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 <nl> code. [Brackets] indicate deletion of existing material 
within a section.

TITLE 1. ADMINISTRATION
Part V. General Services Commission
Chapter 113. Central Purchasing Division
Subchapter A. Purchasing
1 TAC sec.113.1
The General Services proposes an amendment to Title 1, TAC, sec.113.1, 
concerning Central Procurement Services. The proposed amendment delegates 
authority to the Director of Central Procurement to establish and administer a 
program for the training, continuing education, and certification of state 
agency, political subdivision or other public entity purchasing personnel in 
accordance with the Texas Government Code, Title 10, Subtitle D, Section 
2155.078.
Mr. David P. Gragan, Director of Central Procurement, General Services 
Commission, has determined that for the first five-year period the proposed 
amendment is in effect, the fiscal impact to state government will be 
approximately $656,180 for direct training costs. Local governments choosing to 
participate in this program will be required to pay a cost recovery fee that 
presently has not been determined.
Mr. David Gragan, Director of Central Procurement, General Services Commission, 
also has determined that for each year of the first five years the rule is in 
effect, the public benefit anticipated will be purchasing personnel who 
demonstrate more knowledge, efficiency, and effectiveness in their jobs. There 
will be no cost to small or large businesses, and/or individuals.
Comments on the proposed amendment 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 this 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, Section 2155.078.
The following statute is affected by these rules: Government Code, Title 10, 
Subtitle D, Chapter 2155, Section 2155.078.

sec.113.1 General.
(a)-(g) (No change.)
<nl>(h) The Commission hereby establishes the program authorized by the Texas 
Government Code, Section 2155.078 and delegates to the Director of the Central 
Procurement Division the authority to administer the training, certification, 
and continuing education program for state agency purchasing personnel, 
including agencies exempted from the purchasing authority of the Commission, and 
purchasing personnel employed by a political subdivision or other public entity 
of the state in accordance with the Texas Government Code, Title 10, Subtitle D, 
Subchapter B, sec.2155.078 on a cost recovery basis. The director is further 
directed to promulgate guidelines for administering this program consistent with 
sound purchasing principles and state law.<ol>
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 April 30, 1998.
TRD-9806067
Judy Ponder
General Counsel
General Services Commission
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 463-3960

TITLE 16 ECONOMIC REGULATION
Part II. Public Utility Commission of Texas
Chapter 23. Substantive Rules
Subchapter A. General Rules
16 TAC sec.23.3
(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 proposes the repeal of sec.23.3, relating 
to Definitions. Project Number 19120 has been assigned to this proceeding. 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 
Procedures 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.23.3 will be duplicative of the proposed new 
sections in Chapter 25 of this title relating to Substantive Rules Applicable to 
Electric Service Providers, and Chapter 26 of this title relating to Substantive 
Rules Applicable to Telecommunications Service Providers.
Ms. 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 also has 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 North Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. All comments 
should refer to Project Number 19120.
The 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 Reference to Statutes: Public Utility Regulatory Act sec.14.002.

sec.23.3. 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 April 31, 1998.
TRD-9806087
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: June 14, 1998</p>
For further information, please call: (512) 936-7308

Subchapter B. Records and Reports
16 TAC sec.sec.23.11, 23.12, 23.13, 23.14
(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 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 proposes the repeals to sec.23.11, 
relating to General Reports; sec.23.12, relating to Financial Records and 
Reports; sec.23.13, relating to Statistical Reports; and sec.23.14, relating to 
Maintenance and Location of Records. Project Number 19121 has been assigned to 
this proceeding. 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.sec.23.11-23.14 will be duplicative of the 
proposed new sections in Chapter 25 of this title relating to Substantive Rules 
Applicable to Electric Service Providers, and Chapter 26 of this title relating 
to Substantive Rules Applicable to Telecommunications Service Providers.
Ms. Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined 
that for each year of the first five-year period the repeals are in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the repeals.
Ms. Mueller has determined that for each year of the first five years the 
repeals are in effect, the public benefit anticipated as a result of the repeal 
will be the elimination of duplicative rules. There will be no effect on small 
businesses as result of repealing these sections. There is no anticipated 
economic cost to persons as a result of repealing these sections.
Ms. Mueller also has determined that for each year of the first five years the 
repeals are in effect there will be no impact on employment in the geographic 
area affected by the repeals of these sections.
Comments on the proposed repeals (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. All comments 
should refer to Project Number 19121 - Repeals.
These repeals are 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 Reference to Statutes: Public Utility Regulatory Act sec.14.002.
sec.23.11. General Reports.
sec.23.12. Financial Records and Reports.
sec.23.13. Statistical Reports.
sec.23.14. Maintenance and Location of Records.
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 April 31, 1998.
TRD-9806168
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 936-7308

Chapter 25. Substantive Rules Applicable to Electric Service Providers
Subchapter A. General Provision
16 TAC sec.25.5
The Public Utility Commission of Texas (commission) proposes new sec.25.5 
relating to Definitions. Project Number 19120 has been assigned to this 
proceeding. The proposed new section will replace sec.23.3 of this title 
(relating to Definitions) as it concerns electric service. Proposed new sec.25.5 
gathers all the general definitions related to electric service that were 
located throughout Chapter 23 of this title into one section. The only 
definitions that will remain in other sections once all the electric sections 
are moved to Chapter 25 will be definitions that are section specific.
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 commission held three workshops to conduct a 
preliminary review of its rules. As a result of these workshops, the commission 
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. 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 the new chapter.
Some proposed changes have been recommended for the definitions due to: (1) 
making the rule sections industry specific; (2) changes in the Public Utility 
Regulatory Act (PURA), Texas Utilities Code sec.sec.11.001 -63.063, (Vernon 
1998), i.e., definitions of "electric utility" and "public utility"; (3) Texas 
Register requirements that definitions be consecutively numbered; (4) 
codification of the Public Utility Regulatory Act into the Texas Utilities Code 
(citation changes); (5) changes in other sections of the commission's rules; and 
(6) changes in paragraph, subparagraph, clause and subclause designations as a 
result of reorganizing the definitions into the new section. The Texas Register 
will publish this section as all new text. Persons who desire a copy of the 
proposed definitions in sec.25.5 as they reflect changes to existing definitions 
in Chapter 23 may obtain a redlined version from the commission's Central 
Records under Project Number 19120.
Ms. 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 section.
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 definitions that enable persons to better 
understand the commission's rules, and that conform to current statutes and 
other rule sections. 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 new section (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. All comments 
should refer to Project Number 19120, sec.25.5 - Electric Definitions.
The new section is proposed under the Public Utility Regulatory Act (PURA), 
Texas Utilities Code Annotated sec.14.002 (Vernon 1998), 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 Reference to Statutes: Public Utility Regulatory Act sec.14.002.

