PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the code. [Brackets] indicate deletion of existing material within a section. TITLE 1. ADMINISTRATION PART V. General Services Commission CHAPTER 113.Central Pruchasing Division SUBCHAPTER A.Purchasing 1 TAC sec.sec.113.2, 113.7, 113.11 The General Services Commission proposes amendments to 1 TAC, Sections 113.2 and 113.11 concerning purchasing, and proposes new section 113.7 concerning competitive sealed proposals. The amendments are proposed to add a definition for the word "agency"; to revise language for the definition "bid deposit" to be in accordance with H.B. 3158, 75th Legislative Session, which amended the Texas Insurance Code, Article 7.19-1 (Vernon Supp. 1998); to revise language in the competitive sealed proposal rule to be consistent with the Texas Government Code, Title 10, Subtitle D, Chapter 2156; to clarify the dollar amount threshold for service contract reviews; and to establish a formal policy for granting specific delegation authority to state agencies administratively. David P. Gragan, Director, Central Procurement, has determined for the first five-year period the rules are in effect, there will be no adverse effect to state or local government as a result of enforcing these rules. David P. Gragan, Director, Central Procurement, has determined that for each of the first five years the amendments and new section are in effect the public benefit anticipated as a result of enforcing the rules will be a more efficient agency procurement process. There is no anticipated economic cost to persons required to comply with the amendments and new section as proposed. There will be no impact on small business. Comments on the proposals may be submitted to Judy Ponder, General Counsel, General Services Commission, P.O. Box 13047, Austin, TX 78711-3047. Comments must be received no later than thirty days from the date of publication of the proposal in the Texas Register. The General Services Commission has authority to adopt rules in accordance with Government Code, Title 10, Subtitle D, Chapter 2155. Government Code, Title 10, Subtitle D, Chapter 2155 and 2156 is affected by these rules. sec.113.2 Definitions The following words and terms, when used in this title, shall have the following meanings, unless the context clearly indicates otherwise. (1)
    Agency -- The chief executive officer of a state agency as the term "state agency" is defined under the Texas Government Code, Title 10, Section 2151.002. (2)
      Award--The act of accepting a bid, thereby forming a contract between the state and a bidder. (3)
        Bid--An offer to contract with the state, submitted in response to a bid invitation issued by the commission. (4)
          Bid deposit--A deposit required of bidders to protect the state in the event a low bidder attempts to withdraw its bid or otherwise fails to enter into a contract with the state. Acceptable forms of bid deposits are limited to: cashier's check, certified check, or irrevocable letter of credit issued by a financial institution subject to the laws of Texas and entered on the United States Department of the Treasury's listing of approved sureties
            ; a surety or blanket bond from a company chartered or authorized to do business in Texas; United States treasury bond; or certificate of deposit. (5)
              Bid sample--A sample required to be furnished as part of a bid, for evaluating the quality of the product offered. (6)
                Bidder--An individual or entity that submits a bid. The term includes anyone acting on behalf of the individual or other entity that submits a bid, such as agents, employees, and representatives. (7)
                  Bidders List--The centralized master bidders list. (8)
                    Blanket bond--A performance bond which insures a bidder's performance on two or more contracts in lieu of separate bonds for each contract. The amount for a blanket bond shall be established by the commission based on the bidder's annual level of participation in the state purchasing program. Acceptable forms of blanket bonds are those described in the definition of "bid deposit." (9)
                      Brand name--A trade name or product name which identifies a product as having been made by a particular manufacturer. (10)
                        Centralized master bidders list--A list maintained by the commission containing the names and addresses of prospective bidders and qualified information systems vendors. (11)
                          Consumable procurement budget--That portion of an agency's budget as identified by the comptroller's expenditure codes attributable to consumable supplies, materials, and equipment. (12)
                            Director--The director of the commission's purchasing division. (13)
                              Emergency purchase--A purchase of goods or services so badly needed that an agency will suffer financial or operational damage unless they are secured immediately. (14)
                                Environmentally sensitive products--Products that protect or enhance the environment, or that damage the environment less than traditionally available products. (15)
                                  Equivalent product--A product that is comparable in performance and quality to the specified product. (16)
                                    Escalation clause--A clause in a bid providing for a price increase under certain specified circumstances. (17)
                                      Formal bid--A written bid submitted in a sealed envelope in accordance with a prescribed format, or an electronic data interchange transmitted to the commission in accordance with procedures established by the commission. (18)
                                        Group purchasing program--A purchasing program that offers discount prices to two or more institutions of higher education. (19)
                                          Informal bid--An unsealed, competitive bid submitted by letter, telephone, telegram, or other means. (20)
                                            Invitation for bids (or IFB)--A written request for submission of a bid; also referred to as a bid invitation. (21)
                                              Late bid--A bid that is received at the place designated in the bid invitation after the time set for bid opening. (22)
                                                List of approved equipment--A list of items available under term contracts for purchase by school districts through the commission pursuant to the Texas Education Code, sec.21.901. (23)
                                                  Manufacturer's price list--A price list published in some form by the manufacturer and available to and recognized by the trade. The term does not include a price list prepared especially for a given bid. (24)
                                                    Multiple award contract procedure--A purchasing procedure by which the commission establishes one or more levels of quality and performance and makes more than one award at each level. (25)
                                                      Notice of award--A letter signed by the director or his designee which awards and creates a term contract. (26)
                                                        Open market purchase--A purchase of goods, usually of a specified quantity, made by buying from any available source in response to an open market requisition. (27)
                                                          Perishable goods--Goods that are subject to spoilage within a relatively short time and that may be purchased by agencies under delegated authority. (28)
                                                            Post-consumer materials--Finished products, packages, or materials generated by a business entity or consumer that have served their intended end uses, and that have been recovered or otherwise diverted from the waste stream for the purpose of recycling. (29)
                                                              Pre-consumer materials--Materials or by-products that have not reached a business entity or consumer for an intended end use, including industrial scrap material, and overstock or obsolete inventories from distributors, wholesalers, and other companies. The term does not include materials and by-products generated from, and commonly reused within, an original manufacturing process or separate operation within the same or a parent company. (30)
                                                                Proprietary--Products or services manufactured or offered under exclusive rights of ownership, including rights under patent, copyright, or trade secret law. A product or service is proprietary if it has a distinctive feature or characteristic which is not shared or provided by competing or similar products or services. (31)
                                                                  Public bid opening--The opening of bids at the time and place advertised in the bid invitation, in the presence of anyone who wishes to attend. On request of any person in attendance, bids will be read aloud. (32)
                                                                    Purchase orders-- (A) Open market purchase order--A document issued by the commission to accept a bid, creating an open market purchase contract. (B) Contract purchase order--A release order issued by the commission under an existing term contract, and pursuant to a requisition from an agency. (33)
                                                                      Purchasing functions--The development of specifications, receipt and processing of requisitions, review of specifications, advertising for bids, bid evaluation, award of contracts, and inspection of merchandise received. The term does not include invoice, audit, or contract administration functions. (34)
                                                                        Recycled material content--The portion of a product made with recycled materials consisting of pre-consumer materials (waste), post-consumer materials (waste), or both. (35)
                                                                          Recycled materials--Materials, goods, or products that contain recyclable material, industrial waste, or hazardous waste that may be used in place of raw or virgin materials in manufacturing a new product. (36)
                                                                            Recycled product--A product that meets the requirements for recycled material content as prescribed by the rules established by the Texas Natural Resource Conservation Commission in consultation with the General Services Commission. (37)
                                                                              Remanufactured product--A product that has been repaired, rebuilt, or otherwise restored to meet or exceed the original equipment manufacturer's (OEM) performance specifications; provided, however, the warranty period for a remanufactured product may differ from the OEM warranty period. (38)
                                                                                Request for proposal--A written request for offers concerning goods or services the state intends to acquire by means of the competitive sealed proposal procedure. (39)
                                                                                  Requisition-- (A) Open market purchase requisition--An initiating request from an agency describing needs and requesting the commission to purchase goods or services to satisfy those needs. (B) Term contract purchase requisition--A request from an agency for delivery of goods under an existing term contract. (40)
                                                                                    Scheduled purchase--A purchase with a prescheduled bid opening date, allowing the commission to combine orders for goods. (41)
                                                                                      Sealed bid--A formal bid. (42)
                                                                                        Solicitation--An invitation for bids or a request for proposals. (43)
                                                                                          Specification--A description of what the purchaser requires and what a bidder or proposer must offer. (44)
                                                                                            Spot purchase--A purchase of goods or services that does not exceed the amount stated in Section 113.11 of this title (relating to Delegated Purchases). (45)
                                                                                              Tabulation of bids--The recording of bids and bidding data for purposes of bid evaluation and recordkeeping. (46)
                                                                                                Term contract purchase--A purchase by an agency under a term contract which established a source of supply for particular goods at a given price for a specified period of time. (47)
                                                                                                  Total expenditures on products with recycled material content, remanufactured products, and environmentally sensitive products--The total direct acquisition costs (vendor selling price plus delivery costs) of all such products. (48)
                                                                                                    Unit price--The price of a selected unit of a good or service, e.g., price per ton, per labor hour, or per foot. (49)
                                                                                                      Using agency--An agency of government that requisitions goods or services through the commission. (50)
                                                                                                        Vendor--A supplier of goods or services to the state. (51)
                                                                                                          Written data--Data which is expressly required to be submitted in writing. A bid invitation that expressly requires the submission of written data with the bid must include the following statement or its substantial equivalent: "Failure to provide the required information with the bid response will automatically disqualify the bid from consideration for award in connection with this transaction." sec.113.7 Competitive Sealed Proposals. The commission or a state agency shall use the process established in the Government Code, Title 10, Subtitle D, Subchapter C, Section 2156 for the acquisition of goods and services by the competitive sealed proposal process. The director is authorized to promulgate and issue guidelines for the conduct of and review of competitive sealed proposals. sec.113.11.Delegated Purchases (a)- (d) (No change.) (e) Provisions applicable to particular delegated purchases. (1) - (3) (No change.) (4) Services. Purchases of services estimated to cost no more than $100,000 per year per contract
                                                                                                            are delegated and must be obtained through competitive bids, and appropriate documentation must be forwarded to the commission for approval. An agency is required to submit documentation to the commission for proprietary purchases of services over $25,000 and for purchases expected to cost more than $25,000 per year. Agencies must attempt to obtain at least three informal bids, including a minimum of two bids from HUBs (including at least one bid each from a minority-owned business and a woman-owned business), on all service purchases in excess of $2,000 and not over $10,000. Agencies must meet competitive bidding requirements and may supplement the list of bidders obtained from the CMBL and Historically Underutilized Business (HUB) Directory with non- CMBL bidders if the purchase price does not exceed $5,000. Agencies must attempt to obtain at least three formal bids, including a minimum of two bids from HUBs (including at least one bid each from a minority-owned business and a woman- owned business), on all service purchases in excess of $10,000 and not over $25,000. Agencies may refer to the commission's HUB Directory, which is maintained and accessible electronically, to locate historically underutilized businesses. If an agency is unable to locate a minority-owned business and/or a woman-owned business from the commission's HUB Directory or other available sources, the agency must make a written notation in the purchase file of all reference sources used. For purchases of services estimated up to $25,000, state agencies shall solicit a minimum of three bids (two must be HUBs, one minority and one woman-owned business) from CMBL and HUB Directory Vendors located in the agencies' geographic region. For purchases of services estimated more than $25,000 and less than $100,000, state agencies shall, as a minimum, solicit bids from all CMBL and HUB Directory Vendors located in the agencies' geographic region. For purchases of services estimated to cost more than $100,000 per year, the commission must review any proposed specifications or statements of work and determine whether the commission or the agency should make the advertisement and award. The commission may determine that the service should be advertised to the commission's bidders lists, in which case the commission will make the award in accordance with normal open market procedures. If no competitive advantage would be obtained by having the commission make the advertisement and award, the commission may permit the agency to do so. (5)- (7) (No change.) (f) Specific delegations. The authority to grant specific delegations resides with the director. The application method, review process, delegation finding, and appeal process will be set forth by policy statement of the director. Between the effective date of this rule and January 31, 1999, all existing specific delegations will be reviewed for renewal or recision. At a minimum, state agencies granted specific delegations shall meet the following criteria:
                                                                                                              (1)
                                                                                                                procurement audit standards set forth in 1 TAC, Section 113.18;
                                                                                                                  (2)
                                                                                                                    minimum training and certification standards established in the State Procurement Manual; and
                                                                                                                      (3)
                                                                                                                        approved processes and procedures for the specific type of delegation being requested. All processes and procedures are subject to the prior review, revision and approval of the director.
                                                                                                                          [The commission may delegate purchasing functions to agencies for specific open market purchases only by approval of the commissioners in open meeting. Requests for such approval should be made in writing to the executive director and signed by the chief executive officer of the requesting agency. All such requests should clearly set out the reasons and justifications for the request. (g)- (j) ( No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 3, 1998. TRD-9803056 Judy Ponder General Counsel General Services Commission Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 463-3960 1 TAC sec.113.7 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the General Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The General Services Commission proposes the repeal of 1 TAC, Section 113.7 concerning competitive sealed proposals in order to propose new section 113.7 which contains language that is consistent with the Texas Government Code, Title 10, Subtitle D, Chapter 2156. David P. Gragan, Director, Central Procurement, has determined for the first five-year period the rules are in effect, there will be no adverse effect to state or local government as a result of enforcing these rules. David P. Gragan, Director, Central Procurement, has determined that for each of the first five years the repeal is in effect the public benefit anticipated will be streamlining language to conform with the Texas Government, Title 10, Subtitle D, Chapter 2156. There is no anticipated economic cost to persons required to comply with the repeal as proposed. There will be no impact on small business. Comments on the proposals may be submitted to Judy Ponder, General Counsel, General Services Commission, P.O. Box 13047, Austin, TX 78711-3047. Comments must be received no later than thirty days from the date of publication of the proposal in the Texas Register. The General Services Commission has authority to adopt rules in accordance with Government Code, Title 10, Subtitle D, Chapter 2155. Government Code, Title 10, Subtitle D, Chapter 2155 and 2156 is affected by this rule. sec.113.7 Competitive Sealed Proposals This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 3, 1998. TRD-9803055 Judy Ponder General Counsel General Services Commission Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 463-3960 TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 15.Egg Law 4 TAC sec.15.12 The Texas Department of Agriculture (the department) proposes an amendment to sec.15.12, concerning the Texas Egg Law. The amendment is proposed to clarify and omit unnecessary language in the existing rules regarding violations for false, misleading, or deceptive labeling on egg cartons. Margaret Alvarez, director for commodity and consumer programs, has determined that for the first five-year period this amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this section. Mrs. Alvarez has also determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be clear and concise language of existing rules. There is no anticipated cost to small or large businesses. There is no anticipated additional cost to individuals who are required to comply with the section as proposed. Comments on the proposal may be submitted to Margaret Alvarez, Director for Commodity and Consumer Programs, Texas Department of Agriculture, P. O. Box 12847, Austin, Texas 78711, and must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The amendment is proposed under the Texas Agriculture Code, sec.132.003, which provides the Texas Department of Agriculture with the authority to adopt rules necessary for the administration of the Texas Agriculture Code, Chapter 132, concerning regulation of eggs. The code affected by this proposal is the Texas Agriculture Code, Chapter 132. sec.15.12. Violations. (a) The label on an egg container shall be considered false or deceptive if: (1) - (3) (No change.) (4) [the container bears the word "fresh," "yard," "selected," "hennery," "new- laid," "infertile," "cage," or other words of similar import, or if] the eggs in the container are represented as being "fresh"[unless they] and
                                                                                                                            are not
                                                                                                                              of "AA" or "A" quality; (5)- (6) (No change.) (b) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 5, 1998. TRD-9803253 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 463-7583 TITLE 10. COMMUNITY DEVELOPMENT PART V. Texas Department of Economic Development CHAPTER 199. Electronic State Business Daily 10 TAC sec.sec.199.101-199.116 The Texas Department of Economic Development (department) proposes new Chapter 199, sec.sec.199.101-199.116, Electronic State Business Daily, setting forth rules and procedures for posting state agency procurement opportunities on the Internet. Senate Bill 1380 of the 75th Legislature (SB 1380) amended the Texas Government Code by adding sec.2155.074, creating an electronic state business daily to give notice before a state agency makes a procurement with a value that exceeds $25,000. SB 1380 directs the Department to produce and post the business daily in an electronic format and to make the business daily available on the Internet. SB 1380 authorizes the Department to adopt rules, prescribe forms, and require information necessary to administer the statute. The proposed rules set forth the definitions and process needed to submit procurement information to the department for posting on the Internet. The rules further establish agency contacts, clarify the duties and responsibilities of agencies with regard to posting procedures, and provide processes for posting follow up and record keeping. Donna Osborne, Director of the Economic Information Clearinghouse, has determined that for each year of the first five years that the rules will be in effect the expected additional cost to state governments as a result of administering the rule will be the cost of staff time required to input the required data. There may be additional costs to obtain Internet access for agencies that do not currently have access. There are no expected costs to local governments, no estimated reductions in costs to the state and to local governments, and no estimated loss or increase in revenue to the state or to local governments as a result of administering the rule. Government entities that choose to provide access to the business daily to accommodate businesses that do not have the technical means to access it themselves may incur costs to provide access. The government entities may recover the direct cost of provided access by charging a fee for downloading information. Ms. Osborne has determined that the public benefits expected as a result of adoption of the proposed rule include ease of access to information about state procurement opportunities and increased competition for state contracts. There are no probable economic costs to persons required to comply with the rule. A local employment economic impact statement has not been requested. Written comments on the proposed rules may be hand-delivered to Robin Abbott, General Counsel, Texas Department of Economic Development, 1700 North Congress Avenue, Suite 130, Austin, Texas 78701, or mailed to P.O. Box 12728, Austin, Texas 78711-2728, within thirty days of publication. Comments may be faxed to Ms. Abbott at (512) 936-0415. Comments received after the 30 day period will not be considered by the Department. The new rules are proposed under the authority of Government Code, sec.481.0044(a), which directs the department's governing board to adopt rules for programs administered by the department; SB 1380, codified at Government Code, sec.2155.074(l), which directs the department to adopt rules to administer the electronic state business daily; and the Administrative Procedure Act, Government Code, Chapter 2001, Subchapter B, Rulemaking, which sets forth the state agency rulemaking procedure. The State Purchasing and General Services Act, Government Code, Title 10, Subtitle D, and Government Code, Chapter 2254, relating to Professional and Consulting Services, are affected by the proposed rules. sec.199.101. Authority. Pursuant to the authority granted by the Texas Government Code, sec.2155.074(l) and the Administrative Procedure Act, Texas Government Code, Chapter 2001, Subchapter B, Rulemaking, the Texas Department of Economic Development sets forth the following rules regarding procedures and implementation of the Electronic State Business Daily using the Texas Marketplace, or a suitable successor information service, on the Internet. These rules apply to the procedures for posting procurement opportunities directly and electronically and are in addition to any rules relating to purchases promulgated by the General Services Commission. sec.199.102. Purpose. (a) The Electronic State Business Daily is established as a means for all state agencies to give notice directly and electronically on the Internet before making a procurement with a value that exceeds $25,000. These rules will set forth procedures and practices to be used by state agencies giving notice on the electronic state business daily. (b) The requirements of this chapter are in addition to the requirements of other laws relating to the solicitation of bids, proposals, or other applicable expressions of interest for a procurement by a state agency. This chapter does not affect whether a state agency is required to award a procurement by a contract through competitive bidding, competitive sealed proposals, or another method. sec.199.103. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Act--the State Purchasing and General Services Act, Texas Government Code, subtitle D, sec.2151.001 et seq. (2) Commission--the General Services Commission. (3) Consultant services--as defined at Texas Government Code sec.2254.021. (4) Department--the Texas Department of Economic Development. (5) Electronic State Business Daily or Business Daily--the eligible state agency procurement opportunities exceeding $25,000 in value made available in electronic format via the Texas Marketplace. (6) Eligible procurement--all purchases of goods or services acquired by a state agency that exceed $25,000 in value, without regard to the source of funds the state agency will use for the procurement, as defined at Government Code sec.2155.074(a). (7) Emergency purchases--as defined in rules promulgated by the General Services Commission at 1 TAC sec.113.2.Goods and/or services--as defined in the State Purchasing and General Services Act, Texas Government Code, sec.2155.001. (9) Potential bidders or offerors--those businesses or other entities that are interested in submitting a bid or proposal for state agency procurement opportunities. (10) Prescribed form--the entry screens available in the Texas Marketplace system. (11) Procurement opportunity--a bid or proposal solicitation package or notice that includes specified information for each purchase of goods or services, including construction projects, professional services, and consultant services, to be acquired by a state agency. (12) Professional services--as defined at Texas Government Code sec.2254.002. (13) Registered agent--a representative designated by each state agency responsible for posting eligible procurement opportunities in the Texas Marketplace. (14) State agency--as defined in the State Purchasing and General Services Act, Texas Government Code, sec.2151.002(2). (15) Texas Marketplace--the electronic business opportunity database available on the Internet and World Wide Web, developed and maintained by the Texas Department of Economic Development, which provides a single point of information for all eligible state agency procurement opportunities on the Internet and World Wide Web at http://www.Texas-one.org. sec.199.104. General Provisions. (a) The Department shall make the electronic state business daily available on the Internet and World Wide Web through the information service known as the Texas Marketplace. The Texas Marketplace system can be accessed at www.Texas- one.org. Each state agency shall directly and electronically post its own notices or solicitation packages for eligible procurement opportunities using the Texas Marketplace system. The Department and each state agency shall cooperate in making the electronic state business daily available and accessible to all state agencies. (b) Each state agency that will award a procurement contract estimated to exceed $25,000 in value shall post on the Texas Marketplace system the minimum information required for posting an eligible procurement opportunity in the state business daily by Government Code sec.2155.074 and this chapter, and a notice when the procurement or contract has been awarded or when the state agency has decided to not make the procurement. The Department shall provide prescribed forms for these postings on the Texas Marketplace system. (c) The Department shall post in the electronic state business daily other information relating to the business activity of the state that the Department considers to be of interest to the public. The Department may develop a means for each state agency to electronically post relevant information electronically. Until such time, it is the responsibility of each state agency to provide any such relevant information, in a timely manner, to the Department via e-mail response from the Texas Marketplace or by sending information via interagency mail to the Department, attention of the Economic Information Clearinghouse. This information will also be accessible at the above Web address. sec.199.105. Internet Access. (a) It is the responsibility of each state agency to coordinate with the General Services Commission to secure Internet service and computer hardware and software necessary for each registered agent to have daily access to the Texas Marketplace system. To the extent feasible, each state agency must have Internet access by September 1, 1998. (b) To accommodate businesses seeking to become potential bidders or offerors that do not have the technical means to access the electronic state business daily, governmental and non-governmental entities such as public libraries, chambers of commerce, trade associations, small business development centers, economic development departments of local governments, and state agencies may provide public access to the business daily. sec.199.106. Fees. (a) A government agency may recover the direct cost of providing the public access only by charging a fee for downloading procurement notices and bid or proposal solicitation packages posted on the business daily. For state agencies, these fees may not exceed the state agency's published rate for open records requests. (b) The department and other state agencies may not charge a fee designed to recover the cost of preparing and gathering the information that is published in the business daily. These costs are considered part of a procuring agency's responsibility to publicly inform potential bidders or offerors of its procurement opportunities. (c) A non-governmental entity may use information posted in the business daily in providing a service that is more than only the downloading of information from the business daily, including a service by which appropriate bidders or offerors are matched with information that is relevant to those bidders or offerors, and may charge a lawful fee that the entity considers appropriate for the service. sec.199.107. General Posting Requirements. (a) Each state agency seeking to make an eligible procurement and award a procurement contract that will exceed $25,000 in value, without regard to the source of funds the agency will use for the procurement, must post the procurement opportunity on the Texas Marketplace system on the World Wide Web. (b) Prior to making an award for any procurement, each state agency must post notice on the Texas Marketplace, including a procurement that: (1) is otherwise exempt from Commission purchasing authority or the application of this subtitle; (2) is made under delegated purchasing authority; (3) is related to a construction project; or (4) is a procurement of professional or consulting services. (c) The Commission will electronically transfer to the Texas Marketplace all procurements in excess of $25,000 processed on behalf of state agencies by the Commission. sec.199.108. Posting Time Requirements. (a) Notices for eligible procurements must be posted for the latest of 21 calendar days after the date the notice is first posted; the date the state agency will no longer accept bids, proposals, or other applicable expressions of interest for the procurement; or, the date the state agency decides not to make the procurement. If the state agency decides not to make the procurement, the state agency must amend the posting to indicate the effective date of the cancellation within 24 hours of canceling the procurement. (b) If the state agency posts the entire bid or proposal solicitation package for an eligible procurement, postings must remain on the Texas Marketplace until the latest of 14 calendar days after the date the bid or solicitation package is first posted; the date the state agency will no longer accept bids, proposals, or other applicable expressions of interest for the procurement; or, the date the state agency decides not to make the procurement. If the state agency decides not to make the procurement, the state agency must amend the posting to indicate the effective date of the cancellation within 24 hours of canceling the procurement. (c) A contract or procurement award is void if made by a state agency in violation of the applicable minimum required posting time. sec.199.109. Emergency Purchases. (a) Emergency purchases must be posted to the business daily in the Texas Marketplace system, but the minimum posting times in this chapter do not apply. (b) These posting requirements are in addition to existing Commission procedures governing emergency purchases. sec.199.110. Registered Agent Requirements. (a) Each state agency must designate a minimum of one person to be the registered agent for posting all eligible procurement opportunities in the business daily. State agencies with field or satellite offices may establish a registered agent at those offices or require that procurement opportunities be sent to the main office for posting in compliance with this chapter. (b) Each state agency's designee must register with the Texas Marketplace system in order to add procurement opportunities to the electronic state business daily. Each registered agent is required to complete a free registration form on-line one time prior to posting information. All questions on the registration form must be completed for the registration to become effective. The registered agent will issue his/her own personal user identification name and access password. Registered agents who misplace passwords may contact the Department for assistance in reestablishing registration. (c) A copy of the registered agent's user registration form will be electronically mailed to the registered agent if an e-mail address is entered. The user/registered agent information will automatically be entered by the Texas Marketplace system each time the registered agent accesses the business daily to post new procurement opportunities. sec.199.111. Procurement Opportunity Posting Procedures. (a) Each state agency must comply with the following procedures when posting procurement notices on the electronic state business daily using the Texas Marketplace system. The Department will provide written step-by-step instructions for accessing the Texas Marketplace system. The Department will also provide technical assistance via electronic mail from the Texas Marketplace system, interagency mail at 1700 North Congress, Suite 200, or by telephone at (512) 936-0223. (b) Information for each eligible procurement opportunity must be data entered directly and electronically by the registered agent, via Internet access, to the Texas Marketplace system on the World Wide Web using the prescribed form. The registered agent must enter the minimum required information from subsection (c) of this section using the on-line form provided by the Department in the Texas Marketplace system. (c) A state agency's registered agent must post the following in the business daily for each procurement that the state agency will make that is estimated to exceed $25,000 in value. (1) A notice that includes at a minimum the following information: (A) a short title, or headline, describing the purchase opportunity; (B) a brief description of the goods or services to be procured; (C) the estimated quantity of goods or services to be procured; (D) the estimated date on which the goods or services to be procured will be needed; (E) state agency name, contact name, mailing and physical address (including city, state, and zip code), and business telephone number of the state agency's registered agent a person may contact to obtain all necessary information related to making a bid or proposal or other applicable expression of interest in the procurement contract; (F) e-mail address for registered agent or procurement contact, if available; (G) the last date and time on which bids, proposals or other applicable expressions of interest, as defined by the State Purchasing and General Services Act, will be accepted; (H) the agency's purchase requisition number; (I) the State of Texas commodity classification code (class item number) for the goods or services, if applicable; and (J) if applicable, the previous price paid by the state agency for the same or similar goods or services. (2) The registered agent may also post the following optional information in the prescribed entry form: (A) the fax number for the registered agent or procurement contact; (B) the state agency's toll-free telephone number; or (C) the universal resource locator (URL) address for the state agency's homepage. (3) The entire bid or proposal solicitation package may also be posted in a compressed file format. Posting the entire bid or proposal solicitation package will reduce the posting time requirement as outlined in sec.199.108 of this title (relating to Posting Time Requirements.) (4) An addendum to the original procurement opportunity can also be posted, in a compressed file format, at any time after posting the original notice. (d) The prescribed form will contain data fields for each of the required information items listed above. Contact information for the posting will automatically default to the information provided on the registered agent's registration form, but can be manually changed to reflect contact information on procurement opportunities for which the registered agent is not the contact. (e) The registered agent/user must select the "Add this listing" option to complete the posting process. All required information must be entered for the system to accept the posting. (f) Each state agency is responsible for posting notices of addendum, if applicable, to each procurement opportunity. The state agency is responsible for amendments and/or cancellation notices to postings on the business daily. (g) It is the responsibility of the potential bidder or offeror to contact the state agency prior to the bid or posting closing date to determine if an addendum has been issued. sec.199.112. Posting Follow up and Record Keeping. (a) A copy of the procurement opportunity posting will automatically be sent electronically to the registered agent's e-mail address, if an e-mail address was provided on the user registration form. If the registered agent does not have e-mail access, it is the responsibility of the registered agent to use the print features of the Internet browser software to produce a hard copy of the posting for permanent record keeping. (b) The Texas Marketplace system will automatically purge postings according to the bid closing date entered by the registered agent. Each state agency is responsible for ensuring the eligible procurement remains posted for the minimum number of days, as set forth in Texas Government Code sec.2155.074 and sec.199.108 of this title (relating to Posting Time Requirements). sec.199.113. Contract Award. (a) A state agency may not award the procurement contract and shall continue to accept bids or proposals or other applicable expressions of interest for the procurement contract for at least 21 calendar days after the date the state agency first posted notice of the procurement or 14 calendar days after the date the state agency first posted the entire bid or proposal solicitation package. (b) A contract or procurement award is void if made by a state agency in violation of the applicable minimum required posting time. sec.199.114. Award Notification. (a) Each state agency's registered agent must record the action resulting from the posting of each eligible procurement into the Texas Marketplace system under the specified area of the Texas Marketplace system using the prescribed form. This includes contracts awarded and procurement opportunities canceled by the state agency. (b) The procurement or contract award notice shall include the following minimum information: (1) agency name, mailing and physical address, and contact name; (2) purchase requisition number for procurement opportunity; (3) contract award recipient information to include company name, mailing address, and Commission historically underutilized business certification status, if applicable; and (4) dollar amount of award. (c) Cancellation notices will include the following minimum information: (1) agency name, business address, and contact name; (2) purchase requisition number; and (3) reason for cancellation. (d) Upon posting of award notification information in the form, the registered agent will receive an e-mail notification of the posting. sec.199.115. Verification of Compliance. It is the responsibility of the state agency to maintain sufficient records and reports to verify compliance with Texas Government Code sec.2155.074 and this chapter for audit purposes. The Department will not verify or audit for compliance. sec.199.116. Exceptions and Exclusions. This chapter does not apply to a state agency to which Education Code sec.51.9335 or sec.73.115 applies. The Department does not have authority to grant exceptions to Texas Government Code sec.2155.074 or this chapter. