Authority. The Executive Director of the Texas Youth Commission is the compact administrator, appointed by the Governor of Texas. The executive director administers the compact through the Interstate Compact on Juveniles office, located in the central office of the Texas Youth Commission under the direction of the Deputy Administrator, Interstate Compact on Juveniles. All communication, written and verbal, regarding youth on cooperative supervision, non-delinquent runaways, absconders, and escapees must be conducted with the Texas Interstate Compact on Juveniles (ICJ) office. Rules and regulations, as promulgated by the national Association of Juvenile Compact Administrators (AJCA) are incorporated in rules of this chapter. (c) Applicability. (1) This chapter does not apply to the placement of a youth at an out-of-state private residential facility whether the youth has been adjudicated or not. Such placements must be made in accordance with the Interstate Compact on Placement of Children (ICPC). (2) Forms referred to herein may be obtained from the Deputy Administrator, Interstate Compact on Juveniles located in the Texas Youth Commission central office, 4900 North Lamar Boulevard, P.O. Box 4260, Austin, Texas 78765. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617621 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 CHAPTER 119.Agreements With Other Agencies 37 TAC sec.119.21, sec.119.23 The Texas Youth Commission (TYC) adopts new sec.119.21 and sec.119.23, concerning county youth placed in TYC by contract and canteen operations, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10734). The justification for the new sections is streamlining of the general public interaction with the Texas Youth Commission as a governmental entity as the agency engages in recodifying rules. The new sections will establish rules whereby other agencies may interact with TYC. Section 119.21 allows for Texas counties to refer and possible place a youth under jurisdiction of the juvenile court in a TYC boot camp or intermediate sanction facility. Procedures for such placement have been reviewed by the Texas Juvenile Probation Commission. In addition to other criteria, actual admittance to a facility will depend on TYC capacity at the time of a request. Section 119.23 requires that the Commission for the Blind be given an option to operate canteen function on the campus of a TYC institution if that program approves that function. No comments were received regarding adoption of the new sections The new sections are adopted under the Human Resources Code, sec.61.091, which provides the Texas Youth Commission with the authority to cooperate with other agencies to make maximum use of existing facilities and personnel of the commission. The proposed rules implement the Human Resource Code, sec.61.034. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617624 Steve Robinson Executive Director Texas Youth Commission Effective date: December 31, 1996 Proposal publication date: October 29, 1996 For further information, please call: (512) 424-6244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 12. Special Nutrition Programs The Texas Department of Human Services (DHS) adopts amendments to sec.sec.12.2, 12.3, 12.5, 12.8, 12.9, 12.15, 12.16, 12.24, 12.25, and 12.115 in its Special Nutrition Programs (SNP) chapter. The amendments to sec.sec.12.3, 12.5, 12.8, 12.9, 12.15, 12.24, and 12.25 are adopted with changes to the proposed text as published in the July 23, 1996, issue of the Texas Register (21 TexReg 6877). The amendments to sec.sec.12.2, 12.16, and 12.115 are adopted without changes to the proposed text and will not be republished. Also in this issue of the Texas Register, DHS has withdrawn from consideration the proposed amendment to sec.12.20. The justification for the amendments is to make improvements in the Child and Adult Care Food Program (CACFP) and to extend the date by which claims must be filed in the CACFP and the Summer Food Service Program (SFSP). The program improvement changes include eligibility and performance standards for day care home sponsors, sanctions for noncompliance with program administrative requirements, and the required submission of data elements by which SNP staff will make a risk analysis of program contractors. The amendments will function by providing increased efficiency and increased accountability for public funds. During the public comment period, DHS received written comments in response to the proposed rules. DHS also received written and oral comments at a public hearing held on October 25, 1996, at the John H. Winters building. Comments were received from Child Care Connection, Inc., Tomorrow's Texans, Inc., Edinburg Child Care, Inc., Kiddies Workshop USA, Inc., Association for Children's Nutritional Growth, Children's Care of Texas, Inc., Nutrition for Children, Inc., Cuidado Nutricional Del Nino, Delight Nutrition, Draughn's Inc., Outreach Services, Inc., El Paso Human Services, Inc., Nutritional Advantage, Inc., Southwest Human Development Services, First Texas Council of Camp Fire, Parent Child Inc., Nutriservice, Inc., Care Network, Texas Sponsors Association, Hi Plains Day Care, and several individuals. A summary of the comments and DHS's responses follow: Comments pertaining to eligibility and performance standards for family day care home (FDCH) sponsors: Board Composition and Personnel Issues: 1) Commenters objected to DHS's micro-management of the program and excessive oversight by DHS in the daily operations of FDCH sponsoring organizations, suggesting that FDCH sponsors be left to manage their programs as they see fit. Commenters stated that requiring organizations to mirror a state agency or other large bureaucracy would diminish their effectiveness. Commenters also objected to any restrictions on nepotism, because such restrictions could eliminate small, family-run organizations. The commenters observed that family members are often a source of qualified, dedicated board members and/or staff. A commenter suggested that the restriction against nepotism should apply to the board, but not to employees. 2) Commenters objected to DHS establishing standards for the composition of FDCH boards, suggesting that the composition of the board be left to their discretion, provided that they meet minimum Internal Revenue Service (IRS) requirements. A commenter stated that it was unacceptable to require boards to review and approve the sponsoring organization's budget. Response: DHS agrees that FDCH sponsoring organizations should have the latitude to develop their administrative structure as it best supports their operation, provided that IRS standards for FDCH sponsoring organizations are met. DHS has modified the proposed rules to require FDCH sponsoring organizations to perform according to IRS standards, with language clarifying that compliance with the standards is mandatory. 3) Commenters stated that the proposed rules discriminate against FDCH sponsoring organizations since there are no like provisions for child and adult day care centers. Response: DHS has focused its efforts for program improvements on FDCH sponsoring organizations because that segment of the program has been documented by state and federal evaluation to be problematic. Recordkeeping and Reporting Requirements: 1) Commenters suggested that DHS's proposal to require the annual submission of each FDCH sponsoring organization's IRS Form 990 is excessive and unnecessary. They recommended that DHS review the document each year when we conduct an administrative review. Response: DHS is not required to conduct annual reviews of sponsoring organizations; therefore DHS is unable to rely on that method to verify tax exempt status. In addition, DHS must verify the tax exempt status of every applicant and organization each year at the time of application. Comments pertaining to sanctions for noncompliance with program administrative requirements include: General Comments: 1) Commenters stated that the proposal lacks basic safeguards, such as technical assistance, opportunity for corrective action, and due process, prior to imposing sanctions. Suggestions included establishing an error rate and considering the sponsor's general compliance before taking adverse action. Specifically, commenters suggested delaying the establishment of a cap on providers and the suspension of advances until the second violation, not suspending provider payments at all, not withholding advances or denying advances at all, ensuring that providers will not be penalized for a FDCH sponsor's violations relating to monitoring and provider training, changing the time frame for conducting follow-up reviews relating to monitoring violations, and allowing a 15-day corrective action period and recovery of administrative funds on the first violation and being more aggressive with other administrative penalties on follow up reviews. Response: DHS agrees that sponsors should receive technical assistance and have the opportunity to take corrective action before a cap is placed on homes and advances are suspended. Therefore, DHS has modified the proposed rules to establish that DHS will cap the number of homes a contractor may sponsor and suspend payment of advances when a follow-up review identifies continued violation of program requirements for monitoring providers, claiming eligible meals for eligible children, providing training, or disbursing provider funds. However, DHS will recover unearned administrative payments based upon findings of program violation in the initial review. DHS also agrees that suspending provider payments based on findings of the follow- up review is not warranted for any of the specified administrative violations. Therefore, DHS has modified the proposed rules to suspend only sponsor's administrative payments; DHS will reimburse FDCH sponsors for meals served by providers. Upon terminating an FDCH sponsor's contract, DHS will approve the transfer of eligible providers to another approved FDCH sponsor. In addition, DHS will follow established procedures concerning requiring, reviewing and responding to corrective action plans. In conducting follow-up reviews the right to appeal will be offered if adverse action is taken and follow up reviews will be conducted as specified in the rules. 