<nl>sec.25.5. Definitions.<ol>
<nl>The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise:<ol> 
<nl>(1) Administrative review - A process under which an application may be 
approved without a formal hearing.<ol>
<nl>(2) Affected person - means:<ol>
<nl>(A) a public utility affected by an action of a regulatory authority;<ol>
<nl>(B) a person whose utility service or rates are affected by a proceeding 
before a regulatory authority; or<ol>
<nl>(C) a person who:<ol>
<nl>(i) is a competitor of a public utility with respect to a service performed 
by the utility; or<ol>
<nl>(ii) wants to enter into competition with a public utility.<ol>
<nl>(3) Affiliate - means:<ol>
<nl>(A) a person who directly or indirectly owns or holds at least five percent 
of the voting securities of a public utility;<ol>
<nl>(B) a person in a chain of successive ownership of at least five percent of 
the voting securities of a public utility;<ol>
<nl>(C) a corporation that has at least five percent of its voting securities 
owned or controlled, directly or indirectly, by a public utility;<ol>
<nl>(D) a corporation that has at least five percent of its voting securities 
owned or controlled, directly or indirectly, by:<ol>
<nl>(i) a person who directly or indirectly owns or controls at least five 
percent of the voting securities of a public utility; or<ol>
<nl>(ii) a person in a chain of successive ownership of at least five percent of 
the voting securities of a public utility;<ol>
<nl>(E) a person who is an officer or director of a public utility or of a 
corporation in a chain of successive ownership of at least five percent of the 
voting securities of a public utility; or<ol>
<nl>(F) a person determined to be an affiliate under Public Utility Regulatory 
Act sec.11.006.<ol>
<nl>(4) Ancillary service - A service necessary to support the transmission of 
energy from resources to loads while maintaining reliable operation of 
transmission providers' transmission systems in accordance with good utility 
practice.<ol>
<nl>(5) Ancillary service provider - An electric utility or an affiliate of an 
electric utility that provides an ancillary service.<ol>
<nl>(6) Applicant - A person, including the Office of Regulatory Affairs, who 
seeks action from the commission by written application, petition, complaint, 
notice of intent, appeal, or other pleading that initiates a proceeding.<ol>
<nl>(7) Base rate - A rate designed to recover the costs of providing 
electricity other than those recovered through a fuel factor or power cost 
recovery factor.
<nl>(8) Commission - The Public Utility Commission of Texas.
<nl>(9) Control area - An electric power system or combination of electric power 
systems to which a common automatic generation control scheme is applied in 
order to:<ol>
<nl>(A) match, at all times, the power output of the generators within the 
electric power system(s) and capacity and energy purchased from entities outside 
the electric power system(s), with the load within the electric power 
system(s);<ol>
<nl>(B) maintain, within the limits of good utility practice, scheduled 
interchange with other control areas;<ol>
<nl>(C) maintain the frequency of the electric power system(s) within reasonable 
limits in accordance with good utility practice; and<ol>
<nl>(D) obtain sufficient generating capacity to maintain operating reserves in 
accordance with good utility practice.<ol>
<nl>(10) Cooperative corporation -<ol>
<nl>(A) An electric cooperative corporation organized and operating under the 
Electric Cooperative Corporation Act, Texas Utilities Code Annotated, Chapter 
161, or a predecessor statute to Chapter 161 and operating under that chapter; 
or<ol>
<nl>(B) A telephone cooperative corporation organized under the Telephone 
Cooperative Act, Texas Utilities Code, Chapter 162, or a predecessor statute to 
Chapter 162 and operating under that chapter.<ol>
<nl>(11) Corporation - A domestic or foreign corporation, joint-stock company, 
or association, and each lessee, assignee, trustee, receiver, or other successor 
in interest of the corporation, company, or association, that has any of the 
powers or privileges of a corporation not possessed by an individual or 
partnership. The term does not include a municipal corporation, except as 
expressly provided by the Public Utility Regulatory Act.<ol>
<nl>(12) Customer class - A group of customers with similar electric usage 
service characteristics (e.g., residential, commercial, industrial, sales for 
resale) taking service under one or more rate schedules. Qualified businesses as 
defined by the Texas Enterprise Zone Act, Texas Government Code, Title 10, 
Chapter 2303 may be considered to be a separate customer class of electric 
utilities.<ol>
<nl>(13) Demand-side management - Activities that affect the magnitude and/or 
timing of customer electricity usage to produce desirable changes in the 
utility's load shape.<ol>
<nl>(14) Demand-side resource or demand-side management resource - Activities 
that result in reductions in electric generation, transmission, or distribution 
capacity needs or reductions in energy usage or both.<ol>
<nl>(15) Distribution line - A power line operated below 60,000 volts, when 
measured phase-to-phase.<ol>
<nl>(16) Distributed resource - A generation, energy storage, or targeted 
demand-side resource, generally between one kilowatt and ten megawatts, located 
at a customer's site or near a load center, and connected at the distribution 
voltage level (60,000 volts and below), that provides advantages to the system, 
such as deferring the need for upgrading local distribution facilities.<ol>
<nl>(17) Electric Reliability Council of Texas (ERCOT) - Refers to the 
organization and, in a geographic sense, refers to the area served by electric 
utilities that are not synchronously interconnected with electric utilities 
outside of the State of Texas.<ol>
<nl>(18) Electric utility -<ol>
<nl>(A) A person or river authority that owns or operates for compensation in 
this state equipment or facilities to produce, generate, transmit, distribute, 
sell, or furnish electricity in this state. The term includes a lessee, trustee, 
or receiver of an electric utility and a recreational vehicle park owner who 
does not comply with Texas Utilities Code, Subchapter C, Chapter 184, with 
regard to the metered sale of electricity at the recreational vehicle park. The 
term does not include:<ol>
<nl>(i) a municipal corporation;<ol>
<nl>(ii) a qualifying facility;<ol>
<nl>(iii) an exempt wholesale generator;<ol>
<nl>(iv) a power marketer;<ol>
<nl>(v) a corporation described by Public Utility Regulatory Act sec.32.053 to 
the extent the corporation sells electricity exclusively at wholesale and not to 
the ultimate consumer; or<ol>
<nl>(vi) a person not otherwise an electric utility who:<ol>
<nl>(I) furnishes an electricservice or commodity only to itself, its employees, 
or its tenants as an incident of employment or tenancy, if that service or 
commodity is not resold to or used by others;<ol>
<nl>(II) owns or operates in this state equipment or facilities to produce, 
generate, transmit, distribute, sell or furnish electric energy to an electric 
utility, if the equipment or facilities are used primarily to produce and 
generate electric energy for consumption by that person; or<ol>
<nl>(III) owns or operates in this state a recreational vehicle park that 
provides metered electric service in accordance with Texas Utilities Code, 
Subchapter C, Chapter 184.<ol>
<nl>(B) With respect to transmission service and ancillary service, the term 
includes municipally owned utilities and river authorities that are not 
otherwise subject to the commission's ratesetting authority.<ol>
<nl>(19) Eligible ancillary service customer - An electric utility, federal 
power marketing agency, exempt wholesale generator, qualifying facility, or 
power marketer.<ol>
<nl>(20) Eligible transmission customer - A transmission provider (for all uses 
of its transmission system) and any electric utility, federal power marketing 
agency, exempt wholesale generator, qualifying facility, power marketer, or 
other wholesale customer.<ol>
<nl>(21) Energy efficiency - Management of energy resources through efficacy in 
the utilization of electrical energy through: end-user conservation (a single 
device, measure, or practice, or a grouping thereof, to reduce energy or demand 
and that can be measured at the customer meter); utility-controlled options such 
as optimization of existing and planned generation, transmission, and 
distribution facilities through direct load management (reduction in peak demand 
on an electric utility system by direct control of electric devices), 
cogeneration (reduction in additions to electric utility planned generation 
expansion as a result of using firm and reliable capacity from an industrial 
company), peak shaving (reduction in peak demand on an electric utility system 
by the storage of energy produced during an off-peak period and then utilizing 
it to serve loads during the peak period), small power production (reduction in 
additions to electric utility planned generation additions by the installation 
of dependable, long-life generating plants utilizing direct conversion of 
renewable resources of electric energy), power plant productivity improvement 
(reduction in additions to electric utility planned generation expansion as a 
result of improvements in the productivity of existing or new generating units), 
and power plant efficiency improvement (reduction in the utilization of natural 
resources in their conversion to electrical energy as a result of improvements 
in the efficiency of existing and new generating units); and optimal conversion 
of renewable resources to electrical energy.<ol>
<nl>(22) Exempt wholesale generator - A person who is engaged directly or 
indirectly through one or more affiliates exclusively in the business of owning 
or operating all or part of a facility for generating electric energy and 
selling electric energy at wholesale who does not own a facility for the 
transmission of electricity, other than an essential interconnecting 
transmission facility necessary to effect a sale of electric energy at 
wholesale, and who is in compliance with the registration requirements of 
sec.23.19 of this title (relating to Registration of Power Marketers and Exempt 
Wholesale Generators).<ol>
<nl>(23) Facilities - All the plant and equipment of an electric utility, 
including all tangible and intangible real and personal property without 
limitation, and any and all means and instrumentalities in any manner owned, 
operated, leased, licensed, used, controlled, furnished, or supplied for, by, or 
in connection with the business of any electric utility, including any 
construction work in progress allowed by the commission.<ol>
<nl>(24) Good utility practice - Any of the practices, methods, and acts engaged 
in or approved by a significant portion of the electric utility industry during 
the relevant time period, or any of the practices, methods, and acts that, in 
the exercise of reasonable judgment in light of the facts known at the time the 
decision was made, could have been expectedto accomplish the desired result at a 
reasonable cost consistent with good business practices, reliability, safety, 
and expedition. Good utility practice is not intended to be limited to the 
optimum practice, method, or act, to the exclusion of all others, but rather is 
intended to include acceptable practices, methods, and acts generally accepted 
in the region.<ol>
<nl>(25) Hearing - Any proceeding at which evidence is taken on the merits of 
the matters at issue, not including prehearing conferences.<ol>
<nl>(26) License - The whole or part of any commission permit, certificate, 
approval, registration, or similar form of permission required by law.<ol>
<nl>(27) Licensing - The commission process respecting the granting, denial, 
renewal, revocation, suspension, annulment, withdrawal, or amendment of a 
license.<ol>
<nl>(28) Municipality - A city, incorporated village, or town, existing, 
created, or organized under the general, home rule, or special laws of the 
state.<ol>
<nl>(29) Municipally owned utility - Any utility owned, operated, and controlled 
by a municipality or by a nonprofit corporation whose directors are appointed by 
one or more municipalities.<ol>
<nl>(30) Native load customer - A wholesale or retail customer on whose behalf 
an electric utility, by statute, franchise, regulatory requirement, or contract, 
has an obligation to construct and operate its system to meet in a reliable 
manner the electric needs of the customer.<ol>
<nl>(31) Person - Any natural person, partnership, municipal corporation, 
cooperative corporation, corporation, association, governmental subdivision, or 
public or private organization of any character other than an agency.<ol>
<nl>(32) Planned resources - Generation resources owned, controlled, or 
purchased by a transmission customer, and designated as planned resources for 
the purpose of serving load.<ol>
<nl>(33) Planned transmission service - Use by a transmission customer of a 
transmission provider's transmission system for the delivery of power from 
planned resources to the customer's loads.<ol>
<nl>(34) Pleading - A written document submitted by a party, or a person seeking 
to participate in a proceeding, setting forth allegations of fact, claims, 
requests for relief, legal argument, and/or other matters relating to a 
proceeding.<ol>
<nl>(35) Power cost recovery factor - A charge or credit that reflects an 
increase or decrease in purchased power costs not in base rates.<ol>
<nl>(36) Power marketer - A person who becomes an owner of electric energy in 
this state for the purpose of selling the electric energy at wholesale; does not 
own generation, transmission, or distribution facilities in this state; and does 
not have a certificated service area.<ol>
<nl>(37) Pre-existing transmission contract - A contract for transmission or 
wheeling services that took effect prior to March 4, 1996.<ol>
<nl>(38) Premises - A tract of land or real estate including buildings and other 
appurtenances thereon.<ol>
<nl>(39) Proceeding - A hearing, investigation, inquiry, or other procedure for 
finding facts or making a decision. The term includes a denial of relief or 
dismissal of a complaint. It may be rulemaking or nonrulemaking; rate setting or 
non-rate setting.<ol>
<nl>(40) Public utility or utility - A person or river authority that owns or 
operates for compensation in this state equipment or facilities to convey, 
transmit, or receive communications over a telephone system as a dominant 
carrier. The term includes a lessee, trustee, or receiver of any of those 
entities, or a combination of those entities. The term does not include a 
municipal corporation. A person is not a public utility solely because the 
person:<ol>
<nl>(A) furnishes or furnishes and maintains a private system;<ol>
<nl>(B) manufactures, distributes, installs, or maintains customer premise 
communications equipment and accessories; or<ol>
<nl>(C) furnishes a telecommunications service or commodity only to itself, its 
employees, or its tenants as an incident of employment or tenancy, if that 
service or commodity is not resold to or used by others.<ol>
<nl>(41) Public Utility Regulatory Act (PURA) - The enabling statute for the 
Public Utility Commission of Texas, located in the Texas Utilities Code 
Annotated, sec.sec.11.001 - 63.063, (Vernon 1998).<ol>
<nl>(42) Rate - Includes:<ol>
<nl>(A) any compensation, tariff, charge, fare, toll, rental, or classification 
that is directly orindirectly demanded, observed, charged, or collected by a 
public utility for a service, product, or commodity described in the definition 
of utility in the Public Utility Regulatory Act, sec.31.002; and<ol>
<nl>(B) a rule, practice, or contract affecting the compensation, tariff, 
charge, fare, toll, rental, or classification.<ol>
<nl>(43) Rate class - A group of customers taking electric service under the 
same rate schedule.<ol>
<nl>(44) Rate year - The 12-month period beginning with the first date that 
rates become effective. The first date that rates become effective may include, 
but is not limited to, the effective date for bonded rates or the effective date 
for interim or temporary rates.<ol>
<nl>(45) Regulatory authority - In accordance with the context where it is 
found, either the commission or the governing body of a municipality.<ol>
<nl>(46) Renewable energy technology - Any technology that exclusively relies on 
an energy source that is naturally regenerated over a short time scale and 
derived directly from the sun (solar-thermal, photochemical, and photoelectric), 
indirectly from the sun (wind, hydropower, and biomass), or from other natural 
movements and mechanisms of the environment (geothermal and tidal energy). A 
renewable energy technology does not rely on energy resources derived from 
fossil fuels, waste products from fossil fuels, or waste products from inorganic 
sources.<ol>
<nl>(47) Renewable resources - Non-fossil fuels such as solar, wind, hydro, 
geothermal, biomass and municipal solid waste.<ol>
<nl>(48) Rule - A statement of general applicability that implements, 
interprets, or prescribes law or policy, or describes the procedure or practice 
requirements of the commission. The term includes the amendment or repeal of a 
prior rule, but does not include statements concerning only the internal 
management or organization of the commission and not affecting private rights or 
procedures.<ol>
<nl>(49) Rulemaking proceeding - A proceeding conducted pursuant to the 
Administrative Procedure Act, sec.sec.2001.021 - 2001.037 to adopt, amend, or 
repeal a commission rule.<ol>
<nl>(50) Service - Has its broadest and most inclusive meaning. The term 
includes any act performed, anything supplied, and any facilities used or 
supplied by a public utility or an electric utility in the performance of its 
duties under the Public Utility Regulatory Act to its patrons, employees, other 
public utilities or electric utilities and the public. The term also includes 
the interchange of facilities between two or more public utilities or electric 
utilities. The term does not include the printing, distribution, or sale of 
advertising in a telephone directory.<ol>
<nl>(51) Spanish speaking person - a person who speaks any dialect of the 
Spanish language exclusively or as their primary language.<ol>
<nl>(52) Submetering - Metering of electricity consumption ofindividual dwelling 
units by an apartment owner.<ol>
<nl>(53) Supply-side resource - A resource, including a storage device, that 
provides electricity from fuels (e.g., nuclear, fossil) or from renewable 
resources (e.g., solar, wind, biomass).<ol>
<nl>(54) Tariff - The schedule of a utility containing all rates, and charges 
stated separately by type of service, and the rules and regulations of the 
utility.<ol>
<nl>(55) Tenant - A person who is entitled to occupy a dwelling unit to the 
exclusion of others and who is obligated to pay for the occupancy under a 
written or oral rental agreement.<ol>
<nl>(56) Test year - The most recent 12 months for which operating data for an 
electric utility are available, and shall commence with a calendar quarter or a 
fiscal year quarter.<ol>
<nl>(57) Transmission customer - An eligible transmission customer receiving 
transmission service. Where consistent with the context, "transmission customer" 
includes an eligible transmission customer seeking transmission service.<ol>
<nl>(58) Transmission facilities study - An engineering study conducted by a 
transmission provider subsequent to a system security study to determine the 
required modifications to its transmission system, including the detailed costs 
and scheduled completion date for such modifications,that will be required to 
provide a requested transmission service.<ol>
<nl>(59) Transmission interconnection agreement - An agreement that sets forth 
requirements for physical connection or other terms relating to electrical 
connection between an eligible transmission customer and a transmission 
provider, including contracts or tariffs for transmission service that include 
provisions for interconnection. Transmission providers must have such an 
agreement with all transmission providers to whom they are physically 
connected.<ol>
<nl>(60) Transmission line - A power line that is operated at 60,000 volts or 
above, when measured phase-to-phase.<ol>
<nl>(61) Transmission losses - Energy losses resulting from the transmission of 
power.<ol>
<nl>(62) Transmission provider - An electric utility that owns or controls 
facilities used for the transmission of electricity and provides transmission 
service.<ol>
<nl>(63) Transmission service - Service that allows a transmission customer to 
use the transmission and distribution facilities of electric utilities to 
efficiently and economically utilize generation resources to reliably serve its 
loads and to deliver power to another transmission customer.<ol>
<nl>(64) Transmission service provider - An electric utility or an affiliate of 
an electric utility that provides transmission service.<ol>
<nl>(65) Transmission system - The transmission facilities at or above 60 
kilovolts owned, controlled, operated, or supported by a transmission provider 
or transmission customer that are used to provide transmission service.<ol>
<nl>(66) Transmission system security study - An assessment by a transmission 
provider of the adequacy of the transmission system to accommodate a request for 
transmission service, and whether any costs are anticipated in order to provide 
transmission service.<ol>
<nl>(67) Transmission upgrade - A modification or addition to transmission 
facilities.<ol>
<nl>(68) Unplanned resources - Generation resources owned, controlled or 
purchased by the transmission customer that have not been designated as planned 
resources.<ol>
<nl>(69) Unplanned transmission service - Use by a transmission customer of a 
transmission provider's transmission system for the delivery of power from 
resources that the customer has not designated as planned resources to the 
customer's loads.<ol>
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 April 31, 1998.
TRD-9806088
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 936-7308

Subchapter D. Records, Reports, and Other Required Information
16 TAC sec.sec.25.71-25.83, 25.89, 25.100
The Public Utility Commission of Texas (PUC) proposes new sec.25.71, relating to 
General Procedures, Requirements and Penalties; sec.25.72 relating to Uniform 
System of Accounts; sec.25.73 relating to Financial and Operating Reports; 
sec.25.74 relating to Reports on Sale of Property and Mergers; sec.25.75 
relating to Reports on Sale of 50% or More of Stock; sec.25.76 relating to Gross 
Receipts Assessment Report; sec.25.77 relating to Payments, Compensation, and 
Other Expenditures; sec.25.78 relating to State Agency Utility Account 
Information; sec.25.79 relating to Equal Opportunity Reports; sec.25.80 relating 
to Annual Report on Historically Underutilized Businesses; sec.25.81 relating to 
Service Quality Reports; sec.25.82 relating to Fuel Cost and Use Information; 
sec.25.83 relating to Construction Reports; sec.25.89 relating to Report of 
Loads and Resources; and sec.25.100 relating to Other Records, Reports, and 
Information that May be Required. These new sections are proposed for Chapter 
25, Subchapter D relating to Records, Reports, and Other Required Information. 
Project Number 19121 has been assigned to this proceeding.
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. 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 the new 
chapter.
General changes to rule language:
The proposed new sections reflect different section, subsection, and paragraph 
designations due to the reorganization of the rules. Citations to the Public 
Utility Regulatory Act have been updated to conform to the Texas Utilities Code 
throughout the sections and citations to other sections of the commission's 
rules have been updated to reflect the new section designations. Some text has 
been proposed for deletion as unnecessary in the new sections, as a result of 
making the new chapters industry specific; or because the dates and requirements 
in the text no longer apply due to the passage of time and/or fulfillment of the 
requirements. References to the terms "public utility" or "utility" have been 
changed to "electric utility" where needed as a result of changes in the Texas 
Utilities Code. The Texas Register will publish these sections as all new text. 
Persons who desire a copy of the proposed new sections as they reflect changes 
to existing sections in Chapter 23 may obtain a redlined version from the 
commission's Central Records under Project Number 19121.
Other changes specific to each section:
Proposed new sec.25.71 will replace corresponding sec.23.11 of this title 
(relating to General Reports), subsections (a), (l), (m), (n), (p), (q), and 
(r); and sec.23.14 of this title (relating to Maintenance and Location of 
Records). The commission proposes deletion of subsections (j) and (o) of 
sec.23.11 as unnecessary, with no new corresponding section in Chapter 25. 
Subsection (f)(3) has been added because quality of service reports are now 
filed semi-annually, instead of quarterly.
Proposed new sec.25.72 will replace corresponding sec.23.12(a) of this title 
(relating to Financial Records and Reports). There are no proposed changes in 
the text of sec.25.72 to that of corresponding sec.23.12(a), other than the 
general changes previously discussed.
Proposed new sec.25.73 will replace corresponding sec.23.11(k) and sec.23.12(b) 
of this title. There are no proposed changes in the text of sec.25.73 to that of 
the corresponding sections, other than the general changes previously discussed.
Proposed new sec.25.74 will replace corresponding sec.23.12(c); proposed new 
sec.25.75 will replace corresponding sec.23.12(d); and proposed new sec.25.76 
will replace corresponding sec.23.11(e) of this title. There are no proposed 
changes in the text of sec.sec.25.74, 25.75 and 25.76 to that of the 
corresponding sections, other than the general changes previously discussed.
Proposed new sec.25.77 will replace corresponding sec.23.11(d) of this title, 
which requires that an annual report be filed with the commission detailing each 
expenditure made to a single payee exceeding $250. The commission proposes 
raising the amount to $500, and specifically request comments on the effect that 
raising this amount may have on protecting the public interest.
Proposed new sec.25.78 will replace corresponding sec.23.11(h) of this title. In 
this section, the definition of "center" is proposed for deletion, and where the 
term was used in sec.23.11(h), it is replaced with the actual definition. The 
definitions of "certificated telecommunications utility" and "electric utility" 
are proposed for movement to the proposed new definitions section (sec.25.5). 
The commission proposes moving all definitions that apply throughout the rules 
to one definitions section. The only definitions that will remain in a different 
section are terms that are unique to that section only. The definition for 
"state agency" will remain in sec.25.78.
Proposed new sec.25.79 will replace corresponding sec.23.11(f) and (q)(8) of 
this title. There are no proposed changes in the text of sec.25.79 to that of 
the corresponding section, other than the general changes previously discussed.
Proposed new sec.25.80 will replace corresponding sec.23.11(g) of this title. 
Proposed sec.25.80(b)(4) and (b)(5) are new subsections without a corresponding 
section in Chapter 23. These subsections have been added to the historically 
underutilized business (HUB) reporting requirements to eliminate confusion that 
occurred in past reports concerning how electric utilities determined which of 
its vendors are HUBs; and purchases within Texas for utilities providing multi-
state service. The proposed language in sec.25.80(c) (corresponding 
sec.23.11(g)(3)) has been changed to reflect the same language as adopted in 
sec.25.4.
Proposed new sec.25.81 will replace corresponding sec.23.11(i) of this title. 
The proposed language changes "quarterly" reporting to "semi-annually" reporting 
to reflect the changes in the quality of service reporting forms adopted in 
Project Number 15013 - Proposed Commission Rules for Establishing Service 
Quality Standards.
Proposed new sec.25.82 will replace corresponding sec.23.11(b) of this title. 
There are no proposed changes in the text of sec.25.82 to that of the 
corresponding section, other than the general changes previously discussed.
Proposed new sec.25.83 will replace corresponding sec.23.13(b) of this title 
(relating to Statistical Reports). The language relating to new generating 
plants is proposed for deletion.
Proposed new sec.25.89 will replace corresponding sec.23.13(c) of this title. 
There are no proposed changes in the text of sec.25.89 to that of the 
corresponding section, other than the general changes previously discussed.
Proposed sec.25.100 is a new section of the rules with no corresponding section 
in Chapter 23. This section is for the purpose of assisting persons in locating 
requirements for other records, reports and information that may be located 
throughout the substantive rules.
Section 23.11(c) concerning relationships with affiliates is being replaced by 
sec.25.84 under Project Number 17549 - Code of Conduct for Electric Utilities 
and Their Affiliates.
The commission is proposing eliminating sec.23.13(a) concerning the capital 
needs and acquisition plan and sec.23.13(e) concerning other statistical 
reports. Therefore these subsections have no corresponding section in the new 
chapter.
Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined that 
for each year of the first five-year period the proposed sections are 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 sections are in effect the public benefit anticipated as a result of 
enforcing these sections will be that the commission is able to adequately 
monitor the activities of electric utilities to ensure compliance with the 
Public Utility Regulatory Act, Texas Utilities Code, sec.sec.11.001-63.063, 
other state statutes and/or federal requirements, and to assure the availability 
of safe, reliable and high quality electric service at just and reasonable 
rates. The proposed new sections will provide rules that clarify commission 
procedures and more accurately reflect current statutes. There will be no effect 
on small businesses as a result of enforcing this section. The cost and benefit 
assessments that were performed when sec.sec.23.11, 23.12, 23.13 and 23.14 were 
originally adopted or readopted as amended in Chapter 23 are still accurate. 
There are no additional anticipated economic costs to persons who are required 
to comply with these new sections as a result of moving the sections in Chapter 
23 to new Chapter 25.
Ms. Mueller has also determined that for each year of the first five years the 
proposed sections are 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 sections (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 19121, Chapter 25 - Electric.
The new sections are 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 Reference to Statutes: Public Utility Regulatory Act sec.14.002