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 9, 1998. TRD-9803393 Rick Thrasher Executive Director Texas Department of Economic Development Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 936-0181 TITLE 16. ECONOMIC REGULATION PART II. Public Utility Commission of Texas CHAPTER 22.Practice and Procedure SUBCHAPTER B.Organization of the Commission 16 TAC sec.22.22 The Public Utility Commission of Texas proposes an amendment to sec.22.22 relating to Service on the Commission. The proposed amendment is to clarify commission policy and procedures regarding the position of secretary of the commission. Project Number 17709 has been assigned to this proceeding. Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined that for each year of the first five-year period the proposed section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Ms. Mueller has determined that for each year of the first five years the proposed section is in effect the public benefits anticipated as a result of enforcing the section will be rules that accurately reflect commission organization. There will be no effect on small businesses as a result of enforcing this section. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Ms. Mueller has also determined that for each year of the first five years the proposed section is in effect there will be no impact on employment in the geographic area affected by implementing the requirements of the section. Comments on the proposed amendment (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication. The Appropriations Act of 1997, HB 1, Article IX, Section 167 requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The commission invites specific comment regarding whether the reason for adopting this section continues to exist in considering this proposed amendment. All comments should refer to Project Number 17709 and reference Procedural Rules, Subchapter B. This amendment is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 and sec.14.052 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure. Cross Index to Statutes: Public Utility Regulatory Act sec.14.002 and sec.14.052. sec.22.22.Service on the Commission. The chief, Office of Policy Development
                                                                                                                                [secretary of the commission] shall have the authority to accept service of all papers or other legal documents served on the commission or any of its members if served in their official capacity and not individually. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 6, 1998. TRD-9803278 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 936-7308 CHAPTER 23.Substantive Rules Customer Service and Protection 16 TAC 23.59 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Public Utility Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Public Utility Commission of Texas (PUC) proposes the repeal of sec.23.59 relating to Nuclear Decommissioning Trusts. Project Number 17709 has been assigned to the proposed repeal of sec.23.59. The Appropriation Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The PUC held three workshops to conduct a preliminary review of its rules. As a result of these workshops, the PUC is reorganizing its current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer needed; (3) update existing rules to reflect changes in the industries regulated by the commission; (4) do clean-up amendments made necessary by changes in law and commission organizational structure and practices; (5) reorganize rules into new chapters to facilitate future amendments and provide room for expansion; and (6) reorganize the rules according to the industry to which they apply. As a result of this reorganization, sec.23.59 will be duplicative of the proposed new section in Chapter 25 of this title (relating to Substantive Rules Applicable to Electric Service Providers). Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Ms. Mueller has determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of the repeal will be the elimination of a duplicative rule. There will be no effect on small businesses as a result of repealing this section. There is no anticipated economic cost to persons as a result of repealing this section. Ms. Mueller has also determined that for each year of the first five years the repeal is in effect there will be no impact on employment in the geographic area affected by the repeal of this section. Comments on the proposed repeal (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas 78711- 3326, within 30 days after publication. All comments should refer to Project Number 17709, repeal of sec.23.59. This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Cross Index to Statutes: Public Utility Regulatory Act sec.14.002. sec.23.59. Nuclear Decommissioning Trusts. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 5, 1998. TRD-9803266 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 936-7308 Solar Standards 16 TAC sec.23.81 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Public Utility Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Public Utility Commission of Texas (PUC) proposes the repeal of sec.23.81 relating to Certification of Solar Collectors. Project Number 17709 has been assigned to this proposed repeal. As mandated by Senate Bill 1140, 68th Legislature, 1983, the PUC adopted sec.23.81 to set certification standards for solar collectors that would be eligible for tax exemptions in accordance with Texas Tax Code sec.151.325. In 1987 sec.151.325 was repealed by Acts 1987, 70th Legislature, 2nd C.S., ch. 5, art. 1, pt. 4, sec.37, making sec.23.81 no longer necessary. Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Ms. Mueller has determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of the repeal will be the elimination of an obsolete rule. There will be no effect on small businesses as a result of repealing this section. There is no anticipated economic cost to persons as a result of repealing this section. Ms. Mueller has also determined that for each year of the first five years the repeal is in effect there will be no impact on employment in the geographic area affected by the repeal of this section. Comments on the proposed repeal (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas 78711- 3326, within 30 days after publication. All comments should refer to Project Number 17709, repeal of sec.23.81. This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Cross Index to Statutes: Public Utility Regulatory Act sec.14.002. sec.23.81. Certification of Solar Collectors. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 5, 1998. TRD-9803267 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 936-7308 Telephone 16 TAC 23.100 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Public Utility Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Public Utility Commission of Texas (PUC) proposes the repeal of sec.23.100 relating to Electronic Publishing. Project Number 17709 has been assigned to the proposed repeal of sec.23.100. The Appropriation Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The PUC held three workshops to conduct a preliminary review of its rules. As a result of these workshops, the PUC is reorganizing its current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer needed; (3) update existing rules to reflect changes in the industries regulated by the commission; (4) do clean-up amendments made necessary by changes in law and commission organizational structure and practices; (5) reorganize rules into new chapters to facilitate future amendments and provide room for expansion; and (6) reorganize the rules according to the industry to which they apply. As a result of this reorganization, sec.23.100 will be duplicative of the proposed new section in Chapter 26 of this title (relating to Substantive Rules Applicable to Telecommunications Service Providers). Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Ms. Mueller has determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of the repeal will be the elimination of a duplicative rule. There will be no effect on small businesses as a result of repealing this section. There is no anticipated economic cost to persons as a result of repealing this section. Ms. Mueller has also determined that for each year of the first five years the repeal is in effect there will be no impact on employment in the geographic area affected by the repeal of this section. Comments on the proposed repeal (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas 78711- 3326, within 30 days after publication. All comments should refer to Project Number 17709, repeal of sec.23.100. This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Cross Index to Statutes: Public Utility Regulatory Act sec.14.002. sec.23.100.Electronic Publishing. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 5, 1998. TRD-9803264 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 936-7308 CHAPTER 25.Substantive Rules Applicable to Electric Service Providers SUBCHAPTER L.Nuclear Decommissioning 16 TAC sec.25.301 The Public Utility Commission of Texas (PUC) proposes new sec.25.301 relating to Nuclear Decommissioning Trusts. This new section is proposed for Chapter 25, Subchapter L, relating to Nuclear Decommissioning. Section 25.301 will replace corresponding sec.23.59 of this title (relating to Nuclear Decommissioning Trusts). Project Number 17709 has been assigned to this proposed new section. The Appropriation Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The PUC held three workshops to conduct a preliminary review of its rules. As a result of these workshops, the PUC is reorganizing its current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer needed; (3) update existing rules to reflect changes in the industries regulated by the commission; (4) do clean-up amendments made necessary by changes in law and commission organizational structure and practices; (5) reorganize rules into new chapters to facilitate future amendments and provide room for expansion; and (6) reorganize the rules according to the industry to which they apply. 16 TAC Chapter 25 has been established for all commission substantive rules applicable to electric service providers. The duplicative sections of Chapter 23 will be proposed for repeal as each new section is proposed for publication in Chapter 25. The only proposed changes to the text of new sec.25.301 to the text in the corresponding sec.23.59 are a citation reference is corrected in (a)(4)(A); and subsection (b)(3) has been updated to reflect the commission's current organization. Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined that for each year of the first five-year period the proposed section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Ms. Mueller has determined that for each year of the first five years the proposed section is in effect the public benefit anticipated as a result of enforcing the section will be less litigation on the issue of decommissioning funds; more stability in the decommissioning trusts held on behalf of the ratepayers; greater earnings for the utilities and a subsequent reduction in the ratepayers' contribution to funding for decommissioning due to utilities being able to invest decommissioning trust funds in certain types of mutual funds; and rules that accurately reflect commission organization. There will be no effect on small businesses as a result of enforcing these sections. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Ms. Mueller has also determined that for each year of the first five years the proposed section is in effect there will be no impact on employment in the geographic area affected by implementing the requirements of the section. Comments on the proposed new section (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication. The commission invites specific comments regarding whether the reason for adopting the rule in Chapter 23 continues to exist in adopting its corresponding section in the new chapter. All comments should refer to Project Number 17709, Nuclear Decommissioning. These new rules are proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Cross Index to Statutes: Public Utility Regulatory Act sec.14.002. sec.25.301. Nuclear Decommissioning Trusts. (a) Duties of electric utilities. (1) Each electric utility collecting funds for a nuclear decommissioning trust shall assure that the nuclear decommissioning trust is managed so that the funds are secure and earn a reasonable return; and, that the funds provided from the utility's cost of service, plus the amounts earned from investment of the funds, will be available at the time of decommissioning. (2) Each electric utility collecting funds for a nuclear decommissioning trust shall place the funds in an external, irrevocable trust fund. The utility shall appoint an institutional trustee and may appoint an investment manager(s). Unless otherwise specified in subsection (b) of this section, the Texas Trust Code controls the administration and management of the nuclear decommissioning trusts, except that the appointed trustee(s) need not be qualified to exercise trust powers in Texas. (3) The utility shall retain the right to replace the trustee with or without cause. In appointing a trustee, the electric utility shall have the following duties, which will be of a continuing nature: (A) A duty to determine whether the trustee's fee schedule for administering the trust is reasonable, when compared to other institutional trustees rendering similar services, and meets the requirement of subsection (c)(2)(A) of this section; (B) A duty to investigate and determine whether the past administration of trusts by the trustee has been reasonable; (C) A duty to investigate and determine whether the financial stability and strength of the trustee is adequate; (D) A duty to investigate and determine whether the trustee has complied with the trust agreement and this section as it relates to trustees; and, (E) A duty to investigate any other factors which may bear on whether the trustee is suitable. (4) The utility shall retain the right to replace the investment manager with or without cause. In appointing an investment manager, the utility shall have the following duties, which will be of a continuing nature: (A) A duty to determine whether the investment manager's fee schedule for investment management services is reasonable, when compared to other such managers, and meets the requirement of subsection (c)(2)(A) of this section; (B) A duty to investigate and determine whether the past performance of the investment manager in managing investments has been reasonable; (C) A duty to investigate and determine whether the financial stability and strength of the investment manager is adequate for purposes of liability; (D) A duty to investigate and determine whether the investment manager has complied with the investment management agreement and this section as it relates to investments; and, (E) A duty to investigate any other factors which may bear on whether the investment manager is suitable. (b) Agreements between the electric utility and the institutional trustee or investment manager. (1) The utility shall execute an agreement with the institutional trustee. The agreement shall include the restrictions in subparagraphs (A) - (E) of this paragraph and may include additional restrictions on the trustee. An electric utility shall not grant the trustee powers that are greater than those provided to trustees under the Texas Trust Code or that are inconsistent with the limitations of this section. (A) The interest earned on the corpus of the trust becomes part of the trust corpus. A trustee owes the same duties with regard to the interest earned on the corpus as are owed with regard to the corpus of the trust. (B) A trustee shall have a continuing duty to review the trust portfolio for compliance with investment guidelines and governing regulations. (C) A trustee shall not lend funds from the decommissioning trust with itself, its officers, or its directors. (D) A trustee shall not invest or reinvest decommissioning trust funds in instruments issued by the trustee, except for time deposits, demand deposits, or money market accounts of the trustee. However, investments of a decommissioning trust may include mutual funds that contain securities issued by the trustee if the securities of the trustee constitute no more than five percent of the fair market value of the assets of such mutual funds at the time of the investment. (E) The agreement shall comply with all applicable requirements of the Nuclear Regulatory Commission. (2) The utility shall execute an agreement with the investment manager. (If the trustee performs investment management functions, the contractual provisions governing those functions must be included in either the trust agreement or a separate investment management agreement.) The agreement shall include the restrictions set forth in subparagraphs (A) - (E) of this paragraph and may include additional restrictions on the manager. An electric utility shall not grant the manager powers that are greater than those provided to trustees under the Texas Trust Code or that are inconsistent with the limitations of this section. (A) An investment manager shall, in investing and reinvesting the funds in the trust, comply with subsection (c) of this section. (B) The interest earned on the corpus of the trust becomes part of the trust corpus. An investment manager owes the same duties with regard to the interest earned on the corpus as are owed with regard to the corpus of the trust. (C) An investment manager shall have a continuing duty to review the trust portfolio to determine the appropriateness of the investments. (D) An investment manager shall not invest funds from the decommissioning trust with itself, its officers, or its directors. (E) The agreement shall comply with all applicable requirements of the Nuclear Regulatory Commission. (3) A copy of the trust agreement, any investment management agreement, and any amendments shall be filed with the commission within 30 days after the execution or modification of the agreement, and copies provided to the commission's Office of Regulatory Affairs' Legal Division and Financial Review Division and the Office of Public Utility Counsel. All previously executed agreements and amendments must be filed within 30 days of the effective date of this section. (4) Within 90 days after the effective date of this section, a utility that is a party to a trust agreement or an investment management agreement that is not in compliance with this section shall revise the agreement to comply with this section. (c) Trust investments. (1) Investment portfolio goals. The funds should be invested consistent with the following goals. The utility may apply additional prudent investment goals to the funds so long as they are not inconsistent with the stated goals of this subsection. (A) The funds should be invested with a goal of earning a reasonable return commensurate with the need to preserve the value of the assets of the trusts. (B) In keeping with prudent investment practices, the portfolio of securities held in the decommissioning trust shall be diversified to the extent reasonably feasible given the size of the trust. (C) Asset allocation and the acceptable risk level of the portfolio should take into account market conditions, the time horizon remaining before the commencement and completion of decommissioning, and the funding status of the trust. While maintaining an acceptable risk level consistent with the goal in subparagraph (A) of this paragraph, the investment emphasis when the remaining life of the liability, as defined in paragraph (2) (F)(iv) of this subsection, exceeds five years should be to maximize net long-term earnings. The investment emphasis in the remaining investment period of the trust should be on current income and the preservation of the fund's assets. (D) In selecting investments, the impact of the investment on the portfolio's volatility and expected return net of fees, commissions, expenses and taxes should be considered. (2) General requirements. The following requirements shall apply to all decommissioning trusts. Where a utility has multiple trusts for a single generating unit, the restrictions contained in this subsection apply to all trusts in the aggregate for that generating unit. For purposes of this section, a commingled fund is defined as a professionally managed investment fund of fixed-income or equity securities established by an investment company regulated by the Securities Exchange Commission or a bank regulated by the Office of the Comptroller of the Currency. (A) Fees limitation. The total trustee and investment manager fees paid on an annual basis by the utility for the entire portfolio including commingled funds shall not exceed 0.7% of the entire portfolio's average annual balance. (B) Diversification. For the purpose of this subparagraph, a commingled or mutual fund is not considered a security; rather, the diversification standard applies to all securities, including the individual securities held in commingled or mutual funds. Once the portfolio of securities (including commingled funds) held in the decommissioning trust(s) contains securities with an aggregate value in excess of $20 million, it shall be diversified such that: (i) no more than 5.0 % of the securities held may be issued by one entity, with the exception of the federal government, its agencies and instrumentalities, and; (ii) the portfolio shall contain at least 20 different issues of securities. Municipal securities and real estate investments shall be diversified as to geographic region. (C) Qualified trusts. The utility may invest the decommissioning funds by means of qualified or unqualified nuclear decommissioning trusts; however, the utility shall, to the extent permitted by the Internal Revenue Service, invest its decommissioning funds in "qualified" nuclear decommissioning trusts, in accordance with the Internal Revenue Service Code sec.468A. (D) Derivatives. The use of derivative securities in the trust is limited to those whose purpose is to enhance returns of the trust without a corresponding increase in risk or to reduce risk of the portfolio. Derivatives may not be used to increase the value of the portfolio by any amount greater than the value of the underlying securities. Prohibited derivative securities include, but are not limited to, mortgage strips; inverse floating rate securities; leveraged investments or internally leveraged securities; residual and support tranches of Collateralized Mortgage Obligations; tiered index bonds or other structured notes whose return characteristics are tied to non-market events; uncovered call/put options; large counter-party risk through over-the-counter options, forwards and swaps; and instruments with similar high-risk characteristics. (E) The use of leverage (borrowing) to purchase securities or the purchase of securities on margin for the trust is prohibited. (F) Investment limits in equity securities. The following investment limits shall apply to the percentage of the aggregate market value of all non-fixed income investments relative to the total portfolio market value. (i) Except as noted in clause (ii), when the weighted average remaining life of the liability exceeds 5 years, the equity cap is 60%; (ii) When the weighted average remaining life of the liability ranges between 5 years and 2.5 years, the equity cap shall be 30%. Additionally, during all years in which expenditures for decommissioning the nuclear units occur, the equity cap shall also be 30%; (iii) When the weighted average remaining life of the liability is less than 2.5 years, the equity cap shall be 0%; (iv) For purposes of this subparagraph, the weighted average remaining life in any given year is defined as the weighted average of years between the given year and the years of each decommissioning outlay, where the weights are based on each year's expected decommissioning expenditures divided by the amount of the remaining liability in that year; and (v) Should the market value of non-fixed income investments, measured monthly, exceed the appropriate cap due to market fluctuations, the utility shall, as soon as practicable, reduce the market value of the non-fixed income investments below the cap. Such reductions may be accomplished by investing all future contributions to the fund in debt securities as is necessary to reduce the market value of the non-fixed income investments below the cap, or if prudent, by the sale of equity securities. (G) A decommissioning trust shall not invest in securities issued by the electric utility collecting the funds or any of its affiliates; however, investments of a decommissioning trust may include commingled funds that contain securities issued by the electric utility if the securities of the utility constitute no more than 5.0% of the fair market value of the assets of such commingled funds at the time of the investment. (3) Specific investment restrictions. The following restrictions shall apply to all decommissioning trusts. Where a utility has multiple trusts for a single generating unit, the restrictions contained in this subsection apply to all trusts in the aggregate for that generating unit. (A) Fixed-income investments. A decommissioning trust shall not invest trust funds in corporate or municipal debt securities that have a bond rating below investment grade (below "BBB-" by Standard and Poor's Corporation or "Baa3" by Moody's Investor's Service) at the time that the securities are purchased and shall reexamine the appropriateness of continuing to hold a particular debt security if the debt rating of the company in question falls below investment grade at some time after the debt security has been purchased. Commingled funds may contain some below investment grade bonds; however, the overall portfolio of debt instruments shall have a quality level, measured quarterly, not below a "AA" grade by Standard and Poor's Corporation or "Aa2" by Moody's Investor's Service. In calculating the quality of the overall portfolio, debt securities issued by the federal government shall be considered as having a "AAA" rating. (B) Equity investments. (i) At least 70% of the aggregate market value of the equity portfolio, including the individual securities in commingled funds, shall have a quality ranking from a major rating service such as the earnings and dividend ranking for common stock by Standard and Poor's or the quality rating of Ford Investor Services. Further, the overall portfolio of ranked equities shall have a weighted average quality rating equivalent to the composite rating of the Standard and Poor's 500 index assuming equal weighting of each ranked security in the index. If the quality rating, measured quarterly, falls below the minimum quality standard, the utility shall as soon as practicable and prudent to do so, increase the quality level of the equity portfolio to the required level. (ii) A decommissioning trust shall not invest in equity securities where the issuer has a capitalization of less than $100 million. (C) Commingled funds. The following guidelines shall apply to the investments made through commingled funds. Examples of commingled funds appropriate for investment by nuclear decommissioning trust funds include United States equity- indexed funds, actively managed United States equity funds, balanced funds, bond funds, real estate investment trusts, and international funds. (i) The commingled funds should be selected consistent with the goals specified in paragraph (1) and the requirements in paragraph (2) of this subsection. (ii) In evaluating the appropriateness of a particular commingled fund, the utility has the following duties, which shall be of a continuing nature: (I) A duty to determine whether the fund manager's fee schedule for managing the fund is reasonable, when compared to fee schedules of other such managers; (II) A duty to investigate and determine whether the past performance of the investment manager in managing the commingled fund has been reasonable relative to prudent investment and utility decommissioning trust practices and standards; and (III) A duty to investigate the reasonableness of the net after-tax return and risk of the fund relative to similar funds, and the appropriateness of the fund within the entire decommissioning trust investment portfolio. (iii) The payment of load fees shall be avoided. (iv) Commingled funds focused on specific market sectors or concentrated in a few holdings shall be used only as necessary to balance the trust's overall investment portfolio mix. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 5, 1998. TRD-9803265 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 936-7308 CHAPTER 26.Substantive Rules Applicable to Telecommunications Service Providers SUBCHAPTER H.Electronic Publishing 16 TAC sec.26.161 The Public Utility Commission of Texas (PUC) proposes new sec.26.161 relating to Electronic Publishing. This new section is proposed for Chapter 26, Subchapter H, relating to Electronic Publishing. Section 26.161 will replace corresponding sec.23.100 of this title (relating to Electronic Publishing). Project Number 17709 has been assigned to this proposed new section. The Appropriation Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The PUC held three workshops to conduct a preliminary review of its rules. As a result of these workshops, the PUC is reorganizing its current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer needed; (3) update existing rules to reflect changes in the industries regulated by the commission; (4) do clean-up amendments made necessary by changes in law and commission organizational structure and practices; (5) reorganize rules into new chapters to facilitate future amendments and provide room for expansion; and (6) reorganize the rules according to the industry to which they apply. 16 TAC Chapter 26 has been established for all commission substantive rules applicable to telecommunications service providers. The duplicative section of Chapter 23 will be proposed for repeal as each new section is proposed for publication in Chapter 26. The only proposed changes to the text of new sec.26.161 to the text in the corresponding sec.23.100 are minor citation changes. Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined that for each year of the first five-year period the proposed section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Ms. Mueller has determined that for each year of the first five years the proposed section is in effect the public benefit anticipated as a result of enforcing the section will be that an incumbent local exchange company will file with the commission certain information regarding its compliance review requirements as set out in the Public Utility Regulatory Act. There will be no effect on small businesses as a result of enforcing these sections. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Ms. Mueller has also determined that for each year of the first five years the proposed section is in effect there will be no impact on employment in the geographic area affected by implementing the requirements of the section. Comments on the proposed new section (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication. The commission invites specific comments regarding whether the reason for adopting the rule in Chapter 23 continues to exist in adopting its corresponding section in the new chapter. All comments should refer to Project Number 17709, Electronic Publishing. These new rule is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and specifically PURA Chapter 63 relating to Electronic Publishing. Cross Index to Statutes: Public Utility Regulatory Act sec.14.002, and Chapter 63. sec.26.161. Electronic Publishing. (a) Definitions. (1) The following words and terms, when used in this section, shall have the meanings set out in sec.274 of the federal Telecommunications Act of 1996 (FTA), unless the context clearly indicates otherwise. (A) affiliate (B) control (C) electronic publishing (D) electronic publishing joint venture (E) separated affiliate (2) Incumbent Local Exchange Company means, for purposes of this section only, a company serving more than five million access lines in Texas. (b) Incumbent local exchange company requirements. An incumbent local exchange company under common ownership or control with a separated affiliate or electronic publishing joint venture shall: (1) value any assets that are transferred to a separated affiliate at the greater of net book cost or fair market value; (2) value any assets that are transferred to the incumbent local exchange company by its separated affiliate at the lesser of net book cost or fair market value; and, (3) file with the commission all filings made with the Federal Communications Commission (FCC) under FTA sec.274 at the same time such filings are made with the FCC. (c) Reporting. All reporting required by this section shall be filed in the commission's Central Records under project number 14506. (d) Sunset. The provisions of this section do not apply to conduct occurring after February 8, 2000. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 5, 1998. TRD-9803263 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 936-7308 PART III. Texas Alcoholic Beverage Commission CHAPTER 45.Marketing Practices SUBCHAPTER A.Standards of Identity for Distilled Spirits 16 TAC sec.45.4 The Texas Alcoholic Beverage Commission proposes an amendment to sec.45.4 concerning standards of identity for distilled spirits. The proposed amendment will identify and allow the sale of certain types of specialty and proprietary brands of distilled spirits. Lou Bright, General Counsel, has determined that the proposed amendment will have no adverse fiscal impact on units of local government or small businesses. The public benefit to be gained by this rule is that certain members of the alcoholic beverage industry will be permitted to introduce new products into Texas commerce. Comments on this proposal may be submitted to Lou Bright, General Counsel, Texas Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711 This amendment is proposed under the authority of sec.5.31 of the Alcoholic Beverage Code. Cross Reference to Statute: sec.5.38, Alcoholic Beverage Code. sec.45.4. The Standards of Identity. Standards of identity for the several classes and types of distilled spirits set forth in this section shall be as follows: (1)-(13) (No Change.) (14)
                                                                                                                                  Specialties Including Proprietaries. Specialties are fruit or other flavored modification of standard class, type and brand names in which no more than 2.5% sugar has been added and which are in most cases "specialty" and/or "proprietary" items produced under registered trademark brands by only one house, but significant enough in the market place to be classified as "specialty" and/or "proprietary" types. Examples of specialties or proprietaries would be, but not limited to, the following products: Soju; Aguardiente; Chartruese; Peter Herring or Pimm's Cup.
                                                                                                                                    (A)
                                                                                                                                      A statement of the classes and types of distilled spirits used in the manufacture thereof shall be deemed a sufficient statement of composition in the case of highballs, cocktails and similar prepared specialties when the designation adequately indicates to the consumer the general character of the product.
                                                                                                                                        (B)
                                                                                                                                          A product shall not bear a designation which indicates it contains a class or type of distilled spirits unless the distilled spirits therein conform to such class and type.
