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 XII. Advisory Commission on State Emergency Communications CHAPTER 252. Administration 1 TAC sec.252.5 The Advisory Commission on State Emergency Communications (ACSEC) adopts new sec.252.5, concerning procedure for emergency communication districts adopting provisions of Health and Safety Code, Chapter 771 and ACSEC rules as authorized by recent legislation, without changes to the proposed text as published in the issue of the Texas Register (22 TexReg 7113). H.B. 1324 from the 75th Legislative Session provides that an emergency communication district may voluntarily adopt ACSEC rules and provisions of Health and Safety Code, Chapter 771. This section establishes the procedures for a district to adopt provisions of Chapter 771 and ACSEC rules. No comments were received regarding adoption of this new section. The new section is adopted under the Health and Safety Code, Chapter 771, sec.771.051, which authorizes ACSEC to administer the implementation of statewide 9-1-1 service and provide assistance in the establishment and operation of 9-1-1 service. The adopted new rule affects the Health and Safety Code, Chapter 771, sec.771.062. 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 October 17, 1997. TRD-9713842 James D. Goerke Executive Director Advisory Commission on State Emergency Communications Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-6911 1 TAC sec.252.6 The Advisory Commission on State Emergency Communications (ACSEC) adopts new sec.252.6, concerning the administrative distribution of wireless 9-1-1 service fees, with minor changes to the proposed text as published in the August 1, 1997, issue of the Texas Register (22 TexReg 7113). H.B. 2129 from the 75th Legislative Session authorized ACSEC to impose a statewide 9-1-1 service fee on wireless telecommunications connections. This recent legislation provides that ACSEC shall distribute to each regional planning commission and emergency communication district a portion of the money collected that bears the same proportion to the total amount collected that the population of the area served by the commission or district bears to the total combined population of the areas served by a commission or district. This new rule establishes procedures for implementing the distribution to the 9-1-1 entities. The Commission, in response to comments, made changes to clarify sec.252.6. Written comments were received from the City of Addison, City of Dallas, and North Central Texas Council of Governments. The City of Addison noted that their population is only 10,000, but that as many as 100,000 people may be in or through the city as a daytime population. The City of Addison stated that this results in them having 179% more wireless 9-1-1 calls than a non-metropolitan city with a population of more wireless 9-1-1 calls than a non-metropolitan city with a population of 10,000. The City of Dallas commented the Advisory Commission on State Emergency Communications should issue (1) one check per month; (2) that there be a 9-1-1 service fee report with specific information accompanying the check; and (3) that wireless provider should provide an annual refusal to pay report. North Central Texas Council of Governments commented with regard to the separate distribution table, that they were aware of more current population data from the Texas State Data Center. The Commission voted to adopt the proposed rule as modified. The proposed rule has not been modified to address the City of Addison's concerns. While the City of Addison may have a legitimate issue that wireless 9-1-1 call volume might be a better way to distribute the wireless emergency service fees, the Commission concluded that any change along those lines needs to be made by the Texas Legislature. The proposed rule has been modified to clearly address the City of Dallas' concern that distributions to 9-1-1 entities should be made monthly. The Commission believes that this was the Texas Legislature's intent in H.B. 2129. The proposed rule has not been modified, as requested by the City of Dallas, to require wireless service providers to submit annual refusal to pay reports because the Commission views this potential modification as outside the scope of the published rule. On the other hand, the Commission preliminarily believes that requiring an annual refusal to pay report from wireless service providers may be a good practice that should be considered in the near future. The proposed rule has not been modified to provide the specific information requested to accompany the monthly distributions. The Commission concludes approval of the proportional distributions should make providing this individual information monthly with each distribution for each entity more burdensome and time consuming than is necessary to achieve appropriate and accurate distributions to all of the 9-1-1 entities. The new section is adopted under the authority of Health and Safety Code, Chapter 771, sec.771.0711, which establishes a statewide 9-1-1 wireless emergency service fee and requirements for its distribution to regional planning commissions and emergency communication districts. The adopted new rule affects the Health and Safety Code, Chapter 771, sec.771.0711. sec.252.6. Wireless Service Fee Proportional Distribution. The commission shall use the most recent annual estimate from the Texas State Data Center to proportionally distribute the wireless emergency service fee to regional planning commissions and emergency communication districts. The commission shall approve the specific proportional distributions for a given year at an open meeting before or during October of each year. At least two weeks before that open meeting, commission staff shall submit for publication in the Texas Register and mail to the each regional planning commission and emergency communication district the proportional distributions for that particular year. This will allow regional planning commissions and emergency communication districts to comment on the proportional distribution before or during the open meeting. The commission shall distribute the wireless emergency service fees monthly and distribute any interest earned on the wireless emergency service fees annually. 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 October 17, 1997. TRD-9713843 James D. Goerke Executive Director Advisory Commission on State Emergency Communications Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-6911 CHAPTER 255. Finance 1 TAC sec.255.10 The Advisory Commission on State Emergency Communications (ACSEC) adopts new sec.255.10, concerning notification by a regional planning commission of a service provider's or a business service user's failure to timely deliver 9-1-1 fees, without changes to the proposed text as published in the August 1, 1997, issue of the Texas Register (22 TexReg 7114). The new section establishes the procedure to be used by a regional planning commission or designated public agency to notify the ACSEC of a service provider's or a business service user's failure to timely deliver 9-1-1 fees. No comments received regarding adoption of this new section. The new section is adopted under the Health and Safety Code, Chapter 771, sec.771.051, which authorizes ACSEC to administer the implementation of statewide 9-1-1 service, and 771.077, which specifically provides for the establishment of procedures to be used by a regional planning commission to notify ACSEC of a service provider's or business service user's failure to timely deliver 9-1-1 fees. The adopted new rule affects the Health and Safety Code, Chapter 771, sec.771.077. 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 October 17, 1997. TRD-9713841 James D. Goerke Executive Director Advisory Commission on State Emergency Communications Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-6911 TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 6.Seed Arbitration 4 TAC sec.sec.6.1-6.5 The Texas Department of Agriculture (the department) adopts new sec.sec.6.1-6.5, concerning the administration of the arbitration of seed performance disputes, without changes to the proposed text as published in the August 29, 1997 issue of the Texas Register (22 TexReg 8583). The new sections are adopted to establish procedures concerning the filing of complaints under Chapter 64 of the Texas Agriculture Code. The new sections provide definitions, filing requirements, costs related to arbitration and an expiration provision. John T. Moss, General Manager, East Texas Seed Company, commented on the proposed regulations stating that he supported the proposed regulations. No other comments were received regarding the adoption of the proposal. The new sections are adopted under the Texas Agriculture Code, sec.64.007, which provides the Texas Department of Agriculture with the authority to adopt rules necessary for the efficient enforcement of Chapter 64; and the Texas Agriculture Code, sec.64.006, which provides the Texas Department of Agriculture with the authority to charge filing fees and assess the costs of arbitration to any reponsible party. 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 October 15, 1997. TRD-9713692 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: November 4, 1997 Proposal publication date: August 29, 1997 For further information, please call: (512) 463-7541 TITLE 10. COMMUNITY DEVELOPMENT PART V. Texas Department of Economic Development CHAPTER 182. Small Business Assistance SUBCHAPTER B. Linked Deposit Program 10 TAC sec.sec.182.51, 182.52, 182.54-182.58, 182.60 The Texas Department of Economic Development (department) adopts amendments to sec.sec.182.51, 182.52, 182.54-182.58 and 182.60, implementing the Linked Deposit Program authorized by Texas Government Code, Chapter 481, Subchapter N, without changes to the proposed text as published in the August 5, 1997, issue of the Texas Register (22 TexReg 7201), and will not be republished. These amendments are being adopted to reflect legislative changes made by Senate Bill (SB) 265 and SB 932, to change references to the treasury to references to the comptroller in accordance with Senate Joint Resolution Number 1 of the 74th Legislature that proposed a constitutional amendment to abolish the State Treasury that was adopted by the voters, and to clarify aspects of the program that were unclear or confusing to more accurately reflect current program practices. The amendments to sec.182.51, General Provisions, change the name of the implementing state agency to the Texas Department of Economic Development and the name of the program to the Linked Deposit Program due to statutory revisions enacted by the 75th Legislature. In addition, sec.182.51 is being amended to add child-care providers, non-profit corporations, and small businesses located in enterprise zones and to delete small businesses in distressed areas as eligible program participants in accordance with SB 265. The amendments to sec.182.52, Definition of Terms, reflect the changes made by SB 265 and SB 932, and delete references to the state treasury and replace them with references to the comptroller in accordance with the abolishment of the State Treasury by the 74th Legislature. The amendments to sec.182.54, Application Procedures for the Lender, change references to the treasury to references to the comptroller, and clarify the length of time the lender has to submit a compliance report to the department after a loan is funded. There are two amendments to sec.182.55, Procedure for Review by the Department. The first change provides that applications found to be deficient will be considered withdrawn if the amended application is not received by the department within 15 calendar days of the date the lending institution is notified of the deficiency. This change is needed to eliminate the possibility that pending, incomplete applications will prevent other potential borrowers from obtaining funding. The second change is to reference the comptroller, rather than the treasury. The amendments to sec.182.56, Acceptance and Rejection Procedures, change references to the treasury to references to the comptroller, clarify that execution of a written deposit agreement is required prior to funds being wired, provide that the interest rate paid on the linked deposit may be modified during the period of the loan, and provide that the department's governing board, as well as the executive director, may reconsider a rejected application. The amendments to sec.182.57, Designation as a Distressed Community, clarify that municipalities may no longer apply to the department for designation as a distressed community under the program. There are four amendments to sec.182.58, Program Limitations. Section 182.58(2) is being amended to add a maximum aggregate loan amount in order to encourage use of the program by multiple borrowers by eliminating the possibility that one borrower might utilize a large portion of the total funds available and to delete a provision that applied only until September 1, 1995. Section 182.58(4) is being amended to change the maximum amount of a loan to $250,000, in accordance with SB 265. Section 182.58(7) is being amended to provide that loans do not expire upon expiration of the fiscal year, but are placed for the period of the loan subject to the lender remaining an approved lender by the comptroller, in accordance with SB 265. Section 182.58(10) is being added to provide that the comptroller is not required to maintain a deposit with a lending institution for a loan that has been extended, renewed, or renegotiated unless a new linked deposit application for the loan as modified has been submitted and approved. The amendments to sec.182.60 change the name and update the address of the department. No comments were received concerning the proposed amendments. The rules are adopted under the authority of Texas Government Code, sec.481.005(d) and sec.481.0044(a), which require the department's governing board to adopt rules for programs administered by the department and the Administrative Procedure Act, Chapter 2001, Subchapter B, Rulemaking, which sets forth the rulemaking procedure to be followed by state agencies in proposing and adopting rules. Texas Government Code, Chapter 481, Subchapter N, is affected by these rules. 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 October 13, 1997. TRD-9713536 W. Lane Lanford Chief Administrative Officer Texas Department of Economic Development Effective date: November 3, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 936-0181 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 12.Coal Mining Regulations The Railroad Commission of Texas adopts the repeal of 16 TAC sec.sec.12.173, 12.340, 12.341, 12.342, 12.344, 12.347, 12.348, 12.349, 12.350, 12.355, 12.390, 12.395, 12.396, 12.510, 12.511, 12.512, 12.514, 12.517, 12.519, 12.522, 12.524, 12.555, 12.560, and 12.561, all relating to regulation of coal mining and reclamation; adopts new rules 16 TAC sec.sec.12.25, 12.26, 12.27, 12.28, 12.29, 12.30, 12.31, 12.32, 12.33, 12.173, 12.340, 12.341, 12.344, 12.347, 12.348, 12.349, 12.350, 12.355, 12.375, 12.390, 12.395, 12.510, 12.511, 12.514, 12.517, 12.519, 12.522, 12.524, 12.555 and 12.560, all relating to regulation of coal mining and reclamation; and adopts amendments to 16 TAC sec.sec.12.2, 12.3, 12.10, 12.13, 12.14, 12.15, 12.16, 12.72, 12.76, 12.83, 12.107, 12.116, 12.124, 12.125, 12.126, 12.127, 12.128, 12.129, 12.130, 12.131, 12.135, 12.136, 12.137, 12.139, 12.142, 12.145, 12.146, 12.148, 12.150, 12.170, 12.171, 12.172, 12.174, 12.175, 12.176, 12.177, 12.181, 12.182, 12.183, 12.185, 12.188, 12.190, 12.196, 12.197, 12.202, 12.210, 12.215, 12.216, 12.220, 12.221, 12.225, 12.227, 12.301, 12.327, 12.328, 12.331, 12.352, 12.357, 12.358, 12.360, 12.362, 12.363, 12.364, 12.366, 12.370, 12.376, 12.377, 12.378, 12.380, 12.385, 12.387, 12.388, 12.400, 12.401, 12.509, 12.526, 12.527, 12.528, 12.530, 12.531, 12.532, 12.533, 12.534, 12.535, 12.536, 12.537, 12.538, 12.539, 12.540, 12.541, 12.542, 12.543, 12.544, 12.545, 12.547, 12.552, 12.554, 12.569, 12.570, 12.651, 12.660, 12.661, 12.698, 12.702, 12.703, 12.704, and 12.706, all relating to regulation of coal mining and reclamation, without changes to the versions published in the August 8, 1997, Texas Register (22 TexReg 7279). Sections 12.173, 12.340, 12.341, 12.344, 12.347, 12.348, 12.349, 12350, 12.355, 12.390, 12.395, 12.510, 12.511, 12.512, 12.514, 12.517, 12.519, 12.522, 12.524, 12.555, and 12.560, all relating to coal mining and reclamation, are simultaneously repealed and replaced by new sections of the same section number. The following new sections address deficiencies in the state program identified by the Office of Surface Mining Reclamation and Enforcement (OSM) and are substantially identical to the corresponding federal regulation, shown in parentheses: Section 12.173, relating to Geology Description (30 CFR 784.22); Section 12.340, relating to Hydrologic Balance: Water-Quality Standards and Effluent Limitations (30 CFR 816.42); Section 12.341, relating to Hydrologic Balance: Diversions and Conveyance of Overland Flow and Shallow Ground Water Flow, and Ephemeral Streams (30 CFR 816.43 and 816.44); Section 12.344, relating to Hydrologic Balance: Siltation Structures (30 CFR 816.46); Section 12.347, relating to Hydrologic Balance: Permanent and Temporary Impoundments (30 CFR 816.49); Section 12.348, relating to Hydrologic Balance: Ground-Water Protection (30 CFR 816.50); Section 12.349, relating to Hydrologic Balance: Protection of Ground Water Recharge Capacity (30 CFR 816.51); Section 12.350, relating to Hydrologic Balance: Surface and Ground-Water Monitoring (30 CFR 816.52); Section 12.355, relating to Hydrologic Balance: Stream Buffer Zones (30 CFR 816.57); Section 12.390, relating to Revegetation: General Requirements (30 CFR 816.111); Section 12.395, relating to Revegetation: Standards for Success (30 CFR 816.116 and 816.117). New sec.12.395 adds the postmining land use of "undeveloped land" to the list of land uses where ground cover and production of living plants must be at least equal to that of a reference area or such other success standard approved by the commission; Section 12.510, relating to Hydrologic Balance: Water-Quality Standards and Effluent Limitations (30 CFR 817.42); Section 12.511, relating to Hydrologic Balance: Diversions and Conveyance of Overland Flow and Shallow Ground Water Flow, Ephemeral Streams (30 CFR 817.43 and 817.44); Section 12.514, relating to Hydrologic Balance: Sedimentation Ponds (30 CFR 817.46); Section 12.517, relating to Hydrologic Balance: Permanent and Temporary Impoundments (30 CFR 817.49); Section 12.519, relating to Hydrologic Balance: Surface and Ground-Water Monitoring (30 CFR 784.41); Section 12.522, relating to Hydrologic Balance: Discharge of Water into an Underground Mine (30 CFR 784.41); Section 12.524, relating to Hydrologic Balance: Stream Buffer Zones (30 CFR 817.57); Section 12.555, relating to Revegetation: General Requirements (30 CFR 817.111); and Section 12.560, relating to Revegetation: Standards for Success (30 CFR 817.116 and 817.117). The following sections are repealed and the portions of those sections retained are amended and moved as described below: Section 12.342, relating to Hydrologic Balance: Stream Channel Diversions, is repealed; the provisions that are retained have been amended and moved to new sec.12.341, relating to Hydrologic Balance: Diversions; Section 12.396, relating to Revegetation: Tree and Shrub Stocking for Forest Land, is repealed; the provisions that are retained have been amended and moved to new sec.12.395, relating to Revegetation: Standards for Success; Section 12.512, relating to Hydrologic Balance: Stream Channel Diversions, is repealed; the provisions that are retained have been amended and moved to proposed new sec.12.511, relating to Hydrologic Balance: Diversions; and Section 12.561, relating to Revegetation: Tree and Shrub Stocking for Forest Land, is repealed; the provisions that are retained have been amended and moved to new sec.12.560, relating to Revegetation: Standards for Success. New sections 12.25, 12.26, 12.27, 12.28, 12.29, 12.30, 12.31. 12.32, 12.33, and 12.375, all relating to coal mining and reclamation, are adopted herein. The following new sections address deficiencies in the state program identified by OSM and are substantially identical to the corresponding federal regulation, shown in parentheses: Section 12.25, relating to Scope of Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.1); Section 12.26, relating to Application Requirements and Procedures for Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.11); Section 12.27, relating to Contents of Application for Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.12); Section 12.28, relating to Public Availability of Information under Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.13); Section 12.29, relating to Requirements for Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.14); Section 12.30, relating to Conditions of Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.15); Section 12.31, relating to Stockpiling of Minerals relating to Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.16); Section 12.32, relating to Revocation and Enforcement pertaining to Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.17); Section 12.33, relating to Reporting Requirements for Exemption for Coal Extraction Incidental to the Extraction of Other Minerals (30 CFR 702.18), and Section 12.375, relating to Permanent Program Performance Standards for Surface Mining Activities related to Disposal of Noncoal Wastes; sec.12.375 was inadvertently omitted from the rules adopted on March 17, 1997 (22 TexReg 3093, March 28, 1997). The amendments to sec.sec.12.2, 12.3, 12.10, 12.13, 12.14, 12.15, 12.16, 12.72, 12.76, 12.83, 12.107, 12.116, 12.126, 12.127, 12.128, 12.129, 12.130, 12.142, 12.146, 12.148, 12.172, 12.174, 12.175, 12.176, 12.188, 12.190, 12.197, 12.202, 12.210, 12.215, 12.216, 12.220, 12.221, 12.225, 12.227, 12.301, 12.327, 12.328, 12.352, 12.357, 12.358, 12.360, 12.362, 12.376, 12.377, 12.378, 12.380, 12.385, 12.509, 12.526, 12.527, 12.528, 12.530, 12.535, 12.538, 12.543, 12.544, 12.545, 12.547, 12.552, 12.698, 12.702, 12.703, 12.704, and 12.706, relating to regulation of coal mining and reclamation, address deficiencies in the state program identified by OSM in review of the Texas Permanent State Program and which OSM deemed necessary to ensure the state program remains no less stringent than the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and no less effective than the corresponding federal regulations. The following amendments to existing regulations contain language that is substantially identical to the corresponding federal regulations (listed in parentheses), as determined by the Director of OSM (see, 62 FedReg 14311, March 26, 1997): Section 12.2, relating to Authority, Responsibility, and Applicability (30 CFR 700.11(a)(4), (a)(5), and (d)); Section 12.3, relating to definitions, including definitions for adjacent area, affected area, applicant, application, coal mining operation, coal processing waste, complete and accurate application, ground cover, other treatment facility, property to be mined, replacement of water supply, sedimentation pond, siltation structure (30 CFR 701.5), definitions for cumulative measurement period, cumulative production, cumulative revenue, mining area, other minerals (30 CFR 702.5), and definition for violation, failure, or refusal (30 CFR 724.5); Sections 12.10, 12.13, 12.14, 12.15, and 12.16, restrictions of financial interests of state employees (30 CFR 705.4, 705.5, 705.11, 705.13, 705.15, and 705.17); Sections 12.72, 12.76, and 12.83, relating to procedures and requirements for designating lands unsuitable for surface coal mining operations (30 CFR 761.12 and 762.13); Section 12.116, relating to Identification of Interests and Compliance Information for Surface Coal Mining and Reclamation Operations Permits and Coal Exploration Procedures Systems (30 CFR 778.14(c)); Section 12.126, relating to Surface Mining Permit Minimum Requirements for Information on Environmental Resources relating to Description of Hydrology and Geology (30 CFR 780.21); Section 12.127, relating to Surface Mining Permit Minimum Requirements for Information on Environmental Resources relating to Geology Description (30 CFR 780.22); Section 12.128, relating to Surface Mining Permit Minimum Requirements for Information on Environmental Resources relating to Ground-Water Information (30 CFR 780.21); Section 12.129, relating to Surface Mining Permit Minimum Requirements for Information on Environmental Resources relating to Surface-Water Information (30 CFR 780.21); Section 12.130, relating to Surface Mining Permit Minimum Requirements for Information on Environmental Resources relating to Alternative Water Supply Information (30 CFR 780.21); Section 12.142, relating to Surface Mining Permit Minimum Requirements for Reclamation and Operation Plan relating to Maps and Plans pertaining to Operation Plans (30 CFR 780.14); Section 12.146, relating to Surface Mining Permit Minimum Requirements for Reclamation and Operation Plan relating to Protection of Hydrologic Balance pertaining to Reclamation Plans (30 CFR 780.21); Section 12.148, relating to Surface Mining Permit Minimum Requirements for Reclamation and Operation Plan relating to Ponds, Impoundments, Banks, Dams, and Embankments pertaining to Reclamation Plans (30 CFR 780.14); Section 12.172, relating to Underground Mining Permit Minimum Requirements for Information on Environmental Resources relating to Description of Hydrology and Geology (30 CFR 784.14); Section 12.174, relating to Underground Mining Permit Minimum Requirements for Information on Environmental Resources relating to Ground-Water Information (30 CFR 784.14); Section 12.175, relating to Underground Mining Permit Minimum Requirements for Information on Environmental Resources relating to Surface-Water Information (30 CFR 784.14); Section 12.176, relating to Underground Mining Permit Minimum Requirements for Information on Environmental Resources relating to Alternative Water Supply Information; Section 12.188, relating to Underground Mining Permit Minimum Requirements for Reclamation and Operation Plan relating to Protection of Hydrologic Balance pertaining to Reclamation Plans (30 CFR 784.14); Section 12.190, relating to Underground Mining Permit Minimum Requirements for Reclamation and Operation Plan relating to Ponds, Impoundments, Banks, Dams, and Embankments pertaining to Reclamation Plans (30 CFR 784.16); Section 12.197, relating to Underground Mining Permit Minimum Requirements for Reclamation and Operation Plan relating to Maps and Plans pertaining to Operation Plans (30 CFR 784.23); Section 12.202, relating to Surface Coal Mining and Reclamation Operations on Areas or Adjacent to Areas Including Alluvial Valley Floors in the Arid or Semi- Arid Areas west of the 100th Meridian (30 CFR 785.19); Section 12.210, relating to Public Availability of Information under Exemption in Permit Applications on File with the Commission (30 CFR 773.13); Section 12.215, relating to Review of Permit Applications for Permits for Special Categories of Mining (30 CFR 773.15(b)(1)); Section 12.216, relating to Criteria for Approval or Denial of Permits for Special Categories of Mining (30 CFR 773.15); Section 12.220, relating to General and Right of Entry Conditions of Permits for Special Categories of Mining (30 CFR 773.17); Section 12.225, relating to Commission Review of Outstanding Permits (30 CFR 773.21); Section 12.301, relating to Requirements for Filing a Bond for Surface Coal Mining and Reclamation Operations (30 CFR 800.11); Section 12.327, relating to Performance Standards for Coal Exploration (30 CFR 815.15); Section 12.328, relating to Requirements for a Permit for Coal Exploration (30 CFR 772.14); Section 12.352, relating to Permanent Program Performance Standards for Surface Mining Activities related to Water Rights and Replacement of Water (30 CFR 816.41(h)); Section 12.357, relating to Permanent Program Performance Standards for Surface Mining Activities related to General Requirements for the Use of Explosives (30 CFR 816.61); Section 12.358, relating to Permanent Program Performance Standards for Surface Mining Activities related to Pre-Blasting Survey for the Use of Explosives (30 CFR 816.62); Section 12.360, relating to Permanent Program Performance Standards for Surface Mining Activities related to Control of Adverse Affects for the Use of Explosives (30 CFR 816.61 and 816.67); Section 12.362, relating to Permanent Program Performance Standards for Surface Mining Activities related to Records of Blasting Operations pertaining to the Use of Explosives (30 CFR 816.68); Section 12.376, relating to Permanent Program Performance Standards for Surface Mining Activities related to General Requirements for Dams and Embankments pertaining to Coal Mine Waste (30 CFR 816.84); Section 12.377, relating to Permanent Program Performance Standards for Surface Mining Activities related to Site Preparation for Dams and Embankments pertaining to Coal Mine Waste (30 CFR 816.84); Section 12.378, relating to Permanent Program Performance Standards for Surface Mining Activities related to Design and Construction Standards for Dams and Embankments pertaining to Coal Mine Waste (30 CFR 816.84); Section 12.380, relating to Permanent Program Performance Standards for Surface Mining Activities related to Protection of Fish, Wildlife, and Related Environmental Values (30 CFR 816.97(h)); Section 12.385, relating to Permanent Program Performance Standards for Surface Mining Activities related to General Requirements pertaining to Backfilling and Grading (30 CFR 816.83(c)(2)); Section 12.509, relating to Permanent Program Performance Standards for Underground Mining Activities related to General Requirements for pertaining to Hydrologic Balance (30 CFR 817.41); Section 12.526, relating to Permanent Program Performance Standards for Underground Mining Activities related to General Requirements for the Use of Explosives (30 CFR 817.61); Section 12.527, relating to Permanent Program Performance Standards for Underground Mining Activities related to Pre- Blasting Survey for the Use of Explosives (30 CFR 817.62); Section 12.528, relating to Permanent Program Performance Standards for Underground Mining Activities related to Control of Adverse Affects pertaining to the Use of Explosives (30 CFR 817.61, 817.66, and 817.67); Section 12.530, relating to Permanent Program Performance Standards for Underground Mining Activities related to Records of Blasting Operations pertaining to the Use of Explosives (30 CFR 817.68); Section 12.535, relating to Permanent Program Performance Standards for Underground Mining Activities related to General Requirements pertaining to Coal Mine Waste Banks (30 CFR 817.81(c)(1)); Section 12.538, relating to Permanent Program Performance Standards for Underground Mining Activities related to Construction Requirements pertaining to Coal Mine Waste Banks; Section 12.543, relating to Permanent Program Performance Standards for Underground Mining Activities related to General Requirements for Dams and Embankments pertaining to Coal Mine Waste (30 CFR 817.84); Section 12.544, relating to Permanent Program Performance Standards for Underground Mining Activities related to Site Preparation for Dams and Embankments pertaining to Coal Mine Waste (30 CFR 817.84); Section 12.545, relating to Permanent Program Performance Standards for Underground Mining Activities related to Design and Construction Standards for Dams and Embankments pertaining to Coal Mine Waste (30 CFR 817.84); Section 12.547, relating to Permanent Program Performance Standards for Underground Mining Activities related to Protection of Fish, Wildlife, and Related Environmental Values (30 CFR 817.97(h)); Section 12.552, relating to Permanent Program Performance Standards for Underground Mining Activities related to General Grading Requirements pertaining to Backfilling and Grading (30 CFR 817.83(c)(2)); Section 12.698, relating to Procedure for Assessment of Civil Individual Penalties (30 CFR 846.17(c)); Section 12.702, relating to General Requirements for the Training, Examination, and Certification of Blasters (30 CFR 850.13, 850.14, and 850.15); Section 12.703, relating to Training Requirements for Blasters (30 CFR 850.13(b)(1)(iii)); Section 12.704, relating to Training Courses for Blasters (30 CFR 850.13); and Section 12.706, relating to Examination of Blasters (30 CFR 850.14). The amendment to sec.12.3, relating to Definitions, adds the term "administratively complete application" to distinguish between an application that contains all the information that is necessary to initiate processing and public review and an application that contains all the information that is necessary to make a decision on permit issuance which is denominated a "complete and accurate application" in the these regulations. Amendments to sec.sec.12.107, 12.124, 12.125, 12.131, 12.135, 12.136, 12.137, 12.139, 12.145, 12.150, 12.170, 12.171, 12.177, 12.181, 12.182, 12.183, 12.185, 12.196, 12.221, 12.227, 12.331, 12.363, 12.364, 12.366, 12.370, 12.375, 12.387, 12.388, 12.400, 12.401, 12.531, 12.532, 12.533, 12.534, 12.536, 12.537, 12.539, 12.540, 12.541, 12.542, 12.554, 12.569, 12.570, 12.651, 12.660, and 12.661, make nonsubstantive changes to internal references and terminology. No comments were received on the proposed repeals, amendments, and new sections. SUBCHAPTER A.General General 16 TAC sec.12.2, sec.12.3 The amendments are adopted pursuant to sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the amendments. 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 October 15, 1997. TRD-9713706 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Restriction of Financial Interests of State Employees 16 TAC sec.sec.12.10, 12.13, 12.14, 12.15, 12.16 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713707 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Exemption for Coal Extraction Incidental to the Extraction of Other Minerals 16 TAC sec.sec.12.25-12.33 The new sections are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted new sections and amendments. 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 October 15, 1997. TRD-9713708 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER F.Lands Unsuitable for Mining Areas Designated by Act of Congress 16 TAC sec.12.72 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713709 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Criteria for Designating Areas as Unsuitable for Surface Coal Mining Operations 16 TAC sec.12.76 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713710 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Process for Designating Areas as Unsuitable for Surface Coal Mining Operations 16 TAC sec.12.83 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713711 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER G.Surface Coal Mining and Reclamation Operations Permits and Coal Exploration Procedures System General Requirements for Permits and Permit Applications 16 TAC sec.12.107 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713712 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Surface Mining Permit Applications-Minimum Requirements for Legal, Financial, Compliance, and Related Information 16 TAC sec.12.116 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713713 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Surface Mining Permit Applications-Minimum Requirements for Information on Environmental 16 TAC sec.sec.12.124-12.131, 12.135, 12.137 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713714 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Surface Mining Permit Applications-Minimum Requirements for Reclamation and Operation Plan 16 TAC sec.sec.12.139, 12.142, 12.145, 12.146, 12.148, 12.150 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713715 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Underground Mining Permit Applications-Minimum Requirements for Information on Environmental Resources 16 TAC sec.sec.12.170-12.177, 12.181-12.183 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713716 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER G.Surface Coal Mining and Reclamation Operations Permits and Coal Exploration Procedures Systems Underground Mining Permit Applications-Minimum Requirements for Information on Environmental Resources 16 TAC sec.12.173 The repeals are adopted pursuant to sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the repeals. 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 October 15, 1997. TRD-9713703 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Underground Mining Permit Applications-Minimum Requirements for Reclamation and Operation Plan 16 TAC sec.sec.12.185, 12.188, 12.190, 12.196, 12.197 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713717 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Requirements for Permits for Special Categories of Mining 16 TAC sec.12.202 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713718 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Review, Public Participation, and Approval of Permit Applications and Permit Terms and Conditions 16 TAC sec.sec.12.210, 12.215, 12.216, 12.220, 12.221 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713719 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 16 TAC sec.12.225, sec.12.227 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713720 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER J.Bond and Insurance Requirements for Surface Coal Mining and Reclamation Operations General Requirements for Insurance and Bonding of Surface Coal Mining and Reclamation Operations Under Regulatory Programs 16 TAC sec.12.301 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713721 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER K.Permanent Program Performance Standards-Coal Exploration Permanent Program Performance Standards-Coal Exploration 16 TAC sec.12.327, sec.12.328 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713722 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Permanent Program Performance Standards-Surface Mining Activities 16 TAC sec.sec.12.331, 12.340, 12.341, 12.344, 12.347-12.350, 12.352, 12.355, 12.357, 12.358, 12.360, 12.362-12.364, 12.366, 12.370, 12.375-12.378, 12.380, 12.385, 12.387, 12.388, 12.390, 12.395, 12.400, 12.401 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713723 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER K.Surface Coal Mining and Reclamation Operations Permits and Coal Exploration Procedures Systems Permanent Program Performance Standards-Surface Mining Activities 16 TAC sec.sec.12.340, 12.341, 12.342, 12.344, 12.347, 12.348, 12.349, 12.350, 12.355, 12.390, 12.395, 12.396 The repeals are adopted pursuant to sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the repeals. 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 October 15, 1997. TRD-9713704 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Permanent Program Performance Standards-Underground Mining Activities 16 TAC sec.sec.12.509-12.511, 12.514, 12.517, 12.519, 12.522, 12.524, 12.526- 12.528, 12.530-12.545, 12.547, 12.552, 12.554, 12.555, 12.560, 12.569, 12.570 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713724 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Permanent Program Performance Standards-Uderground Mining Activities 16 TAC sec.sec.12.510, 12.511, 12.512, 12.514, 12.519, 12.524, 12.555, 12.560, 12.561 The repeals are adopted pursuant to sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the repeals. 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 October 15, 1997. TRD-9713705 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Special Permanent Program Performance Standards-Coal Processing Plants and Support Facilities not located at or near the Minesite or not within the Permit Area for a Mine 16 TAC sec.12.651 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713725 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 Special Permanent Program Performance Standards-In Situ Processing 16 TAC sec.12.660, sec.12.661 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713726 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER L.Permanent Program Inspection and Enforcement Procedures 16 TAC sec.12.698 The amendment is adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the 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 October 15, 1997. TRD-9713727 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER M.Training Training, Examination, and Certification of Blasters 16 TAC sec.sec.12.702-12.704, 12.706 The amendments are adopted under sec.134.013 of the Texas Natural Resources Code, which authorizes the commission to promulgate rules pertaining to surface coal mining operations. The Texas Natural Resources Code, sec.134.013, is affected by the adopted amendments. 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 October 15, 1997. TRD-9713728 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 4, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-7008 TITLE 22. EXAMINING BOARDS PART IV. Texas Cosmetology Commission CHAPTER 83.Sanitary Rulings 22 TAC sec.83.22 The Texas Cosmetology Commission adopts an amendment to sec.83.22, concerning infectious diseases without changes to the proposed text as published in the June 27, 1997, issue of the Texas Register (22 TexReg 6089). The amendment is adopted as a result of the legislative session, and the passage of SB1131. No comments were received regarding the adoption of the amendment. The amendment is adopted under Section 32, Article 8451a, V.T.C.S., which provides the commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and safety. Article 8451a, V.T.C.S., is a effected by this adopted section. 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 October 16, 1997. TRD-9713701 Delores Alspaugh Interim Executive Director Texas Cosmetology Commission Effective date: November 4, 1997 Proposal publication date: June 27, 1997 For further information, please call: (512) 454-4674 PART XXI. Texas State Board of Examiners of Psychologists CHAPTER 461.General Rulings 22 TAC sec.461.7 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.461.7, concerning License Statuses, without changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8522). The rule is being amended to reflect that an individual may keep a license on active if that individual holds another license with this Board or another jurisdiction and to reflect that a license may not be placed on inactive status without express permission from the Board if that individual has a complaint pending, which will ensure the licensee's compliance with any regulatory disciplinary actions taken. The amendment will ensure that licensees comply with continuing education requirements and that licensees will comply fully with disciplinary actions imposed by the Board. Comments were received by a licensee of the Board regarding adoption of the amendment. Comment: The licensee was in favor of the amendment as published. Response: The Board agrees that the rule now offers even more protection to the public. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713869 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 22 TAC sec.461.11 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.461.11, concerning Continuing Education, with changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8522). The rule is being amended to reflect the elimination of two separate categories of continuing education, to specify how continuing education hours may be obtained, and to clarify the number of hours a licensee receives for participating in various continuing education activities. The amendment will ensure that each individual licensed by the Board is obtaining relevant continuing education hours yearly, thereby allowing the citizens of Texas to obtain the best possible psychological services available by qualified individuals and to make the rules easier for licensees and the general public to understand and follow. Comments were received from a licensee of the Board regarding adoption of the amendment. Comment: The licensee felt that the rule was overly restrictive and should be altered to allow a licensee to count the same course work no more than once every two years. Response: The Board's response is that, given the Board's resources and the elimination of banking, the change better ensures that licensees constantly increase their knowledge about the practice of psychology. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. sec.461.11.Continuing Education. (a) Requirements. All licensees of the Board are obligated to continue their professional education by completing 12 hours of continuing education during each year that they hold a license from the Board regardless of the number of separate licenses held by the licensee. (1) Continuing education hours may be obtained by participating in one or more of the following activities. The same workshop or course may not be used for credit more than once. (A) graduate level studies in psychology; (B) formal continuing education activities; (C) workshop presentations; and/or (D) publications. (2) Continuing education hours may be obtained from: (A) regionally accredited institutions of higher education; (B) national, regional, state, or local Psychological Associations; or (C) other Board recognized providers of continuing education. (3) Continuing education hours must be directly related to the practice of psychology. The Board shall make the determination as to whether the activities claimed by the licensee are directly related to the practice of psychology. It is the responsibility of the licensee to choose activities which provide demonstrated relevance to the practice of psychology. The Board will not consider personal psychotherapy, workshops for personal growth, or services to professional associations as meeting the requirements for continuing education. (b) Banking. Continuing education hours received after December 31, 1997, cannot be banked. Continuing education hours accrued prior to December 31, 1997, received from formal continuing education programs in excess of four hours during any one-year period may be banked for no longer than an additional two years provided that eight hours of additional continuing education hours are also completed each year by the licensee. (c) Documentation. Any submitted continuing education credits must have been received no earlier than 12 months prior to the renewal period for which they are submitted. The Board will accept as documentation of continuing education: (1) for hours received from attending college or university courses, grade slips or transcripts must be submitted. Each semester credit hour will count as four hours of continuing education. (2) for hours received for teaching college or university courses, documentation demonstrating that the licensee taught the course must be submitted. The same course may not be used for credit more than once. Each semester credit hour will count as four hours of continuing education. (3) for hours received from continuing education workshops or programs, certificates of attendance or completion specifying the actual number of pre- assigned continuing education hours will be required for attendees. (4) for presenters of continuing education workshops, copies of the program announcement and content will be required. Presenters may submit for credit only six hours per year in this category. The same workshop or topic may be submitted only once per year in this category. (5) for authors of publications (articles, chapters, or books), the article or table of contents may be submitted as proof of publication. Articles or chapters in relevant professional journals, periodicals, or books may be credited four hours towards the continuing education requirements per year. The title page and table of contents may be submitted for published books and edited books. Published books authored or co-authored may be credited eight hours. Editing of a relevant professional book may be credited six hours. (d) Declaration Form. Licensees must sign and submit a completed Continuing Education Declaration Form with the annual renewal form specifying the continuing education they received for that period. This does not alter the responsibility of licensees to reply truthfully to any question concerning continuing education on the renewal form itself. (e) - (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 October 17, 1997. TRD-9713870 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 22 TAC sec.461.12 The Texas State Board of Examiners of Psychologists adopts new sec.461.12, concerning Former Board Members, without changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8524). The rule is being adopted to clarify the roles of former Board members whose terms have expired. The new rule will avoid potential confusion of public consumers of psychological services and prevent potential conflicts of interest concerning former Board members. No comments were received regarding the adoption of the new rule. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713871 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 CHAPTER 463.Applications 22 TAC sec.463.3 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.3, concerning Date of Degree, without changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8524). The rule is being amended to simplify the rule making it easier to determine the date for completion of the requirements of a degree. The amendment will make the rule easier to follow for the applicant and for the general public. Comments were received by a licensee of the Board regarding adoption of the amendment. Comment: The licensee felt that the Board did not have legal authority to make this amendment. Response: The Board feels that the licensee misunderstood the purpose and effect of the rule. The rule states that the date a degree is received will be the date stated on the transcript. The licensee apparently believed the date the degree was conferred would be the date that the course work required for the degree was actually completed. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713872 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 22 TAC sec.463.4 The Texas State Board of Examiners of Psychologists adopts new sec.463.4, concerning Applicants with Disabilities, without changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8525). The rule is being adopted to bring the rules of the Board into line with the requirements of the Americans With Disabilities Act. The new rule will ensure compliance by all licensees with the Americans With Disabilities Act. No comments were received regarding the adoption of the new rule. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713873 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 22 TAC sec.463.5 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.5, concerning Application File Requirements, without changes to the proposed text as published in the September 5, 1997, issue of the Texas Register (22 TexReg 8839). The rule is being amended to clarify that any applicant for licensure as a specialist in school psychology must have attained a graduate degree that meets the requirements of the Psychologists' Licensing Act, sec.26. The amendment will make the rules easier to follow and to ensure that all licensees and the general public are aware of the Board's requirements for licensure as a specialist in school psychology. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713874 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 305-7700 22 TAC sec.463.6 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.6, concerning Experience, with changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8525). The rule is being amended to clarify and simplify the rule regarding the experience requirements for licensure as a psychologist. The amended rule will enable licensees and consumers of psychological services to better understand and track the training requirements for licensed psychologists. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. sec.463.6.Supervised Experience Required for Licensure as a Psychologist. In order to qualify for licensure, a psychologist must submit proof of two years of supervised experience, at least one year of which must have been a formal internship which meets the requirements set forth in paragraphs (2) or (3) of this section. The formal internship year may be met either before or after the doctoral degree is conferred. (1) General. All supervised experience for licensure as a psychologist, including the formal internship, must meet the following requirements: (A) Experience may be obtained only in either a full-time or half-time setting. (B) A year of full-time supervised experience is defined as a minimum of 35 hours per week employment/experience in not less than twelve consecutive calendar months in not more than two placements. (C) A year of half-time supervised experience is defined as a minimum of 20 hours per week employment/experience in not less than 24 consecutive calendar months in not more than two placements. (D) A year of full-time experience may be acquired through a combination of half-time and full-time employment/experience provided that the equivalent of a full-time year of supervision experience is satisfied. (E) One calendar year from the beginning of ten consecutive months of employment/experience in an academic setting constitutes one year of experience. (F) When supervised experience is interrupted, the Board may waive in accordance with established Board policy, upon a showing of good cause by the supervisee, the requirement that the supervised experience be completed in consecutive months. (G) A rotating internship organized within a doctoral program is considered to be one placement. (H) The experience requirement must be obtained after official enrollment in a doctoral program. (I) All supervised experience must be received from a psychologist licensed at the time supervision is received. (J) The supervising psychologist must be trained in the area of supervision provided to the supervisee. (K) No experience which is obtained from a psychologist who is related within the second degree of affinity or within the second degree by consanguinity to the person may be considered. (L) All supervised experience obtained for the purpose of licensure must be conducted in accordance with all applicable Board rules in effect during the supervision experience regardless of setting. (M) Experience received from a psychologist while the psychologist is practicing subject to an Agreed Board Order or Board Order shall not, under any circumstances, qualify as supervised experience for licensure purposes regardless of the setting in which it was received. Psychologists who become subject to an Agreed Board Order or Board Order shall inform all supervisees of the Agreed Board Order or Board Order and assist all supervisees in finding appropriate alternate supervision. (2) At least one year of experience must be satisfied by one of the following: (A) The successful completion of an internship program accredited by the American Psychological Association; or (B) The successful completion of an organized internship meeting all of the following criteria: (i) It must constitute an organized training program which is designed to provide the intern with a planned, programmed sequence of training experiences. The primary focus and purpose of the program must be to assure breadth and quality of training. (ii) The internship agency must have a clearly designated staff psychologist who is responsible for the integrity and quality of the training program and who is actively licensed/certified by the licensing board of the jurisdiction in which the internship takes place and who is present at the training facility for a minimum of (20) hours a week. (iii) The internship agency must have two or more full-time equivalent licensed psychologists on the staff as primary supervisors. (iv) Internship supervision must be provided by a staff member of the internship agency or by an affiliate of that agency who carries clinical responsibility for the cases being supervised. (v) The internship must provide training in a range of assessment and intervention activities conducted directly with patients/clients. (vi) At least 25% of trainee's time must be in direct patient/client contact (minimum 375 hours). (vii) The internship must include a minimum of two hours per week (regardless of whether the internship was completed in one year or two) of regularly scheduled formal, face-to-face individual supervision. There must also be at least two additional hours per week in learning activities such as: case conferences involving a case in which the intern was actively involved; seminars dealing with psychology issues; co-therapy with a staff person including discussion; group supervision; additional individual supervision. (viii) Training must be post-clerkship, post-practicum and post-externship level. (ix) The internship agency must have a minimum of two full-time equivalent interns at the internship level of training during applicant's training period. (x) The internship level psychology trainees must have titles such as "intern," "resident," "fellow," or other designation of trainee status. (xi) The internship agency must have a written statement or brochure which describes the goals and content of the internship, stated clear expectations for quantity and quality of trainee's work and must be made available to prospective interns. (xii) Consortia may be created if they follow the guidelines of the current American Psychological Association Committee on Accreditation Handbook; or (C) The successful completion of an organized internship program in a school district meeting the following criteria: (i) The internship experience must be provided at or near the end of the formal training period. (ii) The internship experience must occur on a full-time basis over a period of one academic year, or on a half-time basis over a period of two consecutive academic years. (iii) The internship experience must be consistent with a written plan and must meet the specific training objectives of the program. (iv) The internship experience must occur in a setting appropriate to the specific training objectives of the program. (v) At least 600 clock hours of the internship experience must occur in a school setting and must provide a balanced exposure to regular and special educational programs. (vi) The internship experience must occur under conditions of appropriate supervision. Field-based internship supervisors, for the purpose of the internship that takes place in a school setting, must be licensed as a psychologist and, if a separate credential is required to practice school psychology, must have a valid credential to provide psychology in the public schools. The portion of the internship which appropriately may take place in a non-school setting must be supervised by a licensed psychologist. (vii) Field-based internship supervisors must be responsible for no more than two interns at any given time. University internship supervisors shall be responsible for no more than 12 interns at any given time. (viii) Field-based internship supervisors must provide at least two hours per week of direct supervision for each intern. University internship supervisors must maintain an ongoing relationship with field-based internship supervisors and shall provide at least one field-based contact per semester with each intern. (ix) The internship must be documented by a written contractual agreement specifying the period of the internship and the training objectives of the program. (x) The internship experience must be systematically evaluated in a manner consistent with the specific training objectives of the program. (xi) The internship experience must be conducted in a manner consistent with the current legal-ethical standards of the profession. (xii) The internship agency must have a minimum of two full-time equivalent interns at the internship level during the applicant's training period. (xiii) The internship agency must have the availability of at least two full- time equivalent psychologists as primary supervisors, at least one of whom is employed full time at the agency and is a school psychologist. (xiv) Consortia may be created to meet the criteria in this section. (3) Individuals enrolled in an Industrial/Organizational doctoral degree program are exempt from the formal internship requirement and must complete two full years of supervised experience, at least one of which must be received after the doctoral degree is conferred and both of which must meet the requirements of paragraph (1) of this section. Individuals who do not undergo a formal internship pursuant to this paragraph should note that Board rules prohibit a psychologist from practicing in an area in which s/he does not have sufficient training and experience, of which a formal internship year is considered to be an integral requirement. 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 October 17, 1997. TRD-9713875 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 22 TAC sec.463.32 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.32, concerning Licensed Specialist in School Psychology, with changes to the proposed text published in the August 26, 1997, issue of the Texas Register (22 TexReg 8528). The rule is being amended to clarify the requirements for the Licensed Specialist in School Psychology. The amended rule will ensure that the licensees and the public are aware of the requirements regarding the practice of psychology in the public school districts and to ensure that the children in the public school districts of Texas receive psychological services from the most qualified individuals. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. sec.463.32.Licensed Specialist in School Psychology, Requirements for Licensure. (a) Training Qualifications. Candidates for licensure as a specialist in school psychology who hold a currently valid National Certified School Psychologist (NCSP) certification or who have graduated from a training program approved by the National Association of School Psychologists or accredited in School Psychology by the American Psychological Association will be considered to have met the training qualifications. All other applicants must have completed a graduate degree in psychology from a regionally accredited academic institution, and have completed at least 60 graduate level semester credit hours, also from a regionally accredited academic institution, no more than 12 of which may be internship hours. All 60 hours do not have to be obtained prior to the conferral of the graduate degree and the applicant need not be formally enrolled in a psychology program to obtain graduate hours after the degree date. For purposes of this rule, a graduate degree in psychology means the name of the candidate's major or program of studies must be titled psychology. These applicants must submit evidence of graduate level coursework as follows: (1) Psychological Foundations, including: (A) biological bases of behavior; (B) human learning; (C) social bases of behavior; (D) multi-cultural bases of behavior; (E) child or adolescent development; (F) psychopathology or exceptionalities. (2) Research and Statistics; (3) Educational Foundations, including: (A) instructional design; (B) organization and operation of schools; (4) Assessment, including: (A) psychoeducational assessment; (B) socio-emotional, including behavioral and cultural, assessment; (5) Interventions, including: (A) counseling; (B) behavior management; (C) consultation; (6) Professional, Legal and Ethical Issues; (7) A Practicum; and (8) An internship or experience. (b) Completion of internship or experience. Applicants must have completed a minimum of 1200 hours, of which 600 must be in a public school. The internship or experience in the public school must be supervised by an individual qualified in accordance with sec.465.38 of this title (relating to Psychological Services in the Schools). Internship or experience which is not obtained in a public school must be supervised by a licensed psychologist. No experience with a supervisor who is related within the second degree of affinity or within the second degree by consanguinity to the person, or is under Board disciplinary order, may be considered for specialist in school psychology licensure. Internships may not involve more than two sites (a school district is considered one site) and may be obtained in not less than one or more than two academic years. These individuals must be designated as interns. Direct, systematic supervision must involve a minimum of one face-to-face contact hour per week or two consecutive face-to-face contact hours once every two weeks with the intern. The internship must include direct intern application of assessment, intervention, behavior management, and consultation, for children representing a range of ages, populations and needs. (c) Examinations. Candidates for licensure as a specialist in school psychology must take and pass the Board's Jurisprudence Examination. Candidates must also take the National School Psychology Examination administered by the Educational Testing Service and obtain at least the current cut-off score for the NCSP. (d) Additional Requirements. In addition to the requirements of subsections (a) through (c) of this section, applicants for licensure as a specialist in school psychology must meet the requirements imposed under the Psychologists' Certification and Licensing Act, sec.11(d). (e) Temporary Licenses. Individuals from another jurisdiction who meet the requirements as set forth in the Psychologists' Certification and Licensing Act, sec.15A may apply to the Board for a temporary license to offer psychological services in the public schools if they meet all the requirements for temporary licensure as a licensed specialist in school psychology as set forth in sec.463.5 of this title (relating to Application File Requirements). This license is valid for a period not to exceed one academic year. (f) Grandparenting Provision for the Licensed Specialist in School Psychology. (1) Grandparenting Time Period. A person who, on or after September 1, 1992, but before September 1, 1996, was providing psychological services in a public school of this state and is also credentialed by this Board, or the National School Psychologists' Certification Board, or the Texas Education Agency as a school psychologist or associate school psychologist is entitled to a license as a licensed specialist in school psychology under the Psychologists' Certification and Licensing Act, sec.26, without examination, if the person applies to the Board for the license before September 1, 1997. An individual who qualifies for grandparenting may continue to practice under his/her present certification or license until s/he obtains the specialist in school psychology license, provided that the individual has filed a completed application for grandparenting prior to September 1, 1997, with the Board, or until the application is voided or denied. (2) Application Requirements. A completed application for grandparenting licensure as a specialist in school psychology includes: (A) an application and required fee; (B) two current passport pictures of the applicant; (C) verification sent directly to the Board from the school district superintendent or his/her administrative designee that the applicant provided psychological services in the district during the period set forth in paragraph (1) of this subsection. (D) verification sent directly to this Board from the credentialing agency of the applicant's certification/licensure as set forth in paragraph (1) of this subsection. Any individuals who hold either a temporary, intermediate or one-year certificate issued by the Texas Education Agency must produce proof that their deficiency plans have been completed by September 1, 1997, to qualify for a license under this paragraph. 