<nl>sec.25.71. General Procedures, Requirements and Penalties.<ol>
<nl>(a) Who shall file. The record keeping, reporting, and filing requirements 
listed in this subchapter shall apply to all electric utilities operating in the 
State of Texas, excluding municipally owned utilities, unless otherwise 
specified. Moreover, the provisions of this subchapter are applicable to all 
services provided by such carriers.<ol>
<nl>(b) Initial reporting. Unless otherwise specified in a section of this 
subchapter, periodic reporting shall commence as follows:<ol>
<nl>(1) Quarterly reporting. For all electric utilities and other persons 
required to file records, reports and other required information under this 
chapter, who are not already filing quarterly with the commission as ofthe 
effective date of this section, reporting shall begin with an initial filing for 
the first fiscal quarter for which information is available.<ol>
<nl>(2) Annual Reporting. For all electric utilities and other persons required 
to file records, reports and other required information under this chapter, who 
are not already filing annually with the commission as of the effective date of 
this section, reporting shall begin with an initial filing for the most recent 
fiscal year ending on or prior to April 30 of the first year the record, report 
or other required information must be filed with the commission.<ol>
<nl>(c) Maintenance and location of records. All records, books, accounts, or 
memoranda required of an electric utility, as defined in the Public Utility 
Regulatory Act, sec.31.002(1) may be kept outside the State of Texas so long as 
those records, books, accounts, or memoranda are returned to the state for any 
inspection by the commission that is authorized by the Public Utility Regulatory 
Act.<ol>
<nl>(d) Report attestation. All reports submitted to the commission shall be 
attested to by an officer or manager of the electric utility under whose 
direction the report is prepared, or if under trust or receivership, by the 
receiver or a duly authorized person, or if not incorporated, by the proprietor, 
manager, superintendent, or other official in responsible charge of the electric 
utility's operation.<ol>
<nl>(e) Information omitted from reports. The commission may waive the reporting 
of any information required in this subchapter if it determines that it is 
either impractical or unduly burdensome on any electric utility to furnish the 
requested information. If any such information is omittedby permission of the 
commission, a written explanation of the omission must be stated in the 
report.<ol>
<nl>(f) Due dates of reports. All periodic reports must be received by the 
commission on or before the following due dates unless otherwise specified in 
this subchapter.<ol>
<nl>(1) Monthly reports: 45 days after the end of the reported period.<ol>
<nl>(2) Quarterly reports other than shareholder reports: 45 days after the end 
of the reported period.<ol>
<nl>(3) Semi-annual reports: 45 days after the end of the reported period.<ol>
<nl>(4) Annual earnings report: May 15 of each year.<ol>
<nl>(5) Shareholder annual reports: seven days from the date of mailing the same 
to shareholders.<ol>
<nl>(6) Securities and Exchange Commission Filings: 15 days from the initial 
filing date with the Securities and Exchange Commission.<ol>
<nl>(7) Special or additional reports: as may be prescribed by the 
commission.<ol>
<nl>(8) Annual reports required by sec.25.76 of this title (relating to Gross 
Receipts Assessment Report) and sec.25.77 of this title (relating to Payments, 
Compensation, and Other Expenditures) shall be due June 1 of each year and shall 
reflect the transactions for the most recent calendar year.<ol>
<nl>(g) Special and additional reports. Each electric utility, including 
municipally owned utilities, shall report on forms prescribed by the commission 
special and additional information as requested which relates to the operation 
of the business of the electric utility.<ol>
<nl>(h) Penalty for refusal to file on time. In addition to penalties prescribed 
by law, and sec.22.246 of the title (relating to Administrative Penalties) the 
commission may disallow for rate making purposes the costs related to the 
activities for which information was requested and not timely filed.<ol>

<nl>sec.25.72. Uniform System of Accounts.<ol>
<nl>(a) Every electric utility shall keep uniform accounts as prescribed by the 
commission of all business transacted. The classification of electric utilities, 
index of accounts, definitions, and general instructions pertaining to each 
uniform system of accounts as amended from time to time shall be adhered to at 
all times, unless provided otherwise by these rules, or specifically permitted 
by the commission.<ol>
<nl>(b) Classification. For the purposes of accounting and reporting to the 
commission, each electric utility shall be classified as follows:<ol>
<nl>(1) Major: electric utilities that had in each of the last three consecutive 
years sales or transmission service that exceeded any one or more of the 
following:<ol>
<nl>(A) one million megawatt-hours of total sales;<ol>
<nl>(B) 100 megawatt-hours of sales for resale;<ol>
<nl>(C) 500 megawatt-hours of gross interchange out; or<ol>
<nl>(D) 500 megawatt-hours of wheeling for others (deliveries plus losses).<ol>
<nl>(2) Nonmajor: electric utilities that are not classified as "major" as 
defined in paragraph (1) of this subsection.<ol>
<nl>(c) System of accounts. For the purpose of accounting and reporting to the 
commission, each electric utility shall maintain its books and records in 
accordance with the following prescribed uniform system of accounts:<ol>
<nl>(1) Major: uniform system of accounts as adopted and amended by the Federal 
Energy Regulatory Commission for major electric utilitiesor other commission-
approved system of accounts as will be adequately informative for all regulatory 
purposes.<ol>
<nl>(2) Nonmajor: uniform system of accounts as adopted and amended by the 
Federal Energy Regulatory Commission for nonmajor electric utilities or other 
commission-approved system of accounts as will be adequately informative for all 
regulatory purposes.<ol>
<nl>(d) Other system of accounts. When a utility has adopted a uniform system of 
accounts as may be required by a state or federal agency other than those 
previously mentioned in this section (e.g. United States Department of 
Agriculture - Rural Utilities Service), that system of accounts may be adopted 
by the electric utility after notification to the commission.<ol>
<nl>(e) Merchandise accounting. Each electric utility shall keep separate 
accounts to show all revenues and expenses resulting from the sale or lease of 
appliances, fixtures, equipment, directory advertising, or other 
merchandise.<ol>
<nl>(f) Accounting period. Each electric utility shall keep its books on a 
monthly basis so that for each month all transactions applicable thereto shall 
be entered in the books of the electric utility.<ol>
<nl>(g) Rules related to capitalization of construction costs. Each electric 
utility shall accrue allowance for funds used during construction on 
construction work in progress to the extent not included in rate base. In the 
event construction work in progress is included in rate base pursuant to the 
rules in sec.23.21(c)(2)(D) of this title (relating to Cost of Service), 
capitalization of allowance for funds used during construction for electric 
utilities is allowed.<ol>

<nl>sec.25.73. Financial and Operating Reports.<ol>
<nl>(a) Annual reports.<ol>
<nl>(1) Each major electric utility shall file with the commission the same 
annual report required by the Federal Energy Regulatory Commission or United 
States Department of Agriculture - Rural Utilities Service. Such annual reports 
shall be filed with the commission on the same dates as required to be filed by 
the Federal Energy Regulatory Commission or United States Department of 
Agriculture - Rural Utilities Service, whichever is applicable. Major electric 
utilities which are not required to file such reports shall file with the 
commission an annual report on the form prescribed by the Federal Energy 
Regulatory Commission.<ol>
<nl>(2) Each nonmajor electric utility shall file with the
 commission the same annual report as is required of such electric utility
 by the Federal Energy Regulatory Commission or United States Department of
 Agriculture - Rural Utilities Service. Such annual reports shall be filed
 with the commission on the same dates as required to be filed by the Federal
 Energy Regulatory Commission or United States Department of Agriculture Rural
 Utilities Service, whichever is applicable.<ol>
<nl>
(3) Each electric utility holding company subject to
 annual reporting to the Securities and Exchange Commission and each electric
 utility shall file with the commission three copies of its annual report
to shareholders, customers, or members. Unless included in the annual report
 to shareholders, customers, or members, each electric utility shall file
concurrently with the filing of such report three copies of any audited 
financial
statements that may have been prepared on its behalf.<ol>
<nl>

(b) Annual earnings report. Each electric utility shall file
 with the commission, on commission prescribed forms, an earnings report 
providing
 the information required to enable the commission to properly monitor electric
 utilities within the state.<ol>

<nl>(1) Each electric utility shall report information related
 to the most recent calendar year as specified in the instructions to the
 report.<ol>

<nl>(2) Each electric utility shall file three copies of
 the commission-prescribed earnings report and shall electronically transmit
 one copy of the report no later than the date prescribed in sec.25.71(f)(4)
 of this title (relating to General Procedures, Requirements and Penalties).
<ol>
<nl>
(3) On the due date of the annual earnings report, each
 electric utility with a rate proceeding pending before the commission, pursuant
 to the Public Utility Regulatory Act, Chapter 36, in which a rate filing
package is required, may submit an abbreviated earnings report. Specifications
for the abbreviated filing are included in the General Filing Instructions
for the annual earnings report.<ol>
<nl>

(c) Securities and Exchange Commission reports. Each electric
 utility and electric utility holding company subject to reporting requirements
 of the Securities and Exchange Commission shall file three copies of each
 required report with the commission. Three copies of each such report including
 10-Ks, 10-Qs, 8-Ks, Annual Reports, and Registration Statements filed with
 the Securities and Exchange Commission shall be submitted to the commission
 no later than 15 days from the initial filing date with the Securities and
 Exchange Commission.<ol>
<nl>

(d) Duplicate information. An electric utility shall not be
 required to file with the commission forms or reports which duplicate 
information
 already on file with the commission.<ol>



<nl>sec.25.74. Reports on Sale of Property
 and Mergers.<ol>


<nl>(a) An electric utility shall not sell, acquire, lease or
 rent any plant as an operating unit or system in the State of Texas for a
 total consideration in excess of $100,000 unless the electric utility reports
 such transaction to the commission while pending or within 30 days after
 closing.<ol>


<nl>(b) An electric utility shall not merge or consolidate with
 another electric utility or public utility operating in the State of Texas
 unless the electric utility reports such transaction to the commission while
 pending or within 30 days after closing.<ol>
<nl>

(c) Electric utilities shall not purchase voting stock in
 another electric utility or public utility doing business in the State of
 Texas, unless the electric utility reports such purchase to the commission
 while pending or within 30 days after closing.<ol>


<nl>(d) Electric utilities shall not loan money, stocks, bonds,
 notes or other evidences of indebtedness to any corporation or person owning
 or holding directly or indirectly any stock of the electric utility unless
 the electric utility reports such transaction to the commission while pending
 or within 30 days after closing. A properly filed tariff change with respect
 to energy conservation loans available to customers, who may or may not be
 shareholders as described in this subsection, will be considered adequate
 reporting to the commission.<ol>



<nl>sec.25.75.</shno><h>Reports on Sale of 50%
 or more of Stock.<ol>


<nl>All transactions involving the sale of 50% or more of the stock of
 an electric utility shall be reported to the commission while pending or
within 30 days after closing.<ol>



<nl>sec.25.76. Gross Receipts Assessment
 Report.<ol>


<nl>All electric utilities subject to the jurisdiction of the commission
 shall file a gross receipts assessment report with the state comptroller
reflecting those gross receipts subject to the assessment as required by
the Public Utility Regulatory Act on a form prescribed by the state comptroller.
These reports shall be required on an annual basis for those companies that
have elected to remit their assessment annually and on a quarterly basis
for those companies that have elected to remit their assessment quarterly.
Such reports and assessments shall be remitted in accordance with the Public
Utility Regulatory Act, Chapter 16, Subchapter A.<ol>

<nl>sec.