                                                                                                                                            This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 2, 1998. TRD-9803047 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Earliest possible date of adoption: April 19, 1998 For further information, please call: 512) 206-3204 TITLE 22. EXAMINING BOARDS PART IX. Texas State Board of Medical Examiners CHAPTER 163.Licensure 22 TAC sec.163.1 The Texas State Board of Medical Examiners proposes an amendment to sec.163.1, concerning definitions. The amendment is proposed to ensure continuity with the Medical Practice Act and to be consistent with current terminology. The amendment is also proposed to change the name of an organization throughout sec.163.1, to be consistent with the new name. The Advisory Board of Osteopathic Specialists has changed to the Bureau of Osteopathic Specialists. Tony Cobos, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the section as proposed. Mr. Cobos also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to ensure continuity with the Medical Practice Act. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date. The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. The Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.sec.3.03, 3.04, and 3.05 are affected by the proposed amendment. sec.163.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the contents clearly indicate otherwise. (1)-(12) (No change.) (13) One-year training program - Applicants who are graduates of acceptable approved medical schools must successfully complete one year of postgraduate training approved by the board that is: (A) accepted for certification by an American specialty board that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists
                                                                                                                                              [Advisory Board of Osteopathic Specialists]; or (B)-(C) (No change.) (14) Requisite qualifications - An endorsement applicant who is a graduate of an unapproved acceptable medical school who: (A)-(B) (No change.) (C) is either specialty board certified by a board that is a member of the American Board of Medical Specialities or the Bureau of Osteopathic Specialists
                                                                                                                                                [Advisory Board for Osteopathic Specialists] or successfully passes the Special Purpose Examination (SPEX). (15)-(18) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 4, 1998. TRD-9803138 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7016 CHAPTER 175.Schedule of Fees and Penalties 22 TAC sec.175.2 The Texas State Board of Medical Examiners proposes an amendment to sec.175.2, concerning penalties. The amendment is proposed to increase penalty fees for delinquent annual registration in order to be consistent with the Medical Practice Act, sec.3.10(b)(7). Tony Cobos, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the section as proposed. There will be an increase in revenue estimated at $7,000 per year. Mr. Cobos also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to ensure consistency with the Medical Practice Act, sec.3.10(b)(7). There will be no effect on small businesses. Persons who are required to comply with the section as proposed will see an increase in penalty fees. Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date. The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. The Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.3.01(c) and sec.3.10(b) are affected by the proposed amendment. sec.175.2.Penalties. The board shall charge the following penalties: (1) renewal of physician's license expired for 31-90 days- $55
                                                                                                                                                  [$50]; (2) renewal of physician's license expired for longer than 90 days but less than one year-$110
                                                                                                                                                    [$100]; (3)-(7) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 4, 1998. TRD-9803137 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7016 CHAPTER 183.Acupuncture 22 TAC sec.183.17, sec.183.23 The Texas State Board of Medical Examiners proposes amendments to sec.183.17 and sec.183.23, concerning acudetox specialist and continuing auricular acupuncture education for acudetox specialists. The amendments are proposed to change the name of two organizations throughout sec.183.17 and sec.183.23, to be consistent with their new names. The National Commission for the Certification of Acupuncturists (NCCA) has changed to the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM). The National Accreditation Commission for Schools and Colleges of Acupuncture and Oriental Medicine (NACSCAOM) has changed to the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM). Tony Cobos, general counsel, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed. Mr. Cobos also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be updated regulations. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date. The amendments are proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. The Medical Practice Act, Texas Civil Statutes, Article 4495b, Subchapter F is affected by the proposed amendments. sec.183.17. Acudetox Specialist. (a)-(k) (No change.) (l) An acudetox specialist shall be eligible for certification by grandfathering upon proof of formal training in acudetox or proof of actively practicing acudetox in Texas for 12 of the last 36 months immediately preceding September 1, 1997. Active practice shall be defined as the administering of at least 200 documented acudetox treatments per year. Formal training shall at a minimum consist of documented period of education by a ACAOM
                                                                                                                                                      [NACSCAOM] accredited school or other nationally recognized institution, organization, or training program approved by the Medical Board. Proof of active practice shall be made by submitting, under oath, a written application for certification by grandfathering on a form approved by the Medical Board along with the required fee and all of the information shown in paragraph (1) of this subsection. Proof of formal training in acudetox shall be made by submitting, under oath, a written application for certification by grandfathering on a form approved by the Medical Board along with the required fee and the information contained in paragraph (2) of this subsection: (1)-(2) (No change.) (m) (No change.) sec.183.23. Continuing Auricular Acupuncture Education for Acudetox Specialists. (a)-(g) (No change.) (h) Approval of continuing auricular acupuncture education. Continuing Auricular Acupuncture Education (CAAE) credit hours shall be approved by the Medical Board and shall include education by a ACAOM
                                                                                                                                                        [NACSCAOM] accredited school or other nationally recognized institution, organization, or training program approved by the Medical Board. Approval of courses shall be by January 1, 1999. The first reporting of CAE shall be required for certification renewal in 2000. Approval shall be based on a showing by the education provider that: (1)-(5) (No change.) (i)-(k) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 4, 1998. TRD-9803136 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7016 PART XXI. Texas State Board of Examiners of Psychologists CHAPTER 463.Applications 22 TAC sec.463.25 Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas State Board of Examiners of Psychologists or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas State Board of Examiners of Psychologists proposes the repeal of sec.463.25, concerning Criteria for Oral Examiners. The rule is being repealed in order to reflect the current process of the Board in selecting consultants to work on its examination programs. Sherry L. Lee, Executive Director, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Lee also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be to better inform the public about the Board's examination process. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700. The repeal is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed repeal does not affect other statutes, articles, or codes. sec.463.25.Criteria for Oral Examiners. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 3, 1998. TRD-9803072 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7700 The Texas State Board of Examiners of Psychologists proposes new sec.463.25, concerning Criteria for Examination Consultants. The new rule is being proposed in order to reflect the current process of the Board in selecting consultants to work on its examination programs. Sherry L. Lee, Executive Director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Lee also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to better inform the public about the Board's examination process. There will be no effect on small businesses. The economic cost to persons who are required to comply with the section as proposed will be in direct proportion to any penalties assessed due to the individual's non- compliance with the section. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The new section is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed new section does not affect other statutes, articles, or codes. sec.463.25.Criteria for Examination Consultants. The Board may employ licensed psychologists to act as consultants for purposes of developing and administering the Jurisprudence Examination and the Oral Examination. All such consultants shall be considered as agents of the Board. To be eligible to serve as a consultant for an examination, an individual must: (1) Be currently licensed by the Board as a psychologist and must have practiced within his/her area of expertise for the last five years; (2) Not be related within the second degree of affinity (marriage) or consanguinity (blood relationship) to an individual who has applied to take the examination; (3) Have no restrictions or pending complaints against his/her license; and 4) Be approved by the Board. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 3, 1998. TRD-9803073 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7700 22 TAC sec.463.26 Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas State Board of Examiners of Psychologists or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas State Board of Examiners of Psychologists proposes the repeal of sec.463.26, concerning Disclosure of Oral Exam Information. The rule is being repealed in order to allow the Board to clarify the confidentiality requirements for licensees involved in the Board's examination programs and better ensure that the Board's examination programs produce qualified and competent licensees. Sherry L. Lee, Executive Director, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Lee also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be to permit adoption of a more inclusive rule that will safeguard the confidentiality and quality of the Board's examination programs. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700. The repeal is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed repeal does not affect other statutes, articles, or codes. sec.463.26. Disclosure of Oral Examination Information. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 3, 1998. TRD-9803074 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7700 22 TAC sec.463.26 The Texas State Board of Examiners of Psychologists proposes new sec.463.26, concerning Disclosure of Examination Information. The new rule is being proposed in order to clarify the confidentiality requirements for licensees involved in the Board's examination programs and better ensure that the Board's examination programs produce qualified and competent licensees. Sherry L. Lee, Executive Director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Lee also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to allow the Board to better ensure the validity and confidentiality of the Board's examinations, thus ensuring the examination programs result in qualified and competent licensees. There will be no effect on small businesses. The economic cost to persons who are required to comply with the section as proposed will be in direct proportion to any penalties assessed due to the individual's non-compliance with the section. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The new section is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed new section does not affect other statutes, articles, or codes. sec.463.26. Disclosure of Examination Information. It is a violation of Board rules for any licensee to disclose any information about the contents or administration of the Board's examinations that could affect the validity of the examination. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 3, 1998. TRD-9803075 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: April 19, 1998 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 proposes an amendment to sec.465.38, concerning Psychological Services in the Schools. The amendment is being proposed in order to clarify that only qualified applicants should submit applications for licensure as a licensed specialist in school psychology, bringing the application process in line with that of the other licensing programs administered by the Board. Sherry L. Lee, Executive Director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Ms. Lee also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure that the Board will not waste staff time and resources on processing applications for individuals who do not meet the threshold requirements for the licensed specialist in school psychology. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.465.38.Psychological Services in the Schools. This rule acknowledges the unique difference in the delivery of school psychological services in the public schools from psychological services in the private sector. The Board recognizes the purview of the State Board of Education and the Texas Education Agency in safeguarding the rights of public school children in Texas. The mandated multidisciplinary team decision making, hierarchy of supervision, regulatory provisions, and past traditions of school psychological service delivery both nationally and in Texas, among other factors, allow for rules of practice in the public schools which reflect these occupational distinctions from the private practice of psychology. (1)-(3) (No change.) (4) Supervision. (A) Direct systematic, face-to-face supervision must be provided to: (i) Interns as defined in sec.463.32 of this title (relating to Licensed Specialist in School Psychology). (ii) Individuals who meet the training requirements of sec.463.32
                                                                                                                                                          and have been notified by the Board that their applications
                                                                                                                                                            [applied] for licensure as specialists in school psychology are complete as defined by sec.463.5(6) of this title (relating to Application File Requirements)
                                                                                                                                                              . These individuals may practice under supervision in a public school district for no more than one year. They must be designated as trainees. (iii) Licensed specialists in school psychology for a period of one academic year following licensure. (iv) Licensed specialists in school psychology when the specialist is providing psychological services outside his or her area of training and supervised experience. (B)-(C) (No change.) (5) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 3, 1998. TRD-9803076 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7700 CHAPTER 466.Procedure 22 TAC sec.466.14 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.466.14, concerning Informal Settlement Conference. The amendment is being proposed in order to make the rules more accessible and easily understood by licensees and the public. Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules more accessible and easily understood by licensees and the general public. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.466.14.Informal Settlement Conference. Prior to the institution of the Board's proceedings to discipline or revoke the license of any licensee
                                                                                                                                                                [revoke, suspend, annul or withdraw any license or certificate], the Board shall: (1)
                                                                                                                                                                  [(a)] Give notice to the licensee [or certificate holder] of such proceeding as required by the Administrative Procedure Act, Government Code, sec.2001.054(c); and (2)
                                                                                                                                                                    [(b)] Provide the licensee [or certificate holder] an opportunity to show compliance with the Act or rules of the Board by inviting the licensee [or certificate holder] to participate in an informal settlement conference. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 3, 1998. TRD-9803077 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7700 22 TAC sec.466.15 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.466.15, concerning Informal Disposition. The amendment is being proposed in order to identify the steps taken by the Agency in disposing of complaints in compliance with sec.25B of the Psychologists' Licensing Act. Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to expedite the complaint process, make more efficient use of the Board's resources and keep the public and licensees informed of the complaint process. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.466.15. Informal Disposition. (a) (No change.) [(b) In the event that the staff determines that there are no grounds to establish a violation of the Act, the matter shall be referred to the Complaints Review Committee for dispostion.] [(c) Any complaint against the Respondent which is not referred to the Complaints Review Committee for disposition shall be set for an informal settlement conference before the Disciplinary Review Panel. If the Respondent declines to participate in the informal settlement, the Panel may proceed in his or her absence.] (b)
                                                                                                                                                                      [(d)] The following procedures shall be followed in an informal settlement conference arising from a complaint. (1)-(13) (No change.) (c)
                                                                                                                                                                        [(e)] Informal Settlement of Application Disputes. (1)-(3) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 3, 1998. TRD-9803078 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 305-7700 TITLE 25. HEALTH SERVICES PART XVI. Texas Health Care Information Council CHAPTER 1301. Health Care Information SUBCHAPTER A. Collection and Reporting of Race, Ethnicity and Patient Indentifying Information; Definition of Rule Provider 25 TAC sec.sec.1301.12, 1301.17-1301.19 The Texas Health Care Information Council (Council) proposes amendments to sec.sec.1301.12, 1301.17-1301.19, concerning the procedures and types of bills required for submission, the submission of comments by the providers, the addition of data elements in the minimum data set and the removal of a reporting requirement for the public use data file. The amended sections are being proposed to ease the burden on reporting hospitals and to produce a more accurate data file. The proposed amendment to sec.1301.12 includes new language to allow for the option of reporting billing claims reports or consolidated discharge reports. The proposed amendments to sec.1301.17 require the providers to submit comments electronically and to assure that these comments contain no information that could identify an individual patient or physician. The proposed amendment to sec.1301.18 removes the requirement that the Executive Director convert employer name and address to a Standard Industrial Classification code. Finally, the proposed amendments to sec.1301.19 increase the number of data elements to the minimum data set, and clarify source of payment code listing for the charity code. Jim Loyd, Executive Director, has determined that for the first five-year period the amended rules are in effect there will no additional cost to local governments. Mr. Loyd estimates no additional costs to the state as a result of enforcing or administering the new amended sections. The amended rules reduces the Council's effort in storing, editing, consolidating and analyzing the data. Mr. Loyd also has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated will be clarification of confusing terminology and reduction of costs attributed to hospitals that archive their data and submit consolidated discharge reports. The public will also benefit from the increased accuracy and quality of the hospital discharge data disseminated to the public. Mr. Loyd estimates that there would be an economic cost of approximately $600 to persons, who operate two or more hospitals under one hospital license number or share centralized billing locations, required to comply with the amended sections' requirements for collecting and reporting facility name, facility address and facility city of the treating facility. These data elements are currently required data elements on the United States Department of Health and Human Services, Health Care Financing Administration's (HCFA)1450 form and the HCFA, Uniform Bill Ninety-two (UB-92) electronic format (Version 04.1 and 04.0). Accordingly, the Council believes that the actual annual cost of compliance, if any, will be negligible. Comments on the proposed amendments may be submitted to Jim Loyd, Executive Director, Texas Health Care Information Council, Brown-Heatly Building, 4900 North Lamar OOL-3407, Austin, Texas 78751-2399 no later than 30 days from the date that these proposed amendments are published in the Texas Register. The amendments are proposed under the Health and Safety Code, sec.sec.108.006, and 108.009. The Council interprets sec.108.006 as authorizing it to adopt rules necessary to carry out Chapter 108, including rules concerning data collection requirements and rules prescribing a process for providers to submit data. The Council interprets 108.009 as authorizing it to collect data elements relating to facility name, facility address, and facility city. The Texas Health and Safety Code, Chapter 108, sec.sec.108.006, 108.011, 108.012 and Chapter 311, Subchapter C, sec.311.039 are affected by these proposed amendments. sec.1301.12. Collection of Hospital Discharge Data. (a) (No change.) (b) All inpatient discharges shall be reported. Except as noted in paragraphs (1)-(4) of this subsection, one or more discharge files shall be submitted for each patient for each discharge covering all services and charges from admission through discharge. (1) (No change.) (2) Hospitals shall either submit separate discharge files corresponding to each interim, revised, or final bills or submit a single consolidated final bill for each discharged patient
                                                                                                                                                                          [Where a hospital has issued interim, revised, or final bills covering a single patient discharge, the hospital shall submit separate discharge files corresponding to each bill (3)-(4) (No change.) (c)-(g) (No change.) sec.1301.17. Certification of Discharge Reports. (a)-(d) (No change) (e) Hospitals, physicians or other health professionals may submit concise written comments regarding any data submitted by them or relating to services they have delivered which may be released as public use data. Comments shall
                                                                                                                                                                            [may] be submitted to the Council [at any time prior to the initial release by the Council of public use data] no later than six months following the last day of the reporting quarter. Commenters are responsible for assuring that the comments contain no patient or physician identifying information. Comments shall be submitted electronically using the methods described in sec.1301.14(a) and (b) of this title (relating to Instructions for Filing Discharge Reports).
                                                                                                                                                                              (f) (No change) sec.1301.18. Hospital Discharge Data Release. (a)-(b) (No change.) (c) Creation of public use data file. The executive director will create a public use data file by creating a single record for each inpatient discharge and adding, modifying or deleting data elements in the following manner as listed in paragraphs (1)-(11)
                                                                                                                                                                                [(12)] of this subsection: (1)-(6) (No change.) [(7) convert employer name and address data to a Standard Industrial Classification Code;] (7)
                                                                                                                                                                                  [(8)] convert facility name, address and identification numbers to a facility identifier; (8)
                                                                                                                                                                                    [(9)] convert all procedure codes to ICD-9-CM; (9)
                                                                                                                                                                                      [(10)] add risk and severity adjustment scores utilizing an algorithm approved by the Council; (10)
                                                                                                                                                                                        [(11)] add indicators of whether the hospital is a children's specialty hospital and whether the hospital is a teaching hospital; (11)
                                                                                                                                                                                          [(12)] add indicators of whether the patient was served in an acute care unit or in a specialty unit such as skilled nursing, long-term care, or psychiatric. (d)-(k) (No change.) sec.1301.19. Discharge Reports - Records, Data Fields and Codes. (a)-(b) (No change.) (c) In addition to the data elements contained in the Texas UB-92 Manual, the Council has defined the following data elements shown in this subsection and has defined the location in the HCFA UB-92 Electronic Format (Versions 004.1 and 004.0) where each element is to be reported. (1)-(5) (No change) (6)
                                                                                                                                                                                            Facility Name - This data element shall be the name of the hospital where the services were rendered and shall be reported at Record Type 10, Field 12. (7)
                                                                                                                                                                                              Facility Address - This data element shall be the actual physical address of the hospital where the services were rendered and shall be reported at Record Type 10, Field 13. (8)
                                                                                                                                                                                                Facility City - This data element shall be the name of the city where the hospital that rendered the services is located and shall be reported in Record Type 10, Field 14. (d) (No change) (e) Hospitals shall submit the required minimum data set for all patients for which a discharge file is required by this title. For patients with any form of insurance, hospitals shall submit to the Council all data elements submitted to any third party payer in addition to data elements in the required minimum data set. The required minimum data set includes the following data elements as listed in paragraphs (1)-(47)
                                                                                                                                                                                                  [(44)] of this subsection: (1)-(44) (No change.) (45)
                                                                                                                                                                                                    Facility Name; (46)
                                                                                                                                                                                                      Facility Address; (47)
                                                                                                                                                                                                        Facility City; (f) A submission will consist of a set of the following types of records from the HCFA UB-92 Electronic Format (Versions 004.1 and 004.0) specification as shown in paragraphs (1)-(13) of this subsection. (1)-(3) (No change.) (4) Third Party Payer Data (Record 30). The third party payer record identifies the primary
                                                                                                                                                                                                          insurance payer
                                                                                                                                                                                                            information and the secondary insurance payer
                                                                                                                                                                                                              for each patient.
                                                                                                                                                                                                                [payer. If the patient has other insurance, two or more records must be submitted, one for each carrier.] If the patient has no third party payer[,] and is paying with personal finances, the hospital shall
                                                                                                                                                                                                                  submit one Record 30 01 (or first Record 30)
                                                                                                                                                                                                                    with Field 04 = A. If a non-standard source of payment code is selected, the hospital shall submit one Record 30 with Field 04 = I (Other) and the corresponding source of payment code shall appear in Record 22, Field 09. For example: If the patient has no third party payer and is treated as a charity patient, where no reimbursement is expected. The hospital shall submit one Record 30 01 with Field 04 = I and a Record 22 01 with Field 09 = Z, if the patient has a commercial PPO plan as the primary payer and Medicare Managed Care Plan for a secondary source of payment, the hospital shall submit two Record 30s'; Record 30 01 Field 04 = F (Commercial) and Record 22 01 Field 09 = U (Commercial PPO), Record 30 02 Field 04 = C (Medicare) and Record 22 Field 09 = V (Medicare Managed Care).
                                                                                                                                                                                                                      Records must be in the correct payer priority sequence. The '01' Record determines which source of
                                                                                                                                                                                                                        payment code will be considered as primary. (5)-(9) (No change.) (10) Physician Data (Record 80). This record is for the Texas
                                                                                                                                                                                                                          physician license number as assigned by the state licensing boards
                                                                                                                                                                                                                            and name or Unique Physician Identification Number (UPIN) assigned by HCFA and name.
                                                                                                                                                                                                                              (11)-(13) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 9, 1998. TRD-9803387 Jim Loyd Executive Director Texas Health Care Information Council Proposed date of adoption: April 19, 1998 For further information, please call: (512) 424-6490 TITLE 28. INSURANCE PART II. Texas Workers' Compensation Commission CHAPTER 133. General Medical Provisions SUBCHAPTER C. Second Opinions for Spinal Surgery 28 TAC sec.133.206 The Texas Workers' Compensation Commission (the Commission) proposes an amendment to sec.133.206, concerning the spinal surgery second opinion process. Section 133.206 describes the process by which a carrier becomes liable for the costs of spinal surgery. The rule provides definitions of terms related to the spinal surgery second opinion process. In addition, the rule sets out the procedures for the second opinion process, establishes liability for costs of a second-opinion examination, and sets the fee for second opinions. The rule also establishes qualifications for doctors who perform second opinions regarding spinal surgery and requires the Commission to maintain a list of surgeons whose current practice includes performing spinal surgery (the spinal surgeon list or the List) and to provide sublists of five of these spinal surgeons from which a second opinion doctor may be chosen by the injured employee and the carrier. A doctor must be on the spinal surgeon list to be reimbursed by the carrier for spinal surgery. The Commission's Medical Review division is given the authority to issue orders requiring timely submission of reports, records or forms, to refer a doctor who fails to comply with the rule or an order for proceedings on possible administrative violation, and to refer a doctor to the Commissioners for possible removal from the spinal surgeon list. The rule sets out actions which may result in division action to suspend or Commission action to remove a doctor from the spinal surgeon list. In addition, the rule sets out the procedure for a doctor who has been suspended to request a hearing to contest the suspension. The spinal surgery second opinion process established in sec.133.206 has proven to be an effective tool in maintaining cost effective, quality care for spinal injuries requiring surgery. Three goals were established for sec.133.206: 1) to decrease the processing time frame for the second opinion process; 2) to ensure qualified objective second opinions; and 3) to monitor the system. Section 133.206 has proven effective in reducing the time required to determine carrier liability for spinal surgery. Commission data for 1997 shows that processing time for the second opinion process has been reduced from 59 days under the previous system to the current processing time of 35 days under sec.133.206. Section 133.206 has been effective in ensuring qualified objective second opinions. As of February 1998, the total number of second opinion doctors on the Commission's spinal surgeon list is 687. This number of available doctors has proven to be sufficient for the process to function efficiently. No time delays have been experienced in setting appointments and very few appointments require rescheduling due to doctor unavailability. Commission data for 1997 shows that carrier selected second opinion doctors concur with a recommendation for surgery approximately 73% of the time, while employee selected doctors concur with a recommendation for surgery approximately 64% of the time. These concurrence figures demonstrate that second opinions in this system are not decided based upon the interests of the person or entity selecting the second opinion doctor, but rather are true medical opinions. Additionally, concerns that doctors of a differing specialty might offer largely different opinions have been alleviated by a review of Commission data that shows doctors of like specialty concur 71% of the time, while doctors of non-like specialty concur 67% of the time. The process in sec.133.206 preserves objectivity in the selection of second opinion doctors by requiring that the Commission's Medical Review Division maintain the list of spinal surgeons who are allowed to perform second opinions and by providing for the random selection of the spinal surgeons on the sublist from which the injured employee and insurance carrier may choose a second opinion doctor. Commission data also shows that a wider group of doctors are providing second opinions under sec.133.206 than under the previous system. Under the previous system 70 doctors performed the bulk of all second opinion examinations, whereas under sec.133.206 the 30 doctors who individually perform the greatest number of second opinions account for only 15% of all second opinion examinations. In 1997, out of a total of 7225 cases where second opinions were requested, 227 cases were disputed at the contested case hearing level and only 30 cases were appealed to the Appeals Panel. Carriers were liable for the costs of spinal surgery in approximately 91% of the cases. The specific criteria and timeframes in sec.133.206 have allowed for better tracking of the elements of the second opinion process and thus better monitoring of the effectiveness of the system. The proposed changes to current sec.133.206 are in response to complaints from participants in the second opinion process and issues which are frequently the subject of disputes. The Texas Register published text shows words proposed to be added to or deleted from the current text, and should be read to determine all proposed changes. The proposed amendment to subsection (a)(13) would change the definition of "concurrence". The current definition of "concurrence" provides that agreement of a second opinion doctor that spinal surgery is needed is a concurrence regardless of whether the second opinion doctor agrees that the particular surgical procedure recommended is needed. Currently, if a second opinion doctor agrees that surgery is needed, but is of the opinion that the recommended procedure is not likely to benefit the injured employee or even that the recommended procedure is contraindicated, the rule defines this as a concurring opinion. The carrier is held liable for the costs of the surgery, despite indications from second opinion doctor(s) that the recommended treatment is not likely to benefit the injured employee. An analysis of the Commission's medical billing database for the years 1991 through 1997 indicate that for Texas workers' compensation patients, the typical percentage of spinal surgery cases which require subsequent spinal surgeries is 15% or less. An analysis of surgical recommendations from calendar year 1995 indicates that 287 injured employees had second opinion surgical procedure recommendations that differed from the surgical procedure recommendation of the surgeon. Monitoring of these 287 injured employees through 1996 and 1997 reveals that approximately 31% (90 employees) had a subsequent surgical recommendation. Therefore, the percentage of Texas injured employees requiring subsequent spinal surgery in cases where the second opinion doctor recommended a different surgical procedure is far higher than that of the general Texas workers' compensation spinal surgery population. Ninety percent of the 287 patients who had a second opinion recommendation for a different procedure, had a second opinion recommendation for a less complex procedure than that recommended by the surgeon. The proposed amendment to subsection (a)(13) changes the definition of concurrence to require that the second opinion doctor agree with not only the need for spinal surgery, but also with the need for the particular spinal surgery procedure recommended. This change ensures that a second opinion concurrence results in treatment most likely to be beneficial to the injured employee. In addition, this change to the definition of "concurrence" will provide specific identification of the procedure(s) the insurance carrier is liable for as a result of the concurrence. Proposed changes to the definition of "nonconcurrence" in subsection (a)(14) provide consistency with the changes to subsection (a)(13). Subsection (b)(1) currently states that the carrier is liable for the reasonable and necessary costs of spinal surgery related to the compensable injury in six situations. Subsection (b)(2) currently states that the reasonable and necessary costs of spinal surgery include the services of the surgeons and ancillary providers during the hospital admission, and the hospital services. Subsection (b)(3), currently limits any medical dispute to the reasonableness of the fees charged, preventing a retrospective review of the medical necessity of any services provided in connection with the spinal surgery. This prohibition against retrospective review of services related to spinal surgery allows unanticipated services to be provided without an avenue for challenge of the medical necessity of such services. For example, under the current rule, while there may be agreement prospectively regarding the medical necessity of spinal surgery itself, the necessity of treatments and services other than the concurred upon spinal surgery is not reviewed prospectively and cannot be reviewed retrospectively for medical necessity. Therefore a concurrence under the current rule may authorize procedures and services which were never reviewed or even contemplated by the concurring second opinion doctor. The second opinion process is a prospective review of the medical necessity of the spinal surgery, but is not a prospective review of the necessity of all treatments and services rendered in connection with the spinal surgery. This issue is complicated by the definition of "concurrence" in the current rule which can impose carrier liability for a particular spinal surgery procedure that the second opinion doctors may not agree is medically necessary. Proposed changes to subsection (b) address these issues regarding the effect of a spinal surgery concurrence. Because sec.408.021 of the Workers' Compensation Act provides "that a claimant is entitled to all health care reasonably required by the nature of the injury as and when needed", the issue of reasonable necessity of care related to spinal surgery appears to be a proper subject for retrospective review. On the other hand, because the spinal surgery second opinion process does provide a prospective review and approval of the need for spinal surgery, the spinal surgery itself together with care related to the spinal surgery are not appropriate subjects for retrospective review. To address the issues of retrospective review of treatments and services associated with spinal surgery, subsection (b)(1) is proposed to be amended to state that the liability of the carrier includes the spinal surgery and the medically necessary care related to the spinal surgery; subsection (b)(2) would be amended to provide definition of "care related to the spinal surgery"; and subsection (b)(3) would be amended by adding a provision to allow retrospective review of the medical necessity and reasonableness of the fees charged for procedure(s) and the medical necessity of care related to those procedures which were not prospectively reviewed. This proposed amendment to subsection (b)(3) clarifies that the issue of medical necessity for the proposed spinal surgery procedure and the care related to the spinal surgery is determined prospectively and cannot be denied retrospectively, while allowing for the retrospective review of procedures and services which were not reviewed prospectively. Appropriate medical treatment remains within the purview of the surgeon. If treatments or surgeries are performed which are additional to or different from those approved through the second opinion process, the surgeon is responsible for documenting the medical necessity of such services. Subsection (b)(4) is proposed to be added to the rule to limit the validity of a determination of carrier liability to a one year period. To proceed with spinal surgery based upon a determination of carrier liability which is more than one year old a reevaluation of the injured worker's condition will be required. If carrier liability resulted from a carrier waiver of a second opinion or failure to request a second opinion within the allowed timeframe or if carrier liability resulted from a final Commission order, a new TWCC-63 form would be required to be submitted. If a determination of carrier liability was the result of concurrence by both second opinion doctors, failure to timely appeal in a case where there is only one concurrence, or concurrence by only one second opinion doctor, a resubmission of the original TWCC-63 form for an addendum report to determine continued medical necessity for the proposed surgical procedure would be required. Currently there is no provision in the rule for expiration of a concurrence for spinal surgery. Because the condition of the injured worker will most likely have changed in this amount of time and medical technology and information may have advanced, the year-old second opinion(s) may no longer be relevant and should be reevaluated before surgery proceeds. This change ensures the integrity of the spinal surgery second opinion process and ensures that the injured employee receives the most appropriate treatment. In addition, under the current rule, insurance carriers are not allowed to dispute medical necessity of a spinal surgery even if the second opinion concurrence took place years before. The proposed amendment would allow an insurance carrier to challenge the medical necessity of a spinal surgery if the second opinion concurrence or insurance carrier waiver is over one year old. In a small number of cases (approximately 100 per year), the injured employee requests change of treating doctor, from the treating doctor who recommended surgery to a doctor who provided a second opinion in their case. These injured employees request this change of treating doctor because they want the second opinion doctor rather than their treating doctor to perform their spinal surgery. Subsection (d) of the rule sets out the minimum qualifications a doctor rendering a second opinion must meet. These qualifications include that a second opinion doctor cannot be scheduled to perform or assist with the recommended surgery and cannot be economically associated or share office space with the treating doctor or surgeon. This restriction on second opinion doctors has caused confusion because it can be interpreted as a permanent prohibition against the second opinion doctor performing a spinal surgery for which the doctor has provided a second opinion or as a disqualification of that doctor's second opinion. In most cases when the injured employee changes treating doctors, the change is to the carrier selected second opinion doctor. The proposed amendment to subsection (d) adds new paragraph (2) to specifically set out the effect of an injured employee's change of treating doctor or surgeon to a second opinion doctor. In this situation, the second opinion doctor's opinion is disqualified, becomes null, and a new second opinion will be required by a different doctor from the same sublist. The intent of the rule is to provide a fair, non-biased second opinion for the injured employee. This objective can be met by allowing the injured employee to change to the second opinion doctor as treating doctor if the law and rules governing such change are followed, but then nullifying the doctor's second opinion and obtaining a new one from an objective doctor. This allows the injured employee maximum flexibility while maintaining the integrity of the second opinion process. Currently subsection (g)(3) states that the carrier is responsible for notifying the injured employee, treating doctor and surgeon of the scheduled second opinion appointment. Additionally, the rule indicates that failure to set an appointment within 30 days results in a waiver of a second opinion by the insurance carrier. However, the rule does not address the ramifications of setting an appointment within 30 days but failing to notify the involved persons. Failure to notify the injured employee, treating doctor, and the surgeon of the scheduled second opinion examination may result in a delay of treatment to the injured employee. Additionally, there are added costs incurred by the carrier. These costs include the $100 no-show fee which is owed to the doctor with whom the appointment was set and not kept. The carrier is required to schedule another appointment and provide notification to the injured employee, treating doctor and surgeon. Commission data indicates that 15 to 20 percent of the spinal surgery recommendations taking more than 50 days to process are delayed because of rescheduling of the carrier second opinion examination due to failure to notify one or more participants. In some situations, the injured employee receives notification and arrives at the appointment, however, the second opinion doctor will not see the patient because there are no accompanying medical records or diagnostic films due to the lack of notification to the surgeon by the insurance carrier. Many surgeons and injured employees report that the only notification they received regarding the scheduling of a second opinion examination was the notification sent by the Commission. Some participants also report the notification arriving the day of the scheduled examination or even a day or two after the scheduled examination. Case managers in the Commission's spinal surgery section estimate that delays due to failure to notify involved persons of a scheduled second opinion examination lengthens the second opinion process by three to five weeks. The proposed amendment to subsection (g)(3) adds failure to timely notify the injured employee, the surgeon, and the treating doctor of the scheduled second opinion examination as grounds for deeming carrier waiver of a second opinion. To ensure the treating doctor and surgeon have reasonable time to send records and films to the second opinion doctor, and to provide the injured employee with sufficient time to make arrangements to attend the examination, amended subsection (g)(3) requires that notification of the appointment be sent by the carrier at least 10 working days prior to the date of the second opinion examination. The proposed amendment to subsection (m) deletes the July 1, 1998 expiration date of the rule. The deletion of the expiration date has been proposed because the rule has proven to be an effective tool in maintaining cost effective, quality care for spinal surgeries and should continue in effect. The proposed amendments to sec.133.206 would be effective for all requests for spinal surgery second opinions filed with the Commission after the effective date of the proposed amendments. Requests filed with the Commission before the effective date of the proposed amendment would be subject to the rule in effect at the time the request was filed with the Commission. The rule reference in subsection (c)(5) is proposed to be changed in accordance with the renumbering of subsection (d). Proposed changes to subsections (d)(6), (i)(2), (i)(3), and (i)(4) are for consistency with other language in the rule and consistency with the amended definition of "concurrence." Proposed changes to subsection (d)(4) (currently (d)(3)) preserve the current meaning of that section and make it consistent with the addition of new subsection (d)(2). Janet Chamness, Chief of Budget, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local governments, with the exception of the Commission, as a result of enforcing or administering the proposed rule. The Commission may experience an increase in the cost of enforcing or administering the rule due to a possible increase in the number of requests for dispute resolution as a result of the proposed amendments. Commission costs may increase due to increased requests requiring processing as a result of the change in the definition of "concurrence" and clarification of related care, as a result of resubmissions in cases where the one-year limitation on carrier liability has been reached, and as a result of procedures required to change treating doctors. However, the fiscal impact cannot be determined, because the number of additional requests which require processing and the additional requests for dispute resolution may not be sufficient to require additional Commission resources. There will be no loss or increase in revenue to the Commission as a result of the amendment to the rule. Local government and state government as a covered regulated entity will be impacted in the same manner as described later in this preamble for persons required to comply with the rule amendments as proposed. Ms. Chamness also has determined that for each year of the first five years the amendment as proposed is in effect the public benefit anticipated as a result of enforcing the rule will be to provide more appropriate and timely treatment for injured employees with spinal injuries and to ensure the integrity of the spinal surgery second opinion process. Requiring that second opinion concurrences agree with not only the necessity of surgery but also the proposed surgical procedure will provide injured employees with a greater confidence that the proposed surgical procedure is an appropriate treatment for their injury and may reduce the occurrence of subsequent spinal surgery procedures. Insurance carriers will benefit from this proposed change by the additional certainty of the extent of their liability for spinal surgery. In addition, if the need for subsequent spinal surgeries is reduced, insurance carriers will benefit by reduced costs. This provision may result in fewer concurrences due to the fact that it requires agreement on the particular procedure proposed; however it is anticipated that disagreement on procedure will encourage communication by doctors regarding the reasons for their disagreement and subsequent agreement in some of these cases. The fiscal impact of the change on overall costs for spinal surgery in the system cannot be determined. If there is a decrease in the number of spinal surgeries, there will be a decrease in costs for insurance carriers and a decrease in income for spinal surgeons who would have performed the surgery. Because the changes in the rule are aimed at ensuring that spinal surgeries performed on injured employees are the most appropriate treatment, any reduction in the number of spinal surgeries as a result of the amendments to the rule will be the result of medical opinion that a particular procedure will not benefit the injured employee. Clarifications in the proposed amendment regarding the reasonable and necessary care related to spinal surgery may benefit carriers by providing additional certainty of the extent of their liability for services related to spinal surgery and by the ability to challenge through dispute resolution the medical necessity of treatments and services which have not been prospectively reviewed. Health care providers could also benefit from additional certainty regarding what is an appropriate subject for dispute resolution. If the number of requests for dispute resolution increases as a result of the proposed amendments, the expense to those who participate in such proceedings may increase. The fiscal impact on the participants in such dispute resolution proceedings will be determined based upon the merits of each individual case and cannot be predicted. Providing timeframes for notices and providing that failure of the carrier to notify the participants of a scheduled second opinion examination results in a waiver of the carrier's opportunity for a second opinion will benefit the injured employee by decreasing unnecessary trips to the doctor, preventing time delays resulting from appointment rescheduling, and ensuring that second opinion doctors have adequate time to review records and render an informed opinion. There may be savings to injured employees as a result of fewer unnecessary trips to the doctor. These provisions benefit health care providers by preventing the necessity to reschedule appointments due to lack of notice or failure to receive records. Health care providers may experience minimal savings as a result of fewer rescheduled appointments; however, the monetary effect on health care providers of rescheduling is unclear because doctors are paid for the nonproductive appointment at a reduced rate and for the rescheduled appointment at the full examination rate provided in the rule. If carriers fail to comply with the timeframes for providing notices, they could become liable for more surgeries due to the waiver provisions of the amendments to the rule. The necessity to reschedule appointments causes frustration with the system and delay in the process. The proposed amendment is expected to reduce frustration and delay. Amending the rule to clarify that a second opinion doctor is not disqualified from performing a spinal surgery for which the doctor rendered an opinion and clarifying the procedures which must be followed for a second opinion doctor to perform the surgery benefits injured employees and health care providers. This provision allows injured employees greater flexibility and control in the decision of what doctor will perform their spinal surgery while maintaining the objectivity of the spinal surgery second opinion process. There may be some additional cost to carriers because of the necessity to repeat some processing and pay for an additional second opinion. The addition of the provision limiting the amount of time that a determination of carrier liability is effective benefits injured employees by requiring that spinal surgery recommendations be reviewed after a period of time. This will ensure that the recommendation is still appropriate for the injured employees current condition and that the proposed procedure is still the best treatment option. This provision prevents a carrier's perpetual liability for the spinal surgery and may save costs to carrier. Treating doctors and surgeons could experience a minimal increase in costs to prepare addendum reports. This provision also preserves the integrity of the second opinion process by requiring that the process address appropriate treatment for the injured employee's current condition. The removal of the expiration date of the rule benefits the participants in the second opinion process by providing continuity of the process. Small businesses will be impacted no differently than large businesses by the costs to comply with the proposed amendments to the rule. The cost of compliance for small businesses will be the same as set out previously for all businesses. The costs for each employee, for each hour of labor, and for each $100 of sales are not expected to vary between large and small businesses. Comments on the proposed amendments must be received by 5 p.m. on April 20, 1998, and must be submitted to Sue Cutler, Office of the General Counsel, Mailstop #4-D, Texas Workers' Compensation Commission, Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491. A public hearing on the proposed amendment is tentatively scheduled for April 9, 1998. Those persons interested in attending the public hearing should contact the Commission's Office of Executive Communication at (512) 440-5690 to confirm the date, time, and location of the public hearing. The rule as adopted may be revised from the rule as proposed. The amendment is proposed under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.402.072, which mandates that only the commission can impose sanctions which deprive a person of the right to practice before the commission, receive remuneration in the workers' compensation system, or revoke a license, certification or permit required for practice in the system; the Texas Labor Code, sec.408.022, which requires an employee receiving treatment under the workers' compensation system to choose a doctor from a list of doctors approved by the commission and establishes the extent of an employee's option to select an alternate doctor; the Texas Labor Code, sec.408.026, which establishes when a carrier is liable for costs relating to spinal surgery and mandates that the commission adopt rules necessary to effectuate the statute; the Texas Labor Code, Chapter 410, which provides procedures for the adjudication of disputes; the Texas Labor Code, sec.413.031, which provides a process for dispute resolution for disputes involving medical services; the Texas Labor Code, sec.415.034, which allows a party charged with an administrative violation or the Executive Director of the commission to request a hearing with the State Office of Administrative Hearings; and the Texas Government Code, sec.2003.021(c), which requires the State Office of Administrative Hearings to conduct hearings under the Texas Labor Code, Title 5, in accordance with the applicable substantive rules and policies of the Texas Workers' Compensation Commission. The proposed amendment to sec.133.206 affects the following statutes: the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.402.072, which mandates that only the commission can impose sanctions which deprive a person of the right to practice before the commission, receive remuneration in the workers' compensation system, or revoke a license, certification or permit required for practice in the system; the Texas Labor Code, sec.402.073, which requires the Texas Workers' Compensation Commission and the State Office of Administrative Hearings to cooperate in establishing procedures for holding hearings; the Texas Labor Code, sec.408.022, which requires an employee receiving treatment under the workers' compensation system to choose a doctor from a list of doctors approved by the commission and establishes the extent of an employee's option to select an alternate doctor; the Texas Labor Code, sec.408.023, which establishes which doctors are placed on the approved list of doctors and mandates that the commission establish rules for deleting and reinstating doctors to the list; the Texas Labor Code, sec.408.026, which establishes when a carrier is liable for costs relating to spinal surgery and mandates that the commission adopt rules necessary to effectuate the statute; the Texas Labor Code, sec.413.007, which prescribes certain statewide data which must be maintained by the Medical Review division; the Texas Labor Code, sec.413.011, which mandates that the commission by rules establish medical policies and guidelines; the Texas Labor Code, sec.415.003, which lists actions or inactions which constitute an administrative violation by a health care provider; the Texas Labor Code, sec.415.034, which allows a party charged with an administrative violation or the Executive Director of the commission to request a hearing with the State Office of Administrative Hearings; and the Texas Government Code, sec.2003.021(c), which requires the State Office of Administrative Hearings to conduct hearings under the Texas Labor Code, Title 5, in accordance with the applicable substantive rules and policies of the Texas Workers' Compensation Commission. sec.133.206. Spinal Surgery Second Opinion Process. (a) Definitions. The following words and terms, when used in this subchapter, will have the following meanings, unless the context clearly indicates otherwise. (1)-(12) (No change). (13) Concurrence - A second opinion doctor's agreement that
                                                                                                                                                                                                                                [with] the surgeon's proposed surgical procedure
                                                                                                                                                                                                                                  [recommendation that spinal surgery] is needed. Need is assessed by determining if there are any pathologies in the area of the
                                                                                                                                                                                                                                    spine for which surgery is proposed
                                                                                                                                                                                                                                      that are likely to improve as a result of the
                                                                                                                                                                                                                                        [require] surgical intervention recommended by the surgeon
                                                                                                                                                                                                                                          . [Any indication by the qualified doctor that surgery to the proposed spinal area (e.g. cervical, thoracic, lumbar, or adjacent levels of different areas of the spine) is needed is considered a concurrence, regardless of the type of procedure or level.] (14) Nonconcurrence - A second opinion doctor's disagreement with the surgeon's recommendation that a particular
                                                                                                                                                                                                                                            spinal surgery is needed. (15)-(16) (No change.) (b) Carrier Liability for Spinal Surgery Costs. (1) Subject to the provisions of paragraph (4) of this subsection, the
                                                                                                                                                                                                                                              [The] carrier is liable in any of the following situations for the reasonable and necessary costs of the proposed
                                                                                                                                                                                                                                                spinal surgery procedure and the medically necessary care related to the spinal surgery. The surgery must be
                                                                                                                                                                                                                                                  related to the compensable injury and performed by a surgeon who was on the List at the time the TWCC-63 was filed with the commission by the treating doctor or the surgeon. The situations for reasonable and necessary costs are as follows
                                                                                                                                                                                                                                                    : (A)-(F) (No change.) (2) The medically
                                                                                                                                                                                                                                                      [reasonable and] necessary care related to the
                                                                                                                                                                                                                                                        [costs of] spinal surgery includes
                                                                                                                                                                                                                                                          [include] the services of the surgeons and ancillary providers during the hospital admission, and the hospital services. (3) If a carrier becomes liable for spinal surgery pursuant to the provisions of this section, disputes regarding the proposed and concurred upon spinal surgery procedure(s) and the medically necessary care related to the spinal surgery
                                                                                                                                                                                                                                                            [any medical disute resolution] shall be limited to a dispute as to the reasonableness of the fees charged [for the spinal surgery]. Procedure(s) not prospectively reviewed and the medically necessary care related to those procedures may be reviewed retrospectively for determination of medical necessity and reasonableness of fees charged.