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 October 17, 1997. TRD-9713876 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 CHAPTER 465.Rules of Practice 22 TAC sec.465.38 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.465.38, concerning Psychological Services in the Schools, without changes to the proposed text as published in the September 5, 1997, issue of the Texas Register (22 TexReg 8839). The rule is being amended to clearly state who may use the title of Licensed Specialist in School Psychology and to clarify the qualifications of a supervisor. The amended rule will ensure that the licensees of the Board and the public are aware of the requirements regarding the practice of psychology in the public school districts of Texas. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713877 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 305-7700 CHAPTER 466.Procedure 22 TAC sec.466.2 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.466.2, concerning Definitions, without changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8529). The rule is being amended to add the definition of legal representative as it pertains to informal settlement conferences held before the Board. The amendment will ensure that licensees have adequate representation in all matters before the Board pertaining to Chapter 2001 of the Texas Government Code and to ensure that the Agency does not unknowingly enable an individual to engage in the unauthorized practice of law. Comments were received by a licensee of the Board regarding adoption of the amendment. Comment: The licensee objects that it is common for individuals to have non- lawyer representation in settlement proceedings, that there is no indication that representing a licensee in an informal settlement proceeding is the unauthorized practice of law and that the Board "has failed to even ask the Texas Bar or the Unauthorized Practice of Law Committee of the Texas Supreme Court for their views before going forward with this amendment." Response: The Board's response is that an individual who engages in the practice of law in the State of Texas must be licensed by the State Bar. The representation of a licensee in an informal settlement conference involves advising the licensee as to his or her legal rights and whether to waive them by entering into an agreed order. The rule ensures that the Board does not unknowingly facilitate the illegal practice of law without a license. Furthermore, the Board consulted with the Texas Supreme Court Unauthorized Practice of Law Committee and the State Bar and were advised that the best way to ensure compliance was to promulgate a rule requiring all representatives to have a license to practice law in the state. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713878 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 22 TAC sec.466.15 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.466.15, concerning Informal Disposition, without changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8530). The rule is being amended to simplify and clarify the wording of the rule, making it easier to follow. The amendment will better inform the public and licensees of the requirements of the Board, thereby ensuring that the public receive psychological services from the most qualified individuals. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713879 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 CHAPTER 469.Specialty Certification 22 TAC sec.469.2 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.469.2, concerning Criteria for Health Service Providers in Psychology, without changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8531). The rule is being amended to recodify supervised experience requirements concerning the Health Service Provider. The amendment will make the rule easier for the public and licensees to be able to track the requirements of the rules. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713880 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 CHAPTER 473.Fees. 22 TAC sec.473.4 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.473.4, concerning Late Fees for Renewals, without changes to the proposed text as published in the August 26, 1997, issue of the Texas Register (22 TexReg 8531). This rule is being amended in order to add the late fee requirements for the Licensed Specialist in School Psychology. The amendment will make the public and licensees aware of the required fees. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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 October 17, 1997. TRD-9713881 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: November 10, 1997 Proposal publication date: August 26, 1997 For further information, please call: (512) 305-7700 PART XXIII. Texas Real Estate Commission CHAPTER 535.Provisions of the Real Estate License Act Licensed Real Estate Inspectors 22 TAC sec.535.222 The Texas Real Estate Commission (TREC) adopts an amendment to sec.535.222, concerning standards of practice for licensed inspectors, without changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7462). The amendment deletes language permitting inspectors to use inspection reports of their own design or those report forms required by a client. The amendment is adopted in connection with the commission's adoption of a series of standard inspection report forms which inspectors will be required to use unless federal law requires use of a different form in the transaction. Inspectors licensed by the commission may provide a client with additional information as attachments to any standard report form adopted by the commission. Several inspectors urged the commission to continue to allow the inspector's client to choose the form of the report which the inspector would use, arguing that the client has the right to determine the form of the report for which the client is paying. The commission determined that the provisions of Senate Bill 1100, 75th Legislature (1997) requiring the commission to adopt standard report forms and rules requiring their use precluded the use of different forms by inspectors. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties. 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 October 10, 1997. TRD-9713537 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: January 1, 1998 Proposal publication date: August 12, 1997 For further information, please call: (512) 465-3900 22 TAC sec.535.223 The Texas Real Estate Commission (TREC) adopts new sec.535.223, concerning standard inspection report forms, with changes to the proposed text as published in the August 12, 1997, issue of the Texas Register ( 22 TexReg 7462). The new section adopts by reference a series of inspection report forms and requires inspectors licensed by the commission to use those forms when performing inspections of residential properties, unless federal law requires use of a different report form. Adoption of the section is necessary for TREC to comply with Senate Bill 1100, 75th Legislature (1997), which requires the commission to adopt rules requiring its inspector licensees to use standard inspection report forms. The section permits licensed inspectors to reproduce the forms from printed copies obtained from the commission or by computer. When reproducing the form, however, the licensee will not be permitted to alter the appearance of the form, other than to delete items which are not being inspected. If an item is deleted, the heading of the item must remain in the report with a notation explaining why the item was not inspected. The section also permits the inspector to add additional pages if necessary to report on systems not contained in the forms or space provided in the forms is inadequate for a full reporting. Failure to comply with the section will be grounds to suspend or revoke the license of the inspector or to impose an administrative penalty. TREC received 24 written comments on the proposed inspection report forms and the provisions of the section relating to their use. The Texas Association of Real Estate Inspectors (TAREI) opposed adoption of the proposed forms as being cumbersome and inefficient, but noted that TREC was required by law to adopt standard report forms. TAREI suggested a number of modifications to the report forms to make them more closely comply with TREC's inspection standards. In response to TAREI suggestions, Property Inspection Report REI 7-0 was modified to add provisions for reporting plumbing leaks in the foundation, the condition of the roof covering, water leaks in the dishwasher, gas line material identification, presence or absence of appropriate electrical connections, oven elements and burners, ground fault circuit interrupters for whirlpool baths, power source for evaporative coolers, flame condition for the heating system, and functional drainage for the plumbing section. TAREI also commented that the 4-way valve and defrost cycle for heat pumps was not required by TREC inspection standards. The commission agreed and deleted that provision from the form. The commission did not concur with the following suggested changes to report form text because either the changes had already been made or were unnecessary for preprinted text to comply with the inspection standards: foundation performance, attic firestopping, dishwasher soap dispenser and elements, microwave oven light, fuel oil or solar energy sources for water heaters, water heater safety pan, consistent reporting of operation of power vents and garage doors, use of the term "panelboard", exposed wiring and conduit, type of gas line, proximity of septic systems to wells, underground cisterns and other items, limits of septic tank, anaerobic septic system equipment, swimming pool equipment and enclosure information, foundation and driveway cracks, wall and ceiling cracks, freshly painted surfaces, detachable or key- locked burglar bars, detailed furnace information, and number of ground fault circuit interrupter devices required. The section permits inspectors to make such comments as are appropriate in the space provided on the report forms, and the inspector may attach additional pages to include any items which are not listed in the text of the report forms. With regard to the format of the form, TAREI and other commenters suggested that the items being inspected should be numbered for reference in the inspector's comments, that the size of the font should be increased and that language should be added to the first page of the report to show that the inspector could provide additional information as an addendum. TREC concurred and made the changes. Due to the increase in length of the report such changes would involve, TREC did not agree to place headers and footers on each page and a separate column of check boxes on each page to show when items were not found or were inaccessible. A number of comments received on the proposed section related to the format and content of the proposed forms and to the proposed requirement that the forms be reproduced without changes. The commission agreed in part with the comments and modified the section to permit the inspector to delete items which were not being inspected, although the inspector would be required to include the heading for the deleted item and make an appropriate notation, such as the item not being found in the property. The commission determined that further changes to the text of the reports would cause the forms to vary widely in appearance and thus not be standard forms. Commenters urged the commission to provide additional space for comments by deleting lines printed in the comment sections and moving the text closer to the left margin of the documents. The commission concurred with these comments and made the requested changes. Comments were also received suggesting that the forms were too lengthy and that too much space was provided for comments. The commission determined that the space provided was appropriate to ensure an adequate reporting of the condition of the property being inspected and did not reduce the length of the reports. In response to oral comments at the TREC meeting at which the section was adopted, TREC modified the report form to include five bathroom groups and heating/cooling systems and two water heaters. Upon a staff suggestion, the first page of Property Inspection Report REI 7-0 was also modified to reflect an amendment to the provisions of 22 TAC sec.535.222 regarding use of other forms. The Texas Real Estate Inspector Committee (TREIC), which developed the proposed report forms, suggested that adoption of standard report forms was unnecessary because the TREC inspection standards required the inspector's report to follow a specific arrangement and was thus a form of standard report. The commission determined that Senate Bill 1100 required a more uniform appearance in the inspection reports used by its licensees and did not concur with TREIC's suggestion. The new section is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties. sec.535.223. Standard Inspection Reports. (a) The Texas Real Estate Commission adopts by reference the following forms approved by the Texas Real Estate Commission in 1997 and published and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188: (1) Property Inspection Report, REI No. 7-0; (2) Optional Systems Property Inspection Report (Gas Lines), REI No. 8-0; (3) Optional Systems Property Inspection Report (Outbuildings), REI No. 9-0; (4) Optional Systems Property Inspection Report (Outdoor Cooking Equipment), REI No. 10-0; (5) Optional Systems Property Inspection Report (Lawn and Garden Sprinkler System), REI No. 11-0; (6) Optional Systems Property Inspection Report (Private Water Wells), REI No. 12-0; (7) Optional Systems Property Inspection Report (Individual Private Sewage Systems), REI No. 13-0; (8) Optional Systems Property Inspection Report (Built-in Security and Fire Protection Equipment), REI No. 14-0; and (9) Optional Systems Property Inspection Report (Swimming Pools and Equipment), REI No. 15-0. (b) Except when federal law requires a different report, each inspector licensed by the commission shall complete all applicable portions of Property Inspection Report REI No. 7-0 and, if an optional system is to be included, the appropriate Optional Systems Property Inspection Report, REI Nos. 8-0 through 15-0 ("the forms") and provide a copy of the forms to any person for whom the inspector has performed an inspection of residential property. (c) Inspectors may reproduce the forms from printed copies obtained from the commission and may reproduce the forms by computer. With the exception of the changes to the forms which are permitted by this section, the inspector shall reproduce the forms verbatim and the spacing, length of blanks, borders, fonts and placement of text on the page must appear to be identical to that used by the commission in the printed version of the forms. Inspectors may insert information in the spaces provided for that purpose. (d) When using either a printed version of the forms or a version reproduced by computer, the licensee shall comply with sec.535.222 of this title (Relating to Standards of Practice). If an part, component, or system contained in the forms is not present in the property or has not been inspected under the departure provisions of sec.535.222, the inspector shall make an appropriate notation on the forms, clearly indicating the reason the part, component or system has not been inspected. The inspector may delete the subparts of the report form relating to the item which is not being inspected. The heading for the deleted item must appear in the report. The inspector may also renumber the pages of the form to correspond with any deletions of text under this subsection. If necessary to report the inspection of a part, component or system not contained in the form, or space provided on the forms is inadequate for a complete reporting of the inspection, such as when the inspector provides a higher level of inspection performance than that required by sec.535.222, the inspector may attach additional pages to the forms. (e) Failure to comply with this section is grounds for the suspension or revocation of an inspector's license or the imposition of an administrative penalty by the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1997. TRD-9713538 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: January 1, 1998 Proposal publication date: August 12, 1997 For further information, please call: (512) 465-3910 PART XXIV. Texas Board of Veterinary Medical Examiners CHAPTER 571.Licensing. Examination 22 TAC sec.571.18 The Texas Board of Veterinary Medical Examiners adopts amendments 22 TAC 571.18, concerning Provisional Licensure without changes to the proposed text published in the August 1, 1997 issue of the Texas Register 22 TexReg 7121. The agency is adopting these amendments to clarify when the Board may issue a provisional license, sponsorship requirements and cancellation. The amendments are necessary to ensure that provisional licenses are issued only to qualified applicants and that provisional licensees who have not provided evidence of their competency through testing are directly supervised by the sponsoring veterinarian. No comments were received regarding adoption of these amendments. The amendments are 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 amendments affect the Veterinary Licensing Act, Article 8890, sec. 10(b) which authorizes the Board to grant provisional licenses. 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 October 17, 1997. TRD-9713828 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-7555 CHAPTER 573.Rules of Professional Conduct Supervision of Personnel 22 TAC sec.573.10 The Texas Board of Veterinary Medical Examiners adopts amendments 22 TAC 573.10, concerning Supervision of Non-Licensed Personnel (with/without) changes to the proposed text published in the August 1, 1997 issue of the Texas Register 22 TexReg 7122. The agency is adopting these amendments to clarify the responsibility of a veterinarian providing general, direct or immediate supervision of a non- licensee. The amendments are necessary to specifically define the licensee's responsibility for the actions of non-licensed employees and to ensure consistency with Rule 573.51, Rabies Control, which allows a non-licensee to authenticate Rabies vaccinations under certain circumstances. No comments were received regarding adoption of these amendments. The amendments are 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 amendments affect the Veterinary Licensing Act, Article 8890, sec. 14(a)(7) which prohibits fraudulent issuance of vaccination certificates relating to the presence or absence of an animal disease by a licensed veterinarian. 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 October 17, 1997. TRD-9713829 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-7555 Records Keeping 22 TAC sec.573.51 The Texas Board of Veterinary Medical Examiners adopts amendments 22 TAC 573.51, concerning Rabies Control without changes to the proposed text published in the August 1, 1997 issue of the Texas Register 22 TexReg 7123. The agency is adopting these amendments to clarify the requirement that direct supervision by a veterinarian is required when a signature stamp is utilized to authenticate a rabies certificate. Additional amendments clarify when it is permissible for non-licensees to administer rabies vaccinations. Additional amendments are made to refer to applicable Texas Department of Health Rules. The amendments are necessary to fully articulate the requirement that direct supervision by a veterinarian is required when a signature stamp is used to authenticate a rabies certificate. No comments were received regarding adoption of these amendments. The amendments are 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 amendments affect the Veterinary Licensing Act, Article 8890, sec. 14(a)(7) which prohibits fraudulent issuance of vaccination certificates relating to the presence or absence of an animal disease by a licensed veterinarian. 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 October 17, 1997. TRD-9713830 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-7555 Other Provisions 22 TAC sec.573.60 The Texas Board of Veterinary Medical Examiners adopts amendments 22 TAC 573.60, concerning Practice Prohibitions with changes to the proposed text published in the August 1, 1997 issue of the Texas Register 22 TexReg 7124. The agency is adopting these amendments to specify that a licensee will be subject to sanctions for providing care and treatment to humans, including dispensing prescription medications for personal use. The amendments are necessary to clarify that a licensed veterinarian will be subject to sanctions if he/she provides care and/or treatment to humans, including dispensing prescription medications for personal use. The rule does not prohibit the administration of first aid or emergency care to humans in an emergency or disaster situations. One comment pointed out that the phrase "dispensing medication for personal use by a human" would include giving an individual an aspirin. In order to define what medications are involved, the word prescription was added to the first sentence. The amendments are 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 amendments affect the Veterinary Licensing Act, Article 8890, sec. 14(a)(3) which prohibits illegal acts by veterinarians connected to their practice of veterinary medicine. sec.573.60 Prohibition Against Treatment Of Humans. A veterinarian shall not provide care and treatment of humans including dispensing prescription medication for personal use by a human. A licensee may render first aid or emergency care to a human if such action is without expectation of compensation in response to an emergency or disaster situation. 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 October 17, 1997. TRD-9713831 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-7555 CHAPTER 575.Practice and Procedure 22 TAC sec.575.20 The Texas Board of Veterinary Medical Examiners adopts amendments 22 TA 575.20, concerning Subpoena Fees and Expenses of Witnesses without changes to the proposed text published in the August 1, 1997 issue of the Texas Register 22 TexReg 7125. The agency is adopting these amendments to make the Board's rule consistent with text appearing in the Administrative Procedure Act. The amendments are necessary to conform the Board rule to the statute. which authorizes direct payment of transportation and lodging expenses to the provider. No comments were received regarding adoption of these amendments. The amendments are 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 amendments affect the Veterinary Licensing Act, Article 8890, sec. 15 authorizing the Board to hold administrative hearings. 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 October 17, 1997. TRD-9713832 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-7555 22 TAC sec.575.28 The Texas Board of Veterinary Medical Examiners adopts a new rule 22 TAC 575.28, concerning Appearances; Continuances without changes to the proposed text published in the July 22, 1997 issue of the Texas Register 22 TexReg 6815. The agency is adopting this new rule which allows an Administrative Law Judge to grant a continuance at the request of the Board if a party has failed to respond. The new rule is necessary to define who may make an appearance, the time period for making an appearance and the method of making an appearance. The new rule will ensure timely response by parties to administrative actions. No comments were received regarding adoption of this new rule. The new rule 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 new rule affects the Veterinary Licensing Act, Article 8890, sec. 15 authorizing the Board to hold administrative hearings. 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 October 17, 1997. TRD-9713834 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 6, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-7555 CHAPTER 577.General Administration and Duties Staff and Miscellaneous 22 TAC sec.577.15 The Texas Board of Veterinary Medical Examiners adopts amendments to rule 22 TAC 577.15, concerning the Fee Schedule without changes to the proposed text published in the August 1, 1997 issue of the Texas Register 22 TexReg 7125 and 7158. The agency is amending the fee schedule to increase the fees for license renewal by $4. An additional amendment creates a new fee for checks that are returned for insufficient funds. The amendment to this rule is necessary to provide adequate revenue to cover the legislative appropriations made to the Board for fiscal year 1998. No comments were received regarding adoption of these amendments. The new rule 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 new rule affects the Veterinary Licensing Act, Article 8890, sec. 19 which requires that reasonable and necessary fees be established through rules, that will produce sufficient revenue to cover the cost of administering the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 17, 1997. TRD-9713833 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 305-7555 22 TAC sec.577.29 The Texas Board of Veterinary Medical Examiners adopts a new rule 22 TAC 575.29, concerning Failure to Attend Hearings; Default Judgement without changes to the proposed text published in the July 22, 1997 issue of the Texas Register 22 TexReg 6816. The agency is adopting this new rule that allows final action to be taken against a licensee if he/she has received notice of a hearing and fails to participate. The new rule is necessary to permit the entry of a default judgement and findings that allegations are admitted as true such that a final disposition may be made in the administrative hearing in which a licensee has chosen not to participate. No comments were received regarding adoption of this new rule. The new rule 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 new rule affects the Veterinary Licensing Act, Article 8890, sec. 15 authorizing the Board to hold administrative hearings relating to disciplinary actions. 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 October 17, 1997. TRD-9713835 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 6, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-7555 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 5.Property and Casualty Insurance SUBCHAPTER R.Temporary Rate Reduction for Certain Lines of Insurance 28 TAC sec.sec.5.14002-5.14005, 5.14007 and 5.14011 The Commissioner of Insurance of the Texas Department of Insurance adopts amendments to sec.sec.5.14002-5.14005, 5.14007 and 5.14011, concerning temporary rate reductions for certain lines of insurance, with changes to the proposed text as published in the September 5, 1997 issue of the Texas Register (22 TexReg 8848). The amendments are necessary to update Subchapter R (Temporary Rate Reduction for Certain Lines of Insurance) to apply to 1998 rates. The 73rd and 74th Texas Legislatures passed several bills intended to reform the civil justice system of this state and to result in reductions in the cost of litigation and the size of judgments. This effort is commonly referred to as "tort reform." To ensure that savings from tort reforms were passed on prospectively to Texas policyholders, the legislature enacted what is now codified as article 5.131, Texas Insurance Code. This article requires the commissioner of insurance to hold a hearing on or before September 1 of each year and issue rules specifying the percentage of equitable across-the-board reductions in insurance rates required of insurers. Subchapter R was enacted to implement article 5.131 of the Texas Insurance Code. In 1995, sec.sec.5.14000 - 5.14010 were adopted establishing the procedures and percentages for the first rate reduction which affected policies issued on or after January 1, 1996. In 1996, sec.5.14011 was added, continuing these rate reduction percentages for polices issued on or after January 1, 1997. Sections 5.14000 - 5.14011 concern the temporary rate reductions for the lines of insurance specified in article 5.131. Insurers are required to pass through to policyholders, on a prospective basis, the reduction in loss and allocated loss adjustment expense anticipated from recent tort reform legislation as set forth in the sections. The sections set forth the calculation and application of the amount of the rate reduction for certain lines of insurance. The percentages of reduction by line set out in the adopted amendment affect policies issued on or after January 20, 1998. Hearings regarding the proposed rate reduction percentages and the amendments to the sections were held on August 26, 1997, and October 14, 1997. Oral testimony and written comments and evidence submitted at both hearings were considered as part of the record pertaining to these amendments to sec.sec.5.14002 - 5.14005, 5.14007 and 5.14011. The reduction percentages set out in the adopted amendments to sec.5.14004 were based on two sources of data. One source of data was a focus group study conducted by the University of Texas LBJ School of Public Affairs, hereinafter referred to as the LBJ School Study or the study. This study was intended to provide information on behavioral changes resulting from tort reform. The LBJ School Study included focus group sessions and interviews conducted with plaintiffs' and defendants' attorneys, claims adjusters, mediators and judges in Dallas County, the Rio Grande Valley, Lubbock County, Jefferson County and Harris County. Participants in the study provided input regarding how the tort reforms have affected behavior in the insurance industry, the bar and court houses across the state. The other source of data were four closed claim reports: (1) commercial lines bodily injury, (2) supplemental commercial lines bodily injury, (3) commercial lines non-bodily injury, and (4) personal lines. The first data report is the liability insurance closed claim report mandated by article 1.24B of the Texas Insurance Code. The data from the other closed claim reports was gathered by the department in special data calls in May 1997. This data indicated that an increase in the reduction percentages from those currently in place was justified and appropriate. The closed claim reports do not yet fully reflect the effects of tort reform. Liability coverages, which are the coverages affected by tort reform tend to take longer to resolve. Therefore, the full effects of tort reform are not yet reflected in the closed claims reports. It may be some time until the full effects of tort reform can be reliably estimated from actual claims experience data. Moreover, certain likely effects of tort reform cannot be measured directly from the closed claim data. Limitations in the data may mean that some effects are not fully measured. It is therefore necessary to rely on other relevant supplemental information to determine the effect. This includes the opinions and observations of individuals closely involved in the claims process. Such opinions and observations provide valuable insight. Focus group sessions and interviews were held throughout the state and involved a sufficient number of participants to identify trends and gain understanding of the current realities of the effects of tort reform on the civil justice system. The results of the focus group sessions conducted by the LBJ School and other related information was made available to the public both directly and on the internet for some time. It has therefore been possible for interested parties to review and evaluate the materials. Focus groups have been used during the past decade to better understand attitudes, beliefs and practices on a specific subject. Focus groups have become an accepted method of conducting social research. Focus groups have also been used to conduct research regarding governmental issues. The adopted sections increase or maintain the percentage of rate reduction from those adopted in 1995 and 1996. The increase in the percentage of rate reduction was based on several factors. One factor in the increase was the result of information gathered in the LBJ School Study. This study clearly indicated that tort reform has caused changes in behavior and in the claims settlement environment. The reforms have put defendants in a stronger posture in negotiating settlements. The reforms have also strengthened defense strategies and the willingness to go to trial, rather than settle. In addition, two supplemental data base pricings were done this year. The first supplemental pricing was a result of the LBJ School Study. The LBJ School Study adduced information that indicated that the past reductions may have been too conservative. For example, in previous pricings, the department focused on the fact that a plaintiff might seek to venue shop to achieve a greater verdict. However, the LBJ School Study found that a plaintiff also tends to venue shop to improve his or her chances of winning the case. Because of reforms in venue shopping, a number of claims might actually disappear. The second supplemental pricing related to possible data inaccuracies. The department realized that the effect of allegations under the Deceptive Trade Practices Act (DTPA) and demands for exemplary damages on claims settlements was likely under-reported in the closed claim data. The agency was able to estimate the effect of this under-reporting in the case of the commercial lines bodily injury report. Based on these sources of data and information, staff made recommendations regarding the percentage of loss and ALAE reductions for each line of insurance covered by article 5.131. For private passenger automobile liability insurance, staff recommended a loss and ALAE reduction percentage within a range from 6.7 percent to 11.4 percent. Staff therefore recommended the selection of a 9 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted a loss and ALAE reduction percentage of 11.4 percent which is within the range recommended by staff, but is higher than the specific reduction factor proposed by staff. For commercial automobile liability insurance for bodily injury, staff recommended a loss and ALAE reduction percentage within a range from 9.8 percent to 17 percent. Staff therefore recommended the selection of a 13.5 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 13.5 percent loss and ALAE reduction percentage proposed by staff. For the liability portion of farm and ranch owners insurance, staff recommended a loss and ALAE reduction percentage within a range from 6.5 percent to 11.2 percent. Staff therefore recommended the selection of a 9 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted a loss and ALAE reduction percentage of 10 percent which is within the range recommended by staff, but is higher than the specific reduction factor proposed by staff. For professional liability insurance for physicians, staff recommended a loss and ALAE reduction percentage within a range from 12 percent to 17.9 percent. Staff therefore recommended the selection of a 15 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 15 percent loss and ALAE reduction factor proposed by staff. For professional liability insurance for hospitals, staff recommended a loss and ALAE reduction percentage within a range from 13.3 percent to 20 percent. Staff proposed a 17 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 17 percent loss and ALAE reduction factor proposed by staff. For commercial liability insurance for damages arising out of the manufacture, design, importation, distribution, packaging, labeling, lease, or sale of a product or for completed operations coverage (products/completed operations), staff recommended a loss and ALAE reduction percentage within a range from 13.5 percent to 22.5 percent. Staff therefore recommended the selection of an 18 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 18 percent loss and ALAE reduction factor proposed by staff. For personal umbrella and excess liability insurance, staff recommended a loss and ALAE reduction percentage within a range from 7 percent to 13 percent. Staff therefore recommended the selection of a 10 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted a loss and ALAE reduction percentage of 12.5 percent which is within the range recommended by staff, but is higher than the specific reduction factor proposed by staff. For general liability and commercial multi-peril insurance, including fire legal liability, contractual liability, owners and contractors protective liability, railroad protective liability, liquor liability, farm liability and garage liability, staff recommended a loss and ALAE reduction percentage within a range from 12.9 percent to 21.0 percent. Staff therefore recommended the selection of a 17 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 17 percent loss and ALAE reduction factor proposed by staff. For commercial umbrella insurance, staff recommended a loss and ALAE reduction percentage within a range from 27.4 percent to 34.2 percent. Staff therefore recommended the selection of a 30.0 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 30 percent loss and ALAE reduction factor proposed by staff. For commercial excess coverage of general liability and commercial multi-peril insurance, staff recommended a loss and ALAE reduction percentage within a range from 32 percent to 38.5 percent. Staff therefore recommended the selection of a 32 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 32 percent loss and ALAE reduction factor proposed by staff. For commercial excess liability coverage of commercial automobile insurance, staff recommended a loss and ALAE reduction percentage within a range from 25.3 percent to 31.7 percent. Staff recommended the selection of a 25 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 25.3 percent loss and ALAE reduction factor which is within the range recommended by staff, but is higher then the specific reduction factor proposed by staff. For commercial excess liability coverage for products liability insurance, staff recommended a loss and ALAE reduction percentage within a range from 13 percent to 21.9 percent. Staff therefore recommended the selection of a 20 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 20 percent loss and ALAE reduction factor proposed by staff. For commercial excess liability coverage for physicians' medical professional liability insurance, staff recommended a loss and ALAE reduction percentage within a range from 15.8 percent to 19.6 percent. Staff therefore recommended the selection of a 17.5 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 17.5 percent loss and ALAE reduction factor proposed by staff. For commercial excess liability coverage for hospitals' medical professional liability insurance, staff recommended a loss and ALAE reduction percentage within a range from 27.9 percent to 31.7 percent. Staff therefore recommended the selection of a 27.5 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 27.5 percent loss and ALAE reduction factor proposed by staff. For commercial excess coverage for other professional liability insurance, staff recommended a loss and ALAE reduction percentage within a range from 24.5 percent to 32.8 percent. Staff therefore recommended the selection of a 25 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 25 percent loss and ALAE reduction factor proposed by staff. For other professional liability insurance, staff recommended a loss and ALAE reduction percentage within a range from 12.8 percent to 27.3 percent. Staff therefore recommended the selection of a 20 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 20 percent loss and ALAE reduction factor proposed by staff. For pollution liability insurance, staff recommended a loss and ALAE reduction percentage within a range from 9.1 percent to 16.6 percent. Staff therefore recommended the selection of a 12.5 percent loss and ALAE reduction factor. After considering testimony and comments, the Commissioner adopted the 12.5 percent loss and ALAE reduction factor proposed by staff. The agency believes that the adopted percentages represent a reasonable and fair assessment of the effect of tort reform on the losses experienced by the insurance industry. In adopting the loss and ALAE reduction percentages, the Commissioner considered the testimony and evidence presented by staff and the comments and testimony presented by commenters. The testimony and comments were a factor in the Commissioner's decision to adopt reduction percentages in the higher end of the range recommended by staff for certain lines. In response to testimony presented at the hearing, and comments submitted to the department, and after further consideration of the issues, eight changes were made to the proposed sections. A formatting change was made to sec.5.14004(c). Also, the effective date in sec.5.14004(c) was changed from January 5, 1998, to January 20, 1998. A change was made to sec.5.14004(c)(1) to increase the reduction percentage for private passenger automobile liability insurance for bodily injury from 9 percent to 11.4 percent. A change was also made to sec.5.14004 (c)(3)(B) to increase the reduction percentage for the liability portion of farm and ranch owner's insurance (for policies effective prior to January 1, 1998) from 9 percent to 10 percent. In addition, a change was made to sec.5.14004(c)(6) to increase the reduction percentage for personal umbrella and excess liability insurance from 10 percent to 12.5 percent. A change was alos made to sec.5.14004(c)(11)(B) to increase the reduction percentage for commercial excess liability coverage for commercial automobile from 25 percent to 25.3 percent. A change was also made to sec.5.14004(c)(14) to increase the reduction percentage for the liability portion of farm and ranch owner's insurance (for policies effective after January 1, 1998) from 9 percent to 10 percent. Finally, a change was made to sec.5.14007(a) to delete (a)(3) since that section was determined to be unnecessary. This adoption continues in effect sec.sec.5.14000 - 5.14011 with amendments to sec.sec.5.14002 - 5.14005, 5.14007, 5.14011. The amendments to sec.sec.5.14002 and 5.14003 revise subsection numbers. The amendments to sec.5.14004 add the amount of loss and ALAE reduction percentages applicable to specified lines of insurance for coverages with an effective date on or after January 20, 1998. Amendments to sec.5.14005 revise the instructions for the calculation and application of rate reduction factors as applied to coverages with an effective date on or after January 20, 1998. Amendments to sec.5.14007 address filing requirements. Amendments to sec.5.14011 provide the effective date for the new reduction percentages. Insurers are required to apply the specified loss and allocated loss adjustment expense (ALAE) reduction percentages to the loss and ALAE portion of the rate. This application of the rate reduction will result in a decrease in rates charged to consumers. Comment Several commenters discussed the difficulty in isolating the changes in behavior resulting from tort reform and changes in behavior resulting from other factors. A commenter expressed a belief that what is causing the change in behavior is unsettled. This commenter stated that the changing attitudes of attorneys, jurors, and claims adjusters should not be minimized when trying to measure the true effects of tort reform. Likewise, a person commented that the LBJ School Study indicated that the amount of jury awards are often driven by a general change in jury attitudes separate from the 1995 tort reforms. One commenter stated that it is difficult to separate the trends that are due to tort reform from the trends that are occurring independent of tort reform. Another commenter stated that trends seen in fast track data are not due to the tort reform. A commenter pointed out that the purpose of the rate reduction process is to determine the impact of the 1995 tort reforms and the estimated savings therefrom, not to reflect savings based on general attitude changes. Agency Response The agency acknowledges that there are factors, in addition to tort reform, which account for the change in experience. The agency agrees that the purpose of the rate reduction process is to address changes that are solely the result of tort reform. To identify and isolate these changes, past closed claim data, predating the reforms, was analyzed and a focus group study was conducted by the University of Texas LBJ School of Public Affairs. The objective of such analysis and study was to identify the factors influencing costs that are due to tort reform. The LBJ School Study supports staff's position that tort reform has resulted in changes in the behavior of those involved in the civil justice system. The agency believes that based on the evidence presented, the agency has identified the effects most likely due to tort reform. To the extent that other forces are at work, the measurement of such forces enter into the setting of benchmark rates and the review of individual company filings. Comment Several commenters questioned the use of behavior modification as a large factor in determining the rate reduction percentages. One commenter stated that it is difficult, if not impossible, to distinguish between behavior modification and the normal ebbs and flows of social inflation and deflation. A commenter observed that the behavior modification portion of the proposed reduction percentages was one to one and one-half times greater than the savings calculated from the closed claim study. This commenter also stated that for private passenger automobile bodily injury liability, the amount of the reduction percentage attributed to behavior modification is almost nine times the amount derived from the closed claims calculations. This commenter stated that the inclusion of a savings estimate for behavioral changes is completely subjective and arbitrary. Similarly, several commenters suggested that the use of a behavior modification factor is duplicative. One commenter suggested that the use of a behavior modification factor will become redundant as more data becomes available. Another commenter stated that as more information emerges, the behavior modification factor should decrease. This commenter also stated that the behavior modification factor and quantitative analysis are overlapping. Similarly, a commenter stated that the time is rapidly approaching when rate filings will be based largely or totally on post-tort reform loss experience. Agency Response The decision regarding the extent of a rate reduction must be based on information that is available. Since there is a significant time lag between changes in the laws and settled claims, the data available for quantitative analysis does not at this time fully reflect the changes resulting from tort reform. The consequences of tort reform that are not yet apparent from the quantitative data are estimated and measured in the provision for behavior modification. Until substantial quantitative post-reform data become available, the behavior modification factor is still necessary. To assist in assessing the behavioral changes resulting from tort reform legislation, the agency called on the University of Texas LBJ School of Public Affairs to study such behavior changes. Moreover, a large portion of what has been called "behavior modification" is based on objective quantitative savings estimates based on the closed claim data. The agency disagrees that the inclusion of a behavior modification factor results in duplication. The behavior modification factor supplements the use of quantitative data. Over time, as more post-tort reform quantitative data becomes available, the need for behavior modification factors will decrease and the effects of tort reform will be reflected directly in rate levels. Comment One commenter stated that more than 50 percent of the claims that were included in the data were basically governed by pre-tort reform law. This commenter stated that this represented a limit to the use of the closed claim data. This commenter also stated that the data did not indicate anything about the level of filings for claims that were not yet closed. Agency Response The agency recognizes that closed claim data does not fully reflect the effects of tort reform. To obtain a better picture of the effects of tort reform, the LBJ School of Public Affairs was asked to study the issue. The focus group study conducted by the LBJ School enabled the agency to more accurately determine the true effects of tort reform. Comment One commenter stated that staff's pricing model is essentially a theoretical pricing model. However, this commenter stated that this pricing model is not capturing what is actually happening in the marketplace. This commenter stated that the pricing model is not very strong in this regard. Agency Response Until substantial actual experience reflecting the tort reforms becomes available, any pricing of the effects of tort reform is, by definition, a theoretical pricing model. The agency believes that the model captures the likely effects of tort reform. The agency recognizes that forces, in addition to tort reform, may affect experience. The effects of forces other than tort reform should be reflected in the review of experience in connection with ratemaking. Comment One commenter stated that the information regarding the effects of tort reform is not adequate for commercial lines. A commenter urged the agency to keep the original rate reduction percentages from 1995 until there is better empirical data regarding commercial lines. A commenter stated that since commercial lines are subject to loss development over a longer period of time, the agency should not change the rate reduction percentages for commercial lines. Agency Response The agency agrees that insufficient time has passed to obtain complete claims data reflecting the actual effect of tort reform on the loss experience. However, the legislature directed the Commissioner to make the best possible estimate of the savings from tort reform and reduce rates accordingly. This rate reduction process involved the review of claims data that predates reform and other available sources of information such as that gathered in the LBJ School Study. The agency believes that the resulting estimates of the effect of tort reform fairly reflect likely savings. The agency agrees that it may be some years before actual post-reform experience will be available for certain lines of insurance, especially some of the long-tailed lines such as professional liability. However, at the present, the agency must make its best estimate of the tort reform savings based on information that is currently available. Comment Several commenters expressed concerns regarding reliance on the results of a LBJ School Study. One commenter stated that the goals of the LBJ School Study were not fully achieved, especially the goal of providing a documented methodology of quantifying the expected changes due to behavior modification. One commenter stated that the new reductions proposed by staff were based on subjective observations, specifically the LBJ School Study, which was in turn based on unpublished methodology. Another commenter stated that the LBJ School Study provided no new information upon which to make a better judgment than was made in 1995. This commenter also stated that there were conflicting statements made by participants in the study regarding the anticipated effect of the tort reform legislation. This commenter also stated that the only reliable estimate of the true savings from the various reforms are those that had been derived from the various Texas closed claim studies. A commenter expressed concern that the number of participants used in the focus group study was very small and that there were extremely varied opinions expressed by the participants. This commenter stated that a single attorney, claims adjuster or judge is going to have a very limited view of the total cost to an insurance company. A commenter stated that the process of converting the opinions expressed by focus group participants is very vague. This commenter stated that subjective opinions are being converted into economic values based on another set of subjective opinions, resulting in subjectivity being compounded upon itself. Another commenter raised questions about staff's failure to use the Delphi Method to quantify the results of the LBJ School Study. Conversely, a commenter stated that the focus group approach used in the LBJ School Study was an innovative method of providing insight into losses and provided valuable evidence. Agency Response The closed claim reports do not yet fully reflect the effects of tort reform. Liability coverages, which are the coverages affected by tort reform tend to take longer to resolve. Therefore, the full effects of tort reform are not yet reflected in the closed claims reports. It may be some time until the full effects of tort reform can be reliably estimated from actual claims experience data. Moreover, certain likely effects of tort reform cannot be measured directly from the closed claim data. Limitations in the data may mean that some effects are not fully measured. It is therefore necessary to rely on other relevant supplemental information to determine the effect. This includes the opinions and observations of individuals closely involved in the claims process. Such opinions and observations provide valuable insight. Focus group sessions and interviews were held throughout the state and involved a sufficient number of participants to identify trends and gain understanding of the current realities of the effects of tort reform on the civil justice system. The results of the focus group sessions conducted by the LBJ School and other related information was made available to the public both directly and on the internet for some time. It has therefore been possible for interested parties to review and evaluate the materials. Focus groups have been used during the past decade to better understand attitudes, beliefs and practices on a specific subject. Focus groups have become an accepted method of conducting social research. Focus groups have also been used to conduct research regarding governmental issues. The Delphi Method is a communication method used to help reach consensus. Staff had discussed the use of the Delphi Method to quantify the information from the LBJ School Study. However, TDI's actuarial staff was able to incorporate the findings from the LBJ School Study into their assumptions to achieve a recommended percentage of reduction. Staff believes that the use of the Delphi Method would not have rendered a substantially different result. Comment Several commenters urged the agency to consider fast track data in making its decision. One commenter stated that fast track data are highly indicative of significant savings from tort reform. This commenter also stated that fast track data are indicative of a very significant change in the trend, as well as the experience and the level of losses. Agency Response The agency recognizes that fast track data can be a valuable adjunct to evaluating the effect of tort reform. However, there are several reasons that such data cannot be used blindly as a direct measure. Fast track data reflects all factors affecting claims experience, many of which extend beyond tort reform. For example, national fast track data for automobile liability indicates that there has been a general country-wide improvement in experience. However, only Texas has adopted wide and far-reaching reforms in recent years. Therefore, the national trend indicates that forces in addition to tort reform are affecting claims experience. These other forces are best dealt with in the benchmark proceedings and in the review of individual company filings. Also, fast track data capture claims that are both pre- and post-reform. Such data does not directly measure the effects of tort reform. Finally, fast track data are obtained from insurers that write only a portion of the market in Texas. The results of fast track data differ from industry-wide ratemaking data that is available for concurrent time periods. Thus, although fast track data can indicate general trends, precise measurements cannot be derived from such data. Comment Several commenters urged the adoption of greater rate reduction percentages, particularly for private passenger automobile. One commenter stated that the savings should be quantified by a rate reduction percentage of at least 15 percent for automobile bodily injury. One commenter noted that the original 6 percent rate reduction percentage ordered in 1995 was substantially less than the 15 percent set out in article 5.131. A commenter pointed out that participants in the LBJ School Study indicated that private passenger automobile was a line that was experiencing the most savings. One commenter stated that the appropriate tort reform loss and loss adjustment expense reduction should be 23 percent. Another commenter urged the Commissioner to adopt rate reduction percentages higher than what staff recommended. A commenter also suggested that staff had underestimated the savings resulting from legislative changes affecting the recovery of exemplary damages and that the effect of joint and several liability appears to be undervalued for auto accident cases involving more than two vehicles. A commenter also suggested that some recognition should be given to Texas' new summary judgment rule which became effective September 1, 1997 and which gives judges greater authority to dismiss cases that clearly lack evidence. Agency Response The agency agrees that some of the proposed rate reduction percentages should be increased. The originally proposed loss and ALAE reduction percentages have been adjusted for some lines based on comments and the testimony and evidence presented. Therefore, the percentage of rate reduction for private passenger automobile liability insurance has been increased to 11.4 percent from the proposed reduction percentage of 9 percent. Likewise, the percentage of rate reduction for the liability portion of farm and ranch owner's insurance has been increased to 10 percent from the proposed reduction percentage of 9 percent. Also, the percentage of rate reduction for personal umbrella and excess liability insurance for bodily injury has been increased to 12.5 percent from the proposed reduction percentage of 10 percent. The agency believes that the adopted percentage savings fairly represent the likely changes to loss costs that will result from tort reform in the coming year. Since the new summary judgment rules were not part of the tort reform legislation passed by the 73rd and 74th Texas Legislatures, the new sections may not properly be considered under article 5.131. Comment One commenter stated that the rate increases granted in 1995 and 1996 offset the previous 6 percent rate reduction. This commenter stated that if there is a claim of a tort savings reduction at the same time there is a rate increase, there is going to be no overall benefit to the consumer. A commenter stated that rate increases in other areas have offset the rate reduction and therefore the rate reduction factors should be increased. Agency Response Factors other than tort reform will affect rates. These factors include inflation as well as changes in claim frequencies. Therefore, rates will have to be adjusted to reflect market conditions. The statutes require that rates be neither excessive nor inadequate. Other factors may require the adjustment of rates. The Texas Legislature recognized that rates may change even after the adoption of tort reform legislation. Therefore, in article 5.131, the Texas Legislature required that the rate reduction percentages reflect savings due solely to tort reform. The loss and ALAE reduction percentages that have been adopted reasonably reflect these savings. The key is that rates charged consumers are lower than they would have been had tort reform legislation not been adopted. The rate reduction proceedings and the benchmark rate proceedings are two separate proceedings. To the extent that factors other than tort reform may be influencing experience, such factors will be addressed in benchmark rate proceedings and in the analysis of individual company rate filings. Comment One commenter stated that insureds are more often encountering the denial of claims by insurance companies. This commenter stated that with tort reform, there is less with which to hold insurers accountable. Therefore, according to this commenter, higher reductions are appropriate. Agency Response To the extent that claims are wrongfully denied, insureds have recourse through the agency's complaint resolution process or through the civil justice system. To the extent that tort reforms have lowered costs in connection with the handling of claims, the department believes that the rate rollback factor does reasonably reflect this trend. Comment One commenter stated that many companies simply ignored the rate reductions. Agency Response The agency is unaware of a company that ignored the tort reform rate reductions. In instances where a company did not reflect tort reform reductions correctly, the company voluntarily changed its rate filing or the agency took appropriate regulatory actions. Comment A commenter stated that TDI staff indicated that if an insurer claims that its experience already reflects tort reform savings, the agency will allow the insurer to manipulate its ratemaking analysis to offset the tort reform reduction. Agency Response The agency disagrees that this comment accurately reflects its staff's discussion. The department will not allow "manipulation" to avoid tort reform requirements. The agency recognizes that ratemaking procedures will have to be modified when the experience used in rate filings reflects both pre- and post- reform data. It would be actuarially inappropriate to simply add the two sets of data, without adjustment, to compute rate needs. The precise procedures have not yet been developed, but when such procedures are developed in the near future, they will be announced to all insurers. In any event, all carriers will be required to adjust their rates to appropriately reflect the savings from tort reform. Comment A commenter recommended that the Commissioner adopt a procedure governing the adjustment of post-tort reform experience periods to prevent tort reform from not being counted in the ratemaking calculations. The commenter recommended that for the time periods before September 1, 1995, the effective date of most tort reforms, the full rate reduction factors should be applied to the entire experience and for experience after September 1, 1995, the factor should not be applied to the paid claims but only to outstanding reserves. Agency Response The agency agrees that ratemaking procedures will have to be modified when the experience used in rate filings reflect both pre- and post-tort reform data. The precise procedures have not yet been developed. The agency will consider this commenter's recommended approach when developing these procedures. Comment One commenter asked if a company making a rate filing in 1998 supported by loss experience for 1996 and 1997 must file the rate reduction factors that are promulgated by the Commissioner. This commenter stated that such an adjustment would be an unfair application of the tort reform rate reduction factor. Agency Response The agency has not yet developed the procedures to be used for ratemaking when the underlying experience partially or fully reflects post-reform experience. Such procedures will be developed to ensure no duplication. Comment One commenter said that when the tort reform legislation was under consideration by the Texas Legislature in 1995, the insurance industry and the agency indicated that consumers would save between $800 million and $900 million as a result of tort reform. Agency Response The agency acknowledges that in April 1995, $864 million in savings from tort reform was estimated as the top of a range of rough estimates. This estimate was made on short notice by an agency staff member and was based on the staff member's estimate of the projected percentage of savings. By contrast, the study on which the first rate reduction decision was based represented three months of concentrated effort by nearly every member of the agency's property and casualty actuarial staff and most employees of the agency's Technical Analysis Program. This effort yielded more reliable results. This effort included a data call to insurance companies, working groups of actuaries, lawyers, consumer representative and other interested parties; discussions with plaintiff and defense attorneys on the likely effects of specific reforms; and review of other available information regarding the probable effects of tort reform. In 1997, the agency also obtained information regarding the effects of tort reform from a focus group study conducted by the LBJ School. The total of rate reductions adopted in 1995, 1996 and 1997, have exceeded the $864 million estimate. Comment One commenter asserted that tort reform is resulting in a $1 billion per year windfall to insurers on private passenger automobile liability insurance alone. This commenter stated that in 1996 alone the overcharges are calculated to be $918 million. This commenter went on to assert that on private passenger automobile liability insurance, insurers' 1996 profit margin was the largest in the past 20 years. Agency Response. The agency disagrees that there has been a $918 million overcharge as a result of tort reform. The agency believes that the methodology used to calculate the $918 million figure does not adequately account for all factors. For example, this purported windfall is derived from a premium base of $5 billion. However, half of this amount, $2.5 billion, consists of premiums for coverages that are not subject to tort reform rate reductions factors, such as property damage liability, uninsured/underinsured motorists, and medical payments. In addition, the favorable loss figure was also a result of a reduction of reserves for previous years' claims. The loss ratio trend is seen country-wide as well as in Texas. No other state has recently enacted tort reforms as significant as those recently enacted in Texas. As a result, there is strong evidence that favorable results in Texas are a product of both tort reform and other factors not a part of tort reform. The rate reduction proceedings are, by