25.77. Payments, Compensation,
 and Other Expenditures.<ol>


<nl>An annual report shall be filed with the commission providing information
 for each of the following classes of payments, compensation (other than salary
 or wages subject to the withholding of federal income tax) and expenditures
 made relating to matters in Texas, and detailing (by payee) each expenditure
 (and for the purposes of this section any series of expenditures) made to
 a single payee exceeding $500 for:<ol>

<nl>(1) business gifts and entertainment;<ol>

<nl>(2) institutional, consumption-inducing, and other advertising
 expenses;<ol>
<nl>
(3) public relations expenses;<ol>

<nl>(4) legislative matters, including advocacy before any
 legislative body;<ol>

<nl>(5) representation before any governmental agency or
 body, including municipalities;<ol>

<nl>(6) legal expenses not accounted for in other categories
 of this subsection;<ol>

<nl>(7) charitable, civic, religious, and political contributions
 and donations;<ol>

<nl>(8) all dues or membership fees paid, including an identification
 of that portion of those dues or membership fees paid to a trade association,
 industry group, or other organization formed to advance, or whose activities
 are or become primarily directed toward advancing, utility interests, which
 relate to activities listed in paragraphs (1)-(7) of this subsection if known
 following reasonable inquiry by the utility; and<ol>

<nl>(9) other expenses as deemed appropriate by the commission.
<ol>

<nl>

sec.25.78. State Agency Utility Account
 Information.<ol>


<nl>(a) Application. The requirements of this section shall apply
 to any electric utility, including a municipally-owned electric utility.
<ol>


<nl>(b) In this section, "State agency" shall have the following
 meaning:<ol>

<nl>(1) any board, commission, department, office, or other agency
 in the executive branch of state government that is created by the constitution
 or a statute of the state;<ol>
<nl>
(2) an institution of higher education as defined by
 sec.61.003, Education Code, other than a public junior college;<ol>

<nl>(3) the legislature or a legislative agency; or<ol>

<nl>(4) the Supreme Court of Texas, the Court of Criminal
 Appeals of Texas, a court of civil appeals, a state judicial agency, or the
 State Bar of Texas.<ol>


<nl>(c) An electric utility shall provide the information required
 in subsection (e) of this section for each state agency account in the 
prescribed
 form and medium. The electric utility shall obtain from the General Services
 Commission or its designee a copy of the field layouts and electronic format
 that the electric utility shall use. The General Services Commission or its
 designee shall notify the electric utility of any changes to the field layouts
 and electronic format with sufficient time for the electric utility to submit
 the information required by this subsection in a timely manner. Such form
 and medium must make the reports easy to compile and analyze in a manner
which is not unreasonably costly, and to the extent possible, the General
Services Commission or its designee will accommodate the electric utilities'
electronic formats.<ol>


<nl>(d) An electric utility shall retain all billing records for
 each state agency account for at least four years from the billing date,
notwithstanding any other commission rule relating to the retention of billing
records that may provide for a shorter retention period.<ol>


<nl>(e) An electric utility shall:<ol>

<nl>(1) each year file the monthly billing information for each
 state agency account required by this subsection within 45 days after the
 end of the reporting period for the six months ending with the February billing
 period and for the six months ending with the August billing period.<ol>
<nl>
(2) provide in the prescribed form the following information
 for each state agency account:<ol>

<nl>(A) Utility name: name of the electric utility providing service;
<ol>


<nl>(B) Account Name: name of the state agency receiving service
 from the electric utility;<ol>
<nl>

(C) Account Number;<ol>


<nl>(D) Account Address: the address of the facility being served
 by the electric utility, or, if that is not available, the service location;
<ol>


<nl>(E) SIC Code: Standard Industrial Code number applicable to
 facilities served at the account, if available;<ol>


<nl>(F) Account Description: descriptive information available
 to the electric utility regarding the nature of the facilities served at
the account, (e.g., office building, traffic signal, etc.) if available;<ol>



<nl>(G) Rate Class: name of the rate class under which service
 is provided (e.g., Residential, General Service, Highway Safety Lighting,
 etc.);<ol>
<nl>

(H) Rate Code: the code number used by the electric utility
 to identify the rate class under which service is provided;<ol>
<nl>

(I) Service Voltage: the specific service voltage (e.g., 480
 volts, 12,470, 69,000, etc.) if available, otherwise provide general voltage
 level (e.g., secondary, primary, transmission);<ol>
<nl>

(J) Read Date: the date on which the meter was read during
 the billing period;<ol>
<nl>

(K) Kilowatt-Hour Meter Number: the serial number for the
 kilowatt-hour meter;<ol>
<nl>

(L) Kilowatt-Hour Multiplier: the multiplier used to determine
 kilowatt-hour consumption based on the meter reading;<ol>
<nl>

(M) Monthly kWh: the number of kilowatt-hours used for billing
 purposes;<ol>
<nl>

(N) Demand Meter Number: the serial number for the demand
 meter if different from that of the kilowatt-hour meter;<ol>
<nl>

(O) Demand Meter Multiplier: the multiplier used to determine
 demand based on the meter reading;<ol>
<nl>

(P) Demand Reading: the reading taken from the demand meter,
 stated in kilowatts or kilovolt-amperes;<ol>
<nl>

(Q) Billing Demand: the demand amount used for billing purposes,
 in kilowatts or kilovolt-amperes;<ol>
<nl>

(R) Metered Demand: the demand amount measured during the
 billing period, stated in kilowatts or kilovolt-amperes;<ol>
<nl>

(S) KVAR: reactive power measurement for the billing period,
 if available;<ol>
<nl>

(T) Power Factor: the ratio of real power (kW) to apparent
 power (kVa), if available;<ol>
<nl>

(U) Customer Revenue: the portion of the bill related to the
 monthly customer charge or facilities charge, if available;<ol>


<nl>(V) Power Cost Recovery Factor: (a) the PCRF rate for the
 period that is assessed based on energy usage; (b) the PCRF rate for the
period that is assessed based on demand (if applicable); and (c) the total
PCRF charge for the period;<ol>
<nl>

(W) Energy Revenue: the portion of the bill related to the
 monthly energy charge(s), if available;<ol>
<nl>

(X) Demand Revenue: the portion of the bill related to the
 monthly demand charge(s), if available;<ol>
<nl>

(Y) Base Revenue: the portion of the bill related to the non-fuel
 charges, including customer, energy, and demand charges, if available;<ol>
<nl>

(Z) Fuel Revenue: the portion of the bill related to fuel and/or
 purchased power;<ol>
<nl>

(AA) Other Revenue: the portion of the bill related to taxes
 or other miscellaneous charges;<ol>
<nl>

(BB) Other Charges/Credits: the amount of any non-recurring
 charges or other credits, such as fuel credits and margin credits;<ol>


<nl>(CC)Explanation: an explanation of the nature of the charge/credit
 included in Other Charges/Credits;<ol>
<nl>

(DD)Total Revenue: the total monthly bill, including base,
 fuel, and other charges;<ol>
<nl>

(EE) Load Factor: the ratio of the average demand during the
 billing period to the maximum demand; and<ol>
<nl>

 (FF) Cost Per Kilowatt-Hour: the total cost during the billing
 period divided by the number of kilowatt-hours.<ol>

<nl>(3) provide the information required by this section
 to the General Services Commission or its designee by electronic transfer,
 if feasible, or, otherwise, by diskette. Only in cases of extreme undue 
hardship
 will it be permissible for an electric utility to provide the information
 in paper documents.<ol>


<nl>(f) Information provided pursuant to this section shall be
 subject to any protections of the Texas Government Code, Public Information
 Act, Chapter 552. Any request for information required by this section shall
 be filed with the Office of the Attorney General or its designee.<ol>
<nl>

(g) The commission, electric utilities, and the Office of
 the Attorney General's designee, as well as representatives of interested
 state agencies, shall continue to evaluate the effectiveness and efficiency
 of the public monitoring and verification system for state agency customers
 provided in this section.<ol>
<nl>

(h) An electric utility shall make a good faith effort to
 provide all the information required by this section. It is a violation of
 this section for any information to be omitted from the report unless a good
 faith reason exists for less than full compliance. Examples of good faith
 reasons for not providing a complete report include: technical limitations
 that cannot be corrected without undue expense, unavailability of the 
particular
 information on an electric utility's billing system or database, information
 that cannot reasonably be made available in the form requested, waiver by
 commission order, or written waiver by the Office of the Attorney General
 or its designee. Unless otherwise challenged in a complaint proceeding by
 the Office of the Attorney General as set forth herein, an electric utility
 is presumed to have made a good faith effort to provide the required 
information
 and is not required to seek any type of advance waiver. In the event an 
electric
 utility does not provide a complete report, the Office of the Attorney General
 may file a complaint with the commission. In any such complaint proceeding,
 the electric utility shall have the burden of showing the omission was in
 good faith.<ol>

<nl>

sec.25.79. Equal Opportunity Reports.<ol>



<nl>(a) The term "minority group members," when used within this
 section, shall include only members of the following groups:<ol>

<nl>(1) African-Americans;<ol>
<nl>
(2) American Indians;<ol>

<nl>(3) Asian-Americans;<ol>
<nl>
(4) Hispanic-Americans and other Americans of Hispanic
 origin; and<ol>
<nl>
(5) women.<ol>


<nl>(b) Each electric utility that files any form with local,
 state or federal governmental agencies relating to equal employment 
opportunities
 for minority group members, (e.g., EEOC Form EEO-1, FCC Form 395, RUS Form
 268, etc.) shall file copies of such completed form with the commission.
If such form submitted by a multi-jurisdictional electric utility does not
indicate Texas-specific numbers, the electric utility shall also prepare,
and file with the commission a form, in the same format and based on the
numbers contained in the form previously filed with local, state or federal
governmental agencies, indicating Texas-specific numbers. Each electric utility
shall also file copies of any other forms required to be filed with local,
state or federal governmental agencies which contain the same or similar
information, such as personnel data identifying numbers and occupations of
minority group members employed by the electric utility, and employment goals
relating thereto, if any.<ol>
<nl>

(c) Any additional information relating to the matters described
 in this section may be submitted at the electric utility's option.<ol>
<nl>

(d) Any electric utility filing with the commission any documents
 described in subsections (b) and (c) of this section shall file two copies
 of such documents with the commission's filing clerk under the project number
 assigned by the Public Utility Commission's Central Records Office for that
 year's filings. Utilities shall obtain the project number by contacting Central
 Records.<ol>
<nl>

(e) An electric utility that files a report with local, state
 or federal governmental agencies and that is required by this section to
file such report with the commission must file the report by February 15
of the year it is filed with the local, state or federal agencies. If the
report is filed with local, state or federal agencies after February 15,
the electric utility shall file the report with the commission by February
15 of the next year.<ol>
<nl>

(f) On May 1 of each year, the commission shall submit a report
 concerning the filed reports to the Texas legislature.<ol>



<nl>sec.25.80. Annual Report on Historically
 Underutilized Businesses.<ol>
<nl>

(a) In this section, "historically underutilized business"
 has the same meaning as in Texas Government Code, sec.2161.001(2), as it
 may be amended.<ol>
<nl>

(b) Every electric utility shall report its use of historically
 underutilized businesses (HUBs) to the commission on a form approved by the
 commission. An electric utility may submit the report on paper, or on paper
 and on a diskette (in Lotus 1-2-3 (*.wk*) or Microsoft Excel (*.xl*) format).
<ol>

<nl>(1) Each electric cooperative utility shall on or before December
 30 of each year submit to the commission a comprehensive annual report 
detailing
 its use of HUBs for the four quarters ending on September 30 of the year
the report is filed, on the Small Utilities HUB Report form.<ol>
<nl>
(2) Every electric utility other than those specified
 in paragraph (1) of this subsection shall on or before December 30 of each
 year submit to the commission a comprehensive annual report detailing its
 use of HUBs for the four quarters ending on September 30 of the year the
report is filed, on the Large Utilities HUB Report form.<ol>

<nl>(3) Each electric utility wishing to report indirect
 HUB procurements may use the Supplemental HUB report form.<ol>
<nl>
(4) Each electric utility shall submit a text description
 of the method by which it determined which of its vendors is a HUB.<ol>

<nl>(5) Each electric utility which has more than 1,000 customers
 in a state other than Texas, or which purchases more than 10% of its goods
 and services (other than fuel, purchased power, and wheeling) from vendors
 in a state other than Texas, shall, if out-of-state vendors are included,
 state Texas data separately from data for other states.<ol>
<nl>
(6) Each electric utility shall also file any other documents
 it believes appropriate to convey an accurate impression of its use of HUBs.
<ol>


<nl>(c) This section may not be used to discriminate against any
 citizen on the basis of race, nationality, color, religion, sex, or martial
 status.<ol>


<nl>(d)This section does not create a new cause of action, either
 public or private.<ol>



<nl>sec.25.81. Service Quality Reports.
<ol>
<nl>

Service quality reports shall be submitted semi-annually on a form
 prescribed by the commission.<ol>



<nl>sec.25.82. Fuel Cost and Use Information.<ol>



<nl>Copies of all presently effective and future fuel purchase or sale
 contracts shall be available for examination or filed with the commission
 on request. Each generating electric utility, including municipally owned
 generating electric utilities, shall file monthly fuel reports on forms 
prescribed
 by the commission.<ol>



<nl>sec.25.83. Construction Reports.<ol>
<nl>


Each electric utility constructing a facility requiring reporting to
 the commission under sec.23.31(c) of this title (relating to Certification
 Criteria) shall report to the commission on the commission-prescribed 
preliminary
 construction report form prior to the commencement of construction.<ol>



<nl>sec.25.89. Report of Loads and Resources.<ol>



<nl>Report of loads and resources. Each electric utility that submits an
 annual report of loads and resources to the Electric Reliability Council
of Texas independent system operator pursuant to sec.23.70(e) of this title
 (relating to Terms and Conditions of Open-Access Comparable Transmission
 Service) or other reliability council shall file a copy with the commission
and maintain a copy of supporting documentation for five years. If no such
annual report is prepared, the utility shall maintain a record of the load
and resource documents prepared in the normal course of its activities for
five years.<ol>

<nl>

sec.25.100. Other Records, Reports,
 and Information that May be Required.<ol>


<nl>The following paragraphs contain other sections of this title that
 have additional requirements for records, reports and other information 
relating
 to electric service, that electric utilities, apartment owners or other persons
 may be required to provide to the commission. This section is to assist persons
 in locating the requirements. Failure to list a section which requires 
additional
 filings in this section does not relieve the person responsible for filing
 the information of the requirement.<ol>
<nl>
(1) Section 23.18(c), (d), and (e) of this title (relating
 to Foreign Utility Company Ownership by Exempt Holding Companies;<ol>