                                                                                                                                                                                                                                                              (4)
                                                                                                                                                                                                                                                                Determinations of carrier liability made pursuant to paragraph (1)(B), (C), (D), (E), or (F) of this subsection are valid for one year from the date the determination is made. After one year, medical necessity for the proposed spinal surgery shall be reevaluated before surgery occurs. (A)
                                                                                                                                                                                                                                                                  If the carrier liability determination resulted from a situation described in paragraph (1)(B), (C), or (F) of this subsection, the spinal surgery second opinion process shall be reinitiated through submission of a new TWCC-63 form in accordance with subsection (e) of this section. (B)
                                                                                                                                                                                                                                                                    If the carrier liability resulted from a situation described in paragraph (1)(D) or (E) of this subsection or from concurrence by only one second opinion doctor, the treating doctor or surgeon shall submit a copy of the original TWCC-63 to the division and all second opinion doctors with documentation indicating the continued medical necessity for the proposed spinal surgery procedure. The second opinion doctor(s) shall review the documentation, examine the injured employee if indicated, and submit an addendum report in accordance with subsection (l)(2) and (3) of this section. Addendum decisions, reports, records, and payments, and appeal to a CCH are governed by all of the provisions of this section. (c) Commission List and Sublist. (1)-(4) (No change.) (5) A doctor who has been referred for an administrative violation pursuant to subsection (d)(5)
                                                                                                                                                                                                                                                                      [(4)] of this section and meets the criteria of paragraph (4) of this subsection will be suspended from the List by the division for 30 days. (6)-(11) (No change.) (d) Second Opinion Doctor's Qualifications. (1) (No change.) (2)
                                                                                                                                                                                                                                                                        If a second opinion doctor becomes the treating doctor pursuant to sec.126.9 of this title (relating to Choice of Treating Doctor and Liability for Payment) or surgeon for an injured employee for which the doctor has provided a second opinion in accordance with this section, the opinion rendered by that doctor is null. A new second opinion will be required by a different doctor chosen from the same sublist. The name of the second opinion doctor who has become the new treating doctor or surgeon will be removed from the sublist and replaced by that of another qualified second opinion doctor. The new treating doctor or surgeon shall submit to the division a new TWCC-63 form. (3)
                                                                                                                                                                                                                                                                          [(2)] An out-of-state doctor who is not on the List may be approved by the division as a qualified doctor if the claimant is residing out-of-state. (4)
                                                                                                                                                                                                                                                                            [(3)] When deemed necessary the division at its discretion may waive any of the
                                                                                                                                                                                                                                                                              [these] requirements in paragraph (1) of this subsection,
                                                                                                                                                                                                                                                                                with the exception of paragraph (1)(B) of this subsection, to secure timely and reasonable appointments. (5)
                                                                                                                                                                                                                                                                                  [(4)] The division may issue an order requiring timely submission of a report, record, or form required by this section, recommend administrative violation proceedings, take action to remove a doctor from the List as described in subsection (c) of this section and/or take action to remove a doctor from the Approved Doctor List in compliance with sec.126.8 of this title (relating to Commission Approved Doctor List) for noncompliance with the order. (6)
                                                                                                                                                                                                                                                                                    [(5)] A second opinion doctor is responsible for performing an exam if requested by the insurance carrier, the injured employee
                                                                                                                                                                                                                                                                                      [worker] or the commission unless the division releases the doctor from assessing a particular employee. To consider releasing a proposed second opinion doctor from the requirement to render an opinion on a specific case, Medical Review must agree that the selected second opinion doctor is not qualified due to unique or complex pathology or because the doctor's expertise excludes the involved body area. (e)-(f) (No change.) (g) Carrier Waiver of or Request for Second Opinion by Carrier-Selected Doctor; Carrier Records. (1)-(2) (No change.) (3) A carrier will be deemed to have waived a second opinion if the carrier chooses a doctor not on the sublist or sets an appointment which exceeds 30 days from the acknowledgement date or fails to timely notify the injured employee, the surgeon, and the treating doctor of the scheduled second opinion examination. Notification of the examination must be sent at least ten working days prior to the appointment.
                                                                                                                                                                                                                                                                                        (4)-(5) (No change.) (h) (No change.) (i) Second Opinion Decisions and Reports; Second Opinion Doctors' Records. (1) (No change.) (2) The second opinion doctor's opinion must be based on physical examination of the injured employee and review of the medical records and films forwarded by the surgeon. The second opinion doctor shall call the designated phone number at the division within two days after the exam to submit the results of a second opinion. The message must include the injured employee's name and social security number, the date and time of the exam, the name of the second opinion doctor and a clear decision of a "concurrence" or "nonconcurrence" with the need for the recommended surgical procedure
                                                                                                                                                                                                                                                                                          [surgery]. The second opinion doctor shall return any films within three days to the doctor who submitted the films. (3) The second opinion doctor must complete a narrative report regarding the second opinion exam which indicates the second opinion doctor's decision, and submit it to the division, the treating doctor, the surgeon, and the carrier, within ten days of the exam. [The narrative must indicate any differences of opinion in the type of procedure or level proposed for surgery. The second opinion doctor should contact the surgeon to discuss the second opinion doctor's opinion and recommendations. Differences of opinion between the surgeon and the second opinion doctor do not affect the carrier's liability for the reasonable costs of spinal surgery.] The division will notify the employee of the decision(s) of the second opinion doctor(s). [(4) If the second opinion doctor believes an area of the spine other than the one the surgeon or treating doctor proposed, is indicated for surgery the division will notify the injured employee and advise him that he may wish to consult his treating doctor or surgeon about the differences, and that, based upon the differences, he may request an advisory opinion.] (4)
                                                                                                                                                                                                                                                                                            [(5)] A second opinion doctor shall maintain accurate records to reflect the following for second opinions: (A) the date for which the exam was scheduled; (B) the circumstances regarding a cancellation, no show or other situations where the exam did not occur as scheduled; (C) the date of the examination; (D) the second opinion doctor's decision; (E) the date the decision was called into the division; (F) the date the narrative was mailed to the treating doctor, the surgeon, and the carrier; and (G) the date the narrative was sent to the division. (j)-(l) (No change.) (m) This section shall be effective for
                                                                                                                                                                                                                                                                                              [affects] all Form TWCC-63's filed with the commission on or after June 1, 1998
                                                                                                                                                                                                                                                                                                [November 1, 1994 and remains effective until July 1, 1998]. Form TWCC-63's filed prior to June 1, 1998 shall be subject to the rule in effect at the time the form was filed with the Commission.
                                                                                                                                                                                                                                                                                                  This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 9, 1998. TRD-9803392 Susan M. Cory General Counsel Texas Workers' Compensation Commission Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 440-3970 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 106. Exemptions from Permitting SUBCHAPTER V. Thermal Control Devices 30 TAC sec.106.491 The Texas Natural Resource Conservation Commission (commission) proposes an amendment to sec.106.491, concerning Dual Chamber Incinerators. EXPLANATION OF PROPOSED RULE. This amendment is proposed to ensure that incinerators operated under the conditions of this section will not cause human exposure to potentially harmful substances or cause nuisances. The amendment requires an increase in the minimum afterburner, or secondary chamber, temperature from 1,200 to 1,400 degrees Fahrenheit and requires that combustion gases be retained in the chamber for at least 0.5 seconds. This represents an accepted industry practice and should cause no increase in operating costs. These conditions will ensure that gases are more completely combusted prior to release to the atmosphere. The amendment also specifies a minimum stack height of six feet above the peak of the highest building within 150 feet of the stack to ensure proper exhaust gas dispersal and reduce the chances of exhaust gases affecting persons on the ground or in nearby structures. Incinerators operated under this exemption will be required to register with the commission and to maintain records as specified in 30 TAC Chapter 111. This will improve the ability of the commission to enforce the conditions of this section. FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations, has determined that for the first five-year period the section is in effect, there will be no significant fiscal implications for state or local government as a result of administration or enforcement of the section. PUBLIC BENEFIT. Mr. Minick also has determined that for each year of the first five years the section is in effect, the anticipated public benefit will be a reduced risk of exposure to harmful or irritating exhaust from incinerators operated under the amended section. There will be a minimal effect on small businesses. There are minimal anticipated economic costs to persons who are required to comply with the section as proposed. REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code (the Code), sec.2001.0225, and has determined that the rulemaking is not subject to sec.2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the Code, and it does not meet any of the four applicability requirements listed in sec.2001.0225(a). TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for this rule under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of this rulemaking is to reduce the risk of human exposure to harmful or irritating exhaust from incinerators operated under the exemption from permitting conditions contained in sec.106.491. This proposal does not constitute a taking of private, real property. COASTAL MANAGEMENT PLAN. The commission has determined that 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. There will be no increase in emissions as a result of these amendments. PUBLIC HEARING. A public hearing on this proposal will be held April 13, 1998, at 11:00 a.m. in Room 2210 of Texas Natural Resource Conservation Commission (TNRCC) Building F, located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to each hearing and will answer questions before and after the hearing. SUBMITTAL OF COMMENTS. Written comments may be mailed to Lisa Martin, TNRCC Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 97165-106-AI. Comments must be received by 5:00 p.m., April 20, 1998. For further information, please contact Dale Beebe-Farrow, New Source Review Permitting Division, (512) 239-1310, or Beecher Cameron, Air Policy and Regulations Division, (512) 239-1495. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearings should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. STATUTORY AUTHORITY. The amendment is proposed under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 requires the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Section 382.017 authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA, while sec.382.057 authorizes the commission by rule to exempt certain facilities or changes to facilities from the requirements of sec.382.0518 if such facilities or changes will not make a significant contribution of air contaminants to the atmosphere. The proposed amendment implements Texas Health and Safety Code, sec.382.057. sec.106.491. Dual Chamber Incinerators (Previously SE 2). Dual-chambered incinerators which burn only waste generated on-site and which
                                                                                                                                                                                                                                                                                                    meet the [following] conditions of this section are exempt .
                                                                                                                                                                                                                                                                                                      [:] Incinerators used in the processing or recovery of materials or to dispose of pathological waste as defined in sec.106.494 of this title (relating to Pathological Waste Incinerators (Previously SE 90)), hospital waste, and/or infectious waste are not authorized by this section.
                                                                                                                                                                                                                                                                                                        (1) The incinerator shall meet the following
                                                                                                                                                                                                                                                                                                          design requirements. (A) The incinerator shall be equipped with an afterburner automatically controlled to operate with a minimum temperature of 1,400 degrees Fahrenheit and a minimum gas retention time of 0.5 seconds
                                                                                                                                                                                                                                                                                                            [A burner in the secondary chamber shall maintain a temperature of 1,200 degrees Fahrenheit or higher in the secondary chamber]. (B) The manufacturer's rated capacity (burn rate) shall be 500
                                                                                                                                                                                                                                                                                                              [1,000] pounds per hour or less [for Type 0, Type 1, and Type 2 waste only, in which:] [(i) Type 0 (trash) wastes - principal components are highly combustible waste, paper, wood, cardboard cartons, including up to 10% treated papers, plastic, or rubber scraps. Moisture content less than or equal to 10%; noncombustible solids less than or equal to 5.0%; and] [(ii) Type 1 (rubbish) wastes - principal components are trash, rags, wood scraps, garbage (animal and vegetable wastes), and combustible floor sweepings. Garbage content cannot exceed 20%. Moisture content less than or equal to 25%; noncombustible solids less than or equal to 10%; and] [(iii) Type 2 (refuse) wastes - principal components are trash and rubbish. Garbage content cannot exceed 50%. Moisture content less than or equal to 50%; noncombustible solids less than or equal to 7.0%.] (C) Stacks shall have unobstructed vertical discharge
                                                                                                                                                                                                                                                                                                                [There shall be no obstruction to stack flow, such as by rain caps, unless such devices are designed to automatically open] when the incinerator is operated. Properly installed and maintained spark arrestors are not considered obstructions .
                                                                                                                                                                                                                                                                                                                  [;] (2) The incinerator shall meet the following
                                                                                                                                                                                                                                                                                                                    operational conditions. (A) Before construction begins, the facility shall be registered with the commission's Office of Air Quaility in Austin using Form PI-7
                                                                                                                                                                                                                                                                                                                      [The manufacturer's recommended operating instructions shall be posted at the incinerator and the unit shall be operated in accordance with these instructions]. (B) (No change.) (C) This facility shall be used solely for the disposal of the following
                                                                                                                                                                                                                                                                                                                        waste materials generated on-site : paper, wood, cardboard cartons, rags, garbage (animal and vegetable wastes as defined in Chapter 101 of this title (relating to General Rules)), and combustible floor sweepings; containing overall not more than 10% treated papers, plastic, or rubber scraps. Neither garbage content nor moisture content shall exceed 50% and noncombustible solids shall not exceed 10%
                                                                                                                                                                                                                                                                                                                          [Incinerators used in the processing or recovery of materials or to dispose of pathological, hospital, and/or infectious waste are not covered by this section. Pathological waste shall be defined only as carcasses, gauze dressings, blood, body fluids, tissue, human and/or animal remains, and the associated wood, cardboard, paper, or non-chlorinated plastic waste containers. Heat recovery, where no auxiliary fuel is burned, is allowed by this section]. (D)
                                                                                                                                                                                                                                                                                                                            The manufacturer's recommended operating instructions shall be posted at the incinerator and the unit shall be operated in accordance with these instructions. (E)
                                                                                                                                                                                                                                                                                                                              Incinerator owners and operators shall meet the monitoring, testing, reporting and recordkeeping requirements found in Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803301 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 3, 1998 For further information, please call: (512) 239-1966 CHAPTER 114. Control of Air Pollution from Motor Vehicles SUBCHAPTER F. Vehicle Retirement and Mobile Emission Reduction Credits 30 TAC sec.114.200 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The commission proposes the repeal of sec.114.200, concerning the Accelerated Vehicle Retirement (AVR or vehicle scrappage) Program. EXPLANATION OF PROPOSED RULE. This proposal is part of the regulatory reform effort. Regulatory reform projects identify rules and regulations which need clarification for the benefit of the public; are outdated; impose regulatory requirements in excess of their contribution to the commission's mission; or are duplicated, unnecessary, or inconsistent. This rule is inconsistent with the current Inspection/Maintenance (I/M) program, which lacks a loaded mode I/M 240 test. Additionally, this rule is currently not being used by the agency and is not required by state or federal law. Repeal of the rule will allow staff time to address any environmental justice issues which may arise due to trading of scrappage credits to offset compliance with other mandatory environmental regulations. The commission supports and will continue to work closely with local areas in developing scrappage programs as potential emission reduction strategies to assist them in moving towards attainment. The proposed repeal will allow further flexibilty for local areas to create their own vehicle scrappage programs based on guidance from the agency. FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five-year period the repeal is in effect there will be no significant fiscal implications for state or local government as a result of administration or enforcement of the repeal. Although this rule was proposed and adopted as part of the commission's efforts to address air emissions from mobile sources, as a result of changes to the I/M program the rule is no longer consistent with the program and has not been implemented. PUBLIC BENEFIT. Mr. Minick has also determined that for each year of the first five years the repeal of the rule is in effect the public benefit anticipated as a result of the repeal will be the elimination of regulatory requirements that are no longer applicable and improved consistency between the commission's regulations and current air quality programs. There is no anticipated economic cost to persons, including any small business, subject to the rule proposed for repeal. DRAFT REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, sec.2001.0225, and has determined that the rulemaking is not subject to sec.2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act, and it does not meet any of the four applicability requirements listed in sec.2001.0225(a). TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for this proposal under Texas Government Code, sec.2007.043. Promulgation and enforcement of this rule making will not affect private real property. COASTAL MANAGEMENT PLAN. The commission has determined that the proposed rule making 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 CMP. 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 proposed action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council and has determined that the proposed 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 Title 40, Code of Federal Regulations (40 CFR), to protect and enhance air quality in the coastal area (31 TAC sec.501.14(q)). This proposal does not change existing requirements which already comply with regulations at 40 CFR, and is therefore consistent with this policy. PUBLIC HEARING. A public hearing on the proposal will be held in Austin on April 14, 1998, at 10:00 a.m. in Building F, Room 2210 of the Texas Natural Resource Conservation Commission complex, located at 12100 North IH-35, Park 35 Technology Center, Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing. SUBMITTAL OF COMMENTS. Written comments may be submitted to Heather Evans, Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Log No. 98009-SIP-AI. Comments must be received by 5:00 p.m. April 20, 1998. For further information, please contact Bill Jordan of the Air Policy and Regulations Division, Office of Policy and Regulatory Development, (512) 239- 2583. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. STATUTORY AUTHORITY. The repeal is proposed under the agency's general authority, Texas Health and Safety Code sec.382.017. The repeal authority may be adopted under Texas Water Code sec.5.103, and Texas Heath and Safety Code, sec.382.017. Section 5.103 requires the commission to adopt rules any time it is repealing any agency statement of general applicability that describes its procedure or practice requirements. Section 382.017 provides the commission with the authority to adopt rules. The proposed repeal implements Health and Safety Code, sec.382.017. sec.114.200. Accelerated Vehicle Retirement Program. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 5, 1998. TRD-9803270 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: July 1, 1998 For further information, please call: (512) 239-1970 CHAPTER 116. Control of Air Pollution by Permits for New Construction or Modification The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes the repeal of sec.sec.116.10, 116.11, 116.13, 116.14, 116.110-116.112, 116.114-116.118, 116.120-116.126, and 116.310-116.314 and new sec.sec.116.10, 116.11, 116.13-116.15, 116.110-116.112, 116.114-116.118, 116.120-116.126, 116.180-116.183, and 116.310-116.314, concerning Control of Air Pollution by Permits for New Construction or Modification. The commission also proposes amendments to sec.sec.116.130-116.134, 116.136, 116.137, 116.140, 116.141, 116.143, 116.160, 116.161, 116.170, 116.174, 116.610, 116.611, 116.614, 116.615, 116.617, 116.620, 116.621, 116.710, 116.711, 116.714, 116.715, 116.721, 116.730, 116.740, and 116.750, concerning Control of Air Pollution by Permits for New Construction or Modification. This action constitutes the commission's proposal to review the rules contained in 30 TAC Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, in accordance with Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. EXPLANATION OF PROPOSED RULES. The commission proposes a new sec.116.15 and a new Subchapter C, sec.sec.116.180-116.183, for the purpose of implementing a program to meet the requirements of the 1990 Federal Clean Air Act (FCAA) amendments, sec.112(g), as set forth in 40 Code of Federal Regulations (CFR) Part 63, sec.sec.63.40-63.44, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (sec.112(g)). Chapter 116 will implement the requirements of Title III of the FCAA, concerning Hazardous Air Pollutants, sec.112(g), Modifications, and 40 CFR Part 63. After June 29, 1998, the effective date of sec.112(g)(2)(B), and the approval date of a Title V permit program in the state, all owners and operators of major sources subject to the sec.112(g) program that are constructed or reconstructed will be required to install maximum achievable control technology (MACT) unless specifically exempted. Included in Title III of the 1990 FCAA amendments, sec.112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of a case-by-case MACT if a facility is constructed or reconstructed before the United States Environmental Protection Agency (EPA) issues a MACT standard or air toxics regulation for that particular category of sources or facilities. Changes have been made throughout the rules as the result of ongoing efforts by the commission for regulatory reform. 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. These changes will not be noted in the discussion in the following paragraphs concerning the proposed amendments to Chapter 116 in each subchapter. Although sections of Subchapter F, concerning Standard Permits, and Subchapter G, concerning Flexible Permits, were revised, these subchapters were not included in this extensive regulatory reform effort. In addition, not all of Subchapter B was included. These subchapters and remaining sections will be reviewed at a later date for purposes of regulatory reform. The subchapters of the rule related to nonattainment permitting and emergency orders have not been included in this rulemaking, since they are expected to be revised in subsequent rulemakings that are on a different schedule. Those subchapters will be reviewed for regulatory reform purposes at that time. The following paragraphs describe the proposed amendments to Chapter 116 by subchapter. SUBCHAPTER A: DEFINITIONS. The commission proposes to amend Subchapter A by deleting those definitions that are identical or essentially the same as those in 30 TAC Chapter 101, concerning General Rules. As a result, in Chapter 116, the commission proposes to delete the definitions of "de minimis impact" and "emissions unit," to eliminate redundancy. In addition, the commission proposes to amend the definitions that reference exemptions from permitting by referring to 30 TAC Chapter 106, concerning Exemptions from Permitting. These references were proposed in response to the recent revision to Chapter 116 that moved exemptions to Chapter 106. Correct references to the new exemption chapter, or specific sections within that chapter, have been made throughout the rules. The definition of "federally enforceable" is revised to include the requirements of 30 TAC Chapter 113, Subchapter C, concerning National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR Part 63). These standards (commonly referred to as MACTS) are incorporated by reference into Chapter 113 and this reference is being included simply to direct the reader to the correct chapter of the commission's rules. The definition of "lead smelting plant" plant is revised to correct an internal conflict. The definition states that processing may include "oxidizing into lead oxide." This conflicts with the last sentence of the definition, which says that a facility that remelts lead bars or ingots is not a lead smelting plant. The conflict arises because lead oxide is only made by melting lead ingots. Finally, the commission proposes new sec.116.15, concerning Section 112(g) Definitions. The definitions contained in sec.116.15 will be used in conjunction with Subchapter C, concerning Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part 63). The definitions in sec.116.15 are essentially the same as those contained in 40 CFR 63, sec.63.41, concerning Definitions under Subpart B, Requirements for Control Technology (see 61 FR 68399). SUBCHAPTER B: NEW SOURCE REVIEW PERMITS. The commission proposes to amend sec.116.110, concerning Applicability, to reference standard permits that currently exist in Chapter 321, Subchapter K, concerning Concentrated Animal Feeding Operations; Chapter 332, concerning Composting; and Chapter 330, Subchapter N, concerning Landfill Mining. This amendment is proposed so that all the standard permits (for air emissions) currently available are referenced in Chapter 116. The commission proposes to delete the operations certification requirements contained in the existing sec.116.110(b) as a result of recommendations made by the TNRCC regional offices and the Office of Compliance and Enforcement. The commission believes that the operations certification requirement created unnecessary reporting and paperwork and could be implemented more effectively through new source review (NSR) permits on a case-by-case basis. The commission proposes a new sec.116.110(c), concerning Exclusion, to make it clear that facilities subject to Subchapter C are not authorized to use an exemption under Chapter 106, or an authorization under sec.116.116(e), concerning changes to qualified facilities. Facilities subject to Subchapter C can use standard permits under Subchapter F of this chapter if the terms and conditions of the standard permit meet the criteria of Subchapter C. As currently written, none of the existing standard permits meet the criteria of Subchapter C (e.g., there is no requirement for public notice). These changes are being made to ensure that applicants obtain the appropriate authorization under Subchapter C and are described in more detail in the section of the preamble addressing Subchapter C. The commission proposes a new sec.116.110(d), concerning change in ownership (formerly sec.116.110(c)). This subsection is proposed to be revised to specify that new owners must submit information on the date of the change in ownership, the name of the new owner, a contact person for the new owner, and the address and phone number of the new owner. The commission proposes a new sec.116.110(e) to reflect the recent revisions to the Texas Engineering Practice Act (TEPA) which now refers to "licensed" engineers instead of "registered" engineers. The correct name of the Texas Board of Professional Engineers is included. The rule is revised to make clear that for projects with a capital cost above $2 million, the project must be submitted under the seal of a Texas licensed professional engineer. This change is being made to make this section consistent with longstanding agency practice concerning seals of Texas professional engineers. Section 116.111(6), concerning national emissions standards for hazardous air pollutants for source categories, is revised to reference the requirements of Chapter 113, Subchapter C. These standards (commonly referred to as MACTS) are incorporated by reference into Chapter 113 and this reference is being included simply to direct the reader to the correct chapter of the commission's rules. Changes are proposed to implement FCAA, sec.112(g) and 40 CFR Part 63, Subpart B, requirements in sec.116.111(11), concerning general application, to ensure that applicants submit information in permit applications that demonstrates that the requirements of Subchapter C are met. Section 116.112, concerning Distance Limitations, is revised to be consistent with the statutory provisions in the Texas Solid Waste Disposal Act, sec.361.102, concerning Prohibition on Permit for Hazardous Waste Management Facilities Within a Certain Distance of Residence, Church, School, Day Care Center, Park, or Public Drinking Water Supply. The current sec.116.112(b)(4) contained a typographical error that would have allowed the construction of any new commercial hazardous waste management facility or units of a facility to be located within 2,640 feet of any off-site receptor. The statutory provision prohibits the construction of a new commercial hazardous waste management facility that would be within 2,640 feet of any off-site receptor. Section 116.115(c), concerning special conditions, is revised to include a reference to the new requirements in Subchapter C. This change will allow the executive director to include a special condition in permits requiring permit holders to obtain prior written approval before constructing a source using a standard permit under Subchapter F or an exemption under Chapter 106, if the change would cause the facility to become subject to Subchapter C. Section 116.116(b)(3) is added to require permit amendments that concern a change subject to Subchapter C to comply with the provisions for public notice and comment under Subchapter B of this chapter. This change is being made because 40 CFR Part 63, sec.63.43(c)(2)(ii), requires case-by-case MACT determinations to be subject to public notice. Subsection (f) is being added to sec.116.116 to authorize the use of discrete emission reduction credits (DERCs) to exceed permit allowables under certain conditions. The commission recently adopted a revised emissions banking and trading rule (22 TexReg 12517) to allow a source to meet emission control requirements by purchasing and using credits generated by another source which has reduced its emissions below the level required by rule or permit. The revised banking rule allows for the use of DERCs to exceed permitted allowable emission levels by a certain amount once within any 24-month period. In ozone nonattainment areas, this exceedance must be 25 tons or less of nitrogen oxides or five tons or less of volatile organic compounds. In other areas, the amount may not exceed the prevention of significant deterioration significance levels as provided in 40 CFR sec.52.21(b)(23). In addition to other requirements, these uses must be approved by the executive director and may not cause or contribute to a condition of air pollution. The proposed language of sec.116.116(f) would be the final step in allowing the use of credits to authorize certain exceedances of permit allowables. Section 116.117, concerning Documentation and Notification of Changes to Qualified Facilities, is revised to require persons making changes to qualified facilities under sec.116.116(e) to maintain documentation that demonstrates that the project will comply with Subchapter C. A minor amendment is proposed in sec.116.118 that would add the word "or" in sec.116.118(a)(1). This is being done to correct a previous typographical error. The commission proposes to amend sec.116.130(a), concerning applicability of public notification and comment procedures, by adding a reference to permit renewals. Applications for permit renewals are already required to go through public notice. This change merely includes a reference to renewals in this section. Subsection (a) is also revised to more closely track Texas Clean Air Act (TCAA), sec.382.056, concerning Notice of Intent to Obtain Permit or Permit Review; Hearing, by including the phrase "or to be located." This revision does not change the current requirement to publish notice in a newspaper of general circulation in the municipality where the facility is located, or to be located. Section 116.130 is also revised by adding a new subsection (c) that requires applications subject to review under Subchapter C to go through public notice. All applications subject to the requirements of FCAA, sec.112(g) and 40 CFR Part 63, Subpart B, whether initial applications or amendments to existing case-by- case MACT determinations, must go through the public notice process. This is because 40 CFR Part 63, Subpart B, sec.63.43(c)(2)(ii), requires that all such determinations be subject to public notice. To assist in the implementation of the commission's directive to facilitate and improve the public notice process, the commission proposes to provide the phone number of the appropriate commission office to contact for further information as a part of the public notice required in sec.116.132(a)(11) and sec.116.133(a)(6) rather than the phone number of the appropriate TNRCC regional office. Section 116.136(a) is proposed to be revised to correctly refer to the requirement that the executive director make a preliminary determination to issue or deny a permit subject to the FCAA, Title I, Parts C or D or to 40 CFR sec.51.165(b) or the availability of the preliminary analysis that is required for other permitting actions. This change will make sec.116.136(a) consistent with the requirements of sec.116.132(a)(6) and (7), concerning public notice format. The commission proposes to amend sec.116.140, concerning Applicability of Permit Fees, by deleting reference to operating permits and standard exemptions, because these types of authorizations are no longer included in Chapter 116. The reference to operating permits is deleted because the commission no longer issues state operating permits. This should not be confused with federal operating permits issued under 30 TAC Chapter 122, concerning Federal Operating Permits. Exemptions from permitting are now contained in Chapter 106. The commission proposes to amend sec.116.141(b)(1) to specify that any application for new or modified facilities controlled by the federal government will be charged a fee of $450. The existing provision qualifies the fee requirement for federal government applications submitted after January 1987. Since all of the pre-1987 applications from the federal government have been acted on by the commission, this provision is no longer necessary. Section 116.141(c)(1)(A) is revised to address an interpretation problem with the current rule. As currently written, the rule has confused some applicants and staff concerning the computation of direct costs for facilities that are no longer permitted (e.g., the permit expired and was not renewed). A historical review of this section indicates that the original fee language was added prior to any requirements for renewal (and expiration) of permits. The confusion lies around whether "permitted" means currently permitted or ever permitted regardless of current status. With two possible interpretations, neither has been consistently applied and the proposed language will rectify this situation. The commission does not believe that it is appropriate to allow the direct costs of process and control equipment of a facility to be excluded if the facility once had a permit but no longer does. Allowing this exclusion would promote the argument that higher renewal fees could be avoided in favor of a minimum new permit fee. It is not expected that this change will result in significantly higher fees and it will ensure that all applications are reviewed consistently for fee determinations. The commission proposes to amend sec.116.143 by correcting the TNRCC mailing address where permit fees are submitted. The previous mailing address was a street address rather than a post office box. SUBCHAPTER C: HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES (FCAA, sec.112(g), 40 CFR Part 63). The proposed revisions contain a new Subchapter C which is intended to meet the requirements of the 1990 FCAA amendments, sec.112(g), as set forth in 40 CFR 63, sec.sec.63.40-63.44. Included in Title III of the 1990 FCAA amendments, sec.112(g) was designed to ensure that emissions of toxic air pollutants meet the requirements of case-by-case MACT if a facility is constructed or reconstructed before EPA issues a MACT standard or air toxics regulation for that particular category of sources or facilities. 