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 XV. Health and Human Services Commission CHAPTER 353. Medicaid Managed Care. The Health and Human Services Commission adopts new sec.sec.353.1, 353.2, 353.101-353.105, 353.201-353.204 and 353.301-353.304, concerning Medicaid managed care, without changes as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7303). The chapter sets forth Medicaid managed care definitions, implementation requirements for provider and client education and a member bill of rights and responsibilities and describes a pilot gram on telephone-based health care systems. A public hearing concerning the new sections was held in conjunction with MHMR and TDH and TDMHMR on August 22, 1996. Written comments were received regarding adoption of the rules. Concerning language in the preamble, two commenters disagreed that there would be no fiscal implications for local governments as a result of enforcing or administering the new sections. The Commission responds that the rules pertain to the interaction between MCOs, providers and clients, and do not address the use of managed care as a health care delivery system for Medicaid. Concerning sec.353.104, one commenter suggested that the sentence, "A member education program must present information in a manner that is easy to understand" be revised to include the words "for each member" after the word "easy". The Commission responds that this meaning is already implied in the sentence. Concerning sec.353.104, member education program, and sec.353.105, provider education program, one commenter suggested that consumers and their representatives be involved in the development of standards for these programs. The Commission responds that it will consider the involvement of consumers and their representatives in the development of standards for member and provider education programs. Concerning proposed sec.353.104 and sec.353.105 on member and provider education programs, one commenter suggested that, while MCOs should educate members and providers about those Medicaid policies, procedures, eligibility standards and benefits which are directly applicable to their participation under the MCO's Medicaid contract, they should not have to educate members and providers about the fee-for-service Medicaid program. The Commission responds that, for a variety of reasons, Medicaid managed care clients may need services provided outside of managed care, and for voluntary and populations and clients using long-term care services, may come in and out of managed care. It is important for MCOs to routinely provide basic information about the Medicaid program to members and providers, and to know how to access information in response to more complex or unusual questions or needs. Concerning sec.353.2, Definitions, one commenter responded that use of the term "Medical home" implies limiting the provision of primary care to medical doctors. The Commission responds that the definition of "Medical home" specifically uses the broader term "primary care provider", and does not restrict primary care providers to physician specialties. Concerning sec.353.202, Member Bill of Rights, one commenter submitted a suggested revised list of client rights The Commission responds that the 11-page draft document on client rights submitted by the commenter includes a level of detail that is better handled in the contract between the state and the MCOs. The commenter's draft document contains language that is too specific and advanced for the purposes of the Member Bill of Rights, but will be kept for consideration of the MCO contract and MCO-related education materials. Concerning sec.353.202 Member Bill of Rights, a commenter suggested that it be rewritten to a 4-6th grade reading level and pretested on Medicaid recipients. The Commission responds that the reading level in the Member Bill of Rights satisfies a 4-6th grade reading level. Concerning sec.353.202 Member Bill of Rights, once commenter noted that the Member Bill of Rights does not include the rights to formulate an advance directive or to have access to medical records. The Commission responds that the right to formulate an advance directive is already addressed by state regulation, and is more specific than the general rights identified in the Member Bill of Rights. The Member Bill of Rights also implies that clients have access to their medical records. Concerning sec.353.202 Member Bill of Rights, one commenter requested that language referring to possible roles for interpreters be narrowed to refer to assisting with disabilities within an interpreter's professional expertise. The Commission responds that the Member Bill of Rights defines interpreters to include people who can assist with a disability. Concerning sec.353.202, one commenter encouraged the replacement of the term "medical professional" with the term "health care professional", and the term "medical care" with health care". The Commission responds that these terms are generally used synonymously. Concerning sec.353.202, Member Bill of Rights and sec.353.203, Member Bill of Responsibilities, one commenter remarked that they should include a statement that individuals may select a specialist as their primary care provider. The Commission responds that the Member Bill of Rights and Member Bill of Responsibilities are purposely general in nature, and that details about primary care providers are more appropriately handled in the contract between the state and the MCOs. Concerning sec.353.203, Member Bill of Responsibilities, one commenter recommended that this section be deleted. The Commission responds that articulating clients' responsibilities in using the Medicaid program will increase their understanding and proper use of the program. Concerning sec.353.204, one commenter disagreed that the proposed rules would not apply to contracts executed on or before August 1, 1996. The Commission responds that it cannot impose obligations on MCOs that already have contracts with the state until contracts are renewed or extended. Concerning the implementation of a statewide Medicaid managed care system, one commenter would like to see the Medical Care Advisory Committee involved in providing input rather than using an ad hoc approach. The Commission responds that the Medical Care Advisory Committee is included in the decision-making process on managed care issues, in addition to input from a range of stakeholders. SUBCHAPTER A. General Provisions 1 TAC sec.353.1, sec.353.2 The new sections are adopted under Texas Civil Statutes, Article 4413(502), sec.16D(a), reprinted as Government Code, Chapter 531, sec.531.001; 74th Legislature, 1995, Senate Bill 10, sec.6; Texas Civil Statutes, Article 4413(502), sec.16, reprinted as Government Code, Chapter 531, sec.531.021; and Government Code, Chapter 531, sec.531.033 and 74th Legislature, 1995, Senate Bill 10, sec.75. Texas Civil Statutes, Article 4413(502), sec.16D(a), reprinted as Government Code, Chapter 531, sec.531.001 authorizes HHSC to adopt rules as necessary or appropriate to carry out HHSC functions regarding developing a health care delivery system that includes Medicaid managed care. 74th Legislature, 1995, Senate Bill 10, sec.6 authorizes HHSC to continue establishing additional Medicaid managed care pilot programs statewide if a federal waiver or other authorization is not obtained to implement the health care delivery system. Texas Civil Statutes, Article 4413(502), sec.16, reprinted as Government Code, Chapter 531, sec.531.021 authorizes HHSC to establish guidelines for and require managed care organizations to provide education programs for providers and clients, and also authorizes HHSC to adopt a bill of rights and responsibilities for Medicaid enrollees 74th Legislature, 1995, Senate Bill 10, sec.5 authorizes HHSC to establish by rule a pilot program to provide for evaluating telephone health care systems under Medicaid managed care. Government Code, Chapter 531, sec.531.033 authorizes the commissioner of HHSC to adopt rules necessary to carry out HHSC's duties. The new sections do not affect other statutes. 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 February 6, 1997. TRD-9701760 Marina Henderson Executive Deputy Commissioner Health and Human Services Commission Effective date: February 28, 1997 Proposal publication date: August 6, 1996 For further information, please call: (512) 424-6517 SUBCHAPTER B. Provider and Member Education Programs 1 TAC sec.sec.353.101-353.105 The new sections are adopted under Texas Civil Statutes, Article 4413(502), sec.16D(a), reprinted as Government Code, Chapter 531, sec.531.001; 74th Legislature, 1995, Senate Bill 10, sec.6; Texas Civil Statutes, Article 4413(502), sec.16, reprinted as Government Code, Chapter 531, sec.531.021; and Government Code, Chapter 531, sec.531.033 and 74th Legislature, 1995, Senate Bill 10, sec.75. Texas Civil Statutes, Article 4413(502), sec.16D(a), reprinted as Government Code, Chapter 531, sec.531.001 authorizes HHSC to adopt rules as necessary or appropriate to carry out HHSC functions regarding developing a health care delivery system that includes Medicaid managed care. 74th Legislature, 1995, Senate Bill 10, sec.6 authorizes HHSC to continue establishing additional Medicaid managed care pilot programs statewide if a federal waiver or other authorization is not obtained to implement the health care delivery system. Texas Civil Statutes, Article 4413(502), sec.16, reprinted as Government Code, Chapter 531, sec.531.021 authorizes HHSC to establish guidelines for and require managed care organizations to provide education programs for providers and clients, and also authorizes HHSC to adopt a bill of rights and responsibilities for Medicaid enrollees 74th Legislature, 1995, Senate Bill 10, sec.5 authorizes HHSC to establish by rule a pilot program to provide for evaluating telephone health care systems under Medicaid managed care. Government Code, Chapter 531, sec.531.033 authorizes the commissioner of HHSC to adopt rules necessary to carry out HHSC's duties. The new sections do not affect other statutes. 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 February 6, 1997. TRD-9701761 Marina Henderson Executive Deputy Commissioner Health and Human Services Commission Effective date: February 28, 1997 Proposal publication date: August 6, 1996 For further information, please call: (512) 424-6517 SUBCHAPTER C. Member Bill of Rights and Responsibilities 1 TAC sec.sec.353.201-353.204 The new sections are adopted under Texas Civil Statutes, Article 4413(502), sec.16D(a), reprinted as Government Code, Chapter 531, sec.531.001; 74th Legislature, 1995, Senate Bill 10, sec.6; Texas Civil Statutes, Article 4413(502), sec.16, reprinted as Government Code, Chapter 531, sec.531.021; and Government Code, Chapter 531, sec.531.033 and 74th Legislature, 1995, Senate Bill 10, sec.75. Texas Civil Statutes, Article 4413(502), sec.16D(a), reprinted as Government Code, Chapter 531, sec.531.001 authorizes HHSC to adopt rules as necessary or appropriate to carry out HHSC functions regarding developing a health care delivery system that includes Medicaid managed care. 74th Legislature, 1995, Senate Bill 10, sec.6 authorizes HHSC to continue establishing additional Medicaid managed care pilot programs statewide if a federal waiver or other authorization is not obtained to implement the health care delivery system. Texas Civil Statutes, Article 4413(502), sec.16, reprinted as Government Code, Chapter 531, sec.531.021 authorizes HHSC to establish guidelines for and require managed care organizations to provide education programs for providers and clients, and also authorizes HHSC to adopt a bill of rights and responsibilities for Medicaid enrollees 74th Legislature, 1995, Senate Bill 10, sec.5 authorizes HHSC to establish by rule a pilot program to provide for evaluating telephone health care systems under Medicaid managed care. Government Code, Chapter 531, sec.531.033 authorizes the commissioner of HHSC to adopt rules necessary to carry out HHSC's duties. The new sections do not affect other statutes. 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 February 6, 1997. TRD-9701759 Marina Henderson Executive Deputy Commissioner Health and Human Services Commission Effective date: February 28, 1997 Proposal publication date: August 6, 1996 For further information, please call: (512) 424-6517 SUBCHAPTER D. Telephone-Based Health Care 1 TAC sec.sec.353.301-353.304 The new sections are adopted under Texas Civil Statutes, Article 4413(502), sec.16D(a), reprinted as Government Code, Chapter 531, sec.531.001; 74th Legislature, 1995, Senate Bill 10, sec.6; Texas Civil Statutes, Article 4413(502), sec.16, reprinted as Government Code, Chapter 531, sec.531.021; and Government Code, Chapter 531, sec.531.033 and 74th Legislature, 1995, Senate Bill 10, sec.75. Texas Civil Statutes, Article 4413(502), sec.16D(a), reprinted as Government Code, Chapter 531, sec.531.001 authorizes HHSC to adopt rules as necessary or appropriate to carry out HHSC functions regarding developing a health care delivery system that includes Medicaid managed care. 74th Legislature, 1995, Senate Bill 10, sec.6 authorizes HHSC to continue establishing additional Medicaid managed care pilot programs statewide if a federal waiver or other authorization is not obtained to implement the health care delivery system. Texas Civil Statutes, Article 4413(502), sec.16, reprinted as Government Code, Chapter 531, sec.531.021 authorizes HHSC to establish guidelines for and require managed care organizations to provide education programs for providers and clients, and also authorizes HHSC to adopt a bill of rights and responsibilities for Medicaid enrollees 74th Legislature, 1995, Senate Bill 10, sec.5 authorizes HHSC to establish by rule a pilot program to provide for evaluating telephone health care systems under Medicaid managed care. Government Code, Chapter 531, sec.531.033 authorizes the commissioner of HHSC to adopt rules necessary to carry out HHSC's duties. The new sections do not affect other statutes. 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 February 6, 1997. TRD-9701758 Marina Henderson Executive Deputy Commission Health and Human Services Commissioner Effective date: February 28, 1997 Proposal publication date: August 6, 1996 For further information, please call: (512) 424-6517 TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 19. Quarantines SUBCHAPTER J. Red Imported Fire Ant Quarantine 4 TAC sec.19.101 The Texas Department of Agriculture (the department) adopts an amendment to sec.19.101, concerning quarantined areas, without changes to the proposed text as published in the January 3, 1997, issue of the Texas Register (22 TexReg 13). The amendment to sec.19.101 is adopted to stop the artificial spread of Red Imported Fire Ants out of currently infested areas of the state and adds Red River County to the list of quarantined areas. Through survey efforts conducted by the department, widespread infestations of Red Imported Fire Ants were detected in Red River County. Oral comments in support of the proposed amendment were received at a hearing held on January 23, 1997, at the District Courtroom, River County Courthouse, 402 North Walnut, Clarksville, Texas. No other comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, sec.71.002, which provides the Texas Department of Agriculture with the authority to establish quarantines against diseases and pests found within the state; and sec.71.007, which authorizes the department to adopt rules necessary for the protection of agricultural and horticultural interests. 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 February 5, 1997. TRD-9701639 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: February 26, 1997 Proposal publication date: January 3, 1997 For further information, please call: (512) 463-7583 TITLE 10. COMMUNITY DEVELOPMENT PART I. Texas Department of Housing and Community Affairs CHAPTER 49.Low Income Tax Credit Rules-1996 10 TAC sec.49.9 The Texas Department of Housing and Community Affairs adopts an amendment to sec.49.9(c), concerning Department Records; Certain Required Filings of the 1996 Qualification Allocation Plan and Rules (the "Rules") to provide procedures for the issuance of IRS form 8609, by the Department, of low income housing tax credits without changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7308). The purpose of the amendment will provide procedures for the issuance of IRS form 8609, by the Department, of low income housing tax credits. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the authority of the Texas Government Code, Chapter 2306; Acts of the 73rd Legislature, Regular Senate Bill 45, Chapter 141, effective May 16, 1993; and Acts of the 73rd Legislature, Senate Bill 1356, Chapter 725, effective September 1, 1993; and the Internal Revenue Code of 1986, sec.42 as amended, which provides the Department with the authority to propose rules governing this administration of the Department and its programs and Executive Order AWR-91-4 (June 17, 1991), which provides this Department with the authority to make housing credit allocations in the State of Texas. The Texas Government Code, Chapter 2306 is affected by this adopted amendment. 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 February 5, 1997. TRD-9701702 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: February 27, 1997 Proposal publication date: August 6, 1996 For further information, please call: (512) 475-2884 TITLE 16. ECONOMIC REGULATION PART II. Public Utility Commission of Texas CHAPTER 23.Substantive Rules Telephone 16 TAC sec.23.103 The Public Utility Commission of Texas adopts new sec.23.103, relating to IntraLATA Equal Access, with changes to the proposed text published in the January 3, 1997 issue of the Texas Register (22 TexReg 16). The rule is necessary to comply with the Public Utility Regulatory Act of 1995 (PURA95) sec.3.219(c), which requires that the commission ensure that customers may designate a provider of their choice to carry their "0+" and "1+" intraLATA calls and that equal access in the public network is implemented such that the provider may carry such calls. This rule was initially proposed for adoption in the July 23, 1996, issue of the Texas Register (21 TexReg 6865). In that publication, the commission asked parties to comment on how the passage of the Federal Telecommunications Act of 1996 (FTA 96) affected the proposed rule. On August 8, 1996, shortly after the initial publication of the rule, the Federal Communications Commission (FCC) adopted its Second Report and Order in CC Docket Number 96-98 (FCC Dialing Parity Order). The FCC Dialing Parity Order contained specific timing requirements which are incorporated in the rule adopted here. The commission notes that the timing requirements of PURA95 sec.3.219 and the FCC Dialing Parity Order are different, but not necessarily inconsistent. In the event that the timing of future events gives rise to a conflict between the requirements of PURA95 sec.3.219 and the FCC Dialing Parity Order, the commission notes that PURA95 sec.1.404 requires the commission to construe the provisions of PURA95 so as not to conflict with any authority of the United States. A public hearing on the proposed rule was held at the commission's offices on January 16, 1997, at 10:00 a.m. Representatives from AT&T Communications of the Southwest, Inc. (AT&T); Alltel; GTE Southwest (GTE); Texas General Services Commission (GSC); Lufkin- Conroe Telephone Exchange (LCTX); Southwestern Bell Telephone Company (SWBT); Texas Association of Long Distance Telephone Companies (Texaltel); and the Texas Telephone Association (TTA) attended the hearing. The parties' statements largely reflect their written comments and are summarized herein. The commission received written comments on the proposed rule from AT&T, GTE; GSC, MCI Telecommunications Corporation (MCI); SWBT; Sprint Communications Co., United Telephone Company of Texas and Central Telephone of Texas (joint comments) (Sprint); Texaltel; Texas Statewide Telephone Cooperative, Inc. (TSTCI) and TTA. Cost and benefits of the proposed rule. Parties were asked to comment on the costs associated with, and benefits that will be gained by, the proposed rule. SWBT stated that there will be substantial costs incurred by SWBT and other local exchange carriers (LECs) to implement dialing parity. GTE and TSTCI commented that the costs of intraLATA equal access are incurred by LECs for the direct benefit of their competitors, the interexchange carriers (IXCs). AT&T commented that