<nl>(2) Section 23.19(d) and (e) of this title (relating
 to Registration of Power Marketers and Exempt Wholesale Generators);<ol>
<nl>
(3) Section 23.21(c)(1)(F)(iv) and (e) of this title
 (relating to Cost of Service);<ol>

<nl>(4) Section 23.23(b)(3), (5), (7) and (8), (c)(3) and
 (9) of this title (relating to Rate Design);<ol>

<nl>(5) Section 23.24(c) of this title (relating to Form
 and Filing of Tariffs);<ol>

<nl>(6) Section 23.31(c)(2)(D) of this title (relating to
 Certification Criteria);<ol>

<nl>(7) Section 23.41(c) of this title (relating to Customer
 Relations);<ol>

<nl>(8) Section 23.43(k) of this title (relating to Applicant
 and Customer Deposit);<ol>

<nl>(9) Section 23.44(d) of this title (relating to New Construction);
<ol>

<nl>(10) Section 23.48 (c), (d) and (f) of this title (relating
 to Continuity of Service);<ol>

<nl>(11) Section 23.50(c) of this title (relating to Central
 System or Nonsubmetered Master-Metered Utilities);<ol>

<nl>(12) Section 23.51(b) of this title (relating to Utility
 Submetering);<ol>

<nl>(13) Section 23.66(c)(1), (2) and (3), (h)(3) of this
 title (relating to Arrangements Between Qualifying Facilities and Electric
 Utilities);<ol>

<nl>(14) Section 23.67(r), (t), and (u) of this title (relating
 to Open Access Comparable Transmission Service);<ol>

<nl>(15) Section 23.70(h)(7), and (o) of this title (relating
 to Terms and Conditions of Open- Access Comparable Transmission Service);
<ol>

<nl>(15) Section 25.122 of this title (relating to Meter
 Records);<ol>

<nl>(16) Section 25.161(c), (d), and (e) of this title (relating
 to Integrated Resource Planning);<ol>

<nl>(17) Section 25.165(a) of this title (relating to Preliminary
 Integrated Resource Plan);<ol>

<nl>(18) Section 25.169(c) of this title (relating to Approval
 of Resources Procured Through Solicitation); and<ol>

<nl>(19) Section 25.301(b)(3) of this title (relating to
 Nuclear Decommissioning Trusts).<ol>

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 April
 31, 1998.

TRD-9806166


Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 936-7308






Chapter 26. Substantive Rules Applicable to Telecommunications
 Service Providers


Subchapter A. General Provisions


16 TAC sec.26.5

The Public Utility Commission of Texas (commission) proposes
 new sec.26.5, relating to Definitions. Project Number 19120 has been assigned
 to this proceeding. The proposed new section will replace sec.23.3 of this
 title (relating to Definitions) as it concerns telecommunications service.
 Proposed new sec.26.5 gathers all the general definitions related to 
telecommunications
 service that were located throughout Chapter 23 of this title into one section.
 The only definitions that will remain in other sections once all the 
telecommunications
 sections are moved to Chapter 26 will be definitions that are section specific.


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 commission held three workshops to conduct a preliminary review
 of its rules. As a result of these workshops, the commission 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. Chapter 26 has been established for all commission 
substantive
 rules applicable to telecommunications service providers. The duplicative
 sections of Chapter 23 will be proposed for repeal as each new section is
 proposed for publication in the new chapter.

Some proposed changes have been recommended for the definitions due to:
 (1) making the rule sections industry specific; (2) changes in the Public
 Utility Regulatory Act (PURA), Texas Utilities Code sec.sec.11.001-63.063,
 (Vernon 1998), i.e., definitions of "electric utility" and "public utility";
 (3) Texas Register requirements that definitions
 be consecutively numbered; (4) codification of the Public Utility Regulatory
 Act into the Texas Utilities Code (citation changes); (5) changes in other
 sections of the commission's rules; and (6) changes in paragraph, subparagraph,
 clause and subclause designations as a result of reorganizing the definitions
 into the new section. The Texas Register
 will publish this section as all new text. Persons who desire a copy of the
 proposed definitions in sec.26.5 as they reflect changes to existing 
definitions
 in Chapter 23 may obtain a redlined version from the commission's Central
 Records under Project Number 19120.

Ms. 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 section.

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 definitions that enable persons to better
understand the commission's rules, and that conform to current statutes and
other rule sections. 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 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.
 All comments should refer to Project Number 19120, sec.26.5 - 
Telecommunications
 Definitions.

This new section is proposed under the Public Utility Regulatory
 Act (PURA), Texas Utilities Code Annotated sec.14.002 (Vernon 1998), 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 Reference to Statutes: Public Utility Regulatory Act sec.14.002.




<nl>sec.26.5. Definitions.<ol>


<nl>The following words and terms, when used in this chapter, shall have
 the following meanings, unless the context clearly indicates otherwise:<ol>


<nl>(1) Access customer - Any user of services which are obtained
 from a dominant certificated telecommunications utility access service tariff.
<ol>

<nl>(2) Access services - Dominant certificated telecommunications
 utility services which provide connections for or are related to the 
origination
 or termination of intrastate telecommunications services that are generally,
 but not limited to, interexchange services.<ol>
<nl>
(3) Administrative review - A process under which an
 application may be approved without a formal hearing.<ol>
<nl>
(4) Affected person - means:<ol>
<nl>
(A) a public utility affected by an action of a regulatory
 authority;<ol>
<nl>

(B) a person whose utility service or rates are affected by
 a proceeding before a regulatory authority; or<ol>


<nl>(C) a person who:<ol>

<nl>(i) is a competitor of a public utility with respect to a
 service performed by the utility; or<ol>


<nl>(ii) wants to enter into competition with a public utility.
<ol>

<nl>(5) Affiliate - means:<ol>

<nl>(A) a person who directly or indirectly owns or holds at least
 five percent of the voting securities of a public utility;<ol>


<nl>(B) a person in a chain of successive ownership of at least
 five percent of the voting securities of a public utility;<ol>


<nl>(C) a corporation that has at least five percent of its voting
 securities owned or controlled, directly or indirectly, by a public utility;
<ol>


<nl>(D) a corporation that has at least five percent of its voting
 securities owned or controlled, directly or indirectly, by:<ol>

<nl>(i) a person who directly or indirectly owns or controls at
 least five percent of the voting securities of a public utility; or<ol>


<nl>(ii) a person in a chain of successive ownership of at least
 five percent of the voting securities of a public utility;<ol>


<nl>(E) a person who is an officer or director of a public utility
 or of a corporation in a chain of successive ownership of at least five percent
 of the voting securities of a public utility; or<ol>


<nl>(F) a person determined to be an affiliate under Public Utility
 Regulatory Act sec.11.006.<ol>

<nl>(6) Aggregate customer proprietary network information
 (CPNI) - a configuration of customer proprietary network information that
 has been collected by a telecommunications utility and organized such that
 none of the information will identify an individual customer.<ol>

<nl>(7) Applicant - A person, including the Office of Regulatory
 Affairs, who seeks action from the commission by written application, petition,
 complaint, notice of intent, appeal, or other pleading that initiates a 
proceeding.
<ol>
<nl>
(8) Assumed name - Has the meaning assigned by Texas
 Business and Commerce Code, sec.36.10.<ol>

<nl>(9) Automatic dial announcing device (ADAD) - Any automated
 equipment used for telephone solicitation or collection that:<ol>
<nl>
(A) is capable of storing numbers to be called, or has a random
 or sequential number generator capable of producing numbers to be called;
 and<ol>
<nl>

(B) alone or in conjunction with other equipment, can convey
 a prerecorded or synthesized voice message to the number called without the
 use of a live operator.<ol>
<nl>
(10) Automatic Number Identification (ANI) - The
 automatic transmission by the local switching system of the originating 
telephone
 number to an interexchange or other communications carrier or to the operator
 of a 911 system.<ol>
<nl>
(11) Base rate area - A specific area within an exchange
 area, as set forth in the dominant certificated telecommunications utilities'
 tariffs, maps or descriptions, wherein local exchange service is furnished
 at uniform rates without extra mileage charges.<ol>
<nl>
(12) Basic local telecommunications service - flat rate
 residential and business local exchange telephone service, including primary
 directory listings; tone dialing service; access to operator services; access
 to directory assistance services; access to 911 service where provided by
 a local authority or dual party relay service; the ability to report service
 problems seven days a week; lifeline and tel-assistance services; and any
 other service the commission, after a hearing, determines should be included
 in basic local telecommunications service.<ol>
<nl>
(13) Baud - Unit of signaling speed reflecting the number
 of discrete conditions or signal elements transmitted per second.<ol>
<nl>
(14) Bellcore - Bell Communications Research, Inc.<ol>
<nl>
(15) Bit Error Ratio (BER) - The ratio of the number
 of bits received in error to the total number of bits transmitted in a given
 time interval.<ol>
<nl>
(16) Bit Rate - The rate at which data bits are transmitted
 over a communications path, normally expressed in bits per second.<ol>
<nl>
(17) Bona fide request - A written request to an incumbent
 local exchange company (ILEC) from a certificated telecommunications utility
 or an enhanced service provider, requesting that the ILEC unbundle its 
network/services
 to the extent ordered by the Federal Communications Commission. A bona fide
 request indicates an intent to purchase the service subject to the purchaser
 being able to obtain acceptable rates, terms, and conditions.<ol>
<nl>
(18) Business service - A telecommunications service
 provided a customer where the use is primarily of a business, professional,
institutional or otherwise occupational nature.<ol>
<nl>
(19) Busy hour - The clock hour each day during which
 the greatest usage occurs.<ol>
<nl>
(20) Busy season - That period of the year during which
 the greatest volume of traffic is handled in a switching office.<ol>
<nl>
(21) Call aggregator - Any person or entity that owns
 or otherwise controls telephones intended to be utilized by the public, which
 control is evidenced by the authority to post notices on and/or unblock access
 at the telephone.<ol>
<nl>
(22) Call splashing - Call transferring (whether caller-requested
 or operator service provider-initiated) that results in a call being rated
 and/or billed from a point different from that where the call originated.
<ol>
<nl>
(23) Call transferring - Handing off a call from one
 operator service provider (OSP) to another OSP.<ol>
<nl>
(24) Caller identification materials (caller ID materials)
 - Any advertisements, educational materials, training materials, audio and
 video marketing devices, and any information disseminated about Caller ID
 services.<ol>
<nl>
(25) Caller identification service (caller ID service)
 - A service offered by a telecommunications provider that provides calling
 party information to a device capable of displaying the information.<ol>
<nl>
(26) Calling area - The area within which telecommunications
 service is furnished to customers under a specific schedule of exchange rates.
 A "local" calling area may include more than one exchange area.<ol>
<nl>
(27) Calling party information -<ol>
<nl>
(A) the telephone listing number and/or name of the customer
 from whose telephone instrument a telephone number is dialed; or<ol>
<nl>

(B) other information that may be used to identify the specific
 originating number or originating location of a wire or electronic 
communication
 transmitted by a telephone instrument.<ol>
<nl>
(28) Capitalization - Long-term debt plus total
 equity.<ol>
<nl>
(29) Carrier of choice - An option that allows an individual
 to choose an interexchange carrier for long distance calls made through 
Telecommunications
 Relay Service.<ol>
<nl>
(30) Carrier-initiated change - A change in the telecommunications
 utility serving a customer that was initiated by the telecommunications utility
 to which the customer is changed, whether the switch is made because a customer
 did or did not respond to direct mail solicitation, telemarketing, or other
 actions initiated by the carrier.<ol>
<nl>
(31) Central office - A switching unit in a telecommunications
 system which provides service to the general public, having the necessary
 equipment and operating arrangements for terminating and interconnecting
customer lines and trunks or trunks only.<ol>
<nl>
(32) Census block group (CBG) - A United States Census
 Bureau geographic designation that generally contains between 250 and 550
 housing units.<ol>
<nl>
(33) Certificated service area - The geographic area
 within which a local exchange company has been authorized to provide basic
 local telecommunications services pursuant to a certificate of convenience
 and necessity (CCN) or a certificate of operating authority (COA) issued
by the commission.<ol>
<nl>
(34) Certificated telecommunications utility - A telecommunications
 utility that has been granted either a certificate of convenience and necessity
 (CCN), a certificate of operating authority (COA), or a service provider
certificate of operating authority (SPCOA).<ol>

<nl>(35) Class of service or customer class - A description
 of utility service provided to a customer which denotes such characteristics
 as nature of use (business or residential) or type of rate (flat rate or
message rate). Classes may be further subdivided into grades, denoting 
individual
 or multiparty line or denoting quality of service.<ol>
<nl>
(36) Commission - The Public Utility Commission of Texas.
<ol>
<nl>
(37) Competitive exchange service - Any of the following
 services, when provided on an inter- or intrastate basis within an exchange
 area: central office based PBX- type services for systems of 75 stations
or more; billing and collection services; (high speed private line services
 of 1.544 megabits or greater; customized services; private line and virtual
 private line services; resold or shared local exchange telephone services
 if permitted by tariff; dark fiber services; non-voice data transmission
service when offered as a separate service and not as a component of basic
local telecommunications service; dedicated or virtually dedicated access
services; services for which a local exchange company has been granted authority
to engage in pricing flexibility pursuant to sec.23.27 of this title (relating
to Rate-Setting Flexibility); any service initially provided within an exchange
after October 26, 1992, if first provided by an entity other than the incumbent
local exchange company (companies) certificated to provide service within
that exchange; and any other service the commission declares is not local
exchange telephone service.<ol>
<nl>
(38) Completed call - a call that is answered by the
 called party.<ol>
<nl>
(39) Complex service - The provision of a circuit requiring
 special treatment, special equipment, or special engineering design, including
 but not limited to private lines, WATS, PBX trunks, rotary lines, and special
 assemblies.<ol>
<nl>
(40) Consumer good or service -<ol>
<nl>
(A) real property or tangible or intangible personal property
 that is normally used for personal, family, or household purposes, including
 personal property intended to be attached to or installed in any real property;
<ol>
<nl>

(B) a cemetery lot;<ol>
<nl>

(C) a time-share estate; or<ol>
<nl>

(D) a service related to real or personal property.<ol>
<nl>
(41) Consumer telephone call - An unsolicited call
 made to a residential telephone number to:<ol>
<nl>
(A) solicit a sale of a consumer good or service;<ol>
<nl>

(B) solicit an extension of credit for a consumer good or
 service; or<ol>
<nl>

(C) obtain information that will or may be used to directly
 solicit a sale of a consumer good or service or to extend credit for the
 sale.<ol>
<nl>
(42) Cooperative - An incumbent local exchange company
 that is a cooperative corporation.<ol>
<nl>
(43) Cooperative corporation -<ol>
<nl>
(A) An electric cooperative corporation organized and operating
 under the Electric Cooperative Corporation Act, Texas Utilities Code Annotated,
 Chapter 161, or a predecessor statute to Chapter 161 and operating under
that chapter; or<ol>
<nl>