40 CFR Part 63, Subpart B, requires the commission to make case-by-case MACT determinations for sources that become subject to sec.112(g) prior to the EPA promulgating a MACT that would apply to the source. 40 CFR 63, sec.63.42 allows states to rely on existing NSR permitting programs to implement the requirements of sec.112(g) if the NSR program meets the requirements of that subpart. The commission believes that, with some modifications, the existing NSR program can implement the requirements of sec.112(g) and 40 CFR Part 63, Subpart B. Accordingly, the commission believes that the Best Available Control Technology (BACT) determinations made in the NSR program will be the equivalent to the requirements for case-by-case MACT determinations. After June 29, 1998, the effective date of sec.112(g)(2)(B), and the approval date of a Title V permit program in the state, all owners and operators of major sources subject to the sec.112(g) program that are constructed or reconstructed will be required to install MACT unless specifically exempted. As originally implemented, Chapter 122 was a source category limited interim approved program. This meant that only certain standard industrial classification codes were required to apply for an operating permit under the interim program. The remaining sources were to apply upon the approval of the full program by the EPA. Chapter 122 was recently revised (November 1997) to require all sources subject to that program to submit an abbreviated application by February 1, 1998. This revision has the effect of bringing all sources in the state who are subject to the rule into the program well before the expected date required for full program approval. Therefore, after June 29, 1998, and after the EPA approves the recent revisions to Chapter 122, sources that trigger sec.112(g) review must apply to the commission for a case-by-case MACT determination under sec.116.182, concerning Application. The TNRCC staff expects Chapter 122 to be revised prior to June 29, 1998. Administratively complete applications that are submitted prior to June 29, 1998, and the approval of the revised Chapter 122, will not be subject to the requirements of Subchapter C. After the effective date of sec.112(g)(2)(B) and upon approval of the state's federal operating permit program, sources subject to the requirements of Subchapter C will not be able to use a Chapter 106 exemption or a standard permit under Subchapter F (unless the particular standard permit's terms and conditions meet the requirements of Subchapter C) because all case-by-case MACT determinations are subject to the public notice requirements of Subchapter B. Sources will not be able to use sec.116.116(e), concerning changes to qualified facilities, because the staff interprets sec.63.43(d) to require the case-by- case MACT determinations to be equivalent to current BACT determinations. Section 63.43(d)(1) provides that the MACT emission limitation "shall not be less stringent than the emission control which is achieved in practice by the best controlled similar source, as determined by the permitting authority." Section 116.116(e) allows for the use of ten-year old BACT for qualified facilities. In some cases, ten-year old BACT may not necessarily be equivalent to today's BACT. An additional prohibition on the use of sec.116.116(e) is the requirement for case-by-case MACT determinations to go through public notice. Sources will have limited use of flexible permits under Subchapter G. Currently, flexible permits allow for control that exceeds BACT on one facility in lieu of installing controls on other facilities. The staff believes that sec.112(g) and 40 CFR Part 63, Subpart B, require the case-by-case MACT determination to be applied to the specific affected facilities. Therefore, sec.116.711(3) was revised to indicate that BACT shall be applied to specific facilities that must comply with Subchapter C. As long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with determinations made under Subchapter C. In sec.116.181, concerning Exclusions, the commission is currently proposing the same set of exclusions that are provided in 40 CFR 63, sec.63.40(c)-(f). The commission has determined that in order to provide a program consistent with the requirements of 40 CFR Part 63, sec.sec.63.40-63.44, the same set of exclusions should be provided. In general, if the owner or operator wants to construct or reconstruct a major source (as specified in sec.116.180(a)(1) and (2), concerning Applicability), then prior to that construction or reconstruction, the owner or operator must apply to the commission for a case-by-case MACT determination under sec.116.182, concerning Application. The application must contain the information required by the commission as provided in sec.116.111, concerning General Application. In addition, the application must specify the emission controls that will ensure that MACT will be met. Finally, the application for the proposed constructed or reconstructed major source must undergo the public notice requirements required by sec.116.130, which includes a 30-day public comment period and opportunity for a contested case hearing. After fully considering public comments and the results of any hearing, the commission would then issue (or deny) a permit, or approve a permit amendment, authorizing the construction or reconstruction of the major source. The case-by-case MACT determination codified in a permit issued under Chapter 116 would become an applicable requirement of Chapter 122 after satisfying the appropriate operating permit revision process and would be included in as a condition in an operating permit. In proposing Chapter 116, Subchapter C, the executive director is certifying that the proposed sec.112(g) program satisfies all applicable requirements established by 40 CFR sec.sec.63.40-63.44. After June 29, 1998, the effective date of sec.112(g)(2)(B), and upon approval of the recently revised Chapter 122, all owners and operators of major sources subject to the sec.112(g) program that are constructed or reconstructed will be required to install MACT unless specifically exempted. As outlined in the EPA preamble to the final rules implementing sec.112(g) (see 61 FR 68390), the program proposed is not required to have EPA approval before taking effect. SUBCHAPTER D: PERMIT RENEWALS. The commission proposes a new sec.116.311(a)(4) to include the requirement that applicants submit information in applications for permit renewals demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C. Section 116.311(5) is added to include the requirement that applicants submit information in applications for permit renewals demonstrating that the facility meets the requirements of Subchapter C of this chapter. Section 116.314, concerning Review Schedule, is amended to refer to the correct chapters of the commission's regulations concerning contested case hearings. SUBCHAPTER F: STANDARD PERMITS. The commission proposes amendments to sec.116.610(a)(5), concerning applicability of standard permits, to include the requirement that applicants submit information in applications for standard permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C. The commission proposes a new sec.116.610(d) to clarify that facilities subject to Subchapter C of this chapter are not eligible for a standard permit under Chapter 116, unless the particular standard permit's terms and conditions meet the requirements of Subchapter C. This is because 40 CFR Part 63, sec.63.43(c)(2)(ii), requires all case-by-case MACT determinations to be subject to public notice. The commission proposes to amend sec.116.614, concerning Standard Permit Fees, by correcting the TNRCC mailing address where permit fees are submitted. The previous mailing address did not have the correct mail code or zip code. The commission proposes to amend sec.116.620, concerning Installation and/or Modification of Oil and Gas Facilities, to reference the appropriate exemptions under Chapter 106 rather than the former standard exemption. In addition, sec.116.620(a)(13) also includes reference to case-by- case MACT review under Subchapter C. Section 116.620(a)(16) is added to require applicants to submit information in applications for standard permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C. The commission also proposes to amend sec.116.621(2)(F), concerning municipal solid waste landfills, to refer to the correct exemptions under Chapter 106 rather than the former standard exemption. In addition, sec.116.621(2)(F) includes reference to review under Subchapter C. SUBCHAPTER G: FLEXIBLE PERMITS. Consistent with the proposal to delete sec.116.110(b), the commission proposes to delete the operations certification requirements contained in sec.116.710(b) as a result of recommendations made by the TNRCC regional offices and the Office of Compliance and Enforcement. The commission believes that the operations certification requirement created unnecessary reporting and paperwork and could be implemented more effectively through Chapter 116 permits on a case-by-case basis. Section 116.710(c) is revised to be consistent with the changes proposed to sec.116.116(e), concerning seals of Texas licensed professional engineers. Section 116.711(3) is revised to require applicants to demonstrate that the proposed control technology meets the current BACT requirements for any constructed or reconstructed facility that is required to meet Subchapter C. Section 116.711(6) is added to require applicants to submit information in applications for flexible permits demonstrating that the facility meets the requirements of any MACT listed under Chapter 113, Subchapter C. The commission also proposes amendments to sec.116.711(11), concerning flexible permit applications, by adding a requirement that facilities subject to review for constructed or reconstructed major sources of hazardous air pollutants under FCAA, sec.112(g) and 40 CFR Part 63 must comply with Subchapter C. Along the same lines, the commission proposes to amend sec.116.715(a), concerning general and special conditions, to include the case-by-case MACT review under Subchapter C when considering whether a facility is eligible for a flexible permit under sec.116.710. A reference to Subchapter C was added because the commission wants to ensure that a facility operating under the terms of a flexible permit is in compliance with the federal permitting requirements of Subchapter C. As noted in the preamble discussion concerning Subchapter C, as long as a facility applies BACT and conducts public notice, the facility would still be able to use flexible permits in conjunction with case-by-case MACT determinations. In addition, sec.116.715 is amended to make the correct reference to Chapter 106. In order to properly refer to the Engineering Services Section, the commission proposes to amend sec.116.715(c)(4) by deleting a reference to the Source and Mobile Monitoring Section. Section 116.740(b), concerning public notice and comment, is added to require public notice for flexible permit amendments that address a case-by-case MACT determination under Subchapter C. Flexible permit amendments that do not concern case-by-case MACT determinations are not required to complete the public notice process. This change is being made to allow sources to continue to fully utilize flexible permits while meeting the conditions of Subchapter C. In addition, the commission proposes to amend sec.116.721 and sec.116.750, concerning Amendments and Alterations and Flexible Permit Fee, to correctly reference Chapter 106 rather than the former Chapter 116 for standard exemptions. Section 116.750(b) is amended to clarify that the minimum fee for a flexible permit amendment is $450. This is not a change to the existing fee structure; rather, it is to correct an oversight to include the $450 minimum fee. The $450 minimum fee has been applied, when applicable, to all applications for flexible permit amendments. This correction will make this section consistent with Subchapter B regarding fees for NSR permit amendments. REVIEW OF AGENCY RULES. The commission also proposes to review the rules contained in 30 TAC Chapter 116, concerning Control of Air Pollution by Permits for New Construction or Modification, as mandated by the General Appropriations Act, Article IX, sec.167. Section 167 requires state agencies to review and consider for readoption rules adopted under the Administrative Procedure Act. The reviews must include, at a minimum, an assessment that the reason for the rules continues to exist. The commission has reviewed the rules in Chapter 116 and determined that the rules in Chapter 116 are still necessary they implement critical provisions of the Texas Health and Safety Code, Texas Clean Air Act, Chapter 382, as well as 42 United States Code Annotated, sec.7401 to 7671q, of the Federal Clean Air Act. Chapter 116 provides the procedures for action on any application for a permit for construction or modification or renewal of a permit for a facility that will emit air contaminants into the air of the state. FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five-year period the sections are in effect, there will be no significant fiscal implications anticipated for state or local government as a result of enforcing or administering the sections. PUBLIC BENEFIT. Mr. Minick also has determined that for each year of the first five years the sections are in effect, the anticipated public benefit will be that the rules will conform to the commission's guidelines for regulatory reform. This will increase the readability of the rule, thus assisting the public and the regulated community in their understanding of the regulation. The additional changes are proposed to clarify existing rule language and make the rule consistent with current procedures will benefit the public in that the rule will better reflect the TNRCC's current operating procedures. The provisions of Chapter 116 will also implement the new requirements of Title III of the FCAA for the permitting of construction or reconstruction of major sources of hazardous air pollutants. After June 29, 1998, the effective date of sec.112(g)(2)(B), and the approval date of a Title V permit program in the state, all owners and operators of major sources subject to the sec.112(g) program that are constructed or reconstructed will be required to install MACT unless specifically exempted. The public benefit from the implementation of this program is that the commission, and not the EPA, will be the agency responsible for the oversight of the new program. Since the existing NSR permitting process, with some modifications, will be used to implement the requirements of sec.112(g) and 40 CFR Part 63, Subpart B, the regulated community and the public will already be familiar with that process. The proposed revisions do not impose significant new requirements on the regulated community, small businesses, or persons who are required to comply with the sections as proposed. DRAFT REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code (the Code), sec.2001.0225, and has determined that the rulemaking is not subject to sec.2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the Code. The portions of the rules implementing the FCAA, sec.112(g) do not meet the definition because the obligations have already been established by federal law and thus are not new requirements. The other portions of the rules correcting typos, clarifying language, and instituting regulatory reform changes are not of a magnitude to affect the economic factors in a material way. TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact assessment for these rules under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of the rule amendments and repeals is to implement the requirements of Title III of the FCAA, Hazardous Air Pollutants, sec.112(g), Modifications, and 40 CFR Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (sec.112(g)). The rule amendments and repeals will also implement the commission's guidelines on regulatory reform as well as provide clarifications to existing rule language, streamline procedures, and make the rule consistent with other commission rules. Promulgation and enforcement of the rule amendments and repeal will not create a burden on private real property. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. The commission has determined that this proposed rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resource Conservation Commission. 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, Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and sec.505.22(a), 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 applicable CMP goals and policies. The commission has reviewed this proposed rulemaking action for consistency, and has determined that this proposed rulemaking action is consistent with the applicable CMP goals and policies. Chapter 116 proposes a new program that implements the requirements of Title III of the FCAA, Hazardous Air Pollutants, sec.112(g), Modifications, and 40 CFR Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology. The proposed rule revisions are consistent with the goals and policies of the CMP because they are being proposed to implement the new sec.112(g) program. The new sec.112(g) program requires preconstruction review of major sources of hazardous air pollutants. This new program will require a review of the controls proposed for these major sources and could result in a reduction in air emissions. The majority of the proposed revisions will not impact air emissions since they are being done under the commission's guidelines on regulatory reform or for the purpose of clarification of existing procedures. The proposed changes concerning fees should not impact the status quo of the NSR permitting program, since the changes concerning direct costs provide consistency when calculating fees for new construction permits. Interested persons may submit comments on the consistency of the proposed rules with the CMP goals and policies during the public comment period. PUBLIC HEARING. A public hearing on the proposal and rules review will be held April 16, 1998, at 10:00 a.m. in Room 2210 of TNRCC Building F, located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after the hearing. SUBMITTAL OF COMMENTS. Comments regarding this proposal may be submitted to Lisa Martin, TNRCC Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 98001-116-AI. Comments must be received by 5:00 p.m., April 20, 1998. The commission requests that comments on the results of the review of its rules be clearly identified separately from comments on the proposed changes in order to facilitate their assessment. For further information or questions concerning this proposal, please contact Mark Gibbs of the New Source Review Permitting Division, Office of Air Quality, (512) 239- 1297. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. SUBCHAPTER A. Definitions 30 TAC sec.sec.116.10, 116.11, 116.13, 116.14 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY. The repeals are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.10. General Definitions. sec.116.11. Compliance History Definitions. sec.116.13. Flexible Permit Definitions. sec.116.14. Standard Permit Definitions. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803285 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 30 TAC sec.sec.116.10, 116.11, 116.13-116.15 STATUTORY AUTHORITY. The new sections are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed new sections implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.10. General Definitions. Unless specifically defined in the TCAA or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, and in sec.101.1 of this title (relating to Definitions), the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Actual emissions-The highest rate of emissions of an air contaminant actually achieved from a qualified facility within the 120-month period prior to the change. This rate cannot exceed any applicable federal or state emissions limitation. This definition applies only when determining whether there has been a net increase in allowable emissions under sec.116.116(e) of this title (relating to Changes to Facilities). (2) Allowable emissions-The authorized rate of emissions of an air contaminant from a facility as determined in accordance with this section. This rate cannot exceed any applicable state or federal emissions limitation. This definition applies only when determining whether there has been a net increase in allowable emissions under sec.116.116(e) of this title. (A) Permitted facility-For a facility with a preconstruction permit under this chapter, the allowable emissions shall be any emission limit established in the permit on a MAERT and any emission limit contained in representations in the permit application which was relied upon in issuing the permit, plus any allowable emissions authorized by an exemption under Chapter 106 of this title (relating to Exemptions from Permitting). (B) Exempted facility-For a facility operating under Chapter 106 of this title, the allowable emissions shall be the least of the emissions rate allowed in Chapter 106, Subchapter A of this title (relating to General Requirements), the emissions rate specified in the applicable exemption, or the federally enforceable emission rate established on a PI-8 form. (C) Grandfathered facility-For a qualified grandfathered facility, the allowable emissions shall be the maximum annual emissions rate after the implementation of any air pollution control methods to become a qualified facility, plus 10% of the maximum annual emissions rate prior to the implementation of such control methods, but in no case shall the allowable emissions be greater than the maximum annual emissions rate prior to the implementation of such control methods. The maximum annual emissions rate is the emissions rate at the maximum annual capacity according to the physical or operational design of the facility, data from actual operations over a period of no more than 12 months that demonstrates the maximum annual capacity, or other information that demonstrates the maximum annual capacity. Except where a grandfather facility has been modified, the allowable emissions for the modification shall be determined as a permitted facility. (D) Standard permit facility-For a facility authorized by standard permit, other than sec.116.617(2) of this title (relating to Standard Permits for Pollution Control Projects), the allowable emissions shall be the maximum emissions rate represented in the registration for the standard permit. (E) Special exemption facility-For a facility operating under a special exemption, the allowable emissions shall be the emissions rate represented in the original special exemption request. (F) The allowable emissions for a qualified facility shall not be adjusted by the voluntary installation of controls. (3) Best available control technology (BACT)-BACT with consideration given to the technical practicability and the economic reasonableness of reducing or eliminating emissions from the facility. (4) Facility-A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment. A mine, quarry, well test, or road is not a facility. (5) Federally enforceable-All limitations and conditions which are enforceable by the EPA, including: (A) those requirements developed under Title 40 of the Code of Federal Regulations (CFR) Parts 60 and 61 (40 CFR 60 and 61); (B) Chapter 113, Subchapter C of this title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR 63)); (C) requirements within any applicable state implementation plan (SIP); (D) any permit requirements established under 40 CFR sec.52.21; or (E) any permit requirements established under regulations approved under 40 CFR Part 51, Subpart I, including permits issued under the EPA-approved program that is incorporated into the SIP and that expressly requires adherence to any permit issued under such program. (6) Grandfathered facility-Any facility that is not a new facility since it was constructed prior to the permit requirements of this chapter. (7) Lead smelting plant-Any facility which produces purified lead by melting and separating lead from metal and nonmetallic contaminants and/or by reducing oxides into elemental lead. Raw materials consist of lead concentrates, lead- bearing ores or lead scrap, drosses, or other lead-bearing residues. Additional processing may include refining and alloying. A facility which only remelts lead bars or ingots for casting into lead products is not a lead smelting plant. (8) Maximum allowable emissions rate table (MAERT)-A table included with a preconstruction permit issued under this chapter that contains the allowable emission rates established by the permit for a facility. (9) Modification of existing facility-Any physical change in, or change in the method of operation of, a facility in a manner that increases the amount of any air contaminant emitted by the facility into the atmosphere or that results in the emission of any air contaminant not previously emitted. The term does not include: (A) insignificant increases in the amount of any air contaminant emitted that is authorized by one or more commission exemptions; (B) insignificant increases at a permitted facility; (C) maintenance or replacement of equipment components that do not increase or tend to increase the amount or change the characteristics of the air contaminants emitted into the atmosphere; (D) an increase in the annual hours of operation unless the existing facility has received a preconstruction permit or has been exempted, under the TCAA, sec.382.057, from preconstruction permit requirements; (E) a physical change in, or change in the method of operation of, a facility that does not result in a net increase in allowable emission of any air contaminant and that does not result in the emission of any air contaminant not previously emitted, provided that the facility: (i) has received a preconstruction permit or permit amendment or has been exempted under the TCAA, sec.382.057, from preconstruction permit requirements no earlier than 120 months before the change will occur; or (ii) uses, regardless of whether the facility has received a preconstruction permit or permit amendment or has been exempted under the TCAA, sec.382.057, an air pollution control method that is at least as effective as the BACT that the commission required or would have required for a facility of the same class or type as a condition of issuing a permit or permit amendment 120 months before the change will occur; (F) a physical change in, or change in the method of operation of, a facility where the change is within the scope of a flexible permit; or (G) a change in the method of operation of a natural gas processing, treating, or compression facility connected to or part of a natural gas gathering or transmission pipeline which does not result in an annual emission rate of any air contaminant in excess of the volume emitted at the maximum designed capacity, provided that the facility is one for which: (i) construction or operation started on or before September 1, 1971, and at which either no modification has occurred after September 1, 1971, or at which modifications have occurred only under Chapter 106 of this title; or (ii) construction started after September 1, 1971, and before March 1, 1972, and which registered in accordance with TCAA, sec.382.060, as that section existed prior to September 1, 1991. (10) New facility-A facility for which construction is commenced after August 30, 1971, and no contract for construction was executed on or before August 30, 1971, and that contract specified a beginning construction date on or before February 29, 1972. (11) New source-Any stationary source, the construction or modification of which is commenced after March 5, 1972. (12) Nonattainment area-A defined region within the state which is designated by the EPA as failing to meet the national ambient air quality standard for a pollutant for which a standard exists. The EPA will designate the area as nonattainment under the provisions of FCAA, sec.107(d). (13) Public notice-The public notice of application for a permit as required in this chapter. (14) Qualified facility-An existing facility that satisfies the criteria of either paragraph (9)(E)(i) or (ii) of this section. (15) Source-A point of origin of air contaminants, whether privately or publicly owned or operated. sec.116.11. Compliance History Definitions. Unless specifically defined in the TCAA or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, and in sec.101.1 of this title (relating to Definitions), the following words and terms, when used in sec.sec.116.120-116.126 of this title (relating to Compliance History) shall have the following meanings, unless the context clearly indicates otherwise. (1) Adjudicated decision-Any conviction, final order, judgment, or decree as follows: (A) a criminal conviction of the applicant in any court for violation of any law of this state, another state, or of the United States governing air contaminants; (B) a final order, judgment, or decree of any court or administrative agency, or agreement entered into settlement of any legal or administrative action brought in a court or administrative agency, addressing: (i) the applicant's past performance or compliance with the laws and rules of this state, another state, or of the United States governing air contaminants; or (ii) the terms of any permit or order issued by the commission; or (C) an order of any court or administrative agency, whether final or not, respecting air contaminants for the facility that is the subject of the permit application. (2) Compliance event-An adjudicated decision or compliance proceeding as defined in paragraphs (1) and (4) this section. (3) Compliance history-The record of an applicant's adherence to air pollution control laws and rules of the State of Texas, other states, and of the United States except as provided in sec.116.123 of this title (relating to Effective Dates). The history shall be for the five-year period prior to the date on which the application for issuance, amendment, or renewal is filed. The compliance history shall include all compliance events, as defined in this section. (4) Compliance proceeding-A notice of violation issued by the commission or other agency for which the commission has recommended formal enforcement action and has notified the applicant of such recommendation. (5) Existing site-A plant property that is not a new site. (6) New site-A plant property having an operating history less than five years in length as of the date of application. sec.116.13. Flexible Permit Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Emission cap-Emission limit for a specific air contaminant based on total emissions of that pollutant adjusted by an insignificant emissions factor from all sources that are included in a flexible permit. (2) Expected maximum capacity-The maximum capacity of a facility according to its physical and operational design and planned operation. (3) Individual emission limitation-Emission limit for a specific air contaminant not covered by an emission cap for an individual facility adjusted by an insignificant emissions factor. sec.116.14. Standard Permit Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Off-plant receptor-For the purposes of Subchapter F of this chapter (relating to Standard Permits) only, shall be defined as any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or owner of the property upon which the facilities are located. (2) Oil and gas facility-For the purposes of Subchapter F of this chapter only, shall be defined as facilities which handle gases and liquids associated with the production, conditioning, processing, and pipeline transfer of fluids found in geologic formations beneath the earth's surface. These oil and gas facilities include, but are not limited to: oil or gas production facilities; water injection facilities; carbon dioxide separation facilities; or oil or gas pipeline facilities consisting of one or more tanks, separators, dehydration units, free water knock-outs, gunbarrels, heater treaters, vapor recovery units, flares, pumps, internal combustion engines, gas turbines, compressors, natural gas liquid recovery units, or gas sweetening and other gas conditioning facilities. This definition does not include sulfur recovery units. (3) Sulfur recovery unit-For the purposes of Subchapter F of this chapter only, shall be defined as a process device whose primary purpose is to recover elemental sulfur from acid gas. sec.116.15. Section 112(g) Definitions. The following words and terms, when used in Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63)), shall have the following meanings, unless the context clearly indicates otherwise. (1) Affected source-The stationary source or group of stationary sources which, when fabricated (on-site), erected, or installed meets the criteria in sec.116.180(a)(1) and (2) of this title (relating to Applicability). (2) Control technology-Measures, processes, methods, systems, or techniques to limit the emission of HAPs including, but not limited to, measures that: (A) reduce the quantity of, or eliminate emissions of, such pollutants through process changes, substitution of materials, or other modifications; (B) enclose systems or processes to eliminate emissions; (C) collect, capture, or treat such pollutants when released from a process, stack, storage, or fugitive emissions point; (D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in 42 United States Code 7412(h); or (E) are a combination of subparagraphs (A)-(D) of this paragraph. (3) Electric utility steam generating unit-Any fossil fuel fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale. A unit that co-generates steam and electricity and supplies more than one- third of its potential electric output capacity and more than 25 megawatts electric output to any utility power distribution system for sale shall be considered an electric utility steam generating unit. (4) Greenfield site-A contiguous area under common control that is an undeveloped site. (5) Hazardous air pollutant (HAP)-Any air pollutant listed under the FCAA, sec.112(b). (6) List of source categories-The Source Category List required by FCAA, sec.112(c). (7) Maximum achievable control technology emission limitation for new sources- The emission limitation which is not less stringent than the emission limitation achieved in practice by the best controlled similar source, and which reflects the maximum degree of reduction in emissions that the executive director, taking into consideration the cost of achieving such emission reduction, and any non- air quality health and environmental impacts and energy requirements, determines is achievable by the constructed or reconstructed major source. (8) Process or production unit-Any collection of structures and/or equipment, that processes, assembles, applies, or otherwise uses material inputs to produce or store an intermediate or final product. A single facility may contain more than one process or production unit. (9) Research and development activities-Activities conducted at a research or laboratory facility whose primary purpose is to conduct research and development into new processes and products, where such source is operated under the close supervision of technically trained personnel and is not engaged in the manufacture of products for sale or exchange for commercial profit, except in a de minimis manner. (10) Similar source-A stationary source or process that has comparable emissions and is structurally similar in design and capacity to a constructed or reconstructed major source such that the source could be controlled using the same control technology. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803289 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER B. New Source Review Permits Permit Application 30 TAC sec.sec.116.110-116.112, 116.114-116.118 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY. The repeals are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.110. Applicability. sec.116.111. General Application. sec.116.112. Distance Limitations. sec.116.114. Application Review Schedule. sec.116.115. General and Special Conditions. sec.116.116. Changes to Facilities. sec.116.117. Documentation and Notification of Changes to Qualified Facilities. sec.116.118. Pre-change Qualification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803286 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 Division 1.