statute, intended to deal solely with the savings due to tort reform. These other factors are appropriately dealt with in the review of individual company filings and in the benchmark rate proceedings. Comment A commenter asserted that companies are over-reserving and therefore, overstating their rate needs. Agency Response The agency does not agree with this statement. Possible excessive reserves are dealt with in the ratemaking process through the application of loss development factors. Moreover, any past possible excessive reserves do not relate to the determination of the savings due to tort reform. Comment A commenter stated that although uninsured motorist bodily injury is not a line affected by the proposed reductions, there are clearly savings in that line. The commenter stated that a way in which those savings can be included should be considered. Another commenter stated that indemnity payments for uninsured/underinsured motorists are down. Agency Response The rate reduction percentages proposed by staff in the first tort reform rate reduction proceeding in 1995 included the uninsured/underinsured motorist line. However, this line was deleted from the final adoption because article 5.131 did not specifically include these coverages for application of rate reduction. At that time, the agency expressed its belief that had the legislature intended uninsured/underinsured motorist to be one of the lines of insurance subject to tort reform reductions, article 5.131 would have specifically mentioned those lines and would not have merely made reference to private passenger bodily injury liability. However, over time, any reduction in losses in uninsured/underinsured motorist coverage due to tort reform or other market factors will be captured in the rates established through the benchmark rate hearings. Comment One commenter suggested that commercial umbrella and excess policies be excluded from the application of the prescribed rate reductions. This commenter stated that the pricing of umbrella and excess policies is quite different from standard policies. Agency Response In article 5.131, the Texas Legislature included "all lines and sublines of other commercial liability insurance" in the list of coverages to be subject to rate reductions. Such listing includes commercial umbrella and excess policies. Comment One commenter stated that the frequency of medical professional liability claims has gone down significantly. This commenter stated that the reforms have also reduced the severity of medical professional liability claims. This commenter noted that although exemplary damages are not covered by medical professional liability policies, because of the Stowers doctrine, the reduction in the exposure to exemplary damages has had an effect on the frequency and severity of medical professional liability claims. Another commenter stated that staff has underestimated savings resulting from the bonded expert requirement for medical malpractice lawsuits. This commenter suggested that there are drastic reductions in medical malpractice filings which justify deeper rate cuts. A commenter stated that claims filed against physicians and hospitals dropped 42 percent in frequency between 1995 and 1996. This commenter stated that between 1994 and 1996, there was a 30 percent drop in the number of claims filed per month. This commenter also stated that the percent of claims that are closed with no indemnity paid is continuing to increase. However, another commenter stated that changes in venue laws have not had a dramatic impact on medical professional liability for doctors. This commenter also stated that the effect of exemplary damages in influencing the settlement or defense of a matter is overstated. One commenter stated that the Deceptive Trade Practices Act (DTPA) was rarely a primary allegation in a medical professional liability claim and did not have any controlling influence on the insurer's handling of the claim. A commenter stated that although there was a drop in the frequency of medical professional liability lawsuits in 1996, there was a dramatic increase in the frequency of lawsuits in 1995 as plaintiffs rushed to file cases before the tort reform legislation went into effect. This commenter stated that averaging the frequency of lawsuits for the 1995 and 1996 years results in a value that is slightly higher than in 1994. This commenter stated that there has been no appreciable change in claim frequency. One commenter stated that the results of an independent evaluation were very comparable to the staff's quantitative analysis. Agency Response Staff believes that the effects of tort reform on medical professional liability rates have been reasonably estimated based on the latest closed claims data and the LBJ School Study. The agency's review of the available data and the LBJ School Study resulted in an increase in the percentage of medical professional liability rate reduction from prior years. Comment One commenter recommended that the rate reduction factors for private passenger automobile stay as they are until there is more firm data to substantiate changing them. Other commenters argued that other rate reduction percentages should stay the same. Agency Response The data used to evaluate the effects of tort reform indicate that tort reform has had a real effect on the legal environment. The LBJ School Study indicated a very definite change in the handling of litigation. In addition, the agency's pricings indicate that tort reform has resulted in lower costs associated with claims. These effects of tort reform justify the increased reductions adopted. Comment One person commented that automobile personal injury lawsuits have continued their steady increase, although other personal injury lawsuit filings declined sharply in 1996 compared to the three previous years. Agency Response The LBJ School Study indicated that insurers are more aggressive in defending claims where liability or damages are questionable or where a reasonable settlements could not be easily obtained. Such aggressive tactics would increase the number of lawsuits, resulting in the pattern observed by the commenter. Comment Another commenter stated that there should not be any scaling of net savings by policy limit but it should be uniform. Agency Response The agency agrees with this comment. Those making comments against the amendments, arguing that the reduction percentages should be lower than those proposed by staff: Richard Geiger on behalf of Texas Insurance Organization, Jerry Rapp of the Texas Insurance Organization, Ronald Cobb on behalf of the American Insurance Association, Sherman Sitrin on behalf of American International Companies, Joel Whitcraft on behalf of the Medical Protective Company, W. Thomas Cotten on behalf of Texas Medical Liability Trust and Karen Finrich on behalf of USAA. Those making comments against the amendments, arguing that the reduction percentages should be higher: Rod Bordelon and Allan Schwartz on behalf of the Office of Public Insurance Counsel, Dan Lambe on behalf of Texas Citizen Action, D.J. Powers on behalf of the Center for Economic Justice, Rob Schneider on behalf of Consumers Union, John Opelt on behalf of Citizens Against Lawsuit Abuse, Harold Freeman and Donna Kinney on behalf of the Texas Medical Association, and Birny Birnbaum. These amendments are adopted under the Insurance Code, articles 5.131, 5.98 and 1.03A. Article 5.131 enacted by the 74th Texas Legislature requires the commissioner of insurance to issue rules each year covered by the article, mandating appropriate rate reductions for certain lines of insurance to pass through, on a prospective basis, the savings that accrue from tort reform legislation enacted in the regular sessions of the 73rd and 74th legislatures. Article 5.131 also provides for the granting of administrative relief and the collection of data to monitor compliance with the statute. Article 5.98 authorizes the commissioner of insurance to adopted rules to accomplish the purposes of Chapter 5. Article 1.03A authorizes the commissioner of insurance to promulgate and adopt rules and regulations for the conduct and execution of the duties and functions of the department only as authorized by a statute. sec.5.14002.Application to Insurers and Monitoring of Insurers. (a) This subchapter applies to any insurer that is authorized to do business in this state and that is authorized to write any of the liability lines or sublines set forth in sec.5.14004 of this title (relating to Loss and ALAE Reduction Percentages by Line), including capital stock companies, mutual insurance companies, Lloyd's plan insurance companies, and reciprocal or interinsurance exchanges. (b) This subchapter, except for sec.sec.5.14003, 5.14004, 5.14005, 5.14006, and 5.14008 of this title (relating to Rulemaking Procedures for Reductions in Rates, Loss and ALAE Reduction Percentages by Line, Calculation and Application of Rate Reduction Factor, Duration, and Administrative Relief), also applies, to the limited extent of passing through savings on a prospective basis and monitoring of compliance with the legislative directive, to county mutuals, joint underwriting associations, and other insurers, whether rate regulated or not, for those lines which are not rate regulated. (c) All insurers shall pass through the savings from the tort reform legislation to their policyholders on a prospective basis for the lines or sublines of insurance identified in sec.5.14004(c) of this title (relating to Loss and ALAE Reduction Percentages by Line). (d) All insurers that write any of the types of coverages or lines and sublines identified in sec.5.14004(c) of this title (relating to Loss and ALAE Reduction Percentages by Line), shall provide information to the department in the form of rate filings, special data calls, informational hearings, and any other means consistent with other provisions of the Insurance Code and determined by the commissioner to be necessary to monitor compliance with the provisions of Article 5.131, Insurance Code, and this subchapter. sec.5.14003.Rulemaking Procedures for Reductions in Rates. (a) On or before September 1 of each year, the commissioner shall hold a rulemaking hearing to determine the loss and ALAE reduction percentages for each line or subline of insurance identified in sec.5.14004(c) of this title (relating to Loss and ALAE Reduction Percentages by Line). (b) The commissioner shall amend or adopt rules, as necessary, mandating the use of the loss and ALAE reduction percentage for the lines and sublines identified in sec.5.14004(c) of this title (relating to Loss and ALAE Reduction Percentages by Line). (c) The loss and ALAE reduction percentages or the adjusted benchmark rate adopted or determined by the commissioner under this subchapter shall be included in the rate charged for each policy or coverage with an effective date on and after January 1, 1996, and to each policy or coverage effective on and after the 90th day after the date of each subsequent commissioner's order adopting the loss and ALAE reduction percentages or determination of the adjusted benchmark rate under this subchapter. sec.5.14004.Loss and ALAE Reduction Percentages by Line. (a) The rate or charge for each policy containing any of the following coverages with an effective date on and after January 1, 1996, shall, insofar as the subject liability coverage is concerned, be reduced by the application of rate reduction factors calculated as provided in sec.5.14005 (relating to Calculation and Application of Rate Reduction Factor) using the loss and ALAE reduction percentages in subsection (c) of this section. (b) A single loss and ALAE reduction percentage is used for coverages written on an occurrence policy basis. Three loss and ALAE reduction percentages are used for coverages written on a claims made policy basis effective on or after January 1, 1996 but before January 1, 1997. Two loss and ALAE reductions percentages (claims made policy percentages (1) and (3)) are used for coverages written on a claims made policy basis effective on or after the effective date of this rule. (1) claims made policy percentage 1 is the loss and ALAE reduction percentage that reflects the reduction due to all of the tort reform legislation; (2) claims made policy percentage 2 is the loss and ALAE reduction percentage that reflects only those reductions due to the tort reform legislation applying to claims filed and suits commenced on or after September 1, 1995 and which arise from actions accruing before that date; (3) claims made policy percentage 3 is the loss and ALAE reduction percentage that reflects only the reductions due to the tort reform legislation applying to claims filed and suits commenced on or after September 1, 1996 and which arise from actions accruing before September 1, 1995. (c) The first loss and ALAE reduction percentages shown for each line is applicable to policies effective on or after January 1, 1996 but before January 20, 1998; the second reduction percentage is applicable to policies effective on or after January 20, 1998: (1) private passenger automobile liability insurance for bodily injury___ 7.5% / 11.4% (2) commercial automobile liability insurance for bodily injury___ 12.0%; / 13.5% (3) the liability portion (A) of homeowner's insurance___ 0% / 0% (B) of farm and ranch owner's insurance (for policies effective prior to January 1, 1998)___10.0% / 10.0% (C) of renter's insurance___0% / 0% (4) professional liability insurance as defined in the Insurance Code, article 5.15-1 for: (A) physician, other health care provider - (i) claims made policy percentage 1___11.5% / 15.0% (ii) claims made policy percentage 2___3.5% / NA (iii) claims made policy percentage 3___8.5% / 12.8% (iv) occurrence policy___11.5% / 15.0% (B) hospital (i) claims made policy percentage 1___15.0% / 17.0% (ii) claims made policy percentage 2___3.5% / NA (iii) claims made policy percentage 3___8.5% / 10.5% (iv) occurrence policy___15.0% / 17.0% (5) commercial liability insurance for damages arising out of the manufacture, design, importation, distribution, packaging, labeling, lease, or sale of a product or for completed operations coverage (products/completed operations)___12.5% / 18.0% (6) personal umbrella and excess liability insurance__7.5% / 12.5% (7) the liability portion of commercial multi-peril insurance (A) with a divisible premium, refer to sec.5.14005(d) of this title (relating to Calculation and Application of Rate Reduction Factor) (B) with an indivisible premium, including business owner's policies___12.5% / 17.0% (8) the employer's liability portion of workers' compensation insurance___0% / 0% (9) commercial general liability, which includes premises medical, fire, legal liability, personal advertising injury, contractual liability, and liability for all premises___12.5% / 17.0% (10) commercial umbrella___18.0% / 30% (11) commercial excess liability (A) general liability/commercial multiple peril___18.0% / 32% (B) commercial automobile___18.0% / 25.3% (C) products liability___18.0% / 20% (D) medical professional - physicians, other health care provider (i) claims made policy percentage 1___15.0% / 17.5% (ii) claims made policy percentage 2___4.5% / NA (iii) claims made policy percentage 3___11.5% / 15.9% (iv) occurrence policy___15.0% / 17.5% (E) medical professional - hospitals - (i) claims made policy percentage 1___20.0% / 27.5% (ii) claims made policy percentage 2____4.5% / NA (iii) claims made policy percentage 3____11.5% / 12.5% (iv) occurrence policy___20.0% / 27.5% (F) other professional (i) claims made policy percentage 1___17.5% / 25.0% (ii) claims made policy percentage 2___0.5% / NA (iii) claims made policy percentage 3___17.0% / 9.0% (iv) occurrence policy___17.5% / 25.0% (12) professional liability other than insurance described by paragraph (4) of this section - (A) claims made policy percentage 1___12.0% / 20% (B) claims made policy percentage 2___1.0% / NA (C) claims made policy percentage 3___11.0% / 15.4% (D) occurrence policy___12.0% / 20.0% (13) other commercial liability insurance, if not already covered as a part of coverage in paragraph (9) of this section, when written as a monoline coverage or added to another policy, including the following lines and sublines: (A) fire legal liability___12.5% / 17.0% (B) contractual liability___12.5% / 17.0% (C) pollution liability (i) claims made policy percentage 1___6.0% / 12.5% (ii) claims made policy percentage 2___1.0% / NA (iii) claims made policy percentage 3___5.5% / 7.2% (iv) occurrence policy___6.0% / 12.5% (D) owners and contractors protective liability___12.5% / 17.0% (E) railroad protective liability___12.5% / 17.0% (F) liquor liability (i) claims made policy percentage 1___12.5% / 17.0% (ii) claims made policy percentage 2___2.0% / NA (iii) claims made policy percentage 3___8.0% / 11.0% (iv) occurrence policy__12.5% / 17.0% (G) farm liability___12.5% / 17.0% (H) garage liability____6.0% / 17.0 (I) all other commercial liability lines and sublines___12.5% / 17.0% (14) the liability portion of farm and ranch owner's insurance (for policies effective after January 1, 1998)___10% / 10% sec.5.14005.Calculation and Application of Rate Reduction Factor. (a) For those lines or sublines of insurance that have a benchmark rate, a rate reduction factor will be calculated by the department using the loss and ALAE reduction percentages set forth in sec.5.14004(c) of this title (relating to Loss and ALAE Reduction Percentages by Line) and relevant industry average expenses for the applicable line or subline. This rate reduction factor shall be applied to the applicable benchmark rate to arrive at an adjusted benchmark rate for purposes of this section. (1) For rates for policies or coverage with an effective date on and after January 1, 1996, the insurer shall apply its flex percent on file with the department to the adjusted benchmark rate. (2) For subsequent filings, the insurer shall apply its flex percent developed without consideration of tort reform to the adjusted benchmark rate then in effect. (b) For those lines and sublines other than those subject to the Insurance Code, article 5.101, the loss and ALAE reduction percentage shall be used by each insurer to calculate the rate reduction factor to be applied to occurrence policy rates in effect on January 1, 1996 for the lines or sublines identified in sec.5.14004(c) of this title (relating to Loss and ALAE Reduction Percentages by Line) according to the following method: (1) The insurer shall apply the loss and ALAE reduction percentage to the loss and allocated loss adjustment expense (ALAE) portion of the rate. (2) The insurer shall add the provision for other company fixed expenses, including unallocated loss adjustment expenses (ULAE), to the loss and ALAE portion of the rate as adjusted in paragraph (1) of this subsection. (3) The insurer shall add the provision for other company fixed expenses, including ULAE, to the loss and ALAE portion of the rate before the adjustment for the loss and ALAE reduction percentage in paragraph (1) of this subsection. (4) The rate reduction factor is equal to the ratio of the value calculated in paragraph (2) of this subsection to the value calculated in paragraph (3) of this subsection. (5) The insurer shall apply the rate reduction factor directly to the rate. (c) For those lines and sublines other than those subject to the Insurance Code, article 5.101, the claims made policy loss and ALAE reduction percentages shall be used by each insurer to calculate the rate reduction factor to be applied to claims made policy rates in effect on January 1, 1996 for the lines or sublines identified in sec.5.14004(c) of this title (relating to Loss and ALAE Reduction Percentages by Line) according to the following method: (1) The insurer shall determine in accordance with the instructions in the version of Form TR-3A-R, Calculation of Tort Reform Impact, Claims Made Policies, and Form TR-3B-R, Calculation of Rating Values, Claims Made Policies applicable to the policy year: (A) that part of the loss and ALAE portion of the rate to which claims made policy percentage 1 applies; (B) that part, if any, of the loss and ALAE portion of the rate to which claims made policy percentage 2 applies; and (C) that part, if any, of the loss and ALAE portion of the rate to which claims made policy percentage 3 applies. (2) The insurer shall apply the appropriate claims made policy loss and ALAE reduction percentage to each of the three parts of the loss and ALAE portion of the rate determined in paragraph (1) of this subsection, add the calculated reductions and subtract this sum from the total loss and ALAE portion of the rate. (3) The insurer shall add the provision for other company fixed expenses, including ULAE, to the loss and ALAE portion of the rate as adjusted in paragraph (2) of this subsection. (4) The insurer shall add the provision for other company fixed expenses, including ULAE, to the loss and ALAE portion of the rate before the adjustment for the claims made policy loss and ALAE reduction percentages in paragraph (2) of this subsection. (5) The rate reduction factor is equal to the ratio of the value calculated in paragraph (3) of this subsection to the value calculated in paragraph (4) of this subsection. (6) The insurer shall apply the rate reduction factor directly to the rate. (7) The department adopts and incorporates herein by reference, Form TR-3A-R Calculation of Tort Reform Impact, Claims Made Policies, and Form TR-3B-R, Calculation of Rating Values, Claims Made Policies. The department publishes a version of Forms TR-3A-R and TR-3B-R for policies effective in each of the years 1996, 1997 and 1998. These forms may be obtained from the Technical Analysis Division, Mail Code 105-5G, Texas Department of Insurance, 333 Guadalupe, P. O. Box 149104, Austin, Texas 78714-9104. (d) For package coverages, such as commercial multi-peril, where premiums are based on the premiums for each of its component monoline coverages, the rate reduction factor, if any, appropriate to each of the various component monoline coverages shall be applied by the insurer. (e) For insurers writing any commercial liability or professional liability lines or large risk, the rate reduction factor for the specific line identified in sec.5.14004 of this subchapter (relating to Loss and ALAE Reduction Percentages by Line) may be reduced by the individual tort reform component specified in Form TR95 or TR97, Pricing Components by Tort Reform, if coverage for the specific tort reform identified in Form TR95 or TR97 is specifically excluded from the policies. Insurers shall be required to file a certification form, developed by the department, that indicates the rate reduction factor used, the specific individual tort reform components used to reduce the factor, the premium volume affected, and such other information determined by the department. The department adopts and incorporates herein by reference Forms TR95 and TR97, Pricing Components by Tort Reform. These forms are published by the Texas Department of Insurance and may be obtained from the Technical Analysis Division, Mail Code 105-5G, Texas Department of Insurance, 333 Guadalupe, P. O. Box 149104, Austin, Texas 78714-9104. (f) Insurers shall apply the appropriate rate reduction factor to the rates used to determine minimum premiums, maximum premiums and other rating values under retrospective rating plans. (g) For umbrella or excess policies that are rated as a percentage of the underlying primary policy rates, the insurer may adjust the umbrella or excess policy rate reduction factor to eliminate any duplication in the loss and ALAE reduction percentages as follows: (1) Determine the rate reduction factor appropriate to the umbrella or excess policy as specified in subsections (a) or (b) of this section. (2) Determine the rate reduction factors appropriate to each of the insurer's underlying primary policies as specified in subsections (a) or (b) of this section. (3) Compute a weighted average rate reduction factor for the underlying primary policies using the insurer's statewide average distribution of premiums for the underlying policies at limits corresponding to the retention under the umbrella or excess policy. (4) The adjusted umbrella or excess policy rate reduction factor is equal to the ratio of the value calculated in paragraph (1) of this subsection to the value calculated in paragraph (3) of this subsection. (5) In no event shall the ratio calculated in paragraph (4) of this subsection exceed one (1.000). (6) The insurer shall apply the adjusted rate reduction factor directly to the percentage used to calculate its umbrella or excess policy premiums. sec.5.14007.Filing Requirements. (a) Each insurer which is required to apply the rate reduction factor shall file a certification form, developed by the department, for each line or combination of lines subject to this subchapter, executed by an officer or director of the insurer which indicates what the rate of the insurer would have been without application of the rate reduction factor for tort reform legislation and what the rate is with application of the rate reduction factor. (1) an initial certification form shall be filed with the department, no later than December 1, 1995, for the insurer's rates that are to be effective January 1, 1996. (2) For any rate filing made by an insurer subject to this subchapter, with an effective date on and after January 1, 1996, the insurer shall file the rate filing in accordance with applicable rules currently in effect at the time of the filing regarding justification for the filed rates and the certification form. (b) Each non-rate regulated insurer and those insurers writing non-rate regulated lines shall file a certification form, developed by the department, for each line or combination of lines subject to this subchapter, executed by an officer or director of the insurer which indicates what the rate of the insurer would have been without application of the prospective savings for tort reform legislation and what the rate is with application of the prospective savings for tort reform legislation. The certification form will include information on the premium volume of the insurance and explanation of the overall rate reduction applied by the insurer. sec.5.14011. Loss and ALAE Reduction Percentages Applicable in Specified Years. The loss and ALAE reduction percentages by line as set forth in sec.5.14004 of this title (relating to Loss and ALAE Reduction Percentages by Line) shall remain in effect until January 1, 2001, or until further order of the commissioner. 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 October 20, 1997. TRD-9713886 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: November 10, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 113.Control of Air Pollution from Toxic Materials The commission adopts new Subchapter C, sec.sec.113.180, 113.190, 113.200, 113.280, 113.340, and 113.380, concerning National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6834). These requirements are contained in 40 Code of Federal Regulations (CFR) Part 63. The United States Environmental Protection Agency (EPA) is developing these national standards to regulate emissions of hazardous air pollutants under the Federal Clean Air Act (FCAA) Amendments, Section 112. These NESHAPs for source categories are technology based standards and commonly referred to as Maximum Achievable Control Technology (MACT) Standards. EXPLANATION OF ADOPTED RULES The commission adopts by reference, without changes, six of the federal MACT Standards. These rules are being adopted by the commission in order to relieve industry of the burden of duplicative and/or conflicting federal and state regulations that may address related emissions control, reporting, recordkeeping, monitoring, and testing requirements. Under federal law, the affected industries will be required to implement these MACT standards regardless of whether the commission or the EPA is the agency responsible for implementation of the standards. With delegation, the commission will be responsible for administration and enforcement of the MACT requirements. These six federal rules, each of which are under their own undesignated head of the same name, are Perchloroethylene Dry Cleaning Facilities, 40 CFR 63, Subpart M; Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks, 40 CFR 63, Subpart N; Ethylene Oxide Sterilization Facilities, 40 CFR 63, Subpart O; Epoxy Resins Production and Non-Nylon Polyamides Production, 40 CFR 63, Subpart W; Petroleum Refineries, 40 CFR 63, Subpart CC, and Aerospace Manufacturing and Rework Facilities, 40 CFR 63, Subpart GG. The commission is seeking formal delegation from the EPA, for these six rules, under 40 CFR 63, Subpart E, which implements the FCAA Amendments, Section 112(l). As other MACT standards continue to be promulgated, they will be reviewed for compatibility with current state regulations and policies. The commission will then incorporate them into Chapter 113 through formal rulemaking procedures and request formal delegation from the EPA. No state rule or program is federally approved and enforceable unless and until it is approved by the EPA through the full Section 112(l) process. There may be overlapping requirements between these federal rules and existing state rules for the control of volatile organic compound (VOC) emissions contained in 30 TAC Chapter 115. The commission anticipates that the VOC reduction rules will be modified due to EPA revisions to the National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter in 1997. The commission believes the most appropriate time to resolve conflicts with promulgated MACT standards will be in conjunction with future revisions to Chapter 115 required for implementation of the new NAAQS. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this proposal pursuant to Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of this rulemaking is to facilitate implementation and enforcement of the MACT standards by the state and to prevent any duplicate requirements. While the MACT standards will result in a significant expense to the regulated industries, they do not constitute a taking of private real property. Additionally, the exemptions in Senate Bill 14 allow for the promulgation of rules mandated by federal actions. COASTAL MANAGEMENT PLAN The commission has determined that this rulemaking relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource Code, sec.sec.33.201 et. seq.), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and has determined that this action is consistent with the applicable CMP goals and policies. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations at 40 CFR, to protect and enhance air quality in the coastal area, (31 TAC sec.501.14(q)). This rulemaking will adopt by reference, without changes, six federal MACT standards contained in 40 CFR Part 63, and is therefore consistent with this policy. HEARING AND COMMENTERS A public hearing was held in Austin on August 14, 1997. The comment period closed August 21, 1997. No oral comments were received at the public hearing. One written comment was received from the Southwest Drycleaners Association, in favor of the adoption. The commission appreciates the support. SUBCHAPTER C.National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR 63) Perchloroethylene Dry Cleaning Facilities 30 TAC sec.113.180 STATUTORY AUTHORITY The new rule is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.011, which provides the commission the authority to establish the level of quality to be maintained in the state's air; sec.382.012, which provides for the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; sec.382.016, concerning monitoring requirements and examination of records; and sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. This rule is being adopted to obtain delegation from EPA under 40 CFR 63, Subpart E, which implements the FCAA Amendments, sec.112(l). 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 October 16, 1997. TRD-9713768 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 5,1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 239-1970 Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks 30 TAC sec.113.190 The new rule is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.011, which provides the commission the authority to establish the level of quality to be maintained in the state's air; sec.382.012, which provides for the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; sec.382.016, concerning monitoring requirements and examination of records; and sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. This rule is being adopted to obtain delegation from EPA under 40 CFR 63, Subpart E, which implements the FCAA Amendments, sec.112(l). 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 October 16, 1997. TRD-9713769 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 5,1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 239-1970 Ethylene Oxide Sterilization Facilities 30 TAC sec.113.200 The new rule is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.011, which provides the commission the authority to establish the level of quality to be maintained in the state's air; sec.382.012, which provides for the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; sec.382.016, concerning monitoring requirements and examination of records; and sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. This rule is being adopted to obtain delegation from EPA under 40 CFR 63, Subpart E, which implements the FCAA Amendments, sec.112(l). 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 October 16, 1997. TRD-9713770 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 5,1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 239-1970 Epoxy Resins Production and Non-Nylon Polyamides Production 30 TAC sec.113.280 The new rule is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.011, which provides the commission the authority to establish the level of quality to be maintained in the state's air; sec.382.012, which provides for the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; sec.382.016, concerning monitoring requirements and examination of records; and sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. This rule is being adopted to obtain delegation from EPA under 40 CFR 63, Subpart E, which implements the FCAA Amendments, sec.112(l). 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 October 16, 1997. TRD-9713771 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 5,1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 239-1970 Petroleum Refineries 30 TAC sec.113.340 The new rule is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.011, which provides the commission the authority to establish the level of quality to be maintained in the state's air; sec.382.012, which provides for the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; sec.382.016, concerning monitoring requirements and examination of records; and sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. This rule is being adopted to obtain delegation from EPA under 40 CFR 63, Subpart E, which implements the FCAA Amendments, sec.112(l). 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 October 16, 1997. TRD-9713772 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 5,1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 239-1970 Aerospace Manufacturing and Rework Facilities 30 TAC sec.113.380 The new rule is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.011, which provides the commission the authority to establish the level of quality to be maintained in the state's air; sec.382.012, which provides for the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; sec.382.016, concerning monitoring requirements and examination of records; and sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. This rule is being adopted to obtain delegation from EPA under 40 CFR 63, Subpart E, which implements the FCAA Amendments, sec.112(l). 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 October 16, 1997. TRD-9713773 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 5,1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 239-1970 CHAPTER 115.Control of Air Pollution from Volatile Organic Compounds SUBCHAPTER F.Miscellaneous Industrial Sources Perchloroethylene Dry Cleaning Systems 30 TAC sec.sec.115.521-115.527, 115.529 The commission adopts the repeal of sec.115.521, concerning Emission Specifications; sec.115.522, concerning Control Requirements; sec.115.523, concerning Alternate Control Requirements; sec.115.524, concerning Inspection Requirements; sec.115.525, concerning Testing Requirements; sec.115.526, concerning Recordkeeping Requirements; sec.115.527, concerning Exemptions; and sec.115.529, concerning Counties and Compliance Schedules without changes as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6837). EXPLANATION OF ADOPTED RULE REPEALS The commission adopts these revisions to Chapter 115 and to the State Implementation Plan in order to repeal rules which are no longer necessary. Sections 115.521-115.527 and 115.529 are based upon a United States Environmental Protection Agency (EPA) Control Techniques Guideline (CTG) guidance document, "Control of Volatile Organic Emissions from Perchloroethylene Dry Cleaning Systems," issued in December, 1978. The requirements of sec.sec.115.521-115.527 and 115.529 are being repealed subsequent to final action by the EPA to exclude perchloroethylene (perc) from the federal definition of "volatile organic compound" on February 7, 1996 (61 Federal Register (FR) 4588) due to perc's negligible photochemical reactivity. The EPA's action means that the perc dry cleaning CTG no longer has the regulatory status of a CTG for purposes of ozone control, and therefore states may repeal their CTG-based perc dry cleaning rules. However, perc will continue to be regulated as a hazardous air pollutant under the Federal Clean Air Act, sec.112. Specifically, the EPA issued a National Emissions Standards for Hazardous Air Pollutants (NESHAP) regulation limiting emissions from perc dry cleaners on September 22, 1993 (58 FR 49376), with a final compliance date of September 22, 1996. In the July 22, 1997, issue of the type-name="italic">Texas Register (22 TexReg 6835), the commission proposed revisions to Chapter 113, concerning Control of Air Pollution from Toxic Materials, which incorporates this perc dry cleaning NESHAP by reference. The perc dry cleaning NESHAP rules include an exemption from the add-on control requirements for existing dry-to-dry and transfer machines located at dry cleaners with total perc consumption of less than 140 or 200 gallons per year, respectively. ("Existing" means construction or reconstruction began before December 9, 1991. New machines installed on or after December 9, 1991 are considered "new" and must be equipped with at least a refrigerated condenser upon startup.) Consequently, repealing the Chapter 115 perc dry cleaning rules means that these smaller existing facilities in Dallas, Harris, and Tarrant Counties will no longer have to use add-on controls. Because repealing the Chapter 115 perc dry cleaning rules would allow smaller dry cleaners in Dallas, Harris, and Tarrant Counties to increase their perc emissions, an analysis of the implications of this potential increase was conducted. The emissions from a small perc dry cleaners were modeled with screening modeling, which generally overestimates the concentrations. In order for the review to be conservative, the worst-case conditions were assumed (perc usage right at the 200 gallon/year exemption threshold; short distance to the property line; etc.). The results of the modeling were reviewed by the Toxicology and Risk Assessment Section and determined to be acceptable. In addition, any existing dry cleaners currently complying with the Chapter 115 perc dry cleaning rules are likely to continue using their add-on controls due to the value of the recovered perc. Therefore, the Chapter 115 perc dry cleaning rules can simply be repealed, with the perc dry cleaning NESHAP superseding it. 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 rulemaking is to repeal rules which are no longer necessary for control of ozone formation. Promulgation and enforcement of these rule repeals will not affect private real property which is the subject of the rule because the rule repeals do not impose new requirements, but repeal existing requirements. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et. seq.), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this action for consistency, and has determined that this rulemaking is consistent with the applicable CMP goals and policies. The primary CMP policy applicable to this rulemaking action is the policy that commission rules comply with regulations at Code of Federal Regulations, Title 40, to protect and enhance air quality in the coastal area. No new sources of air contaminants will be authorized by the rule repeals; however, minor increases in perc emissions may occur at smaller perc dry cleaners in Dallas, Harris, and Tarrant Counties. The commission has evaluated this potential increase and determined it to be insignificant. Therefore, in compliance with 31 TAC, sec.505.22(e), the commission affirms that this rulemaking is consistent with CMP goals and policies. HEARING AND COMMENTERS A public hearing on this proposal was held in Austin on August 14, 1997. The comment period closed August 21, 1997. No commenters submitted oral testimony. One commenter, Southwest Drycleaners Association (SDA), submitted written comments which supported the proposed revisions. No commenters opposed the proposed revisions. SDA supported the proposed repeal of the Chapter 115 perc dry cleaning rules, since this would avoid unneeded duplication of the perc dry cleaning NESHAP. The commission appreciates the support. STATUTORY AUTHORITY The repeals are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA; and TCAA sec.382.012, which requires the commission to develop plans for protection of the state's air. 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 October 16, 1997. TRD-9713767 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 5,1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 239-1970 CHAPTER 122.Federal Operating Permits The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts the repeal of sec.sec.122.10-122.12, 122.120, 122.130, 122.132-122.136, 122.138, 122.139, 122.141, 122.143, 122.145, 122.150, 122.152-122.155, 122.161, 122.163- 122.165, 122.201, 122.202, 122.204, 122.210-122.213, 122.215-122.217, 122.219- 122.221, 122.231, 122.233, 122.241, 122.243, 122.310-122.312, 122.314, 122.410, 122.411, 122.420-122.422, 122.425, 122.427, 122.430, 122.432, 122.434, 122.435, 122.437, 122.438, and 122.440, and new sec.sec.122.10, 122.12, 122.110, 122.120, 122.121, 122.130-122.134, 122.136, 122.138-122.140, 122.142-122.146, 122.148, 122.161, 122.165, 122.201, 122.204, 122.210-122.213, 122.215-122.217, 122.219- 122.221, 122.231, 122.241, 122.243, 122.312, 122.320, 122.322, 122.330, 122.350, 122.360, 122.410, 122.412, 122.414, 122.501-122.506, and 122.508, concerning the federal operating permit program. New Sections 122.10, 122.12, 122.110, 122.120, 122.121, 122.130-122.134, 122.136, 122.139, 122.142-122.146, 122.148, 122.161, 122.165, 122.201, 122.210- 122.213, 122.215-122.217, 122.219-122.221, 122.231, 122.243, 122.312, 122.320, 122.322, 122.350, 122.360, 122.410, 122.412, 122.414, 122.501-122.506, and 122.508 are adopted with changes to the proposed text as published in the May 13, 1997, issue of the Texas Register (22 TexReg 4140) and May 20, 1997, issue of the Texas Register (22 TexReg 4347). Sections 122.138, 122.140, 122.204, 122.241, and 122.330 and the repeals are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES. The commission has chosen to revise the rule language through the repeal of affected sections and their replacement with new sections. This approach was determined to be more efficient than amending the existing sections due to the extensive nature of the revisions. Title V of the Federal Clean Air Act Amendments of 1990 (FCAAA), enacted on November 15, 1990, requires the United States Environmental Protection Agency (EPA) to promulgate regulations within 12 months of enactment that require and specify the minimum elements of state operating permit programs. Part 70 of Chapter I, Title 40 of the Code of Federal Regulations (40 CFR 70) contains these provisions. Title 30 Texas Administrative Code Chapter 122 (30 TAC 122) was adopted August 23, 1993, to implement the regulatory authority of the federal operating permit program required by 40 CFR 70. Revisions to 30 TAC 122 are adopted as the result of comments received from EPA, the regulated community, and public interest groups. The revisions reorganize 30 TAC 122 into six subchapters: Subchapter A, concerning Definitions; Subchapter B, concerning Permit Requirements; Subchapter C, concerning Initial Permit Issuances, Revisions, Reopenings, and Renewals; Subchapter D, concerning Public Announcement, Public Notice, Affected State Review, Notice and Comment Hearing, Notice of Proposed Final Action, EPA Review, and Public Petition; Subchapter E, concerning Acid Rain Permits; and Subchapter F, concerning General Operating Permits. These revisions reflect changes based on EPA's proposed and final interim approval notices, discussions with the regulated community and public interest groups, and a regulatory reform effort by the agency to make rule language more straightforward and easy to understand. Regulatory Reform. Changes to the rule language as the result of ongoing efforts by the commission for regulatory reform appear throughout the rules and will not be individually discussed in this preamble. These changes are for purposes of simplification and clarification only and do not involve substantive changes in the requirements of this chapter. In general, these changes involve using shorter sentences, limiting each citation to one main concept, reordering requirements into a more logical sequence, and using more commonplace terminology. In addition, some of the definitions have been moved to more appropriate sections or chapters. Definitions that apply agency-wide belong in 30 TAC Chapter 3, while definitions that apply to the all the air rules are appropriate in 30 TAC Chapter 101. Both the definitions for Act or Federal Clean Air Act (FCAA) and United States Environmental Protection Agency or EPA have been moved to Chapter 3. The nonattainment classifications for the counties in Texas which were listed under the definition of major source have also been moved to Chapter 3. Furthermore, the definition of fugitive emissions has been removed because it was redundant with the essentially equivalent definition in Chapter 101. The definitions of affected state and responsible official have been moved to sec.122.330 and sec.122.165 respectively, where these terms have the most relevance. Under the original Subchapter E, 40 CFR 72 (relating to the Acid Rain Program) was incorporated by reference; however, several Part 72 requirements were also explicitly stated in the state regulation. Through the regulatory reform process, the commission determined that the combination of incorporating by reference and restating some of the federal requirements was inefficient and confusing. Therefore, except for the identification of the application deadlines, the redundant language has been removed from Subchapter E. The definitions in sec.122.12, relating to Acid Rain Definitions, that were redundant with the definitions in 40 CFR 72 have also been removed. The only definition in sec.122.12 that appears in 40 CFR 72 is the definition of acid rain program, which is included because the term is used several places in the rule language before the incorporation by reference of 40 CFR 72 in Subchapter E. In addition, the commission is repealing some sections and adopting new sections to conform with regulatory reform efforts. The new sec.122.121, relating to Prohibition on Operation, contains the requirement originally in sec.122.201(f). Section 122.141, relating to Authority, was determined to contain an unnecessary statement in subsection (a), and subsection (b) has been moved to sec.122.161. New sec.sec.122.144-122.146, relating to Recordkeeping Terms and Conditions; Reporting Terms and Conditions; and Compliance Certification Terms and Conditions, have been created to contain requirements originally grouped together under sec.122.143. The original sec.122.145, relating to Permit Content Requirements, has been moved to sec.122.142. Furthermore, sec.sec.122.150 and 122.152-122.155, concerning Public Notice Requirements, have been moved to Subchapter D; and sec.122.202, relating to General Permits, has been moved to Subchapter F. Section 122.163, relating to Effective Date, has been deleted, because it was determined to be unnecessary, while sec.122.164, relating to Confidential Information, has been deleted because 30 TAC sec.1.5(d) addresses confidential information. Finally, the information in the original sec.122.243, relating to Permit Expiration, has been moved to sec.122.241. Response to Deficiencies Noted by and/or Negotiated with EPA. In its June 7, 1995, proposal to grant interim approval, EPA noted 19 specific deficiencies that the commission needed to address prior to obtaining both interim and full program approval (see 60 FR 30037). The commission responded to EPA's deficiencies in a letter to Jole Luehrs, Chief, New Source Review Section, EPA Region 6 from Jeff Saitas, Deputy Director, Office of Air Quality, TNRCC dated October 3, 1995. In its June 25, 1996, notice of final interim approval, EPA provided 18 specific comments, some of which cited deficiencies that the commission needed to address prior to full program approval (see 61 FR 30037). Many of the deficiencies that EPA noted in the June 25, 1996, notice restated original deficiencies raised in the June 7, 1995, notice. In addition, the June 25, 1996, notice also included EPA's comments (i.e., further deficiencies) on the commission's responses to the deficiencies stated in the June 7, 1995, notice. With regard to the criteria used for full program approval, EPA stated in the June 25, 1996, notice that it would rely on the version of 40 CFR 70 in effect at the time of full program submittal (see 61 FR 32693). However, since there is so much uncertainty as to when the 40 CFR 70 revisions will be final, it may be unreasonable for Texas (or any other state) to fully comply with a major rule revision by the time the full program submittal is due to EPA (January 26, 1998). Therefore, EPA recently clarified this remark by stating that it is EPA's intent to provide in the final rule revising 40 CFR 70 that the criteria governing state or local program approvals will be either the original July 21, 1992, regulation or the final 40 CFR 70 revisions, or some appropriate combination of the two (March 27, 1997, letter from Lydia Wegman, Deputy Director, EPA Office of Air Quality Planning and Standards to Dan Pearson, Executive Director, TNRCC). It should also be noted that EPA promulgated an extension of states' interim program approvals on August 29, 1997 (see 62 FR 45732). The extension automatically extends all operating permits program interim approvals until October 1, 1998. In addition, states may also request an additional extension (between 18 and 24 months) if they choose to combine corrections to their interim approvals with program revisions necessary to implement the revisions to Part 70 which are expected to be promulgated mid-summer of 1998. The commission intends on requesting the additional extension immediately after the Part 70 revisions are promulgated. Assuming no statutory changes are required by the Part 70 revisions, the commission would receive an additional 18-month extension after the date the Part 70 revisions are promulgated. As a result of the extension, interim approval deficiencies do not have to be corrected until the commission submits its combined program submittal (addressing interim approval deficiencies and Part 70 revisions). However, the commission has attempted to correct the majority of deficiencies noted by EPA in the proposed rulemaking. In some cases, the commission has decided to wait until the combined program submittal to correct more difficult and complicated deficiencies. Specifically, the commission has decided to postpone determining how minor new source review (NSR) will be codified in Chapter 122. Until that time, the commission will continue to work with EPA, the regulated community, and the public to find a mutually agreeable solution on the complicated issue. The following summarizes the commission's response to the deficiencies that EPA indicated in both its June 7, 1995, and June 25, 1996, Federal Register notices. It should be noted that unless otherwise indicated in this preamble, the revisions to 30 TAC 122 are intended to be consistent with the July 21, 1992, 40 CFR 70 regulations (see 57 FR 32295). In certain cases, the revisions to 30 TAC 122 reflect the commission's most current understanding of the proposed 40 CFR 70 revisions. The commission has limited changes based on the proposed 40 CFR 70, to those minor issues that are not expected to change upon promulgation of the final revisions. Those issues are limited to the definition of site, regarding research and development facilities; the reference to FCAA, sec.302(j), regarding the consideration of fugitive emissions for FCAA, sec.111 and sec.112 sources; the definition of Title I modification; and operational flexibility. 1. Minor NSR/40 CFR 70 Integration. In the June 7, 1995 notice, EPA pointed out that 30 TAC 122 does not properly address minor NSR as an applicable requirement. Specifically, EPA noted that the definition of applicable requirement, sections on permit application, permit revisions, and permit content do not properly include minor NSR. For full program approval, EPA maintains that the appropriate sections of 30 TAC 122 must be revised to include minor NSR (see 60 FR 30039). In the June 25, 1996 notice, EPA commented that for full program approval, the commission must provide operating permits that include all minor NSR permits (see 61 FR 32694). Due to the recent interim approval extension promulgated by the EPA, the commission has decided not to address how minor NSR will be codified in Chapter 122 at this time. Rather, the commission will continue to work with EPA, the regulated community, and the public to find a mutually agreeable solution on this complicated issue and address it in the combined program submittal 12 month after the Part 70 revisions are promulgated. 2. Compliance with the June 20, 1996, 40 CFR 70 Rule. In the June 7, 1995 notice, EPA stated that if the August 29, 1994, proposal for Operating Permit Program Interim Approval Criteria became final (see 59 FR 44572), the commission would be required to meet the requirements of that rule in order to receive interim approval. On June 20, 1996, EPA promulgated the final rule that provided a mechanism to approve programs (on an interim basis) that did not include minor NSR requirements (see 61 FR 31443). For any program that does not include minor NSR requirements, the final rule requires that each permit issued during the interim program comply with the following: include a statement in permits that minor NSR requirements are not included in permits issued during the interim period; indicate how citizens may obtain access to excluded minor NSR permits; include a cross-reference in each operating permit to the minor NSR permit; include a statement indicating that the excluded minor NSR requirements are not eligible for the permit shield under 40 CFR sec.70.6; and require reopening of permits for incorporation of minor NSR permit conditions upon or before granting of full approval. The commission will include standardized permit provisions in each operating permit issued under the interim program to meet the requirements of the first four items listed in the previous paragraph. Furthermore, as requested in the June 25, 1996 notice, the commission will also include a standardized permit provision that clearly states that major NSR authorizations (prevention of significant deterioration and nonattainment authorizations) are incorporated in each operating permit issued during the interim program. With regard to the requirement to reopen the operating permit to include minor NSR upon or before granting full program approval, if it is finally determined necessary, the commission is proposing to follow the permit revision procedure in effect for incorporating minor NSR at the time that EPA grants Texas full program approval. This approach is consistent with 40 CFR sec.70.4(d)(3)(ii)(D) provided in the final rule promulgated on June 20, 1996 (see 61 FR 31448-31449). 3. Source Applicability of 40 CFR 70. In the June 7, 1995 notice, EPA states that sec.122.120(4)(A)-(C), regarding applicability of 40 CFR 70 and the Texas federal operating permit program, is inconsistent with the federal definition specified in 40 CFR sec.70.3(a) (see 60 FR 30039-30040). With regard to sec.122.120(4)(A) and (B), EPA believes that there could be some confusion over whether the rule exempts major sources subject to FCAA, sec.111 or sec.112 from the requirement to obtain a federal operating permit. The commission read the original sec.122.120(4) to clearly state that non-major sources are not required to obtain a federal operating permit until EPA no longer exempts these sources through rulemaking. Therefore, it follows that subparagraphs (A)-(C) only applied to non-major sources. The purpose of subparagraphs (A)-(C) was to define non-major sources consistent with 40 CFR 70. In the October 3, 1995, letter to Jole Luehrs, Chief, New Source Review Section, EPA Region 6 from Jeff Saitas, Deputy Director, TNRCC Office of Air Quality responding to EPA's June 7, 1995 notice, the commission proposed revisions to sec.122.120(4)(A)-(C) to address the deficiency. In the June 25, 1996 notice, EPA noted that the commission did not adequately address revisions to sec.122.120(4)(C) (see 61 FR 32695). Specifically, EPA disagreed with the commission proposal that included "any area source, in a source category designated by the Administrator." EPA maintained that the administrator may designate a number of different types of sources subject to Title V permitting, not just area sources. In order to minimize any confusion and to resolve these deficiencies, the commission has revised sec.122.120(4) to clarify that the rule is not exempting major sources from applicability to 30 TAC 122. In addition, the language has been revised to clarify that EPA may designate any non-major source in a source category, not just FCAA, sec.111 and sec.112 sources, as being subject to the operating permits program. 4. Treatment of Research and Development (R&D) Facilities. In the June 7, 1995 notice, EPA maintains that the treatment of research and development facilities through the definition of site in 30 TAC 122 is inconsistent with the original 40 CFR 70 (July 21, 1992) (see 60 FR 30040). Furthermore, EPA states that the commission must treat research and development facilities consistent with 40 CFR 70 in order to obtain full program approval. The commission believes that the preamble to the July 21, 1992, 40 CFR 70 rule clearly states that research and development facilities would be treated as though they were a separate source (and required to have a Title V permit) only if the research and development facility were itself a major source (see 57 FR 32264). "White Paper Number 1," Streamlined Development of 40 CFR 70 Permit Application, published on July 10, 1995, seems to clarify EPA's position on research and development facilities. As stated in the White Paper Number 1, EPA intends to clarify through final rulemaking of 40 CFR 70 that research and development facilities will only be considered major sources if the research and development facility itself is major or the research and development facility is a support facility making a significant contribution to the product of a collocated manufacturing facility and the combined emissions exceed the major source thresholds. In the August 31, 1995, supplemental proposal to 40 CFR 70, referred to as the "supplemental proposal," EPA proposed a definition of major source which reflects its position in White Paper Number 1 (see 60 FR 45565). The commission has revised the definition of site in 30 TAC 122 to clearly reflect that if research and development facilities produce products for commercial sale, they will be included with the collocated facility for purposes of Title V applicability and permitting. Otherwise, research and development facilities will be considered a separate site. The commission believes that this revision is consistent with White Paper Number 1 and will be consistent with the final 40 CFR 70 revisions. 5. Definition of Regulated Air Pollutant. In the June 7, 1995 notice, EPA points out that 30 TAC 122 does not define regulated air pollutant, but rather air pollutant (see 60 FR 30040). The EPA claims in the proposed interim approval notice that major sources should be determined on the potential to emit any air pollutant including those compounds listed in FCAA, sec.112 (including sec.112(r)(3)), regardless of whether the compounds are subject to a standard or other requirement. However, in the supplemental proposal (see 60 FR 45565), EPA revised its position and proposed that being listed in FCAA, sec.112(r)(3) is not a criterion in determining the status of a regulated air pollutant. Therefore, the commission has revised the 30 TAC 122 definition of air pollutant as follows: "(F) any pollutant subject to a standard promulgated under FCAA, sec.112 (relating to Hazardous Air Pollutants) or other requirements established under sec.112, including sec.112(g) and (j). However a pollutant shall not be considered an air pollutant under this chapter solely because it is subject to standards or requirements under sec.112(r)." 6. Definition of Regulated Major Source. In the June 7, 1995, and the June 25, 1996 notices, EPA stated that the 30 TAC 122 definition of major source as it relates to requiring the inclusion of fugitive emissions for source categories regulated under FCAA, sec.111 or sec.112 is not consistent with the existing 40 CFR 70 (see 60 FR 30041 and 61 FR 32695). For full program approval, EPA indicated that the commission definition of major source as it relates to requiring the inclusion of fugitive emissions must be consistent with 40 CFR 70. Specifically, in the 30 TAC 122 definition, source category xxvii only applies to "any other stationary source category which as of August 7, 1980, is being regulated under the Act, sec.111 or sec.112" whereas the July 21, 1992, 40 CFR 70 does not limit the stationary source categories to those which existed as of August 7, 1980. In EPA's August 29, 1994, proposed 40 CFR 70 revisions (see 59 FR 44527), the definition of major source, source category xxvii, was revised to include references to those source categories regulated by an FCAA, sec.111 or sec.112 standard promulgated as of August 7, 1980, and would be consistent with the definition in 30 TAC 122 if adopted. However, in the supplemental proposal (see 60 FR 45565), EPA again revised the definition of major source, source category xxvii. This proposed revision requires fugitive emissions be included for source categories subject to standards promulgated under FCAA, sec.111 or sec.112 for which the administrator has made an affirmative determination under FCAA, sec.302(j). In the preamble to the supplemental proposal (see 60 FR 45547), EPA states that "until it promulgates this future 302(j) rulemaking, EPA believes that fugitives should not be counted for source categories subject to section 111 or 112 standards promulgated after August 7, 1980." Both proposed 40 CFR 70 revisions seem to indicate that fugitive emissions will not be included for source categories subject to FCAA, sec.111 or sec.112 standards promulgated after August 7, 1980, until further FCAA, sec.302(j) rulemaking. The commission has revised the definition of major source (category (xxvii)) to be consistent with the supplemental proposal as follows: "(xxvii) any stationary source category regulated under FCAA, sec.111 or sec.112 for which EPA has made an affirmative determination under FCAA, sec.302(j) (relating to Definitions)." 7. Definition of Title I Modification. In the June 7, 1995 notice, EPA points out that if the definition of Title I modification is finalized to include minor NSR changes, Texas would be eligible for interim but not final approval (see 60 FR 30041). However, if the final definition excludes changes reviewed under minor NSR and changes that trigger a pre-1990 National Emission Standards for Hazardous Air Pollutants requirement, the commission's definition of Title I modification would be consistent with 40 CFR 70. In the June 25, 1996 notice, EPA stated that if the definition of Title I modification was finalized as proposed in the supplemental proposal, the commission's proposed definition would be consistent with 40 CFR 70 (see 61 FR 32695). However, if the definition of Title I modification was changed from that proposed in the supplemental proposal, the commission would have to revise the definition consistent with 40 CFR 70. The supplemental proposal (see 60 FR 45565) indicates that minor NSR is not included in the definition of Title I modification. In addition, the revision process proposed in the supplemental proposal does not make reference to Title I modification. Similarly, the commission does not reference Title I modification in the 30 TAC 122 revision process. As such, the commission has deleted the definition of Title I modification from 30 TAC 122, resulting in an approach that should be consistent with the final 40 CFR 70 revisions. 8. Compliance Schedule Requirements. In the June 7, 1995, notice, EPA stated that sec.122.132(b)(3)(B) was not as stringent as 40 CFR sec.70.5(c)(8)(iii)(C) because it did not require the compliance schedules to be at least as stringent as "any judicial consent decree or administrative order to which the source is subject." (see 60 FR 30041). As such, the commission has revised this section (now sec.122.132(e)(4)(C)(iii)) to clarify that the compliance schedule shall resemble and be at least as stringent as that contained in any judicial consent decree or administrative order to which the source is subject. 9. Application Shield for Significant Modifications. In both the June 7, 1995, notice and the June 25, 1996 notice, EPA stated that the provisions in sec.122.138 incorrectly allow an application shield for significant permit modifications (see 60 FR 30041 and 61 FR 32695). The EPA stated that 40 CFR sec.70.7(b) does not allow significant permit modifications to be afforded an application shield for a timely and complete application, but rather only applies to a "timely and complete application for permit issuance (including for renewal)." In response, the commission has deleted the reference to "significant permit modification" from the application shield provisions of sec.122.138. 