cost/benefit analysis should not be the basis for determining whether intraLATA equal access will be implemented in Texas. Texaltel commented that savings estimated at $200 million will accrue to customers as a result of the rule. MCI strongly urged adoption of the rule, commenting that the benefits clearly outweigh the costs. MCI also noted that most of the costs associated with implementation of intraLATA equal access have already been incurred. LEC affiliates. Parties were invited to comment on the issue of treating a LEC affiliate as a LEC for purposes of triggering the timing requirements of the rule. AT&T, MCI and Texaltel concurred with the proposed rule's use of affiliate activity as a means of triggering the implementation requirements of the rule. TSTCI commented that the effect of the Federal Dialing Parity Order on LECs that provide interLATA service "is not as clear-cut as the commission's outlined interpretation." TTA commented that the rule should consider only a LEC's status, without regard to the activities of its affiliates. GTE commented that "tying the implementation date to the activities of a public utility's affiliate is inconsistent with sec.1.271 of PURA95, since it has the effect of regulating the activities of a public utility's affiliate without statutory authority." At the public hearing, AT&T disagreed with this interpretation by GTE, pointing out that the operation of the rule would not affect the business activity of the LEC's affiliate. Intrastate vs. intraLATA dialing parity. Parties were asked to comment on the question of allowing a customer to choose an interstate and intrastate, rather than an intraLATA and interLATA, primary interexchange carrier (PIC). AT&T and GTE commented that the issue of moving toward a single-LATA state is not ripe at this time. AT&T further commented that the industry has a definite LATA focus, and that this issue should not delay the implementation of intraLATA equal access. GTE commented that "there are overwhelming complexities associated with eliminating LATAs" and expressed concern about the financial viability of some LECs if LATA boundaries were eliminated. TTA commented that elimination of LATAs would require reballoting in order to implement intrastate equal access. Payphone provisions. Parties were asked to comment on the consistency of the proposed rule's payphone provisions with the FCC's Order on Reconsideration in CC Dockets Numbers 96-128 and 91-35. AT&T, MCI and TSTCI commented that the rule and the order appeared consistent. GTE recommended a revision to the rule to clarify that a payphone provider may negotiate with a location provider on the presubscribed intraLATA carrier. Language to this effect was added to subsection (h) of the rule to address GTE's comment. Compliance tariffs. AT&T recommended addition of a subsection to the rule to require the filing of a compliance tariff incorporating the terms and rates of a cost recovery surcharge. The commission agrees that such compliance tariffs are appropriate for dominant certified telecommunications utilities (DCTUs). Language to this effect is incorporated in subsection (f). Timing. AT&T commented that the timing provisions of the proposed rule mirror the FCC's implementation provisions and are consistent with PURA95 sec.3.219(b). AT&T sought clarification of several points regarding timing, as follows: (1) whether GTE is required by the rule to file an implementation plan on February 8, 1997, and implement intraLATA equal access throughout its service territory by August 8, 1997; (2) whether SWBT is required to file an implementation plan 90 days before it files an application with the FCC seeking to provide in- region interLATA services under sec.271 of the FTA 96 and to implement intraLATA equal access throughout its service territory effective the date that it is granted authority to provide such services; and (3) that these implementation plans will be reviewed administratively, with an opportunity for interested and affected parties to comment or intervene. With respect to questions (1) and (2), the commission believes the rule speaks for itself and that any commission interpretation of how the rule applies to a particular entity should be made in a proceeding where a factual record can be developed and the entity affected has an opportunity to present evidence. Therefore, the commission declines AT&T's invitation to clarify the rule's effect in specific factual circumstances that have not been developed on the record. With respect to question (3), it is the commission's intent that the administrative review under subsection (e) of the rule may be conducted as provided by PUC Procedural Rules 22.32, Administrative Review, or 22.35, Informal Disposition, and that affected parties have an opportunity to comment on or move to intervene in the review of a certified telecommunications utility's (CTU's) implementation plan. The commission notes that the proposed February 8, 1997, filing date falls on a Saturday. There is no state or federal law or order that requires an implementation plan to be filed on this date. Therefore, the commission revises subsection (d)(2)(B) of the proposed rule to require the filing of implementation plans by affected companies on or before February 10, 1997. TTA and TSTCI urged the commission to make the timing of implementation of intraLATA equal access coincide with the implementation of revisions to the Universal Service Fund (USF). At the public hearing, Alltel and LCTX stated that some small DCTUs which participate in the toll pool and offer interLATA service through an affiliate may be adversely affected if they are required to implement intraLATA equal access before revisions to the USF take effect. The commission appreciates the concerns of the small DCTUs and believes the small CTU provisions of subsection (d)(3) give such CTUs an opportunity to seek relief from requirements of the rule that are unduly economically burdensome. The proposed subsections on Implementation and Timing have been combined to clarify that the relief allowed under subsection (d)(3) relates both to the filing of an implementation plan and the actual implementation of intraLATA equal access. SWBT commented that the rule's requirement that a Bell Operating Company (BOC) file an implementation plan 90 days before filing a petition to provide interLATA service pursuant to FTA 96 sec.271 violates the FTA, which has no time limitations on when a BOC can file an application under sec.271. In the public hearing, SWBT stated that it could support a reasonable amount of time, but 90 days was excessive. SWBT was not willing, however, to put forth an alternative to the 90-day requirement that would be "reasonable." The commission believes the 90-day requirement is consistent with the FCC Dialing Parity Order and with FTA 96. Furthermore the commission believes the 90-day requirement is necessary to assure the commission a reasonable opportunity to review SWBT's implementation plan before it must be implemented, and is in line with the 180- day requirement that applies to other LECs. Recoverable costs. AT&T pointed out that the rule as proposed permitted double recovery of the cost associated with a PIC selection made by a customer more than six months after implementation of intraLATA equal access. The proposed rule permitted the CTU to bill the customer a PIC change charge for such a selection and to recover the cost through the intraLATA equal access surcharge. To prevent such double recovery, the commission has added this cost to the list of nonrecoverable items in subsection (f)(2). Cost Recovery. GTE, SWBT, TTA and TSTCI urged the commission to shorten the cost recovery period. GTE and TTA urged a cost recovery period of no more than three years. TSTCI urged recovery of "administrative" costs year-by-year as they are incurred. In the public hearing AT&T stated that a cost recovery period of three years would be "sufficient." The commission believes the public interest will be advanced by a shorter cost recovery period. This revision will more nearly align the cost recovery with the period in which costs are incurred by the DCTUs. The rule does not provide for recovery of interest on incurred but unrecovered costs, so such an alignment of costs and surcharge revenue is appropriate. GTE objected to the computation of the surcharge based on "costs incurred during the previous year." The commission agrees that this language is inconsistent with the straight-line apportionment of the total service long run incremental cost (TSLRIC) of implementation over a three-year period, and has revised subsection (f) accordingly. PIC Selection. TTA commented that some DCTUs who participate in the toll pool may cease to be intraLATA providers after implementation of intraLATA equal access. In this case, it would not be possible for an existing customer to retain the serving CTU as his intraLATA PIC. Subsection (g)(2)(B) has been revised to provide that an existing customer who does not choose an intraLATA PIC shall have no default intraLATA PIC. TTA's proposed remedy, that the customer default to his or her interLATA PIC, violates sec.51.209(c) of the Federal Dialing Parity Order, which states that "A LEC may not assign automatically a customer's intraLATA toll traffic ... to the customer's presubscribed interLATA or interstate toll carrier...." GTE commented that there is no time limit for a customer to make a choice of an interLATA PIC when interLATA equal access is implemented. GTE urged elimination of the 60-day limit in subsection (g) of the rule. The commission believes that consistency between inter- and intraLATA procedures on this point is not essential, and notes that the rule does not require, but merely allows a CTU to impose a PIC change charge on a customer making his or her initial intraLATA PIC selection after the six- month grace period. Sprint, SWBT and GTE objected to the rule's provision that only one PIC change charge may apply when a customer simultaneously chooses an interLATA and an intraLATA PIC. These parties argued that the costs associated with handling a second PIC selection are not significantly reduced when a single customer chooses both PICs at once. Sprint urged that the single charge should apply only when the customer selects the same carrier for both PICs. The commission agrees that a CTU should be allowed to bill PIC change charges that reflect its costs, and deletes the restriction from subsection (g)(4). Customer Notice. SWBT, Sprint, GTE and TTA requested that the notice provisions of the rule permit a LEC to provide the required notice by means of a bill insert. GTE commented that such notice is considerably less costly than notice by a separate direct mail piece. The commission agrees with these comments and has revised subsection (i) to clarify that notice by bill insert satisfies the requirements of the rule. Waiver provisions. TTA and Sprint commented that the proposed rule did not provide for a waiver of any requirements except for CTUs with fewer than two percent of the nation's subscriber lines. Both parties suggested addition of language to provide larger CTUs the opportunity to seek a waiver when they do not have the technical capability to implement intraLATA equal access. The commission believes subsection (k) provides an opportunity for larger CTUs to seek a waiver of requirements of the section with which they lack the technical ability to comply. State of Texas network. GSC commented that the proposed rule needed revision to require a CTU to provide intraLATA equal access to the State of Texas network, which is not an IXC. The requested revision has been made to subsection (d)(1)(A). Expiration. AT&T commented that it is not appropriate to include an expiration date in the rule, noting that the industry has "a definite LATA focus." The commission understands AT&T's concerns but feels that the commission will have ample opportunity to extend the expiration date if future events make such action appropriate. This section is adopted under PURA95 sec.1.101, which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction; and specifically, sec.3.219(c), which requires that the commission ensure that customers may designate a provider of their choice to carry their "0+" and "1+" intraLATA calls and that equal access in the public network is implemented such that the provider may carry such calls. Cross Index to Statutes: Public Utility Regulatory Act of 1995, Texas Revised Civil Statutes Annotated Article 1146c-O, sec.sec.1.101, 1.404, and 3.219(c) (Vernon Supplement 1996) (PURA95). sec.23.103.IntraLATA Equal Access. (a) Application. This section applies to certified telecommunications utilities (CTUs) providing local exchange telephone service in Texas. (b) Purpose. The purpose of this section is to encourage competition in the intraLATA toll market by implementing two-PIC 1+ and 0+ equal access for Texas telephone customers. (c) Definitions. The following words and terms, when used in this section, shall have the following meaning unless the context clearly indicates otherwise: (1) Administrative review - A process whereby an implementation plan or application is reviewed by the commission staff and approved or denied by an administrative law judge without an evidentiary hearing and without an order signed by the commission. (2) IntraLATA equal access - The ability of a caller to complete an intraLATA toll call using his or her provider of choice by dialing 1 or 0 plus an NPA-NXX- XXXX within the LATA. (3) PIC freeze indicator - An indicator that the end user has directed the CTU to make no changes in the end user's PIC. (4) Primary Interexchange Carrier (PIC) - The provider chosen by a customer to carry that customer's toll calls. (5) Two-PIC equal access - A method that allows a telephone subscriber to select one carrier for all 1+ and 0+ interLATA calls and the same or a different carrier for all 1+ and 0+ intraLATA calls. (d) Implementation Plan. (1) Requirements. An implementation plan shall conform to the following requirements: (A) An implementation plan shall describe the measures the CTU will take to make two-PIC intraLATA equal access available to all interexchange carriers and the State of Texas network in all areas of the state in which the CTU is certified to provide local exchange service. (B) If a CTU does not implement intraLATA equal access simultaneously throughout its service territory, its implementation plan shall include a schedule of implementation specifying, for each wire center: (i) the Common Language Location Identifier (CLLI) code and exchange name; (ii) the month in which intraLATA equal access will be available; (iii) the type of switch serving the wire center; and (iv) a list of the NPA-NXXs affected by the conversion to intraLATA equal access. (C) Eighteen copies of the implementation plan shall be filed in the commission's central records office. The commission shall publish notice of the implementation plan in the Texas Register. (2) Timing. Except as provided in subparagraphs (A)-(C) of this paragraph or as otherwise ordered by the commission, a CTU shall file with the commission no later than August 8, 1998, an implementation plan to provide intraLATA equal access no later than February 8, 1999. (A) No later than 90 days before filing an application with the Federal Communications Commission (FCC) for authorization to provide interLATA telecommunications service in Texas pursuant to the Federal Telecommunications Act of 1996 sec.271(d)(1), a Bell Operating Company (BOC) shall file with the commission an implementation plan to provide intraLATA equal access coincident with the exercise of its authority to provide interLATA services. (B) A CTU other than a BOC that begins providing in-region interLATA toll service on its own behalf or through an affiliate before August 8, 1997, shall file with the commission no later than February 10, 1997, an implementation plan to provide intraLATA equal access no later than August 8, 1997. (C) A CTU other than a BOC that begins providing in-region interLATA toll service on its own behalf or through an affiliate on or after August 8, 1997, but before February 8, 1999, shall file with the commission an implementation plan no later than 180 days prior to the date on which it begins providing in- region interLATA toll service and shall implement intraLATA equal access throughout the state no later than the date on which it begins providing in- region interLATA service. (3) Small CTUs. A CTU with fewer than two percent of the nation's subscriber lines may petition the commission for a suspension or modification of the requirements of this subsection. The commission shall act on the petition within 180 days of receiving such petition. Pending such action, the commission may suspend enforcement of this subsection with respect to the petitioner. It shall be the duty of the petitioner to demonstrate that such suspension or modification is consistent with the public interest, convenience, and necessity; and is necessary to: (A) avoid a significant adverse economic impact on users of telecommunications services generally; (B) avoid imposing a requirement that is unduly economically burdensome; or (C) avoid imposing a requirement that is technically infeasible. (4) Eighteen copies of the implementation plan shall be filed in the commission's central records office. The commission shall publish notice of the implementation plan in the Texas Register. (e) Administrative review. An implementation plan filed under this section shall be reviewed administratively unless an administrative law judge, for good cause, determines at any point during the review that the plan should be docketed. Denial of a plan for failure to meet the requirements of this section does not relieve the CTU of its obligations under subsection (d) of this section. (f) Cost Recovery. A dominant certified telecommunications utility (DCTU) may impose an annual surcharge on intraLATA toll providers to recover over a three- year period its total service long run incremental cost (TSLRIC) of implementing intraLATA equal access. A DCTU shall file with the commission by February 15 of each year an application for approval of a tariff imposing this surcharge for recovery of its recoverable cost for the previous year. The application shall include detailed cost support for the recoverable cost and shall be reviewed administratively. The surcharge shall be billed by the DCTU to intraLATA toll providers using its intraLATA switched access services and shall be due and payable no later than June 30 of each year for recoverable cost for the previous year. (1) Recoverable costs. Costs that are recoverable for a given calendar year are equal to one-third of the TSLRIC to provide intraLATA equal access multiplied by a factor equal to 1 minus the DCTU's share of that cost. The DCTU's share of costs shall be computed by dividing the total intraLATA toll minutes of use originated by the DCTU for end users during the year by the sum of total originating intraLATA switched access minutes purchased from the DCTU and total intraLATA toll minutes of use originated by the DCTU for end users during the year. In calculating its share of costs, the DCTU may convert its intraLATA toll minutes of use to equivalent access minutes by adjusting for call set-up. Recoverable costs shall include, but not be limited to, the following: (A) costs of processing a customer's initial PIC selection pursuant to subsection (g); and (B) costs of providing customer notice pursuant to subsection (i) of this section. (2) Nonrecoverable items. A DCTU may not recover the following: (A) costs of converting a wire center in which inter- and intraLATA equal access are introduced simultaneously; (B) costs of switching equipment whose installation was planned before the implementation plan was filed; (C) costs of marketing its intraLATA toll services; (D) lost toll revenue; or (E) costs associated with a PIC selection by a customer more than six months after implementation of intraLATA equal access in the customer's exchange. (3) The amount of the surcharge payable to a DCTU by an intraLATA toll provider for a given year shall be equal to the DCTU's recoverable costs for that year multiplied by the intraLATA toll provider's share of the DCTU's recoverable costs. An intraLATA toll provider's share of a DCTU's recoverable costs for a calendar year shall be computed by dividing the originating intraLATA switched access minutes the intraLATA toll provider purchased from the DCTU during the year by the total originating intraLATA switched access