                                                                                                                                                                                                                                                                                                                                Permit Application 30 TAC sec.sec.116.110-116.112, 116.114-116.118 STATUTORY AUTHORITY. The new sections are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed new sections implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.110. Applicability. (a) Permit to construct. Any person who plans to construct any new facility or to engage in the modification of any existing facility which may emit air contaminants into the air of this state shall either: (1) obtain a permit under sec.116.111 of this title (relating to General Application); (2) satisfy the conditions for a standard permit under the requirements in: (A) Subchapter F of this chapter (relating to Standard Permits); (B) Chapter 321, Subchapter K of this title (relating to Concentrated Animal Feeding Operations); (C) Chapter 332 of this title (relating to Composting); or (D) Chapter 330, Subchapter N of this title (relating to Landfill Mining); (3) satisfy the conditions for a flexible permit under the requirements in Subchapter G of this chapter (relating to Flexible Permits); or (4) satisfy the conditions for exempt facilities under Chapter 106 of this title (relating to Exemptions from Permitting) before any actual work is begun on the facility. (b) Modifications to existing permitted facilities. Modifications to existing permitted facilities may be handled through the amendment of an existing permit or an existing flexible permit. (c) Exclusion. Owners or operators of constructed or reconstructed facilities subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63)) are not authorized to use: (1) an exemption under Chapter 106 of this title; (2) standard permits under Subchapter F of this chapter that do not meet the requirements of Subchapter C of this chapter; or (3) sec.116.116(e) of this title (relating to Changes to Facilities). (d) Change in ownership. (1) Within 30 days after the change of ownership of a facility permitted under this chapter, the new owner shall notify the commission and certify the following: (A) the date of the ownership change; (B) the name, address, phone number, and contact person for the new owner; (C) an agreement by the new owner to be bound by all permit conditions and all representations made in the permit application and any amendments and alterations; (D) there will be no change in the type of pollutants emitted; and (E) there will be no increase in the quantity of pollutants emitted. (2) The new owner shall comply with all permit conditions and all representations made in the permit application and any amendments and alterations. (e) Submittal under seal of Texas licensed professional engineer. Applications for permit or permit amendment with an estimated capital cost of the project above $2 million, and not subject to any exemption contained in the Texas Engineering Practice Act (TEPA), shall be submitted under seal of a Texas licensed professional engineer. However, nothing in this subsection shall limit or affect any requirement which may apply to the practice of engineering under the TEPA or the actions of the Texas Board of Professional Engineers. The estimated capital cost is defined in sec.116.141 of this title (relating to Determination of Fees). (f) Responsibility for permit application. The owner of the facility or the operator of the facility authorized to act for the owner is responsible for complying with this section. sec.116.111. General Application. In order to be granted a permit, amendment, or special permit amendment, the application must include: (1) a completed Form PI-1 General Application signed by an authorized representative of the applicant. All additional support information specified on the form must be provided before the application is complete; (2) information which demonstrates that all of the following are met. (A) Protection of public health and welfare. (i) The emissions from the proposed facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and physical property of the people. (ii) For issuance of a permit for construction or modification of any facility within 3,000 feet of an elementary, junior high/middle, or senior high school, the commission shall consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility may have on the individuals attending the school(s). (B) Measurement of emissions. The proposed facility will have provisions for measuring the emission of significant air contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission (TNRCC) Sampling Procedures Manual." (C) Best available control technology (BACT). The proposed facility will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions from the facility. (D) New Source Performance Standards (NSPS). The emissions from the proposed facility will meet the requirements of any applicable NSPS as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA under FCAA, sec.111, as amended. (E) National Emission Standards for Hazardous Air Pollutants (NESHAP). The emissions from the proposed facility will meet the requirements of any applicable NESHAP, as listed under 40 CFR Part 61, promulgated by EPA under FCAA, sec.112, as amended. (F) National Emission Standards for Hazardous Air Pollutants for Source Categories. The emissions from the proposed facility will meet the requirements of any applicable maximum achievable control technology standard as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR 63)). (G) Performance demonstration. The proposed facility will achieve the performance specified in the permit application. The applicant may be required to submit additional engineering data after a permit has been issued in order to demonstrate further that the proposed facility will achieve the performance specified in the permit application. In addition, dispersion modeling, monitoring, or stack testing may be required. (H) Nonattainment review. If the proposed facility is located in a nonattainment area, it shall comply with all applicable requirements in this chapter concerning nonattainment review. (I) Prevention of Significant Deterioration (PSD) review. If the proposed facility is located in an attainment area, it shall comply with all applicable requirements in this chapter concerning PSD review. (J) Air dispersion modeling. Computerized air dispersion modeling may be required by the executive director to determine air quality impacts from a proposed new facility or source modification. (K) Hazardous air pollutants. If the proposed constructed or reconstructed facility is a major source for hazardous air pollutants, it shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63)). sec.116.112. Distance Limitations. The following facilities must satisfy the following distance criteria. (1) Lead smelters. New lead smelting plants shall be located at least 3,000 feet from any individual's residence where lead smelting operations have not been conducted before August 31, 1987. This subsection does not apply to: (A) a modification of a lead smelting plant in operation on or before August 31, 1987; (B) a new lead smelting plant or modification of a plant with the capacity to produce 200 pounds or less of lead per hour; or (C) a lead smelting plant that was located more than 3,000 feet from the nearest residence when the plant began operations. (2) Hazardous waste permits. Permits for hazardous waste management facilities shall not be issued if the facility is to be located in the vicinity of specified public access areas under the following circumstances. (A) No permit shall be issued for a new hazardous waste landfill or land treatment facility or an areal expansion of an existing facility if the boundary of the facility or expansion is to be located within 1,000 feet of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park. (B) No permit shall be issued for a new commercial hazardous waste management facility or the subsequent areal expansion of such a facility or unit of that facility if the boundary of the unit is to be located within 1/2 mile (2,640 feet) of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park. (C) For a subsequent areal expansion of a new commercial hazardous waste management facility that is required to comply with subparagraph (B) of this paragraph, distances shall be measured from a residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park only if such structure, water supply, or park was in place at the time the distance was certified for the original permit. (D) No permit shall be issued for a new commercial hazardous waste management facility unless the applicant demonstrates that the facility will be operated so as to safeguard public health and welfare and protect physical property and the environment. (E) The measurement of distances shall be taken toward an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park that is in use when the permit application is filed with the commission. The restrictions imposed by subparagraphs (A)-(C) of this paragraph do not apply to a residence, church, school, day care center, surface water body used for a public drinking water supply, or a dedicated public park located within the boundaries of a commercial hazardous waste management facility, or property owned by the permit applicant. (F) The measurement of distances shall be taken from a perimeter around the proposed hazardous waste management unit. The perimeter shall be no more than 75 feet from the edge of the proposed hazardous waste management unit. sec.116.114. Application Review Schedule. (a) Review schedule. The executive director shall review permit applications in accordance with the following. (1) Notice of completion or deficiency. The executive director shall mail written notification informing the applicant that the application is complete or that it is deficient within 90 days of receipt of the application for a new permit, or amendment to a permit or special permit. (A) If the application is deficient, the notification must state: (i) the additional information required; and (ii) the intent of the executive director to void the application if information for a complete application is not submitted. (B) Additional information may be requested within 60 days of receipt of the information provided in response to the deficiency notification. (2) Decision to approve or disapprove the application. The executive director shall mail written notice to the applicant of his decision to approve or not approve the application. If the applicant has provided public notification as required by the executive director, and no requests for public hearing or public meeting on the proposed facility have been received, the executive director shall send notice within: (A) 180 days of receipt of a completed permit application; or (B) 150 days of receipt of a permit amendment or special permit amendment. (3) Refund of permit fee. (A) If the time limits provided in this section to process an application are exceeded, the applicant may appeal in writing to the executive director for a refund of the permit fee. (B) The permit fee shall be reimbursed if it is determined by the executive director that the specified period was exceeded without good cause, as provided in Texas Civil Statutes, Article 6252-13b.1, sec.3. (b) Voiding of deficient application. (1) An applicant shall make a good faith effort to submit, in a timely manner, adequate information which demonstrates that the requirements for obtaining a permit or permit amendment are met in response to any deficiency notification issued by the executive director under the provisions of this section, or sec.116.131 of this title (relating to Public Notification Requirements). (2) If an applicant fails to make such good faith effort, the executive director shall void the application and notify the applicant. If the application is resubmitted within six months of the voidance, it shall be exempt from the requirements of sec.116.140 of this title (relating to Applicability). sec.116.115. General and Special Conditions. (a) General and special conditions. Permits, special permits, standard permits, and exemptions may contain general and special conditions. (b) General conditions. Holders of permits, special permits, standard permits, and exemptions shall comply with the following: (1) the general conditions contained in the permit document if issued or amended prior to August 16, 1994; or (2) the following general conditions if the permit or amendment is issued or amended on or after August 16, 1994, regardless of whether they are specifically stated within the permit document. (A) Voiding of permit. A permit or permit amendment under this chapter is automatically void if the permit holder does one of the following: (i) fails to begin construction within 18 months of date of issuance. The executive director may grant a one-time 18-month extension to the date to begin construction; (ii) discontinues construction for more than 18 consecutive months prior to completion; or (iii) fails to complete construction within a reasonable time. (B) Report of construction progress. The permit holder shall report start of construction, construction interruptions exceeding 45 days, and completion of construction. The report shall be given to the appropriate regional office of the commission not later than 15 working days after occurrence of the event. (C) Start-up notification. (i) The permit holder shall notify the appropriate air program regional office of the commission prior to the commencement of operations of the facilities authorized by the permit. The notification must be made in such a manner as to allow representative of the commission to be present at the commencement of operations. (ii) The permit holder shall provide a separate notification for the commencement of operations for each unit of phased construction, which may involve a series of units commencing operations at different times. (D) Sampling requirements. (i) If sampling is required, the permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures. (ii) All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission. (iii) The permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant. (E) Equivalency of methods. The permit holder must demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the permit. (F) Recordkeeping. The permit holder shall: (i) maintain a copy of the permit along with information and data sufficient to demonstrate compliance with the permit, including production records and operating hours; (ii) keep all records required by this paragraph in a file at the plant site. If, however, the facility normally operates unattended, records shall be maintained at the nearest staffed location within Texas specified in the application; (iii) make the records available at the request of personnel from the commission or any air pollution control program having jurisdiction; (iv) comply with any additional recordkeeping requirements specified in special conditions attached to the permit; and (v) retain information in the file for at least two years following the date that the information or data is obtained. (G) Maximum allowable emission rates. The total emissions of air contaminants from any of the sources of emissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources--Maximum Allowable Emission Rates." (H) Maintenance of emission control. The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall provide notification for upsets and maintenance in accordance with sec.101.6 and sec.101.7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping and Operational Requirements). (I) Compliance with rules. (i) Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the granting of the permit. (ii) If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall be the standard by which compliance shall be demonstrated. (iii) Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the permit. (c) Special conditions. The holders of permits, special permits, standard permits, and exemptions shall comply with all special conditions contained in the permit document. (1) Special conditions may be attached to a permit that are more restrictive than the requirements of Title 30 of the Texas Administrative Code. (2) Special condition for written approval. (A) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under: (i) a standard permit under Subchapter F of this chapter (relating to Standard Permits); or (ii) an exemption under Chapter 106 of this title (relating to Exemptions from Permitting). (B) Such written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either: (i) result in a significant impact on the air environment; or (ii) cause the facility to become subject to review under: (I) Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA sec.112(g) 40 CFR Part 63)); or (II) the provisions in sec.116.150 and sec.116.151 of this title (relating to Nonattainment Review) and sec.sec.116.160-116.163 of this title (relating to Prevention of Significant Deterioration Review). sec.116.116. Changes to Facilities. (a) Representations and conditions. Conditions upon which a permit, special permit, or special exemption are issued include: (1) representations with regard to construction plans and operation procedures in an application for a permit, special permit, or special exemption; and (2) any general and special conditions attached to the permit, special permit, or special exemption itself. (b) Permit amendments. (1) Except as provided in subsection (e) of this section, the permit holder shall not vary from any representation or permit condition without obtaining a permit amendment if the change will cause: (A) a change in the method of control of emissions; (B) a change in the character of the emissions; or (C) an increase in the emission rate of any air contaminant. (2) Any person who requests permit amendments must receive prior approval by the executive director or the commission. Applications must be submitted with a completed Form PI-1 and are subject to the requirements of sec.116.111 of this title (relating to General Application). (3) Any person who applies for an amendment to a permit that concerns a determination for constructed or reconstructed sources under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA sec.112(g) 40 CFR Part 63)) shall comply with the provisions in sec.sec.116.130-116.134, 116.136, and 116.137 of this title (relating to Public Notification and Comment Procedures). (c) Permit alteration. (1) A permit alteration is: (A) a decrease in allowable emissions; or (B) any change from a representation in an application, general condition, or special condition in a permit that does not cause: (i) a change in the method of control of emissions; (ii) a change in the character of emissions; or (iii) an increase in the emission rate of any air contaminant. (2) Requests for permit alterations that must receive prior approval by the executive director are those that: (A) result in an increase in off-property concentrations of air contaminants; (B) involve a change in permit conditions; or (C) affect facility or control equipment performance. (3) The executive director shall be notified in writing of all other permit alterations not specified in paragraph (2) of this subsection. (4) A request for permit alteration shall include information sufficient to demonstrate that the change does not interfere with the owner or operator's previous demonstrations of compliance with the requirements of sec.116.111(3) of this title. (5) Permit alterations are not subject to the requirements sec.116.111(3) of this title. (d) Exemption under Chapter 106 of this title (relating to Exemptions from Permitting) in lieu of permit amendment or alteration. (1) A permit amendment or alteration is not required if the changes to the permitted facility qualify for an exemption under Chapter 106 of this title unless prohibited by permit condition as provided in sec.116.115 of this title (relating to General and Special Conditions). (2) All exempted changes to a permitted facility shall be incorporated into that facility's permit when the permit is amended or renewed. (e) Changes to qualified facilities. (1) Notwithstanding any other subsection of this section, a physical or operational change may be made to a qualified facility if it can be determined that the change does not result in: (A) a net increase in allowable emissions of any air contaminant; and (B) the emission of any air contaminant not previously emitted. (2) In making the determination in paragraph (1) of this subsection, the effect on emissions of the following shall be considered: (A) any air pollution control method applied to the qualified facility; (B) any decreases in allowable emissions from other qualified facilities at the same commission air quality account number that have received a preconstruction permit or permit amendment no earlier than 120 months before the change will occur; and (C) any decrease in actual emissions from other qualified facilities at the same commission air quality account number that are not included in subparagraph (B) of this paragraph. (3) The determination in paragraph (1) of this subsection shall be based on the allowable emissions for air contaminant categories and any allowable emissions for individual compounds. If a physical or operational change would result in emissions of a air contaminant category or compound above the allowable emissions for that air contaminant category or compound, the amount above the allowable emissions must be offset by an equivalent decrease in emissions at the same facility or a different facility. In making this offset, the following applies. (A) The offset shall be based on the same time periods (e.g., hourly and annual rates) as the allowable emissions for the facility at which the change will occur. (B) Emissions of different compounds within the same air contaminant category may be interchanged. (C) For allowable emissions for individual compounds, any interchange shall adjust the emission rates for the different compounds in accordance with the ratio of the effects screening levels of the compounds. (D) For allowable emissions for air contaminant categories, interchanges shall use the unadjusted emission rates for the different compounds. (E) The effects screening level shall be determined by the executive director. (F) An air contaminant category is a group of related compounds, such as volatile organic compounds, particulate matter, nitrogen oxides, and sulfur compounds. (4) Persons making changes to qualified facilities under this subsection shall comply with the applicable requirements of sec.116.117 of this title (relating to Documentation and Notification of Changes to Qualified Facilities) and sec.116.118 of this title (relating to Pre-change Qualification). (5) As used in this subsection, the term "physical and operational change" does not include: (A) construction of a new facility; or (B) changes to procedures regarding monitoring, determination of emissions and recordkeeping that are required by a permit. (6) Additional air pollution control methods may be implemented for the purpose of making a facility a qualified facility. The implementation of any additional control methods shall be subject to the requirements of this chapter. The owner or operator shall: (A) utilize additional control methods that are as effective as best available control technology (BACT) required at the time the additional control methods are implemented; or (B) demonstrate that the additional control methods, although not as effective as BACT, were implemented to comply with a law, rule, order, permit, or implemented to resolve a documented citizen complaint. (7) For purposes of this subsection and sec.116.117 of this title, the following subparagraphs apply. (A) Intraplant trading means the consideration of decreases in allowable and actual emissions from other qualified facilities in accordance with paragraph (2) of this subsection. (B) The allowable emissions from facilities that were never constructed shall not be used in intraplant trading. (C) The decreases in allowable and actual emissions shall be based on emission rates for the same time periods (e.g., hourly and annual rates) as the allowable emissions for the facility at which the change will occur and for which an intraplant trade is desired. (D) Actual emissions shall be based on data that is representative of the emissions actually achieved from a facility during the relevant time period (e.g., hourly or annual rate). (8) The existing level of control may not be lessened for a qualified facility. (f) Use of credits. Notwithstanding any other subsection of this section, discrete emission reduction credits may be used to exceed permit allowables as described in sec.101.29(d)(4)(v) of this title (relating to Emission Credit Banking and Trading) if all applicable conditions of sec.101.29 of this title are met. This subsection does not authorize any physical changes to a facility. sec.116.117. Documentation and Notification of Changes to Qualified Facilities. (a) Persons making changes under sec.116.116(e) of this title (relating to Changes to Facilities) shall maintain documentation at the plant site demonstrating that the changes satisfy sec.116.116(e) of this title. If the plant site is unmanned, the regional manager may authorize an alternative site to maintain the documentation. The documentation shall be made available to representatives of the commission upon request. The documentation shall include: (1) quantification of all emission increases and decreases associated with the physical or operational change; (2) a description of the physical or operational change; (3) a description of any equipment being installed; and (4) sufficient information as necessary to show that the project will comply with sec.116.150 and sec.116.151 of this title (relating to Nonattainment Review) and sec.sec.116.160-116.163 of this title (relating to Prevention of Significant Deterioration Review) and with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA sec.112(g) 40 CFR Part 63)). (b) Persons making such changes to qualified facilities shall comply with the following notification requirements. (1) Annual report. For changes to qualified facilities when there is no intraplant trading under sec.116.116(e)(2) of this title, an annual report shall be submitted to the appropriate regional office of the commission by August 1 of each year. The report shall include all changes made under sec.116.116(e) during the immediately preceding annual period July 1-June 30. This reporting period and the due date may be changed with the agreement of the commission's regional office. The annual report shall contain a PI-E form for each change. The report need not include changes previously submitted by PI-E form to the commission under paragraphs (2) or (3) of this subsection or which have been incorporated into the permit for the facility. (2) Post-change notification. Post-change notification shall be required for changes to qualified facilities for which there is intraplant trading below the reportable limit. The notification shall be submitted on a PI-E form to the commission's New Source Review Permits Division within 30 days after the change occurs. (3) Pre-change notification only. Pre-change notification shall be required if a physical or operational change at a qualified facility will affect compliance with a permit special condition. The notice shall be made to the commission prior to the change. It shall identify the affected special condition and indicate the change needed or the desire to remove the special condition from the permit. The permit holder is relieved from complying with the permit special condition upon the filing of the notice, provided the change complies with sec.116.116(e) of this title. (4) Pre-change notification and approval. Pre-change notification shall be required for changes to qualified facilities for which there is intraplant trading above the reportable limit. The notification of the change shall be submitted on a PI-E form to the commission's New Source Review Permits Division before the change may occur. The change may occur after the receipt of written notification from the commission that there are no objections, or 45 days after the PI-E is received by the commission, whichever occurs first. (5) Reportable limit. The executive director shall establish reportable limits. A reportable limit is either: (A) an emission rate that is adjusted based on a factor that accounts for a ratio of the effects screening levels of the different compounds and the difference in location of emissions involved in an intraplant trade; or (B) an emission rate that results in a sum total of modeled ground level concentration for the account that shall not exceed two times the effects screening level. (c) For facilities that have received a preconstruction permit, all changes for which the notification procedure of subsection (b) of this section has been used shall be incorporated into the permit when the permit is amended or renewed. (d) Nothing in this section shall limit the applicability of any federal requirement. sec.116.118. Pre-change Qualification. (a) If either of the following conditions exists, it will be necessary to establish that a facility is a qualified facility before a physical or operational change may be made under the notification procedure of sec.116.117 of this title (relating to Documentation and Notification of Changes to Qualified Facilities): (1) the facility is a qualified facility on the basis of best available control technology and the requirement for the facility type has not been previously established by the executive director; or (2) the facility does not have allowable emissions established for an air contaminant relevant to the change in a maximum allowable emissions rate table, PI-8 form, or PI-E form. (b) The pre-change qualification shall be made by submitting a PI-E form to the commission's New Source Review Permits Division. The facility shall be qualified in accordance with the information contained in the PI-E form after receipt of written notification from the commission that there are no objections, or 45 days after the PI-E form is received by the commission, whichever occurs first. The pre-change qualification may be submitted at the same time as a pre-change notification under sec.116.117(b) of this title or at any other time prior to making a change to a qualified facility. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803290 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 Compliance History 30 TAC sec.sec.116.120-116.126 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY. The repeals are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.120. Applicability. sec.116.121. Exemptions. sec.116.122. Contents of Compliance History. sec.116.123. Effective Dates. sec.116.124. Public Notice of Compliance History. sec.116.125. Preservation of Existing Rights and Procedures. sec.116.126. Voidance of Permit Applications. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803287 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 Division 2.
                                                                                                                                                                                                                                                                                                                                  Compliance History 30 TAC sec.sec.116.120-116.126 STATUTORY AUTHORITY. The new sections are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed new sections implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.120. Applicability. As part of the review of a construction permit, amendment, or renewal: (1) The executive director shall compile a compliance history for: (A) the existing site when the application is for a new permit, amendment, or renewal at the existing site; (B) a site with similar facilities, if any, owned or operated by the applicant in Texas when the application is for a new facility at a new site. The commission may require the applicant to indicate which facilities the applicant considers to be similar. (2) The applicant shall provide the commission with a compliance history for sites with similar facilities, if any, owned or operated by the applicant in other states when: (A) the application is for a new facility at a new site; and (B) the applicant does not own or operate similar facilities in Texas. (3) If the applicant has no compliance history in the United States, the applicant shall provide the commission with a compliance history for any similar facilities owned or operated by: (A) a person who is presently an officer, director, or agent of the applicant; (B) a parent corporation, subsidiary, or predecessor in interest of the applicant; (C) one who owns 20% or more of the applicant, whether directly, as a shareholder, partner, beneficiary, or otherwise; or (D) one who controls the applicant or has the ability to direct the conduct of the applicant. sec.116.121. Exemptions. The compliance history is not required if the total increased actual emissions of any specific substance (e.g., benzene, arsenic, etc.) at the site will be accompanied by greater than a 1.1 to 1 reduction of the same specific substance at the site. sec.116.122. Contents of Compliance History. (a) The compliance history shall include all of the following compliance events and associated information involving the facility that is the subject of the permit application: (1) for Texas facilities: (A) criminal convictions known to the commission and civil orders, judgments, and decrees identified by stating: (i) the style of the case; (ii) the tribunal issuing the conviction or judgment; (iii) the docket number and the date of action; and (iv) the general nature of the alleged violation; (B) administrative enforcement orders identified by stating: (i) the name or style of action; (ii) the agency issuing the order; (iii) the docket number and the date of the order; and (iv) the general nature of the alleged violation; (C) compliance proceedings identified by stating: (i) the name or style of action; (ii) the general nature of the alleged violation; (2) for United States facilities outside Texas: (A) criminal convictions and civil judgments identified by stating: (i) the style of the case; (ii) the tribunal issuing the conviction or judgment; (iii) the docket number and date of action; and (iv) the general nature of the alleged violation; (B) administrative enforcement orders identified by stating: (i) the name or style of action; (ii) the agency issuing the order; (iii) the docket number and the date of the order; and (iv) the general nature of the alleged violation; (C) for notices of violation issued by the EPA: (i) the name of the action; (ii) the EPA identification number and date of notice; and (iii) the general nature of the alleged violation. (b) A violation of fugitive emission monitoring and recordkeeping requirements imposed either by sec.101.20(1) and (2) of this title (relating to Compliance with Environmental Protection Agency Standards), or state implementation plan requirements applicable to major sources in nonattainment areas shall not be included in the compliance history where: (1) the violation occurred after the effective date of this rule, has been the subject of a commission administrative enforcement action, and the commission classified the violation as not being subject to compliance history review; or (2) the violation occurred during the five years preceding the effective date of this rule and has been the subject of a commission administrative enforcement action in which: (A) the commission did not classify the violation as either major seriousness or major impact for the purpose of administrative review; and (B) the commission assessed a total administrative penalty of less than $20,000 for the violation. (c) The commission may request an analysis of the significance of the compliance events identified in the compliance history and their relevance to the facility that is the subject of the application. The commission request shall list specific compliance events requiring such an analysis. sec.116.123. Effective Dates. (a) The requirements under sec.sec.116.120-116.126 of this title (relating to Compliance History) apply only to applications filed on or after December 9, 1992. (b) For applications filed: (1) before June 1, 1993, neither the commission nor the applicant is required to include compliance events occurring before June 1, 1988; (2) on or after June 1, 1993, neither the commission nor the applicant is required to include compliance events occurring more than five years prior to the date on which the application is filed. sec.116.124. Public Notice of Compliance History. When public notice is required under sec.116.131 of this title (relating to Public Notification Requirements), the applicant shall include the following statement in the notice: "The facility's compliance file, if any exists, is available for public review in the regional office of the Texas Natural Resource Conservation Commission." sec.116.125. Preservation of Existing Rights and Procedures. Nothing in this subchapter (concerning Compliance History) shall: (1) diminish the rights of any party in a contested case hearing to raise any issue authorized by Texas Health and Safety Code, sec.382.0518(c); (2) diminish the rights of any person to request and obtain compliance history information from the commission; (3) limit the authority of the commission to request and consider any other information that is relevant to the application under the law; or (4) create any right in third parties which did not exist before the effective date of this subchapter. sec.116.126. Voidance of Permit Applications. If an applicant does not submit compliance history information within 180 days after written request from the executive director, the commission will void the permit application. The applicant shall also forfeit the fees associated with the permit application. A new permit application shall be required for further consideration by the commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803291 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 Division 3.