10. Changes Allowed Under Administrative Amendment. In the June 7, 1995 notice, EPA objected to the procedure specified in sec.122.211(5), because it allowed "changes similar to those in sec.122.211(1)-(4)" to be made by administrative amendment without approval by EPA as a part of the approved 40 CFR 70 program (see 60 FR 30041). For full approval, EPA suggests that sec.122.211(5) specifically list those "similar" changes to be allowed under administrative amendment. In response, the commission has revised sec.122.211(5) (now sec.122.211(6)) to require that "similar" changes be approved by EPA. 11. Permit Addition Procedures. In the June 7, 1995 notice, EPA stated that it does not consider the permit addition procedures outlined in sec.122.215 to be equivalent with the minor permit modification procedures specified in 40 CFR sec.70.7(e)(2) and stipulates that it must be revised for Texas to gain full approval (see 60 FR 30042). In the June 25, 1996 notice, EPA further states that the commission must comply with the version of 40 CFR 70 in effect at the time of full program submittal (see 61 FR 32696). As previously mentioned, EPA recently clarified this remark by stating that it is EPA's intent to provide in the final rule revising 40 CFR 70 that the criteria governing state or local program approvals will be either the original July 21, 1992, regulation or the final 40 CFR 70 revisions, or some appropriate combination of the two. In response, the commission has replaced the previous revision process with a new process contained in Subchapter C of 30 TAC 122. As discussed in the section of this preamble addressing changes to Subchapter C, permit additions have been deleted and replaced with a revision process substantially equivalent to the revision process outlined in EPA's July 21, 1992, final 40 CFR 70 regulation. 12. Public Notice to Include Emissions Change. In the June 7, 1995 notice, EPA stated that 40 CFR sec.70.7(h) requires that the public notice include the emissions change involved in any permit modification. EPA pointed out that sec.122.153 does not specify this requirement (see 60 FR 30042). The EPA reiterated this point in the June 25, 1996, notice by stating that in order to obtain full program approval, the commission must include the emissions changes in (the public notice for) any permit modification (see 61 FR 32696). In response, the commission emphasizes that 40 CFR sec.70.7(h) seems to require that "emissions change" information be included in the public notice for significant permit modifications only, not all modifications. Section 70.7(h) begins by stating "Except for modifications qualifying for minor permit modification procedures...." Therefore, because administrative permit revisions don't involve public notice, it follows that "emissions change" information need only be included in the public notice for significant permit modifications, not all modifications. As a result, in sec.122.320(b)(5), the commission has required that the public notice for all significant permit revisions, as defined in sec.122.219, include "the air pollutants with emission changes." 13. Fugitive Emissions Included in Permit Application. In the June 7, 1995 notice, EPA stated that the permit application must include fugitive emissions from units not subject to an applicable requirement as specified in 40 CFR sec.70.3(d) (see 60 FR 30043). EPA stated that 30 TAC 122 may not include such fugitive emissions. Furthermore, EPA believes that this omission is tied to the fact that minor NSR was not an applicable requirement of the original 30 TAC 122 regulation (adopted August 23, 1993). In the June 25, 1996 notice, EPA maintains that in order to obtain full program approval, the commission must require sources to quantify fugitive emissions from units covered by an applicable requirement. For fugitive emission units that are not covered by an applicable requirement, EPA states that a general description of the emissions would suffice (see 61 FR 32696). It should be noted that when determining whether a site in Texas is major and therefore subject to the operating permit program, the potential emissions from all emission units are summed for each individual air pollutant, regardless of whether the emission unit has an applicable requirement. Thus, the potential emissions of both point sources and fugitive sources (if the source is one of the 27 named source categories) should be included when determining a site's major source status. With respect to describing emissions of regulated pollutants for all emission units "(including fugitive emissions) from units without any applicable requirements," White Paper Number 1 (issued by EPA on July 10, 1995) and "White Paper Number 2," White Paper Number 2 for Improved Implementation of the 40 CFR 70 Operating Permits Program (issued by EPA on March 6, 1996) seem to indicate that additional emissions information will not be necessary where a source would stipulate to the applicability of a requirement and/or its major status. With the emphasis on defining applicable requirements, rather than emission rates, it is not necessary to quantify the emissions of fugitive emission sources (or a point source, for that matter) unless it has an associated applicable requirement. The commission is not requiring any specific emissions data to be submitted with operating permit applications, unless it is necessary for an applicability determination. Any emission rates necessary to verify compliance with an applicable requirement must be provided. The commission will also require applicants to provide a general description of the site's emissions in the process description submitted with the initial permit application. 14. Limiting a Source's Potential to Emit. In the June 7, 1995 notice, EPA stated that sec.122.122 may serve as a mechanism for sources that choose to establish federally-enforceable emission limitations during the transition period set out by EPA in a January 25, 1995, policy memorandum ("Options for Limiting the Potential to Emit (PTE) of a Stationary Source Under 112 and Title V of the Clean Air Act (Act)," John Seitz) if an acceptable certification process can be developed between Texas and EPA addressing the source's acceptance of federal enforceability (see 60 FR 30043). The commission notes that the transition period was extended from January 25, 1997 to July 31, 1998 in an August 27, 1996, policy memorandum ("Extension of January 25, 1995 Potential to Emit Transition Policy," John Seitz). Although EPA did not cite a deficiency associated with this issue and no revisions to sec.122.122 have been made, the commission is taking this opportunity to respond to EPA's comments. The commission uses a similar registration procedure in the NSR Division to establish federally-enforceable emission rates for standard exempted facilities. Under this procedure that has been used since September 13, 1993, under sec.106.6, a source may establish federally-enforceable emission rates in a registration that is maintained on-site. The certified registration of emissions established under sec.122.122 is required to be kept on-site and will be submitted to the commission or EPA upon request. These registrations would be available for inspection and review for EPA, commission, or any other air pollution control agency having jurisdiction. The commission staff believes this is an acceptable certification process and will continue to use this certification process to ensure federal enforceability for those sites limiting their potential to emit under the operating permit program. 15. Renewal of General Permits. In the June 7, 1995 notice, EPA stated that 40 CFR sec.70.4(b)(3)(iii) requires states to issue operating permits for a period not to exceed five years, and therefore the commission should limit the general operating permit term to a maximum of five years (see 60 FR 30043). In response, the commission has revised Subchapter F to require the general operating permit rules to be renewed once every five years. In addition, general operating permit holders will be required to submit applications for the renewal of their authorizations to operate at least every five years. 16. Section 122.145(e) Interpretation Shield. In the June 7, 1995 notice, EPA expressed concerns with the potential ambiguities surrounding the "interpretation shield" outlined in sec.122.145(e) and called out three specific items that had to be addressed through a written commitment by the commission prior to obtaining final interim approval (see 60 FR 30043). These items included: interpretations made under sec.122.145(e) must be limited to applicability issues only; EPA shall have the opportunity to review and veto every sec.122.145(e) action; and interpretations must be based on the most recent EPA guidance and any commission written guidance pre-approved by EPA. The commission agreed to those conditions and was granted final interim approval by EPA on June 25, 1996. For full program approval, EPA insisted that the commission revise sec.122.145(e) to reflect the three requirements mentioned. However, the commission has deleted the "interpretation shield" concept outlined in sec.122.145(e) and replaced it with a more traditional permit shield described in 40 CFR 70, sec.70.6(f). The commission believes the permit shield requirements under sec.122.148 are consistent with sec.70.6(f). 17. Emergency Provisions. In the June 7, 1995 notice, EPA stated that the notification requirements for major upsets outlined in Chapter 101 (General Rules), sec.101.6, are inconsistent with the emergency provisions of 40 CFR sec.70.6(g)(3)(iv) (see 60 FR 30043-30044). In addition, in the June 25, 1996 notice, EPA states that in order for Texas to receive full approval, 30 TAC 122 must be consistent with 40 CFR 70 (see 61 FR 32696). As discussed in the response to comments portion of this preamble, 30 TAC 122 does not provide for an affirmative defense from noncompliance for sources. However, in 30 TAC sec.101.11, the recently adopted amendments to Chapter 101 (22 TexReg 7040, July 29, 1997) do provide, conditions for an exemption of unauthorized emissions from limits in permits, rules, and orders of the commission during upsets, maintenance, and start-ups and shutdowns. The commission believes that, as the result of the amendments, sec.sec.101.6, 101.7, and 101.11 provide sufficient relevant evidence to meet the requirements of sec.70.6(g). 18. Operational Flexibility. In the June 7, 1995 notice, EPA stated that the operational flexibility section of 30 TAC 122, sec.122.221, is inconsistent with 40 CFR sec.70.4(b)(12) and sec.502(b)(10) because it could potentially allow modifications that violate what EPA considers applicable requirements (see 60 FR 30044). In addition, in the June 25, 1996 notice, EPA states that in order for Texas to receive full approval, 30 TAC 122 must be consistent with the version of 40 CFR 70 in effect at the time of full program submittal (see 61 FR 32696). As previously mentioned, EPA recently clarified this remark by stating that it is EPA's intent to provide in the final rule revising 40 CFR 70 that the criteria governing state or local program approvals will be either the original July 21, 1992, regulation or the final 40 CFR 70 revisions, or some appropriate combination of the two. As evidenced in the supplemental proposal, EPA has decided to delete the definition of FCAA, sec.502(b)(10) from 40 CFR sec.70.(2) as well as delete the reference to sec.502(b)(10) changes in 40 CFR sec.70.4(b)(12). As such, the commission has deleted the operational flexibility provisions previously contained in sec.122.221 to be consistent with the anticipated final 40 CFR 70 revisions. Operational flexibility will be provided largely through the revision process outlined in Subchapter C. 19. Off-permit Changes Compared with Permit Additions. In the June 7, 1995 notice, EPA stated that the permit addition procedures specified in sec.122.215 would allow companies to make changes that EPA does not consider "off-permit" (See 60 FR 30044). The EPA cited the commission's narrow definition of "applicable requirement" as the main problem. In response, the commission has deleted references to off-permit changes under the permit addition revision process outlined in sec.122.215 and replaced them with a new revision process that will not allow an applicant to make changes that EPA considers to be off-permit. As discussed in the section of this preamble addressing changes to Subchapter C, the revision process has been structured to be substantially equivalent to the process outlined in the July 21, 1992, 40 CFR 70. With regard to EPA's concern that the definition of applicable requirement is too narrow, the commission restates that because of the recent interim approval extension, the commission has decided not to address the issue of how minor NSR is codified in Chapter 122 at this time. Rather, the commission will continue to work with EPA, the regulated community, and the public to find a mutually agreeable solution on this complicated issue and address it in the combined program submittal 12 months after the Part 70 revisions are promulgated. 20. Four-year Permit Program Cost. (see 60 FR 30044, first and second column). In the June 7, 1995, notice, EPA pointed out that 40 CFR sec.70.4(b)(8)(v) requires the state to provide an estimate of the permit program costs for the first four years after approval and a description of how the state plans to cover the costs. The commission has provided EPA with the agency's operating budget for fiscal years 1994 and 1995. On March 11, 1997, the commission provided EPA with the approved 1996-1997 budgets, which included the estimated costs of the operating permit program (OPP) in a letter from Karen Olson, Director, TNRCC Operating Permits Division to Allyn Davis, Director, Multimedia Planning and Permitting Division, EPA Region 6. In addition, the commission will forward the budgets for 1998-2000 to EPA as they are available. Subchapter A: Definitions. Several other changes to the rule language have been made as a result of comments received from the regulated community and public interest groups. The definition of applicable requirement has been revised to remove the references to 30 TAC Chapter 114 (relating to Control of Air Pollution from Motor Vehicles) and 30 TAC Chapter 118 (relating to Control of Air Pollution Episodes), neither of which are within the scope of the federal operating permit program. In addition, the exemption, previously contained in subparagraph (L) of the definition of applicable requirement and now contained in sec.122.10(2)(K), has been expanded to clarify that requirements for mobile sources and any state- only requirements are not applicable requirements under the OPP. Furthermore, the definition of applicable requirement has been revised to include a subset of requirements termed federally enforceable only applicable requirements. Federally enforceable only applicable requirements are those applicable requirements which have been promulgated by EPA, but have not been adopted by and delegated to the commission. Until adoption by the commission, these requirements will be federally enforceable only and will be designated as such in the permit. Federally enforceable only applicable requirements will be subject to all the procedural requirements of the OPP. This designation is necessary, because although the commission does have the broad statutory authority to enforce rules, it does not have the specific regulatory authority to enforce rules until the requirements for state rulemaking, including an opportunity for public comment, have been satisfied. This issue is further discussed in the response to comments. Several other changes to the definitions have been made to accommodate revisions to the program. In order to remove any ambiguity, the definition of deviation has been tied to the monitoring, recordkeeping, reporting, and testing requirements codified in the permit. The definition for emission allowable under the permit has been removed, because this term is not used within the rule language. The definition of major source has been revised to account for any federal exemptions granted under FCAA, sec.182(f), relating to NOx requirements. For purposes of clarification, a definition for notice and comment hearing has been included in response to a request from a public interest group. The definition of preconstruction authorization has been expanded to include requirements established under FCAA, sec.112(g) and (j), which will be implemented through Texas' NSR Program. Furthermore, a definition of provisional terms and conditions has been added to address the new revision process outlined in the discussion of revisions to Subchapter C. In addition, a definition for state-only requirement has been included. Although state-only requirements are not applicable requirements, they will be codified in the permit in order to provide a more comprehensive compliance and enforcement tool. A state-only requirement is any requirement governing the emission of air pollutants from stationary sources that may be codified in the permit at the discretion of the executive director. State-only requirements shall not include any requirement required under the FCAA or under any applicable requirement. While state-only requirements will be codified in the permit, they will not be subject to any of the following requirements: public notice, affected state review, notice and comment hearings, EPA review, public petition, recordkeeping, six-month monitoring reporting, six-month deviation reporting, compliance certification, or periodic monitoring. As a result of Senate Bill 1126 enacted by the 74th Texas Legislature and the subsequent changes made to Chapter 116, the agency has decided not to address the establishment of grandfather rates through the provisions of 30 TAC 122. Consequently sec.122.11, concerning Grandfather Definitions, has been repealed. All other references to grandfather requirements, including sec.122.132(a)(5) and sec.122.135, have also been removed from the rule language. The deleted grandfather requirements did not implement any part of Title V or 40 CFR 70. Subchapter B: Permit Requirements. Section 122.110 has been added to provide for delegation of authority to the executive director to take action on any permit on behalf of the commission. In addition, the executive director may delegate authority to take action on any permit to the director of the Operating Permits Division. The initial application due dates have been revised in sec.122.130 in order to provide the executive director sufficient time to fulfill the statutory requirement to take final action on one-third of the full program applications in each of the first three years of the full program. Further discussion of the revised application dates is provided in the response to comments. The commission has also revised sec.122.130 to address application deadlines for sites that become subject to the program as the result of some action by EPA or the commission. For instance, the reclassification of a county's attainment or nonattainment status or the release of new calculation methods by EPA could cause a site's potential to emit to exceed the major source thresholds and become subject to the operating permit program. The phased application process is a new concept introduced in sec.122.131 as a result of the large number of complex sources in Texas. This approach will allow qualified applicants more time to submit accurate and complete application information and provide staff the extra time needed to thoroughly review and process the information. As agreed by EPA in the February 7, 1996, letter from Mary Nichols, EPA Assistant Administrator for Air and Radiation, the phased application process will allow applicants with 75 or more emission units in a nonattainment area, or 150 or more emission units in an attainment area, to submit a portion of their detailed applicability information in phases. All general applicability determinations (e.g., New Source Performance Standards (NSPS) Kb, or 30 TAC Chapter 111) must be submitted with the initial application. For each emission unit, the initial permit application must include detail sufficient to clarify the applicant's obligations with respect to its applicable requirements, including emission limits and compliance terms. The initial application will include a portion of the detailed applicability determinations, identifying the specific regulatory citations within the rules and regulations to which the source is subject. The remaining detailed applicability determinations will be incorporated into the permit annually through either the reopening process or the significant permit revision process. Upon renewal, any detailed applicability determinations not yet addressed in the permit will be incorporated through the renewal process. All permits will include all detailed applicability determinations by no later than July 25, 2003. The EPA is currently in the process of establishing requirements pursuant to FCAA, sec.504(b) and sec.114(a)(3) through the proposed Compliance Assurance Monitoring (CAM) rule, 40 CFR 64. Based on EPA's August 2, 1996, draft rule, CAM is anticipated to satisfy the enhanced monitoring requirements under the FCAA. The agency will review and address additional monitoring requirements when the CAM rule is promulgated. Periodic monitoring requirements will be addressed as discussed in the response to comments. Section 122.132(c) allows applicants to submit abbreviated applications. The abbreviated application will include identifying information regarding the site and the applicant as well as a certification by a responsible official. The executive director will require the remaining information to be submitted when it is needed for review of the application. Because the initial applications will be reviewed and issued over a period of several years, this approach will help minimize the number of times the applications need to be updated before the review begins. The concept of the abbreviated application is consistent with guidelines in EPA's White Paper Number 1. Further discussion of the abbreviated application is provided in the response to comments. The application compliance certification requirements in sec.122.132 have been revised to clarify that the statements of future compliance are based on the intent of the responsible official at the time of application. This revision was made because, given that there is always the possibility of unforeseen and unavoidable circumstances, the responsible official cannot reasonably be expected to make an absolute statement of future compliance. These requirements were also revised to clarify that the certification must be based on, at a minimum, any compliance method specified in the permit. Further discussion of these changes is provided in the response to comments. Additionally, the revised rule specifies that for units that are not in compliance with the applicable requirements, the certification must identify the method used to assess compliance. This information is important for staff evaluating and working to remedy instances of noncompliance. An application's timely and complete status determines whether or not the applicant qualifies for an application shield. Therefore, sec.122.133 and sec.122.134, concerning Timely Application and Complete Application, have been revised to address only those situations in which an application shield is relevant. The references to permit revisions have been removed, because the applicant is already operating under a permit and is in no need of an application shield. The commission has also revised sec.122.139 to specify that the executive director has the authority to approve, void, or deny a permit application. A new sec.122.140, concerning Representations in Application, has been adopted to clarify that for general permit applications and acid rain permit applications, representations in the applications do become conditions under which the owner or operator must operate. This clarification is important because in both these cases, it is the application in conjunction with the permit that assures compliance with the applicable requirements. The requirements in the original sec.122.143(1)(H) have been deleted. These requirements allowed the permit holder to wait until permit renewal to have newly promulgated requirements incorporated into the permit, if less than three years remained in the permit term. This change was initiated by public interest groups as a suggestion to make the requirement consistent with the revision process in Subchapter C that requires applications for administrative and minor permit revisions to be submitted annually. Section sec.122.143 has also been modified to include procedures for revising a permit to incorporate changes in federally enforceable only or state-only designations. In addition, new language has been adopted specifying that the permit (or authorization to operate, application, and a copy of the general operating permit) must be maintained at the location specified in the permit (or authorization to operate). In most cases, this information will need to be maintained on-site to assist the permit holder with compliance and the inspectors with enforcement. However, for unmanned sites this may not be practical and the permit will specify another location at which the information will be maintained. Permit requirements found originally in sec.122.143, relating to recordkeeping, reporting, and compliance certification requirements, have been moved to and clarified in sec.122.144, relating to Recordkeeping Terms and Conditions, sec.122.145, relating to Reporting Terms and Conditions, and sec.122.146, relating to Compliance Certification Terms and Conditions. As discussed in the response to comments, the frequency of deviation reporting has been revised such that deviations will be reported under Chapter 101 and as required by the applicable requirement, but never less frequently than every six months. The requirements for the annual compliance certification in sec.122.146 have been revised for clarity when certifying compliance with terms and conditions that are not based on emission limitations or standards and to address require additional information to be submitted for emission units that have had deviations. This information is necessary for staff to effectively evaluate instances of noncompliance. The certification by responsible official information has been consolidated in sec.122.165. For acid rain sources, the definition of a responsible official has been revised to allow a responsible official that does not qualify as a designated representative, to sign the Title V portion of the permit. This change is consistent with the proposed revisions to 40 CFR 70. Subchapter C: Initial Permit Issuances, Revisions, Reopenings, And Renewals. To provide adequate, streamlined, and reasonable procedures for expeditiously processing permit revisions, the commission has replaced the existing revision process under 30 TAC 122 with a process that is substantially equivalent to the July 21, 1992, 40 CFR 70 revision process. Title 40 CFR 70.7(e) specifies that for a program to be approved as substantially equivalent, it must not provide less permitting authority, EPA or affected state review, or public participation than is provided in 40 CFR 70. The 30 TAC 122 permit revision process meets or exceeds the 40 CFR 70 requirements in each of these respects. As is required by 40 CFR 70, all permit revisions will be subject to review and approval by the permitting authority. Consistent with 40 CFR 70, administrative permit revisions under 30 TAC 122 are not subject to any procedural requirements such as public notice or EPA review. Minor permit revisions will be subject to an electronically announced 30-day public comment period, an affected state review, and a 45-day EPA review; while EPA's minor permit modification process involves only EPA review and affected state review. As is required by 40 CFR 70, significant permit revisions will undergo all the procedural requirements associated with initial issuance. Those requirements are a 30-day public comment period noticed in a newspaper, affected state review, opportunity for a hearing, 45-day EPA review, and a 60-day public petition period. For each type of permit revision, the 30 TAC 122 process meets or exceeds the federal requirements based on the criteria established in 40 CFR 70 for evaluating substantially equivalent programs. The new permit revision process includes three different tracks: administrative permit revisions, minor permit revisions, and significant permit revisions. Administrative permit revisions are those of the least environmental significance and involve correcting typographical errors, changing name, address, phone, increasing monitoring frequency, etc. Minor permit revisions are of more environmental concern and involve, for example, adding new applicable requirements or removing emission units no longer in operation from the permit. Significant permit revisions, on the other hand, are of the most environmental significance and include removing requirements from emission units remaining in operation, establishing permit shields, and case-by-case determinations. The new revision process matches the environmental significance of the change to the degree and type of review required to process the permit revision. Under the new procedures, changes requiring administrative permit revisions and minor permit revisions may be operated before the permit is revised, provided certain conditions are satisfied. The procedures for making a change without prior approval, specified in sec.122.213(a) and sec.122.217(a), are optional. If the permit holder chooses not to comply with those requirements, the permit must be revised before the change can be operated. In order to make a change without prior approval, the permit holder must first obtain and comply with all required preconstruction authorizations under 30 TAC Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification. The permit holder must also comply with all underlying applicable requirements and state-only requirements. Furthermore, the permit holder must establish and maintain enforceable provisional terms and conditions that contain all the new applicable requirements and state-only requirements the source is subject to as the result of the change. The provisional terms and conditions must codify the new requirements to the same level of detail as required in the permit. Provisional terms and conditions must be consistent with and accurately incorporate the applicable requirements and state-only requirements and cannot authorize the violation of any applicable requirement or state-only requirement. The provisional terms and conditions must be maintained with the permit and become enforceable terms and conditions of the permit. In every case, the applicable requirements and state-only requirements are always enforceable. The permit holder may also be subject to enforcement action if the permit holder makes a change using one of the revision tracks and the change is later determined not to qualify as that type of permit revision. If a change qualifying as an administrative permit revision is made without prior approval, the permit holder must record, and maintain with the permit, all the information that will be required to be submitted with the application for the permit revision. If the change is a minor permit revision, the permit holder must submit a notice to the agency containing all the information required in the application before the change is made. In both cases, this information will include: a description of the change, a description of the emission units affected, the provisional terms and conditions, a statement that the change qualifies for the revision, and a certification by a responsible official. The permit holder will then collect all the changes for each year and submit an application to have the permit revised on an annual basis. This annual process allows the permit holder to consolidate the procedural requirements such as public announcement and EPA review. Through this process, staff can thoroughly review all changes qualifying as administrative and minor permit revisions once each year instead of continually processing small changes throughout the year. In addition to allowing the applicant the flexibility to make necessary changes at a site while still assuring compliance with the underlying requirements, this process allows for a more efficient use of commission and EPA resources. Changes requiring significant permit revision are the most environmentally significant and cannot be made without prior approval. These changes are subject to all the procedural requirements of initial issuance, which include public notice, affected state review, notice and comment hearing, EPA review, and public petition. Subchapter D: Public Announcement, Public Notice, Affected State Review, Notice And Comment Hearing, Notice of Proposed Final Action, EPA Review, And Public Petition. In order to provide additional access to the public, the commission has developed public announcement procedures to be used for minor permit revisions. These procedures provide a 30-day public comment period that will be announced on the Texas Natural Resource Conservation Commission bulletin board system and on the Internet. By taking advantage of electronic media, the commission is able to provide a 30-day public comment period for the middle permit revision track. This additional public comment period is not required in 40 CFR 70. The rule provides for a single publication in a newspaper of general circulation in the city where a site is located. Bilingual newspaper notices and sign postings will be provided as they are under Chapter 116. These revisions are consistent with statutory requirements and the requirements of 40 CFR 70. In a previously adopted rule, the commission has allowed a combination of the public notice of the draft permit and the notice of hearing. The rule provides that if the notices are combined, and a bilingual notice is required to be published, the complete combined notice will be published in the appropriate alternate language. In addition, since sec.122.201(e) specifies that more than one permit may be issued for a site, sec.122.320(c) was added to the rule language to clarify that references to multiple permits may be included in one public notice for the site. The public notice requirements will apply to initial issuance, significant permit revisions, reopenings, and renewals. Section 122.350(c) and sec.122.360(d) were also revised to be consistent with 40 CFR 70.8(c)(1) and to clarify that EPA can only object to the issuance of any proposed permit which is not in compliance with the applicable requirements or the requirements of this chapter. Subchapter E: Acid Rain Permits. The acid rain requirements of 40 CFR 72, 74, and 76 have been incorporated by reference into Subchapter E. The commission has not been delegated the authority to enforce the acid rain program; consequently, 40 CFR 73, 75, 77, and 78 have not been included. A provision has been added to allow the requirements in 30 TAC 122 to substitute for any references to 40 CFR 70 in 40 CFR 72, 74, and 76. This allows the executive director to implement one OPP in Texas rather than trying to implement certain aspects of the federal program while implementing the state program. In addition, language has been added to allow the acid rain portion of the permit to be revised through procedures similar to those used for revising the Title V portion of the permit. Again, this will allow the executive director to implement a single program rather than both a federal and state revision process. For purposes of clarification, the deadlines for submitting acid rain permit applications have been included in sec.122.412. Except for the application deadlines, the requirements specifically listed in the original Subchapter E that are redundant with the requirements incorporated by reference have been deleted. EPA published proposed revisions to 40 CFR Parts 72 and 74 in the Federal Register on December 27, 1996. Since these proposed revisions are not expected to be promulgated before November 1997, any consequences from the revisions will be addressed in future rulemaking. Subchapter F: General Operating Permits. The requirements for general operating permits have been consolidated in Subchapter F. General operating permits are permits for numerous similar sources which are developed through rulemaking consistent with the requirements of the Government Code, Administrative Procedure Act, Chapter 2001 or 2002. Section 122.501 was added to clearly identify which procedural requirements the general operating permits will undergo at adoption. Consistent with 40 CFR 70, the adoption of general operating permits will be subject to public notice, affected state review, notice and comment hearings, EPA review, and public petition, as are all permits issued under 30 TAC 122. Because the public notice and notice and comment hearing requirements in Subchapter D are not appropriate for permits that apply to multiple sites, public notice and notice and comment hearing requirements specifically tailored for general operating permits have been included in sec.122.506 and sec.122.508. Since representations in a general operating permit application become conditions under which the permit holder must operate, procedures for revising the application to address changes at a site have been included in sec.122.503. Section 122.504 has also been added to specify the requirements for reapplying for a general operating permit that is revised. Both the procedures for changes at a site and changes in rules require the permit holder to establish provisional terms and conditions to ensure the general operating permits in conjunction with the applications are a current representation of the requirements at the site. Section 122.505 has been included to address procedures for renewing the authorizations to operate under a general operating permit. Further discussion of these requirements is provided in the response to comments. TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact assessment for the rules under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The commission was granted interim program approval in the June 25, 1996, issue of the Federal Register (61 FR 32693). Interim program approval provides the commission with the authority to implement the OPP in Texas for two years. On August 29, 1997, the EPA automatically extended all operating permits program interim approvals until October 1, 1998 (62 FR 45732). In addition, states may also request an addition extension (between 18 and 24 months) if they choose to combine corrections to their interim approvals with program revisions necessary to implement the revisions to Part 70 which are expected to be promulgated mid-summer of 1998. The commission intends on requesting the additional extension immediately after the Part 70 revisions are promulgated. Assuming no statutory changes are required by the Part 70 revisions, the commission would receive an additional 18-month extension after the date the Part 70 revisions are promulgated. As a result of the extension, interim approval deficiencies do not have to be corrected until the commission submits its combined program submittal (addressing interim approval deficiencies and Part 70 revisions). However, the commission has attempted to correct the majority of deficiencies noted by EPA in the proposed rulemaking. In some cases, the commission has elected to wait until the combined program submittal to correct more difficult and complicated deficiencies. Specifically, the commission has decided to postpone determining how minor NSR will be codified in Chapter 122. Until that time, the commission will continue to work with EPA, the regulated community, and the public to find a mutually agreeable solution on this complicated issue. The purpose of this rulemaking is to address comments received from EPA, the regulated community, and public interest groups. The rules will achieve their stated purpose by addressing most of EPA's comments from the interim program approval notice and allowing options in permit application review and post permit processes. The rules will not be considered a burden on private real property because they are mandated by federal law. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. The commission has determined that the this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et. seq.), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this rulemaking action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and has determined that this rulemaking action is consistent with the applicable CMP goals and policies. The permits issued under 30 TAC 122, concerning Federal Operating Permits, do not authorize the increase in air emissions nor do these permits authorize new air emissions. HEARING AND COMMENTERS. A public hearing regarding the proposed rules was held in Austin on June 12, 1997. No oral testimony was received at the hearing. The public comment period closed June 20, 1997. Six commenters submitted written comments on the proposal. One individual commenter opposed the proposal overall while the following five commenters suggested changes without directly stating their overall position on the proposal: the EPA; Central and South West Services, Inc. (CSWS); the Texas Chemical Council (TCC); the Sierra Club; and the Title V Planning Committee (TVPC), an organization comprised of a representative cross-section of the regulated community. An individual requested that the entire proposal be withdrawn, revised, and submitted for public comment. The individual also requested that a series of public meetings be held on this issue. The commission held a 30-day public comment period on the proposed rules during which one individual and one public interest group, in addition to three industry organizations and EPA submitted comments. On June 12, 1997, a public hearing announced in six major Texas newspapers, the Texas Register, and on the Internet, was held at which no testimony was presented. The commission understands that individuals and public interest groups may have limited resources for participating in the rulemaking process and greatly appreciates the time and effort these individuals and groups are able to contribute to the process; however, the commission does not believe that there is sufficient basis to warrant withdrawal of the proposal and additional public meetings. The EPA recently extended the deadline for submitting requests for full program approval to April of 1998 and indicated that an additional extension to October of 1999 may be granted; however, the extension does not allow states to postpone the permitting of full program sources and the 30 TAC 122 revisions include provisions providing the authority to permit these sources. Consequently, staff believes that it is important to move forward with revisions to 30 TAC 122 to address the interim program deficiencies to the extent possible at this time and to provide the authority to permit full program sources. In addition, the revisions will ensure that the permits issued under the extension are more consistent with the direction received from EPA in the proposed and final interim program approval notices. Therefore, the commission did not withdraw the proposal. CSWS commented that it was unable to locate "Chapter 3 of this title," referred to in the introductory paragraph of sec.122.10. 30 TAC Chapter 3 is the chapter that contains definitions that apply agency- wide. The proposed rules did not involve changes to this chapter; therefore, it was not published along with the proposed revisions to Chapter 122. For information on accessing electronic or hard copies of commission rules, please contact the Texas Natural Resource Conservation Commission, Office of the Executive Director, Agency Communications Division, Publishing Section at (512) 239-0028. The commission rules are also available at libraries that maintain copies of the Texas Administrative Code or the Texas Register, from the Office of the Secretary of State, or West Publishing Company, which publishes the Texas Administrative Code. An individual commented that it was not clear in sec.122.10 that the definition of "air pollutant" was broad enough to encompass all of the air pollutants that may need to be regulated in the future. The commission agrees that the definition should be broad enough to encompass air pollutants regulated in the future and believes that the proposed definition is sufficiently broad. Because the definition is based primarily on the types of rules a pollutant is subject to, when a new rule is established, any pollutant regulated under that rule automatically becomes an air pollutant as defined in this chapter. In addition, this definition is consistent with the federal definition of "regulated air pollutant" in 40 CFR 70. Therefore, no change has been made in response to this comment. EPA commented that subparagraph (I) of the definition of Applicable requirement states that minor NSR requirements will not be incorporated into the operating permits until rulemaking is completed on the revised chapter for "new construction or modification" and EPA approves these revisions into the State Implementation Plan (SIP). EPA maintains that this condition must be deleted. Currently, EPA notes that the state has a minor new source pre-construction program, which EPA has approved into the SIP. Until EPA takes final action on any SIP revision submitted by the state, EPA maintains that the requirements of the current approved SIP are applicable requirements for Title V purposes. Thus, in order to gain full approval, EPA states that the final rulemaking must make clear that minor NSR requirements approved into the SIP are presently applicable requirements of operating permits and the OPP, and that SIP-approved minor NSR requirements must be incorporated as applicable requirements into operating permits at the time of permit issuance like any other SIP requirement. As previously mentioned, EPA promulgated an extension of states' interim program approvals on August 29, 1997 (see 62 FR 45732). The extension automatically extends all operating permits program interim approvals until October 1, 1998. In addition, states may also request an additional extension (between 18 and 24 months) if they choose to combine corrections to their interim approvals with program revisions necessary to implement the revisions to Part 70 which are expected to be promulgated mid-summer of 1998. The commission intends to request the additional extension immediately after the Part 70 revisions are promulgated. Assuming no statutory changes are required by the Part 70 revisions, the commission would receive an additional 18-month extension after the date the Part 70 revisions are promulgated. As a result of the extension, interim approval deficiencies do not have to be corrected until the commission submits its combined program submittal (addressing interim approval deficiencies and Part 70 revisions). However, the commission has attempted to correct the majority of deficiencies noted by EPA in the proposed rulemaking. In some cases, the commission has elected to wait until the combined program submittal to correct more difficult and complicated deficiencies. Specifically, the commission has decided to postpone determining how minor NSR will be codified in Chapter 122. Until that time, the commission will continue to work with EPA, the regulated community, and the public to find a mutually agreeable solution on this complicated issue. EPA also commented that in sec.122.10, subparagraph (J)(ii) of the definition of Applicable requirement should not exclude FCAA, sec.112(g) and (j). Because FCAA, sec.112(g) and (j) are federal requirements that implement relevant requirements of the FCAA, the commission agrees that they should be applicable requirements under Chapter 122. The commission has made this change as requested. EPA commented that there is no basis for designating requirements that have been promulgated by EPA but not adopted by and delegated to the state as federally enforceable only. EPA also stated that Texas was granted interim approval based on the representation that the state has adequate authority to issue permits and enforce all permit terms and conditions, including applicable requirements. EPA referenced 40 CFR 70 requirements that "the laws of the State...provide adequate authority to carry out all aspects of the program" and the state must have adequate legal authority to "assure compliance with each applicable requirement," and to "incorporate into permits all applicable requirements." For these reasons, EPA concluded that the "federally enforceable only" limitation must be deleted from 30 TAC 122. The commission believes that EPA has created the need for this designation by retaining enforcement authority of the acid rain program and stratospheric ozone requirements. For example, the acid rain requirements must be codified in the operating permit; however, since EPA is not delegating enforcement of the acid rain program, those requirements must be identified as federally enforceable only. Furthermore, the commission does have broad statutory authority to enforce federal applicable requirements; however, the commission must complete rulemaking to adopt the specific regulatory authority upon which to base any enforcement action. The commission plans to adopt new federal rules such as the Maximum Available Control Technology (MACT) standards as soon as possible. It is the intent of the commission that before these requirements must be incorporated into any permit, state rulemaking will be completed and the designation will not be necessary. However, the designation will be necessary for those requirements for which EPA is not delegating enforcement authority. Compliance with federally enforceable only requirements will be assured, just as it is for any other applicable requirement, through the detailed codification in the permit of the monitoring, testing, recordkeeping, and reporting requirements contained in the federal rule. Compliance will be further assured through the codification of the recordkeeping, six-month monitoring reporting, deviation reporting, and compliance certification requirements of this chapter. The federally enforceable only designation in no way interferes with the executive director's ability to incorporate into permits all applicable requirements and the compliance assurance methods associated with those standards. For these reasons, the commission has not deleted the federally enforceable only designation. The commission received several comments regarding the proposed state-only requirements. EPA commented that the requirements listed as state-only included requirements in the SIP, and those requirements would be considered applicable requirements and thus federally enforceable. The commission has revised the rule to remove the rule citations from the definition of state-only requirement, except sec.sec.111.131-111.139. However, the commission has retained a revised definition for state-only requirement, consistent with 40 CFR sec.70.6(b)(2), to accommodate any requirements that may qualify as state-only. Because there is no longer a need to specifically identify portions of the regulations as either applicable requirements or state- only requirements, the definition of Applicable requirement has been revised to reference the regulations generally and provide exceptions in subparagraph (K) for those requirements not within the scope of the OPP, such as requirements for mobile sources. In addition, the reference to 30 TAC Chapter 113 has been expanded to include the MACT standards the commission is currently in the process of adopting. 30 TAC Chapter 117, Subchapter D, addressing compliance dates, has also been included in the definition of Applicable requirement. The only requirements that are state-only at this time are those in sec.sec.111.131- 111.139 as specified in the proposed rule. The commission recently requested that EPA not incorporate sec.sec.111.131-111.139 into the SIP since they were not written to satisfy a federal requirement. EPA has concurred and will not take any further action to include these sections in the SIP. TCC and TVPC both commented that they did not believe that it was appropriate for state-only requirements to be subject to Title V procedural requirements such as public notice, affected state review, notice and comment hearings, recordkeeping, and six-month monitoring reporting. In addition, CSWS requested clarification regarding which requirements apply to state-only requirements. The commission agrees with the commenters and has specified in sec.122.143(20), consistent with 40 CFR 70, that any requirement designated as state-only will not be subject to any of the following requirements of 30 TAC 122: public notice, affected state review, notice and comment hearings, EPA review, public petition, recordkeeping, six-month monitoring reporting, six-month deviation reporting, compliance certification, or periodic monitoring. Because state-only requirements are not subject to public notice, EPA review, etc., any changes regarding state-only requirements will be processed as administrative permit revisions, which are the only types of revisions that are not subject to these procedural requirements. TCC and TVPC suggested revising subparagraph (B) of the definition of State-only requirement and subparagraph (G) of the definition of Applicable requirement to correct three flaws. First, they were concerned that these subparagraphs, which specified that any new requirement in Chapters 111, 112, 113, 115, 117, and 119 would be applicable requirements unless identified in rulemaking as state-only requirements, were written under the assumption that all requirements in those regulations would be either state-only or applicable requirements. The commenters pointed out that requirements such as sec.111.111(a)(5) and (6) relate to automobiles, locomotives, and ships and, therefore, are neither applicable requirements nor state-only requirements under the OPP. To address this concern, the commenters requested that the rule be revised to specify that new requirements would be applicable requirements only if designated as such in the new regulation. The commenters also stated that the term "new" could create confusion in the future and recommended referring to the effective date of the rule instead. Finally, the commenters believed that the use of the word "rulemaking" was ambiguous because it could refer to either the rule or the preamble and requested it be replaced with the word "rule." The commission agrees that the rule should clarify that requirements for mobile sources are not within the scope of the operating permits program. To address this concern, the commission has modified the exemption in the definition of Applicable requirement, subparagraph (K) such that it excludes requirements for mobile sources as well as state-only requirements. The commission also agrees that the suggested changes regarding the use of the word "new" and "rulemaking" provide additional clarity; however, due to other changes to the definition of Applicable requirement, the proposed subparagraph (G) is no longer necessary and has been deleted. Subparagraph (G) was proposed because the proposed definition of Applicable requirement referenced specific sections of 30 TAC 111 and 112 rather than the rules as a whole; consequently, any new sections adopted under those chapters would not have been included in the definition of Applicable requirement. TCC and TVPC also requested that Chapter 117, Subchapter E be designated as a state-only requirement instead of an applicable requirement. The commission believes that Chapter 117, Subchapter E contributes to the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS), and has determined to continue relying on it for demonstration of attainment and maintenance of the NAAQS; therefore, Subchapter E will not be designated as state-only. An individual commented that in sec.122.10, the phrase "or by an inspector who has documented noncompliance" should be added to the definition of Deviation. The commenter was concerned that the definition did not specify that photographs or inspection reports may be used to document noncompliance. The term "Deviation" identifies the type of an event that indicates that an emission limitation or standard may not have been met, not who can make the finding or how that finding can be documented. Documentation of the event would be based on the monitoring method required to be used, and would not preclude anyone from identifying a deviation based on at least the required monitoring method specified in the permit. Texas Health and Safety Code, sec.382.016(b) provides, in part, that, "[a] member, employee, or agent of the commission may examine during regular business hours any records or memoranda relating to the operation of any air pollution or emission control equipment or facility, or relating to emission of air contaminants." Therefore, the commission has made no change in response to this comment. CSWS commented that in sec.122.10 the definition of Draft permit should be revised to include the review time period to be consistent with the other permit definitions. The commission agrees that the length of the public comment period should be included in the definition of Draft permit for consistency, and has made this change. Regarding the definitions in sec.122.10, the Sierra Club and an individual commenter stated that fugitive emissions should be considered in determining whether a source is major. The commission agrees that in some cases fugitive emissions should be considered in determining whether a source is major. Fugitive emissions are required to be considered if the source belongs to one of the 27 source categories identified in the definition of Major source. This is consistent with EPA's approach for determining major source status for Title V as well as Prevention of Significant Deterioration and nonattainment. Therefore, the commission has made no change in response to this comment. An individual commenter disagreed with subparagraph (G) of the definition of Major source in sec.122.10. This subparagraph states that emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units to determine whether the units or stations are major sources under FCAA, sec.112. The commission understands the commenter's concern; however, not only is this language taken directly from 40 CFR 70, but it is also a statutory requirement established by the United States Congress in FCAA, sec.112(n). For this reason, the commission has made no change in response to this comment. CSWS requested definitions in sec.122.10 for the terms "federal operating permit" and "general operating permit." The commission has clarified that the definition of Permit also applies to Federal operating permit and provided a definition for General operating permit. TCC and TVPC requested a definition in sec.122.10 for Reopen. To be consistent with the definitions of Renewal and Revision, the commission has provided a definition for Reopening in response to this comment. Again regarding the definitions in sec.122.10, the Sierra Club commented that when there are many similar facilities in close proximity, they should be considered a single source. The commission agrees that many similar facilities in close proximity should generally be considered a single source when determining major source status. The definition of Major source is based on the definition of Site, which specifies that sites must be contiguous or adjacent and under common control to be considered a single source. These criteria were specified in 40 CFR 70; however, 40 CFR 70 requires that the sources also belong to the same major industrial grouping (i.e., two-digit Standard Industrial Classification (SIC) number) to be considered a single source. The sec.122.10 definition does not use this final qualifier and is therefore more inclusive than the federal requirement. The commission believes that the intent of this comment has already been accomplished and has made no change in response to this comment. CSWS requested that the title of sec.122.120, "Who Shall Apply for a Permit," be changed to "Applicability" for consistency with other permit regulations. The commission agrees with this recommendation and has changed the title as requested. TCC and TVPC suggested language for sec.122.130(c)(1) to more clearly define when applications are due for sources that become subject to the requirements of this chapter after the effective date of the full or interim program. The commission agrees that the suggested language is more clear; however, due to inconsistencies with other parts of the regulation, this language has been significantly revised. The language in the proposed rule required applications to be submitted within 12 months of the issuance of a preconstruction authorization. At the same time, sec.122.121 specified that no source subject to the requirements of this chapter could operate without a permit or an application shield. The commission believes that for the operating permit program, it is more appropriate to base the application deadline on operation rather than preconstruction. The commission has revised the language to require owners and operators to submit applications before the source begins operation. This will eliminate the confusion regarding when applications are due for sources that are not yet operating or constructed within 12 months. Abbreviated applications may be used to meet this application deadline and the Operating Permits Division staff will work with NSR staff to ensure that owners and operators are aware of the operating permit application deadline before their preconstruction authorizations are issued. TCC and TVPC recommended language regarding the phased application process in sec.122.131(a) to clarify that units in all the initial applications for the site would be considered in determining eligibility for the phased process. The commission agrees that the recommenced language more clearly reflects the intent of the commission and has made the change as requested. TCC and TVPC had three concerns with the phased application requirements in sec.122.131(b). First, they were concerned that the reference to sec.122.132(e)(3) might be interpreted to require some portion of the detailed citations for every emission unit. All the high-level applicability determinations (i.e., the rules the source is subject to) for all emission units will be included in the initial permit. The detailed citations within the rules, required by sec.122.132(b)(3), will be included for a portion of the emission units, and phased in for the remaining units, in accordance with a schedule in the permit. The commission has revised the language in sec.122.131(b) as requested in order to make the intent more clear. TCC and TVPC also suggested that the discussion of the proposed phase-in schedule in sec.122.131(b) reference the citation requiring a proposed schedule in sec.122.132. The commission believes that the requirement is clear without the reference to sec.122.132. In order to be consistent with regulatory reform and avoid unnecessary internal references, the commission has made no change in response to this comment. Finally, TCC and TVPC requested that in sec.122.131(b) the statement "the initial permit application must include detail sufficient to clarify the applicant's obligations with respect to its applicable requirements..." be deleted or reworded to specify that the high-level applicability determinations under sec.122.132(e)(2) would be sufficient to clarify these obligations. All general applicability determinations will be included in the initial application for all emission units; and the portion of the detail that is phased in will be determined by whether it is needed to clarify the applicant's obligations with respect to the applicable requirements. The commission believes that this criteria is necessary to assure EPA's approval of the phased process and, therefore, has not revised this language. TCC and TVPC commented that the last part of the sentence in sec.122.131(d) which refers to the reporting period is inappropriate in the section on the phased application process. The commission agrees that because there is no reporting required by the phased application process, this reference was inappropriate. This language has been deleted as requested. TCC and TVPC commented that the requirement in sec.122.131(e) to incorporate all phased applicability determinations into the permit by permit renewal seems superfluous, since the rule also contains the requirement that the detail be incorporated in the permit by July 25, 2003; and it is not likely that permit renewal for a phased permit would ever occur before July 25, 2003. The commission agrees that for full program sources, permit renewal will not occur before July 25, 2003. However, since permit renewal could occur before July 25, 2003, for interim program sources, some phased permits may be required to contain all detailed applicability determinations upon renewal. For this reason, and to assure EPA's approval of the phased process, the renewal deadline will be retained. TCC and TVPC requested that in sec.122.132(a) the word "any" be removed from "any information" and "any applicable requirement" and the word "business" be added to read "confidential business information." The commission does not believe that the removal of the word "any" from sec.122.132(a) would change the meaning of the subsection. In addition, this language was approved by EPA in 1996 for the interim operating permit program; therefore, the commission has not revised the rule in response to this comment. Regarding the second comment on sec.122.132(a), the commission has not added the word "business" to "confidential information" because this requirement is governed by Chapter 1, concerning Purpose of Rules, General Provisions, which addresses confidential information rather than confidential business information. However, the commission has included a reference to Chapter 1 in this subsection in order to direct readers to the requirements governing confidential information. TCC and TVPC submitted comments regarding the provision for abbreviated applications in sec.122.132(c). Both commented that "at the discretion of the executive director" should be deleted from the provisions in sec.122.131(c) and sec.122.134(c) allowing abbreviated applications. The commenters mentioned that this would be consistent with their understanding that the staff was considering recommending that all sources submit abbreviated applications early for resource planning purposes. The commission agrees that it is appropriate to delete "at the discretion of the executive director" from these citations. As discussed in the preamble to the proposed rule, staff has evaluated the required processing time for the interim program applications to determine whether the proposed application dates would provide the executive director sufficient time to meet the statutory requirement to issue one-third of the full program permits each of the first three years of the full program. The commission has revised sec.122.130(b) to require all full program