(B) A telephone cooperative corporation organized under the
 Telephone Cooperative Act, Texas Utilities Code, Chapter 162, or a predecessor
 statute to Chapter 162 and operating under that chapter.<ol>
<nl>
(44) Corporate name - Has the meaning assigned by
 Texas Business Corporation Act, Article sec.2.05.<ol>
<nl>
(45) Corporation - A domestic or foreign corporation,
 joint-stock company, or association, and each lessee, assignee, trustee,
receiver or other successor in interest of the corporation, company, or 
association,
 that has any of the powers or privileges of a corporation not possessed by
 an individual or partnership. The term does not include a municipal 
corporation,
 except as expressly provided by the Public Utility Regulatory Act.<ol>
<nl>
(46) Custom calling-type services - Call management services
 available from a central office switching system including, but not limited
 to, call forwarding, call waiting, caller ID, or automatic recall.<ol>
<nl>
(47) Customer access line - A unit of measurement representing
 a telecommunications circuit or, in the case of ISDN, a telecommunications
 channel designated for a particular customer. One customer access line shall
 be counted for each circuit which is capable of generating usage on the line
 side of the switched network or a private line circuit, regardless of the
 quantity or ownership of customer premises equipment connected to each circuit.
 In the case of multiparty lines, each party shall be counted as a separate
 customer access line.<ol>
<nl>
(48) Customer-initiated change - A change in the telecommunications
 utility serving a customer that is initiated by the customer and is not the
 result of direct mail solicitation, telemarketing, or other actions initiated
 by the carrier.<ol>
<nl>
(49) Customer premises equipment (CPE) - Telephone terminal
 equipment located at a customer's premises. This does not include overvoltage
 protection equipment, inside wiring, coin-operated (or pay) telephones, 
"company-official"
 equipment, mobile telephone equipment, "911" equipment, equipment necessary
 for provision of communications for national defense, or multiplexing equipment
 used to deliver multiple channels to the customer.<ol>
<nl>
(50) Customer proprietary network information (CPNI),
 customer-specific - Any information compiled about a customer by a 
telecommunications
 utility in the normal course of providing telephone service that identifies
 the customer by matching such information with the customer's name, address,
 or billing telephone number. This information includes, but is not limited
 to: line type(s), technical characteristics (e.g., rotary service), class
 of service, current telephone charges, long distance billing record, local
 service billing record, directory assistance charges, usage data, and calling
 patterns.<ol>
<nl>
(51) Customer trouble report - Any oral or written report
 from a customer or user of telecommunications service received by any 
telecommunications
 utility relating to a physical defect, difficulty, or dissatisfaction with
 the service provided by the telecommunications utility's facilities. Each
 telephone or PBX switchboard position reported in trouble shall be counted
 as a separate report when several items are reported by one customer at the
 same time, unless the group of troubles so reported is clearly related to
 a common cause.<ol>
<nl>
(52) dBrn - A unit used to express noise power relative
 to one Pico watt (-90 dBm).<ol>
<nl>
(53) dBrnC - Noise power in dBrn, measured with C-message
 weighting.<ol>
<nl>
(54) dBrnCO - Noise power in dBrnC referred to or measured
 at a zero transmission level point.<ol>
<nl>
(55) D-Channel - The integrated-services-digital-network
 out-of-band signaling channel.<ol>
<nl>
(56) Dedicated signaling transport - Transmission of
 out-of-band signaling information between an access customer's common channel
 signaling network and a dominant certificated telecommunications utility's
 signaling transport point on facilities dedicated to the use of a single
customer.<ol>
<nl>
(57) Depreciation expenses - The charges based on the
 depreciation accrual rates designed to spread the cost recovery of the property
 over its economic life.<ol>
<nl>
(58) Direct-trunked transport - Transmission of traffic
 between the serving wire center and another dominant certificated 
telecommunications
 utility's office, without intermediate switching. It is charged on a flat-rate
 basis.<ol>
<nl>
(59) Disconnection of telephone service - The event after
 which a customer's telephone number is deleted from the central office switch
 and databases.<ol>
<nl>
(60) Discretionary services - Services that may be added,
 at the user's option, to basic local telecommunications service, such as
call waiting, call forwarding, and caller ID.<ol>
<nl>
(61) Distance learning- Instruction, learning, and training
 that is transmitted from one site to one or more sites by telecommunications
 services that are used by an educational institution predominantly for such
 instruction, learning, or training-- including: video, data, voice, and 
electronic
 information.<ol>
<nl>
(62) Distribution lines - Those lines from which the
 end user may be provided direct service.<ol>
<nl>
(63) Dominant carrier- A provider of a communication
 service that is provided wholly or partly over a telephone system and is
in a particular telecommunications market over which the commission determines
 that the provider has sufficient market power to control prices in a manner
 adverse to the public interest. The term includes providers that provided
 local exchange telephone service within certificated exchange areas on 
September
 1, 1995, in regard to those services and any other service for which a 
competitive
 alternative is not available in that geographic market. In addition:<ol>
<nl>
(A) The term applies to a provider of local exchange telephone
 service in a certificated exchange area for which the use of a "1-plus" access
 code for the origination of intraLATA calls is required and is exclusive
to that provider; and,<ol>
<nl>

(B) the term does not apply to an interexchange carrier that
 is not a certificated local exchange company.<ol>
<nl>
(64) Dominant certificated telecommunications utility
 (DCTU) - A certificated telecommunications utility that is also a dominant
 carrier. Unless clearly indicated otherwise, the rules applicable to a DCTU
 apply specifically to only those services for which the DCTU is dominant.
<ol>
<nl>
(65) Dual-party relay service - A service using oral
 and printed translations, by either a person or an automated device, between
 hearing- or speech-impaired individuals who use telecommunications devices
 for the deaf, computers, or similar automated devices, and others who do
not have such equipment.<ol>
<nl>
(66) Educational institution - Accredited primary or
 secondary schools owned or operated by state and local government entities
 or by private entities; institutions of higher education as defined by the
 Education Code, sec.61.003(13); the Texas Education Agency, its successors
 and assigns; regional education service centers established and operated
pursuant to the Education Code, Chapter 8; and the Texas Higher Education
Coordinating Board, its successors and assigns.<ol>
<nl>
(67) Electing local exchange company (LEC) - A dominant
 certificated telecommunications utility electing to be regulated under the
 terms of the Public Utility Regulatory Act, Chapter 58.<ol>
<nl>
(68) Electric utility -<ol>
<nl>
(A) A person or river authority that owns or operates for
 compensation in this state equipment or facilities to produce, generate,
transmit, distribute, sell, or furnish electricity in this state. The term
includes a lessee, trustee, or receiver of an electric utility and a 
recreational
vehicle park owner who does not comply with Texas Utilities Code, Chapter
184, Subchapter C, with regard to the metered sale of electricity at the
recreational vehicle park. The term does not include:<ol>
<nl>
(i) a municipal corporation;<ol>
<nl>

(ii) a qualifying facility;<ol>
<nl>

(iii) an exempt wholesale generator;<ol>


<nl>(iv) a power marketer;<ol>
<nl>

(v) a corporation described by Public Utility Regulatory Act
 sec.32.053 to the extent the corporation sells electricity exclusively
at wholesale and not to the ultimate consumer; or<ol>
<nl>

(vi) a person not otherwise an electric utility who:<ol>
<nl>
(I) furnishes an electric service or commodity only to itself,
 its employees, or its tenants as an incident of employment or tenancy, if
 that service or commodity is not resold to or used by others;<ol>
<nl>

(II) owns or operates in this state equipment or facilities
 to produce, generate, transmit, distribute, sell or furnish electric energy
 to an electric utility, if the equipment or facilities are used primarily
 to produce and generate electric energy for consumption by that person; or
<ol>
<nl>

(III) owns or operates in this state a recreational vehicle
 park that provides metered electric service in accordance with Texas Utilities
 Code, Chapter 184, Subchapter C.<ol>
<nl>

(B) With respect to transmission service and ancillary service,
 the term includes municipally owned utilities and river authorities that
 are not otherwise subject to the commission's ratesetting authority.<ol>
<nl>
(69) Element - Unbundled network elements, including:
 interconnection, physical- collocation, and virtual-collocation elements.
<ol>
<nl>
(70) Eligible telecommunications provider (ETP) service
 area - The geographic area, determined by the commission, containing high
 cost rural areas which are eligible for Texas Universal Service Funds support
 under sec.23.133 or sec.23.134 of this title (relating to Texas High
Cost Universal Service Plan (THCUSP) and Small and Rural Incumbent Local
Exchange Company (ILEC) Universal Service Plan).<ol>
<nl>
(71) Embedded customer premises equipment - All customer
 premises equipment owned by a telecommunications utility, including inventory,
 which was tariffed or subject to the separations process of January 1, 1983.
<ol>

<nl>(72) End user choice - A system that allows the automatic
 routing of interexchange, operator-assisted calls to the billed party's chosen
 carrier without the use of access codes.<ol>
<nl>
(73) Enhanced service provider - A company that offers
 computer-based services over transmission facilities to provide the customer
 with value-added telephone services.<ol>
<nl>
(74) Entrance facilities - The transmission path between
 the access customer's (such as an interexchange carrier's) point of demarcation
 and the serving wire center.<ol>
<nl>
(75) Equal access -Dominant-certificated-telephone-utility
 access which is provided on a tariffed basis and is equal in type, quality
 and price to Feature Group C, and which has unbundled rates. From an end
user's perspective, equal access is characterized by the availability of
"1-plus" dialing with the end user's interexchange carrier of choice on 
interLATA
calls.<ol>
<nl>
(76) Equipment distribution program (EDP) - Program to
 assist individuals who are deaf or hard of hearing or who have an impairment
 of speech to purchase specialized telecommunications devices for telephone
 service access, authorized by 1997 Texas General Laws Chapter 149, to be
jointly administered by the commission and the Texas Commission for the Deaf
and Hard of Hearing.<ol>
<nl>
(77) Equipment distribution program (EDP) voucher - a
 voucher issued by Texas Commission for the Deaf and Hard of Hearing under
 the equipment distribution program, in accordance with its rules, that an
 eligible individual may use to acquire eligible specialized telecommunications
 devices from a vendor of such equipment.<ol>
<nl>
(78) Exchange area - The geographic territory delineated
 as an exchange area by official commission boundary maps. An exchange area
 usually embraces a city or town and its environs. There is usually a uniform
 set of charges for telecommunications service within the exchange area. An
 exchange area may be served by more than one central office and/or one 
certificated
 telephone utility. An exchange area may also be referred to as an exchange.
<ol>
<nl>
(79) Expenses - Costs incurred in the provision of services
 that are expensed, rather than capitalized, in accordance with the Uniform
 System of Accounts applicable to the carrier.<ol>
<nl>
(80) Experimental service - A service which fits the
 above definition of a new service and is proposed to be offered on a temporary
 basis for a specified period not to exceed one year from the date the service
 is first provided to any customer.<ol>
<nl>
(81) Extended area service (EAS) - A telephone switching
 and trunking arrangement which provides for optional calling service by 
dominant
 certificated telecommunications utilities within a local access and transport
 area and between two contiguous exchanges or between an exchange and a 
contiguous
 metropolitan exchange local calling area. For purposes of this definition,
 a metropolitan exchange local calling area shall include all exchanges having
 local or mandatory EAS calling throughout all portions of any of the following
 exchanges: Austin metropolitan exchange, Corpus Christi metropolitan exchange,
 Dallas metropolitan exchange, Fort Worth metropolitan exchange, Houston 
metropolitan
 exchange, San Antonio metropolitan exchange, or Waco metropolitan exchange.
 EAS is provided at rate increments in addition to local exchange rates, rather
 than at toll message charges.<ol>
<nl>
(82) Extended Local Calling Service (ELCS) - Service
 provided pursuant to sec.23.49 of this title (relating to Telephone Extended
 Area Service and Expanded Toll-free Local Calling Areas).<ol>
<nl>
(83) Facilities - All the plant and equipment of a public
 utility, including all tangible and intangible real and personal property
 without limitation, and any and all means and instrumentalities in any manner
 owned, operated, leased, licensed, used, controlled, furnished, or supplied
 for, by, or in connection with the business of any public utility, including
 any construction work in progress allowed by the commission.<ol>
<nl>
(84) Foreign exchange (FX) - exchange service furnished
 by means of a circuit connecting a customer's station to a primary serving
 office of another exchange.<ol>
<nl>
(85) Foreign serving office (FSO) - Exchange service
 furnished by means of a circuit connecting a customer's station to a serving
 office of the same exchange but outside of the serving office area in which
 the station is located.<ol>
<nl>
(86) Forward-looking common costs - Economic costs efficiently
 incurred in providing a group of elements or services that cannot be attributed
 directly to individual elements or services.<ol>
<nl>
(87) Forward-looking economic cost - The sum of the total
 element long-run incremental cost of an element and a reasonable allocation
 of its forward-looking common costs.<ol>
<nl>
(88) Forward-looking economic cost per unit - The forward-looking
 economic cost of the element as defined in this section, divided by a 
reasonable
 projection of the sum of the total number of units of the element that the
 dominant certificated telephone utility (DCTU) is likely to provide to 
requesting
 telecommunications carriers and the total number of units of the element
that the DCTU is likely to use in offering its own services, during a reasonable
 time period.<ol>
<nl>
(89) Geographic scope - The geographic area in which
 the holder of a Certificate of Operating Authority or of a Service Provider
 Certificate of Operating Authority is authorized to provide service.<ol>
<nl>
(90) Grade of service - The number of customers a line
 is designated to serve.<ol>
<nl>
(91) Group of services - A number of separately tariffed
 services that share significant common costs, as defined in section, that
 are necessary and unique to the provision of those services and are not 
directly
 attributable to any one service individually. This term also refers to two
 or more groups of services that are part of a larger group of services because
 of significant common costs that are necessary and unique to the provision
 of all the services in the larger group but are not directly attributable
 to any one group or service individually.<ol>
<nl>
(92) Hearing - Any proceeding at which evidence is taken
 on the merits of the matters at issue, not including prehearing conferences.
<ol>
<nl>
(93) Hearing carryover - A technology that allows an
 individual who is speech- impaired to hear the other party in a telephone
 conversation and to use specialized telecommunications devices to send 
communications
 through the telecommunications relay service operator.<ol>
<nl>
(94) High cost area - A geographic area for which the
 costs established using a forward-looking economic cost methodology exceed
 the benchmark levels established by the commission.<ol>
<nl>
(95) High cost assistance (HCA) - A program administered
 by the commission in accordance with the provisions of sec.23.133 of this
 title (relating to Texas High Cost Universal Service Plan (THCUSP).<ol>
<nl>