2) Commenters expressed that DHS has not shown its ability to provide the necessary training needed to operate the program successfully, and has a history of addressing noncompliances after the fact. Another commenter stated that DHS is taking an adversarial role as it pertains to sponsors, instead of providing technical assistance, training based on individual need, and interpreting and implementing policies properly. Commenters also stated that DHS does not need more rules; instead, DHS needs to look at the rules that already exist, and offer training, a detailed handbook, and strict enforcement of policies. Commenters recommended that DHS not take sanctions against sponsors until it addresses its management and implementation of the program. Commenters suggested that internal procedures should be established to prevent punitive action on minor infractions in monitoring of providers and to clarify for SNP staff the requirements for monitoring. Response: DHS is taking an assertive role in establishing program standards. This proposal does not preclude on-going technical assistance, training, and interpretation of policies. Specific training on the implementation of procedures established in these rules has been planned for all SNP staff. In addition, to ensure cooperative implementation, a CACFP advisory council has been established and had its first meeting in October, 1996. The circumstances under which this penalty will apply are limited to major management responsibilities. DHS will define, for the contractors and staff, areas that require administrative and/or financial penalties and areas that require only corrective action. False Information: 1) Commenters stated that the sanctions for submitting false information do not allow for due process, corrective action, or judicial review and that incorrect implementation of sanctions for submitting false information could cause severe repercussions for sponsors and DHS. Commenters questioned whether the word "knowingly" should effect the immediate termination of a sponsor for submission of false information. Response: CACFP regulations require that sponsors be given "reasonable" opportunity to take corrective action prior to termination. However, USDA has taken the position that there is no reasonable corrective action when information from audit investigation or other outside sources indicates that fraud or the intentional submission of false information has occurred. The sanctions will only be taken against FDCH sponsors where DHS can determine that they knowingly submitted false information. A provision for suspension of program funds, until determination that the sponsor knowingly submitted false information, will be added. Monitoring of Providers: 1) Commenters expressed concern about the ability of large sponsors to comply with the monitoring requirements. Response: All contractors must comply with program rules; however, proposed changes to penalties on the first violation should allow sufficient time for corrective action before a cap is placed on homes or advances are suspended. Claiming Eligible Meals for Eligible Children: 1) Commenters expressed concern with the methodology that DHS uses to select the records to review for claiming eligible meals for eligible children. These commenters are concerned that DHS targets problematic providers. Response: A targeted sample of potentially problematic providers, to ensure that the FDCH sponsors are taking appropriate action, provides the highest degree of safeguard for the integrity of the program and is the best use of administrative funds. 2) Commenters questioned whether the meal disallowance tolerance level applies to all providers or just those providers being reviewed. Response: The 10% error rate is just for those records being reviewed. 3) Commenters recommended that providers with noncompliances noted on enrollment or eligibility forms for some children in care, be paid for all meals for children whose forms contain no errors. They also protested the inability of FDCH sponsors to allow a grace period for providers to complete and return forms. Commenters suggested that FDCH sponsors be paid for administrative reimbursement for providers whose ineligible meals have been paid due to errors on enrollment or eligibility forms. Response: The only change to existing rules is that administrative payments to FDCH sponsors will not be allowed when the FDCH sponsor has submitted claims for ineligible meals. It is not the intent of DHS to deny payment to providers for eligible meals. Providers and FDCH sponsors are both required to provide adequate documentation to ensure that any meal claimed is eligible. Current rules do not allow for a grace period to have forms completed and returned. 4) Commenters stated that the sanctions outlined in the rules for claiming eligible meals for eligible children will adversely impact the livelihood of persons who may not have anything to do with reviewing claims. Response: DHS is sanctioning organizations for failure to perform critical administrative functions. DHS is not sanctioning individuals. Sponsor Training: 1) Commenters requested that the rules concerning FDCH sponsor training include regional meetings at a time and place convenient to the FDCH sponsor, eight weeks advance notice by certified mail, and makeup training sessions. Sanctions should not be taken against FDCH sponsors if DHS cancels scheduled FDCH sponsor training. Response: DHS will make every effort to accommodate FDCH sponsors to the extent possible by making training available at a convenient time and place, with adequate notification, and an alternative to accommodate emergency situations. DHS will not impose sanctions if DHS cancels scheduled FDCH sponsor training. Provider Training: 1) Commenters expressed concern that FDCH sponsors should not be sanctioned for a provider's failure to attend training when the FDCH sponsor has taken the appropriate action and that oversights can sometimes occur. Response: If a provider failed to attend mandated training, the FDCH sponsor will not be sanctioned unless the FDCH sponsor did not take the appropriate actions. DHS recognizes that mistakes can occur; however, DHS has established a system of progressive discipline which allows the FDCH sponsoring organization three opportunities to correct deficiencies prior to contract termination. Fiscal Accountability: 1) Commenters expressed concern that DHS staff and FDCH sponsors may not agree on what is an allowable line item or cost and they need more specificity of unallowable costs. Response: Although allowable costs are specified in federal regulation and operating instructions, DHS agrees that current rules do provide for recovery of administrative funds for unallowable costs. Therefore, further administrative penalty at this point could be considered excessive. Disbursing Provider Funds: 1) Commenters stated that there should be some flexibility for withholding funds from providers if there is an audit dispute, the provider is undergoing an appeal, the provider is receiving corrective action, or the provider is being terminated. Response: Federal guidelines specify that full payment must be made to providers within five working days of receipt of funds from the state agency. DHS will clarify those instances in which it is acceptable to withhold provider funds. Comments pertaining to the required submission of data elements by which SNP staff will make a risk analysis of program contractors: 1) Commenters expressed concern about various data elements DHS was proposing to collect. Commenters stated that the name, address, and telephone number of the assistant caregiver, and social security numbers of providers and children are information that DHS should not collect. Commenters said that social security numbers are confidential information, that it is illegal to require them, and that other data that DHS is proposing to collect is sufficient to analyze program operations. Commenters were concerned that current program forms are not designed to collect some of the data proposed for the system. Additional commenters said that obtaining parents' work telephone numbers will be difficult since some parents are not allowed to receive telephone calls at work or have no telephone at their workplace, and they doubted that data on parents' work telephones, home addresses, and home telephone numbers would be current by the time DHS receives it. Response: The name, address, and telephone number of the assistant caregiver is relevant to program operations and DHS proposes to collect this information. Although collection of social security numbers is legal and does not violate statutes related to confidentiality, DHS is sensitive to concerns over collecting social security numbers for children. DHS has evaluated the data to be collected and determined that sufficient information to analyze program operations will be provided without requiring the collection of social security numbers for participating children; however, DHS proposes to collect social security numbers for providers and proposes to institute the same safeguards for confidentiality afforded to program participants of other DHS programs and applicants for registration or licensure at the Texas Department of Protective and Regulatory Services. DHS will review current required program forms to determine the most expedient method for sponsors to collect data required for the system. Data regarding parents' work telephone numbers and home addresses and telephone numbers is necessary for verifying children's program participation. Most parents whose children are in child care have a telephone number where they can be reached in an emergency; however, sponsors will be required to provide current work telephone numbers only if numbers are available. 