minutes purchased from the DCTU during the year. (g) PIC selection. An end user may select one carrier for all 1+ and 0+ interLATA toll calls and either the same carrier or a different carrier for all 1+ and 0+ intraLATA toll calls. When a customer places an order to move or establish service, the CTU shall inform the customer of his opportunity to choose both an intralATA and an interLATA PIC. (1) Multiple PIC requests. If a customer has selected more than one intraLATA PIC, the CTU shall process the PIC with the latest customer authorization date. (2) Default intraLATA PIC. (A) A new customer who does not choose an intraLATA PIC shall dial a carrier access code to route his intraLATA toll calls to the carrier of his choice until the customer makes a permanent, affirmative selection for intraLATA 1+ and 0+ calls. (B) An existing customer who does not make a choice for an intraLATA PIC when intraLATA equal access becomes available shall default to the serving CTU for intraLATA 1+ and 0+ calls where the serving CTU is an intraLATA toll provider. Otherwise, the customer shall dial a carrier access code to route his intraLATA toll calls to the carrier of his choice until he or she makes a permanent, affirmative selection for intraLATA 1+ and 0+ calls. (3) Balloting of customers shall not be required in areas in which interLATA equal access is available. (4) Initial PIC request. A customer's initial PIC request, made prior to implementation or within six months after implementation of intraLATA equal access, shall be made at no charge. Thereafter, a CTU may bill the customer a PIC change charge at a rate no greater than the rate for the selection of an interLATA PIC. (5) PIC freezes. An account carrying an interLATA PIC freeze indicator shall not be automatically frozen by the CTU for intraLATA PIC selection. A customer may request a CTU to freeze his or her inter- or intraLATA PIC or both. A customer's request for an intraLATA PIC freeze may not be processed until the customer has received notice of intraLATA equal access pursuant to subsection (i) of this section. (h) Pay telephone equal access. IntraLATA 0+ and 1+ equal access shall be required for all pay telephones. A location provider shall be allowed to select both the intraLATA and interLATA PIC for a pay telephone. Nothing in this section shall affect any contract existing between a location provider and a provider of pay telephone service or an interLATA or intraLATA carrier that is in force as of the effective date of this section. A pay telephone service provider may negotiate with a location provider concerning the intraLATA carriers presubscribed to the location provider's pay telephones. (i) Customer Notice. A CTU shall provide notice by direct mail or bill insert to affected customers of implementation of intraLATA equal access. The text of the notice shall state: "The Public Utility Commission of Texas has directed all local telephone companies to give residential and business customers the option of selecting an intraLATA (local toll) 1+ and 0+ long-distance company other than {insert name of CTU}. Texas is divided into major long-distance calling areas called LATAs. (See enclosed map.) Currently, {insert name of CTU} carries all your 1+ and 0+ calls within your LATA. After {insert implementation date}, long-distance calling within the LATA (as distinct from between LATAs, which is already competitive) will be open to competition. With this change, customers will have the option of selecting a long-distance company for intraLATA 1+ and 0+ calling. "Beginning on {insert date} and until {insert date}, you may select an intraLATA (local toll) long-distance company at no charge by notifying your local telephone company or by directly contacting the long-distance carrier of your choice. If you change your intraLATA carrier after {insert date} or after your initial selection, you will incur a {$ insert charge} change charge." (j) Expiration. The provisions of this section shall expire December 31, 2002. (k) Waiver. After notice and hearing, and subject to the requirements of law, the commission may waive any provision of this section for good cause. 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 February 10, 1997. TRD-9701822 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Effective date: March 3, 1997 Proposal publication date: January 3, 1997 For further information, please call: (512) 936-7152 TITLE 22. EXAMINING BOARDS PART XVII. Texas State Board of Plumbing Examiners CHAPTER 361.Administration General Provisions 22 TAC sec.361.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361.1, Definitions, without changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11434). The amendment will change the definition for the phrase Maintenance Man or Maintenance Engineer. The public hearing requested by the Texas Apartment Association was held on this amendment on October 30, 1996, to discuss the inclusion of the word "replacement" in the adopted version of the amendment. Based upon the public testimony given by the Texas Apartment Association the word "replacement" is included in the adopted version of the rule. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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 February 6, 1997. TRD-9701665 Ernest Pereyra, CPA Chief Fiscal Officer Texas State Board of Plumbing Examiners Effective date: February 27, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 458-2145 22 TAC sec.361.6 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361.6, Fees, without changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11434). The amendment will change the license fees for individuals that have multiple licenses with the Board. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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 February 6, 1997. TRD-9701666 Ernest Pereyra, CPA Chief Fiscal Officer Texas State Board of Plumbing Examiners Effective date: February 27, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 458-2145 PART XXIV. Texas Board of Veterinary Medical Examiners CHAPTER 571. Licensing Examinations 22 TAC sec.571.13 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec.571.13, concerning Reexamination, without changes to the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10861). The agency is adopting this amendment to consolidate into sec.571.13 those reexamination requirements now in rule sec.571.16, which is being repealed. This amended rule will consolidate into one rule the requirement that an applicant for reexamination must submit a reapplication form and examination fee before being accepted for reexamination. The Board's rules will be simplified by having this information in a single rule. No comments were received regarding adoption of the amendment. The amendment is adopted under the authority of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, sec.7(a) which states "The Board may make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this act." The amendment affects the Veterinary Licensing Act, article 8890, sec.12, which authorizes the Board to determine the conditions under which examinations are given. 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 February 4, 1997. TRD-9701621 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: February 26, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 305-7555 22 TAC sec.571.16 The Texas Board of Veterinary Medical Examiners adopts the repeal of sec.571.16, concerning Applicant's Affidavit, without changes to the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10861). The agency is adopting this repeal because sec.571.13 is being amended to include the requirements contained in this rule. The consolidation of this information about reexaminations into one rule will improve the clarity of these rules. No comments were received regarding adoption of the amendment/repeal. The repeal is adopted under the authority of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, sec.7(a) which states "The Board may make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this act. The repeal affects the Veterinary Licensing Act, Article 8890, sec.12 authorizing the Board to determine the conditions under which examinations are given. 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 February 4, 1997. TRD-9701619 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: February 26, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 305-7555 22 TAC sec.571.17 The Texas Board of Veterinary Medical Examiners adopts the repeal of sec.571.17, concerning Reexaminations, for Revoked or Cancelled Licenses, without changes to the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10862). The agency is adopting this repeal because the requirement contained in this rule is redundant of sec.575.22 sec.(i). The agency is adopting the repeal of this rule to consolidate all examination requirements into one rule. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, sec.7(a) which states "The Board may make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this act." This repeal affects the Veterinary Licensing Act, Article 8890, sec.12 authorizing the Board to determine the conditions under which examinations are conducted. 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 February 4, 1997. TRD-9701622 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: February 26, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 305-7555 CHAPTER 573. Rules of Professional Conduct General Professional Ethics 22 TAC sec.573.8 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec.573.08, concerning Loss of Accreditation, without changes to the proposed text as published in the November 5, 1996, issue of the Texas Register (21 TexReg 10862). The agency is adopting the amendment to expand the Board's authority to initiate disciplinary action if a state or federal authority has suspended a licensee's accreditation. Currently the Board only has authority to initiate disciplinary action if accreditation has been revoked. Accreditation is required to perform tests, such as brucellosis and tuberculosis, and to sign health certificates. No comments were received regarding the adoption of these amendments. Expanding the Board's authority is necessary because some causes of suspension of a accreditation are serious enough to warrant action against the veterinarian's license. The amendment is adopted under the authority of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, sec.7(a) which states "The Board may make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this act." The amendment affects the Veterinary Licensing Act, Article 8890, sec.14(a) authorizing the Board to take disciplinary action. 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 February 4, 1997. TRD-9701623 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: February 26, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 305-7555 Other Provision 22 TAC sec.573.67 The Texas Board of Veterinary Medical Examiners adopts amendments to sec.573.67, concerning Temporary License Suspensions, without changes to the proposed text as published in the November 5, 1996, Texas Register (21 TexReg 10863). The Board is adopting this amendment to remove an inapplicable reference to the Administrative Procedure Act and to establish 72 hours as the minimum time of notice a suspended licensee receives for the meeting with the board's enforcement committee. Further amendments correct language which was inadvertently omitted when the rule was adopted in August, 1995. The omitted language authorizes the enforcement committee to enter into an agreed settlement subject to approval of the Board. The amendment ensures that the rule provides a realistic minimum time for notice of the hearing after temporary suspension has been initiated. The addition of the language that was inadvertently omitted will provide an uncomplicated disciplinary option that is acceptable to the board and the licensee. No comments were received regarding the adoption of the amendment. The amendment is adopted under the authority of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, sec.7(a) which states "The Board may make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this act." This amendment affects the Veterinary Licensing Act, Article 8890, sec.14 C authorizing temporary license suspensions by the Board. 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 February 4, 1997. TRD-9701620 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: February 26, 1997 Proposal publication date: November 5, 1996 For further information, please call: (512) 305-7555 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 290.Water Hygiene SUBCHAPTER D.Rules and Regulations for Public Water System 30 TAC sec.sec.290.42, 290.44, 290.47 The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.sec.290.42, 290.44, 290.46, and 290.47, relating to the rules and regulations for public water supply systems. Section 290.47 is adopted with changes to the proposed text as published in the September 13, 1996, issue of the Texas Register (21 TexReg 8805). Amendments to sec.sec.290.42, 290.44 and 290.46 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULE The purpose of the adopted rules is to clarify when a boil water notice to customers is required and to specify other responses to a drop in pressure in water distribution lines required of public water suppliers. This has been accomplished by revisions to sec.290.46(s) and by the addition of an appendix that diagrams decisions and corrective action that a public water supply system must take in response to a drop in water distribution system pressure. The adopted rules also correct typographical errors. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to the Texas Government Code, sec.2007.043. The specific purpose of the rules is to protect the health, safety and welfare of the public. The rules will substantially advance this specific purpose by providing additional guidance as to what a public water supplier must do in response to a loss of pressure in all or part of the water distribution system. The promulgation and enforcement of these rules will not adversely affect private real property. GENERAL COMMENTS Written comments were provided by seven commenters. Written testimony in support of the proposed rules was provided by: ECO Resources, Inc., and The Independent Water and Sewer Companies of Texas. Written testimony which questioned certain sections, or requested clarification was provided by the City of Odessa, the Dallas Water Utilities, the Fort Worth Water Department, MTS Utilities Management, and the Texas Municipal League. The following paragraphs summarize the written comments received. The City of Odessa suggested that the language of sec.290.46(s) should be clarified to state whether boiled water notices must be issued in cases of low distribution pressures that may result from causes other than maintenance, repair, or emergency incidents as noted in the flowchart, sec.290.47(h). The commission disagrees with the comment. As stated in sec.290.46(s), special precautions, including a boil water notification, must be issued for cases of low distribution pressures (below 20 pounds per square inch (psi)), water outages, repeated unacceptable microbiological samples or failure to maintain adequate chlorine residuals. The commission intends that any one of those conditions will give rise to the requirement for taking the specified special precautions. Regardless of the cause of low distribution pressure, the public water supplier must institute special precautions, under the adopted rule. The Dallas Water Utilities and the Fort Worth Water Department suggested that the flow chart showing the public water supplier response to loss of water pressure, sec.290.47(h), should specify which AWWA standard is referenced. The commission disagrees with the comment. The AWWA standard is referenced in sec.290.44(f), and the term "AWWA standards," as used in the rules, is defined in sec.290.38 as the latest edition of the applicable standards as approved and published by the American Water Works Association, 666 West Quincy Avenue, Denver, Colorado 80235. The standards are not further specified in the rules, because the AWWA is continually revising the standards, and in the process, renumbering the standards. The AWWA standards are sufficiently well organized, captioned, and indexed so that it is clear which standard covers disinfection of water mains. The Fort Worth Water Department and the Texas Municipal League comment that under the AWWA standard, no disinfection is required when repairs are made to mains that remain full of pressurized water, and these commenters suggest that the rule follow AWWA standards in this respect. The commission recognizes that the AWWA standards do not require disinfection of repaired mains where the main remained filled with pressurized water. The commission disagrees that the adopted rule does not make a similar allowance. As described in the flowchart, in the event that the pressure never drops below 20 psi during the incident, the public water supplier need only complete the repair and restore normal pressure. Under those circumstances, no disinfection is required. The City of Fort Worth Water Department and the Texas Municipal League suggest that the flowchart state that the repaired main can be returned to service prior to completion of bacteriological testing. The Dallas Water Utilities and MTS Utilities Management interpreted the proposed rule as requiring a completed bacteriological sample analysis before the main is placed back into service. The commission has always intended that a repaired main could be returned to service prior to completion of bacteriological testing. Accordingly, language has been inserted into the flowchart to clarify that the repaired main can be returned to service when bacteriological samples are first taken; the public water supplier need not wait until all bacteriological samples are negative. The City of Fort Worth and the Texas Municipal League suggested requiring bacteriological testing after only some repairs, such as repairs on major lines, high risk repairs, or on a random basis, or only for new lines. These commenters suggest that the rule will increase the number of required bacteriological tests. The commission disagrees. The rule does not require bacteriological testing for repairs where the pressure does not drop below 20 psi. Furthermore, the amended version of the rule has the same requirements for bacteriological testing after repairs as the prior version of this rule. The commission does not intend for the amended rule to increase the required number of bacteriological tests. The commission does intend to retain the requirement for bacteriological tests at the conclusion of all repairs, where the pressure dropped below 20 psi, in order to provide a record for determining the disinfection procedure's effectiveness. The Dallas Water Utilities questioned whether all disinfection options allowed by the AWWA standard for water main disinfection were allowed under the rule. The commission intends, as stated on the flow diagram, to allow all disinfection options specified in the AWWA Standard, including the tablet method, continuous- feed method, and slug method. The Dallas Water Utilities questioned whether flushing was intended to be required on all repairs. The commission intends, as indicated on the flow diagram, in accordance with the AWWA standard, to require flushing on all repairs because it is the "most practical means of removing contamination introduced during repairs." The AWWA standard requires flushing to "be started as soon as the repairs are completed and shall be continued until discolored water is eliminated." MTS Utilities Management questioned whether the special precautions rule is intended to apply to individual customer service lines. They suggest that exclusion of customer lines from application of the rule is appropriate. The commission agrees. In keeping with the definition of public water system contained in sec.290.38 (Definitions) only distribution facilities under control of the operator are intended to be included in the definition of public water system, and thus subject to the rules. The commission does not intend the special precautions section, sec.290.46(s), to apply to drops in pressures in individual customer service lines. MTS Utilities Management questioned how the utility is to determine whether the distribution line is fully or partially dewatered. They suggested that when in doubt the utility should err on the