(96) Identity - The name, address, telephone number,
 and/or facsimile number of a person, whether natural, partnership, municipal
 corporation, cooperative corporation, corporation, association, governmental
 subdivision, or state agency and the relationship of the person to the entity
 being represented.<ol>
<nl>
(97) Impulse noise - Any momentary occurrence of the
 noise on a channel significantly exceeding the normal noise peaks. It is
evaluated by counting the number of occurrences that exceed a threshold.
This noise degrades voice and data transmission.<ol>
<nl>
(98) Incumbent local exchange company (ILEC) - A local
 exchange company that had a certificate of convenience and necessity on 
September
 1, 1995.<ol>
<nl>
(99) Information sharing program - Instruction, learning,
 and training that is transmitted from one site to one or more sites by 
telecommunications
 services that are used by a library predominantly for such instruction, 
learning,
 or training, including video, data, voice, and electronic information.<ol>
<nl>
(100) Integrated services digital network (ISDN) - a
 digital network architecture that provides a wide variety of communications
 services, a standard set of user- network messages, and integrated access
 to the network. Access methods to the ISDN are the Basic Rate Interface (BRI)
 and the Primary Rate Interface (PRI).<ol>
<nl>
(101) Interactive multimedia communications - Real-time,
 two-way, interactive voice, video, and data communications conducted over
 networks that link geographically dispersed locations. This definition includes
 interactive communications within or between buildings on the same campus
 or library site.<ol>
<nl>
(102) Intercept service - A service arrangement provided
 by the local exchange carrier whereby calls placed to a disconnected or 
discontinued
 telephone number are intercepted and the calling party is informed by an
operator or by a recording that the called telephone number has been 
disconnected,
 discontinued, changed to another number, or otherwise is not in service.
<ol>
<nl>
(103) Interconnection - Generally means: The point in
 a network where a customer's transmission facilities interface with the 
dominant
 carrier's network under the provisions of this section. More particularly
 it means: The termination of local traffic (including basic telecommunications
 service as delineated in sec.24.32 of this title (Relating to Universal
 Service) or integrated services digital network (ISDN) as defined in this
 section and/or extended area service/extended local calling service traffic
 of a certificated telephone utility (CTU) using the local access lines of
 another CTU, as described in section sec.23.97(d)(4)(A)(i) of this title
 (relating to Interconnection). Interconnection shall include non- 
discriminatory
 access to signaling systems, databases, facilities and information as required
 to ensure interoperability of networks and efficient, timely provision of
 services to customers without permitting access to network proprietary 
information
 or customer proprietary network information, as defined in sec.23.57 of
 this title (relating to Telecommunications Privacy), unless otherwise permitted
 in sec.23.97 of this title.<ol>
<nl>
(104) Interconnector - A customer that interfaces with
 the dominant carrier's network under the provisions of sec.23.92 of this
 title (relating to Expanded Interconnection).<ol>
<nl>
(105) Interexchange carrier (IXC) - A carrier other than
 a dominant certificated telephone utility providing any means of transporting
 intrastate telecommunications messages between local exchanges, but not solely
 within local exchanges, in the State of Texas. An entity is not an IXC solely
 because of:<ol>
<nl>
(A) the furnishing, or furnishing and maintenance of a private
 system;<ol>
<nl>

(B) the manufacture, distribution, installation, or maintenance
 of customer premises equipment;<ol>
<nl>

(C) the provision of services authorized under the FCC's Public
 Mobile Radio Service and Rural Radio Service rules; or<ol>
<nl>

(D) the provision of shared tenant service.<ol>
<nl>
(106) Interoffice trunks - Those communications
 circuits which connect central offices.<ol>
<nl>
(107) IntraLATA equal access - The ability of a caller
 to complete a toll call in a local area and transport area (LATA) using his
 or her provider of choice by dialing "1" or "0" plus an area code and telephone
 number within the LATA.<ol>
<nl>
(108) Intrastate - Refers to communications which both
 originate and terminate within Texas state boundaries.<ol>
<nl>
(109) Least cost technology - The technology, or mix
 of technologies, that would be chosen in the long run as the most economically
 efficient choice. The choice of least cost technologies, however, shall<ol>
<nl>

(A) be restricted to technologies that are currently available
 on the market and for which vendor prices can be obtained;<ol>
<nl>

(B) be consistent with the level of output necessary to satisfy
 current demand levels for all services using the basic network function in
 question; and<ol>
<nl>

(C) be consistent with overall network design and topology
 requirements.<ol>
<nl>
(110) License - The whole or part of any commission
 permit, certificate, approval, registration, or similar form of permission
 required by law.<ol>
<nl>
(111) Licensing - The commission process respecting the
 granting, denial, renewal, revocation, suspension, annulment, withdrawal,
 or amendment of a license.<ol>

<nl>(112) Lifeline Service - A program certified by the Federal
 Communications Commission to provide for the reduction or waiver of the federal
 subscriber line charge for residential consumers.<ol>
<nl>
(113) Line - A circuit or channel extending from a central
 office to the customer's location to provide telecommunications service.
One line may serve one customer, or all customers served by a multiparty
line.<ol>
<nl>
(114) Local access and transport area (LATA) - A geographic
 area established for the provision and administration of communications 
service.
 It encompasses one or more designated exchanges, which are grouped to serve
 common social, economic and other purposes. For purposes of these rules,
market areas, as used and defined in the Modified Final Judgment and the
GTE Final Judgment, are encompassed in the term local access and transport
area.<ol>
<nl>
(115) Local call - A call within the certificated telephone
 utility's toll-free calling area including calls which are made toll-free
 through a mandatory extended area service (EAS) or expanded local calling
 (ELC) proceeding.<ol>
<nl>
(116) Local calling area - The area within which telecommunications
 service is furnished to customers under a specific schedule of exchange rates.
 A local calling area may include more than one exchange area.<ol>
<nl>
(117) Local exchange company - A telecommunications utility
 that has been granted either a certificate of convenience and necessity or
 a certificate of operating authority to provide local exchange telephone
service, basic local telecommunications service, or switched access service
within the state. A local exchange company is also referred to as a local
exchange carrier.<ol>
<nl>
(118) Local exchange telephone service (or "local exchange
 service") - A telecommunications service provided within an exchange to 
establish
 connections between customer premises within the exchange, including 
connections
 between a customer premises and a long distance provider serving the exchange.
 The term includes tone dialing service, service connection charges, and 
directory
 assistance services offered in connection with basic local telecommunications
 service and interconnection with other service providers. The term does not
 include the following services, whether offered on an intraexchange or 
interexchange
 basis:<ol>
<nl>
(A) central office based PBX-type services for systems of
 75 stations or more;<ol>
<nl>

(B) billing and collection services;<ol>
<nl>

(C) high-speed private line services of 1.544 megabits or
 greater;<ol>
<nl>

(D) customized services;<ol>


<nl>(E) private line or virtual private line services;<ol>
<nl>

(F) resold or shared local exchange telephone services if
 permitted by tariff;<ol>
<nl>

(G) dark fiber services;<ol>
<nl>

(H) non-voice data transmission service offered as a separate
 service and not as a component of basic local telecommunications service;
<ol>
<nl>

(I) dedicated or virtually dedicated access services;<ol>
<nl>

(J) a competitive exchange service; or<ol>
<nl>

(K) any other service the commission determines is not a "local
 exchange telephone service."<ol>
<nl>
(119) Local message - A completed call between customer
 access lines located within the same local calling area.<ol>
<nl>
(120) Local message charge - The charge that applies
 for a completed telephone call that is made when the calling customer access
 line and the customer access line to which the connection is established
are both within the same local calling area, and a local message charge is
applicable.<ol>
<nl>
(121) Local service charge - The charge for furnishing
 facilities to enable a customer to send or receive telecommunications within
 the local calling area. This local calling area may include more than one
 exchange area.<ol>
<nl>
(122) Local telecommunications traffic:<ol>
<nl>
(A) Telecommunications traffic between a dominant certificated
 telecommunications utility (DCTU) and a telecommunications carrier other
than a commercial mobile radio service (CMRS) provider that originates and
terminates within the mandatory single or multi-exchange local calling area
of a DCTU including the mandatory extended area service (EAS) areas served
by the DCTU; or<ol>
<nl>

(B) Telecommunications traffic between a DCTU and a CMRS provider
 that, at the beginning of the call, originates and terminates within the
same major trading area.<ol>
<nl>
(123) Long distance telecommunications service -
 That part of the total communication service rendered by a telecommunications
 utility which is furnished between customers in different local calling areas
 in accordance with the rates and regulations specified in the utility's tariff.
<ol>
<nl>
(124) Long run - A time period long enough to be consistent
 with the assumption that the company is in the planning stage and all of
its inputs are variable and avoidable.<ol>
<nl>
(125) Long run incremental cost (LRIC) - The change in
 total costs of the company of producing an increment of output in the long
 run when the company uses least cost technology. The LRIC should exclude
any costs that, in the long run, are not brought into existence as a direct
result of the increment of output.<ol>
<nl>
(126) Mandatory minimum standards - The standards established
 by the Federal Communications Commission, outlining basic mandatory 
telecommunication
 relay services.<ol>
<nl>
(127) Measure of unit cost - The measure of usage used
 to calculate unit cost for a particular basic network function (BNF) (for
 example, a minute of use of a switching function, or a quarter mile of a
DS-1 Network Access Channel). The measure of unit cost may be multi-dimensional;
 for example, it may have both time and distance components. The measure of
 unit cost chosen for a BNF shall correspond to the basis upon which the costs
 of that BNF are incurred.<ol>
<nl>
(128) Meet point billing - A dominant certificated telecommunications
 utility (DCTU) access billing arrangement for services to access customers
 when local transport is jointly provided by more than one DCTU.<ol>
<nl>
(129) Message - A completed customer telephone call.
<ol>
<nl>
(130) Message rate service - A form of local exchange
 service under which all originated local messages are measured and charged
 for in accordance with the utility's tariff.<ol>
<nl>

(131) Minor change - A change, including the restructuring
 of rates of existing services, that decreases the rates or revenues of the
 small local exchange company (SLEC) or that, together with any other rate
 or proposed or approved tariff changes in the 12 months preceding the date
 on which the proposed change will take effect, results in an increase of
the SLEC's total regulated intrastate gross annual revenues by not more than
five percent. Further, with regard to a change to a basic local access line
rate, a minor change may not, together with any other change to that rate
that went into effect during the 12 months preceding the proposed effective
date of the proposed change, result in an increase of more than 10%.<ol>
<nl>
(132) Municipality - A city, incorporated village, or
 town, existing, created, or organized under the general, home rule, or special
 laws of the state.<ol>
<nl>
(133) National integrated services digital network (ISDN)
 - the standards and services promulgated for integrated services digital
network by Bellcore.<ol>
<nl>
(134) Negotiating party - A certificated telecommunications
 utility (CTU) or other entity with which a requesting CTU seeks to interconnect
 in order to complete all telephone calls made by or placed to a customer
of the requesting CTU.<ol>
<nl>
(135) Network access - The category of basic network
 functions (BNFs) that accommodate access to other network functions provided
 by dominant certificated telecommunications utilities (DCTUs). Access is
accomplished by transmission paths between customers and DCTU wire centers.
This category consists of three subcategories of BNFs: Network Access Channel;
Network Access Channel Connection; and Channel Performance and Other Features
and Functions.<ol>
<nl>
(A) Network Access (NA) Channel - The subcategory of BNFs
 that provide the transmission path between the point of interface at the
customer location and the main distribution frame, or equivalent (e.g., DSX-1,
DSX-3), of a DCTU wire center.<ol>
<nl>

(B) Network Access (NA) Channel Connection - The subcategory
 of BNFs that provide the interface between the Network Access Channel and
 the DCTU wire center switching equipment, subsequent dedicated transport
equipment (dedicated interoffice circuits), or subsequent channel equipment
(dedicated intraoffice circuits).<ol>
<nl>

(C) Channel Performance and Other Features and Functions -
 The subcategory of BNFs that provide the channel functions associated with
 transmission or service type (e.g., analog, digital, coin, ISDN), bandwidth
 conversion, signaling, multiplexing, amplification, and channel performance.
<ol>
<nl>
(136) New service - Any service not offered on a
 tariffed basis prior to the date of the application relating to such service
 and specifically excludes basic local telecommunications service including
 local measured service. If a proposed service could serve as an alternative
 or replacement for a service offered prior to the date of the new-service
 application and does not provide significant improvements (other than price)
 over, or significant additional services not available under, a service offered
 prior to the date of such application, it shall not be considered a new 
service.
<ol>
<nl>
(137) Non-discriminatory - Type of treatment that is
 not less favorable than that an interconnecting certificated telecommunications
 utility (CTU) provides to itself or its affiliates or other CTUs.<ol>
<nl>
(138) Non-dominant certificated telecommunications utility
 (NCTU) - A certificated telecommunications utility (CTU) that is not a dominant
 certificated telecommunications utility (DCTU) and has been granted a 
certificate
 of convenience and necessity (CCN) (after September 1, 1995, in an area already
 certificated to a DCTU), a certificate of operating authority (COA), or a
 service provider certificate of operating authority (SPCOA) to provide local
 exchange service.<ol>
<nl>
(139) Nondominant carrier -<ol>
<nl>
(A) An interexchange telecommunications carrier (including
 a reseller of interexchange telecommunications services).<ol>
<nl>

(B) Any of the following that is not a dominant carrier:<ol>
<nl>

(i) a specialized communications common carrier;<ol>
<nl>

(ii) any other reseller of communications;<ol>
<nl>

(iii) any other communications carrier that conveys, transmits,
 or receives communications in whole or in part over a telephone system; or
<ol>
<nl>