2) Comments were received related to the relevancy of some of the data to be collected. Objections included reporting voluminous information on each child which does not relate to quality and quantity of meals consumed, and reporting anticipated monitoring visits. Another commenter viewed the requirement to submit delineated (sic) information as a conflict with the language of the rules stating that DHS may require all or only selected portions of the information. Finally, commenters stated that DHS does not need the additional data being proposed for the risk analysis system because sponsors keep the information in their files and all pertinent information is currently being reported. Response: The data to be collected on children and monitoring reviews is needed to assess whether providers are serving eligible meals to eligible children and that sponsors are complying with monitoring requirements. The proposed rule required information to be submitted in a standard "delimited" file format; it did not specify submittal of "delineated" information. The term "delimited" described the format DHS proposed for submittal of the automated data, not the specific data to be submitted. The Board approved implementation of the risk analysis system to improve program integrity at the sponsor and state level. Sponsors are required to keep certain data as a part of their program records, but only data regarding claims is currently submitted to DHS each month. Gathering statewide data each month through an automated system will provide DHS with comprehensive information to evaluate program performance statewide and target areas where the program is at risk. 3) Comments were received related to the system's software and hardware specifications. Commenters said that submitting data in a standard delimited file format will encumber the process and result in increased costs for sponsors and DHS, and recommended that DHS provide sponsors with a standardized software program to ensure consistency and recommended that modems be installed to retrieve and download data. Response: DHS agrees that the standard delimited file format is not the best format. We will specify that a standard data format be used, which is less cumbersome for data transfer. DHS does not plan to require a standardized software. This allows flexibility for sponsoring organizations to select the process best suited to their organization. DHS does not have plans at this time to implement a system which would provide for the transfer of data from remote sites via modem. 4) Commenters were opposed to the frequency of the data submission, recommending that information be submitted periodically, but not monthly, or through systematic statistical sampling. Response: Monthly submission of management information allows DHS to identify program trends and act in a timely manner to address program issues. Timely action is critical to maintaining program integrity. Delay Implementation: 1) Recommendations were made for delaying implementation of the system. Primarily commenters recommended delay until the changes mandated by Welfare Reform are implemented. Commenters also suggested more realistic timeframes for sponsors who currently have automated systems to change. Response: DHS and sponsors will be making the Welfare Reform changes for eligibility between January, 1997, when USDA releases interim regulations, and July 1, 1997, the date that states must begin operating under the changes. DHS recognizes that the changes in the eligibility process will significantly impact sponsors' and DHS's program operations and the data to be collected and analyzed by the risk analysis system. DHS and sponsors do need adequate time to implement the Welfare Reform changes and make extensive modifications to automated systems. Implementing the Welfare Reform changes at the same time risk analysis is being implemented could seriously jeopardize the integrity of data collected and negatively impact DHS's and sponsors' ability to implement the federally- mandated eligibility changes. Therefore, all current FDCH sponsoring organizations are required to implement DHS rules relating to the collection and submission of specified data not later than September 30, 1997. However, DHS encourages FDCH sponsors to implement the rules beginning September 1, 1997. Opposed to Implementation: 1) Commenters opposed implementation of the risk analysis system because of the negative impact it would have on sponsor and state expenditures, and sponsors' workloads. Commenters also doubted the integrity of the data that will be submitted and stated that collection and reporting will be expensive and time consuming, and will reduce the time needed for quality monitoring. A commenter stated that the integrity of the data would be improved if DHS implemented an independent third party menu validation test to capture the required data, instead of the risk analysis system. Response: Although sponsors may have increased workloads and expenditures during initial implementation of the system, the automation of the data collection will ultimately result in greater efficiency and cost savings for sponsors, and will allow sponsors more time to monitor and train providers. All sponsors' costs for implementing the automated system are reimbursable program costs. The data analysis performed through the risk analysis system is more comprehensive than the data analysis proposed for the third party menu validation system pilot. In response to the above comments, DHS is adopting the following rules changes. In sec.12.3, DHS is deleting the proposed changes contained in subsections (b)- (j) and stipulating that day care home sponsoring organizations must demonstrate their ability to perform according to the specific standards which are consistent with Internal Revenue Service (IRS) guidance and provide a copy of their most recent IRS Form 990 (Return of Organization Exempt From Income Tax) as proof of their current tax-exempt status not less frequently than annually. In sec.12.5, DHS is deleting the proposed changes contained in subsection (b) and establishing performance standards which are consistent with IRS guidance. In sec.12.8, DHS is deleting the statement concerning the stewardship function of family day care home sponsoring organization boards, and stipulating that contractors must implement the financial management system established by DHS and maintain records supporting the financial management system according to this rule. In sec.12.9, DHS is deleting the proposed changes contained in subsections (h)- (aa) and the provision contained in subsection (bb) that DHS may require day care home sponsoring organizations submit to DHS the social security numbers of children participating in the program. DHS is clarifying that DHS may request the social security numbers of providers as well as caregivers that assist the provider in providing child care. In sec.12.24, DHS is deleting the proposed change contained subsection (g) and providing family day care home sponsoring organizations an opportunity to take corrective action before DHS imposes the full force of sanctions and penalties. Additionally, DHS is changing the order of subsections (l) and (m) for clarification. In sec.12.25, DHS is revising subsection (c) to ensure that contractors will be given every reasonable opportunity to correct serious deficiencies in their administration of the program before DHS denies or terminates their agreement. In addition, in sec.12.15(c), DHS is changing the number "30" to "60" to correct a technical error. Child and Adult Care Food Program 40 TAC sec.sec.12.2, 12.3, 12.5, 12.8, 12.9, 12.15, 12.16, 12.24, 12.25 The amendments are 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 amendments implement the Human Resources Code, sec.sec.22.001-22.030 and 33.001-33.024 of the Human Resources Code. sec.12.3. Eligibility of Contractors and Facilities. (a) (No change.) (b) To be eligible to participate in the CACFP as a day care home sponsor, applicants must: (1) provide documentation