side of safety and assume the line is dewatered. The commission agrees. For the majority of water main repairs, whether the distribution line is fully or partially dewatered will be immediately apparent. In those situations where there is some doubt, the suggested response is appropriate. MTS Utilities Management questioned what should be the procedure in distribution lines that did not have an entry point for disinfectant. They suggested that a special tap could be cut in the main. The commission agrees. Under the rule as written, this is an acceptable approach to the problem. Where an acceptable disinfectant entry point is not available, the public water system may also wish to consider the slug method of disinfection. MTS Utility Management questioned what should be done if no approved laboratories for bacteriological sample testing is open at the time of repair. They suggested that the public water system schedule as many repairs as possible during normal lab hours. For those repairs made after hours and on weekends, they suggest collecting the bacteriological samples at the earliest available opportunity within lab hours and holding times. The commission agrees. Under the rule as written this is an acceptable approach where no approved laboratories for bacteriological sample testing are open at the time of repair. The amendment sections are adopted under Texas Water Code, sec.5.103, which provides the commission the authority to adopt and enforce rules necessary to carry out its powers and duties under the laws of this state. The sections are also adopted under the Texas Health and Safety Code, Chapter 341, Subchapter C, which governs sanitary standards for drinking water, protection of public water supplies, and bodies of water. sec.290.47.Appendices. (a)-(g) (No Change.) (h) Appendix H. Special Precautions Flowchart. Figure 1: 290.47 (h) 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 February 10, 1997. TRD-9701892 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: March 3, 1997 Proposal publication date: September 13, 1996 For further information, please call: (512) 239-4640 CHAPTER 312.Sludge Use, Disposal and Transportation SUBCHAPTER G.Transporters and Temporary Storage Provisions 30 TAC sec.312.143 The Texas Natural Resource Conservation Commission (commission) adopts an amendment to sec.312.143, concerning Transporters and Temporary Storage Provisions with changes to the proposed text as published in the November 19, 1996, issue of the Texas Register (21 TexReg 11267). EXPLANATION OF RULE The amendment is in response to a need resulting from a federal mandate of Subtitle D of the Resource Conservation and Recovery Act (RCRA) which bans liquid waste from being disposed of at landfills. Title 40 Code of Federal Regulations Parts 257 and 258, as amended, implement certain requirements of RCRA Subtitle D and generally prohibit bulk liquid waste disposal at municipal solid waste landfills. Since the ban of liquid waste receipt at landfills became effective on the dates of October 9, 1993, and April 9, 1994, a lack of disposal service for these liquid wastes is being observed in some regions of the state. The commission is concerned that much of the liquid wastes banned from landfilling by Subtitle D are being improperly handled causing a real and potential threat to the health and environment of the people of the state. Consequently, a need existed to adopt this amendment. The commission adopts this rule in order to encourage the establishment of full pump out of grease traps due to a reported and observed incomplete handling of liquid wastes from interceptors. The amendment to sec.312.143 relating to transporter delivery requirements, adds new language which states that each trap pumped shall be evacuated 100%. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code Annotated Section 2007.043. The following is a summary of that assessment. The specific purpose of the rule is to require total evacuation of grease and grit traps. This section will not involve a physical invasion, dedication, or exaction of real property, does not restrict or limit a property right that would otherwise exist, and does not eliminate any economic uses of private real property. The rule will significantly contribute to an alleviation of any threat to human health and environment by establishing standard for full evacuation of grease and grit traps. The rule is necessary to advance the agency's mission of providing the public with protective and adequate health and safety relative to facilities wishing to engage in the management of liquid waste. This regulation is required to implement the agency's stated authority to establish such regulations and to protect human health and the environment. The regulation does not impose a greater burden than is necessary to achieve the stated health and safety purpose. HEARING AND COMMENTERS A public hearing was held in Austin on November 26, 1996. The comment period closed December 19, 1996. No oral comments were received at the public hearing concerning sec.312.143 regarding full-pump requirements. The following commenters submitted written comments in general support or with suggested changes: American WasteWater Ltd., GTM, Mesa Processing, Scientific Consulting Laboratories, Inc., Southwest Interceptor Maintenance Company, Texas A&M University, and Wastewater Systems, Inc. Mesa Processing supported sec.312.143 requiring full pump-out of grit and grease traps. American WasteWater Ltd., GTM, and Wastewater Systems, Inc. supported the concept of sec.312.143 requiring full pump-out of grit and grease traps, but identified situations where the intent of the rule could not be followed and provided language to clarify the rule. The commission agrees with the commenters, and clarifying language has been added to this section. Scientific Consulting Laboratories, Inc. supported the full pump-out concept of sec.312.143 but suggested that language be added to have each trap pumped out at a specified frequency. The commission believes this comment has merit, but is beyond the scope of this rulemaking. Regarding sec.312.143, Southwest Interceptor Maintenance Company commented that skimming of extremely large traps should be allowed rather than requiring full pump-out. The commission disagrees with this comment, because for consistency with the existing trip ticket requirements of sec.312.143, all waste must be removed from a grease trap and accounted for within the manifest system. Texas A&M University commented on sec.312.143, suggesting that if a wastewater treatment plant is allowed to accept separated greywater from grease and grit traps, the costs of disposal will be reduced. The commenter provided suggested language to modify sec.312.143. The commission would like to point out that the definition of greywater as specified in existing sec.285.11, does not include separated water from a grease trap. Greywater is defined as "wastewater from clothes washing machines, showers, bathtubs, hand washing lavatories, and sinks that are not used for food preparation or disposal of chemical and biological ingredients." However, the commission does support the controlled separation of materials from grease traps, as illustrated by sec.330.72. The commission has made no change in response to this comment. STATUTORY AUTHORITY This section is adopted under the Texas Water Code, sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. sec.312.143.Transporters - Delivery Requirement and Full Pump-out Requirement. Transporters shall deposit wastes at a facility designated by or acceptable to the generator where the owner or operator of the facility agrees to receive the wastes and the (Texas) facility has written authorization by permit or registration issued by the executive director to receive wastes. In this regard, "authorization by the executive director" means the executive director or commission has given its approval by rule, permit, letter, or other document that identifies the individual facility or class of facilities to receive that specific waste or class of waste. Each grit trap and grease trap pumped shall be fully evacuated unless the trap volume is greater than the tank capacity on the vacuum truck in which case the transporter shall arrange for additional transportation capacity so that the trap is fully evacuated within a 24 hour period. If a transporter cannot fully evacuate a grit trap or grease trap because the trap volume is greater than the tank capacity on the truck, the transporter shall arrange for additional transportation capacity to ensure the trap is fully evacuated within the 24-hour period following the transporter's inability to fully evacuate the trap. 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 February 10, 1997. TRD-9701848 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: March 3, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 CHAPTER 317.Design Criteria for Sewerage Systems 30 TAC sec.317.1 The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.317.1, relating to the General Provisions of the Design Criteria for Sewerage Systems. Section sec.317.1 is adopted with changes to the proposed text as published in the November 8, 1996, issue of the Texas Register (21 TexReg 10961). EXPLANATION OF ADOPTED RULE The purpose of the amendments is to greatly reduce the volume of plans and specifications that are required to be submitted to the executive director and to eliminate notification procedures for municipalities which qualify as plans and specifications review authorities. These changes are necessary to allow limited staff resources to focus on those plans and specifications which need staff review because of: a proposed innovative technology; a history of compliance problems; special considerations associated with the stream segments which will receive the effluent discharge; and where no qualified municipalities exist to review plans and specifications pursuant to House Bill 1826 (74th Legislative Session). Additionally, the rules provide that those persons subject to the submittal requirements specified in the Texas Water Code, sec.26.034, will initially only be required to submit a summary to the executive director, which includes information regarding proposed wastewater collection, treatment, or disposal projects. This summary submittal requirement will eliminate the burdens associated with sending in detailed technical information and blueprints to the agency when no agency review will be performed. The actual plans and specifications, and engineering report will remain on file with the project originators and be available for TNRCC inspection. These amendments also more clearly recognize qualified municipalities as review authorities for wastewater collection system plans and specifications. As with the existing rules, such projects reviewed and approved by municipalities will not be subject to any submittal or review by the executive director. Written public comments on the amendments were received from four separate entities. Their comments and the commission's responses to these comments are included in a separate part of this preamble. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules 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 ease the burden on the commission and those regulated by the rule by not requiring completed plans and specifications and engineering reports for all wastewater projects to be submitted to the commission for approval. Promulgation and enforcement of these rules will not affect private real property which is the subject of the rules. COMMENTERS The commission received no requests for a public comment hearing and no public hearing was held. The public comment period closed on December 9, 1996. The commission received 4 written comments on the proposal from the following cities: Amarillo, Fort Worth, Lubbock, and Wichita Falls. COMMENTS ON GENERAL PROVISIONS The City of Wichita Falls stated that the proposed sec.317.1(a)(3)(A) includes submittal requirements which are more burdensome than the requirements in the existing sec.317.1(a)(5)(G) that give the city review authority for its own designed capital improvement projects. The commission disagrees with this statement. Section sec.317.1(a)(5)(G) of the existing rule requires municipalities which perform reviews of their own fully or partially funded capital improvement projects to submit a complete set of plans and specifications to the commission for these projects. The commission, then, can choose to perform reviews of these plans and specifications. In the new rule, the submittal requirements are reduced to simply require a summary transmittal letter for these projects, thereby eliminating the need for a complete plans and specifications submittal. The Cities of Wichita Falls, Amarillo and Lubbock questioned why they should be required to provide any materials to the commission for projects that the municipalities' qualified Professional Engineers have designed, as required in sec.317.1(a)(3)(A). The commission responds that the rule will allow cities to review their own work; however, Texas Water Code, sec.26.034(d) restricts municipality authority over reviews to projects prepared by persons separate from the review authority, such as contracted professional engineer consultants. Requiring municipalities to submit summary letters for projects which they both design and review is not overly burdensome and provides the commission the opportunity to review these projects, if deemed necessary by the executive director, to alleviate situations where conflict of interest, either real or perceived, may arise. The City of Wichita Falls stated that the language in sec.317.1(a)(3)(C) was "unclear as to the definition of other wastewater projects." The commission agrees and has modified the language to further define the projects for which a summary transmittal letter must be submitted to the commission. The City of Fort Worth expressed concern about the proposed requirements in sec.317.1(a)(3)(C), which requires municipalities to submit a summary transmittal letter to the commission for all projects designed by the municipalities. The city recommended that smaller system extensions be excluded from submittal requirements, as proposed in prior rule revisions. The commission agrees that, for a certain subset of smaller projects, cities should not be required to submit a summary transmittal letter. The language has been modified accordingly. The City of Amarillo suggested that the language in sec.317.1(a)(4)(A) be changed to read, "...Plans and specifications found to substantially comply with all applicable..." in order to allow for deviations from established criteria when warranted by the best professional judgement of the design engineer. The commission disagrees with this comment. The word "substantially" is not necessary because the proposed rule allows variances to the requirements of Chapter 317, if technically justified. Additionally, municipalities are free to grant variances to specific requirements to this chapter, as long as the project designer provides technical justification for the variance. Under this structure, a project should be able to fully comply with this chapter. The City of Amarillo suggested that the language in sec.317.1(a)(5)(A) be modified to read: "...process shall require a professional engineer registered in the State of Texas who designs a project in 3(A) of this subsection to ensure that the design is in substantial..." thus having the design engineer share in the liability and responsibility for the project's compliance. The commission disagrees with this comment. Any design engineer is required to comply with Chapter 317; however, it is the responsibility of the municipalities to ensure that their review programs include sufficient oversights and safeguards to protect against improperly designed projects. STATEMENT OF AUTHORITY The amendments are adopted under the Texas Water Code, sec.26.034, which provides the commission with the authority to make rules setting standards for approval of disposal system plans. The sections are also proposed under the Texas Water Code, sec.5.103, 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 this state. sec.317.1.General Provisions. (a) Purpose. These design criteria are minimum guidelines to be used for the comprehensive consideration of domestic sewage collection, treatment, or disposal systems and establish the minimum design criteria pursuant to existing state statutes pertaining to effluent quality necessary to meet state water quality standards. These criteria are intended to promote the design of facilities in accordance with good public health and water quality engineering practices. These criteria include the minimum requirements for a preliminary engineering report which provides the general engineering concepts underlying the proposed project as well as the final engineering report detailing the fully developed project along with related plans and specifications. (1)-(2) (No change.) (3) Submittal requirements. (A) "Sanitary sewer collection system projects," which will be constructed within the jurisdiction of a municipality which performs technical reviews of sanitary sewer collection system projects under the Texas Water Code, sec.26.034, and which are not prepared by the staff of a municipality, need not be submitted to the agency for review. (B) "Sanitary sewer collection system projects," which are prepared by the staff of a municipality, which will be constructed within the jurisdiction of a municipality which performs technical reviews of sanitary sewer collection system projects under the Texas Water Code, sec.26.034, and where the entire project falls into one or more of the categories outlined in clause (i) through (iii) of this subparagraph, need not be submitted to the agency for review. (i) Any conventional gravity sewer collection system lines less than 1,500 linear feet in length which are extensions to existing systems where the existing system has been completed and in operation at least six months; (ii) Any duplex lift stations which have a firm pumping capacity of less than 100 gallons per minute; (iii) Any conventional gravity sewer piping less than 12 inches in diameter. (C) "Domestic wastewater projects" which receive a technical review and approval from a state agency other than the commission need not be submitted to the agency for review, if: (i) the review is performed under the supervision of a professional engineer registered in the State of Texas, the review ensures that the project complies with this chapter, and the state agency has requested that the commission not perform technical reviews of a wastewater project or category of projects; or (ii) the state agency has been granted review authority in lieu of the commission under state law. (D) A summary transmittal letter shall be submitted, by certified mail, to the Wastewater Permits Section, and to the appropriate commission regional office, for all wastewater projects constructed in the State of Texas, which are not exempted from the commission's submittal requirements as detailed in subparagraphs (A), (B), or (C) of this paragraph. If the executive director does not notify the person who submitted the summary that a review will occur, under subparagraph (E) of this paragraph, the project is deemed approved. The information in the summary shall be signed, dated, and sealed by a professional engineer registered in the State of Texas. All summaries shall include, at a minimum: (i) the name and address of the design firm; (ii) the name, phone number and facsimile number of the design engineer; (iii) the county(s) in which the project will be located with an identifying name for the project; (iv) the name of the entity which proposes to own, operate, and maintain the project through its design life; (v) the permit name and permit number of the relevant wastewater treatment facility; (vi) a statement verifying that the plans and specifications are in substantial compliance with all the requirements of this chapter and which states that any deviations from the requirements are based on the best professional judgement of the registered professional engineer who prepared the project plans and specifications and final engineering design report; and (vii) a brief description of the project scope which includes the specifics of the project, a description of deviations from the requirements of this chapter, including the use of non-conforming or innovative technology, and an explanation of the reasons for such deviations. (E) Any project, for which a summary