sources to submit abbreviated applications by February 1, 1998, in order to allow for more thorough implementation planning and resource allocation for the full program. The February 1st deadline is also the date by which a source must establish any potential to emit limit which will be used to avoid the requirement to submit an application. The commission has specified in the rule that the remaining application information for sources belonging to the specified SIC major groups and sources applying for general operating permits will be required by July 25, 1998. For all other full program sources, the remaining application information will be submitted upon request by the executive director. The executive director will provide a reasonable length of time for submitting this information. TVPC also requested that the name "abbreviated application" be changed to "initial application." The commission believes that the term "initial application" would be inappropriately associated with the term "initial permit" used throughout the regulation. To avoid this confusion, the commission will retain the term "abbreviated application." In addition, TCC and TVPC both suggested language defining the content of the abbreviated application. In response to this comment, the commission has specified in sec.122.132(c) that the abbreviated application will include at a minimum identifying information regarding the site and the applicant and a certification by a responsible official. The Sierra Club and an individual commenter objected to the provisions in sec.122.132 and sec.122.134 allowing an abbreviated application. The individual commented that a list of all units subject to the program should be submitted initially. Both commenters were concerned that the abbreviated application would restrict the public's access to the information required by sec.122.132. An abbreviated application will include general identifying information regarding the site and the applicant and a certification by a responsible official. Then, once staff begin reviewing the application, all the remaining information required by sec.122.132, including the identification of all emission units, will be requested and submitted. All the information required by sec.122.132 will be available to the public before and during the public comment period. In addition, the staff is currently exploring options for notifying the public through electronic means when the remaining information has been submitted. The commission has revised sec.122.130(b) to require all full program sources to submit abbreviated applications by February 1, 1998, in order to allow for more thorough implementation planning and resource allocation for the full program. Once the technical information is submitted, the applicant must update the application as necessary to keep it current. Consequently, if the commission did not provide for abbreviated applications, the applicant could be obligated to update the application several times before the application review even begins. To reduce unnecessary paper work and processing time, and to allow for planning and resource allocation, the commission will continue to provide for abbreviated applications. EPA commented that it was not clear how fugitives were addressed in the permit and the permit application. EPA also stated that the permit application should contain enough information to determine major source status, and to verify the applicability of 40 CFR 70 or an applicable requirement. In addition, EPA stated that a general description of fugitive emissions not subject to any applicable requirement must be provided, as well as the quantification of fugitive emissions subject to an applicable requirement. However, EPA also specified that unless a source stipulates to the applicability of a requirement and/or its major status, the state must preserve its ability to require quantification of fugitive emissions as necessary to determine whether a particular requirement is applicable or whether a source is major for a particular pollutant. Fugitive emissions will be addressed in the application and permit wherever they are required to determine applicability (sec.122.132(2) and (3)) or are necessary to codify an applicable requirement (sec.122.142(b)(2)). In response to EPA's comment regarding program applicability, the permit application is not the appropriate place to verify major source status and applicability to 40 CFR 70, because those affirmative determinations have already been made when the application is submitted. The executive director verifies major source status through the authority in Chapter 101, concerning General Rules. This verification occurs outside of the application review process so that sources that may be subject to the program, but have not submitted applications can be identified. Regarding applicability of requirements, sec.122.132(a), (e)(2)(C), and (e)(3)(B) do require any information necessary to determine whether a particular requirement, including any fugitive requirement, is applicable. The executive director also has the authority to request any additional information necessary to evaluate or take final action on the application in sec.122.136(d). Finally, by the act of submitting an application, the owner or operator has acknowledged the source's major source status; therefore, as EPA has stated in its comment, quantification of fugitives for determining major source status is not necessary. TCC and TVPC recommended that the application certification language in sec.122.132(e)(4)(A) be revised to be based on information and belief formed after reasonable inquiry to be consistent with the language in sec.122.165. The commission agrees that two different certification statements are not necessary and has revised the rule to rely exclusively on the certification language in sec.122.165 for the entire application. EPA stated that the compliance plan required with the initial application in sec.122.132(e)(4) must include a statement that the source will continue to comply with applicable requirements that become effective during the permit term, consistent with 40 CFR sec.70.5(c)(8). The commission agrees to require the following statement in the application: "As the responsible official it is my intent that all emission units shall continue to be in compliance with all applicable requirements they are currently in compliance with, and all emission units shall be in compliance by the compliance dates with any applicable requirements that become effective during the permit term." The commission believes that this statement of intent is appropriate, because the responsible official cannot rule out at the time of application all unforeseen and unavoidable circumstances that may result in noncompliance. EPA commented that in sec.122.132(e)(4) the responsible official must certify to compliance, not apparent compliance, with the applicable requirements. Based on this comment, the commission has deleted the word "apparent" from sec.122.132(e)(4) and (5) and sec.122.146(5). EPA commented that the basis of the compliance certification in sec.122.132(e)(4)(B) cannot be limited to the compliance methods specified in the applicable requirements, and must be based upon consideration of "credible evidence" as well as any compliance method specified in the applicable requirements. The commission agrees to allow compliance methods in addition to those established in the operating permit to be used to certify compliance. However, the commission believes that to adequately assure compliance with the applicable requirements and the permit, the certification must be based on, at a minimum, those compliance methods specified in the applicable requirement or the permit. Therefore, sec.122.132(e)(4)(B) and sec.122.146(3) have been modified to require that the certification be based on, at a minimum, any compliance method specified in the applicable requirement or permit as appropriate. The qualifier "at a minimum" has also been included in the definition of Deviation for consistency. EPA also commented that sec.122.132(e)(4)(C), noting the information required for sources having emission units not in apparent compliance, lacks two statements required by 40 CFR sec.70.5(c)(8)(iii): a statement that the source will continue to comply with applicable requirements which the source is complying with and a statement that the source will meet in a timely manner applicable requirements that become effective during the permit term. To be consistent with 40 CFR sec.70.5(c)(8)(iii), EPA stated that sec.122.132 must be revised to include this language. As discussed previously, the commission has revised sec.122.132(e)(4) to include statements of intent regarding future compliance. These statements apply to all emission units in the application, including those out of compliance, and to avoid redundancy, they have not been repeated in sec.122.132(e)(4)(C). TCC and TVPC commented that in sec.122.132(e)(8) it was not logical to require in the initial application any information requested by the executive director to determine whether to grant a permit shield. The commenters stated that at the time the initial application is submitted, the executive director will not have had the opportunity to request information regarding the permit shield and the applicant will therefore not know what to submit. The initial application includes not only the information first submitted but also any information submitted in response to requests for information during the processing of the application. In addition, the director will provide clarification on the types of information that may be required for a permit shield in guidance documents. Consequently, no change to the rule language has been made in response to this comment. The Sierra Club, an individual, and EPA objected to the requirement appearing throughout the rule (including sec.sec.122.132, 122.146, 122.210, 122.243, and 122.501) that information be submitted to EPA upon written request. The EPA requested that instead the rule require the information to be made accessible by electronic means; while the other two commenters requested that the information be automatically submitted to EPA. This language was added to the rule because it was the executive director's understanding that EPA staff did not want to automatically receive this large volume of information. It is the intent of the executive director to provide EPA electronic access to application and permit information through the information management system. However, if the regulation specified electronic access, and the system failed, the regulatory requirement would be violated. Therefore, to address concerns that the information may not be readily available, the rule language has been revised to specify that the information "will be made accessible to the EPA" and the requirement for EPA to request the information in writing has been deleted. The Sierra Club and an individual objected to the language in sec.122.134(a) specifying that an application is considered complete on the 61st day after receipt unless the executive director has notified the applicant of incompleteness. This default completeness is required by 40 CFR sec.70.5(a)(2). Furthermore, the executive director always has the authority, under sec.122.136(d), to request additional information after the application has been deemed complete. The applicant is also obligated under sec.122.136(b) to correct the application no later than 60 days after discovering any omissions or errors. Therefore, default completeness will not interfere with the executive director's ability to receive and evaluate information. For these reasons, the rule language has not been revised in response to this comment. TCC and TVPC commented that the requirement in sec.122.136(c) to submit information addressing any additional requirements the site becomes subject to, should specify that the information be submitted within a certain time period, such as within 60 days. The commenters also suggested that rather than requiring updates whenever the site becomes subject to new requirements, the commission might consider requiring one complete update once the executive director is ready to begin the application review. The commission agrees that it is appropriate to include a 60-day deadline for submitting this information and has revised sec.122.136(c) accordingly. In addition, the commission understands the concern that applicants should not be required to continually update an application before the executive director is prepared to begin the application review. The commission believes that this concern will be addressed by the abbreviated application. However, the commission has clarified in sec.122.136(c) that if only an abbreviated application has been submitted, information regarding any new applicable requirement is not required to be submitted before the remaining information is requested by the executive director. An individual commented that the word "may" in the provision in sec.122.136(d) stating "...the executive director may request the information in writing..." should be changed to a shall. The commission understands that the "may" in this provision could imply that in some cases the information, or the request, will be in writing and in some cases it will not. Because sec.122.132 and sec.122.165 require any application information to contain a certification by a responsible official, the transmitted information will always be in writing. Therefore, the commission believes that the commenter's concern has already been addressed. Because the "in writing" does not provide any additional authority and has created confusion, it has been deleted from this subsection. EPA commented that the requirement in sec.122.142(c) that the permit contain periodic monitoring as required by the applicable requirements does not satisfy the periodic monitoring requirements of 40 CFR 70. EPA stated that periodic monitoring consistent with 40 CFR sec.70.6(a)(3)(B) must be included in the permit content requirements. In response to this comment, sec.122.142 has been revised to provide the executive director the authority to implement periodic monitoring sufficient to assure compliance with the applicable requirements. EPA commented that sec.122.143 does not state as a general term and condition of the permit that where an applicable requirement of the FCAA is more stringent than an applicable requirement under Title IV of the FCAA, both provisions are to be incorporated into the permit. EPA stated that to be consistent with 40 CFR 70, sec.122.143 must include this provision from 40 CFR sec.70.6(a)(1)(ii). In response to this comment, the commission has included a provision consistent with 40 CFR sec.70.6(a)(1)(ii) in sec.122.142. EPA stated that in sec.122.143, it is not clear whether site-specific SIP requirements issued under FCAA, Title I are required to be in the permit. The commission acknowledges that this was an oversight and has, rather than revising sec.122.143, revised the definition of Applicable requirement to include site- specific SIPs. TCC and TVPC requested clarification in sec.122.143(10) that the commission, rather than any permit holder, will incorporate new applicable requirements and new state-only requirements into general operating permits. The commission agrees that the commission rather than the permit holder will initiate revisions to general operating permits and understands the commenters' concern with the identified rule language. However, the commission has also determined that the requirements in this paragraph are already addressed under permit revisions and are not necessary in this section. Therefore, consistent with the requirements in 40 CFR 70, this language has been deleted from sec.122.143 (concerning General Terms and Conditions). EPA commented that the recordkeeping requirements in sec.122.144 must be expanded to include all monitoring information required by 40 CFR sec.70.6(a)(3)(C)(ii). In response to this comment, the commission has revised the recordkeeping requirements in sec.122.144 to be consistent with 40 CFR sec.70.6(a)(3)(C)(ii). TCC and TVPC commented that sec.122.144(3) should be revised to be consistent with sec.122.143(17), which allows information for general operating permits to be maintained at the location specified in the authorization to operate. Since the general operating permit is promulgated by rule, it cannot specify where records shall be kept for each applicant. The commission agrees that the proposed language was inconsistent with sec.122.143(17) and has revised sec.122.144(3) accordingly. EPA commented that sec.122.145 does not contain general permit terms as required by 40 CFR sec.70.6(a)(6)(i)-(iii). These 40 CFR 70 terms address the requirements that permits must include provisions stating that the permit holder must comply with all conditions of the permit, and provisions stating that the permit may be modified, revoked, reopened, and reissued, or terminated for cause. Section 122.143(4) is a permit term which states that the permit holder shall comply with all terms and conditions of the permit and any provisional terms and conditions required to be included with the permit. Section 122.143(8) is a permit term stating that the permit may be revised, reopened for cause, or terminated. The commission has expanded sec.122.143(4) to include a statement consistent with 40 CFR sec.70.6(a)(6)(ii) that it shall not be a defense in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to comply with the permit terms and conditions of the permit. Therefore, all the requirements of 40 CFR sec.70.6(a)(6)(i)-(iii) are reflected in the final rule. EPA stated that sec.122.145 does not contain a permit condition prohibiting emissions exceeding any allowances that the source holds under FCAA, Title IV and sec.122.145 must be revised to include this provision. In response to this comment, the commission has included the language consistent with 40 CFR sec.70.6(a)(4) in sec.122.143. TCC and TVPC believed that sec.122.145(B) could potentially require duplicate reporting and requested the language be revised to specify that if the applicable requirement specifies monitoring reporting on a calendar quarter or semiannual basis, such reporting would satisfy the requirements of this chapter. CSWS also expressed concerns that the proposed rule required reporting redundant with reporting required by the federal acid rain program. The commission agrees that redundant reporting should not be required, and has revised the language to more clearly state that, if an applicable requirement requires reporting on a different but more frequent basis, that reporting can be used to satisfy the requirements of this chapter. CSWS requested that the deviation reporting requirements in sec.122.145 be revised to clarify that deviation reporting is not required for six-month periods in which no deviations occur. The commission agrees that deviation reporting should not be required for periods during which there have been no deviations and has made this clarification. The commission points out that whether or not deviations have occurred, the annual compliance certification requires a positive statement relative to compliance for all emission units covered by the permit. The EPA commented that it does not consider the reporting of deviations every six months to be prompt, as required by 40 CFR sec.70.6(a)(3)(iii)(B). EPA suggested that reporting of deviations within 24 to 48 hours would be more appropriate and stated that the rule must be revised to require a shorter time period for the prompt reporting of deviations. 40 CFR sec.70.6(a)(3)(iii)(B) requires the permitting authority to define "prompt" in relation to the degree and type of deviation likely to occur and the applicable requirements. The commission has required the most significant deviations to be reported within 24 hours under the unauthorized emissions, upset or maintenance, start-up, and shutdown requirements of Chapter 101. Deviations must also be reported as required by any underlying requirement. The commission then requires those deviations of least significant concern to be reported at least every six months. These are only those deviations that do not meet the criteria to be reported within 24 hours and are not required to be reported more frequently by any underlying requirement. This approach involves three levels of deviation reporting based on the degree and type of deviation likely to occur and the applicable requirements. If the commission were to require every deviation, regardless of its significance, to be reported within 24 hours, it would be extremely difficult for staff to quickly identify serious instances where the executive director needs to take immediate action. In addition, through post-1990 NSPS, EPA itself has set a precedent for allowing some deviations to be reported within six months. Furthermore, because the six- month deviation report will include not only a description of all deviations reported on the six-month schedule but also a reference to any deviations submitted under Chapter 101, this report will be a comprehensive record of all deviations that occurred over the previous six months. Receiving the information in this consolidated manner will allow staff to easily identify problem trends that need to be addressed. This comprehensive list provides more relevant information regarding how well a source is complying with the applicable requirements than individual reports of each minor deviation would. For these reasons, the commission will continue to require the most serious deviations to be reported within 24 hours and allow other deviations to be reported at a frequency consistent with the reporting requirements in the permit. In every case, deviations would be reported on at least a six-month, if not more frequent, schedule. The rule language has been revised in sec.122.145(3) to clarify that even if a deviation is exempt from being reporting under Chapter 101, the six-month deviation reporting requirements in sec.122.145(2) still apply. EPA commented that it was not clear whether the requirements in Chapter 101, referenced in sec.122.145(3), constitute an affirmative defense for noncompliance with the applicable requirements in the event of an emergency. EPA stated that the commission must clarify whether an affirmative defense may be used in the state. Furthermore EPA specified that should an affirmative defense exist, the allowance of time for notification is inconsistent with 40 CFR sec.70.6(g)(3), which requires notice to the permitting authority within two working days of an exceedence of emission limitations due to an emergency. 30 TAC 122 does not provide for an affirmative defense from noncompliance for sources. However, in sec.101.11, the recently adopted amendments to Chapter 101 (22 TexReg 7040, July 29, 1997) do provide, conditions for an exemption of unauthorized emissions from limits in permits, rules, and orders of the commission during upsets, maintenance, start-ups, and shutdowns. Qualification for an exemption is limited to those occurrences that meet certain requirements. Owners and operators must comply with sec.101.6 and sec.101.7, which requires correct reporting and recording of unauthorized emissions. Additionally, an exemption can only be obtained for upsets if the upset was reasonably unavoidable and appropriate corrective actions were taken as soon as practicable, and, for maintenance, start-up and shutdown, if emissions are minimized. The commission believes that sec.sec.101.6, 101.7 and 101.11 provide sufficient relevant evidence to meet the requirements of sec.70.6(g). Additionally, the commission notes that sec.101.6(a) requires notification of upsets as soon as practicable, but not later than 24 hours after discovery; and sec.101.7 requires notification at least ten days prior to any maintenance, start-up, or shutdown expected to cause an unauthorized emission, but in any event as soon as practicable prior to the maintenance, start-up, or shutdown. Any maintenance, start-up, or shutdown activity that results in an unauthorized emission shall be considered a reportable upset and is subject to the requirements of sec.101.6. Finally, the commission notes that sec.101.11 requires the permit holder to identify the cause of the emergency, that the upset was not reasonably avoidable, the permittee take all reasonable steps to minimize emissions and report the upset (according to sec.101.6, which requires reporting as soon as practicable, but not later than 24 hours after discovery). CSWS commented that reporting under sec.122.145(3) regarding upset, start-up, shutdown, or maintenance could be redundant with the deviation reporting required under paragraph (2) of the same section. To eliminate redundancy, CSWS suggested that the reporting requirements be combined. Any potential redundancy has already been addressed in sec.122.145(2)(C) by the statement that if a deviation is reported under paragraph (3), the six-month deviation report need only include a reference to the previously submitted report. Therefore, no change has been made in response to this comment. Regarding the reporting requirements in sec.122.145, the Sierra Club and an individual commented that upset reporting should be immediate and not delayed for 48 hours. The requirements for upset reports are not established in this chapter and are therefore not within the scope of this rulemaking. The requirement for these types of reports are established in Chapter 101. TCC and TVPC requested that annual compliance certification reports in sec.122.146(2) be due 60 days rather than 30 days from the end of the certification period. Historically, 30 days have been allowed for reporting under the NSPS; therefore, the commission believes that 30 days is sufficient time for submitting these certifications. Regarding a related issue, the proposed rule allowed two weeks, rather than 30 days for the submittal of the annual permit revision applications. To make the deadlines for submitting reports, certifications, and applications consistent throughout the rule, the rule has been revised to allow 30 days from the end of the year to submit the annual permit revision application. The same change has been made in sec.122.131, regarding reopenings for the phased application process. Also in sec.122.146, CSWS, TCC, and TVPC were concerned that information already available to the executive director in the operating permit would have to be reproduced in the annual compliance certification. Because sec.122.146(5) states "[t]he annual compliance certification shall include or reference the following information:" the permit may simply be referenced to provided any information contained in the permit and that information need not be reproduced in the certification. TCC and TVPC requested that the word "entire" be deleted from the reference in sec.122.146(5)(B) to the compliance certification period because it adds no value. The commission agrees that the word "entire" adds no meaning to this requirement. Additionally, it is not consistent with other references in the regulation to the certification period; therefore, it has been deleted. TCC and TVPC suggested that the requirement for the annual compliance certification in sec.122.146(5)(C)(v) be revised to clarify that reporting of deviations would be based on the monitoring frequency as well as the monitoring method required by the permit. The commission believes that the term "monitoring method" encompasses the frequency of conducting the assessment and that citations related to method and frequency are found in the permit. Because of this, the commission has determined that no change is necessary. However, because the term "monitoring method" may not appear to be broad enough to encompass recordkeeping used to demonstrate compliance, the commission has specified that the certification may be based on recordkeeping where recordkeeping is used to satisfy the monitoring requirement. EPA commented that the provisions in sec.122.146(5)(B) and (C) regarding the compliance certification do not adequately address the requirement in 40 CFR sec.70.6(c)(5)(iii)(B) that compliance certifications include the source's "compliance status" with respect to all applicable requirements. EPA also stated that these provisions do not meet the requirement in 40 CFR sec.70.6(c)(5)(iii)(C) that the compliance certification certify whether "compliance was continuous or intermittent." As previously discussed, the word "apparent" has been deleted from the annual compliance certification requirement. In addition, sec.122.146(5)(B) has been revised to require the responsible official to state that units without deviations have been in continuous compliance; and sec.122.146(5)(C) has been revised to reference the potentially intermittent compliance status of those units that have had deviations. EPA commented that sec.122.148 does not make it clear that the permit shield does not apply to provisions of FCAA, sec.303 (emergency orders), the liability of an owner or operator of a source for any violation of an applicable requirement prior to, or at the time of, permit issuance, requirements of the acid rain program, or the ability to obtain information from a source under FCAA, sec.114. EPA stated that the rule must be revised to be consistent with 40 CFR sec.70.6(f)(3). In response to this comment, the commission has incorporated language consistent with sec.70.6(f)(3) into sec.122.148. TCC and TVPC requested clarification regarding the language in sec.122.161(d) specifying when FCAA, sec.112(g) would apply. In particular the phrase "at the earliest time" and the reference to "sites" in the plural created confusion. The commenters asked if all interim program sites would be subject to sec.112(g) on January 25, 1997, the first interim program application deadline. Because sec.112(g) will be implemented through Chapter 116, the commissions believes that date that these requirements will apply would be more appropriately address in Chapter 116 and has deleted this language from 30 TAC 122. EPA submitted two comments regarding the proposed requirements for the responsible official in sec.122.165. The first comment was that the proposed rule allowed delegation of a duly authorized representative to too low a level in the corporate hierarchy. The second comment was that 40 CFR 70 does not allow the responsible official of a sole proprietorship, municipality, state, federal, or other public agency to delegate to a duly authorized representative. In response to these comments, the commission has replaced the language in sec.122.165 defining responsible official and duly authorized representative with the 40 CFR 70 definition of "responsible official." The commission has also incorporated the proposed 40 CFR 70 revision to the definition allowing a responsible official who is not the designated representative to sign the Title V portion of the operating permit for affected sources. TCC and TVPC requested confirmation that its interpretation that the definition of Responsible official in sec.122.165 was equivalent to the definition of Responsible official in 40 CFR sec.70.2 such that a person responsible for the overall operation of a facility which employs more than 250 persons or has gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars) is a responsible official. Because the language has been revised to incorporate the definition of Responsible official from 40 CFR 70, this clarification is no longer necessary. TCC and TVPC requested a change rewording sec.122.165(c)(2)(B), which specified the types of documentation that the higher level duly authorized representative must sign. Because the commission has adopted the 40 CFR 70 definition of Responsible official, two levels of duly authorized representatives are no longer provided for and this language has been deleted. An individual and the Sierra Club commented that multiple permits at a site, as provided in sec.122.201, should not be allowed. The individual also commented that it was his understanding, based on conversations with staff, that the purpose of the federal operating permit program was to have one permit for each site. The purpose of the federal operating permits program is to provide a compliance and enforcement tool, which may be accomplished through a single permit at a site or multiple permits at a site. The commission regrets any misunderstanding the commenter may have developed based on discussions with staff. The provision in sec.122.201(e) is necessary to allow the executive director to break larger sites into more manageable parts to ensure a thorough application review and a more reasonable volume of information to be examined during public comment, EPA review, and public petition. The rule has been revised to clarify that the executive director has the authority to determine whether it is appropriate to have multiple permits at a site. TCC and TVPC suggested clarifying in sec.122.210 that the permit revision process does not generally apply to general operating permits, since the commission rather than the permit holder initiates the permit revision process. The commission agrees with this comment and has revised sec.122.210 to explicitly state that general operating permits and authorizations to operate under general operating permits are not subject to the permit revision requirements of Subchapter C, but instead are subject to the requirements of Subchapter F. TCC and TVPC commented that in the general requirements for permit revisions in sec.122.210(b) the use of the term "complete" is unnecessary and may create confusion. Because the word "complete" has a specific meaning with respect to the application shield, and there is no application shield associated with a permit revision, the commission agrees that this language could be confusing. The commission has made the requested change in sec.sec.122.212, 122.216, and 122.220 as well as sec.122.210. EPA commented that for the permit revision requirements in sec.sec.122.210- 122.221 to be substantially equivalent to the revision process in 40 CFR 70, they must not provide for less state review, EPA or affected state review, or public participation than is provided in 40 CFR 70. The commission agrees that the amount of review provided is the criteria for evaluating substantially equivalent under 40 CFR 70 and believes that for each of the three revision tracks, the final rule provides for equal or greater review by the executive director, EPA, affected states, and the public. Consistent with 40 CFR 70, administrative permit revisions under 30 TAC 122 are not subject to any procedural requirements such as public notice or EPA review. Minor permit revisions will be subject to an electronically announced 30-day public comment period, an affected state review, and a 45-day EPA review; while EPA's minor permit modification process involves only EPA review and affected state review. In addition, as is required by 40 CFR 70, significant permit revisions will undergo all the procedural requirements associated with initial issuance. EPA commented that the provisions for administrative revisions in sec.sec.122.211-122.213 do not include a time period for the permitting authority to take action on complete applications, and sec.70.7(d)(3)(i) requires that the permitting authority take no more than 60 days from receipt of a request for an administrative permit amendment to take final action on such request. The commission has revised sec.122.213 to include a requirement for the executive director to take final action on an application for an administrative permit revision within 60 days of receipt. EPA commented that the provision in sec.122.215(1) allowing a change that "adds a new permit term or condition" to be processed as a minor permit revision is written too broadly. EPA also stated that the criteria for minor permit revisions must be consistent with sec.70.7(e)(2)(i), which prohibits minor permit revisions from violating any applicable requirement or involving significant changes to existing monitoring, reporting, or recordkeeping requirements. In 30 TAC 122 the types of changes that can be processed as minor permit revisions are limited by the types of changes that require significant permit revision. Any change listed in sec.122.219 shall be processed as a significant permit revision and is therefore excluded from the minor permit revision category. To address concerns regarding the scope of minor permit revisions, the commission has revised the list of changes that must be processed as significant permit revisions. Section 122.219 now specifies that any change that "is a significant change to existing monitoring, recordkeeping, reporting, or testing terms or conditions for an emission unit remaining in operation when the applicable requirement has not been revised or repealed through rulemaking" is a significant permit revision. Both sec.122.215 and sec.122.219 also include minor wording changes to more clearly define the types of revisions belonging to each category. For example, sec.122.219(11) was revised to use the term "modification" to be consistent with 40 CFR sec.70(e)(2)(i)(A)(5) for changes that are modifications under provisions of FCAA, Title I, Parts C or D (relating to Prevention of Significant Deterioration of Air quality or Plan Requirements for Nonattainment Areas). Regarding EPA's concern that the minor permit revision process could allow the permit holder to make changes that would violate an applicable requirement, the commission directs EPA to the permit revision procedures in sec.122.217(a)(1), which require the permit holder to comply with all applicable requirements. This paragraph also requires the permit holder to comply with the provisional terms and conditions, which by definition cannot authorize the violation of any applicable requirement, and must be consistent with and accurately incorporate all applicable requirements. EPA also commented that sec.122.215(3) allowing a change that "affects or adds a requirement designed to limit potential to emit" to be processed as a minor permit revision conflicts with sec.70.7(e)(2)(i)(A)(4) and must be deleted. In response, the commission has added any change that "affects or adds a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject" to the list of significant permit revisions. In addition, the language in sec.122.215(3) has been deleted as requested. EPA commented that sec.122.215(5), which allows newly promulgated applicable requirements to be incorporated into the permit through minor revisions, is in conflict with sec.70.7(f)(1)(i), which requires the permitting authority to reopen a permit to incorporate the new requirement if three or more years remain in the permit term. Under sec.122.231, the commission is required to reopen a permit to incorporate a new applicable requirement and complete that reopening within 18 months of the promulgation of the requirement. However, because the permit holder is required to initiate a permit revision, within 12 months or less, to incorporate the new applicable requirement into the permit, the reopening should not be necessary. In most cases, this will be less than one year from the promulgation of the new requirement. In addition, the permit holder may not wait until permit renewal to incorporate a new requirement if less than three years remain in the permit term, as is provided for in 40 CFR 70. State-only requirements will be incorporated through the administrative permit revision process because they are not subject to the FCAA, Title V procedural requirements. In the final rule, the commission has specified that both applicable requirements and state-only requirements must be codified in provisional terms and conditions by the compliance dates of the new requirements. The provisional terms and conditions will be maintained with the permit in order to provide an accurate compliance and enforcement tool for both the permit holder and inspectors. Language has been added in sec.122.217 to make a distinction between requirements for permit revisions resulting from changes in applicable requirements or state-only requirements and those initiated by the permit holder. Subsection (a) refers to changes initiated by the permit holder while subsection (b) addresses rule changes. For rule changes in subsection (b), the permit holder will establish provisional terms and conditions that identify the new or revised requirement and the repealed applicable requirement by the compliance date of the new requirement or effective date of the repealed requirement. A notice containing this information shall be submitted no later than 45 days after the compliance date of the new requirement or the effective date of the repealed requirement, in order for the commission staff to utilize this information for deviation reports and compliance certifications. Also, this information will allow the public to have access to the full set of requirements at a site prior to the revision of the permit. Through the minor and administrative permit revision processes, the permit will include and assure compliance with new requirements more expeditiously than is provided for under the 40 CFR 70 reopening process. In addition, the minor permit revision process provides for a 30-day public comment period and a 45-day EPA review. The commission believes that this mechanism for incorporating new requirements into the permit is clearly substantially equivalent to the 40 CFR 70 requirements. TCC and TVPC commented that the language in sec.122.217(a)(2) and elsewhere specifying that the notices regarding revisions be submitted "within two weeks of the end of the calendar month" would be more clear if it were revised to be "no later than two weeks after the end of the calendar month." The commission agrees that the recommended language is clearer. However, because the revision process has been changed to require notification before a change is made, this language has been deleted. EPA commented that sec.122.216(a) and sec.122.217(a)(2) suggest that a source may make a change before an application for a minor permit revision is submitted. EPA also commented that sec.70.7(e)(2) allows a source to make changes before issuance of a minor permit modification, but only after the source files its minor permit modification application. In response to this comment, the commission has revised sec.122.217 to require the permit holder to submit the notice to the executive director, containing all the information required in the minor permit application, before the change is operated. As a result of this change, there is no longer a need to define the reporting periods for submitting these notices, and the language throughout addressing reporting periods had been revised accordingly. EPA also commented that the proposed minor permit revision procedures did not require a 45-day EPA review period consistent with sec.70.7(e)(2)(iv). In response, the commission has revised the rule to require a 45-day EPA review period consistent with sec.70.7(e)(2)(iv). The EPA review period has replaced the requirement in sec.122.217 for a public petition period for minor permit revisions, which is not required by 40 CFR 70. EPA stated that sec.122.217(e)(4) does not provide for timely notification of receipt of a permit revision application to EPA and affected states, and must be revised to be consistent with sec.70.7(e)(2)(iii). Section 122.217 has been revised to require a 45-day EPA review and also requires an affected state review, as did the proposed rule. In addition, staff is working to provide EPA electronic access to all applications in a timely manner through the information management system. EPA commented that the provisions in sec.122.217 allowing minor permit revisions to be incorporated into the permit on an annual basis are inconsistent with sec.70.7(e)(2)(iv), which requires the permitting authority to take action on the application within 90 days of receipt of the application, or 15 days after the end of EPA's 45-day review period, whichever is later. To address this concern, the commission has revised sec.122.217 to require the executive director to take final action on minor permit revisions within 15 days of the end of EPA's 45-day review period or within 15 days of the resolution of any EPA objection. EPA objected to the provisions allowing changes requiring a significant permit revision that could be considered a relaxation of permit terms and conditions, as identified in sec.122.219(1) to be made without prior approval. EPA was also concerned that sec.122.219(2) might allow the removal of an applicable requirement that should be codified in the permit. In response, the commission has revised sec.122.221 to require prior approval for all significant permit revisions, including those identified in sec.122.219(1) and (2). Consequently, if a permit holder wishes to remove an emission limitation or standard when the basis of the determination at the site remains unchanged, the revision must undergo review by the executive director, the public, affected states, and EPA before the change can be operated. EPA commented that the proposed regulations treated significant permit revisions in many respects in the same or similar fashion as minor permit revisions, but 40 CFR 70 requires significant permit modifications to meet all requirements of 40 CFR 70 as they apply to permit issuance and renewal. The commission understands that EPA's concern was that some changes requiring significant permit revisions could be operated before the permit was revised and before review by the executive director, the public, affected states, and EPA. Section 122.221 has been revised to require prior approval for all significant permit revisions; therefore, review by the executive director, the public, affected states, and EPA must occur before any change requiring a significant permit revision can be operated. Regarding reopening for cause, an individual requested that the term "material mistake" be defined in sec.122.231(a)(3). The commenter also requested an expansion of the criteria for reopening for cause to include "if citizens bring up needed changes." The commission is concerned that if a definition of material mistake were provided and the commission did not anticipate all possible types of material mistakes, the scope of reopening for cause could be inadvertently limited. The commission agrees that a citizen may raise an issue resulting in a reopening; however, the commission believes that when this happens, the issue will fall into one of the listed categories. For example, when a citizen requests a change, it may be based on the fact that the permit contains a material mistake or that inaccurate statements were made in establishing the terms or conditions of the permit. The citizen comment could also initiate an evaluation of the permit resulting in a determination by the executive director that the permit does not assure compliance with the applicable requirements. The definition of reopening for cause is consistent with the requirements 40 CFR 70 and the commission has made no change in response to the comment. EPA commented that sec.122.231(d) does not require that the proposed notice regarding reopenings be forwarded to EPA for review as in sec.70.7(g)(3). The commission agrees that the procedures for reopenings in the proposed rule were not consistent with the requirements of 40 CFR sec.70.7(g) and has revised sec.122.231 to more closely reflect the federal requirements. The federal rule specifies that if EPA notifies the permitting authority that cause exists to reopen a permit, the permitting authority must submit a proposed determination regarding the reopening to EPA within 90 days. The federal rule also specifies that EPA will have 90 days to review the determination and if EPA objects to the determination, the permitting authority will have 90 days to resolve the objection and take final action on the permit. The commission has revised the permit reopening provisions to include the 90-day deadline for submitting the notice, the 90-day EPA review period, and the subsequent 90 days for the permitting authority to take final action on the permit. An individual opposed minor permit revisions being announced only on electronic media and suggested that the notice be printed bilingually in a large, regional circulation newspaper instead. The Sierra Club preferred that the notice be provided bilingually in a major newspaper of the relevant areas and in the electronic media. Neither the previous version of this rule, which became effective in 1993, nor 40 CFR 70 provided for newspaper notice for minor permit revisions. Even so, the proposed 30 TAC 122 goes beyond the requirements of 40 CFR 70 to provide for public notice in the electronic media. The purpose of the operating permit is to codify the applicable requirements of the site. To issue a permit, a great deal of information must be submitted to the executive director. Given the volume of information, it is a practical and effective use of resources to hold this information electronically. Due to the nature of minor permit revisions and the high cost of newspaper notice, which could be thousands of dollars per notice, the commission determined that the goal of providing sufficient and timely opportunities for public participation would best be met through the electronic notice. Texas Health and Safety Code, Texas Clean Air Act, sec.382.056, governs the requirements for bilingual newspaper and sign notices; however, electronic notices are not required to meet these requirements. Therefore, the electronic notice meets the requirements of the Texas Clean Air Act. The electronic notice will be posted for a set amount of time in the same electronic location during the public notice period. However, the newspaper would only be printed once. By utilizing the electronic notice, the commission can provide more information in a more timely manner and for a longer period of time. The staff is exploring options to provide the public access to the Title V permitting information. The commission also intends to provide the public access to Title V permitting information at the regional offices. An individual opposed that a single notice is required to be published for the operating permit, whereas two notices are published for an NSR permit. The federal OPP serves a significantly different, yet complementary, function to that of the NSR program. The NSR program is designed to review applications to build or modify a facility. The purpose of that review is to ensure that appropriate control technology will be used at the facility and that proposed emissions will not adversely affect the health or safety of any citizen. The purpose of the operating permit is to codify the applicable requirements of the site. The applicable requirements that are codified by the operating permit are federal rules and state regulations. During the rulemaking process, the applicable requirements (federal rules and state regulations) undergo public notice. During the operating permit public notice, the applicable requirements will be subject to an additional public notice. The emissions from a site may not be increased or decreased due to an operating permit. 40 CFR 70 does not require more than one newspaper notice for operating permits and does not require sign posting. Nor does the Texas Health and Safety Code, Texas Clean Air Act, sec.382.056, require more than one newspaper notice. Therefore, both the NSR program and the federal OPP satisfy the state and federal requirements for public notice. For these reasons, the commission has made no change in response to this comment. An individual requested that "any person who may be affected by emissions" be defined. Requests will require a review on a case-by-case basis in order to determine who is affected by emissions. In order to be granted, the request must also meet the requirements of the Texas Health and Safety Code, sec.382.0561(c). Any further definition of affected person would still have to allow for case-by-case determination of the relevant factors. Therefore, the commission has not defined affected person in the final rule. An individual requested that the term "reasonable specificity," used in sec.122.360(f) be defined. Section 122.360 is intended to provide the petitioners with the ability to petition EPA if EPA fails to object to the issuance of an operating permit. To prevent the exclusion of some valid petitions, the commission has determined not to define the term "reasonable specificity," which will provide flexibility for petitioners seeking to have a petition granted. Therefore, no change has been made in response to this comment. An individual requested clarification of sec.122.360(h), regarding when construction of a facility may begin in the event an objection is received. The site may begin construction after receiving the appropriate preconstruction authorization in accordance with Chapter 116. The federal operating permit is the authorization for the site to operate. These two programs serve two significantly different, yet complementary, functions. The intent of sec.122.360(h), which corresponds to sec.70.8(d), provides that if EPA has objected due to a public petition and the permit has been issued, the permit remains effective. As long as the site has an effective permit, the site has the authorization to operate. The executive director or his designee shall have 90 days from the receipt of any EPA objection to resolve any EPA objection and, if necessary, terminate or revise the permit. EPA requested that sec.122.412(1)(E) be revised to clarify the acid rain application deadlines. The revision EPA recommended would involve removing the language "...meets the subject acid rain program requirements defined in sec.72.30(b)(2)(v)-(viii)" and replacing this language with "fails to meet the requirements of sec.72.6(b)(5) or sec.72.6(b)(6)." The recommendation also included adding a subparagraph (F) to reference the remaining units. The commission agrees with this comment and has made those changes as requested. EPA commented that the final rule should require that nitrogen oxides (NOx[sub] x compliance plans by January 1, 1998. The commission agrees to make the requested change to be consistent with 40 CFR 72. Section 122.412(2) has been revised to eliminate the exception for early election units. TCC and TVPC commented that it is unclear how sec.122.211(2) and (4) apply to general operating permits. The commission agrees that this type of change could not apply to a general operating permit. To revise a general operating permit, the commission would have to complete rulemaking. If administrative information changed at the site, the application must be updated appropriately by the permit holder. Additional rule language was added to sec.122.503(a) to address this type of change. TCC and TVPC suggested that sec.122.503(a)(2)(B) be revised to require information to be submitted annually instead of within two weeks of the end of the month in which the change took place. An annual update would not allow the commission to maintain an accurate and complete application for the inspector or the public. The commission determined that the suggested change would not be consistent with 40 CFR 70. Therefore, the proposed rule language has been retained. TCC and TVPC recommended that sec.122.503(a)(2)(C) be revised to refer to the revision of the authorization to operate and not the application. The commission agrees with the recommended language and the change was made throughout the final rule where appropriate. TCC and TVPC commented that the references to sec.122.133 and sec.122.134 in sec.122.504(b) were circular. The commission agrees and has deleted the circular reference. TCC and TVPC commented that the reference to sec.122.133 in sec.122.505(d) was circular. The commission recognizes that the citation referenced is circular. The commission determined that the "timely and complete" requirement in sec.122.505(d) is provided for in sec.122.505(e), so the language was removed. TCC and TVPC commented that the proposed regulation was silent regarding the procedures regarding the repeal of a general operating permit. The commenters were concerned that permit holders might be required to apply for another permit within 20 days of the repeal of a general operating permit. The commenters stated that this would be an unreasonable burden on the applicant. The proposed sec.122.504(e) stated that "[i]f a permit holder's authority to operate under a general operating permit is affected by the amendment or repeal of a general operating permit and the permit holder no longer qualifies for the general operating permit or no longer intends to operate under the general operating permit, the permit holder must apply for another operating permit." The commission understands the commenters' concerns that the proposed language was silent to the deadline to apply for another operating permit. The final rule language, sec.122.504, states that the permit holder must apply for a permit by the effective date of the rulemaking. There will be a two-month delay between adoption and the effective date of the general operating rulemaking to allow for application preparation. Therefore, the regulated community should always have a reasonable amount of time to apply for a permit. In addition, the language has been revised to specify that applications to operate under revised general operating permits must also be submitted by the effective date of the revised general operating permit. Again, the effective date of the revised general operating permit will be two months after the date of adoption. Furthermore, because the general operating permit rulemaking will occur after rulemaking on the underlying requirement, the permit holder will be aware of the need to revise the general operating permit application well in advance of the application deadline. Rule language has also been added to address potential conflicts between the general operating permits and new or revised underlying applicable requirements that may exist before the general operating permits can be updated to reflect the new requirements. The permit holder will establish provisional terms and conditions that identify the new or revised requirements and any repealed requirements by the compliance date of the new requirement. This information will be maintained with the permit in order to provide an accurate compliance and enforcement tool for both the permit holder and inspectors. A notice containing the provisional terms and conditions will be submitted no later than 45 days after the compliance date or effective date in order for the commission staff to utilize this information for deviation reports and compliance certifications. Also, this information will allow the public to have access to the full set of requirements at a site prior to the revision of the GOP. Any updates to the information submitted will be included with the application for the revised general operating permit. EPA commented that sec.sec.122.501-122.508 should be changed to require renewal of the general operating permit every five years. In response to the comment, the change was made appropriately throughout the final rule. An individual requested that the commission develop a list of any interested persons to receive notice individually of any proposed general operating permits, regulation changes, or any other rulemaking. As stated in sec.122.506(a), before the adoption of any general operating permit, the executive director shall publish notice of the opportunity for public comment and hearing on the proposed draft general operating permit rule. The opportunity for public comment will be published in the Texas Register, regional newspapers throughout the state, and on the Internet. Currently, the commission also provides a list of rulemaking hearings on the Internet. Due to the nature of the operating permit program, a great deal of information must be submitted to the executive director. Given the volume of information, it is a practical and effective use of resources to provide this information electronically. The staff is exploring options to provide the public access to the Title V permitting information. The commission also intends to provide the public access to Title V permitting information at the regional offices. An individual requested that the terms "reasonable limits," "reasonable ascertainable issues," and "all reasonable available arguments" be defined. The commission believes that the phrases "reasonable limits," "reasonable ascertainable issues," and "all reasonable available arguments" are intended to mean just what they say and are intended to provide flexibility. The individual commenter expressed concern that commission staff would "cut off public statements and require that only written statement be taken." The commenter also stated that there was not enough time after the hearing to submit written comments concerning new information or information stated at the hearing. The commenter specifically objected to the language in sec.122.508(c). The commission is required to hold public hearings for operating permits, and must conduct hearings in accordance with the Texas Clean Air Act, which authorizes the commission to delegate hearing powers to staff. It is commission policy to allow reasonable time for public statement, and to allow hearing officers to determine when additional time is necessary for submittal of written statements on a case-by-case basis. Section 122.340(g) provides that the period for submitting written comments may be extended beyond the close of the hearing. The commission has determined that these case-by-case determinations allow for input by the public and efficient processing of permits where there is little or no public comment. Therefore, the commission has made no changes in response to this comment. Several typographical errors were noted by the commenters. The typographical errors were noted in these sections: sec.sec.122.10 (K) and (G); 122.136(b); 122.210(a); 122.217(d)(2); 122.132(e)(5); 122.320(g)(1)(B), (C), and (E); and 122.505(b)(3). The typographical errors have been corrected in the final rules. SUBCHAPTER A.Definitions 30 TAC sec.sec.122.10-122.12 STATUTORY AUTHORITY. The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees; sec.382.061, which provides for appeal of federal operating permits; sec.382.064, which provides for initial application dates for federal operating permits; sec.382.085, which prohibits unauthorized emissions; and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents; sec.5.351, which provides for judicial review of commission acts; sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713887 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER B.Permit Requirements Applicability 30 TAC sec.122.120 The repeal is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees; sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713888 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Application 30 TAC sec.sec.122.130, 122.132-122.136, 122.138, 122.139 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713889 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Content 30 TAC sec.sec.122.141, 122.143, 122.145 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713890 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Public Notification and Comment Procedures 30 TAC sec.sec.122.150, 122.152-122.155 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713891 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Miscellaneous 30 TAC sec.sec.122.161, 122.163-122.165 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713892 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER C.Permits Issuances, Revisions, Reopenings, and Renewals Permit Issuance 30 TAC sec.sec.122.201, 122.202, 122.204 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713893 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Revisions 30 TAC sec.sec.122.210-122.213, 122.215-122.217, 122.219-122.221 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713894 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Reopenings 30 TAC sec.122.231, sec.122.233 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713895 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Renewals 30 TAC sec.122.241, sec.122.243 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713896 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER D.Affected State Review, United States Environmental Protection Agency Review, and Citizen Petition 30 TAC sec.sec.122.310-122.312, 122.314 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713897 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER E.Acid Rain General Acid Rain Permits Requirements 30 TAC sec.122.410, sec.122.411 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713898 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Acid Rain Application 30 TAC sec.sec.122.420-122.422, 122.425, 122.427 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713899 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Acid Rain Permit Issuance, Revocations, and Reopenings 30 TAC sec.sec.122.430, 122.432, 122.434, 122.435, 122.437, 122.438 The repeals are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713900 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Acid Rain Appeals 30 TAC sec.122.440 The repeal is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713901 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER A.Definitions 30 TAC sec.122.10, sec.122.12 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.10.General Definitions. The definitions in the Texas Clean Air Act, Chapter 101 of this title (relating to General Rules), and Chapter 3 of this title (relating to Definitions) apply to this chapter. In addition, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Air pollutant-Any of the following regulated air pollutants: (A) nitrogen oxides; (B) volatile organic compounds; (C) any pollutant for which a National Ambient Air Quality Standard (NAAQS) has been promulgated; (D) any pollutant that is subject to any standard promulgated under FCAA, sec.111 (relating to Standards of Performance for New Stationary Sources); (E) unless otherwise specified by the EPA by rule, any Class I or II substance subject to a standard promulgated under or established by FCAA, Title VI (relating to Stratospheric Ozone Protection); or (F) any pollutant subject to a standard promulgated under FCAA, sec.112 (relating to Hazardous Air Pollutants) or other requirements established under sec.112, including sec.112(g) and (j). However, a pollutant shall not be considered an air pollutant under this chapter solely because it is subject to standards or requirements under sec.112(r). (2) Applicable requirement- (A) All of the requirements of Chapter 111 of this title (relating to Control of Air Pollution From Visible Emissions and Particulate Matter) as they apply to the emission units at a site. (B) All of the requirements of Chapter 112 of this title (relating to Sulfur Compounds) as they apply to the emission units at a site. (C) All of the requirements of Chapter 113 of this title (relating to Control of Air Pollution from Toxic Materials), as they apply to the emission units at a site. (D) All of the requirements of Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds) as they apply to the emission units at a site. (E) All of the