that verifies that a minimum of 50 registered or licensed day care homes have signed an application and agreement, as specified by the Texas Department of Human Services (DHS), to participate under the contractor's sponsorship. Each day care home must be providing child care to at least one nonresidential child. Day care homes must be eligible to execute a sponsorship agreement in accordance with sec.12.6(f) of this title (relating to Agreement). DHS may approve applications for fewer than 50 day care homes, if the sponsorship of day care homes is an integral but subordinate part of an existing nonprofit or governmental community service provided by the sponsor; (2) demonstrate that the governing authority is aware of the responsibilities and liabilities it accepts by agreeing to participate in the program; (3) submit a comprehensive financial statement showing all expenditures and sources of income to the organization for the three years preceding the year for which application is made. Nongovernmental entities with fewer than three years of administrative and financial history that apply to participate in the CACFP as day care home contractors must submit a performance bond in an amount equal to the value of the contractor's projected annual level of reimbursement as determined by DHS. The performance bond must be obtained from a company designated in United States Treasury Circular 570 as certified to issue bonds for federally funded programs. Contractors required to submit a performance bond as a condition of eligibility for their initial application must submit a performance bond as a condition of eligibility for each contract renewal until relief from the bonding requirement has been granted, and must adjust the amount of the performance bond based on fluctuations in the value of the contract as determined by DHS. Contractors subject to the bonding requirement who have, at the time of application, less than three but more than two years of administrative and financial history, may request relief from the bonding requirement after 12 months of successful program participation. Contractors who have less than two, but more than one year of administrative and financial history, may request relief from the bonding requirement after 24 months of successful program participation. Contractors who have less than one year of administrative and financial history may request relief from the bonding requirement after 36 months of successful program participation. DHS grants relief from the bonding requirement based on the above schedule and the contractor's successful program operation; (4) designate the primary physical location at which they can be contacted, and where all program records will be maintained and essential program management functions will be conducted. Program records must be available to DHS staff during normal business hours. Normal business hours are 8:00 a.m. through 5:00 p.m., Monday through Friday. An appropriate representative of the contractor must be available to DHS staff and providers during normal business hours. Contractors are considered to be available to DHS staff and providers if a representative of the contractor can be contacted by telephone at the primary business location during normal business hours, or if the contractor has established a procedure which allows DHS staff and providers to leave a voice message at the primary business location, and the contractor returns the call not later than 24 hours from the time the voice message is left. Contractors must notify DHS in advance of their intent to change their physical location; (5) maintain a secondary business office physically located in each DHS region in which they sponsor a day care home to conduct program management functions, except that a secondary business location is not required in the DHS region in which a sponsor's primary business office is located. An appropriate representative of the contractor must be available to DHS staff and providers during normal business hours. Normal business hours are 8:00 a.m. through 5:00 p.m., Monday through Friday. Contractors are considered to be available to DHS staff and providers if a representative of the contractor can be contacted by telephone at the secondary business location during normal business hours, or if the contractor has established a procedure which allows DHS staff and providers to leave a voice message at the secondary business location, and the contractor returns the call not later than 24 hours from the time the voice message is left. Contractors must notify DHS in advance of their intent to change a secondary business location; (6) participate in program and program related training deemed reasonable and necessary by DHS; and (7) submit a uniform set of management information each month, as described in sec.12.9 of this title (relating to Reporting and Record Retention), in fixed length, ASCII- Text (Standard Data File) format. (c) Facilities must be licensed or otherwise approved by federal, state, or local authorities. Adult day care centers must be licensed by the Texas Department of Health (TDH), except that receipt of Title XIX funds (Medicaid) constitutes approval for program participation. Child care centers must be licensed or registered by DHS. General Exception: Facilities operated by federal and Indian tribal governments are not required to be licensed or otherwise approved by DHS or TDH. (d) DHS requires contractors to submit as proof of eligibility one or more of the following forms of documentation of tax-exempt status: (1) letter from the IRS notifying the contractor that he has been granted tax- exempt status under the Internal Revenue Code of 1954; (2) proof of participation in another federal program that requires non-profit status; and/or (3) letter from the IRS acknowledging acceptance of the contractor's application for tax-exempt status under the Internal Revenue Code of 1954. (e) To be eligible to participate in the CACFP as a day care home sponsor, contractors must demonstrate their ability to perform according to the standards specified in sec.12.5 (b) of this title (relating to Application for Program Benefits - Contractors). In addition, contractors must provide as proof of their current tax-exempt status not less frequently than annually, a copy of their most recent IRS Form 990 (Return of Organization Exempt From Income Tax) submitted to the Internal Revenue Service. (f) DHS requires applicants/contractors that are proprietary, for-profit entities to submit as proof of eligibility, a letter certifying that at least 25% of the enrollment or licensed capacity of the facility or facilities for which the contractor is making application received benefits under Title XX of the Social Security Act in the month before the month in which the application is submitted. (g) DHS requires contractors to submit copies of a current licensure or registration to operate a day care facility when they: (1) apply to participate in the CACFP; or (2) receive a renewed or amended license or registration. (h) Contractors are ineligible for the CACFP if they have permitted a member of the governing body, an agent, a consultant, or an employee of the contractor to enter the facility when children are present and any of these persons have been convicted of: (1) a felony or misdemeanor classified as an offense against the person or the family, or as public indecency; or (2) a felony violation of any statute intended to control the possession or distribution of a substance included in the Texas Controlled Substances Act. (i) Contractors are ineligible for the CACFP if they have permitted a member of the governing body, an agent, a consultant, or an employee of the contractor to engage in any activity related to the administration of the CACFP and any of these persons have been convicted of a fraudulent activity, including cases in which adjudication is deferred. (j) Contractors are ineligible for the CACFP if they sponsor the participation of a day care home which, after being afforded due process by the contractor, has been terminated for cause, including but not limited to program abuse, deficient program operation, and fraudulent activities, unless DHS has granted prior approval. (k) DHS requires contractors to submit documentation of compliance with the requirements of the Single Audit Act. Contractors must submit as proof of eligibility one or more of the forms of documentation of compliance specified in paragraphs (1)-(3) of this subsection: (1) a copy of an audit for a specific contractor fiscal year which has been determined to meet the requirements of the Single Audit Act; (2) a completed DHS Single Audit Identification Data form containing assurance that the contractor will obtain an acceptable audit which will meet the requirements of the Single Audit Act; or (3) documentation that the contractor is not subject to the Single Audit Act. sec.12.5. Application for Program Benefits - Contractors. (a) (No change.) (b) A sponsoring organization of day care homes must include in its applications for participation in the CACFP, sufficient detail to demonstrate that the organization will operate according to the following standards: (1) the majority of the governing body must be composed of members of the community who are not financially interested in its activities, nor who are related parties. For the purpose