is submitted, is subject to review by the executive director. Factors to be used to determine whether a review will be performed include, but are not limited to, whether or not a nonconforming or innovative technology is being proposed, the stream segment in which the project is located, and the applicant's compliance record. If the executive director chooses to review a project, the design engineer will be notified in writing or by facsimile of the executive director's intent to review the project, within ten days of receipt of the summary. Upon receipt of the notification of intent to review, the design engineer shall submit to the executive director a complete set of plans and specifications and a complete final engineering design report. These submitted materials shall be sufficient to satisfy the executive director that the project is in compliance with this chapter. If the executive director reviews a project, any approval may be granted under paragraph (4) of this subsection. Construction may not commence until approval has been obtained. (F) A complete set of plans and specifications, the final version of such plans and specifications with engineer's certification, a complete engineering design report, all change orders and test results, a copy of the written summary submitted to the executive director, and any written approvals granted by the executive director, a municipality, or another state agency, shall be maintained and kept by the permittee, or for collection system projects, person(s) responsible for management of the collection system, for at least three years from the date the engineer certifies to the executive director that the project is complete. These materials shall be submitted to the executive director, another state agency, or municipality upon request. Such materials must be readily available for inspection by the executive director's staff upon request during regular business hours. (4) Types of approval. Regardless of the type of approval, constructed facilities when in operation are required to produce the quality of effluent specified in their discharge permit(s). The types of approvals described in subparagraphs (A) through (C) of this paragraph will be utilized by the commission or any other review authority. (A)-(C) (No change.) (5) Municipalities performing technical reviews of sanitary sewer collection systems under Texas Water Code, sec.26.034, within 90 days of the effective date of this rule and/or within 90 days of a boundaries change, shall submit maps to the agency's Wastewater Permits Section detailing the boundaries of the review authority. If a municipality decides to perform technical reviews of sanitary sewer collection systems after the effective date of this rule, the municipality shall submit maps detailing the boundaries of the review authority, within the thirty days before starting these reviews. If at any time a municipality, which has chosen to implement this review authority, decides to cease review of sanitary sewer collection system plans and specifications, the municipality shall notify the executive director within thirty days of the date on which the final plans and specifications review is expected to be performed. In order to meet the standards specified in the Texas Water Code, sec.26.034, municipalities shall incorporate the items detailed in subparagraphs (A) through (E) of this paragraph into their review programs: (A) The municipality's review and approval process shall ensure compliance with the rules of this chapter. (B) All reviews performed by an employee of the municipality shall be conducted by a professional engineer, registered in the State of Texas, or the employee conducting the review shall be under the direct supervision of a professional engineer, registered in the State of Texas, who is ultimately responsible for the review and approval of each collection system submitted and installed in the municipality's jurisdiction. (C) The responsible review engineer shall be either an employee of the reviewing municipality, or a consultant to the municipality, separate from the private consulting firm charged with the design work under review. For purposes of this section, the term "separate" means that the responsible review engineer is not employed by and does not receive compensation from the private consulting firm and from any of its parent companies, subsidiaries or affiliates charged with the design. The municipality shall provide on request documentation of its agreements with private consultants sufficient to allow the agency to audit its compliance with this subsection. (D) A participating municipality may review and approve engineering reports, plans and specifications only for projects which transport primarily domestic waste within the boundaries of jurisdiction of that municipality. For each project approved for construction, the municipality shall issue an approval letter or other indication of the approval which clearly details the project being approved. (E) The municipality shall maintain complete files of all review and approval activities carried out under its authority and shall make any existing project files available to the commission upon request and/or during audits performed in accordance with paragraph (6) of this subsection. (6) The executive director may perform periodic audits of the review and approval process of municipalities which perform technical reviews of sanitary sewer collection systems in lieu of the commission, to ensure that the projects approved by the municipalities are in compliance with this chapter. If the executive director decides to perform an audit of a municipality's review and approval process, the executive director will provide the municipality with a minimum of five working days advance notice of the pending audit. The executive director may, for auditing purposes only, review specific projects which have previously been approved by the review authority. The municipality shall provide to the executive director, on request, documentation of all agreements between the private consultants and the municipality, which relate to the wastewater collection system review program. If the executive director finds through reviews of specific projects or through audits of the municipality's review and approval process that a municipality's review and approval process does not provide for compliance with the minimum design and installation requirements detailed in this chapter, the review and approval authority shall address these findings within a time established by the executive director. If compliance cannot be achieved, the review authority shall be voided for that municipality. If such authority is voided for a municipality, the executive director shall notify the municipality in writing and shall include the justification for voiding the authority of the municipality. If the authority of a municipality is voided, all new projects proposed to be constructed within that municipality's jurisdiction shall be submitted to the executive director in accordance with paragraph (3)(D) of this subsection. (b)-(f) (No change.) 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 February 10, 1997. TRD-9701834 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: March 3, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 239-4640 CHAPTER 330.Municipal Solid Waste The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.330.4 and new sec.sec.330.71-330.73, concerning municipal solid waste management. Adopted with changes as published in the November 19, 1996, issue of the Texas Register (21 TexReg 11267) are sec.330.71 and sec.330.72. Sections 330.4 and 330.73 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULE The new sections and amendments are adopted in response to a need resulting from a federal mandate of Subtitle D of the Resource Conservation and Recovery Act (RCRA) which bans liquid waste from being disposed of at landfills. Title 40 Code of Federal Regulations, Parts 257 and 258 as amended, implement certain requirements of RCRA Subtitle D and generally prohibit bulk liquid waste disposal at municipal solid waste landfills. Since October 9, 1993, and April 9, 1994, when the ban on liquid waste receipt at landfills became effective, a lack of disposal service for these liquid wastes has been observed in some regions of the state. The commission is concerned that much of the liquid wastes banned from landfilling by Subtitle D are being improperly handled, causing a real and potential threat to the environment and the health of the people of the state. The commission is promulgating these rules in order to encourage the establishment of processing facilities to handle liquid waste. An applicant wishing to operate a Type V municipal solid waste processing facility that processes grease trap waste, grit trap waste, or septage or a combination of these wastes, may be eligible for a registration in lieu of a permit, upon compliance with certain requirements. In particular, the facility must comply with design and operational requirements, and a public meeting must be held in the area where the facility is to be located. Technology related to mobile processing of liquid waste is emerging as a result of the ban of disposal of liquid waste at landfills. Mobile liquid waste processes have not previously been regulated by the commission, and these rules will establish operating and design requirements for mobile processing units that handle liquid waste. An applicant wishing to operate a mobile municipal solid waste processing unit that processes grease trap waste, grit trap waste, or septage or a combination of these wastes, must obtain a registration and comply with certain design and operational requirements. Also, these rules will encourage the establishment of new methods for processing and handling liquid wastes such as grease trap waste, grit trap waste, and septage. An applicant wishing to operate a Type VI municipal solid waste processing facility to demonstrate a new process of managing grease trap waste, grit trap waste, or septage or a combination of these wastes, may be eligible for a registration in lieu of a permit, upon compliance with certain requirements. In particular, the facility must comply with design and operational requirements, and a public meeting must be held in the area where the facility is to be located. Section 330.4(s) relating to Permit Requirement, adds new language which states that a permit is not required for a Type V municipal solid waste management facility that processes grease trap waste, grit trap waste or septage, or a combination of these liquid wastes, if the facility meets certain operational criteria, design criteria, and if certain recovery of materials is attained, or if the new facility is located at an existing permitted facility. Section sec.330.4(t) relating to Permit Requirement, adds new language which states that a registration is required for a mobile municipal solid waste management facility that processes grease trap waste, grit trap waste or septage, or a combination of these liquid wastes. Section sec.330.4(u) relating to Permit Requirement, adds new language stating that a permit is not required for a Type VI municipal solid waste management demonstration facility demonstrating a new process for handling grease trap waste, grit trap waste or septage, or a combination of these liquid wastes, if the facility meets certain operational and design criteria. New sec.330.71 relating to requirements for an application for registration of municipal solid waste facilities (Type V) that process grease trap waste, grit trap waste, or septage or a combination of these liquid wastes, delineates operational standards, and design criteria which must be met by liquid waste processing facilities exempted from permit requirements under sec.330.4(s). Those facilities which the executive director determines have met the operation and design requirements in sec.330.71 will be eligible for a registration. New sec.330.72 relating to requirements for an application for registration of mobile liquid waste processing units that process grease trap waste, grit trap waste, or septage, or a combination of these liquid wastes, delineates operational standards and design criteria which must be met by mobile liquid waste processing facilities exempted from permit requirements under sec.330.4(t). Those mobile units which the executive director determines have met the operation and design requirements in sec.330.72 will be eligible for a registration. New sec.330.73 relating to requirements for an application for registration of municipal solid waste facilities (Type VI) that demonstrate new handling or processing methods for grease trap waste, grit trap waste, or septage, or a combination of these liquid wastes, delineates operational standards and design criteria which must be met by liquid waste processing facilities exempted from permit requirements under sec.330.4(u) in order to be registered. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that assessment. The specific purpose of these rules is to regulate mobile and fixed location liquid waste processing facilities. The rules will provide the authorization method as well as specific operational and design standards for commercial and publicly owned liquid waste processing units. Unless otherwise provided under existing regulation, any owner or operator who seeks a registration for a new activity specified under these new sections must comply with all technical and administrative standards stipulated by the new regulations. These sections of Chapter 330 will not involve a physical invasion, dedication, or exaction of real property, do not restrict or limit a property right that would otherwise exist, and do not eliminate any economic uses of private real property. The rules will significantly contribute to an alleviation of any threat to human health and the environment by establishing standards for mobile and fixed location liquid waste processing units. The rules are necessary to advance the agency's mission of protecting the public health and safety, relative to facilities wishing to engage in the management of liquid waste. These regulations are required to effectuate the agency's stated purpose of establishing such regulations and to protect human health and the environment. The regulations do not impose a greater burden than is necessary to achieve the stated health and safety purpose. HEARING AND COMMENTERS A public hearing was held in Austin on November 26, 1996. The comment period closed December 19, 1996. Betts Pump Service and Southwest Interceptor Maintenance Company provided oral comments at the public hearing in general disagreement with sec.330.72 of the proposed rules regarding regulation of mobile processors. Ten commenters submitted written comments on the proposal. The following seven commenters submitted comments in general support but with suggested changes: American WasteWater Ltd., Golden Spread Pumping, GTM, Mesa Processing, Scientific Consulting Laboratories, Inc., Texas A&M University, and Wastewater Systems, Inc. Betts Pump Service, the City of McAllen, and Southwest Interceptor Maintenance Company (SIMCO) opposed sec.330.72 of the proposal regarding mobile liquid waste processing units. Section 330.4 GTM commented that the term "recovery for beneficial use" as used in sec.330.4(s)(1), should be expanded to include biosolids resulting from an organic stabilization process. To include biosolids from a Type V process as a beneficial use would require extensive rulewriting. The commission believes this comment has merit, but it is beyond the scope of this rulemaking. In regard to sec.330.4(s)(1), Scientific Consulting Laboratories, Inc. commented that processing should be allowed at liquid waste transfer stations or other approved municipal solid waste facilities. A registration in lieu of a permit will allow processing at these facilities if 10% or more material can be recovered for reuse. The commission believes that this registration is an incentive to recover material and provides the adequate level of authorization for processing facilities at the suggested locations. The commission has made no change in response to this comment. Section 330.71 American WasteWater Ltd. commented that the sec.330.71(e)(6)(S) record keeping requirement should be modified so that failure to meet the 10% standard for material to be recovered in two quarters in any one year would be grounds for termination of the registration. The commission agrees with this comment because the purpose of allowing registration in lieu of a permit is to promote resource recovery and reduction of waste going to a landfill. The commission has revised the rule accordingly. Section 330.72 The City of McAllen Public Utilities (MPU) strongly disagreed with sec.330.72 regarding mobile liquid waste processing units. "MPU spends a large portion of time cleaning manholes and sewer lines due to accumulation of grease and oils in the sanitary sewer collection system. MPU's grease problems greatly increased with the emerging technology of mobile processors (separator trucks). Use of mobile processors is practically universal in the restaurant community, and extensive use of mobile processors has caused a burden on our city. MPU was disappointed and disturbed that the recent revisions to proposed rules failed to prohibit mobile processors." The commission agrees that mobile processors can cause burdens on city collection systems. Consequently, the standards applicable for the discharge from mobile processing units were chosen to be protective of collection systems. Additionally, the local operator of the wastewater treatment system has been given many enforcement tools by these rules including the ability to ban these operations from their jurisdiction. The commission has made no change in response to this comment. Golden Spread Pumping commented on sec.330.72(a) that a limit of 150 miles should be placed on the range that a mobile processing unit can travel from its home base. The commission has not made a change in the rule language regarding this comment because a lack of disposal service for these liquid wastes has been observed in some regions of the state and the commission does not support limiting the service. SIMCO commented on sec.330.72(a) in regard to the use of the term "mobile processor". The commenter does not support the use of this term because the commenter's equipment separates material by using the same gravity system that a grease trap uses, then discharges back into the trap. The commenter suggested the term "separator truck" not be used synonymously with "mobile processor". The commission disagrees with this comment, because the term "Processing" as defined in existing sec.330.2 includes "the extraction of materials," "volume reduction," and "preparation of solid waste for reuse or disposal." Accordingly, any one of these methods utilized by separator trucks puts the activity in the processing category. The commission has made no changes in response to these comments. Scientific Consulting Laboratories, Inc. supported the mobile processing unit registration concept but suggested that language be added to sec.330.72(a)(1) to include in-trap processes as part of the mobile liquid waste processing definition. The commission disagrees with this comment because in-trap processing is beyond the scope of this rulemaking. American WasteWater Ltd. commented that in regard to sec.330.72(e), Demonstration of Viability, the language for the standard for grab samples should be clarified by referencing the table in sec.330.72(c)(1). The commission agrees that the rule language should be clarified regarding the field tests being conducted, as the intent of the rule is to use the standards specified in the table. Language has been added to sec.330.72(e) to clearly reference the standards in the table in sec.330.72(c)(1). American WasteWater Ltd. commented that in regard to sec.330.72(e), Demonstration of Viability, the language should be clarified to have tests conducted by both the commission and local staff. The commission agrees that the rule language should be clarified regarding the field tests being conducted by both commission staff and, as appropriate, local government staff. Language has been added to sec.330.72(e) to clarify that both the commission staff and local government staff may conduct field tests. Betts Pump Service commented on sec.330.72(e) stating that the language for the demonstration of viability for mobile processing units should be clarified to identify the length