requirements of Chapter 117 of this title (relating to Control of Air Pollution From Nitrogen Compounds) as they apply to the emission units at a site. (F) All of the requirements of Chapter 119 of this title (relating to Control of Air Pollution from Carbon Monoxide) as they apply to the emission units at a site. (G) Any site specific requirement of the state implementation plan (SIP). (H) Any term or condition of any preconstruction permits issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) as necessary to implement the requirements of regulations approved or promulgated through rulemaking under FCAA, Title I, Parts C or D (relating to Prevention of Significant Deterioration of Air Quality or Plan Requirements for Nonattainment Areas). (I) All of the following federal requirements as they apply to the emission units at a site: (i) any standard or other requirement under FCAA, sec.111 (relating to Standards of Performance for New Stationary Sources); (ii) any standard or other requirement under FCAA, sec.112 (relating to Hazardous Air Pollutants); (iii) any standard or other requirement of the Acid Rain Program; (iv) any requirements established under FCAA, sec.504(b) or sec.114(a)(3) (relating to Monitoring and Analysis or Inspections, Monitoring, and Entry); (v) any standard or other requirement governing solid waste incineration under FCAA, sec.129 (relating to Solid Waste Combustion); (vi) any standard or other requirement for consumer and commercial products under FCAA, sec.183(e) (relating to Federal Ozone Measures); (vii) any standard or other requirement under FCAA, sec.183(f) (relating to Tank Vessel Standards); (viii) any standard or other requirement under FCAA, sec.328 (relating to Air Pollution from Outer Continental Shelf Activities); (ix) any standard or other requirement under FCAA, Title VI (relating to Stratospheric Ozone Protection), unless EPA has determined that the requirement need not be contained in a permit; and (x) any increment or visibility requirement under FCAA, Title I, Part C or any NAAQS, but only as it would apply to temporary sources permitted under FCAA, sec.504(e) (relating to Temporary Sources). (J) State and federal ambient air quality standards, net ground level concentration limits, ambient atmospheric concentration limits, requirements for mobile sources, and state-only requirements (including sec.sec.111.131 of this title (relating to Definitions), 111.133 of this title (relating to Testing Requirements), 111.135 of this title (relating to Control Requirements for Surfaces with Coatings Containing Lead), 111.137 of this title (relating to Control Requirements for Surface Coatings containing less than 1.0% Lead), and 111.139 of this title (relating to Exemptions)) are not applicable requirements under this chapter, except as noted in subparagraph (I)(x) of this paragraph. (K) Any requirements noted in this definition which have been promulgated by the EPA, but have not been adopted by and delegated to the commission are federally enforceable only. These applicable requirements will be designated as federally enforceable only in the permit. (3) Deviation-Any indication of noncompliance with a term or condition of the permit, as found using, at a minimum, compliance method data from monitoring, recordkeeping, reporting, or testing required by the permit. (4) Draft permit-The version of a permit available for the 30-day comment period under public announcement or public notice and affected state review. (5) Emission unit-The smallest discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a point of origin of air pollutants. (A) A point of origin of fugitive emissions from individual pieces of equipment, e.g., valves, flanges, pumps, and compressors, shall not be considered an individual emission unit. The fugitive emissions shall be collectively considered as an emission unit based on their relationship to the associated process. (B) The term may also be used in this chapter to refer to a group of similar emission units. (C) This term is not meant to alter or affect the definition of the term "unit" for purposes of the acid rain program. (6) Final action-Issuance or denial of the permit by the executive director. (7) General operating permit-A permit by rule issued under Subchapter F of this chapter (relating to General Operating Permits), under which multiple stationary sources may be authorized to operate. (8) Major source- (A) For pollutants other than radionuclides, any site that emits or has the potential to emit, in the aggregate the following quantities: (i) ten tons per year (tpy) or more of any single hazardous air pollutant listed under FCAA, sec.112(b) (relating to Hazardous Air Pollutants); (ii) 25 tpy or more of any combination of hazardous air pollutant listed under FCAA, sec.112(b); or (iii) any quantity less than those identified in clause (i) or (ii) of this subparagraph established by the EPA through rulemaking. (B) For radionuclides regulated under FCAA, sec.112, the term "major source" shall have the meaning specified by the EPA by rule. (C) Any site which directly emits or has the potential to emit, 100 tpy or more of any air pollutant. The fugitive emissions of a stationary source shall not be considered in determining whether it is a major source, unless the stationary source belongs to one of the following categories of stationary sources: (i) coal cleaning plants (with thermal dryers); (ii) kraft pulp mills; (iii) portland cement plants; (iv) primary zinc smelters; (v) iron and steel mills; (vi) primary aluminum ore reduction plants; (vii) primary copper smelters; (viii) municipal incinerators capable of charging more than 250 tons of refuse per day; (ix) hydrofluoric, sulfuric, or nitric acid plants; (x) petroleum refineries; (xi) lime plants; (xii) phosphate rock processing plants; (xiii) coke oven batteries; (xiv) sulfur recovery plants; (xv) carbon black plants (furnace process); (xvi) primary lead smelters; (xvii) fuel conversion plant; (xviii) sintering plants; (xix) secondary metal production plants; (xx) chemical process plants; (xxi) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units (Btu) per hour heat input; (xxii) petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (xxiii) taconite ore processing plants; (xiv) glass fiber processing plants; (xxv) charcoal production plants; (xxvi) fossil-fuel-fired steam electric plants of more than 250 million Btu per hour heat input; or (xxvii) any stationary source category regulated under FCAA, sec.111 (relating to Standards of Performance for New Stationary Sources) or sec.112 for which the EPA has made an affirmative determination under FCAA, sec.302(j) (relating to Definitions). (D) Any site, except those exempted under FCAA, sec.182(f) (relating to NOtype- name="sub">x Requirements), which, in whole or in part, is a major source under FCAA, Title I, Part D (relating to Plan Requirements for Nonattainment Areas), including the following: (i) any site with the potential to emit 100 tpy or more of volatile organic compounds (VOC) or oxides of nitrogen (NOx) in any ozone nonattainment area classified as "marginal or moderate"; (ii) any site with the potential to emit 50 tpy or more of VOC or NOx in any ozone nonattainment area classified as "serious"; (iii) any site with the potential to emit 25 tpy or more of VOC or NOx in any ozone nonattainment area classified as "severe"; (iv) any site with the potential to emit ten tpy or more of VOC or NOx in any ozone nonattainment area classified as "extreme"; (v) any site with the potential to emit 100 tpy or more of carbon monoxide in any carbon monoxide nonattainment area classified as "moderate"; (vi) any site with the potential to emit 50 tpy or more of carbon monoxide in any carbon monoxide nonattainment area classified as "serious"; (vii) any site with the potential to emit 100 tpy or more of inhalable particulate matter (PM-10) in any PM-10 nonattainment area classified as "moderate"; (viii) any site with the potential to emit 70 tpy or more of PM-10 in any PM-10 nonattainment area classified as "serious"; and (ix) any site with the potential to emit 100 tpy or more of lead in any lead nonattainment area. (E) The fugitive emissions of a stationary source shall not be considered in determining whether it is a major source under subparagraph (D) of this paragraph, unless the stationary source belongs to one of the categories of stationary sources listed in subparagraph (C) of this paragraph. (F) Any temporary source which is located at a site for less than six months shall not affect the determination of major for other stationary sources at a site under this chapter or require a revision to the existing permit at the site. (G) Emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not the units are in a contiguous area or under common control, to determine whether the units or stations are major sources under subparagraph (A) of this paragraph. (9) Notice and comment hearing-Any hearing held under this chapter. Hearings held under this chapter are for the purpose of receiving oral and written comments regarding draft permits. (10) Permit or federal operating permit- (A) any permit, or group of permits covering a site, that is issued, renewed, or revised under this chapter; or (B) any general operating permit, or group of general operating permits, adopted by the commission under this chapter. (11) Permit application-An application for an initial permit, permit revision, permit renewal, permit reopening, general operating permit, or any other similar application as may be required. (12) Permit holder-A person who has been issued a permit or granted the authority by the executive director to operate under a general operating permit. (13) Permit revision-Any administrative permit revision, minor permit revision, or significant permit revision that meets the related requirements of Subchapter C of this chapter (relating to Permits Issuances, Revisions, Reopenings, and Renewals). (14) Potential to emit-The maximum capacity of a stationary source to emit any air pollutant under its physical and operational design or configuration. Any certified registration or preconstruction authorization restricting emissions or any physical or operational limitation on the capacity of a stationary source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is enforceable by the EPA. This term does not alter or affect the use of this term for any other purposes under the FCAA, or the term "capacity factor" as used in acid rain provisions of the FCAA or the acid rain rules. (15) Preconstruction authorization-Any authorization to construct or modify an existing facility or facilities under Chapter 116 of this title. In this chapter, references to preconstruction authorization will also include the following: (A) any requirement established under FCAA, sec.112(g) (relating to Modifications) after delegation of sec.112(g) to the commission; (B) any requirement established under FCAA, sec.112(j) (relating to Equivalent Emission Limitation by Permit) after delegation of sec.112(j) to the commission; and (C) where appropriate, any preconstruction authorization under Chapter 120 of this title (relating to Control of Air Pollution from Hazardous Waste or Solid Waste Management Facilities) (as effective until December 1996) or Chapter 121 of this title (relating to Control of Air Pollution from Municipal Solid Waste Management Facilities). (16) Proposed permit-The version of a permit that the executive director forwards to the EPA for a 45-day review period. (17) Provisional terms and conditions-Temporary terms and conditions, established by the permit holder for an emission unit affected by a change at a site, or the promulgation or adoption of an applicable requirement or state-only requirement, under which the permit holder is authorized to operate prior to a revision or renewal of a permit or prior to the granting of a new authorization to operate. (A) Provisional terms and conditions will only apply to changes not requiring prior approval by the executive director under Subchapter C or Subchapter F of this chapter. (B) Provisional terms and conditions shall not authorize the violation of any applicable requirement or state-only requirement. (C) Provisional terms and conditions shall be consistent with and accurately incorporate the applicable requirements and state-only requirements. (D) Provisional terms and conditions for applicable requirements and state-only requirements shall include the following: (i) the specific regulatory citations in each applicable requirement or state- only requirement identifying the emission limitations and standards; (ii) the monitoring, recordkeeping, reporting, and testing requirements associated with the emission limitations and standards identified under clause (i) of this subparagraph; and (iii) where applicable, the specific regulatory citations identifying any repealed requirements. (18) Renewal-The process by which a permit or an authorization to operate under a general operating permit is renewed at the end of its term under sec.sec.122.241, 122.501, or 122.505 of this title (relating to Permit Renewals; General Operating Permits; or Renewal of the Authorization to Operate Under a General Operating Permit). (19) Reopening-The process by which a permit is reopened for cause and terminated or revised under sec.122.231 of this title (relating to Permit Reopenings). (20) Site-The total of all stationary sources located on one or more contiguous or adjacent properties, which are under common control of the same person (or persons under common control). If a research and development operation does not produce products for commercial sale, it shall be treated as a separate site from any manufacturing facility with which it is collocated. (21) State-only requirement-Any requirement governing the emission of air pollutants from stationary sources that may be codified in the permit at the discretion of the executive director. State-only requirements shall not include any requirement required under the FCAA or under any applicable requirement. (22) Stationary source-Any building, structure, facility, or installation that emits or may emit any air pollutant. sec.122.12.Acid Rain Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Acid rain permit-The legally binding and segregable portion of the federal operating permit issued under this chapter, including any permit revisions, specifying the acid rain program requirements applicable to an affected source, to each affected unit at an affected source, and to the owners and operators and the designated representative of the affected source or the affected unit. (2) Acid rain program-The national sulfur dioxide and nitrogen oxides air pollution control and emissions reduction program established in accordance with FCAA, Title IV, contained in 40 CFR 72, 73, 74, 75, 76, 77, and 78. (3) Designated representative-The responsible individual authorized by the owners and operators of an affected source and of all affected units at the site, as evidenced by a certificate of representation submitted in accordance with the acid rain program, to represent and legally bind each owner and operator, as a matter of federal law, in matters pertaining to the acid rain program. Such matters include, but are not limited to: the holdings, transfers, or dispositions of allowances allocated to a unit; and the submission of or compliance with acid rain permits, permit applications, compliance plans, emission monitoring plans, continuous emissions monitor (CEM), and continuous opacity monitor (COM) certification notifications, CEM and COM certification and applications, quarterly monitoring and emission reports, and annual compliance certifications. Whenever the term "responsible official" is used in this chapter, it shall refer to the "designated representative" with regard to all matters under the acid rain program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1997. TRD-9713902 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER B.Permit Requirements General Requirements 30 TAC sec.sec.122.110, 122.120, 122.121 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.110.Delegation of Authority to Executive Director. (a) The executive director may take action on any permit on behalf of the commission. (b) The executive director may delegate authority, by memorandum, to the director of the Operating Permits Division to take action on any permit on behalf of the commission; but may not delegate authority to other agency personnel. sec.122.120.Applicability. Owners and operators of one or more of the following are subject to the requirements of this chapter: (1) any site that is a major source as defined in sec.122.10 of this title (relating to General Definitions); (2) any site with an affected unit as defined in 40 CFR 72 subject to the requirements of the Acid Rain Program; (3) any solid waste incineration unit required to obtain a permit under FCAA, sec.129(e) (relating to Solid Waste Combustion); or (4) any site that is a non-major source which the EPA, through rulemaking, has designated as no longer exempt from the obligation to obtain a permit. For the purposes of this chapter, those sources may be any of the following: (A) any non-major source so designated by the EPA, and subject to a standard, limitation, or other requirement under FCAA, sec.111 (relating to Standards of Performance for New Stationary Sources); (B) any non-major source so designated by the EPA, and subject to a standard or other requirement under FCAA, sec.112 (relating to Hazardous Air Pollutants), except for FCAA, sec.112(r) (relating to Prevention of Accidental Releases); or (C) any non-major source in a source category designated by the EPA. sec.122.121.Prohibition on Operation. Except as provided in sec.122.138 of this title (relating to Application Shield), owners and operators of sites identified in sec.122.120 of this title (relating to Applicability) shall not operate emission units at those sites without a permit issued or granted under 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 October 15, 1997. TRD-9713903 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Application 30 TAC sec.sec.122.130-122.134, 122.136, 122.138-122.140 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.130.Initial Application Due Dates. (a) Interim operating permit program. (1) Owners and operators of the following sites shall submit initial applications under the interim operating permit program: (A) any site with an affected unit subject to the requirements of the Acid Rain Program; (B) any site with the following primary Standard Industrial Classification (SIC) code (as described in the Standard Industrial Classification Manual, 1987) (for purposes of this subparagraph, each site shall have only one primary SIC code): (i) Petroleum and Natural Gas, 1311; (ii) Natural Gas Liquids, 1321; (iii) Electric Services, 4911; (iv) Natural Gas Transmission, 4922; (v) Natural Gas Transmission and Distribution, 4923; or (vi) Petroleum Bulk Stations and Terminals, 5171. (2) Except as provided in paragraph (3) of this subsection, applications for sites subject to the interim operating permit program shall be submitted by January 25, 1997. (3) If an owner or operator has more than one site listed in paragraph (1)(B) of this subsection, the owner or operator shall submit initial permit applications for no less than 10% of those sites by January 25, 1997. Applications for the remaining sites shall be submitted by July 25, 1997. This paragraph does not apply to any site with an affected source. (b) Full operating permit program. (1) Owners and operators of any site subject to the requirements of this chapter on February 1, 1998, except those identified in subsection (a) of this section, shall submit abbreviated initial applications by February 1, 1998. (2) The remaining application information for any site for which the applicant is applying for a general operating permit and for sites with the following primary SIC major groups shall be submitted by July 25, 1998 (for purposes of this section, each site shall have only one primary SIC code): (A) Mining and Quarrying of Nonmetallic Mineral, Except Fuels, 14; (B) Food and Kindred Products, 20; (C) Lumber and Wood Products, Except Furniture, 24; (D) Rubber and Miscellaneous Plastics Products, 30; (E) Stone, Clay, Glass, and Concrete Products, 32; (F) Fabricated Metal Products, Except Machinery and Transportation Equipment, 34; (G) Motor Freight Transportation and Warehousing, 42; and (H) Automotive Repair, Services, and Parking, 75. (3) Except as specified in paragraph (2) of this subsection, the executive director shall inform the applicant in writing of the deadline for submitting the remaining application information. (c) After the effective date of the interim or full operating permit program. Owners and operators of sites identified in sec.122.120 of this title (relating to Applicability) that become subject to the interim or full program after the applicable application due dates identified in subsection (a) or (b) of this section, are subject to the following requirements. (1) If the site is a new site or a site that will become subject to the program as the result of a change at the site, the owner or operator shall not operate the change, or the new emission units, before an abbreviated application is submitted under this chapter. The executive director shall inform the applicant in writing of the deadline for submitting the remaining information. (2) If the site becomes subject to the program as the result of an action by the executive director or the EPA, the owner or operator will submit an application no later than 12 months after the action that subjects the site to the requirements of this chapter. (d) Applications submitted under 40 CFR 71 (relating to Federal Operating Permit Programs). (1) If 40 CFR 71 is implemented in Texas by the EPA, applications will only be required to be submitted to the EPA. (2) If all or part of 40 CFR 71 is delegated to the commission, information required by this chapter and consistent with the delegation will be required to be submitted to the commission. sec.122.131.Phased Application Process for Initial Applications. (a) Sites with 75 or more emission units in a nonattainment area, and sites with 150 or more emission units in an attainment area may qualify for the phased application process. Eligibility for the phased application process shall be based on the number of emission units individually listed in all the initial permit applications for the site. (b) Applicants with sites that qualify for the phased application process may submit in the initial permit application detailed applicability determination information required by sec.122.132(e)(3) of this title (relating to Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits) for a portion of the emission units with a proposed schedule for the submission of the remaining detailed applicability determination information. For each emission unit, the initial permit application must include detail sufficient to clarify the applicant's obligations with respect to its applicable requirements, including emission limits and compliance terms. (c) Any detailed applicability determination information not submitted with the initial permit application shall be submitted according to the schedule included as a term or condition of the permit. (d) The schedule in the permit must require the incorporation of the remaining detailed applicability determinations into the permit at least annually through the reopening or renewal process. The application for permit reopenings shall be submitted no later than 30 days after the end of each 12-month period after initial issuance. (e) All detailed applicability determinations shall be codified in the permit no later than July 25, 2003, or during the first permit renewal, whichever occurs first. (f) The reopening requirements of this section may be satisfied by the procedures for significant permit revisions or permit renewals. sec.122.132.Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits. (a) A permit application shall provide any information, including confidential information as addressed in Chapter 1 of this title (relating to Purpose of Rules, General Provisions), required by the executive director to determine the applicability of, or to codify, any applicable requirement or state-only requirement. (b) An application for a general operating permit shall only be required to provide the information necessary to determine qualification for, and to assure compliance with, the general operating permit. (c) An applicant may submit an abbreviated initial permit application, containing only the information in this section deemed necessary by the executive director. The abbreviated application shall include at a minimum, a general application form containing identifying information regarding the site and the applicant and a certification by a responsible official. The executive director shall inform the applicant in writing of the deadline for submitting the remaining information, except where the deadline is specified in sec.122.130(b)(2) of this title (relating to Initial Application Due Dates). (d) An application for a site qualifying under sec.122.131 of this title (relating to Phased Application Process for Initial Applications) may be submitted under the phased application process. (e) An application shall include, but is not limited to, the following information: (1) a general application form and all information requested by that form; (2) for each emission unit, information regarding the general applicability determinations, which includes the following: (A) the general identification of each potentially applicable requirement and potentially applicable state-only requirement (e.g., NSPS Kb); (B) the applicability determination for each requirement identified under subparagraph (A) of this paragraph; and (C) the basis for each determination made under subparagraph (B) of this paragraph; (3) for each emission unit, except as provided in sec.122.131 of this title, information regarding the detailed applicability determinations, which includes the following: (A) the specific regulatory citations in each applicable requirement or state- only requirement identifying the following: (i) the emission limitations and standards; and (ii) the monitoring, recordkeeping, reporting, and testing requirements associated with the emission limitations and standards identified under clause (i) of this subparagraph; (B) the basis for each applicability determination identified under subparagraph (A) of this paragraph; (4) a compliance plan including the following information: (A) the following statement: "As the responsible official it is my intent that all emission units shall continue to be in compliance with all applicable requirements they are currently in compliance with, and all emission units shall be in compliance by the compliance dates with any applicable requirements that become effective during the permit term."; (B) for all emission units addressed in the application, an indication of the compliance status with respect to all applicable requirements, based on, at a minimum, any compliance method specified in the applicable requirements; (C) for any emission unit not in compliance with the applicable requirements identified in the application, the following information: (i) the method used for assessing the compliance status of the emission unit; (ii) a narrative description of how the emission unit will come into compliance with all applicable requirements; (iii) a compliance schedule (resembling and at least as stringent as any compliance schedule contained in any judicial consent decree or administrative order to which the site is subject), including remedial measures to bring the emission unit into compliance with the applicable requirements; and (iv) a schedule for the submission, at least every six months after issuance of the permit, of certified progress reports; (5) if applicable, information requested by the nationally-standardized forms for the acid rain portions of permit applications, and compliance plans required by the acid rain program; (6) if applicable, a statement certifying that a risk management plan, or a schedule to submit a risk management plan has been submitted to the appropriate agency in accordance with FCAA, sec.112(r)(7) (relating to Prevention of Accidental Releases); (7) for applicants electing the phased application process under sec.122.131 of this title, a proposed schedule for the incorporation of the remaining detailed applicability determinations into the permit; (8) for applicants requesting a permit shield, any information requested by the executive director in order to determine whether to grant the shield; and (9) a certification in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official). (f) The executive director shall make a copy of the permit application accessible to the EPA. sec.122.133.Timely Application. A timely application for a permit is one that is submitted as follows: (1) for initial permit issuance, in accordance with sec.122.130 of this title (relating to Initial Application Due Dates); (2) for a permit renewal, at least six months, but no earlier than 18 months, before the date of permit expiration; (3) for the initial authorization to operate under the general operating permit, in accordance with sec.122.130 of this title; (4) for a renewal of an authorization to operate under a general operating permit, at least six months, but no earlier than 18 months, before the date of expiration of the authorization; and (5) for the authorization to operate under a revised general operating permit, by the effective date of the revised general operating permit. sec.122.134.Complete Application. (a) An application is complete on the 61st day after receipt by the executive director, unless the executive director has requested additional information or otherwise notified the applicant of incompleteness. (b) Except as provided in subsection (c) of this section, a complete application for a permit shall include the following: (1) for initial permit issuance, all information required in sec.122.132 of this title (relating to Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits); (2) for permit renewal, an update of the information held by the executive director and any information required by this chapter that has not been previously submitted; (3) for the initial authorization to operate under a general operating permit, information necessary to determine qualification for, and to assure compliance with, the general operating permit; (4) for the renewal of an authorization to operate under a general operating permit, an update of the information held by the executive director and any information required by this chapter that has not been previously submitted; or (5) for the authorization to operate under a revised general operating permit, the information required by sec.122.504 of this title (relating to Application Revisions When a General Operating Permit is Revised or Repealed). (c) An applicant may submit an abbreviated initial permit application, containing only the information in sec.122.132 of this title deemed necessary by the executive director. The abbreviated application shall include at a minimum, a general application form containing identifying information regarding the site and the applicant and a certification by a responsible official. The executive director shall inform the applicant in writing of the deadline for submitting the remaining information, except where the deadline is specified in sec.122.130(b)(2) of this title (relating to Initial Application Due Dates). sec.122.136.Application Deficiencies. (a) All applications submitted under this chapter are subject to the requirements of this section. (b) If an applicant omits any relevant facts or submits incorrect information in an application, the applicant shall submit the relevant facts or correct the information no later than 60 days after discovering the error. (c) If the site becomes subject to additional applicable requirements or state- only requirements after the application is submitted, the applicant shall submit any information necessary to address those requirements no later than 60 days after becoming subject to the requirements. However, if only an abbreviated application has been submitted, information regarding the newly applicable requirement is not required to be submitted before the executive director requests the remaining application information. (d) If while processing an application, the executive director determines that additional information is necessary to evaluate or take final action on that application, the executive director may request the information and set a reasonable deadline for a response. sec.122.139.Application Review Schedule. The executive director shall take final action to approve, void, or deny permit applications according to the following schedule. (1) Under the interim operating permit program, for those initial applications required to be submitted by January 25, 1997, or July 25, 1997, the executive director shall take final action on at least one-third of those applications annually through July 25, 1999. (2) Under the full operating permit program, for those initial applications required to be submitted, by February 1, 1998, the executive director shall take final action on at least one-third of those applications annually. (3) For any permit application containing an early reduction demonstration under FCAA, sec.112(i)(5) (relating to Schedule for Compliance), the executive director shall take final action no later than nine months after receipt of the complete application. (4) Except as noted in paragraphs (1)-(3) of this section, the executive director shall take final action on an application for an initial permit or permit renewal no later than 18 months after the date on which the executive director deems the application complete. 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 October 15, 1997. TRD-9713904 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 20, 1997 For further information, please call: (512) 239-1966 Permit Content 30 TAC sec.sec.122.142-122.146, 122.148 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.142.Permit Content Requirements. (a) The conditions of the permit shall provide for compliance with the requirements of this chapter. (b) Each permit issued under this chapter shall contain the information required by this subsection. (1) Unless otherwise specified in the permit, each permit shall include the terms and conditions in sec.sec.122.143-122.146 of this title (relating to General Terms and Conditions; Recordkeeping Terms and Conditions; Reporting Terms and Conditions; and Compliance Certification Terms and Conditions). (2) Each permit shall also contain specific terms and conditions for each emission unit regarding the following: (A) the generally identified applicable requirements and state-only requirements (e.g., NSPS Kb); (B) except as provided by the phased application process, the detailed applicability determinations, which include the following: (i) the specific regulatory citations in each applicable requirement or state- only requirement identifying the emission limitations and standards; and (ii) the monitoring, recordkeeping, reporting, and testing requirements associated with the emission limitations and standards identified under clause (i) of this subparagraph. (c) Each permit shall contain specific terms and conditions for each emission unit fulfilling periodic monitoring requirements as required by the executive director sufficient to assure compliance with the applicable requirements. (d) For permits undergoing the phased application process, the permit shall contain a schedule for phasing in the detailed applicability determinations consistent with sec.122.131 of this title (relating to Phased Application Process for Initial Applications). (e) For emission units not in compliance with the applicable requirements at the time of initial permit issuance or renewal, the permit shall contain the following: (1) a compliance schedule or a reference to a compliance schedule consistent with sec.122.132(e)(4)(C) of this title (relating to Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits); and (2) a requirement to submit progress reports consistent with sec.122.132(e)(4)(C) of this title. The progress reports shall include the following information: (A) the dates for achieving the activities, milestones, or compliance required in the compliance schedule; (B) dates when the activities, milestones, or compliance required in the compliance schedule were achieved; and (C) an explanation of why any dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted. (f) At the executive director's discretion, and upon request by the applicant, the permit may contain a permit shield for specific emission units. (g) Where an applicable requirement is more stringent than a requirement under the acid rain program, both requirements shall be incorporated into the permit and shall be enforceable requirements of the permit. sec.122.143.General Terms and Conditions. Unless otherwise specified in the permit, the following general terms and conditions shall become terms and conditions of each permit. (1) Compliance with the permit does not relieve the permit holder of the obligation to comply with any other applicable rules, regulations, or orders of the commission, or of the EPA, except for those requirements addressed by a permit shield. (2) The term of the permit shall not exceed five years from the date of initial issuance or renewal of the permit. The authorization to operate under a general operating permit shall not exceed five years from the date the authorization was granted or renewed. (3) Consistent with the authority in Texas Health and Safety Code, Chapter 382, Subchapter B (relating to Powers and Duties of Commission), the permit holder shall allow representatives from the commission or the local air pollution control program having jurisdiction to do the following: (A) enter upon the permit holder's premises where an emission unit is located or emissions-related activity is conducted, or where records must be kept under the conditions of the permit; (B) access and copy any records that must be kept under the conditions of the permit; (C) inspect any emission unit, equipment, practices, or operations regulated or required under the permit; and (D) sample or monitor substances or parameters for the purpose of assuring compliance with the permit at any time. (4) The permit holder shall comply with all terms and conditions codified in the permit and any provisional terms and conditions required to be included with the permit. Except as provided for in paragraph (5) of this section, any noncompliance with either the terms or conditions codified in the permit or the provisional terms and conditions, if any, constitutes a violation of the FCAA and the TCAA and may be grounds for enforcement action. It shall not be a defense in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to comply with the permit terms and conditions of the permit. (5) The permit holder need not comply with the original terms and conditions codified in the permit that have been replaced by provisional terms and conditions before issuance or denial of a revision or renewal or before the granting of a new authorization to operate. (6) In every case, the applicable requirements and state-only requirements are always enforceable. (7) The permit may be reopened for cause and revised or terminated. Permit terms or conditions remain enforceable regardless of the following: (A) the filing of a request by the permit holder for a permit revision, reopening, or termination; (B) a notification of planned changes or anticipated noncompliance; or (C) a notice of intent by the executive director for a permit reopening or termination. (8) The executive director may request any information necessary to determine compliance with the permit or whether cause exists for revising, reopening, or terminating the permit. The permit holder shall submit the information no later than 60 days after the request, unless the deadline is extended by the executive director. (9) If a federally enforceable only applicable requirement is adopted by the commission, the permit holder shall submit an application for an administrative permit revision for the removal of the federally enforceable only designation. The application shall be submitted no later than 12 months after the adoption of the requirement by the commission. (10) If a state-only requirement is determined by the commission to be an applicable requirement, the permit holder shall submit an application for a significant permit revision for the incorporation of the requirement into the permit as an applicable requirement. The application shall be submitted no later than 12 months after the determination by the commission that the requirement is an applicable requirement. (11) The permit holder shall pay fees to the commission consistent with the fee schedule in sec.101.27 of this title (relating to Emissions Fees). (12) Each portion of the permit is severable. Permit requirements in unchallenged portions of the permit shall remain valid in the event of a challenge to other portions of the permit. (13) The permit does not convey any property rights of any sort, or any exclusive privilege. (14) A copy of the permit shall be maintained at the location specified in the permit. (15) For general operating permits, a copy of the permit, the permit application, and the authorization to operate shall be maintained at the location specified in the authorization to operate. (16) Any report or annual compliance certification required by a permit to be submitted to the executive director shall contain a certification in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official). (17) Representations in acid rain applications and applicability determinations and the bases for the determinations in general operating permit applications are conditions under which the permit holder shall operate. (18) No emissions from emission units addressed in the permit shall exceed allowances lawfully held under the acid rain program. (19) State-only requirements will not be subject to any of the following requirements of this chapter: public notice, affected state review, notice and comment hearings, EPA review, public petition, recordkeeping, six-month monitoring reporting, six-month deviation reporting, compliance certification, or periodic monitoring. sec.122.144.Recordkeeping Terms and Conditions. Unless otherwise specified in the permit, the following recordkeeping requirements shall become terms and conditions of the permit. (1) The permit holder shall maintain records of all required monitoring data and support information for a period of at least five years from the date of the monitoring sample, measurement, report, or application. If an applicable requirement or state-only requirement specifies a longer data retention period, the records shall be maintained for at least the period of time specified in the applicable requirement or state-only requirement. The monitoring records shall include, but are not limited to, the following: (A) the date, place as defined in the permit, and time of sampling or measurements; (B) the date(s) analyses were performed; (C) the company or entity that performed the analyses; (D) the analytical techniques or methods used; (E) the results of such analyses; (F) the relevant operating conditions which are deemed necessary to characterize emission rates at the time of sampling or measurement; (G) the data from all calibration and maintenance records; (H) all strip-chart recordings for continuous monitoring instrumentation; and (I) copies of all reports required by the permit. (2) Records may be stored electronically. (3) All records required to be maintained by this chapter shall be maintained at the location specified in the permit or in the authorization to operate under a general operating permit. (4) Records required by the permit, including confidential information, shall be provided, upon request, in a legible form, to representatives from the commission or the local air pollution control program having jurisdiction within a reasonable period of time. (5) The EPA may require that the records be sent directly to the EPA along with any claim of confidentiality. Any confidentiality claim should be made in accordance with federal law, including 40 CFR 2. (6) Permit holders shall maintain records of the duration of the stay at a site of any temporary source. sec.122.145.Reporting Terms and Conditions. Unless otherwise specified in the permit, the following reporting requirements shall become terms and conditions of the permit. (1) Monitoring reports. (A) Reports of monitoring data required to be submitted by an applicable requirement, shall be submitted to the executive director. (B) Reports shall be submitted for at least each six-month period after permit issuance or at the frequency required by an applicable requirement which requires more frequent reporting. (C) The monitoring reports shall be submitted no later than 30 days after the end of each reporting period. (D) The reporting of monitoring data does not change the data collection requirements specified in an applicable requirement. (2) Deviation reports. (A) The permit holder shall report, in writing, to the executive director all instances of deviations, the probable cause of the deviations, and any corrective actions or preventative measures taken for each emission unit addressed in the permit. (B) A deviation report shall be submitted for at least each six-month period after permit issuance or at the frequency required by an applicable requirement which requires more frequent reporting. However, no report is required if no deviations occurred over the six-month reporting period. (C) The deviation reports shall be submitted no later than 30 days after the end of each reporting period. (D) If a deviation is reported, in writing, under paragraph (3) of this section, the deviation report need only include a reference to the unauthorized emissions, upset or maintenance, and start-up and shutdown report containing details related to the deviation. (3) Unauthorized emissions, upset or maintenance, and start-up and shutdown reports. (A) Reports of deviations resulting from any unauthorized emissions, upset or maintenance, and start-up and shutdown shall be submitted in accordance with sec.sec.101.6, 101.7, and 101.11 of this title (relating to Upset Reporting and Recordkeeping Requirements; Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements; and Exemptions from Rules and Regulations). (B) Nothing in this paragraph shall relieve the permit holder from submitting any deviation report in accordance with the requirements of paragraph (2) of this section. sec.122.146.Compliance Certification Terms and Conditions. Unless otherwise specified in the permit, the following compliance certification requirements shall become terms and conditions of the permit. (1) The permit holder shall certify compliance with the terms and conditions of the permit for at least each 12-month period following initial permit issuance. (2) The certification shall be submitted no later than 30 days after the end of the certification period. (3) The executive director shall make a copy of the compliance certification accessible to the EPA. (4) The certification shall be based on at a minimum, the monitoring method (or recordkeeping method, if appropriate) required by the permit to be used to assess compliance. (5) The annual compliance certification shall include or reference the following information: (A) the identification of each term, or condition, of the permit for which the permit holder is certifying compliance and the method used for determining the compliance status of each emission unit; (B) for emission units addressed in the permit for which no deviations have occurred over the certification period, a statement that the emission units were in continuous compliance over the certification period; and (C) for any emission unit addressed in the permit for which one or more deviations occurred over the certification period, the following information indicating the potentially intermittent compliance status of the emission unit: (i) the identification of the emission unit; (ii) the applicable requirement for which a deviation occurred; (iii) the monitoring method (or recordkeeping method, if appropriate) used to assess compliance; (iv) the frequency with which sampling, monitoring, or recordkeeping was required to be conducted by the monitoring or recordkeeping requirement of the permit; and (v) the total number of times that the assessment required by the monitoring or recordkeeping method specified in the permit indicated that a deviation had occurred; (D) the identification of all other terms and conditions of the permit for which compliance was not achieved. sec.122.148.Permit Shield. (a) At the discretion of the executive director, and upon request by the applicant, the permit may contain a permit shield for specific emission units. The permit shield is a special condition stating that compliance with the conditions of the permit shall be deemed compliance with the specified potentially applicable requirements or specified potentially applicable state- only requirements. (b) In order for the executive director to determine that an emission unit qualifies for a permit shield, all information required by sec.122.132(e)(2), (3) and (8) of this title (relating to Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits) must be submitted with the permit application. (c) The permit shall contain the following information for the emission units addressed by the permit shield: (1) determinations by the executive director establishing one of the following: (A) potentially applicable requirements or potentially applicable state-only requirements specifically identified during the application review process are not applicable to the source; or (B) duplicative, redundant, and/or contradicting applicable requirements or state-only applicable requirements specifically identified during the application review process are superseded by a more stringent or equivalent requirement; and (2) a statement that compliance with the conditions of the permit shall be deemed compliance with the specified potentially applicable requirements or specified potentially applicable state-only requirements. (d) Any permit that does not expressly state that a permit shield exists shall not provide a permit shield. (e) Permit shield provisions shall not be modified by the executive director until notification is provided to the permit holder. No later than 90 days after notification of a change in a determination made by the executive director, the permit holder shall apply for the appropriate permit revision to reflect the new determination. (f) Provisional terms and conditions are not eligible for a permit shield. Any permit term or condition, under a permit shield, shall not be protected by the permit shield if it is replaced by a provisional term or condition or the basis of the term or condition changes. (g) Nothing in this section shall alter or affect the following: (1) the provisions of FCAA, sec.303 (relating to Emergency Orders); (2) the liability of an owner or operator of a source for any violation of applicable requirements prior to or at the time of permit issuance; (3) the applicable requirements of the acid rain program; or (4) the ability of EPA to obtain information from a source under FCAA, sec.114 (relating to Inspections, Monitoring, and Entry). 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 October 15, 1997. TRD-9713905 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 20, 1997 For further information, please call: (512) 239-1966 Miscellaneous 30 TAC sec.122.161, sec.122.165 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.161.Miscellaneous. (a) The commission shall not grant a variance, under Texas Health and Safety Code, sec.382.028, from the requirements of this chapter. (b) Unless specifically noted otherwise, requirements under this chapter do not supersede, substitute for, or replace any requirement under any other rule, regulation, or order of the commission or the EPA. (c) None of the requirements in this chapter shall be construed as prohibiting the construction of new or modified facilities, provided that the owner or operator has obtained any necessary preconstruction authorization. sec.122.165.Certification by a Responsible Official. (a) The following documents shall include a signed certification of accuracy and completeness: (1) applications for initial permit issuance; (2) applications for revisions; (3) applications for reopenings; (4) applications for renewals; (5) applications for general operating permits; (6) general operating permit application revisions; (7) reports required by the permit; and (8) annual compliance certifications. (b) The certification of accuracy and completeness shall include the following statement: "I certify that, based on information and belief formed after reasonable inquiry, the statements and information contained in the attached documents are true, accurate, and complete." (c) The certification shall be signed by the responsible official, who shall be one of the following: (1) for a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either: (A) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or (B) the delegation of authority to such representatives is approved in advance by the permitting authority; (2) for a partnership or sole proprietorship: a general partner or the proprietor, respectively; (3) for a municipality, state, federal, or other public agency: either a principal executive officer or ranking elected official. For the purposes of this part, a principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a regional administrator of EPA); or (4) for affected sources: (A) the designated representative insofar as actions, standards, requirements, or prohibitions under FCAA, Title IV or the regulations promulgated thereunder are concerned; and (B) the designated representative, the alternate designated representative, or a person meeting the provisions of paragraphs (1), (2), or (3) of this subsection for any other purposes under 40 CFR 70. (d) The responsible official need not be the same person for each required submittal, and the selection of a responsible official does not preclude the naming of a separate technical contact. (e) The duly authorized representative need not be the same person for each required submittal, and the selection of a duly authorized representative does not preclude the naming of a separate technical contact. (f) If the responsible official for the permit changes, the permit holder must maintain documentation of the change with permit. The permit holder must notify the executive director of any change in the responsible official no later than at the next submittal requiring certification under 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 October 15, 1997. TRD-9713906 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER C.Initial Permit Issuances, Revisions, Reopenings, and Renewals Initial Permit Issuances 30 TAC sec.122.201, sec.122.204 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.201.Initial Permit Issuance. (a) A permit may be issued by the executive director provided the following: (1) the executive director has received a complete permit application under sec.122.134 of this title (relating to Complete Application); (2) the conditions of the permit provide for compliance with the requirements of this chapter; and (3) the requirements of this chapter for public notice, affected state review, notice and comment hearing, and EPA review have been satisfied. (b) The permit will not be final until the public petition requirements of this chapter have been satisfied. (c) The executive director shall make a copy of the permit application, the permit, and any required notices accessible to the EPA. (d) All permits shall have terms not to exceed five years from initial issuance or renewal. (e) At the discretion of the executive director, more than one permit may be issued for a site. (f) Neither the adoption of a general operating permit nor the granting of an authorization to operate under a general operating permit shall be required to meet the requirements of this section. General operating permits are subject to the requirements of Subchapter F of this chapter (relating to General Operating Permits). (g) If the permit application does not meet the criteria of this chapter, the executive director may deny the permit application. 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 October 15, 1997. TRD-9713907 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Revisions 30 TAC sec.sec.122.210-122.213, 122.215-122.217, 122.219-122.221 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.210.General Requirements for Revisions. (a) The permit holder shall submit an application to the executive director for a revision to a permit for those activities at a site which change, add, or remove one or more permit terms or conditions. (b) If applicable, the permit holder shall submit an application to the executive director for a revision to a permit to address the following: (1) the adoption of an applicable requirement previously designated as federally enforceable only; (2) the promulgation or adoption of a new applicable requirement; (3) the adoption of a new state-only requirement; or (4) a change in a state-only designation. (c) The executive director shall make a copy of the permit application, the permit, and any required notices accessible to the EPA. (d) Provisional terms and conditions are not eligible for a permit shield. (e) The permit holder may be subject to enforcement action if the change to the permit is later determined not to qualify for the type of permit revision submitted. (f) Changes qualifying as administrative permit revisions may be processed as minor or significant permit revisions at the permit holder's discretion. (g) Changes qualifying as minor permit revisions may be processed as significant permit revisions at the permit holder's discretion. (h) General operating permits and authorizations to operate under general operating permits are not subject to the permit revision requirements of this subchapter, but instead are subject to the requirements of Subchapter F of this chapter (relating to General Operating Permits). sec.122.211.Administrative Permit Revisions. A change to a permit may qualify as an administrative permit revision if the change satisfies one or more of the following: (1) corrects typographical errors; (2) increases the frequency of monitoring or reporting requirements without changing any existing emission limitations or standards; (3) changes the permit identification of ownership or operational control of a site where the executive director determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the old and new permit holder is maintained with the permit; (4) removes a federally enforceable only designation and does not otherwise affect the permit; or (5) affects or adds a state-only requirement; (6) is similar to those in paragraphs (1)-(5) of this section and approved by EPA. sec.122.212.Applications for Administrative Permit Revisions. (a) An application must include a record of any changes that took place over the previous 12 months that have not already been incorporated into the permit. (b) An application must also include, at a minimum, the following: (1) a description of each change; (2) a description of the emission units affected; (3) the provisional terms and conditions as defined in sec.122.10 of this title (relating to General Definitions) that codify the new applicable requirements or state-only requirements; (4) a statement that each change qualifies for an administrative permit revision; and (5) a certification in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official). sec.122.213.Procedures for Administrative Permit Revisions. (a) If the following requirements are met, changes at a site or required as the result of the adoption of a state-only requirement, requiring an administrative permit revision may be operated before issuance of the revision: (1) the permit holder complies with the following: (A) Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); (B) all applicable requirements; (C) all state-only requirements; and (D) the provisional terms and conditions as defined in sec.122.10 of this title (relating to General Definitions); (2) the permit holder records the information required in sec.122.212(b) of this title (relating to Applications for Administrative Permit Revisions) before the change is operated; and (3) the permit holder maintains the information required by sec.122.212(b) of this title with the permit until the permit is revised. (b) In every case, the applicable requirements and state-only requirements are always enforceable. (c) The permit holder need not comply with the original terms and conditions codified in the permit that have been replaced by provisional terms and conditions before issuance or denial of a revision or renewal. (d) The permit holder shall submit an application for a permit revision to the executive director no later than 30 days after the end of each 12-month period after permit issuance or renewal. (e) An administrative permit revision may be issued by the executive director provided the following: (1) the change meets the criteria for an administrative permit revision; (2) the executive director has received an application; and (3) the conditions of the permit provide for compliance with the requirements of this chapter. (f) The executive director shall take final action on an administrative permit revision no later than 60 days after receipt of the application. sec.122.215.Minor Permit Revisions. A change to a permit that does not meet the criteria for an administrative permit revision or significant permit revision qualifies as a minor permit revision. Minor permit revisions include, but are not limited to, any change that satisfies one or more of the following: (1) adds a new permit term or condition; (2) removes one or more emission units from the permit that are no longer operated at the site; (3) adds an approved alternative means of control; or (4) adds a new applicable requirement that is promulgated. sec.122.216.Applications for Minor Permit Revisions. (a) An application must include a record of any changes that took place over the previous 12 months that have not already been incorporated into the permit. (b) An application must also include, at a minimum, the following: (1) a description of each change; (2) a description of the emission units affected; (3) the provisional terms and conditions as defined in sec.122.10 of this title (relating to General Definitions) that codify the new applicable requirements; (4) a statement that the change qualifies for a minor permit revision; and (5) a certification in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official). sec.122.217.Procedures for Minor Permit Revisions. (a) If the following requirements are met, changes at a site requiring a minor permit revision may be operated before issuance of the revision: (1) the permit holder complies with the following: (A) Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); (B) all applicable requirements; (C) all state-only requirements; and (D) the provisional terms and conditions as defined in sec.122.10 of this title (relating to General Definitions); (2) the permit holder submits to the executive director a notice containing the information required in sec.122.216(b) of this title (relating to Applications for Minor Permit Revisions) before the change is operated; (3) the permit holder maintains the information required by sec.122.216(b) of this title with the permit until the permit is revised. (b) For changes to a permit required as the result of the promulgation or adoption of an applicable requirement, the following requirements apply. (1) The permit holder shall comply with the following: (A) Chapter 116 of this title; (B) all applicable requirements; (C) all state-only requirements; and (D) the provisional terms and conditions as defined in sec.122.10 of this title. (2) The permit holder shall record the information required in sec.122.216(b)(1)-(4) of this title before the compliance date of the new requirement or effective date of the repealed requirement. The information in sec.122.216(b)(1)-(5) of this title shall be submitted no later than 45 days after the compliance date of the new requirement or effective date of the repealed requirement. (3) The permit holder shall maintain the information required in sec.122.216(b)(1)-(4) of this title with the permit until the permit is revised. (c) In every case, the applicable requirements are always enforceable. (d) The permit holder need not comply with the original terms and conditions codified in the permit that have been replaced by provisional terms and conditions before issuance or denial of a revision or renewal. (e) The permit holder shall submit an application for a permit revision to the executive director no later than 30 days after the end of each 12-month period after permit issuance or renewal. (f) A minor permit revision may be issued by the executive director provided the following: (1) the changes meet the criteria for a minor permit revision; (2) the executive director has received an application; (3) the conditions of the permit provide for compliance with the requirements of this chapter; and (4) the requirements of this chapter for public announcement, affected state review, and EPA review have been satisfied. (g) The executive director shall take final action on the permit revision application no later than 15 days after the end of the EPA review period, or no later than 15 days after the resolution of any EPA objection, whichever is later. sec.122.219.Significant Permit Revisions. A change to a permit shall qualify as a significant permit revision if the change satisfies one or more of the following: (1) is a significant change to existing monitoring, recordkeeping, reporting, or testing terms or conditions for an emission unit remaining in operation when the applicable requirement has not been revised or repealed through rulemaking; (2) removes an emission limitation or standard established through the permit for an emission unit remaining in operation when the basis of the determination at the site remains unchanged and the applicable requirement or has not been revised or repealed through rulemaking; (3) changes a state-only designation to an applicable requirement designation; (4) affects or adds a term or condition resulting from emissions averaging as allowed under an applicable requirement; (5) affects or adds a term or condition resulting from a request by the permit holder to eliminate duplicative, redundant, and/or contradicting requirements, under sec.122.148(c)(1)(B) of this title (relating to Permit Shield); (6) affects or adds an applicable emission limitation, standard, monitoring, recordkeeping, reporting, or testing requirement that is required, but not specifically defined, by an applicable requirement; (7) affects or adds a term or condition resulting from early reductions under FCAA, sec.112(i)(5) (relating to Early Reductions); (8) affects a term or condition or the basis thereof, that is subject to the permit shield and the permit holder has requested to retain the permit shield for emission units remaining in service; (9) adds a term or condition for which the permit holder has requested a permit shield; (10) affects or adds a term or condition resulting from a determination established under FCAA, sec.112(g) (relating to Modifications) or sec.112(j) (relating to Equivalent Emission Limitation by Permit); or (11) is a modification under provisions of FCAA, Title I, Parts C or D (relating to Prevention of Significant Deterioration of Air Quality or Plan Requirements for Nonattainment Areas). (12) affects or adds a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject. sec.122.220.Applications for Significant Permit Revisions. An application must include, at a minimum, the following: (1) a description of the change; (2) a description of the emission units affected; (3) a description of the emissions affected by the change; (4) a certification in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official). sec.122.221.Procedures for Significant Permit Revisions. (a) Changes requiring a significant permit revision shall not be operated before the permit is revised. For those changes, the permit holder shall do the following: (1) comply with Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); (2) submit to the executive director a request for a permit revision including the information required in sec.122.220 of this title (relating to Applications for Significant Permit Revisions). (b) A significant permit revision may be issued by the executive director only if all of the following conditions have been satisfied: (1) the change meets the criteria for a significant permit revision; (2) the permit holder has submitted an application; (3) the conditions of the permit provide for compliance with the requirements of this chapter; and (4) the requirements of this chapter for public notice, affected state review, notice and comment hearing, and EPA review have been satisfied. (c) The significant permit revision shall not be final until the public petition requirements of this chapter have been satisfied. 