of this section: (A) majority means 50% plus one; (B) individuals who are not financially interested in the activities of the organization are individuals other than the employees of the organization or sponsored day care providers; (C) related parties are individuals who are related within the second degree by consanguinity or third degree by affinity to any member of the board of directors or employee of the sponsoring organization; (2) members of the governing body may not vote on decisions relating to their own compensation (or of a related party); (3) decisions about compensation of employees and other parties providing services to the organization must be made by the governing body; (4) no person receiving compensation for services under CACFP may receive compensation for services from any other sponsoring organization; and (5) sponsoring organizations must accept any qualified day care provider, consistent with their capacity to provide services to sponsored providers. (c) Each contractor must submit to DHS as part of its program application the names of all officers, agents, consultants, and other employees of the sponsoring organization involved in any aspect of the Child Care Food Program. (d) If a contractor's application for participation is incomplete, DHS will deny the application if the requested additional information is not submitted to DHS within 30 days of the date of the written request. The contractor may reapply when all required information and documentation is available. (e) To be eligible for start-up funds or expansion funds, contractors that sponsor day care homes must submit an application. DHS approves or denies applications for start-up and expansion funds according to 7 Code of Federal Regulations sec.sec.226.6, 226.12, 226.15, 226.16, and 226.23. (1) Start-up funds are available only to sponsors of day care homes or contractors that are attempting to add day care homes to their operation. (2) Expansion funds are available only to contractors that have sponsored day care homes for at least one year at the time of application and may be used only to expand program operations in low-income and/or rural areas. DHS considers the anticipated amount of expansion funds and alternate sources of funds when evaluating an applicant sponsor's plan for expansion. Contractors that are eligible to receive expansion funds may receive expansion funds only once. Applications for expansion funds must include: (A) an acceptable and realistic plan for recruiting day care homes to participate in the program, including activities which the sponsoring organization will undertake; (B) the amount of expansion funds needed and a budget detailing the costs the organization will incur, document, and claim; (C) the time necessary for the expansion of program operations; and (D) documentation that the expansion area meets the definition of a rural or low- income area. sec.12.8. Financial Management. (a) Contractors must implement the financial management system established by the Texas Department of Human Services (DHS) according to 7 Code of Federal Regulations sec.sec.226.6, 226.7, and 226.11 and maintain records supporting the financial management system according to sec.12.9 of this title (relating to Reporting and Record Retention). (b)-(c) (No change.) sec.12.9. Reporting and Record Retention. (a) The contractor must submit reports and keep financial and supporting documents, statistical records, and any other records of services for which the contractor submits a claim, in the manner and detail prescribed by the Texas Department of Human Services (DHS), including but not limited to, records of their eligibility and application for program participation, and compliance with all requirements relating to: (1) financial management of the program; (2) determination of program participant eligibility; (3) eligibility of meals; (4) licensing or registration of each of their facilities; (5) composition and activities of the governing body; (6) the actions and conduct of employees; (7) personnel documents; (8) procurement; (9) United States Department of Agriculture (USDA) donated commodities; (10) monitoring and reviews, including preapproval visits; (11) training and technical assistance; (12) denials and terminations of facilities; (13) appeals; (14) civil rights; and (15) health, safety, and sanitation standards. (b) Contractors must keep records and documents pertaining to the CACFP for at least three years and 90 days after the termination of the contract period. If any litigation, claim, audit, or investigation involving these records begins before the stipulated time period expires, the contractor must keep the records and documents for not less than three years and 90 days after the termination of the contract period and until all litigation, claims, audits, or investigation findings are resolved. DHS considers the case resolved when a final order is issued in litigation or a written agreement is signed between DHS and the sponsoring organization. (c) The contractor and his facilities must allow DHS, USDA, and Government Accounting Office officials and other officials, determined appropriate by DHS, to inspect facilities and records and to audit, examine, and copy records at a reasonable time. (d) A sponsoring organization with more than one approved facility participating in the program must maintain separate records for each facility or maintain the records in a way that makes the information for each facility easy to identify and retrieve. Organizations must maintain Child and Adult Care Food Program records separately from other program records. (e) Each sponsoring organization must ensure that a daily count of all children in attendance is taken and recorded daily. The organization must ensure that the record includes, at a minimum, the full, proper name of each child in attendance and the total number of children in attendance. (f) Sponsoring organizations must use DHS forms in the administration and operation of the program, unless DHS clearly indicates otherwise. (g) Unless indicated otherwise in sec.12.10(a)-(b) of this title (relating to Procurement Standards), contractors must maintain records according to 7 Code of Federal Regulations sec.sec.226.6, 226.7, 226.10, 226.11, 226.15, 226.16, 226.17, 226.18, 226.19, 226.19a, 226.20, 226.22, and 226.23. (h) Contractors that sponsor day care home providers must submit a uniform set of management information each month. The information must be submitted in fixed-length, ASCII-text (Standard Data File) format. DHS may require all or selected items of the information listed in paragraphs (1)-(4) of this subsection: (1) individual provider information, including: (A) name, address and telephone number of the provider and of caregivers that assist the provider in providing child care; (B) license/registration information; (C) status of participation (active/inactive); (D) social security number of the provider and of caregivers that assist the provider in providing child care; (E) language spoken; (F) approved meal service; (G) approved days of operation; (H) operation of shifts; and (I) contract effective date; (2) provider payment information, including: (A) month and year claimed for payment; (B) payment type - regular or adjusted; (C) amount of claim; (D) date claim was paid; (E) check number of claim payment; (F) total attendance for claim month; (G) names of children in attendance for whom meals were claimed; (H) number of meals, by type of meal, claimed for each child for the claim month; (I) number of meals, by type of meal, disallowed for each child for the claim month; (J) reason for disallowed meals, by type of meal, for each child for the claim month; (K) dollar amount for disallowed meals, by type of meal, for the claim month; and (L) total meals, by type of meal, for which payment was made for the claim month; (3) participant (child) information, including: (A) name, address and telephone number; (B) work telephone number(s) for parents/guardians; (C) status of participation (active/inactive); (D) sex; (E) date of birth; (F) foster child status; (G) resident child status; (H) income eligibility of child; (I) disability status; (J) date enrolled/removed from care; (K) days and hours in care; and (L) name of parent/guardian; and (4) provider monitoring visit information, including: (A) number of monitoring visits; (B) anticipated date of monitoring visits; (C) actual dates of monitoring visits; (D) type of meal observed; (E) number of children observed eating meal; and (F) type of visit (regular or follow-up). sec.12.15. Reimbursement Methodology. (a)-(b) (No change.) (c) To be eligible for reimbursement, contractors must ensure that claims for reimbursement are postmarked or received by DHS no later than 60 days after the end of the claim month. Persons who sign the DHS certificate of authority form as the authorized representative of the contractor must sign claims. (d) DHS may not pay claims postmarked or received by DHS later than 60 days after the end of the claim month, unless the United States Department of Agriculture (USDA) determines that the submission of the late claim is the result of good cause beyond the contractor's control. For claims postmarked or received by DHS later than 60 days after the end of the claim month, DHS will notify the contractor that they may submit a written request for