of time between testing pump cycles. The commission does not agree that clarification is needed, because the proposed rule specifies the cycles such that within a one-day period three traps will be serviced that have not been serviced for 30 days. The commission has made no change in response to this comment. Betts Pump Service commented on sec.330.72(e) stating that the language regarding field tests for the demonstration of viability should be clarified to assure that the field tests are conducted on traps that are representative of the traps generally pumped by the applicant. The commission agrees that the rule language should be clarified regarding the field tests being conducted on traps that are representative of the waste normally processed, and language has been added to this section. In regard to sec.330.72(e), Demonstration of Viability, American WasteWater Ltd. commented that demonstrating the process on three traps in a single day may not be adequate. The commission believes that testing the process on three traps in a single day is adequate. However, the commission is adding language to clarify the types of traps to be used in the test. In regard to sec.330.72(e), Betts Pump Service questioned the need and economics of testing effluent samples due to a duplication of regulation by local and state government. The commission would point out that this is a one-time-only requirement for purposes of registration and will assure the protection of the environment and public health. As such, the commission does not believe that an undue burden is being imposed. The commission has made no change in response to this comment. In regard to sec.330.72(e), both American WasteWater Ltd. and Betts Pump Service questioned the place that samples will be taken. The intent of the rule is to take samples from the effluent discharge of the mobile processing unit and not from the discharge of a trap. Language clarifying this intent has been added to this section. SIMCO commented on sec.330.72(e), that tests should be performed on the effluent from the discharge of the trap after the process has been completed and not directly from the discharge of the mobile processing unit. The commission disagrees with this comment, because the liquid that is being re- introduced into the trap may still contain emulsified grease and pollutants in suspension. This water is not to be called "greywater". Greywater is specifically defined in sec.285.11 and does not include grease trap separated liquids. The commission has made no change in response to this comment. Betts Pump Service questioned the need and economics for tests on waste required by proposed sec.330.72(f)(4)(A). The commission has required a one-time-only test of the waste incoming to the mobile liquid waste processing unit to set the baseline for the process design. If only food waste is to be processed, it is reasonable to perform only food related tests such as pH, fats, oil, and grease concentration, total suspended solids, and biological oxygen demand (BOD). These few tests on a one-time basis will have a nominal economic impact on an applicant, and will assure that the public health and the environment are protected. The commission has made no change in response to this comment. In regard to sec.330.72(f)(4)(A), Betts Pump Service commented that transporters should be required to have tests made on waste similar to those being required of mobile processors. The commission disagrees because of differences between transporters and mobile processors. A transporter is allowed to unload only at an authorized disposal facility, whereas a mobile processor frequently discharges directly to the wastewater system and, therefore, the mobile processing unit takes the place of the authorized disposal facility. It is the responsibility of the disposal unit or processing unit to provide analyses. The commission has made no change in response to this comment. Betts Pump Service commented on sec.330.72(f)(5)(C) that the language regarding odor control should also be applied to transporters. The commission disagrees because the transporter rules currently have odor control measures. The commission has made no change in response to this comment. Betts Pump Service commented on sec.330.72(f)(5)(E) that the transporter rule in sec.312.145 already regulates mobile processing units for record keeping. The commission disagrees with this comment, because one of the most important aspects of managing mobile processing units is to have total accounting of the waste entering the mobile unit, discharged by the unit, and transported by the unit. No duplication of record keeping is foreseen. The commission has made no change in response to this comment. Betts Pump Service commented on sec.330.72(f)(5)(F) that spill controls are established in sec.312.146. The commission disagrees with this comment, because spill controls in existing sec.312.146 deal with transporters and spill controls in sec.330.72(f)(5)(F) deal with mobile processors. The commission has made no change in response to this comment. Betts Pump Service commented on sec.330.72(f)(6) that the language regarding unit operating plan should also be applied to transporters. The commission would point out that rules regarding the unit operating plan are expressly for the operating process for mobile processing units which transporters do not have. The commission has made no change in response to this comment. Betts Pump Service commented on sec.330.72(f)(6) that the waste processed by that company is only grease trap waste and the requirements of sec.330.72(f)(6) consider other types of waste as well as grease trap waste. The commission would point out that rules regarding the mobile unit operating plan are general in nature and are appropriate for grease trap waste processing alone. The commission has made no change in response to this comment. In regard to sec.330.72(f)(6)(F) MPU stated "allowing mobile processors to return part of the grease waste provides a breakdown in record keeping, thereby forfeiting accountability. Mobile processing not only opens the opportunity for mismanagement of grease waste, it literally invites it." The commission agrees that mobile processing units can contribute to mismanagement of the liquid waste trip ticket system. Consequently, specific requirements for record keeping have been placed in sec.330.72(f)(6)(F). The commission has made no change in response to this comment. Betts Pump Service questioned the need for financial assurance for mobile processing units regarding sec.330.72(f)(9). The commission has established a financial assurance requirement for mobile processing units to be consistent with all Type V operations that are currently required to have financial assurance. The financial assurance mechanism provides a financial means for the state to have a clean-up conducted by a third party if the owner or operator is unable to provide for the clean-up. No change has been made in response to this comment. American WasteWater Ltd. commented that in regard to sec.330.72(f)(11)(C), water pollution control, the language regarding the standard for oil and grease concentration leaving the mobile processing unit should be clarified to be the lesser of 100 milligrams per liter (mg/l) or the limit set by the wastewater discharge permit. The commission agrees with this comment, and the clarifying word lesser has been added to this section; however, 200 mg/l, as proposed, remains the standard chosen by the commission. The commission agrees that 100 mg/l is a stricter standard. However, in researching the standards currently in place in local authorities across Texas, standards vary from 100 mg/l to 200 mg/l and higher. The commission relies upon the first hand knowledge developed by local authorities with local liquid waste programs. Therefore, the commission has determined that 200 mg/l is a standard which is appropriate to impose at this time. Either of the two standards will be protective of the public health. Local governments are free to establish a standard stricter than 200 mg/l. In regard to sec.330.72(f)(11)(C) MPU stated: "there are a number of problems inherent to mobile processing grease waste. Any vacuum truck can operate as a mobile processor with or without specialized separation equipment or design. In the absence of design criteria and operating standards, vacuum trucks return to the City's collection system wastewater high in grease and other pollutants." The commission agrees that lack of regulation of these units in the past has contributed to discharges high in grease and other pollutants. The purpose of these rules is to address problems experienced by the cities. Consequently, discharge limits for these mobile units have been set in these rules. These rules require mobile processing units to pass design and operating standards before they can be authorized to operate. The commission has made no change in response to this comment. Betts Pump Service questioned the need for odor control systems for mobile processing units regarding sec.330.72(f)(11)(D)(ii). The commission has established odor control requirements for mobile processing units to be consistent with existing state law and existing rules regarding these types of processes. No change has been made in response to this comment. Betts Pump Service commented on sec.330.72(f)(11)(D)(v) that the language regarding air emissions should also be applied to transporters. The commission has established odor control requirements for transporters in existing sec.312.144(b). No change has been made in response to this comment. In regard to sec.330.72(f)(11)(G), Betts Pump Service and SIMCO commented that the language regarding waste analysis should also be applied to transporters. The commission has not established waste analysis standards for transporters because transporters simply deliver waste to an approved disposal site or processing facility. The disposal site or processing facility is the entity responsible for waste analysis. No change has been made in response to this comment. SIMCO commented in regard to sec.330.72(f)(11)(G), that the quarterly total petroleum hydrocarbons (TPH) test should be conducted annually and not quarterly. The commission agrees with the commenter, regarding the TPH test being done annually instead of quarterly. The language has been changed to clarify that annual testing is required. In regard to sec.330.72(g) concerning fees, Betts Pump Service questioned whether or not an additional fee over and above the transporter registration fee is required. The commission has established fees for mobile processing units in addition to the existing biennial ten dollars per motor transporter fee and the existing transporter annual fee that has a range of $100 to $500 per year based on capacity transported. While no registration application fee has been established for the registration of mobile processing units, these rules are consistent with fixed location processing facilities in establishing fees based on capacity processed. The commission has made no change in response to this comment. Section 330.73 American WasteWater Ltd. and Mesa Processing Inc. registered general opposition to sec.330.73, demonstration projects for liquid waste processing facilities, because the approval of unproven technologies should be subject to the more rigorous reviews of the permitting process on potentially affected parties. The commission disagrees with this comment because the rules impose stricter operating standards, more rigorous review standards, facility sizing limitations, and term limits of two years upon demonstration projects. In addition, demonstration projects must conduct a public meeting and must mail notice to affected parties explaining their rights. The commission has made no change in response to this comment. Mesa Processing Inc. registered general opposition to sec.330.73, demonstration projects for liquid waste processing facilities, because the approval of unproven technologies opens avenues to catastrophic possibilities with few monitoring procedures available. The commission disagrees with this comment because the rules provide numerous enforcement tools for state and local government. In addition, demonstration projects are subject to rigorous review standards, stricter operating standards, capacity sizing restrictions, public meeting, and registration term limits of two years. The commission has made no change in response to this comment. Scientific Consulting Laboratories, Inc. supported the concept of sec.330.73 regarding demonstration projects. SUBCHAPTER A.General Information 30 TAC sec.330.4 STATUTORY AUTHORITY The amendment is adopted under the authority of the Texas Water Code, sec.5.103 which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, they are adopted pursuant to the Texas Solid Waste Disposal Act, sec.361.024, Texas Health and Safety Code, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management and control of solid waste under its jurisdiction. This agency hereby certifies that the 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 February 10, 1997. TRD-9701850 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: March 3, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 SUBCHAPTER E.Permit Procedures And Design Criteria 30 TAC sec.sec.330.71-330.73 The new sections are adopted under the authority of the Texas Water Code, sec.5.103 which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, they are adopted pursuant to the Texas Solid Waste Disposal Act, sec.361.024, Texas Health and Safety Code, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management and control of solid waste under its jurisdiction. sec.330.71.Registration for Municipal Solid Waste Facilities that Process Grease Trap Waste, Grit Trap Waste, or Septage. (a) Applicability. (1) This section shall apply to new municipal solid waste Type V processing facilities that process only grease trap waste, grit trap waste or septage or any combination of these three liquid wastes, and are seeking a registration to authorize such activities in accordance with sec.330.4(s) of this title (relating to Permit Required). For the purposes of this subsection, grit trap waste means only grit trap waste from commercial car washes and excludes grit trap waste from other generators. A Type V processing facility which processes the liquid wastes specified in this section is eligible for a registration if the facility attains a material recovery rate of 10% from the incoming waste for beneficial use or if the facility is located within the boundaries of a commission permitted disposal facility, subject to delineated limitations. Type V facilities not meeting the exemption criteria may apply for a regular permit under sec.330.51 of this title (relating to Permit Application for Municipal Solid Waste Facilities). (2) Facilities under this subsection that have been in operation prior to October 9, 1993, and are operating at a treatment facility permitted under the Texas Water Code, Chapter 26 and have not been permitted, may be authorized by notification. Notification shall consist of completion of a commission application form, submittal of process data, submittal of location information, submittal of an operating plan, submittal of a demonstration of the ability to meet applicable effluent standards, and submittal of evidence of compliance with the trip ticket system. Upon completion of the above requirements for notification, the facility will be issued a registration number. (3) Facilities that have received a permit and wish to add capacity may apply for a registration in lieu of a permit amendment if they meet the permit exemptions established in sec.330.4(s) of this title. (b) General prohibitions. A person may not cause, suffer, allow, or permit the collection, storage, transportation, processing, or disposal of liquid waste or solid waste, or the use or operation of a liquid waste processing unit to store, process, or dispose of liquid waste or solid waste, in violation of the Texas Solid Waste Disposal Act, or any regulations, rules, permit, license, registration, or order of the commission or in such a manner so as to cause: (1) the discharge or imminent threat of discharge of liquid waste or solid waste to the waters of the state without obtaining specific authorization for such discharge from the commission; (2) the creation and maintenance of a nuisance; (3) the endangerment of the human health and welfare or the environment. (c) General facility design requirements. (1) A statement justifying the facility's exemption from permit requirements as established under sec.330.4(s) of this title must be included in the registration application. (2) Waste solids produced by the processing facility must be disposed of in an authorized solid waste disposal facility. (3) If liquid wastes produced by the processing facility are discharged to a treatment facility permitted under the Texas Water Code, Chapter 26 the discharge shall not: (A) interfere with or pass-through the treatment facility; (B) interfere with or pass-through its treatment processes or operations; (C) interfere with or pass-through its sludge processes, use or disposal; or (D) otherwise be inconsistent with the prohibited discharge standards including 40 Code of Federal Regulations (40 CFR) Part 403 "General Pretreatment Regulations for Existing and New Source Pollution." (4) Discharge to a septic system is prohibited. (d) General registration, construction, and operation requirements. (1) Prior to beginning construction, a registration application must be submitted containing all information required by this section to demonstrate compliance with these regulations. (2) Prior to beginning construction, the applicant together with the executive director, shall conduct a public meeting in the local area to describe the proposed action to the general public. A public meeting under this section is not a contested case hearing under the Administrative Procedure Act, Texas Government Code, Chapter 2001. Notice of the public meeting shall be given as prescribed by sec.305.107(c) of this title (relating to Public Meeting and Notice Requirements). (3) The operation of the facility shall not begin until a pre-opening inspection has been conducted and written authorization to accept waste has been given by the executive director. (4) Owners and operators must comply with all applicable requirements of this section. (5) Owners and operators shall remain responsible for making corrections or changes that are necessary to meet requirements prior to operating the facility. (6) If a registered facility does not begin construction within two years of obtaining its registration, the registration shall terminate and shall no longer be effective under sec.330.4(s) of this title. (7) Any change in the site operating plan must be approved prior to implementation. (e) Registration application. The registration application shall be a completed Part A Application Form and an engineering report prepared and sealed by a professional engineer as required by the Texas Engineering Practice Act. The engineering report shall consist of all applicable information required in sec.330.52 of this title (relating to Technical Requirements of Part I of the application). Information required by sec.330.52 of this title includes but is not limited to maps, legal description, property owner affidavit, legal authority, evidence of competency, and evidence of financial assurance. Additional requirements of the contents of the engineering report are outlined as follows. (1) Number of Copies. Applicants for registration shall submit four copies of the completed application for registration. (2) Land use narrative. (A) A land use narrative shall be included in the engineering report with a description of the surrounding land use within one-half mile of the site and generalized indications of land use shall be shown on a topographic map or recent aerial photograph (scale not over 1:12,000). (B) The applicant shall include documentation of local government review, approval, or acceptance of the site location, e.g., conformity with local zoning restrictions, building permit, license, nonconforming use authorization, etc. These regulations do not grant authorization for development/operation of the facility in noncompliance with local government ordinances and regulations. (C) Maps shall be supplied that comply with the requirements of sec.281.5 of this title (relating to Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Hazardous Waste, and Industrial Solid Waste