                                                                                                                                                                                                                                                                                                                                    Public Notification and Comment Procedures 30 TAC sec.sec.116.130-116.134, 116.136, 116.137 STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.130. Applicability. (a) Any person who applies for a new permit or permit renewal
                                                                                                                                                                                                                                                                                                                                      shall be required to publish notice of the
                                                                                                                                                                                                                                                                                                                                        intent to construct a new facility or modify an existing facility or renew a permit. The notice shall be published
                                                                                                                                                                                                                                                                                                                                          in a newspaper in general circulation in the municipality where the facility is located or to be located
                                                                                                                                                                                                                                                                                                                                            . Any person who applies for a permit amendment shall provide public notification as required by the executive director. (b) Upon written request by the owner or operator of a facility which previously has received a permit or special permit from the commission
                                                                                                                                                                                                                                                                                                                                              [Texas Air Control Board], the executive director, or designated representative may exempt the relocation of such facility from the requirements of this section if there is no indication that operation of the facility at the proposed new location will significantly affect ambient air quality and no indication that operation of the facility at the proposed new location will cause a condition of air pollution. (c)
                                                                                                                                                                                                                                                                                                                                                Applications subject to the requirements of Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63)), whether for construction or reconstruction, are subject to the public notice requirements of this section. sec.116.131. Public Notification Requirements. (a) Notification by applicant. If the application is complete, for any permit subject to the FCAA
                                                                                                                                                                                                                                                                                                                                                  [Federal Clean Air Act (FCAA)], Title I, Part C or D, or to Title 40 Code of Federal Regulations (CFR), Part 51.165(b), the executive director shall state a preliminary determination to issue or deny the permit and require the applicant to conduct public notice of the proposed construction. If an application is received for a permit not subject to the FCAA, Part C or D, or to 40 CFR 51.165(b), the executive director shall require the applicant to conduct public notice of the proposed construction. In all cases, public notice shall include the information specified in sec.116.132 of this title (relating to Public Notice Format) and the applicant shall provide such notice using each of the methods specified in sec.116.132 of this title. The executive director may specify that additional information needed to satisfy public notice requirements of 40 CFR sec.52.21 also be included in the notice published under
                                                                                                                                                                                                                                                                                                                                                    [pursuant to] sec.116.132 of this title. (b) Availability of application for review. The executive director shall make the completed application (except sections relating to confidential information) and the preliminary analyses of the application completed prior to publication of the public notice available for public inspection during normal business hours at the commission's
                                                                                                                                                                                                                                                                                                                                                      [Texas Air Control Board (TACB)] Austin office and at the appropriate commission
                                                                                                                                                                                                                                                                                                                                                        [TACB] regional office in the region where construction is proposed throughout the comment period established in the notice published under
                                                                                                                                                                                                                                                                                                                                                          [pursuant to] sec.116.132 of this title [(relating to Public Notice Format)]. sec.116.132. Public Notice Format. (a) Publication in public notices section of newspaper. At the applicant's expense, notice of intent to obtain a permit to construct a facility, modify an existing facility, or to seek permit renewal review shall be published in the public notice section of two successive issues of a newspaper of general circulation in the municipality in which the facility is located or is proposed to be located, or in the municipality nearest to the location or proposed location of the facility. The notice shall contain the following information: (1)-(5) (No change.) (6) preliminary determination of the executive director to issue or not issue the permit (for permits subject to the FCAA
                                                                                                                                                                                                                                                                                                                                                            [Federal Clean Air Act], Title I, Part C or D, or to 40 Code of Federal Regulations 51.165(b)); (7) location and availability of copies of the completed permit application and the executive director's
                                                                                                                                                                                                                                                                                                                                                              [Texas Air Control Board's (TACB's)] preliminary analyses; (8)-(9) (No change.) (10) notification that a person who may be affected by emission of air contaminants from the facility is entitled to request a hearing in accordance with commission
                                                                                                                                                                                                                                                                                                                                                                [TACB] rules; and (11) name, address, and phone number of the appropriate commission
                                                                                                                                                                                                                                                                                                                                                                  [regional TACB] office to be contacted for further information. (b) Publication elsewhere in the newspaper. Another notice with a size of at least 96.8 square centimeters (15 square inches) and whose shortest dimension is at least 7.6 centimeters (three inches) shall be published in a prominent location elsewhere in the same issue of the newspaper and shall contain the information specified in subsection (a)(1)-(4) of this section and note that additional information is contained in the notice published under
                                                                                                                                                                                                                                                                                                                                                                    [pursuant to] subsection (a) of this section in the public notice section of the same issue. (c) Additional alternate language public notice. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education program as required by the Education Code, Chapter 29, Subchapter B
                                                                                                                                                                                                                                                                                                                                                                      [sec.21.109], and 19 TAC sec.89.1205(a)
                                                                                                                                                                                                                                                                                                                                                                        [sec.89.2(a)] or if either school has waived out of such a required bilingual education program under the provisions of 19 TAC sec.89.1205(g)
                                                                                                                                                                                                                                                                                                                                                                          [sec.89.2(g)]. Schools not governed by the provisions of 19 TAC sec.89.1205
                                                                                                                                                                                                                                                                                                                                                                            [sec.89.2] shall not be considered in determining applicability of the requirements of this subsection. Each affected facility shall meet the following requirements. (1) The applicant shall publish an additional notice 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.89.1205(a)
                                                                                                                                                                                                                                                                                                                                                                              [sec.89.2(a)] under 19 TAC sec.89.1205(g)
                                                                                                                                                                                                                                                                                                                                                                                [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)-(8) (No change.) (d) Exemptions from alternate language notification. Elementary or middle schools that offer English as a second language under 19 TAC sec.89.1205(e)
                                                                                                                                                                                                                                                                                                                                                                                  [sec.89.2(d)], and are not otherwise affected by 19 TAC sec.89.1205(a)
                                                                                                                                                                                                                                                                                                                                                                                    [sec.89.2(a)], will not trigger the requirements of subsection (c) of this section. sec.116.133. Sign Posting Requirements. (a) At the applicant's expense, a sign or signs shall be placed at the site of the proposed facility declaring the filing of anapplication for a permit and stating the manner in which the commission
                                                                                                                                                                                                                                                                                                                                                                                      [Texas Air Control Board (TACB)] may be contacted for further information. Such signs shall be provided by the applicant and shall meet the following requirements: (1)-(4) (No change.) (5) signs shall include the words "Texas Natural Resource Conservation Commission"
                                                                                                                                                                                                                                                                                                                                                                                        ["Texas Air Control Board"], and the address of the appropriate commission
                                                                                                                                                                                                                                                                                                                                                                                          [TACB] regional office in no less than one-inch boldface capital lettering and 3/4-inch boldface lower case lettering; and (6) signs shall include the phone number of the appropriate commission
                                                                                                                                                                                                                                                                                                                                                                                            [TACB regional] office in no less than two-inch boldface numbers. (b) (No change.) (c) Each sign placed at the site must be located within ten
                                                                                                                                                                                                                                                                                                                                                                                              [10] feet of each (every) property line paralleling a street or other public thoroughfare. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs shall be required along any property line paralleling a public thoroughfare. The commission
                                                                                                                                                                                                                                                                                                                                                                                                [TACB] may approve variations from these requirements if it is determined that alternative sign posting plans proposed by the applicant are more effective in providing notice to the public. (d) The commission
                                                                                                                                                                                                                                                                                                                                                                                                  [TACB] may approve variations from the requirements of subsection (c) of this section if the applicant has demonstrated that it is not practical to comply with the specific requirements of subsection (c) of this section and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval from the commission
                                                                                                                                                                                                                                                                                                                                                                                                    [TACB] under this subsection must be received before posting signs for purposes of satisfying the requirements of this section. (e) (No change.) (f) Alternate language sign posting. The requirements of this subsection are applicable whenever either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education program as required by the Education Code, Chapter 29, Subchapter B
                                                                                                                                                                                                                                                                                                                                                                                                      [sec.21.109], and 19 TAC sec.89.1205(a)
                                                                                                                                                                                                                                                                                                                                                                                                        [sec.89.2(a)] or if either school has waived out of such a required bilingual education program under the provisions of 19 TAC sec.89.1205(g)
                                                                                                                                                                                                                                                                                                                                                                                                          [sec.89.2(g)]. Schools not governed by the provisions of 19 TAC sec.89.1205(a)
                                                                                                                                                                                                                                                                                                                                                                                                            [sec.89.2] shall not be considered in determining applicability of the requirements of this subsection. Each affected facility shall meet the following requirements. (1) The applicant shall post an additional sign 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.89.1205(a)
                                                                                                                                                                                                                                                                                                                                                                                                              [sec.89.2(a)] under 19 TAC sec.89.1205(g)
                                                                                                                                                                                                                                                                                                                                                                                                                [sec.89.2(g)], the alternate language signs 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)-(4) (No change.) (g) Exemption from alternate language sign posting. Elementary or middle schools that offer English as a second language under 19 TAC sec.89.1205(e)
                                                                                                                                                                                                                                                                                                                                                                                                                  [sec.89.2(d)], and are not otherwise affected by 19 TAC sec.89.1205(a)
                                                                                                                                                                                                                                                                                                                                                                                                                    [sec.89.2(a)], will not trigger the requirements of subsection (f) of this section. sec.116.134. Notification of Affected Agencies. When newspaper notices are published in accordance with sec.116.132 of this title (relating to Public Notice Format), the permit applicant shall furnish a copy of such notices and date of publication to the commission
                                                                                                                                                                                                                                                                                                                                                                                                                      [Texas Air Control Board (TACB)] in Austin; the EPA
                                                                                                                                                                                                                                                                                                                                                                                                                        [United States Environmental Protection Agency] regional administrator in Dallas; all local air pollution control agencies with jurisdiction in the county in which the construction is to occur; and the air pollution control agency of any nearby state in which air quality may be adversely affected by the emissions from the new or modified facility. Along with such notices furnished to the commission
                                                                                                                                                                                                                                                                                                                                                                                                                          [TACB], the permit applicant shall certify that the signs required by sec.116.133 of this title (relating to Sign Posting Requirements) have been posted in accordance with the provisions of that section. sec.116.136. Public Comment Procedures. (a) Comment period. Interested persons may submit written comments, including requests for public hearings under TCAA
                                                                                                                                                                                                                                                                                                                                                                                                                            [under Texas Clean Air Act], sec.382.056, on the permit application and on the executive director's preliminary determination or analysis
                                                                                                                                                                                                                                                                                                                                                                                                                              [decision to issue or not to issue the permit]. The public comment and timely hearing requests shall be processed under Chapter 55, Subchapter B of this title (relating to Hearing Requests, Public Comment). (b) (No change.) sec.116.137. Notification of Final Action by the Texas Natural Resource Conservation Commission
                                                                                                                                                                                                                                                                                                                                                                                                                                [Texas Air Control Board]. (a)-(b) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803292 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 Division 4.
                                                                                                                                                                                                                                                                                                                                                                                                                                  Permit Fees 30 TAC sec.sec.116.140, 116.141, 116.143 STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.140. Applicability. Any person who applies for a permit to construct a new facility or to modify an existing facility, or for an amendment to an existing permit under
                                                                                                                                                                                                                                                                                                                                                                                                                                    [pursuant to] sec.116.110 of this title (relating to Applicability) shall remit, at the time of application for such permit, a fee based on the estimated capital cost of the project. The fee will be determined as set forth in sec.116.141 of this title (relating to Determination of Fees). Fees will not be charged for [operating permits,] permit alterations, amendments to special permits, [standard exemptions,] site approvals for permitted portable facilities, changes of ownership, or changes of location of permitted facilities. sec.116.141. Determination of Fees. (a) (No change.) (b) The following fee schedule may be used by a permit applicant to determine the fee to be remitted with a permit application. (1) If the estimated capital cost of the project is less than $300,000 or if the project consists of new facilities controlled and operated directly by the federal government [for which an application is submitted after January 1, 1987,] and the federal regulations for Prevention of Significant Deterioration (PSD) Review do not apply, the fee is $450. The provisions of subsections (c) and (d) of this section do not apply to a project consisting of new facilities controlled and operated directly by the federal government. (2) (No change.) (c) If the estimated capital cost of the project is less than $50 million, the permit applicant shall include a certification that the estimated capital cost of the project is correct. Certification of the estimated capital cost of the project may be spot-checked and evaluated for reasonableness during permit processing. The reasonableness of project capital cost estimates used as a basis for permit fees shall be determined by the extent to which such estimates include fair and reasonable estimates of the capital value of the direct and indirect costs listed as follows. (1) Direct costs are as follows: (A) process and control equipment not previously owned by the applicant and not currently authorized under this chapter
                                                                                                                                                                                                                                                                                                                                                                                                                                      [permitted in Texas]; (B)-(G) (No change.) (2) (No change.) (d)-(e) (No change.) sec.116.143. Payment of Fees. All permit fees will be remitted in the form of a check or money order made payable to the Texas Natural Resource Conservation Commission or TNRCC
                                                                                                                                                                                                                                                                                                                                                                                                                                        [Texas Air Control Board (TACB)] and delivered with the application for permit or amendment to the TNRCC, P. O. Box 13088, MC 214, Austin, Texas 78711- 3088
                                                                                                                                                                                                                                                                                                                                                                                                                                          [TACB, 12124 Park 35 Circle, Austin, Texas 78753]. Required fees must be received before the agency will begin examination of the application. (1) (No change.) (2) Return of fees. Fees must be paid at the time an application for a permit or amendment is submitted. If no permit or amendment is issued by the agency or if the applicant withdraws the application prior to issuance of the permit or amendment, one-half of the fee will be refunded except that the entire fee will be refunded for any such application for which an exemption under Chapter 106 of this title (relating to Exemptions from Permitting)
                                                                                                                                                                                                                                                                                                                                                                                                                                            [a standard exemption] is allowed. No fees will be refunded after a deficient application has been voided or after a permit or amendment has been issued by the agency. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803293 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 Division 5.
                                                                                                                                                                                                                                                                                                                                                                                                                                              Prevention of Significant Deterioration Review 30 TAC sec.116.160, sec.116.161 STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.160. Prevention of Significant Deterioration Requirements. (a) Each proposed new major source or major modification in an attainment or unclassifiable area shall comply with the Prevention of Significant Deterioration (PSD) of Air Quality regulations promulgated by the EPA
                                                                                                                                                                                                                                                                                                                                                                                                                                                [United States Environmental Protection Agency (EPA)] in Title 40 Code of Federal Regulations (CFR) at 40 CFR 52.21 as amended June 3, 1993 (effective June 3, 1994) and the Definitions for Protection of Visibility promulgated at 40 CFR 51.301, hereby incorporated by reference. (b)-(d) (No change.) sec.116.161. Source Located in an Attainment Area with a Greater Than De Minimis Impact. The commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Texas Air Control Board] may not issue a permit to any new major stationary source or major modification located in an area designated as attainment or unclassifiable, for any National Ambient Air Quality Standard (NAAQS) under FCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                    [pursuant to the Federal Clean Air Act], sec.107, if ambient air impacts from the proposed source would cause or contribute to a violation of any NAAQS. In order to obtain a permit, the source must reduce the impact of its emissions upon air quality by obtaining sufficient emission reductions to eliminate the predicted exceedances of the NAAQS. A major source or major modification will be considered to cause or contribute to a violation of a NAAQS when the emissions from such source or modification would, at a minimum, exceed the de minimis impact levels specified in sec.101.1 [sec.116.10] of this title (relating to [General] Definitions) at any locality that is designated as nonattainment or is predicted to be nonattainment for the applicable standard. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803294 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 Division 6.
                                                                                                                                                                                                                                                                                                                                                                                                                                                      Emission Reductions: Offsets 30 TAC sec.116.170, sec.116.174 STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.170. Applicability for Reduction Credits. At the time of application for a permit in accordance with this chapter, any applicant who has effected air contaminant emission reductions may also apply to the executive director to use such emission reductions to offset emissions expected from the facility for which the permit is sought, provided that the following conditions are met. (1) The emission reductions are not required by any provision of the Texas State Implementation Plan as promulgated by the EPA
                                                                                                                                                                                                                                                                                                                                                                                                                                                        [United States Environmental Protection Agency] in 40 Code of Federal Regulations, Part 52, Subpart SS, nor by any other federal regulation under the FCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Federal Clean Air Act], as amended, such as New Source Performance Standards. Minimum offset ratios as specified in Table I of sec.116.12 of this title (relating to Nonattainment Review Definitions) shall be used in areas designated as nonattainment areas. (2) (No change.) (3) Emissions increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source, shall be allowed to be offset by alternative or innovative means, provided the following conditions are met: (A) (No change.) (B) the source demonstrates to the satisfaction of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Texas Air Control Board (TACB)] that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source; (C) (No change.) (D) the source will comply with an alternative measure, imposed by the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                              [TACB], designed to offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                [TACB] may impose an emissions fee to be paid which shall be an amount no greater than 1.5 times the average cost of stationary source control measures adopted in that area during the previous three years. sec.116.174. Determination by Executive Director To Authorize Reductions. The executive director may grant authority to a permit applicant to use prior emission reductions and emission reductions granted to the applicant by another entity (either public or private) in accordance with sec.116.170 of this title (relating to Applicability for Reduction Credits) if the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Texas Air Control Board] determines that the prior emission reductions have, in fact, occurred and, when considered with other emission reductions that may be required by the permit as well as contaminants that will be emitted by the new source, will result in compliance with sec.116.150[(b)] of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas
                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [Required]), sec.116.151 of this title (relating to New Major Source or Major Modification in Nonattainment Areas Other Than Ozone),
                                                                                                                                                                                                                                                                                                                                                                                                                                                                      sec.116.160 of this title (relating to Prevention of Significant Deterioration Requirements), and sec.116.162
                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [ sec.116.152] of this title (relating to Evaluation of Air Quality Impacts), as applicable, in the area where the new source is to be located. Prior as well as future emission reductions to be used as an offset shall be made conditions for granting authority to construct the proposed new source and shall be enforced. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803295 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER C. Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63) 30 TAC sec.sec.116.180-116.183 STATUTORY AUTHORITY. The new sections are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed new sections implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.180. Applicability. (a) The provisions of this subchapter are intended to implement FCAA, sec.112(g), Modifications, and 40 Code of Federal Regulations Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology. For purposes of this subchapter: (1) "Construct a major source" means the following: (A) to fabricate, erect, or install at any green field site a stationary source or group of stationary sources which is located within a contiguous area and under common control and which emits or has the potential to emit ten tons per year of any hazardous air pollutant (HAP) or 25 tons per year of any combination of HAPs; (B) to fabricate, erect, or install at any developed site a new process or production unit which in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAPs, unless the process or production unit satisfies clauses (i)-(vi) of this subparagraph: (i) all HAPs emitted by the process or production unit that would otherwise be controlled under the requirements of this subchapter will be controlled by emission control equipment which was previously installed at the same site as the process or production unit; (ii) either of the following regarding control of HAP emissions: (I) the executive director has determined within a period of five years prior to the fabrication, erection, or installation of the process or production unit that the existing emission control equipment represented best available control technology (BACT), lowest achievable emission rate (LAER) under Title 40 Code of Federal Regulations (CFR) Part 51 or 52, toxics-best available control technology (T-BACT), or maximum achievable control technology (MACT) based on state air toxic rules for the category of pollutants which includes those HAPs to be emitted by the process or production unit; or (II) the executive director determines that the control of HAP emissions provided by the existing equipment will be equivalent to that level of control currently achieved by other well-controlled similar sources (i.e., equivalent to the level of control that would be provided by a current BACT, LAER, T-BACT, or state air toxic rule MACT determination); (iii) the executive director determines that the percent control efficiency for emissions of HAP from all sources to be controlled by the existing control equipment will be equivalent to the percent control efficiency provided by the control equipment prior to the inclusion of the new process or production unit; (iv) the executive director has provided notice and an opportunity for public comment concerning its determination that criteria in clauses (i)-(iii) of this subparagraph apply and concerning the continued adequacy of any prior LAER, BACT, T-BACT, or state air toxic rule MACT determination; (v) if any commenter has asserted that a prior LAER, BACT, T-BACT, or state air toxic rule MACT determination is no longer adequate, the executive director has determined that the level of control required by that prior determination remains adequate; and (vi) any emission limitations, work practice requirements, or other terms and conditions upon which the determinations in clauses (i)-(v) of this subparagraph by the executive director are predicated will be construed by the executive director as applicable requirements under FCAA, sec.504(a), and either have been incorporated into any existing permit issued under Chapter 122 of this title (relating to Federal Operating Permits) for the affected facility or will be incorporated into such permit upon issuance. (2) "Reconstruct a major source" means the replacement of components at an existing process or production unit that in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAP, whenever: (A) the fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable process or production unit; and (B) it is technically and economically feasible for the reconstructed major source to meet the applicable MACT emission limitation for new sources established under this subchapter. (b) The requirements of this subchapter apply to an owner or operator who constructs or reconstructs a major source of HAPs after June 29, 1998, the effective date of sec.112(g)(2)(B), and the approval date of a federal operating permit program in Texas or local jurisdiction in which the major source is or would be located, unless the major source in question has been specifically regulated or exempted from regulation under a standard issued under the FCAA, sec.112(d), (h), or (j) and incorporated in another subpart of Part 63, or the owner or operator of such major source has received all necessary air quality permits for such construction or reconstruction project before the effective date of sec.112(g)(2)(B). Administratively complete applications submitted prior to June 29, 1998, and prior to approval of a federal operating permit program in Texas are not subject to the requirements of this subchapter. (c) Sources subject to the requirements of this subchapter are not eligible to use a standard permit under Subchapter F of this chapter (relating to Standard Permits) unless the terms and conditions of the specific standard permit meet the requirements of this subchapter. sec.116.181. Exclusions. (a) The requirements of this subchapter do not apply to electric utility steam generating units unless and until such time as these units are added to the source category list under FCAA, sec.112(c)(5). (b) The requirements of this subchapter do not apply to stationary sources that are within a source category that has been deleted from the source category list under FCAA, sec.112(c)(9). (c) The requirements of this subchapter do not apply to research and development activities, as defined in 40 Code of Federal Regulations, sec.63.41. (d) Nothing in this subchapter shall prevent a state or local agency from imposing more stringent requirements than those contained in this subchapter. sec.116.182. Application. Consistent with the requirements of 40 Code of Federal Regulations, sec.63.43 (concerning maximum achievable control technology determinations for constructed and reconstructed major sources), the owner or operator of a new facility (major source) or the reconstruction of an existing facility (as defined in sec.116.15 of this title (relating to Section 112(g) Definitions) shall submit a permit application as described in sec.116.110 of this title (relating to Applicability) for those sources subject to an approved federal operating permit program under Chapter 122 of this title (relating to Federal Operating Permits). sec.116.183. Public Notice Requirements. If the proposed new facility or reconstructed facility is a major source for hazardous air pollutants, it shall comply with the public notice requirements contained in sec.116.130 of this title (relating to Applicability). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803296 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER D. Permit Renewals 30 TAC sec.sec.116.310-116.314 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) STATUTORY AUTHORITY. The repeals are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed repeals implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.310. Notification of Permit Holder. sec.116.311. Permit Renewal Application. sec.116.312. Public Notification and Comment Procedures. sec.116.313. Renewal Application Fees. sec.116.314. Review Schedule. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803288 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 STATUTORY AUTHORITY. The new sections are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed new sections implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.310. Notification of Permit Holder. The executive director shall provide written notice to the permit holder that the permit is scheduled for review. Such notice must be provided by certified or registered United States mail no less than 180 days prior to the expiration of the permit. The notice must specify the procedure for filing an application for review and the information to be included in the application. Under Texas Civil Statutes, Article 9027, the commission shall exempt a permit holder from any increased fee or other penalty for failure to renew the permit if the individual establishes, to the satisfaction of the commission, that the failure to renew in a timely manner occurred because the individual was on active duty in the United States Armed Forces serving outside the State of Texas. sec.116.311. Permit Renewal Application. (a) In order to be granted a permit renewal, the permit holder shall submit information in support of the application which demonstrates that: (1) the facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for permit to construct and subsequent amendments, and any previously granted renewal, unless otherwise authorized for a qualified facility; (2) the facility meets the requirements of any applicable New Source Performance Standards as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA under the authority of the FCAA, sec.111, as amended; (3) the facility meets the requirements of any applicable emission standard for hazardous air pollutants as listed under Title 40 CFR Part 61, promulgated by EPA under the authority of the FCAA, sec.112, as amended; and (4) the facility meets the requirements of any applicable maximum achievable control technology standard as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR 63)). (5) the facility meets the requirements of Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63)). (b) In addition to the requirements in subsection (a) of this section, if the commission determines it necessary to avoid a condition of air pollution or to ensure compliance with otherwise applicable federal or state air quality control requirements, then: (1) the applicant may be required to submit additional information regarding the emissions from the facility and their impacts on the surrounding area; and (2) the commission shall impose as a condition for renewal only those requirements the executive director determines to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area. (c) A compliance history review must be conducted in accordance with sec.sec.116.120-116.126 of this title (relating to Compliance History). The renewal application must demonstrate that the facility is or has been in substantial compliance with the provisions of the TCAA and the terms of the existing permit. Failure to demonstrate substantial compliance shall result in the renewal not being granted. If it is found that violations in the compliance history constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including failure to make a timely and substantial attempt to correct the violations, the renewal shall be denied. If a contested case hearing has not been called, the executive director must notify the applicant of the intent to recommend denial and state the basis of the findings. The applicant will be given an opportunity to respond to the notice. If the findings reflect a pattern of disregard for applicable regulations which do not warrant denial, additional conditions may be placed in the permit. (d) An application for renewal must be submitted within 90 days prior to expiration of the permit or the permit will expire. The executive director may extend the time period for submitting an application. (e) Any permit issued: (1) before December 1, 1991, is subject for review 15 years after the date of issuance; (2) on or after December 1, 1991, is subject for review every ten years after the date of issuance; (3) at nonfederal sources on or after December 1, 1991, may, for cause, contain a provision requiring renewal between five and ten years. sec.116.312. Public Notification and Comment Procedures. (a) The executive director shall mail a written notice to the permit holder within 30 days after an application is complete. The notice will confirm receipt of the application and shall require the applicant to provide public notice of the application for permit renewal in accordance with Subchapter B of this chapter (relating to New Source Review Permits). (b) The sign heading required under sec.116.133(a)(2) of this title (relating to Sign Posting Requirements) shall read "PROPOSED RENEWAL OF AIR QUALITY PERMIT." sec.116.313. Renewal Application Fees. (a) The fee for renewal is based on the total annual allowable emissions from the permitted facility to be renewed, according to the following table. Figure: 30 TAC sec.116.313(a) (b) Fees are due and payable at the time the renewal application is filed. No fee will be accepted before the permit holder has been notified by the commission that the permit is scheduled for review. All permit review fees shall be remitted by check or money order payable to the Texas Natural Resource Conservation Commission (TNRCC) and mailed to the TNRCC, P.O. Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the agency will consider an application to be complete. sec.116.314. Review Schedule. (a) Renewal of permit. The executive director shall renew a permit and notify the permit holder in writing if it is determined that the facility meets the requirements of this subchapter. (b) Denial of renewal. Prior to denial, the executive director shall provide notice to the permit holder with a report which describes the basis for denial. (1) If denial is based on failure to meet the requirements of sec.116.311(a) or (b) of this title (relating to Permit Renewal Application), the report shall establish a schedule for compliance with the renewal requirements. (A) The report shall be forwarded to the permit holder no later than 180 days after the commission receives a completed application. (B) The permit shall be renewed if the requirements are met according to the schedule specified in the report. The executive director shall notify the permit holder in writing of the permit renewal. (2) If denial is based on failure to maintain substantial compliance with the TCAA or the terms of the existing permit under sec.116.311(c) of this title, the renewal denial shall be final. The executive director shall notify the permit holder in writing of the denial. (c) Contested case hearing. After failure to satisfy the commission requirements for corrective action by the deadline specified in the executive director's report, the applicant shall show cause in a contested case proceeding why the permit should not expire. The proceeding will be conducted under the APA and Chapters 1, 55, and 80 of this title (relating to Purpose of Rules, General Provisions; Request for Contested Case Hearings; Public Comment; and Contested Case Hearings). (d) Effective date of existing permit. An existing permit shall remain effective: (1) until it is renewed; (2) until the deadline specified in the executive director's report to the permit holder; (3) during the course of a contested case hearing if the hearing extends beyond the expiration date; or (4) until a date specified in any commission order entered following a contested case hearing. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803297 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER F. Standard Permits 30 TAC sec.sec.116.610, 116.611, 116.614, 116.615, 116.617, 116.620, 116.621 STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.610. Applicability. (a) Under the TCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Pursuant to the Texas Clean Air Act (TCAA)], sec.382.051, a project which meets the requirements for a standard permit listed in this subchapter is hereby entitled to the standard permit; provided the following conditions listed in this section are met. For the purposes of this subchapter, project means the construction or modification of a facility or a group of facilities submitted under the same registration claim. (1)-(2) (No change.) (3) the proposed project must comply with the applicable provisions of the FCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Federal Clean Air Act (FCAA)], sec.111 (regarding [Federal] New Source Performance Standards) as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [and sec.112 (regarding Hazardous Air Pollutants) (4)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                the proposed project must comply with the applicable provisions of FCAA, sec.112 (regarding Hazardous Air Pollutants) as listed under 40 CFR 61, promulgated by the EPA; (5)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  the proposed project must comply with the applicable maximum achievable control technology standards as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR 63)). (6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(4)] the owner or operator of the facility shall register the proposed project in accordance with sec.116.611 of this title (relating to Registration Requirements). (b)-(c) (No change.) (d)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Any project which constitutes a new or reconstructed facility and is a major source of hazardous air pollutants, shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63)). Sources subject to Subchapter C of this chapter may use a standard permit under this subchapter only if the terms and conditions of the specific standard permit meet the requirements of Subchapter C of this chapter. sec.116.611. Registration Requirements. (a) Registration for a standard permit shall be sent by certified mail, return receipt requested, or hand delivered to the commission's