payment which demonstrates that the claim was submitted late for good cause beyond the control of the contractor. If DHS does not agree that good cause beyond the control of the contractor exists for the submission of a claim later than 60 days after the end of the claim month, DHS will notify the contractor that the request for payment will not be forwarded to USDA for consideration. If DHS agrees that the claim was submitted late for good cause beyond the control of the contractor, DHS will forward the request for payment to USDA with a recommendation that the claim be paid. If USDA determines that good cause exists, DHS may pay the claim. If USDA determines that good cause beyond the control of the contractor does not exist or if the contractor chooses not to submit a request for payment of a late claim demonstrating that good cause beyond his control exists, DHS may grant an exception and pay a claim postmarked or received by DHS later than 60 days after the end of the claim period provided that the contractor: (1)-(2) (No change.) (e)-(f) (No change.) sec.12.24. Sanctions and Penalties. (a) (No change.) (b) DHS imposes sanctions, including determination of serious deficiency in the administration of the Child and Adult Care Food Program (CACFP), termination, and debarment against contractors that sponsor day care homes for failure to comply with program requirements according to sec.12.25 of this title (relating to Denials and Terminations). (c) If DHS has evidence that a contractor has submitted false information, DHS will immediately suspend all program payments, including advance payments, until DHS can determine whether the contractor knowingly submitted false information. If DHS determines, after a review of information provided by the contractor or other sources, that the contractor has knowingly submitted false information, DHS will immediately declare the contractor seriously deficient, terminate the contractor's agreement, suspend payment of any unpaid claim for reimbursement, and notify the contractor's eligible providers that they may transfer to another approved sponsor. (d) If a family day care home (FDCH) sponsor fails to attend training designated by DHS as mandatory, DHS will immediately declare the contractor seriously deficient and terminate the contractor's agreement. DHS will deny payment of any administrative costs claimed for reimbursement beginning with the first month after the month in which the contractor failed to attend the required training. DHS will notify the contractor's eligible providers that they may transfer to another approved sponsor. (e) DHS imposes sanctions against contractors that sponsor day care homes who fail to comply with program requirements for monitoring, and who fail to train providers according to the following procedure: (1) If DHS determines during an initial review of the sponsor for the contract year that the sponsor has not complied with the requirements in this subsection, DHS will deny administrative reimbursements for the test month of the review for any provider who was not monitored or trained according to program requirements, and require the contractor to submit a plan describing how the program noncompliance will be corrected. (2) DHS will conduct a follow-up review not later than 90 days after notifying the contractor of the review findings to determine if the sponsor is in compliance with the requirements in this subsection. If DHS determines during the follow-up review that the sponsor has not corrected all instances of program noncompliance identified in the initial review, DHS will impose sanctions including denial of administrative reimbursements for the months subsequent to the month of the initial review through the month of the follow- up review for any provider who was not monitored or trained according to program requirements, establishing a cap on the number of day care home providers the contractor may sponsor, not to exceed the number of day care homes sponsored at the time of the review, rescinding and/or denying approval for advance payments, and suspending all administrative reimbursements. DHS will continue to reimburse sponsors to pay providers for meals served to children. (3) DHS will conduct a second follow-up review not later than 45 days after notifying the contractor of the findings of the initial follow-up review to determine if the sponsor is in compliance with the requirements in this subsection. DHS will notify the contractor that failure to correct all instances of noncompliance with the requirements in this subsection will result in contract termination, declaration that the organization is seriously deficient in its administration of the program, forfeiture of any outstanding claims for reimbursement, release of the contractor's eligible providers to transfer to another approved sponsor, and that individuals responsible for the deficiencies will be debarred. (f) DHS imposes sanctions against contractors that sponsor day care homes who fail to ensure that claims are submitted only for eligible meals served to eligible children according to the following procedure: (1) If DHS determines during an initial review of the sponsor for the contract year that the sponsor has failed to ensure that claims are submitted only for eligible meals served to eligible children, DHS will impose sanctions including denial of administrative reimbursements for any day care home provider who does not have eligibility or enrollment forms containing required information and requiring the contractor to submit an amended claim for reimbursement to remove all ineligible meals for the test month, and a plan describing how the program noncompliance will be corrected. (2) If 10% or more of the meals sampled and claimed for reimbursement for the test month of the initial review fail to meet program requirements, DHS will conduct a follow- up review not later than 90 days after notifying the contractor of the review findings to determine if the sponsor is in compliance with requirements for ensuring claims are submitted only for eligible meals served to eligible children. If DHS determines during the follow-up review that 10% or more of the meals sampled and claimed for reimbursement for the test month of the follow-up review fail to meet program requirements, DHS will impose additional sanctions to include the months subsequent to the month of the initial review through the month of the follow-up review including denial of administrative reimbursements for any day care home provider who does not have eligibility or enrollment forms containing required information, establishing a cap on the number of day care home providers the contractor may sponsor, not to exceed the number of day care homes sponsored at the time of the review, rescinding and/or denying approval for advance payments, and suspending all administrative reimbursements. DHS will continue to reimburse sponsors for meals served to children. If less than 10% of all meals claimed for the test month of the follow-up review are ineligible, the sponsor may not claim reimbursement for any ineligible meals for the test month, may not receive administrative reimbursement for any day care home provider who does not have eligibility or enrollment forms containing the required information, and must submit a plan describing how the program noncompliance will be corrected. (3) If more than 10% of the meals sampled for the test month of the follow-up review fail to meet program requirements, DHS will conduct a second follow-up review not later than 45 days after notifying the contractor of the findings of the initial follow-up review to determine if the sponsor is in compliance with requirements for ensuring claims are submitted only for eligible meals served to eligible children. DHS will notify the contractor that failure to correct all instances of noncompliance with requirements for ensuring claims are submitted only for eligible meals served to eligible children will result in contract termination, declaration that the organization is seriously deficient in its administration of the program, forfeiture of any outstanding claims for reimbursement, release of the contractor's eligible providers to transfer to another approved sponsor, and that individuals responsible for the deficiencies will be debarred. (g) DHS imposes sanctions against contractors that sponsor day care homes who fail to disburse program funds to providers in accordance with program requirements according to the following procedure: (1) If DHS determines during an initial review of the sponsor for the contract year that the sponsor has not complied with the requirements identified in this subsection, DHS will impose sanctions for the test month of the review including requiring the contractor to submit an amended claim to remove, for the purpose of determining administrative reimbursement, all providers who have not been issued program funds according to program requirements (day care home provider's meal reimbursement will not be recouped) from its reimbursement claim for the test month. DHS will require the contractor to submit a plan describing how the program noncompliance will be corrected. (2) DHS will conduct a follow-up review not later than 90 days after notifying the contractor of the review findings to determine if the sponsor is in compliance with the requirements identified