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 October 15, 1997. TRD-9713908 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Reopenings 30 TAC sec.122.231 The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.231.Permit Reopenings. (a) The executive director shall reopen a permit for cause. Cause shall be limited to one or more of the following: (1) the promulgation or adoption of a new applicable requirement affecting emission units at the site, unless one of the following applies: (A) the new requirement is incorporated into a permit which addresses the emission unit subject to the new requirement; or (B) the effective date of the requirement is later than the permit expiration date; (2) the permit contains a material mistake; (3) inaccurate statements were made in establishing the emissions standards or other terms and conditions of the permit; (4) the executive director determines that the permit must be revised to assure compliance with the applicable requirements; or (5) a phased application schedule in the permit requires a reopening. (b) The following procedures shall apply if EPA initiates a reopening by notifying the executive director in writing that cause, as defined in this section, exists to terminate or revise a permit. (1) The executive director shall submit a proposed determination regarding the reopening to the EPA no later than 90 days after receipt of the notification. (2) Upon receipt of the proposed determination, the EPA shall have 90 days to object, in writing, to the proposed determination. (3) The executive director shall have 90 days from the end of the EPA review period, or the resolution of any objection, to take action on the reopening. (c) Reopenings shall be completed and the permit issued by the executive director not later than 18 months after promulgation or adoption of the applicable requirement. (d) The executive director shall provide 30 day's notice of intent to reopen, unless a shorter notice is authorized by the executive director due to an emergency. (e) Reopenings shall be subject to the requirements of sec.122.201 of this title (relating to Initial Permit Issuance). These procedures shall affect only those parts of the permit for which cause to reopen exists. (f) The permit holder shall provide any information requested by the executive director to complete the reopening. 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 October 15, 1997. TRD-9713909 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Permit Renewals 30 TAC sec.122.241, sec.122.243 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.243.Permit Renewal Procedures. (a) A permit may be renewed by the executive director only if all of the following conditions have been satisfied: (1) the executive director has received a complete permit application under sec.122.134 of this title (relating to Complete Application); (2) the conditions of the permit will provide for compliance with all requirements of this chapter; (3) the requirements of this chapter for public notice, affected state review, notice and comment hearing, and EPA review have been satisfied. (b) The renewed permit will not be final until the public petition requirements of this chapter have been satisfied. (c) The executive director shall make a copy of the renewal application, draft permit, and any required notices accessible to the EPA. (d) In determining whether and under what conditions a permit should be renewed, the executive director shall consider the following: (1) whether the draft permit provides for compliance with all applicable requirements; and (2) the site's compliance status with this chapter and the terms and conditions of the existing permit. (e) At the discretion of the executive director, during permit renewal, any permits at a site may be combined into a single permit which satisfies the requirements of this section. (f) The executive director may not impose requirements less stringent than those of the existing permit unless a determination is made that the proposed changes will meet the requirements of 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 October 15, 1997. TRD-9713910 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER D.Public Announcement, Public Notice, Affected State Review, Notice and Comment Hearing, Notice of Proposed Final Action, EPA Review, and Public Petition Public Announcement 30 TAC sec.122.312 The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.312.Public Announcement. (a) Public announcement requirements apply to minor permit revisions. (b) The executive director shall publish an announcement of a draft permit for a minor permit revision on the commission's publicly accessible electronic media. The announcement shall contain the following: (1) permit application number; (2) permit holder's name and address; (3) description of the location of the site; (4) the location and availability of the following: (A) copies of the complete permit application; (B) the draft permit; (C) all other relevant supporting materials in the public files of the agency; (5) a description of the comment procedures, including the duration of the public announcement comment period; and (6) name, address, and phone number of the commission office to be contacted for further information. (c) The executive director shall make a copy of the public announcement and date of publication accessible to the EPA and all local air pollution control agencies with jurisdiction in the county in which the site is located. (d) The executive director shall furnish a notice of the public announcement to the air pollution control agency of any affected state. (e) The executive director shall make available for public inspection the draft permit and the complete revision application throughout the comment period during business hours at the commission's central office and at the commission's regional office where the site is located. (f) The executive director shall receive public comment for 30 days after the announcement of the draft permit is published. During the comment period, any person may submit written comments on the draft permit. (g) The draft permit may be changed based on comments pertaining to whether the permit provides for compliance with the requirements of this chapter. (h) Public notice requirements satisfy public announcement requirements. (i) The executive director shall respond to comments consistent with sec.122.345 of this title (relating to Notice of Proposed Final 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 October 15, 1997. TRD-9713911 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Public Notice 30 TAC sec.122.320, sec.122.322 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.320.Public Notice. (a) Public notice requirements apply to initial issuances, significant permit revisions, reopenings, and renewals. (b) The executive director shall direct the applicant to publish a notice of a draft permit, at the applicant's expense, in the public notice section of one issue of a newspaper of general circulation in the municipality in which the site or proposed site is located, or in the municipality nearest to the location of the site or proposed site. The notice shall contain the following information: (1) the permit application number; (2) the applicant's or permit holder's name and address; (3) a description of the location of the site or proposed location of the site; (4) a description of the activity or activities involved in the permit application; (5) for significant permit revisions, the air pollutants with emission changes; (6) the location and availability of the following: (A) the complete permit application; (B) the draft permit; (C) all other relevant supporting materials in the public files of the agency; (7) a description of the comment procedures, including the duration of the public notice comment period and procedures to request a hearing; (8) the notification that a person who may be affected by the emission of air pollutants from the site is entitled to request a notice and comment hearing; and (9) the name, address, and phone number of the commission office to be contacted for further information. (c) One notice may be published for multiple permits at a site with the approval of the executive director. (d) The applicant shall submit a copy of the public notice and date of publication to the executive director and all local air pollution control agencies with jurisdiction in the county in which the site is located. (e) The applicant shall submit a statement to the executive director, with a certification in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official), that the sign required by subsection (h) of this section has been posted consistent with the provisions of that subsection. (f) The executive director shall make a copy of the permit application, the draft permit, and any required notices accessible to the EPA. (g) The executive director shall make available for public inspection the draft permit and the complete application throughout the comment period during business hours at the commission's central office and at the commission's regional office where the site is located. (h) At the applicant's expense, a sign shall be placed at the site declaring the filing of an application for a permit and stating the manner in which the executive director may be contacted for further information. (1) The sign shall meet the following requirements. (A) The sign shall consist of dark lettering on a white background and shall be not smaller than 18 inches by 28 inches. (B) The sign shall be headed by the words "APPLICATION FOR FEDERAL OPERATING PERMIT" in no less than two-inch bold face block printed capital lettering. (C) The sign shall include the words "APPLICATION NO." and the number of the permit application in no less than one-inch bold-face block printed capital lettering. (D) The sign shall include the words "for further information contact" in no less than 1/2-inch lettering. (E) The sign shall include the words "TEXAS NATURAL RESOURCE CONSERVATION COMMISSION," and the address of the appropriate commission office in no less than one-inch bold-face capital lettering and 3/4-inch bold-face lower case lettering. (F) The sign shall include the phone number of the appropriate commission office in no less than two-inch bold-face numbers. (2) The sign shall be in place by the date of publication of the newspaper notice and shall remain in place and legible throughout the period of public comment. (3) The sign placed at the site shall be located at or near the site main entrance, provided that the sign is legible from the public street. If the sign would not be legible from the public street, then the sign shall be placed within ten feet of a property line paralleling a public street. (A) The executive director may approve variations if the applicant has demonstrated that it is not practical to comply with the specific sign-posting requirements. (B) Alternative sign-posting plans proposed by the applicant must be at least as effective in providing notice to the public. (C) The executive director must approve the variations before signs are posted. (4) One sign may be posted for multiple permits at a site with the approval of the executive director. (i) The executive director shall receive public comment for 30 days after the notice of the public comment period is published. During the comment period, any person may submit written comments on the draft permit. (j) During the 30-day public notice comment period, any person who may be affected by emissions from a site regulated under this chapter may request in writing a notice and comment hearing on the draft permit. (k) The draft permit may be changed based on comments pertaining to whether the permit provides for compliance with the requirements of this chapter. (l) The executive director shall respond to comments consistent with sec.122.345 of this title (relating to Notice of Proposed Final Action). sec.122.322.Bilingual Public Notice. (a) The requirements of this subsection are applicable when either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education program as required by Education Code, sec.21.109, and 19 Texas Administrative Code (TAC) sec.89.2(a) (relating to Professional Development), or if either school has waived out of such a required bilingual education program under the provisions of 19 TAC sec.89.2(g). Schools not governed by the provisions of 19 TAC sec.89.2 shall not be considered in determining applicability of the requirements of this section. Each affected facility shall meet the following requirements. (1) At the applicant's expense, an additional notice shall be published at least once in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC sec.89.2(a) under 19 TAC sec.89.2(g), the notice shall be published in the alternate languages in which the bilingual education program would have been taught had the school not waived out of the bilingual education program. (2) Each notice under this section shall be published in a newspaper or publication that is published in the alternate language in which public notice is required. (3) The newspaper or publication must be of general circulation in the municipality or county in which the facility is located or proposed to be located. (4) The requirements of this section are waived for each language in which no publication exists, or if the publishers of all alternate language publications refuse to publish the notice. (5) Notice under this subsection shall only be required to be published within the United States. (6) If the alternate language publication is published less frequently than once a month, this notice requirement may be waived by the executive director on a case-by-case basis. (7) Each alternate language publication shall follow the requirements of sec.122.320 of this title (relating to Public Notice) not otherwise inconsistent with this subsection. (8) At the applicant's expense, an additional sign shall be posted in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC sec.89.2(a) under 19 TAC sec.89.2(g), the alternate language signs shall be posted in the alternate languages in which the bilingual education program would have been taught had the school not waived out of the bilingual education program. (9) The alternate language signs shall be posted adjacent to each English language sign required in public notice. (10) The alternate language signs shall meet all other requirements of sec.122.320 of this title. (b) Elementary or middle schools that offer English as a second language under 19 TAC sec.89.2(d), and are not otherwise affected by 19 TAC sec.89.2(a), will not trigger the requirements of subsection (a) of this section. (c) If the notices required by sec.122.320 of this title and sec.122.340 of this title (relating to Notice and Comment Hearing) are combined, the combined notice is subject to the requirements of this section. 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 October 15, 1997. TRD-9713912 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Affected State Review 30 TAC sec.122.330 The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. 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 October 15, 1997. TRD-9713913 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 EPA Review 30 TAC sec.122.350 The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.350.EPA Review. (a) EPA review requirements apply to initial issuances, minor permit revisions, significant permit revisions, reopenings, and renewals. (b) The executive director shall submit the proposed permit to the EPA. (1) For initial issuances, significant permit revisions, reopenings, and renewals the proposed permit shall be submitted to the EPA after the end of the public comment period. (2) For minor permit revisions, the proposed permit shall be submitted to the EPA no earlier than the first day of the public announcement period. (c) Upon receipt of the proposed permit, the EPA shall have 45 days to object, in writing, to the issuance of the proposed permit. The EPA may only object to the issuance of any proposed permit which is not in compliance with the applicable requirements or the requirements of this chapter. (d) The executive director may issue the permit provided the following: (1) the EPA does not object to the issuance of the proposed permit; (2) the EPA notifies the executive director that the EPA will not object to the issuance of the permit; or (3) the executive director resolves any objections received. (e) If the executive director fails, within 90 days of receipt of an objection, to revise the proposed permit and submit a revised permit, if necessary, in response to the objection, the EPA will issue or deny the permit in accordance with the requirements of the federal program promulgated under FCAA, Title V (relating to Permit). 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 October 15, 1997. TRD-9713914 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 Public Petition 30 TAC sec.122.360 The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.360.Public Petition. (a) Public petition requirements apply to initial issuances, significant permit revisions, reopenings, and renewals. (b) If the EPA does not file an objection with the executive director, any person, including the applicant, affected by a decision of the commission under this chapter may petition the EPA to make an objection. After receiving a petition, the EPA may only object to the issuance of any proposed permit which is not in compliance with the applicable requirements or the requirements of this chapter. (c) The petition must be filed with the EPA within 60 days after the expiration of EPA's 45-day review period. (d) A copy of the petition shall be provided to the executive director and the applicant by the petitioner. (e) The petition does not limit the effectiveness of a permit issued by the executive director or the finality of the executive director's action for purposes of an appeal under Texas Health and Safety Code, sec.382.032. (f) Petitions shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period, unless the petitioner demonstrates in the petition to the EPA that it was not possible to raise the objections within the public comment period, or that the grounds for the objection arose after the public comment period. The petition shall identify all objections. (g) If the EPA objects to the permit as a result of a petition filed under this section before issuance of the permit, the executive director shall not issue the permit until EPA's objection has been resolved. (h) If the executive director has issued a permit before receipt of an EPA objection based on a public petition, the permit remains effective and the executive director shall have 90 days from the receipt of an EPA objection to resolve any objection and, if necessary, terminate or revise the permit. (1) In the event additional information is needed from the permit holder, the executive director may request from EPA a 90-day extension to resolve the objection. (2) If the executive director fails to resolve the objection, EPA will revise, terminate, or revoke the permit, and the executive director may issue only a revised permit that satisfies EPA's objection. (3) The permit holder will not be in violation of the requirement to have submitted a timely and complete application. 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 October 15, 1997. TRD-9713915 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER E. Acid Rain Permits 30 TAC sec.sec.122.410, 122.412, 122.414 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.410.Operating Permit Interface. (a) The commission hereby adopts and incorporates by reference, except as specified in this section, the provisions of 40 Code of Federal Regulations (CFR) Part 72 (with an effective date of July 17,1995), Part 74 (with an effective date of May 4, 1995), and Part 76 (with an effective date of February 17, 1997) for purposes of implementing an acid rain program that meets the requirements of FCAA, Title IV. (b) Applicants for sources subject to 40 CFR 72, 74, and 76 shall comply with those requirements. (c) If the provisions of 40 CFR 72, 74, and 76 conflict with or are not included in this chapter, the provisions of 40 CFR 72, 74, and 76 shall apply and take precedence except for the following. (1) References to 40 CFR 70 in 40 CFR 72, 74, and 76 shall be satisfied by the requirements of this chapter for the purposes of implementing the acid rain program. (2) The procedural requirements for acid rain permit revisions in 40 CFR 72, Subpart H (relating to Acid Rain Permit Revisions) shall be satisfied by sec.122.414 of this title (relating to Acid Rain Permit Revisions). sec.122.412.Acid Rain Permit Application Due Dates. The designated representative shall submit acid rain permit applications for affected units subject to 40 CFR 72, 74, or 76 to the executive director by the following dates. (1) Sulfur dioxide. (A) Applications for initial Phase II acid rain permits with an existing unit under 40 CFR 72.6(a)(2) shall be submitted by January 1, 1996. (B) Applications for Phase II acid rain permits for new units shall be submitted at least 24 months before the later of January 1, 2000, or the date on which the unit commences operation. (C) Applications for Phase II acid rain permits for units under 40 CFR sec.72.6(a)(3)(ii) shall be submitted at least 24 months before the later of January 1, 2000, or the date on which the unit begins to serve a generator with a nameplate capacity greater than 25 megawatts of electricity. (D) Applications for Phase II acid rain permits for units under 40 CFR sec.72.6(a)(3)(iii) shall be submitted at least 24 months before the later of January 1, 2000, or the date on which the auxiliary firing commences operation. (E) Applications for Phase II acid rain permits with a unit under 40 CFR sec.72.6(a)(3)(iv) or (vii) shall be submitted before the later of January 1, 1998, or the March 1 of the year following the three-year calendar period in which the unit fails to meet the requirements of 40 CFR sec.72.6(b)(4) or (7). (F) Applications for Phase II acid rain permits with a unit under 40 CFR sec.72.6(a)(3)(v) or (vi) shall be submitted before the later of January 1, 1998, or the March 1 following the calendar year in which the unit fails to meet the requirements of 40 CFR sec.72.6(b)(5) or (6). (2) Nitrogen oxide. Applications for initial Phase II acid rain permits for nitrogen dioxide for affected units subject to 40 CFR 76 shall be submitted by January 1, 1998, except for early election units. (3) Opt-in sources. Applications for acid rain permits for opt-in sources to the acid rain program shall be submitted in accordance with 40 CFR 74. sec.122.414.Acid Rain Permit Revisions. (a) For the purposes of implementing the procedural requirements of 40 CFR 72, Subpart H (relating to Acid Rain Permit Revisions Procedural Sections), the following sections of Subchapter C of this chapter (relating to Initial Permit Issuances, Revisions, Reopenings, and Renewals) shall be substituted. (1) The provisions of sec.122.212 and sec.122.213 of this title (relating to Applications for Administrative Permit Revisions and Procedures for Administrative Permit Revisions) shall be used to satisfy the procedural requirements of 40 CFR sec.72.83(b) and sec.72.80(d) for acid rain permit administrative amendments, except that the executive director shall submit the revised portion of the acid rain permit to EPA no later than ten working days after the date of final action on the revision. (2) The provisions of sec.122.216(b) and sec.122.217(f) of this title (relating to Applications for Minor Permit Revisions and Procedures for Minor Permit Revisions) shall be used to satisfy the procedural requirements of 40 CFR sec.72.82 for acid rain fast-track modifications with the following restrictions. (A) The designated representative shall provide a copy of the complete application requesting a minor permit revision to the executive director, the EPA, and any person entitled to a written notice (as defined in 40 CFR sec.72.65(b)(1)(ii), (iii), and (iv)). (B) Changes shall not be operated before the permit is revised. (C) Provisional terms and conditions do not apply. (D) The executive director shall initiate procedures for public announcement within five days of receipt of the application request. However, the application rather than the draft permit shall be the subject of public announcement. (E) The executive director shall consider the permit application and comments received and provide approval, in whole or in part with changes or conditions as appropriate, or disapproval of the permit revision within 30 days of the close of the public announcement period. (3) The provisions of sec.122.220 and sec.122.221 of this title (relating to Applications for Significant Permit Revisions and Procedures for Significant Permit Revisions) shall be used to satisfy the procedural requirements of 40 CFR sec.72.81(c) for acid rain permit modifications. (4) The provisions of sec.122.231 of this title (relating to Permit Reopenings) shall be used to satisfy the procedural requirements of 40 CFR sec.72.85 for acid rain permit reopenings. (b) The following provisions shall apply to the procedural requirements for acid rain permit revisions. (1) Changes qualifying as administrative permit revisions may be processed as minor or significant permit revisions at the option of the designated representative. (2) Changes qualifying as minor permit revisions may be processed as significant permit revisions at the option of the designated representative. (3) The designated representative may be subject to enforcement action if the change to the permit is later determined not to qualify for the type of permit revision submitted. (4) Provisional terms and conditions are not eligible for a permit shield. 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 October 15, 1997. TRD-9713916 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER F.General Operating Permits Procedural Requirements for General Operating Permits 30 TAC sec.sec.122.501-122.506, 122.508 The new sections are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.sec.382.015-382.017, which provide for power to enter property; monitoring requirements, examination of records; and the authority to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling methods and procedures; and investigations; sec.382.030 and sec.382.031, which provide for delegation of hearing powers; notice of hearings; and appeal of commission actions; sec.382.040 and sec.382.041, which provide for public records and submission of confidential information; sec.382.051, which provides the commission the authority to issue federal operating permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits; sec.sec.382.0513-382.0517, which provide authority for the commission to establish and enforce permit conditions; to require sampling, monitoring, and certification; to require permit applications; provide notices to state senators and representatives; and to determine administrative completeness of applications; sec.sec.382.054-382.0543, which provide for federal operating permits; administration and enforcement of federal operating permits; issuance of federal operating permits and appeal of delays; and review and renewals of federal operating permits; sec.382.056, which provides for notice of intent to obtain a permit or permit review and provides for permit hearings for federal operating permits; sec.sec.382.0561-382.0564, which provide for federal operating permit public hearings; notices of decision for federal operating permits; public petition of federal operating permits to the administrator; and notification to other governmental entities for federal operating permits; sec.382.059 and sec.382.0591, which provide for the revocation of federal operating permits; and denial of applications for permits if assistance has been provided by former or current employees, sec.382.061, which provides for appeal of federal operating permits, sec.382.064, which provides for initial application dates for federal operating permits, sec.382.085, which prohibits unauthorized emissions, and under the Texas Water Code (TWC), including sec.5.103, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and other laws of this state; sec.5.105, which provides the commission with the authority to establish and approve commission policy; sec.5.115 and sec.5.116, which provide for notice of applications; and recess of hearings; sec.5.121 and sec.5.122, which provide for public information; and delegation of uncontested matters to the executive director; sec.5.234, which provides for applications and other documents, sec.5.351, which provides for judicial review of commission acts, sec.5.355, which provides for appeal of district court judgment; and sec.sec.7.001-7.358, which provide for enforcement. sec.122.501.General Operating Permits. (a) The commission may adopt by rule a general operating permit for numerous similar stationary sources provided the following: (1) the conditions of the general operating permit provide for compliance with all requirements of this chapter; (2) the requirements under sec.122.506 of this title (relating to Public Notice for General Operating Permits) have been satisfied; (3) the requirements under sec.122.330 of this title (relating to Affected State Review) have been satisfied; (4) the requirements under sec.122.508 this title (relating to Notice and Comment Hearings for General Operating Permits) have been satisfied; (5) the requirements under sec.122.350 of this title (relating to EPA Review) have been satisfied; and (6) the adoption process is consistent with the Government Code, Administrative Procedure Act, Chapter 2001 or 2002. (b) General operating permits are subject to the requirements under sec.122.360 of this title (relating to Public Petition). (c) Each general operating permit shall identify the terms and conditions with which the permit holder shall comply. (d) The commission may amend or repeal any general operating permit under the Government Code, Administrative Procedure Act, Chapter 2001 or 2002. (e) The executive director shall make a copy of the proposed draft general operating permit accessible to the EPA. (f) General operating permits must be renewed, consistent with the procedural requirements of this section, at least every five years after the effective date. sec.122.502.Authorization to Operate. (a) The executive director shall grant a request for authorization to operate under a general operating permit to applicants who submit a complete application under sec.122.134 of this title (relating to Complete Application) and who qualify for the general operating permit. (b) Upon the granting of authorization to operate under a general operating permit, applicability determinations and the bases for the determinations in a general operating permit application become conditions under which the permit holder shall operate. (c) The permit holder may be subject to enforcement action for operating without a permit if the permit holder, having been granted the authorization to operate under a general operating permit, is later determined not to qualify for the general operating permit. (d) Authorizations to operate under general operating permits shall have terms not to exceed five years. (e) More than one authorization to operate under a general operating permit may be granted for a site. (f) A copy of the permit, the permit application, and the authorization to operate shall be maintained at the location specified in the authorization to operate. (g) The granting of an authorization to operate under a general operating permit shall not be a final action by the executive director, and therefore, is not subject to judicial review. (h) General operating permits shall not be authorized for affected units under the acid rain program. (i) The executive director shall make a copy of the authorization to operate accessible to the EPA. sec.122.503.Application Revisions for Changes at a Site. (a) The permit holder shall submit an updated application to the executive director for the following activities at a site: (1) a change, addition, or removal of any applicability determinations or the basis of any determinations in the original general operating permit application; (2) a correction of typographical errors; (3) a change in the permit identification of ownership or operational control of a site where the executive director determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the old and new permit holder is maintained with the permit. (b) The updated application for a general operating permit under this subsection shall contain at a minimum the following: (1) a description of each change; (2) a description of the emission unit affected; (3) any changes in the applicability determinations; (4) any changes in the bases of the applicability determinations; (5) the provisional terms and conditions as defined in sec.122.10 of this title (relating to General Definitions); (6) a statement that the emission units qualify for the general operating permit; and (7) a certification in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official). (c) If the following requirements are met, the change may be operated before a new authorization to operate is granted by the executive director: (1) the permit holder complies with the following: (A) Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); (B) all applicable requirements; and (C) all state-only requirements; (D) the provisional terms and conditions as defined in sec.122.10 of this title; (2) the permit holder submits to the executive director the information required in subsection (b) of this section before the change is operated; (3) the permit holder maintains with the authorization to operate under the general operating permit, the information required by subsection (b) of this section until the executive director grants a revised authorization to operate; and (4) the permit holder operates under the representations in the application required by this subsection. (d) The permit holder need not comply with the representations in the original application that have been replaced by provisional terms and conditions before the granting of a new authorization to operate. (e) In every case, the applicable requirements and state-only requirements are always enforceable. (f) The executive director shall grant a request for authorization to operate under a general operating permit to applicants who qualify. (g) If the emission units addressed in the authorization to operate no longer meet the requirements for a general operating permit, the permit holder must submit a complete application for another operating permit. (h) If it is later determined that the permit holder does not qualify for a revision applied for under this section, the permit holder may be subject to enforcement action for operation without a permit. (i) Revisions to applications under this section, and the granting of authorizations to operate under a general operating permit, shall not be a final action by the executive director, and therefore, are not subject to judicial review. sec.122.504.Application Revisions When a General Operating Permit is Revised or Repealed. (a) This section applies if the permit holder's authority to operate under a general operating permit is affected by the revision or repeal of a rule. (1) The permit holder must submit an application for the general operating permit containing at a minimum the following information: (A) a description of the emission unit affected; (B) any changes, additions, or removals of applicability determinations; (C) the basis of each determination identified under subparagraph (B) of this paragraph; (D) the provisional terms and conditions as defined in sec.122.10 of this title (relating to General Definitions); (E) a statement that the emission units qualify for the general operating permit; and (F) a certification in accordance with sec.122.165 of this title (relating to Certification by a Responsible Official). (2) The application must be submitted by the effective date of the general operating permit. (3) The permit holder shall comply with the following: (A) Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); (B) all applicable requirements; (C) all state-only requirements; and (D) the provisional terms and conditions as defined in sec.122.10 of this title (relating to General Definitions). (4) The permit holder shall record the information required in paragraph (1)(A)- (E) of this subsection before the compliance date of the new requirement or effective date of the repealed requirement. The information in paragraph (1)(A)- (F) of this subsection shall be submitted no later than 45 days after the compliance date of the new requirement or effective date of the repealed requirement. (5) The permit holder shall maintain the information required in paragraph (1)(A)-(E) of this subsection with the permit until a new authorization is granted. (b) The permit holder need not reapply for a revised general operating permit, provided the following: (1) the emission units addressed in the authorization to operate qualify for the revised general operating permit; (2) the applicability determinations remain unchanged; and (3) basis for each applicability determination remain unchanged. (c) If a general operating permit is repealed and not replaced, the authorization to operate under the general operating permit is revoked. (d) If a permit holder's authority to operate under a general operating permit is affected by the revision or repeal of a general operating permit and the permit holder no longer qualifies for the general operating permit or no longer intends to operate under the general operating permit, the permit holder must apply for another operating permit by the effective date of the revision or repeal of the general operating permit. (e) Those representations in the application not affected by the revision remain conditions under which the permit holder shall operate. (f) In every case, the applicable requirements and state-only requirements are always enforceable. (g) The permit holder need not comply with the representations in the original application or the original terms and conditions codified in the permit that have been replaced by provisional terms and conditions before the granting of a new authorization to operate. sec.122.505.Renewal of the Authorization to Operate Under a General Operating Permit. (a) Authorizations to operate under general operating permits shall expire no later than five years from the date of the initial authorization to operate or renewal of the authorization to operate. (b) The executive director shall provide written notice to the permit holder that the authorization to operate under the general operating permit is scheduled for review. (1) The notice will be provided by mail no later than 12 months before the expiration of the authorization to operate under the general operating permit. (2) The notice shall specify the procedure for submitting a renewal application. (3) Failure to receive notice does not affect the expiration date of the authorization or the requirement to submit a timely and complete application. (c) A renewal application shall be submitted by the permit holder to the executive director at least six months, but no earlier than 18 months, before the date of expiration of the authorization to operate under the general operating permit. (d) The executive director shall grant a request for a renewal of an authorization to operate under a general operating permit to applicants who submit a complete application under sec.122.243 of this title (relating to Permit Renewal Procedures) and who qualify for the general operating permit. (e) Expiration of the authorization to operate terminates the permit holder's right to operate unless a timely and complete renewal application has been submitted. After a timely and complete renewal application is submitted, the permit holder may continue to operate under the terms and conditions of the previous authorization to operate until the new authorization to operate is granted or denied. (f) In determining whether and under what conditions an authorization to operate under a general operating permit should be renewed, the executive director shall consider the following: (1) whether the general operating permit, in conjunction with the general operating permit application, provides for compliance with all applicable requirements and an accurate listing of state-only requirements; and (2) the site's compliance status with this chapter and the terms and conditions of the existing permit. (g) The executive director shall make a copy of the renewal application, general operating permit, and any required notices accessible to the EPA. (h) The renewal of an authorization to operate under a general operating permit shall not be a final action by the executive director, and therefore, is not subject to judicial review. sec.122.506.Public Notice for General Operating Permits. (a) Before the adoption of any general operating permit, the executive director shall publish notice of the opportunity for public comment and hearing on the proposed draft general operating permit rule. In addition to the requirements of the Government Code, Administrative Procedure Act, Chapter 2001 or 2002, the notice shall contain the following information: (1) a description of the activities involved in the proposed draft general operating permit rule; (2) the location and availability of copies of the proposed draft general operating permit rule; (3) a description of the comment procedures, including the duration of the public notice comment period; (4) the time, place, and nature of the hearing that will be held regarding the proposed draft general operating permit rule; (5) a brief description of the purpose of the hearing that will be held regarding the proposed draft general operating permit rule; and (6) the name, address, and phone number of the commission office to be contacted for further information. (b) The executive director shall make a copy of the renewal application, general operating permit, and any required notices accessible to the EPA. (c) The executive director shall make the proposed draft general operating permit rule available for public inspection throughout the comment period during business hours at the commission's central office. (d) The executive director shall receive public comment for 30 days after the notice of the public comment period is published. During the comment period, any person may submit written comments on the proposed draft general operating permit rule. (e) The proposed draft general operating permit rule may be changed based on comments pertaining to whether the general operating permit provides for compliance with the requirements of this chapter. (f) The executive director shall respond to comments consistent with sec.122.345 of this title (relating to Notice of Proposed Final Action) and the Government Code, Administrative Procedure Act, Chapter 2001 or 2002. (g) The executive director shall provide 30 day's advance notice of the hearing. sec.122.508.Notice and Comment Hearings for General Operating Permits. (a) Before the adoption of any general operating permit, the executive director shall hold a notice and comment hearing regarding the proposed draft general operating permit rule. (b) All hearings regarding general operating permits shall be conducted according to the APA. (c) Any person may submit oral or written statements and data concerning the proposed draft general operating permit rule. (1) Reasonable time limits may be set for oral statements, and the submission of statements in writing may be required. (2) The period for submitting written comments is automatically extended to the close of the hearing. (3) At the hearing, the period for submitting written comments may be extended beyond the close of the hearing. (d) A tape recording or written transcript of the hearing shall be made available to the public. (e) Any person who believes that any condition of the proposed draft general operating permit rule is inappropriate or that the preliminary decision to adopt the general operating permit is inappropriate, must raise all reasonably ascertainable issues and submit all reasonably available arguments supporting that position by the end of the public comment period. (f) Any supporting materials for comments submitted under subsection (c) of this section shall be included in full and may not be incorporated by reference, unless the materials are one of the following: (1) already part of the administrative record in the same proceedings; (2) state or federal statutes and regulations; (3) EPA documents of general applicability; or (4) other generally available reference materials. (g) The executive director shall keep a record of all comments and also of the issues raised in the hearing. This record shall be available to the public. (h) The proposed draft general operating permit rule may be changed based on comments pertaining to whether the proposed draft general operating permit rule provides for compliance with the requirements of this chapter. (i) The executive director shall respond to comments consistent with sec.122.345 of this title (relating to Notice of Proposed Final Action) and the Government Code, Administrative Procedure Act, Chapter 2001 or 2002. 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 October 15, 1997. TRD-9713917 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 10, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 239-1966 CHAPTER 213.Edwards Aquifer SUBCHAPTER A.Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis and Williamson Counties 30 TAC sec.213.14 The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.213.14, with changes to the proposed text as published in the July 8, 1997, issue of the Texas Register (22 TexReg 6400). EXPLANATION OF ADOPTED RULE The purpose of the amendments is to implement legislative changes to Texas Water Code, sec.26.0461(a) and (d) regarding Fees for Edwards Aquifer Plans, as enacted by House Bill (HB)1016, 75th Legislature (1997). Section 26.0461 (a), as amended, authorizes the commission to assess fees for processing Edwards Aquifer protection plans or amendment to plans and for inspecting the construction and maintenance of water quality protection measures. Section 26.0461 (d), as amended, raises the cap on any fee imposed under sec.26.0461 from $2000 to $5000. Based on a five-year average, the estimated annual fee revenue shortfall for the program under the current regulations is $352,200. The adopted fees will generate sufficient revenue to cover this shortfall in periods of strong economic growth. Section 213.14, Fee Schedule, contains the criteria for calculating the application fee for the review of an Edwards Aquifer protection plan and modifications to a plan. The water pollution abatement plan (WPAP) fee schedule for one single-family residential dwelling on less than 5 acres is $500. The WPAP fee schedule for one single-family residential dwellings and parks reflects four categories based on size in acres with fees set at $1,000 for less than 5 acres, $2,000 for 5 to less than 10 acres, $3,000 for 10 to less than 50 acres, and $5,000 for sites 50 acres and greater. The fee schedule for non-residential (commercial, industrial, institutional, schools, and other sites where regulated activities will occur) reflects four categories based on size in acres with fees set at $2,000 for less than 1 acre, $3,000 for 1 to less than 5 acres, $4,000 for 5 to less than 10 acres, and $5,000 for 10 acres and greater. Sewage collection system plans and modifications are assessed a fee of $.50 per linear foot, with a minimum fee of $500 and a maximum fee of $5,000. Underground or permanent aboveground storage tank system facility plans and modifications are assessed a fee of $500 per tank or piping system, with a minimum fee of $500 and a maximum fee of $5,000. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to amend the regulations set forth in Chapter 213 to adjust the amounts of fees assessed on persons whose activities have the potential for polluting the Edwards Aquifer and hydrologically connected surface water. Promulgation and enforcement of this rule will not affect private real property which is the subject of the rule. Promulgation and enforcement of these rules will not restrict or limit the owner's right to the property that would otherwise exist in the absence of the rulemaking. Owners of property that is used for activities having the potential for polluting the Edwards Aquifer and hydrologically connected surface water are presently required to submit an application for approval or modification of a plan as well as an application fee at the time the application is filed. This rulemaking, which to a large extent increases the amount of fees such owners will be responsible for paying, does not further restrict the right to the property. Also, this rulemaking is not the producing cause of a reduction in the market value of the affected private real property. Therefore, this action does not create a burden on the affected private real property. In addition, the Texas Government Code, sec.2007.003(b)(13), exempts from its coverage those governmental actions that are taken in response to a real and substantial threat to public health and safety, that are designed to significantly advance the health and safety purpose, and that do not impose a greater burden than is necessary to achieve the health and safety purpose. The proposed rulemaking will significantly contribute to prevention of the threat of pollution of the Edwards Aquifer, the sole or primary source of water for over 1.5 million people, by providing adequate resources to the agency to enable it to enforce the rules contained in Chapter 213, which in its entirety addresses a real and substantial threat to public health and safety, significantly advances the health and safety purpose, and does not impose a greater burden than is necessary to achieve that purpose. COASTAL MANAGEMENT PROGRAM The executive director has reviewed the adopted rulemaking and determined that it is not an action that may adversely affect a coastal natural resource area that is subject to the Coastal Management Program (CMP). The adopted rule does not govern any of the actions that must be subject to the goals and policies of the CMP, pursuant to 31 TAC sec.505.11. HEARINGS AND COMMENTERS Public hearings on this rule were held in San Antonio on August 4, 1997 and in Austin on August 7, 1997, with oral testimony provided at both hearings. The comment period closed August 8, 1997. Comments on 26 different topic areas were provided by 51 commenters that were both general and specific on the overall proposal. The following 47 commenters generally supported the rules but suggested changes: State Representative Robert Puente, 41 individuals who are members of Clean Water Action (CWA) and the state program director for CWA, San Antonio Water System, Pape-Dawson Engineers, Regional Clean Air and Water Association, and an individual. One individual opposed the rule because it would not slow development. Two commenters did not generally voice support or opposition to the proposal, but suggested changes: an individual and Aquifer Guardians in Urban Areas. Northside Neighborhoods for Organized Development made statements about the program but offered no comment on the proposed rule. An individual, the state program director for CWA, NNOD, and RCAWA provided several comments that were beyond the scope of the proposed fee rule, and will not be addressed in this adoption preamble. However, the commission will consider these comments as the agency drafts the next phase of rules for the Edwards Aquifer protection program. State Representative Robert Puente commented that issues dealing with additional staff being hired for San Antonio or transfer of staff from Austin to San Antonio are best left up to the agency to decide where these resources are going to be used and how these increased fees are going to be spent. The SAWS commented that the same level of service and compliance should be provided in both the Austin and San Antonio regions and that staffing allocation decisions should be based upon the following: the amount of Edwards Aquifer Recharge Zone for which each regional office is required to provide compliance activities; the number of WPAPs approved since permanent pollution abatement has been required to reflect the volume of inspection and/or compliance work that needs to be done to assure compliance with existing plans; the total number of submittals, including technical requests and cave letters, received annually; and the number of WPAPs submittals received annually. They suggest that these factors would more accurately reflect the total workload of each region and would allow for more equitable staffing between the regions rather than basing staffing allocations on just the number of WPAPs received by a region. An individual stated that currently fees were not being returned to the San Antonio field office and continued that there is a lack of sufficient personnel to adequately inspect the increasing development on the recharge zone and suggests that the additional fee revenue be added to the San Antonio field office budget so that they can do the job adequately. PDE commented that it was unfortunate that the proposed increase to the fees will only maintain the status quo and does not provide for any increase in staff above the existing staff. PDE also stated that there is no guarantee that the funds collected will stay in the region that collected the fee and that the Austin regional office gets 60 percent of the funding and staff with 40 percent of the submittals. PDE requested that funding by region would enable the San Antonio regional office to provide enforcement. The commission responds that the current allocation of positions in the San Antonio and Austin regional offices accurately reflects the percentage of program workload performed in each office. At the end of each fiscal year (FY), the regional offices submit workload data to the deputy director for the Office of Compliance and Enforcement. These data show that for the past several years the workload and amount of fees collected has been approximately 60 percent for the Austin Region and 40 percent for the San Antonio Region. Current staffing allocation is six full-time equivalent (FTE) staff for the Austin Region and four FTEs for the San Antonio office. The commission also notes that historically, fees collected for the program have not been sufficient to cover the full costs of program administration and oversight. As a result, the costs of operating the program have been supplemented by the state water quality fund and with United States Environmental Protection Agency non-point source program grants. State Representative Robert Puente commented that the development community supported the increase in fees to pay for more staff, for better staff, and for more communication capabilities so that the development community can have a quick turnaround on their plans. Individuals concerned about the potential pollution degradation of the aquifer sought the increase in fees to make sure that the agency had the capability and the staff to enhance communications to determine what is going on over the recharge zone, and to expertly review plans to make sure that what is proposed is not only good for the development community but for everyone else, the community at large. Puente noted that HB 1016 was an opportunity for the environmentalists, the quality control people, the developers, and the developing community to allow the commission to do its job and to have the attention that this particular part of the Edwards region needs. Forty-one individuals who are members of CWA and the state program director for CWA suggested that the increase in fees be used for better enforcement of water quality protection to ensure that San Antonio has a safe and reliable drinking water source in the future. The state program director for CWA suggested that fees need to be raised to support enforcement but at the same time prevention is needed. The program director suggested that sufficient resources should be used to support better monitoring, to support better enforcement, to work with interested parties and the SAWS to find a way to improve development that is grandfathered from the San Antonio Water Quality Ordinance. SAWS suggested that the increased fees for larger projects will be a beneficial change if additional revenue is used to provide adequate staff for application review, site inspection and compliance investigations. The RCAWA commented that they agree with the increase in fees but stated that fees alone are not sufficient without follow-up. An individual commented that without follow-up with inspection and enforcement the rule is worthless. Another individual commented that there is no use in increasing the fees if the monies are not spent for monitoring the plans as they unfold and that the San Antonio Field Office monitoring efforts are inadequate. The commission agrees that increased effort should be directed toward performing more compliance monitoring inspections and enforcement. To that end, commission staff have recommended operational changes and are drafting rule changes that will result in a reduction in the amount of time required for plan review and approval which will free up staff resources to perform additional compliance monitoring inspections. The commission anticipates that operational changes will be implemented during the first quarter of FY 1998 and that rule changes will become effective during the third quarter of FY 1998. The SAWS commented that the lack of adequate staffing in the San Antonio region makes it difficult for existing staff to educate the development community and conduct compliance inspections in counties other than Bexar. They stated that there is an apparent lack of compliance with the Edwards rules in counties west of San Antonio and present data that based on submittals of applications to the agency that indicates that no regulated activities have taken place in Kinney and Uvalde Counties in 1994 though 1996 and that one WPAP per year was the only regulated activity that took place in Medina County for the same period of time. PDE commented that they support the efforts to increase fees to strengthen the Edwards Aquifer program. PDE stated that the business community has once before taken the lead to increase fees, to add staff, and reduce review times; however, the fees were increased, but review times were never improved. PDE stated that there is no enforcement of the submitted plans and suggested that the fee modification proposals are a good initial step; however, additional efforts for review and enforcement must continue. The commission agrees that staffing constraints have limited education and compliance monitoring activities in counties west of Bexar and that increased effort should be directed toward performing more compliance monitoring inspections and enforcement which will include all counties regulated under 30 TAC sec.213. Commission staff are in the process of implementing operational changes and are drafting rule changes that will result in streamlining the plan review and approval process. As stated earlier, the implementation of this streamlining will free up staff resources to perform additional compliance monitoring inspections and will increase compliance with approved plans and enforcement in cases where non-compliance with 30 TAC sec.213 exists. PDE commented that staff continually working on technical guidelines and public hearing responses which never result in a final product or change in regulation, is a hindrance to the review and enforcement under the program. The commenter suggested that the agency partner with SAWS or other agencies that could produce results in these areas. The commission responds that it is required under sec.26.046(b) of the Texas Water Code to hold annual public hearings to receive comment on the Edwards Aquifer protection program. Comments received at public hearings in 1994 and 1995 resulted in a comprehensive rule revision which became effective in December 1996. Additional comments received at the 1996 hearings are being considered as commission staff proposes rules for a second phase of rulemaking which is expected to be proposed in November 1997. The commission believes that changes to operational procedures, technical guidelines, and rules have resulted in a more efficient program that protects the water quality of the Edwards Aquifer. AGUA commented that the recent issue of a new technical guidance document for public comment clearly steps back from the pollution prevention approach. They stated that the new guidance document does not specifically address issues such as recharge feature protection and that it eliminates classes of pollutants such as oil, grease, and lawn chemicals from regulatory control. They continued that the document downsizes the design criteria for pollution prevention structures and allows new sources of pollution and drinking water degradation, such as effluent application on the recharge zone. The commenter suggests that the agency work with community experts to conduct a program which preserves the aquifer. The commission believes that the commenter is referring to a very early draft of the Technical Guidance Manual that is currently undergoing extensive revision. The purpose of the manual is to offer a broad range of structural and non- structural best management practices (BMPs) that will continue to provide a high level of protection to the water quality of the aquifer. The first draft of the manual contained information about a number of BMPs that are used in Texas as well as other states. That draft was circulated for review and comment to several engineering firms in the San Antonio and Austin areas as well as to the City of Austin, the San Antonio Water System, the Barton Springs/Edwards Aquifer Conservation District, and the Texas Parks and Wildlife Department. As a result of the comments received, commission staff have determined that some BMPs are not appropriate for use in the Edwards Aquifer recharge zone and these have been deleted from the draft manual. The BMPs that will be included in the final version of the manual will be expected to achieve specific performance standards for pollutant removal. Additionally, staff is drafting a proposed rule that will require BMP performance standards. The commission is taking this approach because it believes that guidance documents should explain how compliance with the rules may be achieved but that they should not include substantive requirements that are not contained within rules. The commission will go through the rulemaking process when it intends to establish a requirement that is enforceable or criteria that an entity must meet in order to receive a permit or other authorization from the commission. An individual suggested that the proposed fee schedule invites high density residential subdivision and commercial developments by imposing a burdensome application fee on individuals wishing to build one single-family residence on 1 to 5 acres. The commenter suggested that the application fee is relatively high for most individuals but no impediment to established developers who routinely build up to four houses per acre, or construct stores and strip centers with high vehicle traffic. Another individual commented that increasing the fee is not going to do anything to slow development and suggested that the $3,000 fee may ease the conscience of people who prefer to develop over the recharge zone; however, the amount can be handled easily by the regulated community. The commission disagrees that the proposed fee schedule imposes a burdensome application fee on individuals wishing to build one single-family residence on less than 5 acres. However, for that category of development, the commission is amending the fee schedule to reflect a fee of $500 for one single-family residence on less than 5 acres based on the level of effort required to review a WPAP for this type of application. Because the agency receives approximately 5 applications per year that would fall into this category, the decrease in fees will have no significant impact on the funding of the program. The commenter goes on to say that the rule does not distinguish between developers who build up to four houses per acre and developers who build one single-family residence on the same size area. The commission responds that the fee is not intended to slow development or to affect the degree of development on a given piece of land. The fee is designed to defray the expense arising from reviewing a WPAP filed with the commission and for administering the commission's regulation of activities occurring on and around the Edwards Aquifer. CWA commented that they support the raising of the fee of up to $5,000. They stated that they are concerned that the aquifer is