Management Permits) by locating the property owned by adjacent and potentially affected landowners. The maps should show all property ownership within 500 feet of the site. (D) The Adjacent and Potentially Affected Landowners List shall be keyed to the Land Ownership Maps and shall give each property owner's name and mailing address. The list shall comply with the requirements of sec.281.5 of this title (relating to Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Hazardous Waste, and Industrial Solid Waste Management Permits). The list shall include all property owners within 500 feet of the site. (3) Site plan. A site plan shall be included in the engineering report showing the general design criteria incorporated in a set of general plans and specifications. A site layout plan, signed and sealed by the registered professional engineer preparing the plans shall be provided. (4) Waste information. (A) Waste identification. Design information shall be submitted identifying the sources and characteristics of waste proposed to be received for processing. An analysis of each general type of waste to be processed by the facility shall be submitted to include constituent concentrations and characteristics, including, but not limited to: pH; oil and grease concentration; total suspended solids; biochemical oxygen demand; biological oxygen demand; and other constituents that may impact the design or operation of the facility. (B) Waste data. Waste data shall include: the types and an estimate of the amount of each liquid waste to be received daily; the maximum amount of waste to be stored at any one point in time; the maximum and average lengths of time that waste is to remain on the site the maximum and average waste processing times; and the intended destination of the solids and liquids generated by this facility. Additionally, if applicable, a descriptive narrative must be included that describes how 10% of the incoming waste will be recovered and its intended use. (C) Processed wastes. The specifications for the general characteristics and constituent concentrations of all wastes leaving the facility shall be submitted. Written documentation shall be included in the registration application for assurance that all processed waste (liquid and solid) leaving the facility will be adequately handled by other facilities, which are licensed, permitted, registered or otherwise authorized by the appropriate agencies to receive the solid and liquid wastes generated at the facility at the volumes and concentrations estimated in the facility design. An estimate shall be given for the amount and planned method for testing and final disposal of wastes resulting from the process. An estimate of the volume of process water and the planned method of treatment of such process water shall be provided. (5) Process design. A process design shall be included to show the general design of the overall processing facility. At a minimum, the following data shall be included: (A) flow diagrams indicating the processing sequences proposed for the various types of wastes received; (B) schematic view drawings showing the various phases of collection, separation, treatment, and disposal, as applicable, for the types of wastes received for processing; (C) proposed odor control measures for each storage, separation, and processing unit; (D) generalized construction details of all treatment and storage components (i.e., tanks, sumps, etc.) with regard to approximate dimensions and capacities, construction materials, vents, covers, enclosures, protective coatings of exposed surfaces, etc. Vendor performance data sheets on all units shall be provided if available and where applicable; (E) generalized construction details of slab and subsurface supports of all treatment and storage components; (F) locations and engineering design details, including supporting calculations, of all spill containment dikes or walls (with indicated freeboard) proposed to enclose all treatment, processing, and storage components and all loading and unloading areas; (G) plans for the on-site storage of grease, oil, and sludge, including maximum periods of time all recovered materials will remain on-site and the ultimate disposition of such materials off-site; and (H) proposed disposition of effluent and sludge resulting from all treatment and processing operations. (6) Site operating plan. The operating plan must consider applicable requirements of Subchapter G of this chapter (relating to Operational Standards For Solid Waste Processing and Experimental Sites). Where applicable, the site operating plan shall include: (A) provisions for the control of accidental spillage at the facility; (B) provisions for periodic cleaning of storage, treatment, and processing units; (C) maximum allowable period of time unprocessed and processed waste are to remain on-site; (D) contingency plans for facility breakdown, catastrophic vessel failure, and accidental discharges; (E) quality control plans to ensure that hazardous waste and other unauthorized wastes will not be unloaded or processed at the facility; (F) plans indicating how wash waters will be collected and disposed of in an authorized manner; (G) a description of the facility operation; (H) operational characteristics of the equipment; (I) facility maintenance; (J) emergency procedures; (K) operating hours; (L) vector control procedures; (M) alternate processing procedures in the event the processing facility becomes inoperable for longer than 24 hours; (N) inspection of incoming loads; (O) record retention provisions for results of incoming load inspections; (P) training of personnel to recognize hazardous waste; (Q) handling procedures for hazardous waste suspected or discovered on-site; (R) record retention provisions for trip tickets as required by sec.312.145 of this title (relating to Transporters - Record Keeping); (S) record keeping provisions to justify, on a quarterly basis, that 10% or more of the incoming waste is processed to recover recycled products for applicable facilities (failure to achieve the 10% recycling rate in any two quarters within any one year period will cause the registration to terminate and require the facility to obtain a permit); and (T) odor control provisions. (7) Legal description. A legal description of the property, including the book and page number of the county deed records, and the name and address of the current property owner shall be submitted. The legal description shall be a metes and bounds description of the site signed and sealed by a registered professional land surveyor. A drawing of the description, signed and sealed by the surveyor, shall also be submitted. If the property is platted, the book and page number of the final plat record and a copy of the final plat shall be submitted; (8) Evidence of competency. (A) The applicant shall submit a list of all solid waste facilities which the applicant has owned or operated within the past ten years. The facility name, permit or registration number, location, and dates of operation shall also be submitted. (B) The names of the principals and supervisors of the applicant's organization shall be provided, together with previous affiliations with other organizations engaged in solid waste activities in Texas. (9) Evidence of financial assurance. Evidence of financial assurance shall be provided in accordance with sec.sec.330.9, 330.282, 330.285, and 330.286 of this title (relating to Financial Assurance Required, Financial Assurance for Closure of Process Facilities, Financial Assurance Mechanisms, and Wording of the Instruments). A cost estimate of the cost to close the facility shall be submitted as part of the application. (10) Statement of applicant. The following document shall be signed, notarized, and submitted with the application: (A) Statement of Applicant: Figure 1: 30 TAC sec.330.71(e)(10)(A) (B) Statement of Applicant: Figure 2: 30 TAC sec.330.71(e)(10)(B) (f) Design criteria. The engineering report for the registration application shall consider the following criteria. (1) Site access. The site access road from a publicly-owned roadway shall be at least a two lane paved road, designed for the expected traffic flow. The access road design shall include adequate turning radii according to the vehicles that will utilize the site and shall avoid disruption of normal traffic patterns. A positive means to control dust and mud shall be provided. (2) Access control. Access to the site shall be controlled by a perimeter fence, four or six foot barbed wire or chain-link, with lockable gates. An attendant shall be on-site during operating hours. A sign shall be provided that gives the site name, registrant name, registration number, and operating hours. (3) Miscellaneous design details. The facility shall be designed in accordance with all local building code and land development code requirements. (4) Water pollution control. Provisions for the treatment of wastewaters from the facility shall be provided. The applicant shall obtain any permit or other approval required by state or local code for the system installed. A statement from the treatment facility permitted under the Texas Water Code, Chapter 26 indicating the compatibility of the facility with the treatment facility shall be attached to the application with requirements set by the treatment facility for discharge. The daily effluent design standard for oil and grease concentration leaving the facility and entering a public sewer system shall not exceed 200 mg/liter or the concentration established in the wastewater discharge permit pretreatment limit or the concentration established by the treatment facility permitted under the Texas Water Code, Chapter 26. In general, the following effluent standards should be used for design considerations: Figure 3: 30 TAC sec.330.71(f)(4) (5) Air pollution and ventilation. (A) The facility shall be designed to prevent nuisance odors from leaving the property boundary of the permitted facility. The facility shall be designed to allow a minimal time of exposure of liquid waste to the air. All facilities and air pollution abatement devices constructed pursuant to this registration must obtain authorization, pursuant to Chapter 116 of this title (relating to Control of Air Pollution By Permit for New Construction or Modifications), from the Office of Air Quality prior to the start of construction. (B) Ventilation of structures designed in accordance with applicable codes shall be provided. (C) An air scrubber unit or equivalent technology for odor control shall be provided for any facility structure that houses a portion of the facility process that handles unprocessed liquid waste or final product that is in open contact with the air. (D) Suitable deodorants such as biological deodorants, shall be made available to control odors from spills of untreated liquid waste. Openings to processing buildings shall be controlled to prevent release of nuisance odors to the atmosphere. (E) All air pollution emission capture and abatement equipment or equivalent technology shall be properly maintained and operated during the facility operation. Cleaning and maintenance of the abatement equipment shall be performed as recommended by the manufacturer and as necessary so that the equipment efficiency can be adequately maintained. (F) A design must be provided showing the unloading of liquid waste into the facility will be in a manner that minimizes waste contact with air. (G) Air emissions from this facility must not cause or contribute to a condition of air pollution as defined in the Texas Clean Air Act. (H) Consideration should be given to additional buffer zones within the facility property boundary for odor control. (I) All liquid waste and solid waste shall be stored in odor retaining containers and vessels. (J) If nuisance odors are found to be passing the facility boundary, the facility owner or operator may be required to suspend operations until the nuisance is abated. (K) Notification for upsets and maintenance shall be made in accordance with sec.101.6 and sec.101.7 of this title (relating to Notification Requirements for Major Upset and Notification Requirements for Maintenance). (6) Storage requirements. (A) On-site storage of recyclable materials should be provided and this area should be separate from the process area. Control of odors and vectors from the recyclable material storage area shall be maintained. (B) Storage of unprocessed waste and recycled materials shall be in an enclosed building, vessel, or container. (7) Fire protection. A fire protection plan shall be prepared. This fire protection plan shall describe the source of fire protection (a local fire department, fire hydrants, fire extinguishers, water tanks, water well, etc.), procedures for using the fire protection source, and employee training and safety procedures. The fire protection plan shall comply with local fire codes. (8) Noise pollution and screening. Screening or other measures to minimize noise pollution and adverse visual impacts shall be provided. (9) Site drainage. Drainage provisions for controlling surface water on or near the facility shall be provided. Drainage calculations for the site shall be provided such as those established by standards in sec.330.55 of this title (relating to Site Development Plan). (10) Site facilities. The site shall provide facilities for potable water, sanitary purposes, office, maintenance, and recyclable materials storage. Concrete pads with raised curbs around the perimeter of the storage and processing areas or asphalt paved areas with berms shall be utilized to control spills and contaminated water. The applicant must demonstrate that the spill containment structures are adequate to contain a spill resulting from the catastrophic failure of the largest storage or processing vessel. The storage and process areas shall have secondary containment structures to prevent releases to the waters of the state and to control spills. (11) The operating plan must consider applicable requirements of Subchapter G of this chapter (relating to Operational Standards For Solid Waste Processing and Experimental Sites). Where applicable, the site operating plan shall include: At a minimum, analyses shall be made for benzene, lead, and total petroleum hydrocarbons (TPH). Sludges that are disposed of at a municipal solid waste landfill must be analyzed annually for benzene, lead, and TPH. At a minimum, effluent from the facility must be analyzed annually for fats, oils, greases and pH. Records of each analysis shall be maintained at the facility for a minimum of three years. All sampling and analysis shall be done according to EPA approved methods. (12) Sludge control. The facility shall be designed and operated in a manner that sludges produced pass the Paint Filter Liquids Test, (EPA method 9095) as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (EPA Publication Number SW-846) (September, 1986). The facility shall be designed and operated to produce a sludge that is accepted at municipal landfills and does not exceed the following standards: Figure 4: 30 TAC sec.330.71(f)(12) (13) Storage limits. The maximum time allowed for storage of unprocessed waste is 72 hours. (14) Hazardous waste. The facility may not receive hazardous waste. (15) 100-Year flood. The facility shall not be located in a 100-year floodplain. (g) Enforceability. The regulations under this section are enforceable by local governments of Texas. (h) Fees. The liquid waste processing facility shall pay a quarterly fee to the commission based on requirements of sec.sec.330.601, 330.602, and 330.603 of this title (relating to Purpose and Applicability, Fees, and Reporting). (i) Fee reports. Fee reports shall be submitted to the commission as required by applicable portions of sec.330.601(b)(3) and sec.330.603 of this title. (j) Motion for Reconsideration. In regard to motions for reconsideration, notwithstanding sec.50.31(c)(8) of this title (relating to Purpose and Applicability), applications for registration under this subchapter are governed by sec.50.31(b)-(f) of this title (relating to Motion for Reconsideration). The rights of the public regarding motion for reconsideration shall be explained in public notices given under this section. Notice of issuance of registration shall be mailed to adjacent and potentially affected landowners as shown on the land ownership map and landowners list under subsection (e)(2)(C) and (D) of this section, and to any other person requesting notice. 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 approval of an application. Notice of issuance of registration shall be published once in the same manner as prescribed by sec.305.107(c) of this title. sec.330.72.Registration for Mobile Liquid Waste Processing Units. (a) Applicability. (1) This section shall apply to mobile liquid waste processing units that process grease trap waste, grit trap waste or septage or any combination of these three liquid wastes, and are seeking a registration to authorize such activities in accordance with sec.330.4(t) of this title (relating to Permit Required). For the purposes of this section liquid waste shall mean grease trap waste, grit trap waste, or septage. For purposes of this section, grit trap waste means grit trap waste from commercial car washes, and excludes grit trap waste from other generators. For purposes of this section, mobile liquid waste processing shall be limited to the processing of liquid waste while at a generator's trap or in transit to or from such a trap. (2) This section is applicable if liquid waste is discharged to a trap, interceptor, or a treatment facility permitted under the Texas Water Code, Chapter 26 by a mobile liquid waste processor. (3) This section is not applicable for liquid waste transporters who only transport to an approved disposal site such as a Type I landfill or a Type V processing facility without processing the waste. (4) The mobile liquid waste processing units regulated under this section include truck mounted processes that are also known as separator trucks, and any other liquid waste processes that are not considered to be fixed to a specific location. (5) This section is not meant to supplant rules or ordinances of local governments where stricter standards are in effect. (6) Existing mobile liquid waste processing units must comply with applicable requirements of this section and must notify the executive director of their operation within 30 days of the effective date of these regulations to receive a schedule for registration application and engineering plan submittal. Full compliance must be achieved by operators of mobile processing units no later than 180 days following the effective date of those regulations. (7) This section is not applicable to septage if waste has received only a pH adjustment prior to or during transportation for disposal at a treatment facility permitted under the Texas Water Code, Chapter 26 or other authorized facility. (b) Registration application. The registration application shall consist of three parts. The first part shall be a completed application form supplied by the agency. The second part of the application shall be an engineering report submitted to the agency including, but not limited to: documentation of incoming waste rates; a process description; a waste monitoring plan; a waste sampling and analysis plan; an indication of expected waste discharge points; evidence of financial assurance; and an accidental spill response plan. The third part of the application is a demonstration of viability conducted at a commission region or central office or demonstrated to a local government. (c) Mobile processing unit design. (1) The mobile liquid waste unit should be designed and operated to meet the effluent limits imposed by its treatment facility permitted under the Texas Water Code, Chapter 26 or National Pollutant Discharge Elimination System (NPDES) permit or the following liquid effluent limits if the discharge points do not require compliance with locally set limits: Figure 1: 30 TAC sec.330.72(c)(1) (2) Waste solids (sludges) produced by the mobile processing unit must be disposed of in a solid waste disposal facility regulated by the State of Texas or other location approved by the executive director. Solids should be dewatered to the point that they pass the United States Environmental Protection Agency (EPA) paint filter test, EPA test method 9095, or they should be taken to an authorized facility to be dewatered prior to landfilling. (3) If effluent produced by the mobile processing unit is discharged to a