in this subsection. If DHS determines during the follow-up review that the sponsor has not corrected all instances of program noncompliance identified in the initial review, DHS will extend the sanctions to include the months subsequent to the month of the initial review through the month of the follow-up review and establish a cap on the number of day care home providers the contractor may sponsor, not to exceed the number of day care homes sponsored at the time of the review, and rescinding and/or denying approval for advance payments. (3) DHS will conduct a second follow-up review not later than 45 days after notifying the contractor of the findings of the initial follow-up review to determine if the sponsor is in compliance with the requirements identified in subsection (h) of this section. DHS will notify the contractor that failure to correct all instances of noncompliance relating to the disbursement of provider funds will result in contract termination, declaration that the organization is seriously deficient in its administration of the program, forfeiture of any outstanding claims for reimbursement, release of the contractor's eligible providers to transfer to another approved sponsor, and that individuals responsible for the deficiencies will be debarred. (h) If, during a review or an audit, DHS cites a day home sponsoring organization for deficiencies in administrative or financial capabilities because of an excessive number of day home providers, DHS places a cap on the number of day home providers the organization may sponsor. DHS identifies the number of day home providers the sponsoring organization can properly administer and immediately notifies the sponsor. The sponsor has 10 days to submit a plan to DHS to reduce the number of day home providers to the level of the approved cap. (i) DHS approves no additional day home providers for day home sponsoring organizations identified through audit or review as deficient in program operations until the sponsoring organization submits to DHS an acceptable plan to correct the deficiency. (j) DHS suspends payments to day home sponsoring organizations submitting repeated amended claims until the sponsoring organization demonstrates that it can produce a final claim on time each month, unless the sponsoring organization can demonstrate good cause beyond its control for submitting the amended claims. DHS ensures that no future adjustments in claims are paid beyond the claiming time frames, except when justified by on-site DHS/USDA reviews or independent audits. (k) DHS imposes fiscal sanctions specified in this subsection on contractors whose required single audit falls due before June 1, 1996, for failure to comply with the requirements of the Single Audit Act. The contractor has the right to appeal this action as specified in Chapter 79 of this title (relating to Legal Services). (1) DHS takes fiscal sanctions against a contractor according to the procedures specified in subparagraphs (A)-(E) of this paragraph. (A) DHS notifies each contractor upon approval of the application for program participation of the date by which an acceptable audit must be received by DHS, and that failure to comply will result in sanctions up to and including contract termination and recovery of payments. (B) DHS notifies contractors by certified mail within 15 days after a required audit is not received, or an audit is determined to be unacceptable, that failure to submit an acceptable audit within 30 days of receipt of the notification will result in suspension of payments. (C) If an acceptable audit is not received within the 30 days specified in subparagraph (B) of this paragraph, DHS notifies the contractor by certified mail that payments will be withheld beginning the next claim month, and that failure to submit the required audit within 30 days of receipt of this notification will result in termination. (D) If an acceptable audit is not received within the 30 days specified in subparagraph (C) of this paragraph, DHS notifies the contractor by certified mail that failure to submit the required audit within 30 days of receipt of this notification will result in termination in the next claim month. (E) If an acceptable audit is not received within the 30 days specified in subparagraph (D) of this paragraph, DHS notifies the contractor that the contract is terminated effective upon receipt of this notification. (2) If DHS has determined there are extenuating circumstances, DHS may conduct an audit, either directly or through the engagement of a third party. All costs associated with such an audit must be paid by the contractor. (3) If DHS imposes sanctions according to the procedures specified in paragraph (1) of this subsection for failure to submit an audit in compliance with the requirements of the Single Audit Act, and a contractor submits an audit which does not meet the requirements of the Single Audit Act, the sanction procedures will be re-initiated as specified in paragraph (1)(B) of this subsection. DHS may extend the time within which a contractor must submit an audit if DHS determines such an extension is justified. (l) DHS imposes fiscal sanctions specified in this subsection on contractors whose required single audit falls due on June 30, 1996, or later for failure to comply with the requirements of the Single Audit Act. The contractor has the right to appeal this action as specified in Chapter 79 of this title (relating to Legal Services). (1) DHS takes fiscal sanctions against a contractor according to the procedures specified in paragraphs (1)-(4) of this subsection. (A) DHS notifies each contractor upon approval of the application for program participation of the date by which an acceptable audit must be received by DHS, and that failure to comply will result in contract termination and recovery of overpayments as identified through audit findings. (B) DHS provides the contractor three advance notices reminding the contractor of the specific date that the audit is due. (i) DHS issues the first notice by regular mail six months after the end of the contractor's fiscal year for which the audit is due. (ii) DHS issues the second notice by regular mail nine months after the end of the contractor's fiscal year for which the audit is due. (iii) DHS issues the third notice by certified and regular mail 11 months after the end of the contractor's fiscal year for which the audit is due. DHS notifies the contractor that: (I) DHS must receive the audit on or before the due date specified in the notice; (II) if DHS does not receive the audit on or before the specified due date, DHS will terminate the contractor's contract effective the first day of the month following the month in which the audit was due; and (III) the contractor has the right to appeal this decision. (C) If DHS does not receive the audit on or before the specified due date, DHS notifies the contractor by certified and regular mail that their contract was terminated effective the first day of the month following the month in which the audit was due. (2) If DHS has determined there are extenuating circumstances, DHS may conduct an audit, either directly or through the engagement of a third party. All costs associated with such an audit must be paid by the contractor. (3) If a contractor submits an audit which does not meet the requirements of the Single Audit Act, then DHS notifies the contractor in writing that the audit is unacceptable, how it is unacceptable, and that the contractor has 30 calendar days from the date on the notification to submit an acceptable audit to DHS. If DHS does not receive the required audit by the specified time frame and has not granted an extension of the due date, DHS notifies the contractor by certified and regular mail that: (A) the contractor failed to provide an acceptable audit within the specified time frames; (B) DHS must receive an acceptable audit by the due date specified in this notification; (C) if DHS does not receive an acceptable audit by the specified due date, DHS will terminate their contract effective the first day of the month following the due date specified in this notification; and (D) the contractor has the right to appeal this decision. DHS may extend the time within which a contractor must submit an audit if DHS determines such an extension is justified. (4) If DHS does not receive the required audit by the specified due date and has not granted an extension of the due date, DHS notifies the contractor by certified and regular mail that: (A) the contractor failed to provide an acceptable audit by the specified due date; and (B) DHS terminated their contract effective the first day of the month following the specified due date. (5) Once a contractor has been terminated for failure to submit an acceptable audit, the contractor must provide an acceptable audit for any outstanding audit year(s) and comply with the requirements of the Single Audit Act in order to be eligible to participate in the Special Nutrition Programs. (m) If a sponsoring organization of day homes determines during a monitoring review, or by other means, that a provider has failed to comply with program requirements, the sponsor must execute a corrective action plan to achieve compliance. If a sponsoring organization conducts two or more unannounced monitoring reviews in any 12-month period during which the sponsor cannot confirm that