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Texas Natural Resource Conservation Commission (commission)] Office of Air Quality, the appropriate commission regional office
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Regional Office], and any local air pollution program with jurisdiction, before a standard permit can be claimed. The registration must be submitted on a Form PI-1S and must document compliance with the requirements of this section, including, but not limited to: (1)-(6) (No change.) (b)-(c) (No change.) sec.116.614. Standard Permit Fees. Any person who claims a standard permit shall remit, at the time of registration, a flat fee of $450 for each standard permit claimed. All standard permit fees will be remitted in the form of a check or money order made payable to the Texas Natural Resource Conservation Commission (TNRCC) and delivered with the permit registration to the TNRCC, P.O. Box 13088, MC 214, Austin, Texas 78711-3088
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [P.O. Box 13087, Austin, Texas 78753]. No fees will be refunded. sec.116.615. General Conditions. The following general conditions are applicable to holders of standard permits, but will not necessarily be specifically stated within the standard permit document. (1) Protection of public health and welfare. The emissions from the facility must comply with all applicable rules and regulations of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [Texas Natural Resource Conservation Commission (commission)] adopted under the Texas Health and Safety Code, Chapter 382, and with intent of the TCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Texas Clean Air Act (TCAA) ], including protection of health and property of the public. (2) (No change.) (3) Standard permit in lieu of permit amendment. All changes authorized by standard permit to a facility previously permitted under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [pursuant to] sec.116.110 of this title (relating to Applicability) shall be administratively incorporated into that facility's permit at such time as the permit is amended or renewed. (4)-(7) (No change.) (8) Recordkeeping. A copy of the standard permit along with information and data sufficient to demonstrate applicability of and compliance with the standard permit shall be maintained in a file at the plant site and made available at the request of representatives of the executive director, the EPA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [United States Environmental Protection Agency], or any air pollution control program having jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the standard permit holder in the standard permit registration. This information must include, but is not limited to, production records and operating hours. Additional recordkeeping requirements may be specified in the conditions of the standard permit. Information and data sufficient to demonstrate applicability of and compliance with the standard permit must be retained for at least two years following the date that the information or data is obtained. The copy of the standard permit must be maintained as a permanent record. (9) Maintenance of emission control. The facilities covered by the standard permit may not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. Notification for upsets and maintenance shall be made in accordance with sec.101.6 and sec.101.7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [Notification Requirements for Major Upset and Notification Requirements for Maintenance]). (10) Compliance with rules. Registration of a standard permit by a standard permit applicant constitutes an acknowledgment and agreement that the holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the claiming of the standard permit. If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [governs]. Acceptance includes consent to the entrance of commission employees and designated representatives of any air pollution control program having jurisdiction into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the standard permit. sec.116.617. Standard Permits for Pollution Control Projects. This standard permit applies to the installation of emissions control equipment or implementation of control techniques as required by any governmental standard, or undertaken voluntarily, or to replace existing emission control equipment or control techniques. This standard permit also authorizes the substitution of compounds used in manufacturing processes for the purpose of complying with governmental standards or to reduce emission effects. (1)-(4) (No change.) (5) Installation of the control equipment or implementation of the control technique must not result in an increase in the facility's production capacity unless the capacity increase occurs solely as a result of the installation of control equipment or the implementation of control techniques on existing units. This paragraph is not intended to limit the owner or operator's ability to recover lost capacity caused by a derate resulting from the installation of control equipment or the implementation of a control technique. (A) The owner or operator shall obtain or qualify for any necessary authorization under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [pursuant to] sec.116.110 of this title (relating to Applicability) or sec.116.116 of this title (relating to Changes to Facilities) prior to utilizing any production capacity increase from a pollution control project required by any governmental standard that: (i)-(ii) (No change.) (B) Any production capacity increase resulting from the voluntary installation of controls or the implementation of control techniques may not be utilized until the owner or operator obtains or qualifies for any necessary authorization under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [pursuant to] sec.116.110 or sec.116.116 of this title. (6)-(7) (No change.) (8) If the project, without consideration of any other increases or decreases not related to the project, will result in a significant net increase in emissions of any criteria pollutant, a person claiming this standard permit shall submit, with the registration, information sufficient to demonstrate that the increase will meet the conditions of subparagraph (A) of this paragraph. (A)-(B) (No change.) (C) Netting is not required when determining whether this demonstration must be made for the proposed project. The increases and decreases in emissions resulting from the project must be included in any future netting calculation if they are determined to be otherwise creditable under PSD and nonattainment new source review provisions of the FCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [Federal Clean Air Act (FCAA)], Parts C and D and regulations promulgated thereunder. (9) For purposes of compliance with the PSD and nonattainment new source review provisions of the FCAA, Parts C and D and regulations promulgated thereunder, any increase that is less than significant, or satisfies the requirements of paragraph (8) of this section does not constitute a physical change or a change in the method of operation. For purposes of compliance with the Standards of Performance for New Stationary Sources regulations promulgated by the EPA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [United States Environmental Protection Agency] at 40 CFR sec.60.14 (effective December 16, 1975), an increase that satisfies the requirements of paragraph (8) of this section also satisfies the requirements of 40 CFR sec.60.14(e)(5). sec.116.620. Installation and/or Modification of Oil and Gas Facilities. (a) Emission specifications. (1)-(3) (No change.) (4) New or modified internal combustion reciprocating engines or gas turbines permitted under this standard permit shall satisfy all of the requirements of sec.106.512 of this title (relating to Stationary Engines and Turbines (Previously SE 6))
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Standard Exemption Number 6], except that registration using the Form PI-7 or PI-8 shall not be required. Emissions from engines or turbines shall be limited to the amounts found in sec.106.4(a)(1) of this title (relating to Requirements for Exemption from Permitting)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [sec.116.211(a)(1) of this title (relating to Standard Exemption List)]. (5)-(12) (No change.) (13) Appropriate documentation shall be submitted to demonstrate that compliance with the Prevention of Significant Deterioration (PSD) and nonattainment new source review provisions of the FCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [Federal Clean Air Act], Parts C and D, and regulations promulgated thereunder, and with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63))
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        are being met. The oil and gas facility shall be required to meet the requirements of Subchapter B of this chapter (relating to New Source Review Permits) instead of this subchapter if a PSD or nonattainment permit or a review under Subchapter C of this chapter
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          is required. (14) Documentation shall be submitted to demonstrate compliance with applicable New Source Performance Standards (NSPS, 40 CFR Part
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            60) [and National Emission Standards for Hazardous Air Pollution (NESHAP, 40 CFR 61)]. (15)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Documentation shall be submitted to demonstrate compliance with applicable National Emission Standards for Hazardous Air Pollution (NESHAP, 40 CFR Part 61). (16)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Documentation shall be submitted to demonstrate compliance with applicable maximum achievable control technology standards listed in Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR Part 63)). (17)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(15)] New and increased emissions shall not cause or contribute to a violation of any National Ambient Air Quality Standard or regulation property line standards as specified in Chapters 111, 112, and 113 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter; Control of Air Pollution from Sulfur Compounds; and Control of Air Pollution from Toxic Materials). Engineering judgment and/or computerized air dispersion modeling may be used in this demonstration. To show compliance with sec.116.610(a)(1) of this title (relating to Applicability) for H2S emissions from process vents, ten milligrams per cubic meter shall be used as the "L" value instead of the value represented by sec.116.610(a)(1) of this title. (18)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(16)] Fuel for all combustion units and flare pilots shall be sweet natural gas or liquid petroleum gas, fuel gas containing no more than ten grains of total sulfur per 100 dry standard cubic feet (dscf)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(scdf)], or field gas. If field gas contains more than 1.5 grains of H2 S or 30 grains total sulfur compounds per 100 dscf
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [scdf], the operator shall maintain records, including at least quarterly measurements of fuel H2 S and total sulfur content, which demonstrate that the annual SO2 emissions from the facility do not exceed the limitations listed in the standard permit registration. If a flare is the only combustion unit on a property, the operator shall not be required to maintain such records on flare pilot gas. (b) Control requirements. (1) Floating roofs or equivalent controls shall be required on all new or modified storage tanks, other than pressurized tanks which meet sec.106.476 of this title (relating to Pressurized Tanks or Tanks Vented to Control (Previously SE 83))
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Standard Exemption 83], unless the tank is less than 25,000 gallons in nominal size or the vapor pressure of the compound to be stored in the tank is less than 0.5 pounds per square inch absolute (psia) at maximum short-term storage temperature. (A)-(E) (No change.) (2) (No change.) (c) Inspection requirements. (1) Owners or operators who are subject to subsection (a)(7) or (8) of this section shall comply with the following requirements. (A) No component shall be allowed to have a VOC leak for more than 15 days after the leak is detected to exceed a VOC concentration greater than 10,000 parts per million by volume (ppmv) above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound for all components. The VOC fugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0.5 psia at 100 degrees Fahrenheit are exempt from this requirement. If VOC fugitive emission components are in service where the operating pressure is at least 0.725 pounds per square inch (psi) (five kilopascals (Kpa)) below ambient pressure, then these components are also exempt from this requirement as long as the equipment is identified in a list that is made available upon request by the agency representatives, the EPA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [United States Environmental Protection Agency (EPA)], or any other air pollution agency having jurisdiction. All piping and valves two inches nominal size and smaller, unless subject to federal NSPS requiring a fugitive VOC emissions leak detection and repair program or Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds), are also exempt from this requirement. (B)-(I) (No change.) (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Air Quality, New Source Review Permitting
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [Permits] Division that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sum of valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that has been developed to justify the following modifications in the monitoring schedule. (i)-(ii) (No change.) (2) Owners or operators who are subject to subsection (a)(9) or (10) of this section shall comply with the following requirements. (A)-(I) (No change.) (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Air Quality, New Source Review Permitting
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Permits] Division that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sum of valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that have been developed to justify the following modifications in the monitoring schedule. (i)-(ii) (No change.) (K) (No change.) (3) (No change.) (d) Approved test methods. (1)-(2) (No change.) (3) Proper operation of any condenser used as a VOC emissions control device to comply with subsection (a)(5) of this section shall be tested to demonstrate compliance with the minimum control efficiency. Sampling shall occur within 60 days after start-up of new or modified facilities. The permittee shall contact the Engineering Services Section, Office of Compliance and Enforcement
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Air Quality Enforcement Division] 45 days prior to sampling for approval of sampling protocol. The appropriate regional office in the region where the source is located shall also be contacted 45 days prior to sampling to provide them the opportunity to view the sampling. Neither the regional office nor the Engineering Services Section, Office of Compliance and Enforcement
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [Air Quality Enforcement Division] personnel are required to view the testing. Sampling reports which comply with the provisions of the "TNRCC Sampling Procedures Manual," Chapter 14 ("Contents of Sampling Reports," dated January 1983 and revised July 1985), shall be distributed to the appropriate regional office, any local programs, and the Engineering Services Section, Office of Compliance and Enforcement
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [Air Quality Enforcement Division]. (e) Monitoring and recordkeeping requirements. (1) If the operator elects to install and maintain ambient H2 S property line monitors to comply with subsection (a)(11) of this section, the monitors shall be approved by the Engineering Services Section, Office of Compliance and Enforcement
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Air Quality Enforcement Division] office in Austin, and shall be capable of detecting and alarming at H2 S concentrations of ten ppmv. Operations personnel shall perform an initial on-site inspection of the facility within 24 hours of initial alarm and take corrective actions as listed in subsection (c)(3)(A)-(C) of this section within eight hours of detection of a leak. (2) The results of the VOC leak detection and repair requirements shall be made available to the executive director [, his or her designated representative,] or any air pollution control agency having jurisdiction upon request. Records, for all components, shall include: (A)-(E) (No change.) (3)-(8) (No change.) sec.116.621. Municipal Solid Waste Landfills. A person may claim a standard permit for the construction or modification to a municipal solid waste landfill (MSWLF) or municipal solid waste facility (MSW facility) as defined in sec.101.1 of this title (relating to Definitions), including, but not limited to, Type I, Type 1-AE, Type II, Type III, Type IV, Type IV-AE, Type VI, and Type IX sites as defined in sec.330.41 of this title (relating to Types of Municipal Solid Waste Sites). (1) (No change.) (2) Separate permit authorization under Subchapter B of this chapter (relating to New Source Review Permits) must be obtained for the following: (A)-(E) (No change.) (F) any project which constitutes a new major source, or major modification under the new source review requirements of the FCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Federal Clean Air Act], Part C (Prevention of Significant Deterioration review),
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [or] Part D (nonattainment review) and regulations promulgated thereunder, or Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63))
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              shall be subject to the requirements of sec.116.110 of this title (relating to Applicability) rather than this subchapter. (3) (No change.) (4) The permit holder shall comply with the air emissions standards as specified in 40 CFR Part 60, Subpart WWW, with the following additions and changes. (A) (No change.) (B) The GCCS shall be designed to control nonmethane organic compounds (NMOC) gas emissions in one or more of the following ways by routing the total collected gas to: (i) an open flare with a minimum height of 30 feet and which satisfies all of the requirements of Chapter 106, Subchapter A of this title (relating to General Requirements)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [sec.116.211 of this title (relating to Standard Exemption List), Standard Exemption Number 80,] and sec.106.492 of this title (relating to Flares (Previously SE 80)),
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  except that registration using Form PI-7 or PI-8
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [P1-7 or P1-8] shall not be required; (ii)-(iii) (No change.) (iv) gas or liquid fuel-fired stationary internal combustion reciprocating engines or gas turbines that satisfy all of the requirements of Chapter 106, Subchapter A of this title and sec.106.512 of this title (relating to Stationary Engines and Turbines (Previously SE 6))
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [sec.116.211 of this title, Standard Exemption Number 6], except that registration using Form PI-7 or PI-8 shall not be required; or (v) boilers, heaters, or other combustion units, but not including stationary internal combustion engines or turbines, that satisfy all of the requirements of Chapter 106, Subchapter A of this title and sec.106.183 of this title (relating to Boilers, Heaters, or Other Combustion Devices (Previously SE 7))
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [sec.116.211 of this title, Standard Exemption Number 7]. (C) The active GCCS may be capped or removed only if, in addition to the requirements listed in 40 CFR, sec.60.752(b)(2)(v), the MSWLF is permanently closed under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [pursuant to] sec.sec.330.250-330.256 of this title (relating to Closure and Post-closure). (5) (No change.) (6) High volume air sampling for net ground level concentrations of total particulate matter shall be performed upon request of the executive director or a designated representative. Each test shall consist of at least one upwind and one downwind sample taken simultaneously. The tests shall be performed during normal operations. A monitoring plan for high volume sampling shall be developed in accordance with the Office of Air Quality Management Plan, Appendix I (EPA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [United States Environmental Protection Agency (EPA)] Requirements for Quality Assurance Project Plans, dated February 1995) and the "TNRCC Sampling Procedures Manual," Chapter 11 (["Particulate Matter,"] dated January 1983 and revised July 1985), and shall require approval by the executive director or a designated representative prior to sampling. The executive director or a designated representative shall be afforded the opportunity to observe all such sampling equipment, operations, and records upon request. (7) GCCS components (compressor seals, pipeline valves, pressure relief valves in gaseous service, flanges, and pump seals) at an MSWLF or MSW facility, where the total of all estimated uncontrolled fugitive emissions from all components is greater than ten tons per year, shall be inspected and maintained under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [pursuant to] the requirements of sec.116.620(c)(1)(A)-(J) of this title (relating to Installation and/or Modification of Oil and Gas Facilities), with the following changes and additions. (A)-(E) (No change.) (8) The owner or operator of each MSWLF unit shall maintain complete and up-to- date records sufficient to readily determine continuous compliance with the requirements of this section for the previous five years of operation. All the records shall be maintained in an operating record in accordance with sec.330.113(b)(11) of this title (relating to Recordkeeping Requirements). The records shall be available for review upon request by representatives of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                or any local air pollution agency having jurisdiction. The following recordkeeping requirements shall apply, in addition to those specified in 40 CFR 60, Subpart WWW. (A) Permit holders who are subject to the exemptions of Chapter 106 of this title (relating to Exemptions from Permitting), as
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [a standard exemption] specified in paragraph (4) of this section shall maintain any records specified in the exemption. (B) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803298 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER G. Flexible Permits 30 TAC sec.sec.116.710, 116.711, 116.714, 116.715, 116.721, 116.730, 116.740, 116.750 STATUTORY AUTHORITY. The amendments are proposed under the Texas Health and Safety Code, TCAA, sec.sec.382.017, 382.051, 382.0518, and 382.0541, which provide the commission with the authority to adopt rules consistent with the policy and purpose of the TCAA and approve all general policy of the commission. The review of the commission's rules is proposed under Article IX, sec.167, General Appropriations Act, 75th Legislature, 1997. The proposed amendments implement Texas Health and Safety Code, sec.382.017, concerning Rules, sec.382.051, concerning Permitting Authority of Commission; Rules, sec.382.0518, concerning Preconstruction Permit, and sec.382.0541, concerning Administration and Enforcement of Federal Operating Permit. sec.116.710. Applicability. (a) Flexible permit. A person may obtain a flexible permit which allows for physical or operational changes as provided by this subchapter as an alternative to obtaining a new source review permit under sec.116.110 of this title (relating to Applicability), or in lieu of amending an existing permit under sec.116.116 of this title (relating to Amendments and Alterations). A person may obtain a flexible permit under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [pursuant to] sec.116.711 of this title (relating to Flexible Permit Application) for a facility, group of facilities, or account before any actual work is begun, provided however: (1)-(4) (No change.) [(b) Operations certification. Any person who obtains a flexible permit under this subchapter shall comply with sec.116.110(b) of this title.] (b)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(c)] Change in ownership. The new owner of a facility, group of facilities, or account shall comply with sec.116.110(c) of this title, provided however, that all facilities covered by a flexible permit must change ownership at the same time and to the same person, or both the new owner and existing permit holder must obtain a permit alteration allocating the emission caps or individual emission limitation prior to the transfer of the permit by the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Texas Natural Resource Conservation Commission (TNRCC)]. After the sale of a facility, or facilities, but prior to the transfer of a permit requiring a permit alteration, the original permit holder remains responsible for ensuring compliance with the existing flexible permit and all rules and regulations of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [TNRCC]. (c)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(d)] Submittal under seal of Texas licensed
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [registered] professional engineer. All applications for a flexible permit or flexible permit amendment shall comply with sec.116.110 (e)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(d)] of this title. (d)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(e)] Responsibility for flexible permit application. The owner of the facility, group of facilities, or account or the operator of the facility, group of facilities, or account who is authorized to act for the owner is responsible for complying with this section, except as provided by subsection (b)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(c)] of this section. sec.116.711. Flexible Permit Application. Any application for a new flexible permit or flexible permit amendment must include a completed Form PI-1 General Application. The Form PI-1 must be signed by an authorized representative of the applicant. The Form PI-1 specifies additional support information which must be provided before the application is deemed complete. In order to be granted a flexible permit or flexible permit amendment, the owner or operator of the proposed facility shall submit information to the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [Texas Natural Resource Conservation Commission (TNRCC)] which demonstrates that all of the following are met. (1) Protection of public health and welfare. The emissions from the proposed facility, group of facilities, or account as determined under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [pursuant to] sec.116.716 of this title (relating to Emission Caps and Individual Emission Limitations), will comply with all rules and regulations of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [TNRCC] and with the intent of the TCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Texas Clean Air Act (TCAA)], including protection of the health and physical property of the people. In considering the issuance of a flexible permit for construction or modification of any facility, group of facilities, or account within 3,000 feet or less of an elementary, junior high/middle, or senior high school, the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [TNRCC] shall consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility, group of facilities, or account may have on the individuals attending these school facilities. (2) Measurement of emissions. The proposed facility, group of facilities, or account will have provisions for measuring the emission of air contaminants as determined by the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Executive Director]. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual"
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  ["Compliance Sampling Manual"]. (3) Best Available Control Technology (BACT). The proposed facility, group of facilities, or account will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions from the facility on a proposed facility, group of facilities, or account basis. Control technology beyond BACT may be used on certain facilities to provide the emission reductions necessary to comply with this requirement on a group of facilities or account basis, provided however, that the existing level of control may not be lessened for any facility. For new facilities and physical changes to existing facilities which concern a maximum available control technology (MACT) determination for constructed or reconstructed sources under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63))
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    , the use of BACT shall be demonstrated for the individual facility. (4) [Federal] New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 40 Code of Federal Regulations (CFR), Part 60 will meet at least the requirements of any applicable NSPS as listed under Title 40 CFR Part 60, promulgated by the EPA under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [United States Environmental Protection Agency (EPA) pursuant to] authority granted under the FCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Federal Clean Air Act (FCAA)], sec.111, as amended. (5) National Emission Standards for Hazardous Air Pollutants (NESHAPS) [and Maximum Achievable Control Technology (MACT)]. The emissions from each facility as defined in 40 CFR Part 61 will meet at least the requirements of any applicable NESHAPS, as listed under 40 CFR Part 61 [, or any MACT standard], promulgated by EPA under
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [pursuant to] authority granted under the FCAA, sec.112, as amended. (6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            NESHAPS for source categories. The emissions from each affected facility shall meet at least the requirements of any applicable MACT standard as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR 63)). (7)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(6)] Performance demonstration. The proposed facility, group of facilities, or account will achieve the performance specified in the flexible permit application. The applicant may be required to submit additional engineering data after a flexible permit has been issued in order to demonstrate further that the proposed facility, group of facilities, or account will achieve the performance specified in the flexible permit. In addition, initial compliance testing with ongoing compliance determined through engineering calculations based on measured process variables, parametric or predictive monitoring, stack monitoring, or stack testing may be required. (8)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(7)] Nonattainment review. If the proposed facility, group of facilities, or account is located in a nonattainment area, each facility shall comply with all applicable requirements under the undesignated head concerning nonattainment review in Subchapter B of this chapter (relating to New Source Review Permits)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  . (9)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(8)] Prevention of Significant Deterioration (PSD) review. If the proposed facility, group of facilities, or account is located in an attainment area, each facility shall comply with all applicable requirements under the undesignated head concerning PSD in Subchapter B of this chapter. (10)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(9)] Air dispersion modeling or ambient monitoring. Computerized air dispersion modeling and/or ambient monitoring may be required by the commission's New Source Review Permitting Division
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [TNRCC Permits Program] to determine the air quality impacts from the facility, group of facilities, or account. (11)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Federal standards of review for constructed or reconstructed major sources of hazardous air pollutants. If the proposed new or reconstructed facility is a major source for hazardous air pollutants, it shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63)). (12)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(10)] Application content. In addition to any other requirements of this chapter, the applicant shall: (A) identify each air contaminant for which an emission cap is desired; (B) identify each facility to be included in the flexible permit; (C) identify each source of emissions to be included in the flexible permit and for each source of emissions identify the Emission Point Number (EPN) and the air contaminants emitted; (D) for each emission cap, identify all associated EPNs and provide emission rate calculations based on the expected maximum capacity and the proposed control technology; (E) for each individual emission limitation, identify the EPN and provide emission rate calculations based on the expected maximum capacity and the proposed control technology. (13)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(11)] Proposed control technology and compliance demonstration. The applicant shall specify the control technology proposed for each unit to meet the emission cap and demonstrate compliance with all emission caps at expected maximum production capacity. sec.116.714. Application Review Schedule. The flexible permit application will be reviewed by the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Texas Natural Resource Conservation Commission] in accordance with sec.116.114 of this title (relating to Application Review Schedule). sec.116.715. General and Special Conditions. (a) Flexible permits may contain general and special conditions. The holders of flexible permits shall comply with any and all such conditions. Upon a specific finding by the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Executive Director] that an increase of a particular air contaminant could result in a significant impact on the air environment, or could cause the facility, group of facilities, or account to become subject to review under sec.116.150 and sec.116.151 and sec.sec.116.160-116.163 of this title
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [the undesignated headings of Subchapter B of this chapter] (relating to Nonattainment Review or Prevention of Significant Deterioration Review) or Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63))
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      , the permit may include a special condition which requires the permittee to obtain written approval from the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Executive Director] before constructing a facility under a standard permit or an exemption under Chapter 106 of this title (relating to Exemptions from Permitting)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [exemption or standard permit]. (b) (No change.) (c) The following general conditions shall be applicable to every flexible permit. (1) Voiding of permit. A flexible permit or flexible permit amendment under this subchapter is automatically void if the holder fails to complete construction as specified in the flexible permit. Upon request, the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Executive Director] may grant a one time 12-month extension of the date to complete construction. This section does not apply to physical or operational changes allowed without an amendment under sec.116.721 of this title (relating to Amendments and Alterations). (2) Construction progress. The start of construction, construction interruptions exceeding 45 days, and completion of construction shall be reported to the appropriate regional office of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [Texas Natural Resource Conservation Commission (TNRCC)] not later than 15 working days after occurrence of the event. (3) Start-up notification. The appropriate regional office of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Air Program Regional Office of the TNRCC] and any local program having jurisdiction shall be notified prior to the commencement of operations of the facilities authorized by the permit in such a manner that a representative of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [TNRCC] may be present. Phased construction, which may involve a series of facilities commencing operations at different times, shall provide separate notification for the commencement of operations for each facility. (4) Sampling requirements. If sampling of stacks or process vents is required, the flexible permit holder shall contact the commission's Engineering Services Section, Office of Compliance and Enforcement
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [Source and Mobile Monitoring Section of the TNRCC Office of Air Quality] prior to sampling to obtain the proper data forms and procedures. All sampling and testing procedures must be approved by the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [Executive Director] and coordinated with the appropriate regional office of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Air Program Regional Office of the TNRCC]. The flexible permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant. (5) Equivalency of methods. It shall be the responsibility of the flexible permit holder to demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the flexible permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Executive Director] prior to their use in fulfilling any requirements of the permit. (6) Recordkeeping. A copy of the flexible permit along with information and data sufficient to demonstrate continuous compliance with the emission caps and individual emission limitations contained in the flexible permit shall be maintained in a file at the plant site and made available at the request of personnel from the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [TNRCC] or any air pollution control program having jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the permit holder in the permit application. This information may include, but is not limited to, emission cap and individual emission limitation calculations based on a 12-month rolling basis and production records and operating hours. Additional recordkeeping requirements may be specified in special conditions attached to the flexible permit. Information in the file shall be retained for at least two years following the date that the information or data is obtained. (7)-(8) (No change.) (9) Maintenance of emission control. The facilities covered by the flexible permit shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. Notification for upsets and maintenance shall be made in accordance with sec.101.6 and sec.101.7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping and Operational Requirements
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [Notification Requirements for Major Upset and Notification Requirements for Maintenance]). (10) Compliance with rules. Acceptance of a flexible permit by a permit applicant constitutes an acknowledgment and agreement that the holder will comply with all Rules, Regulations, and Orders of the commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Commission] issued in conformity with the TCAA
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [Texas Clean Air Act] and the conditions precedent to the granting of the permit. If more than one state or federal rule or regulation or flexible permit condition are applicable, then the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated. Acceptance includes consent to the entrance of commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [Commission] employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the flexible permit. (d) (No change.) sec.116.721. Amendments and Alterations. (a) Flexible permit amendments. All representations with regard to construction plans and operation procedures in an application for a flexible permit, as well as any general and special provisions attached,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      become conditions upon which the subsequent flexible permit is issued. It shall be unlawful for any person to vary from such representation or flexible permit provision if the change will cause a change in the method of control of emissions, the character of the emissions, or will result in a significant increase in emissions, unless application is made to the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Executive Director] to amend the flexible permit in that regard and such amendment is approved by the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Executive Director] or commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [Commission]. Applications to amend a flexible permit shall be submitted with a completed Form PI-1 and are subject to the requirements of sec.116.711 of this title (relating to Flexible Permit Application). (b) Flexible permit alterations. (1) (No change.) (2) All flexible permit alterations which may involve a change in a general or special condition contained in the flexible permit, or affect control equipment performance must receive prior approval by the executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [Executive Director]. The executive director
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Executive Director] shall be notified in writing of all other flexible permit alterations within ten
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [10] days of implementing the change, unless the permit provides for a different method of notification. Any flexible permit alteration request or notification shall include information sufficient to demonstrate that the change does not interfere with the owner or operator's previous demonstrations of compliance with the requirements of sec.116.711 of this title, including the protection of public health and welfare. The appropriate commission regional office
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [Texas Natural Resource Conservation Commission Regional Office ] and any local air pollution program having jurisdiction shall be provided copies of all flexible permit alteration documents. (3) (No change.) (c) (No change.) (d) Exemption under Chapter 106 of this title (relating to Exemptions from Permitting)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [Standard exemption] in lieu of permit amendment or alteration. (1) Notwithstanding subsections (a) or (b) of this section, no permit amendment or alteration is required if the changes to the permitted facility qualify for an exemption under Chapter 106 of this title
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [Subchapter C of this chapter (relating to Permit Exemptions)] unless prohibited by permit provision as provided in sec.116.715 of this title (relating to General and Special Conditions). All such exempted changes to a permitted facility shall be incorporated into that facility's permit at such time as the permit is amended or renewed. (2) Emission increases authorized by Chapter 106 of this title
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [standard exemption] at an existing facility covered by a flexible permit shall not cause an exceedance of the emissions cap or individual emission limitation. sec.116.730. Compliance History. As part of a flexible permit review, or the review of an amendment of a flexible permit, or renewal of an existing flexible permit, the provisions found in sec.sec.116.120-116.126 of this title (relating to Compliance History)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [the undesignated head regarding Compliance History in Subchapter B of this chapter] shall be applicable to the facility, group of facilities, or account being permitted, amended, or renewed. sec.116.740. Public Notice and Comment. (a)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Any person who applies for a flexible permit or an amendment to a flexible permit shall comply with the provisions in sec.sec.116.130- 116.134, 116.136, 116.137 of this title (relating to Public Notification and Comment Procedures
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [the undesignated head regarding Public Notification and Comment Procedures in Subchapter B of this chapter]. (b)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Any person who applies for an amendment to a flexible permit that concerns a maximum achievable control technology determination for constructed or reconstructed sources under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g) 40 CFR Part 63)) shall comply with the provisions in sec.sec.116.130-116.134, 116.136, and 116.137 of this title. sec.116.750. Flexible Permit Fee. (a) (No change.) (b) Fee amounts. The fee to be remitted with a flexible permit application shall be based on the total annual allowable emissions from the permitted facility, group of facilities, or account for which the flexible permit is being sought. The fee shall be $25 per ton with the minimum fee being $450 and the maximum fee $75,000. For flexible permit amendments, the fee shall be calculated based on $25 per ton for the incremental emission increase with the minimum fee being $450 and the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    maximum fee being $75,000. (c) Payment of fees. All permit fees for a flexible permit shall be remitted in the form of a check or money order made payable to the Texas Natural Resource Conservation Commission [(TNRCC)] and delivered with the application for flexible permit or flexible permit amendment to the commission's New Source Review Permitting Division
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [TNRCC Office of Air Quality New Source Review Program]. Required fees must be received before the agency will begin examination of the application. (d) Return of fees. Fees must be paid at the time an application for a flexible permit or flexible permit amendment is submitted. If the applicant withdraws the application prior to issuance of the flexible permit or flexible permit amendment, one-half of the fee will be refunded, except that the entire fee will be refunded for any such application for which an exemption under Chapter 106 of this title (relating to Exemptions from Permitting
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [a standard exemption] is allowed. No fees will be refunded after a deficient application has been voided, denied, or after a flexible permit or flexible permit amendment has been issued by the agency. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 6, 1998. TRD-9803299 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: June 17, 1998 For further information, please call: (512) 239-1966 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 3.Tax Administration SUBCHAPTER CC.Waste Tire Recycling Fee 34 TAC sec.3.721 Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Comptroller of Public Accounts or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Comptroller of Public Accounts proposes the repeal of sec.3.721, concerning collection and reporting requirements. This rule is being repealed because the Waste Tire Recycling Program expires on December 31, 1997, in accordance with Health and Safety Code, sec.361.497. Mike Reissig, chief revenue estimator, has determined that the repeal of this rule would have no fiscal impact on the state or units of local government. Mr. Reissig also has determined that there will be no cost or benefit to the public from the repeal of this rule. This repeal is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. Comments on the repeal may be submitted to Karey W. Barton, Manager, Tax Policy Division, P.O. Box 13528, Austin, Texas 78711. This repeal is proposed under the Tax Code, sec.111.002 and sec.111.0022, which provide the comptroller with the authority to adopt rules for the administration and enforcement of the Tax Code and programs or functions assigned to the comptroller by law. The repeal implements Health and Safety Code, sec.361.497. sec.3.721. Collection and Reporting Requirements. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 5, 1998. TRD-9803366 Martin Cherry Chief, General Law Comptroller of Public Accounts Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 463-3699 CHAPTER 9.Property Tax Administration SUBCHAPTER H.Tax Records 34 TAC sec.9.3041 Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Comptroller of Public Accounts or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Comptroller of Public Accounts proposes the repeal of sec.9.3041, concerning tax deferral affidavit. The rule is being repealed because the Tax Code, sec.5.07(a) does not require that the comptroller adopt this form by rule. Mike Reissig, chief revenue estimator, has determined that repeal of the rule would have no fiscal impact on the state or units of local government. Mr. Reissig also has determined that this repeal would benefit the public by making the rules easier to use. There would be no anticipated significant economic cost to the public. The repeal will have no significant fiscal impact on small businesses. Comments on the repeal may be submitted to Larrilyn K. Reissig, Manager, Property Tax Division, P.O. Box 13528, Austin, Texas 78711. The repeal is proposed under the Tax Code, sec.111.002 and sec.111.0022, which provide the comptroller with the authority to adopt rules for the administration and enforcement of the Tax Code and programs or functions assigned to the comptroller by law. The repeal implements the Tax Code, sec.5.07(a) and sec.33.06. sec.9.3041.Tax Deferral Affidavit. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State on March 5, 1998. TRD-9803219 Martin Cherry Chief, General Law Comptroller of Public Accounts Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 463-3699 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART III. Texas Youth Commission CHAPTER 81.Interaction with the Public 37 TAC sec.81.53 The Texas Youth Commission (TYC) proposes an amendment to sec.81.53, concerning research projects. The amendment will change the name of the research and planning department to the research department to reflect and organizational change. Terry Graham, Assistant Deputy Executive Director for Finance, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Graham also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be more efficient state government. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. No private real property rights are affected by adoption of this rule. Comments on the proposal may be submitted to Gail Graham, Policy and Manuals Coordinator, Texas Youth Commission, 4900 North Lamar, P.O. Box 4260, Austin, Texas 78765. The amendment is proposed under the Human Resources Code, sec. 61.034, which provides the Texas Youth Commission with the authority to adopt policies and make rules appropriate to the proper accomplishment of its functions. The proposed rule implements the Human Resource Code, sec.61.034. sec.81.53.Research Projects. (a)-(d) (No Change.) (e) Project Management. Procedures for research projects are managed through the research [and planning] department. (f) Research Proposals. Project directors other than those employed by the research [and planning] department must submit a research proposal to the research [and planning] department. The proposal should include as much of the following information as possible: (1) project title; (2) names and qualifications of all project researchers; (3) purpose (e.g., thesis, professional paper, dissertation); (4) research design and methodology; (5) number of and time required by each TYC youth if used in research; (6) provisions for confidentiality of youth names and identification numbers; (7) amount of TYC staff time needed; (8) benefit to TYC or juvenile profession; (9) research supervisor, if any (e.g., Chairman of Thesis Committee); and (10) amount and source of funding, if any. (g) (No Change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office of the Secretary of State, on March 6, 1998. TRD-9803335 Steve Robinson Executive Director Texas Youth Commission Earliest possible date of adoption: April 19, 1998 For further information, please call: (512) 424-6244