treatment facility permitted under the Texas Water Code, Chapter 26, the discharge shall not: (A) interfere with or pass-through the treatment facility; (B) interfere with or pass-through its treatment processes or operations; (C) interfere with or pass-through its sludge processes, use or disposal; or (D) otherwise be inconsistent with the discharge standards including 40 Code of Federal Regulations Part 403 "General Pretreatment Regulations for Existing and New Sources of Pollution". (4) Written approval from the receiving treatment facility permitted under the Texas Water Code, Chapter 26 must be submitted as a part of the application. (d) Unit operation. (1) A registration application must be submitted with all information required by this section to demonstrate compliance with these regulations. (2) Operation of each mobile unit shall not be initiated until a pre-operation inspection of each mobile unit has been conducted and written authorization to accept waste has been given by the executive director. The pre-operation inspection shall consist of a series of tests to ascertain the quality of effluent delivered to a treatment facility permitted under the Texas Water Code, Chapter 26. (3) Owners and operators shall comply with all applicable requirements of this section. (4) Owners and operators shall remain responsible for making corrections or changes that are necessary to meet requirements prior to operating the mobile unit. (5) If a registered mobile unit does not begin operation within two years of obtaining its registration, the registration shall terminate and shall no longer be effective under sec.330.4(t) of this title. (e) Demonstration of viability. The applicant shall demonstrate under field conditions that the process works. The demonstration shall be conducted under the supervision of experienced executive director staff and when appropriate, with local government staff. The viability demonstration shall be made by processing three traps in a single day representative of the traps normally serviced. The traps shall have been in operation and shall not have been serviced for at least 30 days prior to the demonstration. The volume of material to be processed before unloading shall be consistent with manufacturer's performance specifications and the operating plan, particularly as to the expected ratios between gross volumes processed and amounts discharged following processing. Multiple grab samples of effluent taken from the discharge outlet of the mobile processing unit shall be tested for fats, oils, greases, and pH and shall meet the specified limits in subsection (c)(1) of this section. (f) Registration application. The registration application shall be a completed Part A Application Form and an engineering report prepared and sealed by a professional engineer as required by the Texas Engineering Practice Act. Requirements of the contents of the engineering report are outlined as follows. (1) Number of copies. Applicants for registration shall submit three copies of the completed application for registration. (2) Local government approval. The applicant shall include documentation of affirmative local government approval or acceptance of the mobile unit operation, including conformity with local ordinances, local rules, or requirements set forth by the treatment facility for the discharge, including local limits, zoning restrictions, permits, licenses, authorizations, etc. These regulations do not grant authorization for operation of mobile liquid waste processing units in noncompliance with local government ordinances and regulations or without the express approval of the local wastewater authority. Discharge from a mobile liquid waste processing units is allowed only at selected disposal points selected by the local treatment facility permitted under the Texas Water Code, Chapter 26 so that they can be monitored by the local treatment facility. (3) Mobile processing unit plans. A plan shall be included in the engineering report showing the general unit design criteria incorporated in a set of general plans and specifications. The plans shall be signed and sealed by the registered professional engineer preparing the plans. (4) Waste information. (A) Waste identification. For purposes of the process design, information shall be submitted identifying the sources and characteristics of waste proposed to be received for processing. An analysis of each general type of waste to be processed by the unit shall be submitted to include constituent concentrations and characteristics such as: pH; fats; oil; and grease concentration, total suspended solids; biological oxygen demand (BOD); and other constituents that may impact the design or operation of the unit. (B) Solid waste data. The solid waste data shall include: the types and an estimate of the amount of each liquid waste to be processed daily; the maximum amount of liquid and solid waste to be stored at any one point in time; the maximum and average lengths of time that solid waste is to remain in the mobile unit; the maximum and average waste processing times; and the intended destination of all solid and liquid wastes generated by the mobile liquid waste processing unit. (C) Processed wastes. The specifications for the general characteristics and constituent concentrations of all wastes (liquid and solid) and beneficial use products leaving the mobile unit shall be submitted. Written documentation shall be included in the registration application for assurance that all processed waste (liquid and solid) leaving the unit will be adequately handled by other facilities, which are licensed, permitted, registered or otherwise authorized by the appropriate agencies to receive the solid and liquid wastes generated by the unit at the volumes and concentrations estimated in the unit's design. An estimate shall be given for the amount and planned method for testing and final disposal of wastes resulting from the process. An estimate of the volume of process water and the planned method of treatment of such process water shall be provided. (5) Process design. A process design shall be included to show the general design of the mobile processing unit. At a minimum, the following data shall be included: (A) flow diagrams indicating the processing sequences proposed for the various types of wastes received; (B) schematic view drawings showing the various phases of collection, separation, treatment, and disposal, as applicable, for the types of wastes received for processing; (C) proposed odor control measures for each storage, separation, and processing unit; (D) generalized construction details of all treatment and storage components with regard to approximate dimensions and capacities, construction materials, vents, covers, enclosures, protective coatings of exposed surfaces, etc. (Vendor performance data sheets on all units shall be provided if available and where applicable); (E) generalized details of the method of maintaining records for quantities of liquids and quantities of solids disposed of; (F) a spill control plan; (G) plans for monitoring effluent; and (H) proposed disposition of effluent and sludge resulting from all mobile treatment and processing operations. (6) Unit operating plan. The operating plan must consider the requirements of sec.sec.330.152, 330.156, and 330.156 of this title (relating to Sanitation, Safety, and Fire Protection). The unit operating plan shall include: (A) provisions for handling accidental spillage at the mobile unit; (B) provisions for periodic cleaning of mobile storage, treatment, and processing units; (C) maximum allowable period of time unprocessed and processed waste are to remain in the mobile unit; (D) contingency plans for unit breakdown; (E) quality control plans to ensure that hazardous waste and other unauthorized wastes will not be processed by the mobile unit; (F) a description of how the mobile liquid waste processing unit will conform to the trip ticket system as required by sec.312.145 of this title, (relating to Transporters - Recording Keeping) including provisions to monitor quantities of discharge of processed water and waste materials; (G) a description of the unit's operation; (H) operational characteristics of the equipment; (I) maintenance of the unit; (J) catastrophic spill control procedures; (K) a description of how sampling and analysis records will be maintained; (L) vector control procedures; (M) alternate processing procedures in the event the processing unit becomes inoperable; (N) generalized indication of the expected waste discharge locations; (O) record retention for processed wastes; (P) training of personnel to recognize hazardous waste; and (Q) handling procedures for hazardous waste suspected or discovered. (7) Sampling and analysis plan. A plan shall be submitted to show the method of sampling and analysis for the effluent discharged to a trap, interceptor, or treatment facility permitted under the Texas Water Code, Chapter 26. At a minimum the method of sampling, the frequency of sampling, and the tests to be made shall be part of the sampling and analysis plan. All sampling and analysis shall be done according to approved EPA methods. Records shall be maintained for a three year period. (8) Evidence of competency. (A) The applicant shall submit a list of all solid waste, liquid waste, or mobile waste units which the applicant has owned or operated within the past ten years. The applicant shall submit a list of any felony convictions dealing with improper handling of solid or liquid waste within the last ten years. (B) The names of the principals and supervisors of the applicant's organization shall be provided, together with previous affiliations with other organizations engaged in solid or liquid waste activities in Texas. (9) Evidence of financial assurance. Evidence of financial assurance shall be provided in accordance with sec.sec.330.9, 330.282, 330.285, and 330.286 of this title, (relating to Financial Assurance Required, Financial Assurance for Closure of Process Facilities, Financial Assurance Mechanisms, and Wording of the Instruments). A cost estimate of the cost to dispose of the contents of the unit, if abandoned or rendered unusable, shall be submitted prior to operation. (10) Statement of applicant. The following document shall be signed, notarized, and submitted with the application: (A) Statement of Applicant: Figure 2: 30 TAC sec.330.72(f)(10)(A) (B) Statement of Applicant: Figure 3: 30 TAC sec.330.72(f)(10)(B) (11) Design criteria. The engineering report for the registration application shall consider the following criteria. (A) Operating hours. (B) Miscellaneous design details. The unit shall be designed in accordance with all local ordinances, codes, and requirements. (C) Water pollution control. Provisions for the treatment of wastewaters leaving the mobile unit shall be provided. A connection into a public sewer system is acceptable if approved in writing by the local treatment facility permitted under the Texas Water Code, Chapter 26. The applicant shall obtain any permit or other approval required by state or local code for the system operation. The effluent design standard for oil and grease concentration leaving the mobile unit and entering a public sewer system shall not exceed the lesser of 200 mg/liter total or the concentration established in the local wastewater discharge permit pretreatment limit. Discharge to a septic system is prohibited. (D) Air pollution. (i) Suitable deodorants such as biological deodorants, shall be made available to control odors from spills of treated or untreated liquid waste. (ii) Mobile processing units shall be designed to prevent release of nuisance odors to the atmosphere. (iii) Cleaning and maintenance of mobile waste processing unit equipment shall be performed each day of operation to reduce odors. (iv) Loading of liquid waste into the mobile unit will be in a manner that minimizes waste contact with air. (v) Air emissions from this mobile unit must not cause or contribute to a condition of air pollution as defined in the Texas Clean Air Act. (vi) All units and air pollution abatement devices constructed pursuant to this registration must obtain authorization, pursuant to Chapter 116 of this title (relating to Control of Air Pollution By Permit for New Construction or Modifications), from the Office of Air Quality prior to the start of construction. (vii) Notification for upsets and maintenance shall be made in accordance with sec.101.6 and sec.101.7 of this title (relating to Notification Requirements for Major Upset and Notification Requirements for Maintenance). (E) Storage requirements. Control of odors and vectors from the storage of waste shall be maintained. Storage of processed or unprocessed waste shall be in an enclosed vessel or container. (F) Fire protection. A fire protection plan shall be prepared. The fire protection plan shall comply with local fire codes. (G) Waste analysis. After a registration is issued by the executive director, the registrant shall provide the executive director an analysis of a representative sample of each type of waste received annually. At a minimum analyses shall be made for fats, oil, and greases, pH, benzene, lead, and total petroleum hydrocarbons (TPH). Solids or sludge that are disposed of at a municipal solid waste landfill must be analyzed annually for benzene, lead, and TPH. Effluent from the mobile unit must be analyzed annually for TPH, fats, oil, and grease and pH. If grit trap waste is processed, BOD, total suspended solids (TSS), benzene, TPH, and lead shall be analyzed annually. All effluent results shall be provided to the receiving treatment facility permitted under Texas Water Code Chapter 26. Records of each analysis shall be maintained at the mobile unit's headquarters for a minimum of three years. (H) Sludge control. The unit should be designed and operated in a manner that sludges produced for landfilling are dewatered to a point that they pass the Paint Filter Liquids Test, (EPA method 9095) as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (EPA Publication Number SW- 846) (September, 1986). The unit shall be designed and operated to produce a sludge that does not exceed the following standards: Figure 4: 30 TAC sec.330.72(f)(11)(H) (I) Storage limits. The maximum time allowed for storage of unprocessed waste is four days. (J) Hazardous waste. The mobile processing unit may not receive hazardous waste. (g) Fees and fee reports. (1) The mobile liquid waste processing unit shall pay a quarterly fee to the commission based on requirements of sec.sec.330.601, 330.602, and 330.603 of this title (relating to Purpose and Applicability, Fees, and Reporting). (2) Fee reports shall be submitted to the commission as required by applicable portions of sec.330.601(b)(3) and sec.330.603 of this title. (h) General prohibitions. A person may not cause, suffer, allow, or permit the collection, storage, transportation, processing, or disposal of liquid waste or solid waste, or the use or operation of a mobile liquid waste processing unit to store, process, or dispose of liquid waste or solid waste, in violation of the Texas Solid Waste Disposal Act, or any regulations, rules, permit, license, registration, or order of the commission or in such a manner so as to cause: (1) the discharge or imminent threat of discharge of liquid waste or solid waste to the waters of the state without obtaining specific authorization for such discharge from the commission; (2) the creation and maintenance of a nuisance; (3) the endangerment of the human health and welfare or the environment. (i) Enforceability. The regulations under this section are enforceable by local governments of Texas. (j) Notice to local governments. Upon filing a registration application, the applicant shall mail notice to the city, county, and local health department of any local government in which operations will be conducted notifying local governments that an application has been filed. Proof of mailing shall be provided in the form of return receipts for registered mail. 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 February 10, 1997. TRD-9701849 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: March 3, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 239-1970 CHAPTER 351.Regionalization Upper Brush Creek Watershed 30 TAC sec.sec.351.111-351.113 The Texas Natural Resource Conservation Commission (commission) adopts the repeal of sec.sec.351.111-351.113, without changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11438). Sections 351.111-351.113 relate to the designation of the regional area included for the Upper Brushy Creek Watershed. EXPLANATION OF ADOPTED RULE The repeal of sec.sec.351.111-351.113 removes the designation of the Upper Brushy Creek Watershed as a Regional Area and the designation of the Brushy Creek Water Control and Improvement District Number 1 of Williamson and Milam Counties (District) as the regional entity responsible for providing wastewater services. This would allow for the implementation of a recent agreement among the City of Austin, the City of Round Rock, the Lower Colorado River Authority (LCRA), and the Brazos River Authority (BRA) providing for one regional wastewater treatment facility to be built by LCRA and operated by BRA. The Watershed area includes the area in southwest Williamson County, which includes the cities of Cedar Park, Leander, Round Rock, portions of the extraterritorial jurisdiction of the City of Austin, and the unincorporated areas surrounding those cities. The District is designated as the entity responsible for the planning, construction, operation, and maintenance of an integrated wastewater treatment system for the area designated as the Upper Bushy Creek Watershed. The designation was made in 1985 pursuant to Texas Water Code, sec.sec.26.081-26.087; however, no election was held to confirm the designation. Since then, participants have withdrawn from the plan. The remaining parties along with the District have jointly petitioned the commission to repeal the designation. The repeal would allow a regional facility to be built and operated by the LCRA and BRA respectively, while also allowing for interested entities to continue discussing regional wastewater system plans with other interested parties. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, Section 2007.043. The following is a summary of the assessment. The specific purpose of the proposed repeal is to remove the designation the Upper Brushy Creek Watershed as a regional area. The proposed repeal of these rules will not affect private real property which is the subject of the rules. HEARING AND COMMENTERS A public hearing was held on December 6, 1996, in Austin, Texas. No public testimony was offered at the hearing. The public comment period closed on December 27, 1996. No written public comments were received. STATUTORY AUTHORITY The sections are adopted under the Texas Water Code, sec.5.102 which provides the commission with the general powers to carry out duties under the Texas Water Code, and sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and the duties under the provisions of the Texas Water Code and other laws of this state. 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 February 10, 1997. TRD-9701833 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: March 3, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 239-4640 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART I. Texas Department of Public Safety CHAPTER 17.Administrative License Revocation 37 TAC sec.17.11 The Texas Department of Public Safety adopts an amendment to sec.17.11, concerning administrative license revocation ("ALR"), without changes to the proposed text as published in the December 27, 1996, issue of the Texas Register (21 TexReg 12527). The justification for the amendment will be the timely and proper removal of ALR suspensions from driving records when warranted. The amendment adds new subsection (e) promulgating that defendants in an ALR case notify the department of the judgment from an appeal of an ALR case. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to Texas Transportation Code, Chapter 524 and Chapter 724 which provide the department and the State Office of Administrative Hearings shall adopt rules to administer this chapter. 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 January 30, 1997. TRD-9701730 Dudley M. Thomas Director Texas Department of Public Safety Effective date: February 28, 1997 Proposal publication date: December 27, 1996 For further information, please call: (512) 424-2890