children are enrolled for child care and participating in the program, the sponsor must execute a corrective action plan to ensure they are able to effectively monitor the provider's participation in the program. Exception: A sponsor may terminate the participation of a day care home provider without a corrective action plan if the safety of the children in care is at risk or if the sponsor determines that the program noncompliance is the result of intentional program abuse, deficient program operation, or fraudulent activities. The corrective action plan must: (1) prescribe the actions to be taken by the sponsor and the provider to achieve compliance; and (2) include the date by which corrective action must be completed. sec.12.25. Denials and Terminations. (a) (No change.) (b) DHS terminates contracts and denies subsequent applications of sponsoring organization of day care homes who fail to submit reports in accordance with sec.12.9 of this title (relating to Reporting and Record Retention). (c) DHS terminates contracts and denies applications of contractors who have been determined to be seriously deficient in their administration of the program for failure to comply with program requirements as described in sec.sec.12.3, 12.5, 12.6, 12.20, and 12.24 of this title (relating to Eligibility of Contractors and Facilities, Application for Program Benefits-Contractors, Agreement, Training/Technical Assistance, and Sanctions and Penalties). DHS may approve an application and execute a contract with a contractor found to be seriously deficient for failure to comply with program requirements if such contractor demonstrates to the satisfaction of DHS that all serious deficiencies identified by DHS have been or will be corrected. DHS will establish a date by which the day care home sponsoring organization must submit an acceptable plan to correct the serious deficiencies identified by DHS. If a contractor fails to demonstrate by submission of an acceptable corrective action plan by the specified date that all serious deficiencies identified by DHS have been or will be corrected, DHS will notify the contractor that their agreement is terminated effective the last day of the month in which their corrective action plan was due and that DHS will deny payment of any claims for reimbursement after that date. Exception: If DHS specifies a due date for the submittal of a corrective action plan which extends beyond the expiration date of the contractor's agreement, DHS will offer an extension to the agreement for a period not to exceed 180 days beyond the expiration date of the agreement unless terminated earlier for failure to comply with program requirements or submit an acceptable corrective action plan. DHS will determine the duration of the extension based on the amount of time needed to complete the corrective action process. If the contractor rejects the offer of extension, the agreement will expire on the original expiration date. (d) DHS denies applications for participation and terminates agreements with contractors sponsoring day homes for failure to submit a balanced and reasonable budget. (e) Sponsoring organizations of day homes must terminate the participation of day home providers who have been found guilty of committing fraud in the Child and Adult Care Food Program (CACFP), including cases in which adjudication is deferred. Denial of participation in the CACFP is effective for the duration of the sentence of the court, and termination is effective when the sentence is pronounced. (f) DHS denies applications and terminates agreements with contractors if they have permitted any individual identified in sec.12.3(h) of this title (relating to Eligibility of Contractors and Facilities) to enter the facility when children are present. (g) DHS denies applications and terminates agreements with contractors if they have permitted any individual identified in 12.3(i) of this title (relating to Eligibility of Contractors and Facilities) to engage in any activity related to the administration of the CACFP. (h) DHS terminates agreements with contractors that sponsor day care homes if they receive reimbursement for fewer than 50 day care homes for three consecutive months. (i) DHS denies applications for participation and terminates agreements with contractors subject to the bonding requirement identified in sec.12.3(b) of this title (relating to Eligibility of Contractors and Facilities) if they fail to submit and maintain in good standing a performance bond in the amount established by DHS. DHS denies requests for relief from the bonding requirement if the contractor has an outstanding financial obligation to DHS. (j) Sponsoring organizations of day homes must: (1) terminate the participation of any day care home provider that they have determined has knowingly claimed meals for a child not enrolled for child care or not in attendance on a day that meals were claimed for the child; and (2) submit the provider for inclusion on a list of seriously deficient providers. (k) Sponsoring organizations of day homes must: (1) terminate the participation of any day care home provider that refuses to enter into or comply with a corrective action plan designed to achieve compliance with program requirements: and (2) submit the provider for inclusion on a list of seriously deficient providers. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 5, 1996. TRD-9617678 Glenn Scott General Counsel, Legal Counsel Texas Department of Human Services Effective date: December 26, 1996 Proposal publication date: July 23, 1996 For further information, please call: (512) 438-3765 Summer Food Service Program 40 TAC sec.12.115 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 implements the Human Resources Code, sec.sec.22.001-22.030 and 33.001-33.024 of the Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on , 1996. TRD-9617679 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: December 26, 1996 Proposal publication date: July 23, 1996 For further information, please call: (512) 438-3765 PART XX. Texas Workforce Commission CHAPTER 817. Child Labor 40 TAC sec.sec.817.4-817.6 The Texas Workforce Commission adopts amendments to 40 TAC sec.sec.817.4 through 817.6, concerning the employment of children, with changes to the proposed text as published in the October 11, 1996, issue of the Texas Register (21 TexReg 9798). The amendments are being adopted to conform the rules to state statute while being as consistent as possible with federal law, thus maximizing the ease of compliance with both. Also, the amendments will make technical corrections to the existing rules. Finally, the amendments will render the rules more readable. The amended rules will limit the adoption by reference of federal regulations to the extent they are consistent with state law. This will allow employers not covered by federal law to take advantage of a parental exemption from the prohibition against employing a child to drive. Also, the inadvertent adoption of more restrictive federal hours limitations on the employment of 14 and 15 year old children will be deleted to allow employers not covered by federal law to follow less restrictive state law hours limitations. The only changes to the proposed text published earlier are substitutions of the word "through" for hyphens separating the CFR section numbers in 817.4 and 817.5 No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Labor Code, Title 2, sec.sec.51.014, 51.015 and 51.023, which provide the Texas Workforce Commission with the authority to adopt rules necessary to promote the purpose of the Act. sec.817.4 Employment of 14 and 15 Year Old Children. The commission adopts by reference sec.sec.570.31 through 570.34 and sec.sec.570.70 through 570.72 of Title 29 of the Code of Federal Regulations. The commission adopts these regulations as state rules governing the employment of 14 and 15 year old children in Texas. These rules will apply to such employment whether or not that employment is subject to the federal Fair Labor Standards Act (FLSA), 29 United States Code Section 201, et seq. The application of this rule is limited to the extent it is consistent with sec.51.015 of the Texas Labor Code. sec.817.5 Employment of 16 and 17 Year Old Children. The commission adopts by reference sec.sec.570.50 through 570.68 of Title 29 of the Code of Federal Regulations. The Commission adopts these regulations as state rules governing the employment of 16 and 17 year old children in Texas. These rules will apply to such employment whether or not that employment is subject to the federal Fair Labor Standards Act (FLSA), 29 United States Code Section 201, et seq. The application of this rule is limited to the extent it is consistent with sec.51.015 of the Texas Labor Code. sec.817.6 Statement of Commission Intent. In adopting sec.817.4 and sec.817.5 of this title (relating to Employment of 14 and 15 Year Old Children), the commission intends for the federal child labor rules to govern the employment of children in Texas. The commission so intends only to the extent those rules are consistent with Chapter 51 of the Texas Labor Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1996. TRD-9617557 Esther Hajdar Director of Legal Services Texas Workforce Commission Effective date: December 25, 1996 Proposal publication date: October 11, 1996 For further information, please call: (512) 463-8812