suffering from uncontrolled growth over the recharge zone and support a fee structure to redirect development off the recharge zone. The state program director for CWA suggested that the fees be used as a green tax, such that if development is going to cause degradation and put others at a higher risk, then the development should pay for that degradation or potential degradation of a drinking water supply like the Edwards Aquifer. The commenter suggested that Senate Bill (SB) 633 from the 75th Legislative Session concerning the regulatory analysis of major environment rules should apply to this fee because this type of fee should equalize the risk to the cost to the community and to the public health and safety and should help with resources to the agency for protection of the public. The commission responds that the fee is designed to reimburse the costs incurred to review and evaluate an Edwards Aquifer protection plan, in accordance with HB 1016, which provides that the commission may impose fees for processing plans and for inspecting the projects covered by the plan. The statute does not authorize the commission to assess fees for other purposes. A commenter also stated that SB 633 should apply to this type of fee. The commission disagrees that this proposed rule is subject to SB 633 which applies to rules that exceed an express requirement of state law or that are adopted pursuant to an agency's general powers. The commission believes these proposed fees would be adopted pursuant to a specific statute and do not exceed express requirements in that statute. SAWS commented that the lack of reduced fees structure for one single family residence or two contiguous single-family residences (duplex) on less than five acres will favor denser residential development over individual homeowners. An individual commented that while application fees are necessary to produce income to support the Edwards Aquifer protection program, a fee schedule which generates revenue based on pollutant load, size of project, and difficulty of technical review should be used. The individual suggested that 1 single-family residence, 1-5 acres in size should pay a fee of $350 to shift the cost of doing business on the recharge zone from those typically least able to afford it to those who are more capable of spreading the financial burden. SAWS commented that the fee structure should include reduced fees for one single-family residence or two contiguous single-family residences (duplex) on less than five acres. They suggested the following changes to the fee structure for a new category for one single-family residence or two contiguous single-family residences based on size: 1 acre would pay a fee of $300, more than 1 acre to less than 2 acres would pay a fee of $350, 2 acres to less than 3 acres would pay a fee of $400, 3 acres to less than 4 acres would pay a fee of $450, and 4 to less than 5 acres would pay a fee of $500. They state that a reduced fee structure for this category has been available to homeowners as an exception to the standard fees for several years and they suggest that these revisions would be consistent with current agency practices. They state that the agency review required for a single homesite is less rigorous than that required for a residential subdivision. The commission agrees that the potential for pollution and the complexity of technical review and inspections for one single-family residence on a less than 5-acre tract is not as significant as for a residential development which may contain 20 or more residences in the same size area. The commission is therefore amending the fee schedule to reflect a fee of $500 for one single-family residence on less than 5 acres. SAWS commented that the minimum application fee for a 1 acre commercial-type sites should be raised to $2,000. They also suggest that the fee for commercial- type sites that are 1 acre to less than 10 acres be split into two categories: 1 acre to less than 5 acres would pay $3,000 and 5 to less than 10 acres would pay $4,000. They suggested that public schools be moved into this fee category and out of the single-family residential dwellings category. They stated that commercial sites of less than one acre are a significant portion of the commercial WPAPs received and that these sites are often high traffic sites such as service stations, convenience stores, and small strip centers. They suggest that WPAPs for all commercial-type sites require an intensive review period and that sites that are less than one acre in size have parking areas which will require permanent pollution abatement measures for the treatment of stormwater run-off. Additionally, they commented that it is inconsistent to charge the same fee for a commercial-type site on less than one acre and a residential development on less than five acres because of the review time differences. An individual suggested that commercial and industrial projects including mass grading should be charged the following acres size fees: less than 1 acre, $2,000; greater than or equal to 1 acre to 5 acres, $3,000; greater than or equal to 5 acres to 10 acres, $4,000; and greater than or equal to 10 acres, $5,000. The commission agrees that the potential for pollution, the complexity of technical review, and the need for routine compliance monitoring inspections is greater for non-residential (commercial, industrial, institutional, and multi- family residential) projects than for residential developments. The commission is therefore amending the fee schedule for the non-residential (commercial) classification as follows: less than 1 acre, $2,000; 1 acre to less than 5 acres, $3,000; 5 acres to less than 10 acres, $4,000; 10 acres or greater, $5,000. The commission also agrees with the comment to move schools, both public and private, from the residential to non-residential category and has amended the fee schedule to reflect this change. The change in fees will not significantly change the revenue generated by the program, and it is estimated (based on collections in FY 1996) that the maximum amount of new revenue generated by this change would be $65,000 in any one year. It is not anticipated that the total incremental cost will increase total construction and developmental cost by a significant amount for any one project. The SAWS suggested an additional category for single-family residential subdivision and parks (without public schools) from the proposed single-family residential dwellings, parks, and public school category. They commented that the fees should remain the same as the proposed fees unless the WPAP will use permanent pollution abatement structures. For plans that use a permanent pollution abatement structure, the applicant should be charged a minimum of $2,000 for sites of less than one acre, $3,000 for sites of 1 acre to less than 5 acres, $4,000 for sites 5 acres to less than 10 acres, and $5,000 for sites greater than 10 acres. An individual suggests that for single-family residential subdivisions, parks, public schools, and road construction the following acres size fees should be used to generate revenue based on pollutant load, size of project, and difficulty of technical review: less than 5 acres, $1,000; greater than or equal to 5 acres to 10 acres, $2,000; greater than or equal to 10 acres to 25 acres, $3,000; greater than or equal to 25 acres to fifty acres, $4,000; and greater than or equal to 50 acres, $5,000. The commission disagrees with the commenters' proposed fee structures. All plans will be using best management practices to achieve water quality protection. Some will be temporary (such as silt fences for sediment control), some behavioral modification (such as education of workers on-site to use specific entrances to prevent soil from the site being carried to public roads and brochures distributed to home owners discussing prevention of nonpoint source pollution), and some will be permanent (such as impervious cover limits and sedimentation/filtration ponds). The fee is designed to defray the expense arising from reviewing a WPAP and for inspecting the construction and maintainance of all BMPs. The fee is tied to project size and potential impact to the aquifer and is not intend to affect the use or non-use of permanent pollution abatement practices. The SAWS commented that HB 1016 allows the commission to impose fees for inspecting the construction and maintenance of regulated sites. They suggest that an annual or biennial inspection fee should be instituted for all sites with permanent pollution abatement measures to allow for the allocation of additional staff to conduct compliance inspections. They also state that the fee would act as a reminder to responsible parties that they have a continuing obligation to maintain their permanent pollution abatement measures. AGUA advocated a permit fee structure which accurately reflects the important regulatory work the commission carries out in the Edwards Chapter 213 program. AGUA states that the highest level of the City of San Antonio political and water board officials met in advance of the legislative session to work with the agency staff on a long-standing request to increase fees and the effectiveness of the Edwards rules program. This group worked with the entire Bexar County delegation to provide for the administrative authority to increase fees and expand the fee program to include long-term inspection and enforcement fees. The commenter expressed that AGUA was disappointed that the commission ignored the explicit wish of the electorate on issues of program fees and recommended that fees be implemented which will cover the cost of the Edwards Chapter 213 program at the application and enforcement stages. The commission responds that HB 1016, 75th Legislative session, allows the commission to increase the maximum fee imposed from $2,000 to $5,000 on real estate development projects. Consistent with the fiscal note accompanying HB 1016, the commission has interpreted the new fee provisions to authorize only one fee to be imposed per application, which would allow the recovery of current program costs of $911,250. The commission has therefore devised a fee schedule that assesses a fee ranging from $500 to $5,000, per project, depending on the size and use of land, with the maximum fee assessed on the largest areas or higher potentially contamination risk activities. The revenue generated by these fees will also be used, for inspecting the construction and maintenance of projects as authorized by HB 1016. The SAWS commented that an annual report documenting the proper disposition of all Edwards program fees should be produced by the agency because HB 1016 state the fees "be used only for the commission's Edwards Aquifer programs." They suggested that this document be given to the Governor, members of the Natural Resources Committee of the Texas House, members of the Natural Resources Committee of the Texas Senate, and be available for public distribution at the Austin and San Antonio regional offices. The commission currently has a financial accounting system which tracks the receipt and disposition of all fees the agency uses for program activities. This information is available to all interested parties. When combined with information on costs of administering the Edwards Aquifer protection program, the financial data can be used track the expenditure of funds generated by the Edwards Program. LEGAL AUTHORITY These amended sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 26.011, and 26.341, and Texas Health and Safety Code, sec.361.024 and sec.366.012, which provide the commission with the authority to promulgate rules necessary for the exercise of its jurisdiction and powers provided by the Codes and other laws. Additionally, Texas Water Code, sec.26.046 requires the commission to hold an annual public hearing to receive evidence from the public on actions the commission should take to protect the Edwards Aquifer from pollution, sec.26.0461 allows the commission to impose fees for inspecting the construction and maintenance of projects covered by plans and for processing plans or amendments that are subject to review or approval under the commission's Edwards Aquifer rules, sec.26.121 prohibits unauthorized discharges, and sec.28.011 authorizes the commission to make and enforce rules for the protection and preservation of groundwater quality. sec.213.14.Fee Schedule. (a) Water Pollution Abatement Plans. For water pollution abatement plans and modifications to those plans, the application fee shall be based on the classification and total acreage of the site where regulated activities will occur as specified in Table 1. Figure 1: sec.213.14(a) (b) Organized sewage collection systems. For sewage collection system plans and modifications, the application fee shall be based on the total number of linear feet of all lines for which approval is sought. The fee shall be $.50 per linear foot, with a minimum fee of $500 and a maximum fee of $5,000. (c) Underground and aboveground storage tank facilities. For underground or permanent aboveground storage tank system facility plans and modifications, the application fee shall be based on the number of tanks or piping systems for which approval is sought. The fee shall be $500 per tank or piping system, with a minimum fee of $500 and a maximum fee of $5,000. 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 October 20, 1997. TRD-9713922 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 14, 1997 Proposal publication date: July 8, 1997 For further information, please call: (512) 239-4640 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART X. Texas Water Development Board CHAPTER 363.Financial Assistance Programs SUBCHAPTER A.General Provisions The Texas Water Development Board (the board) adopts amendments to sec.363.33 and sec.363.42 concerning Financial Assistance Programs without changes to the proposed text as published in the September 5, 1997 Texas Register (22 TexReg 8924) and will not be republished. The amendments will allow adjustment of the amount of interest rate subsidy provided in fixed rate lending in the State Revolving Fund programs and correct a reference to the Development Fund Manager from the Development Fund Director. Comments were received from the City of Houston objecting to the effect of the amendments relative to the City's needs. The City advocated a more comprehensive approach to the SRF capacity issues. The proposed rules have not been changed as a result of the City's comments. The Board is currently taking a comprehensive approach to this issue and the proposed amendments represent a first step to solution of this program's issues. Formal Action by the Board 31 TAC sec.363.33 The amendments are adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, sec.15.605 which allows the board to adopt rules necessary for the State Revolving Fund, and sec.15.606 which requires the board to determine the lending rate for the State Revolving Fund. 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 October 16, 1997. TRD-9713751 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 5, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7981 Prerequisites to Release of State Funds 31 TAC sec.363.42 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, sec.15.605 which allows the board to adopt rules necessary for the State Revolving Fund, and sec.15.606 which requires the board to determine the lending rate for the State Revolving Fund. 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 October 16, 1997. TRD-9713752 Carig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 5, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7981 CHAPTER 371.Drinking Water State Revolving Fund Board Action on Application 31 TAC sec.371.52 The Texas Water Development Board (the board) adopts amendments to sec.371.52, concerning the Drinking Water State Revolving Fund, without changes to the proposed text as published in the September 5, 1997 Texas Register (22 TexReg 8925) and will not be republished. The amendments will allow adjustment of the amount of interest rate subsidy provided in fixed rate lending in the State Revolving Fund programs and correct a reference to the Development Fund Manager from the Development Fund Director. Comments were received from the City of Houston objecting to the effect of the amendments relative to the City's needs. The City advocated a more comprehensive approach to the SRF capacity issues. The proposed rules have not been changed as a result of the City's comments. The Board is currently taking a comprehensive approach to this issue and the proposed amendments represent a first step to solution of this program's issues. The amendments are adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and sec.15.6041 and sec.15.605 which provide the board authority to adopt rules for the Drinking Water State Revolving Fund. 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 October 16, 1997. TRD-9713753 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 5, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7981 CHAPTER 375.State Water Pollution Control Revolving Fund The Texas Water Development Board (the board) adopts amendments to sec.375.52, concerning State Water Pollution Control Revolving Funds, without changes to the proposed text as published in the September 5, 1997 Texas Register (22 TexReg 8926) and will not be republished. The Texas Water Development Board (the board) further adopts an amendment to sec.375.72, concerning the State Water Pollution Control Revolving Fund, without changes to the proposed text as published in the September 19, 1997 Texas Register (22 TexReg 9439) and will not be republished. The amendments will allow adjustment of the amount of interest rate subsidy provided in fixed rate lending in the State Revolving Fund programs and correct references to the Development Fund Manager from the Development Fund Director. Comments were received from the City of Houston objecting to the effect of the amendments relative to the City's needs. The City advocated a more comprehensive approach to the SRF capacity issues. The proposed rules have not been changed as a result of the City's comments. The Board is currently taking a comprehensive approach to this issue and the proposed amendments represent a first step to solution of this program's issues. Board Action on Application 31 TAC sec.375.52 The amendments are adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, sec.15.605 which allows the board to adopt rules necessary for the State Revolving Fund, and sec.15.606 which requires the board to determine the lending rate for the State Revolving Fund. 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 October 16, 1997. TRD-9713754 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 5, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7981 Prerequisites to Release of Funds 31 TAC sec.375.72 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, sec.15.605 which allows the board to adopt rules necessary for the State Revolving Fund, and sec.15.606 which requires the board to determine the lending rate for the State Revolving Fund. 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 October 16, 1997. TRD-9713755 Carig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 5, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-7981 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART III. Texas Youth Commission CHAPTER 81. Interaction with the Public 37 TAC sec.81.79 The Texas Youth Commission (TYC) adopts an amendment to sec.81.79, concerning historically underutilized business participation, without changes to the proposed text as published in the September 12, 1997, issue of the Texas Register (22 TexReg 9230). The justification for amending the section is to make a correction. The amendment corrects a misspelled word. There is no change to content. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The adopted rule implements the Human Resource Code, sec.61.034. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 14, 1997. TRD-9713580 Steve Robinson Executive Director Texas Youth Commission Effective date: November 3, 1997 Proposal publication date: September 12, 1997 For further information, please call: (512) 424-6244 PART XI. Texas Juvenile Probation Commission CHAPTER 343. Standards for Juvenile Pre-adjudication Secure Detention Facility 37 TAC sec.sec.343.1, 343.2, 343.4-343.18 The Texas Juvenile Probation Commission adopts amendments to sec.sec.343.1, 343.2 and 343.4-343.18, concerning juvenile probation standards for juvenile pre-adjudication secure detention facilities, without changes to the proposed text as published in the May 13, 1997, issue of the Texas Register (22 TexReg 4179) and will not be republished. The amendments are adopted in order to clarify juvenile probation standards and to increase public safety. Adoption of these amendments will set minimum standards for facilities dealing with juvenile offenders. The following public comments were received concerning sec.343: Section 343.1 Definitions Tarrant County: spoke in opposition to "minimum contact". They realize the economic considerations but believe "they are very different populations and should have no contact." Tarrant Co. prefers that staff training of short term detention should be different than that of post adjudication. If total separation cannot be accomplished, then a definition of "minimum" is requested. Jefferson County: supports the language of minimum contact. ...."am concerned about the populations mixing. Yet, I think the standard is well done by advising to make plans around that with written policies that would govern that where you have minimum contact." Nueces County: supports language Bruce Wilson (Individual) - proposes adding the following underlined language to the definition: ".......or other individual who is accused of having committed an offense or violation of a state juvenile corrections agency rule of supervision and is awaiting......" This is in regards to parolees being held in detention centers for rule violations. Section 343.2(a)(3)(4) Administration, Organization. Jefferson County: Spoke in support of language. Webb County: Question was answered about how the standard pertains to their specific configuration of their detention center. Section 343.2(b)(2) reporting abuse. Harris County: Clarification is needed: "Does 24 hours include weekends and holidays? Does the abuse and neglect include allegations of police brutality or abuse of parents? What reporting methods will be required?" Jefferson County: Clarification needed in certain areas. Does abuse mean alleged abuse or confirmed abuse? Section 343.4(1)- Personnel Webb County:" Would there be any guidelines as to what would be considered emotionally suitable by the commission?" Section 343.4(4) Salaries Dallas: Since recent language has changed giving ultimate authority of setting salaries to the commissioners court, Dallas County asks that modifications be make in that regard. Dallas (Intergovernmental Affairs) States that SB 1395 only recodified and put into statute that commissioners court has always had the authority to set the salaries in detention centers. Recommend that standards reflect SB 1395. Section 343.5(2) Training and Staff Development Tarrant County: supports new employees receiving 40 hours prior to taking assignments. Grayson County: encourages the deletion of the sentence : "Detention Officers must have six months (full time) for 890 hours (part time) of on the job......" Grayson County argues that it creates an operational hardship on smaller detention centers due to the high turn over in detention which in turn leads to long periods of time where there are no officers that obtain the 980 hours of training. "The only way would be to create two or three additional apprentice' or in-training positions to assure that detention officer positions are timely filled." Grayson County further suggests that TJPC create a temporary certification in Section 343.5(2). This would allow a temporarily certified officer (with 40 hours orientation) to be counted in the detention officer ratio. Section 343.5(3) Certification Travis County: recommends changing 980 hours to 1040 hours. (6 actual months). Also they do not recommend having to "certify" part time employees, but still ensure that they maintain appropriate number of hours mandated. Section 343.6(1) Data Collection Jefferson County: Clarification needed on attempted escapes, attempted suicides and what kind of injuries should be reported. Travis County: What type of injuries should be addressed for documentation? Section 343.8(a)(5)(b) Physical Plant Jefferson County: Suggests that the semi- annual inspections should be left in the language. Section 343.8(a)(6) Physical Plant Jefferson County: States concern over the deletion of :"Written policies shall be followed when you are over capacity." States that it hamstrings counties who only have 3-4 kids over as opposed to those counties who are chronically over capacity. Recommend that the language be kept in or possibly give a little room for over capacity (ie. 20% recommended by ACA). Dallas County: Strongly opposes proposed language. States that language implies a "No Vacancy" sign. "This is totally unrealistic. The flow of criminal behavior in our community is out of our control and to place this type of requirement on detention centers is not acceptable." "Does the TJPC want to go on record as allowing serious criminal offenders out on the street?" Harris County: Harris County finds this standard unrealistic because it does not allow for overpopulation. "Community safety concerns require certain juveniles to be securely housed pending their adjudication hearing. Overpopulation is not only expected from time to time, it is currently the norm for many facilities. Gregg County: Is in opposition to the deletion of the language which allows for overpopulation given their is a policy to reduce capacity. "This language prohibits a departments ability to obtain any type of variance for capacity from the Commission or their Juvenile Board." "If there are problems with enforcing these temporary waivers, modify the language to include consequences for non- compliance with the temporary waiver." Lubbock County: Disagrees with the language removing the language which allows for a written policy to reduce capacity. "This language prohibits the department's ability to obtain any type of waiver while re-rating for capacity from the Commission or the department' juvenile board. " "If there are problems with enforcing these temporary Waivers, modify the language to include consequences for noncompliance with a temporary Waiver." Section 343.8(b)(1) - Physical Plant Lubbock County: States that "if any county in this state is allowed to have open bay short-term beds, every facility in the state should also be allowed to do so as well." "If this section remains as is, it is my opinion that this will be one of the most inequitable and biased acts today ever mandated by TJPC. Dallas County: Supports Multiple-occupancy housing for several reasons: 1. It has worked in Dallas in creating a behavioral incentive for kids in detention. 2. The post adjudication already allow for it. 3. Financial implication. Furthermore, dorm settings not to exceed 24 beds, and that there be a 1:5 ratio in terms of toilets, lavatories, basins .... Jefferson County: supports the idea of single occupancy in detention centers. Bell County: has a facility which they believe should be allowed for multiple occupancy. "If the wording were amended to just allow for facilities designed' instead of saying juvenile detention facilities', it would allow us to utilize that facility. The Bell County center was a secure residential facility prior to September 1, 1996. Section 343.8(B)(2) Isolation Rooms Travis County: Recommends that "or medical personnel" be added after detention officer. The rationale is such that if medical personnel is their to check or evaluate a child in isolation, then it should take the place of a regular check by a detention officer. Section 343.8(b)(12) Physical Plant Jefferson: In newly constructed facilities, language should be added to include negative air flow system for kids with a contagious sickness. Section 343.9(b)(1)- Security and Control Jefferson: Clarification needed on the fact that the language states to have a classification plan, but does not state that you have to use it. Section 343.17(1) Programs Nueces County: States that at times such as summer and Christmas there is no educational services provided in detention. Stated that education should be offered at all times. "I don't know whether it's possible to cause the school districts to provide that sort of thing or to have the money to come directly to us in some way to make it possible for us to provide that kind of educational services all the time." After TJPC staff and board members reviewed oral and written comment, the TJPC board decided to adopt the amendments without any changes to the proposed text. The board discussed issues such as overcrowding and the mixing of pre- and post- adjudication populations, and felt that adopting the proposed amendments without changes would preserve the health and safety components of the TJPC standards. Furthermore, the consensus of the field review staff supported the board's recommendations. The amendments are adopted under Texas Human Resource Code, sec.sec.141.001, 141.041, and 141.042, which provide the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. 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 October 15, 1997. TRD-9713680 Lisa Capers General Counsel Texas Juvenile Probation Commission Effective date: November 4, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 424-6682 37 TAC sec.343.3 The Texas Juvenile Probation Commission adopts the repeal of sec.343.3, concerning fiscal management, without changes to the proposed text as published in the May 13, 1997, issue of the Texas Register (22 TexReg 4185) and will not be republished. The repeal is adopted in order to clarify juvenile probation standards. Adoption of this repeal will simplify juvenile probation standards by eliminating language that appears under other sections in the standards. No public comments regarding repeal of this section were received. The repeal is adopted under Texas Human Resource Code, sec.sec.141.001, 141.041, and 141.042, which provide the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. 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 October 15, 1997. TRD-9713681 Lisa Capers General Counsel Texas Juvenile Probation Commission Effective date: November 4, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 424-6682 CHAPTER 344. Standards for Juvenile Post-adjudication Secure Correctional Facilities 37 TAC sec.sec.344.1-344.13, 344.15-344.16 The Texas Juvenile Probation Commission adopts amendments to sec.sec.344.1- 344.13 and 344.15-344.16, concerning juvenile post-adjudication secure correctional facilities, without changes to the proposed text as published in the May 13, 1997, issue of the Texas Register (22 TexReg 4185) and will not be republished. The amendments are adopted in order to clarify juvenile probation standards and to increase public safety. Adoption of these amendments will set minimum standards for facilities dealing with juvenile offenders. The following public comments were received concerning sec.344: Section 344.7(b)(2)(B) - Physical Plant. Bell County: stated support of language because it allows them to mix populations in the classroom. Galveston County: Would like clarification on what is minimum. Section 344.8(a)(2)(D)- Security and Control. Orange County Sheriff Department: Suggests that language be made to state "shall be examined and treated if necessary." He states that it could get costly and that in his experience as a law enforcement officer, he has not known anyone to have needed medical attention after being sprayed with mace. Section 344.16(a) Programs. Nueces County: Would like to see education provided all year. In public comment, both Dallas County and Harris County requested clarification of Contract requirements versus Statutory language. They both argue that the contract implies that Counties which do not follow TJPC Standards for detention and post-adjudication are not eligible to receive state funding. They further state current provision in our contracts contradicts state statute which allows certification under TJPC or ACA Standards. After TJPC staff and board members reviewed oral and written comment, the TJPC board decided to adopt the amendments without any changes to the proposed text. The board discussed issues such as overcrowding and the mixing of pre-and post- adjudication populations, and felt that adopting the proposed amendments without changes would preserve the health and safety components of the TJPC standards. Furthermore, the consensus of the field review staff supported the board's recommendations. The amendments are adopted under Texas Human Resource Code, sec.sec.141.001, 141.041, and 141.042, which provide the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. 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 October 15, 1997. TRD-9713682 Lisa Capers General Counsel Texas Juvenile Probation Commission Effective date: November 4, 1997 Proposal publication date: May 13, 1997 For further information, please call: (512) 424-6682 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART XII. Texas Board of Occupational Therapy Examiners CHAPTER 362. Definitions 40 TAC sec.362.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.362.1, concerning Definitions, with changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6848). Changes were made to the proposed definitions of "Provisional License", "Regular License", and "Temporary License". The changes are not substantive, but clarify that the definitions of the various licenses refer to licenses issued by TBOTE, without implying a residency requirement. This amended section is being adopted to clarify that Texas licensure is the critical factor in determining who may practice Occupational Therapy in Texas and remove unnecessary references and connections to the national body that administers examinations in the field of occupational therapy. This amended section does the following: 1. Removes the requirement that persons holding regular or provisional licenses must be certified by the National Board for Certification in Occupational Therapy (NBCOT). Licensees must pass the national examination, but need not maintain national certification. 2. Provides definitions of "Licensed Occupational Therapist", ("LOT") and "Licensed Occupational Therapy Assistant", ("LOTA") as terms that may used only by persons holding appropriate regular or provisional licenses in Texas, and who may practice occupational therapy or represent themselves as occupational therapists or assistants with full rights. 3. Modifies the definitions of "Occupational Therapist, Registered (OTR)" and "Certified Occupational Therapy Assistant (COTA)" as alternate terms for persons holding regular or provisional licenses in Texas, and making the licensee responsible for meeting any other qualifications for using those terms. 4. Changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". These changes are consistent with the addition of the new terms described in 1 and 2. 5. References to "NBCOT examination", "certification examination", and "national examination" are changed to "Examination". "Examination" in turn is redefined as that required by the act and, currently, as the initial certification examination given by NBCOT. These changes make no change in the requirements for examination or licensure, but simplify reference to the examination. 6. The definition of "practice" has been modified to clarify that only persons holding valid licenses may practice Occupational Therapy in Texas. Comments were received regarding amendment of this section from individuals. Following is a summary of those comments: 1. Define the right to use "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" and "COTA" in the same language as that used in the original AOTCB petition for certification. The commenter felt this would assure all current OTRs and COTAs the right to use the terms. One commenter 2. Authorize the terms "Occupational Therapist, Licensed", ("OT/L") and "Occupational Therapy Assistant, Licensed", ("OTA/L"), rather than "Licensed Occupational Therapist" ("LOT") and "Licensed Occupational Therapy Assistant" ("LOTA"). Three written commenters, several informal verbal commenters. 3. Definitions for Regular, Provisional and Temporary licenses use the language "in the state of Texas" in a way that may be confusing. It appears to refer to residents only. Two commenters 4. Expressed support for any action by the board to assure that licensed individuals could practice without paying additional fees to a national organization. One commenter. Comments for and against the rule were made by individuals. This agency responds: 1. The rule changes are designed to remove TBOTE from issues concerning the right to use the terms "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" and "COTA". As long as an individual holds a valid Texas license, the board is not concerned with that individual's other right to use the terms "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA". Therefore, the board did not change the definitions of "OTR" and "COTA" to reflect any other standards. 2. The Texas OT Practice Act specifically mentions the terms "LOT" and "LOTA" and prohibits non-licensed persons from using those terms. There is no question of the Board's right to limit the use of those terms to persons holding licenses. Therefore, the Board retained the use of the terms "LOT" and "LOTA", rather than "OT/L" and "OTA/L", which are not specifically mentioned in the Act. 3. Definitions of Regular, provisional and temporary licenses were modified to clarify that the term refers to a license issued by TBOTE, removing the language that seems to refer to residents only. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.362.1. Definitions. The following words and terms, when used in these rules, shall have the following meanings, unless the context clearly indicates otherwise. Act - The Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851. AOTA - American Occupational Therapy Association. Applicant - A person who applies for a license to the Texas Board of Occupational Therapy Examiners. Application Review Committee- Reviews and makes recommendations to the board concerning applications which require special consideration. Board - The Texas Board of Occupational Therapy Examiners (TBOTE). Certified Occupational Therapy Assistant, (COTA)- An alternate term for a Licensed Occupational Therapy Assistant. An individual who uses this term must hold a regular or provisional license to practice or represent self as an occupational therapy assistant in Texas and must practice under the general supervision of an OTR or LOT. An individual who uses this term is responsible for ensuring that he or she is otherwise qualified to use it. Class A Misdemeanor - An individual adjudged guilty of a Class A misdemeanor shall be punished by: (A) a fine not to exceed $3,000; (B) confinement in jail for a term not to exceed one year; or (C) both such fine and imprisonment (Vernon's Texas Codes Annotated, Penal Code, sec.12.21). Close Personal Supervision - Implies direct, on-site contact whereby the supervising OTR, LOT, COTA or LOTA is able to respond immediately to the needs of the patient. Complete Application - Notarized application form with photograph, license fee, and all other required documents. Complete Renewal - Contains renewal fee, continuing education record card (if applicable), home/work address(es) and phone number(s), and supervision form (if applicable). Consultation - The provision of occupational therapy expertise to an individual or institution. This service may be provided on a one time only basis or on an ongoing basis. Continuing Education Committee - Reviews and makes recommendations to the board concerning continuing education requirements and special consideration requests. Continuing Supervision, OT - Includes frequent, face-to-face meetings which occur at the worksite of the temporary licensee and regular interim communication between the supervising OTR or LOT and the temporary licensee by telephone, written report, or conference. The contact must occur at the worksite of the temporary licensee at minimum on a weekly basis. Continuing Supervision, OTA- Includes frequent, face-to-face meetings which occur at the worksite of the temporary licensee and regular interim communication between the supervising OTR or LOT and the temporary licensee by telephone, written report, or conference. The contact must occur at the worksite of the temporary licensee at minimum on a weekly basis. Sixteen hours of supervision per month must be documented and can include the minimum weekly supervisory contacts made at the worksite of the temporary licensee. Coordinator of Occupational Therapy Program- The employee of the Executive Council who carries out the functions of the Texas Board of Occupational Therapy Examiners. Direct Service - Refers to the provision of occupational therapy services to individuals to develop, improve, and/or restore occupational functioning. Evaluation - Refers to a process of determining an individual's status for the purpose of determining the need for occupational therapy services or for implementing a treatment program. Examination - The Examination as provided for in sec.17 of the Act. The current Examination is the initial certification Examination given by the National Board for Certification in Occupational Therapy (NBCOT). Executive Council - The Executive Council of Physical Therapy and Occupational Therapy Examiners. Executive Director - The employee of the Executive Council who functions as its agent. The Executive Council delegates implementation of certain functions to the Executive Director. First Available Examination - Refers to the first scheduled Examination after successful completion of all educational requirements. General Supervision - Includes frequent, weekly face-to-face meetings at the worksite and regular interim communication between the OTR or LOT and the COTA or LOTA by telephone, written report, or conference. Investigation Committee - Reviews and makes recommendations to the board concerning complaints and disciplinary actions regarding licensees and facilities. Investigator - The employee of the Executive Council who conducts all phases of an investigation into a complaint filed against a licensee, an applicant, or an entity regulated by the board. License - Document issued by the Texas Board of Occupational Therapy Examiners which authorizes the practice of occupational therapy in Texas. Licensed Occupational Therapist (LOT) - A person who holds a valid regular or provisional license to practice or represent self as an occupational therapist in Texas. Licensed Occupational Therapy Assistant (LOTA) - A person who holds a valid regular or provisional license to practice or represent self as an occupational therapy assistant in Texas and who is required to practice under the general supervision of an OTR or LOT. Medical Condition - A condition of acute trauma, infection, disease process, psychiatric disorders, addictive disorders, or post surgical status where prudence and custom require the services of a physician. Monitored Services - The checking on the status/condition of students, patients, clients, equipment, programs, services, and staff in order to make appropriate adjustments and recommendations. Minimum contact for the purpose of monitoring will be one time a month. NBCOT (formerly AOTCB) - National Board for Certification in Occupational Therapy (formerly American Occupational Therapy Certification Board). Non-Medical Condition - A condition where the ability to perform occupational roles is impaired by developmental disabilities, learning disabilities, the aging process, sensory impairment, psycho-social dysfunction, or other such conditions which does not require the routine intervention of a physician. Occupational Therapist (OT) - A person who holds a Temporary License to practice as an occupational therapist in the state of Texas, who is waiting to receive results of taking the first available Examination, and who is required to be under continuing supervision of an OTR or LOT. Occupational Therapist, Registered (OTR) - An alternate term for a Licensed Occupational Therapist. An individual who uses this term must hold a regular or provisional license to practice or represent self as an occupational therapist in Texas. An individual who uses this term is responsible for ensuring that he or she is otherwise qualified to use it. Occupational Therapy - The evaluation and treatment of individuals whose ability to perform life roles is threatened or impaired by developmental deficits, the aging process, environmental deprivation, sensory impairment, physical injury or illness, or psychological or social dysfunction. Occupational therapy utilizes therapeutic goal-directed activities to evaluate, prevent, or correct physical, mental, or emotional dysfunction or to maximize function in the life of the individual. Such activities are applied in the treatment of patients on an individual basis, in groups, or through social systems, by means of direct or monitored treatment or consultation. Occupational Therapy Assistant (OTA) - A person who holds a Temporary License to practice as an occupational therapy assistant in the state of Texas, who is waiting to receive results of taking the first available Examination, and who is required to be under continuing supervision of an OTR or LOT. OT Aide or OT Orderly - A person who aids in the practice of occupational therapy and whose activities require on-the-job training and on-site supervision by an OTR, LOT, COTA or LOTA. Physician - An individual licensed by the Texas State Board of Medical Examiners, e.g., Medical Doctors (M.D.) and Doctors of Osteopathy (D.O.). Place(s) of Business - Any facility in which a licensee practices. Practice - Providing occupational therapy as a clinician, practitioner, educator, or consultant. Only a person holding a license from TBOTE may practice occupational therapy in Texas. Provisional License - A license issued by TBOTE to an applicant who holds a valid license in good standing from another state, District of Columbia, or territory of the United States requesting licensure; or a license issued to an applicant who has passed the Examination and who has been employed as an OTR, LOT, COTA or LOTA within five years of the receipt date of current, complete application for licensure with TBOTE. Recognized Educational Institution - An educational institution offering a course of study in occupational therapy that has been accredited or approved by the American Occupational Therapy Association. Regular License - A license issued by TBOTE to an applicant who has met the academic requirements and who has passed the Examination. Rules - Refers to the TBOTE Rules. Screening - A process or tool used to determine a potential need for occupational therapy interventions. This information may be compiled using observation, medical or other records, the interview process, self reporting, and/or other documentation. Temporary License - A license issued by TBOTE to an applicant who meets all the qualifications for a license except taking the first available Examination after completion of all education requirements; or a license issued to an applicant who has passed the Examination but has not been employed as an OTR, LOT, COTA or LOTA for five years or more from the receipt date of current, complete application for licensure with TBOTE. 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 October 15, 1997. TRD-9713638 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 CHAPTER 365. Types of Licenses 40 TAC sec.365.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.365.1, concerning Types of Licenses, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6849). This amended section is being adopted to clarify licensure requirements for person who have not recently practiced and to reflect the availability of new titles for licensees. This amended section does the following: 1. Requires that persons who do not apply for licensure nor practice in another state for more than 12 months after taking the examination must be referred to the application review committee. 2. Shortens all references to "certification examination" or "NBCOT examination" to simply "Examination". 3. Changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. No comments were received regarding amendment of this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713639 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 CHAPTER 369. Display of Licenses 40 TAC sec.369.3 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.369.3, concerning Use of Titles, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6851). This amended section is being adopted to identify professional titles which may be used by TBOTE licensees and may not be used by other persons. This amended section does the following: 1. Clarifies that only individuals holding valid Texas licenses may use certain Occupational therapy terms 2. Allows for the use of the terms "Licensed Occupational Therapist", ("LOT") and "Licensed Occupational Therapy Assistant", ("LOTA") by persons holding regular or provisional licenses in Texas. 3. Provides that persons who use the terms "OTR" or "COTA" are responsible for ensuring that they may any additional qualifications (other than Texas licensure) for those terms. 4. Prohibits person who do not hold occupational therapy licenses from using any terms implying that they are qualified to provide occupational therapy in Texas. Comments were received regarding amendment of this section: 1. Authorize the terms "Occupational Therapist, Licensed", ("OT/L") and "Occupational Therapy Assistant, Licensed", ("OTA/L"), rather than "Licensed Occupational Therapist" ("LOT") and "Licensed Occupational Therapy Assistant" ("LOTA"). Three written commenters, several informal verbal commenters. 2. Expressed support for any action by the board to assure that licensed individuals could practice without paying additional fees to a national organization. One commenter. Comments for and against the rule were made by individuals. This agency responds: The Texas OT Practice Act specifically mentions the terms "LOT" and "LOTA" and prohibits non-licensed persons from using those terms. There is no question of the Board's right to limit the use of those terms to persons holding licenses. Therefore, the Board retained the use of the terms "LOT" and "LOTA", rather than "OT/L" and "OTA/L", which are not specifically mentioned in the Act. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713640 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 CHAPTER 370. License Renewal 40 TAC sec.370.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.370.1, concerning License Renewal, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6852). This amended section is being adopted to ensure consistency in the use of professional titles throughout the rules. This amended section changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. No comments were received regarding amendment of this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713736 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 CHAPTER 371. Inactive/Retiree Status 40 TAC sec.371.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.371.1, concerning Inactive Status, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6852). This amended section is being adopted to ensure consistency in the use of professional titles throughout the rules. This amended section changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. No comments were received regarding amendment of this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713641 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 40 TAC sec.371.2 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.371.2, concerning Retiree Status, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6853). This amended section is being adopted to ensure consistency in the use of professional titles throughout the rules. This amended section changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. No comments were received regarding amendment of this section: The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713643 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 CHAPTER 372. Provision of Services 40 TAC sec.372.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.372.1, concerning Provision of Services, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6853). This amended section is being adopted to require that the entire process of occupational therapy be under the control of licensed OT practitioners. This amended section requires the following: 1. Screening and evaluation must be conducted by licensed OT practitioners. 2. OT must be provided in accord with a plan of care developed by an OTR or LOT. 3. The plan of care may be interdisciplinary, but the OT components must be clearly identified. 4. Only OT licensees or persons trained by OT licensees may carry out an OT Plan of Care. 5. An OTR or LOT may discharge a patient from OT services. In addition, various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" are changed to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. No comments were received regarding amendment of this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713644 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 CHAPTER 373. Supervision 40 TAC sec.373.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.373.1, concerning Supervision, with changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6854). In subsection (b)(1)(D), the placement of a quotation mark is changed from the proposed version. This amended section is being adopted to ensure consistency in the use of professional titles throughout the rules. This amended section changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. For simplicity, references to the "COTA/OTA Supervisory Log" are changed to "Occupational Therapy Supervisory Log". No comments were received regarding amendment of this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.373.1. Supervision. (a) Occupational Therapists, Registered or Licensed Occupational Therapists (OTRs or LOTs) are fully responsible for the planning and delivery of occupational therapy services. (1) The supervising OTR or LOT has overall responsibility for providing the supervision necessary to protect the health and welfare of the consumer receiving OT services from a COTA, LOTA, temporary licensee, or OT aide or orderly. (2) OTRs or LOTs must ensure that tasks appropriate for a COTA, LOTA or temporary licensee are not delegated to persons without current licenses. (3) However, this does not absolve the COTA, LOTA or temporary licensee from his or her professional responsibilities. (b) Supervision of COTAs. (1) The OTR or LOT shall delegate responsibilities to the COTA or LOTA that are within the scope of his or her training. (2) A COTA or LOTA shall provide occupational therapy services only under the general supervision of a licensed OTR or LOT. (See Chapter 362 of this title (relating to Definitions)) (A) A minimum of eight hours of supervision per month for full time COTAs or LOTAs must be documented on an "Occupational Therapy Supervision Log" prescribed by the board. COTAs and LOTAs employed part time shall prorate the required supervision. (i) The "Occupational Therapy Supervision Log" must be kept by the COTA or LOTA and a copy of this form must be maintained by the facility where the COTA or LOTA provides services. One "Occupational Therapy Supervision Log" must be completed for each separate employer. (ii) The "Occupational Therapy Supervision Log" must be submitted to TBOTE with the COTA's or LOTA's renewal application. (B) The manner of supervision shall depend on the treatment setting, patient/client caseload, and the competency of the COTA or LOTA as determined by the supervising OTR or LOT. (C) The supervising OTR or LOT need not be physically present or on the premises at all times. (3) A COTA or LOTA may initiate and perform the screening process and collect information for the OTR's or LOT's review. The OTR or LOT is responsible for determining if intervention is needed and if a physician's referral is required for evaluation and/or occupational therapy intervention. (4) An OTR or LOT is responsible for completing the patient's evaluation/assessment. The supervising OTR or LOT may delegate any evaluative task to a COTA or LOTA that the OTR or LOT and COTA or LOTA agree is within the competency level of that COTA or LOTA. (5) An OTR or LOT is responsible for developing and modifying the patient's treatment plan. The treatment plan must include the following components: goals, interventions/modalities, frequency, and duration. (6) An OTR or LOT assumes responsibility for the patient's discharge summary. The supervising OTR or LOT may delegate any discharge-related task to a COTA or LOTA that the OTR or LOT and COTA or LOTA agree is within the competency level of that COTA or LOTA. (7) It is the responsibility of the OTR or LOT and the COTA or LOTA to ensure that all documentation prepared by the COTA or LOTA which becomes part of the patient's/client's permanent record is co-signed by the supervising OTR or LOT. Occupational Therapy notes must be initialed by the OTR or LOT and signed at the bottom of each page. (8) These rules shall not preclude the COTA or LOTA from responding to emergency situations in the patient's condition which require immediate action. (c) Supervision of an OT Aide or OT Orderly. (1) When an OTR, LOT, COTA and/or LOTA delegates OT tasks to an aide or orderly, the OTR, LOT, COTA and/or LOTA is responsible for the aide's actions during patient contact on the delegated tasks. The licensee is responsible for ensuring that the aide is adequately trained in the tasks delegated. (2) An OTR, LOT, COTA and/or LOTA using OT Aide or OT Orderly personnel to assist with the provision of occupational therapy services must provide close personal supervision in order to protect the health and welfare of the consumer. (See Chapter 362 of this title (relating to Definitions)) (3) Delegation of tasks to OT Aides or OT Orderlies. (A) The primary function of an OT Aide or OT Orderly functioning in an occupational therapy setting is to perform designated routine tasks related to the operation of an occupational therapy service. An OTR, LOT, COTA and/or LOTA may delegate to an OT Aide or OT Orderly only specific tasks which are not evaluative or recommending in nature, and only after insuring that the OT Aide or OT Orderly has been properly trained for the performance of the tasks. Such tasks include, but are not limited to: (i) routine department maintenance; (ii) transportation of patients/clients; (iii) preparation or setting up of treatment equipment and work area; (iv) assisting patients/clients with their personal needs during treatment; (v) assisting in the construction of adaptive equipment and splints; (vi) clerical, secretarial, administrative activities; (vii) carrying out a predetermined segment or task in the patient's care. (B) The OTR, LOT, COTA and/or LOTA shall not delegate to an OT Aide or OT Orderly: (i) performance of occupational therapy evaluative procedures; (ii) initiation, planning, adjustment, modification, or performance of occupational therapy procedures requiring the skills or judgment of an OTR, LOT, COTA or LOTA; (iii) making occupational therapy entries directly in patients' or clients' official records; (iv) acting on behalf of the occupational therapist in any matter related to occupational therapy which requires decision making or professional judgment. (d) Supervision of an occupational therapist or an occupational therapy assistant with a temporary license. (1) Temporary Licenses: (A) A person issued a temporary occupational therapy license must practice occupational therapy under the continuing supervision of an OTR or LOT. (See Chapter 362 of this title (relating to Definitions)) (B) A minimum of 16 hours of supervision per month for full time OTAs must be documented on an "Occupational Therapy Supervision Log" prescribed by the board. OTAs employed part time shall prorate the required supervision. If the OTA is employed less than 20 hours per week, a minimum of eight hours of supervision is required per month. The "Occupational Therapy Supervision Log" must be kept by the OTA, and a copy of this form must be maintained by the facility where the OTA provides services. One "Occupational Therapy Supervision Log" must be completed for each separate employer. (C) The temporary licensee will certify to the board as to the name, license number, and address of his or her supervisor on a form provided by the board during the application process. (D) The temporary licensee must notify the board within 15 days of a change in the OTR or LOT supervisor. (E) The temporary licensee shall not supervise an occupational therapy student, an occupational therapy assistant, or an OT Aide or OT Orderly. (F) All documentation completed by an individual holding a temporary license which becomes part of the patient's/client's permanent file must be co-signed by the supervising OTR or LOT. Occupational Therapy notes must be initialed by the OTR or LOT and signed at the bottom of each page. (2) Provisional Licenses: (A) OTRs and LOTs with provisional licenses are excluded from supervision requirements. (B) COTAs and LOTAs with provisional licenses will require general supervision by a licensed OTR or LOT. 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 October 15, 1997. TRD-9713645 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 CHAPTER 374. Disciplinary Actions/Complaints/Code of Ethics 40 TAC sec.374.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.374.1, concerning Disciplinary Actions, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6856). This amended section is being adopted to improve the board's disciplinary action process. This amended section makes the following changes: 1. Allows the board to refuse to issue a license as a part of its overall disciplinary action function. 2. Reference to "NBCOT examination", is changed to "Examination". "Examination" This change makes no change in the requirements for re-licensure of a person whose license was revoked, but simplifies reference to the examination. No comments were received regarding amendment of this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713646 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 CHAPTER 376. Registration of Facilities 40 TAC sec.376.1 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.376.1, concerning Definitions, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6856). This amended section is being adopted to ensure consistency in the use of professional titles throughout the rules. This amended section changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. No comments were received regarding amendment of this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713647 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 40 TAC sec.376.3 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.376.3, concerning Requirements for Registration Application, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6857). This amended section is being adopted to ensure consistency in the use of professional titles throughout the rules. This amended section changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. No comments were received regarding amendment of this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713648 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 40 TAC sec.376.4 The Texas Board of Occupational Therapy Examiners adopts an amendment to sec.376.4, concerning Requirements for Registered Facilities, without changes to the proposed text as published in the July 22, 1997, issue of the Texas Register (22 TexReg 6857). This amended section is being adopted to ensure consistency in the use of professional titles throughout the rules. This amended section changes various references to "Occupational Therapist, Registered", "OTR", "Certified Occupational Therapy Assistant" or "COTA" to include those terms and the newly authorized terms "Licensed Occupational Therapist", "LOT", "Licensed Occupational Therapy Assistant" or "LOTA". This change reflects the availability of both titles for persons holding regular or provisional licenses in Texas. No comments were received regarding the amendment to this section. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy 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 October 15, 1997. TRD-9713649 John P. Maline Executive Director Texas Board of Occupational Therapy Examiners Effective date: November 4, 1997 Proposal publication date: July 22, 1997 For further information, please call: (512) 305-6900 PART XX. Texas Workforce Commission CHAPTER 815.Unemployment Insurance 40 TAC sec.815.9 The Texas Workforce Commission adopts an amendment to sec.815.9, concerning the electronic transmission by certain employers of payments of their state unemployment tax due each quarter, without changes to the proposed text as published in the July 25, 1997, issue of the Texas Register (22 TexReg 6934). Texas Government Code, sec.404.095(c) and (f), enable state agencies to promulgate rules to require person(s) submitting funds to a state agency to make such payments via electronic transfer. The amended section lowers the threshold amount of the requirement to transmit payments electronically to the comptroller to $250,000 annually from $500,000, requires that all amounts due from qualifying employers be transferred via electronic transfer, and permits employers who do not meet the qualifying criteria to voluntarily pay via electronic transfer. The amendment will require an employer or other entity, including agents paying on behalf of multiple employers, which paid contributions in the preceding state fiscal year of $250,000 or more, and which is reasonably anticipated to do the same in the current fiscal year, to transfer payment amounts of contributions by electronic funds transfer on or before the date the contributions are due. Except as otherwise provided in this subsection, the amendment would also permit employers, including agents, to voluntarily transfer payment of contributions by electronic funds transfer on or before the date the contributions are due. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Labor Code, Title 4, which provides the Texas Workforce Commission with authority to adopt rules necessary to promote the purposes of the Act, and Texas Government Code, sec.404.095(c) and (f), which authorizes the Texas Workforce Commission to promulgate rules to require person(s) submitting funds to a state agency to make such payments via electronic transfer. 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 October 15, 1997. TRD-9713666 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: November 4, 1997 Proposal publication date: July 25, 1997 For further information, please call: (512) 463-8812