(iv) a provider of operator services that is not also a subscriber.
<ol>
<nl>
(140) Open network architecture - The overall
 design of an incumbent local exchange company's (ILEC's) network facilities
 and services to permit all users of the network, including the enhanced 
services
 operations of an ILEC and its competitors, to interconnect to specific basic
 network functions on an unbundled and non-discriminatory basis.<ol>
<nl>
(141) Operator service - Any service using live operator
 or automated operator functions for the handling of telephone service, such
 as local collect, toll calling via collect, third number billing, credit
card, and calling card services. The transmission of "1-800" and "1-888"
numbers, where the called party has arranged to be billed, is not operator
service.<ol>
<nl>
(142) Operator service provider (OSP) - Any person or
 entity that provides operator services by using either live or automated
operator functions. When more than one entity is involved in processing an
operator service call, the party setting the rates shall be considered to
be the OSP. However, subscribers to customer-owned pay telephone service
shall not be deemed to be OSPs.<ol>
<nl>
(143) Originating line screening (OLS) - A two digit
 code passed by the local switching system with the automatic number 
identification
 (ANI) at the beginning of a call that provides information about the 
originating
 line.<ol>
<nl>
(144) Out-of-service trouble report - An initial customer
 trouble report in which there is complete interruption of incoming or outgoing
 local exchange service. On multiple line services a failure of one central
 office line or a failure in common equipment affecting all lines is considered
 out of service. If an extension line failure does not result in the complete
 inability to receive or initiate calls, the report is not considered to be
 out of service.<ol>
<nl>
(145) Partial deregulation - The ability of a cooperative
 to offer new services on an optional basis and/or change its rates and tariffs
 under the provisions of the Public Utility Regulatory Act, sec.sec.53.351
 - 53.359.<ol>
<nl>
(146) Pay-per-call-information services - Services that
 allow a caller to dial a specified 1-900-XXX-XXXX or 976-XXXX number. Such
 services routinely deliver, for a predetermined (sometimes time-sensitive)
 fee, a pre-recorded or live message or interactive program. Usually a 
telecommunications
 utility will transport the call and bill the end-user on behalf of the 
information
 provider.<ol>
<nl>
(147) Pay telephone access service (PTAS) - A service
 offered by a certificated telecommunications utility which provides a two-way,
 or optionally, a one-way originating-only business access line composed of
 the serving central office line equipment, all outside plant facilities needed
 to connect the serving central office with the customer premises, and the
 network interface; this service is sold to pay telephone service providers.
<ol>
<nl>
(148) Pay telephone service (PTS) - A telecommunications
 service utilizing any coin, coinless, credit card reader, or cordless 
instrument
 that can be used by members of the general public, or business patrons, 
employees,
 and/or visitors of the premise's owner, provided that the end user pays for
 local or toll calls from such instrument on a per call basis. Pay per call
 telephone service provided to inmates of confinement facilities is PTS. For
 purposes of this section, coinless telephones provided in guest rooms by
a hotel/motel are not pay telephones. A telephone that is primarily used
by business patrons, employees, and/or visitors of the premise's owner is
not a pay telephone if all local calls and "1-800" and "1-888" type calls
from such telephone are free to the end user.<ol>
<nl>
(149) Per-call blocking - A telecommunications service
 provided by a telecommunications provider that prevents the transmission
of calling party information to a called party on a call-by-call basis.<ol>
<nl>

(150) Per-line blocking - A telecommunications service
 provided by a telecommunications utility that prevents the transmission of
 calling party information to a called party on every call, unless the calling
 party acts affirmatively to release calling party information.<ol>
<nl>
(151) Percent interstate usage (PIU) - An access customer-specific
 ratio or ratios determined by dividing interstate access minutes by total
 access minutes. The specific ratio shall be determined by the dominant 
certificated
 telecommunications utility (DCTU) unless the DCTU's network is incapable
of determining the jurisdiction of the access minutes. A PIU establishes
the jurisdiction of switched access usage for determining rates charged to
switched access customers and affects the allocation of switched access revenue
and costs by DCTUs between the interstate and intrastate jurisdictions.<ol>
<nl>

(152) Person - Any natural person, partnership, municipal
 corporation, cooperative corporation, corporation, association, governmental
 subdivision, or public or private organization of any character other than
 an agency.<ol>
<nl>
(153) Pleading - A written document submitted by a party,
 or a person seeking to participate in a proceeding, setting forth allegations
 of fact, claims, requests for relief, legal argument, and/or other matters
 relating to a proceeding.<ol>
<nl>
(154) Prepaid local telephone service (PLTS) - Prepaid
 Local Telephone Service means:<ol>
<nl>

(A) voice grade dial tone residential service consisting of
 flat rate service or local measured service, if chosen by the customer and
 offered by the dominant certificated telecommunications utility (DCTU);<ol>
<nl>


(B) if applicable, mandatory services, including extended
 area service, extended metropolitan service, or expanded local calling service;
<ol>
<nl>

(C) tone dialing service;<ol>
<nl>

(D) access to 911 service;<ol>
<nl>

(E) access to dual party relay service;<ol>
<nl>

(F) the ability to report service problems seven days a week;
<ol>


<nl>(G) access to business office;<ol>
<nl>

(H) primary directory listing;<ol>
<nl>

(I) toll blocking service; and<ol>
<nl>

(J) non-published service and non-listed service at the customer's
 option.<ol>
<nl>
(155) Premises - A tract of land or real estate
 including buildings and other appurtenances thereon.<ol>
<nl>
(156) Pricing flexibility - Discounts and other forms
 of pricing flexibility may not be preferential, prejudicial, or discriminatory.
 Pricing flexibility includes:<ol>
<nl>
(A) customer specific contracts;<ol>
<nl>

(B) volume, term, and discount pricing;<ol>
<nl>

(C) zone density pricing;<ol>
<nl>

(D) packaging of services; and<ol>
<nl>

(E) other promotional pricing flexibility.<ol>
<nl>
(157) Primary interexchange carrier (PIC) - The
 provider chosen by a customer to carry that customer's toll calls.<ol>
<nl>
(158) Primary interexchange carrier (PIC) freeze indicator
 - An indicator that the end user has directed the certificated 
telecommunications
 utility to make no changes in the end user's PIC.<ol>
<nl>
(159) Primary rate interface (PRI) integrated services
 digital network (ISDN) - One of the access methods to ISDN, the 1.544-Mbps
 PRI comprises either twenty- three 64 Kbps B-channels and one 64 Kbps D-channel
 (23B+D) or twenty-four 64 Kbps B-channels (24B) when the associated call
signaling is provided by another PRI in the group.<ol>
<nl>
(160) Primary service - The initial provision of voice
 grade access between the customer's premises and the switched 
telecommunications
 network. This includes the initial connection to a new customer or the move
 of an existing customer to a new premises, but does not include complex 
services.
<ol>
<nl>
(161) Print translations - The temporary storage of a
 message in an operator's screen during the actual process of relaying a 
conversation.
<ol>
<nl>
(162) Privacy issue - An issue that arises when a telecommunications
 provider proposes to offer a new telecommunications service or feature that
 would result in a change in the outflow of information about a customer.
The term privacy issue is to be construed broadly. It includes, but is not
limited to, changes in the following:<ol>
<nl>
(A) the type of information about a customer that is released;
<ol>
<nl>

(B) the customers about whom information is released;<ol>
<nl>

(C) the entity or entities to whom the information about a
 customer is released;<ol>
<nl>

(D) the technology used to convey the information;<ol>
<nl>

(E) the time at which the information is conveyed; and<ol>
<nl>

(F) any other change in the collection, use, storage, or release
 of information.<ol>
<nl>
(163) Private line - A transmission path that is
 dedicated to a customer and that is not connected to a switching facility
 of a telecommunications utility, except that a dedicated transmission path
 between switching facilities of interexchange carriers shall be considered
 a private line.<ol>
<nl>
(164) Proceeding - A hearing, investigation, inquiry,
 or other procedure for finding facts or making a decision. The term includes
 a denial of relief or dismissal of a complaint. It may be rulemaking or 
nonrulemaking;
 rate setting or non-rate setting.<ol>
<nl>
(165) Promotional rate - A temporary tariff, fare, toll,
 rental or other compensation charged by a dominant certificated 
telecommunications
 utility (DCTU) to new or new and existing customers and designed to induce
 customers to test out a service. A promotional rate shall incorporate a 
reduction
 or a waiver of some rate element in the tariffed rates of the service, or
 a reduction or waiver of the service's installation charge and/or service
 connection charges, and shall not incorporate any charge for discontinuance
 of the service by the customer. Such rates may not be offered for basic local
 telecommunications service, including local measured service.<ol>
<nl>
(166) Provider of pay telephone service - The entity
 that purchases pay telephone access service (PTAS) from a certificated 
telecommunications
 utility (CTU) and registers with the Public Utility Commission as a provider
 of pay telephone service (PTS) to end users.<ol>
<nl>
(167) Public utility or utility - A person or river authority
 that owns or operates for compensation in this state equipment or facilities
 to convey, transmit, or receive communications over a telephone system as
 a dominant carrier. The term includes a lessee, trustee, or receiver of any
 of those entities, or a combination of those entities. The term does not
include a municipal corporation. A person is not a public utility solely
because the person:<ol>
<nl>
(A) furnishes or furnishes and maintains a private system;
<ol>
<nl>

(B) manufactures, distributes, installs, or maintains customer
 premise communications equipment and accessories; or<ol>
<nl>

(C) furnishes a telecommunications service or commodity only
 to itself, its employees, or its tenants as an incident of employment or
tenancy, if that service or commodity is not resold to or used by others.<ol>
<nl>

(168) Public Utility Regulatory Act (PURA) - The
 enabling statute for the Public Utility Commission of Texas, located in the
 Texas Utilities Code Annotated, sec.sec.11.001 -63.063, (Vernon 1998).
<ol>
<nl>
(169) Qualifying low-income consumer - A consumer that
 participates in one of the following programs: Medicaid, food stamps, 
Supplemental
 Security Income, federal public housing assistance, or Low-Income Home Energy
 Assistance Program.<ol>
<nl>
(170) Qualifying services -<ol>
<nl>
(A) residential flat rate basic local exchange service;<ol>
<nl>

(B) residential local exchange access service; and<ol>
<nl>

(C) residential local area calling usage.<ol>
<nl>
(171) Rate - Includes:<ol>
<nl>
(A) any compensation, tariff, charge, fare, toll, rental,
 or classification that is directly or indirectly demanded, observed, charged,
 or collected by a public utility for a service, product, or commodity, 
described
 in the definition of utility in the Public Utility Regulatory Act 
sec.sec.31.002
 or 51.002; and<ol>
<nl>

(B) a rule, practice, or contract affecting the compensation,
 tariff, charge, fare, toll, rental, or classification.<ol>
<nl>
(172) Reciprocal compensation - An arrangement between
 two carriers in which each of the two carriers receives compensation from
 the other carrier for the transport and termination on each carrier's network
 facilities of local telecommunications traffic that originates on the network
 facilities of the other carrier.<ol>
<nl>
(173) Redirect the call - A procedure used by operator
 service providers (OSPs) that transmits a signal back to the originating
telephone instrument that causes the instrument to disconnect the OSP's 
connection
and to redial the digits originally dialed by the caller directly to the
local exchange carrier's network.<ol>
<nl>
(174) Regulatory authority - In accordance with the context
 where it is found, either the commission or the governing body of a 
municipality.
<ol>
<nl>
(175) Relay Texas Advisory Committee (RTAC) - The committee
 authorized by the Public Utility Regulatory Act, sec.56.110 and 1997 Texas
 General Laws Chapter 149.<ol>
<nl>
(176) Relay Texas - The name by which telecommunications
 relay service in Texas is known.<ol>
<nl>
(177) Relay Texas administrator - The individual employed
 by the commission to oversee the administration of statewide telecommunications
 relay service.<ol>
<nl>
(178) Repeated trouble report - A customer trouble report
 regarding a specific line or circuit occurring within 30 days or one calendar
 month of a previously cleared trouble report on the same line or circuit.
<ol>
<nl>
(179) Residual charge - The per-minute chargedesigned
 to account for historical contribution to joint and common costs made by
switched transport services.<ol>
<nl>
(180) Retail service - A telecommunications service is
 considered a retail service when it is provided to residential or business
 end users and the use of the service is other than resale. Each tariffed
or contract offering which a customer may purchase to the exclusion of other
 offerings shall be considered a service. For example: the various mileage
 bands for standard toll services are rate elements, not services; however,
 individual optional calling plans that can be purchased individually and
which are offered as alternatives to each other are services, not rate elements.
<ol>
<nl>
(181) Return-on-assets - After-tax net operating income
 divided by total assets.<ol>
<nl>
(182) Reversal of partial deregulation - The ability
 of a minimum of 10% of the members of a partially deregulated cooperative
 to request, in writing, that a vote be conducted to determine whether members
 prefer to reverse partial deregulation. Ten percent shall be calculated based
 upon the total number of members of record as of the calendar month preceding
 receipt of the request from members for reversal of partial deregulation.
<ol>
<nl>
(183) Rule - A statement of general applicability that
 implements, interprets, or prescribes law or policy, or describes the procedure
 or practice requirements of the commission. The term includes the amendment
 or repeal of a prior rule, but does not include statements concerning only
 the internal management or organization of the commission and not affecting
 private rights or procedures.<ol>
<nl>
(184) Rulemaking proceeding - A proceeding conducted
 pursuant to the Administrative Procedure Act sec.sec.2001.021-2001.037
 to adopt, amend, or repeal a commission rule.<ol>
<nl>
(185) Rural incumbent local exchange company (ILEC) -
 An ILEC that qualifies as a "rural telephone company" as defined in 47 United
 States Code sec.3(37) and/or 47 United States Code sec.251(f)(2).<ol>
<nl>
(186) Separation - The division of plant, revenues, expenses,
 taxes, and reserves applicable to exchange or local service if these items
 are used in common to provide public utility service to both local exchange
 telephone service and other service, such as interstate or intrastate toll
 service.<ol>
<nl>
(187) Service - Has its broadest and most inclusive meaning.
 The term includes any act performed, anything supplied, and any facilities
 used or supplied by a public utility in the performance of the utility's
duties under the Public Utility Regulatory Act to its patrons, employees,
other public utilities, and the public. The term also includes the interchange
or facilities between two or more public utilities. The term does not include
the printing, distribution, or sale of advertising in a telephone directory.<ol>
<nl>

(188) Service connection charge - A charge designed to
 recover the costs of non- recurring activities associated with connection
 of local exchange telephone service.<ol>
<nl>
(189) Service restoral charge - A charge applied by the
 DCTU to restore service to a customer's telephone line after it has been
suspended by the DCTU.<ol>
<nl>
(190) Serving wire center (SWC) - The dominant certificated
 telecommunications utility designated central office which serves the access
 customer's point of demarcation.<ol>
<nl>
(191) Signaling for tandem switching - The carrier identification
 code (CIC) and the OZZ code or equivalent information needed to perform tandem
 switching functions. The CIC identifies the interexchange carrier and the
 OZZ digits identifies the call type and thus the interexchange carrier trunk
 to which traffic should be routed.<ol>
<nl>
(192) Small certificated telecommunications utility (CTU)
 - A CTU with fewer than 2.0% of the Nation's subscriber lines installed in
 the aggregate nationwide.<ol>
<n>
(193) Small local exchange company (SLEC) - Any incumbent
 certificated telecommunications utility as of September 1, 1995, that has
 fewer than 31,000 access lines in service in this state, including the access
 lines of all affiliated incumbent local exchange companies within the state,
 or a telephone cooperative organized pursuant to the Telephone Cooperative
 Act, Texas Utilities Code Annotated, Chapter 162.<ol>
<nl>
(194) Small incumbent local exchange company (Small ILEC)
 - An incumbent local exchange company that is a cooperative corporation or
 has, together with all affiliated incumbent local exchange companies, fewer
 than 31,000 access lines in service in Texas.<ol>
<nl>
(195) Spanish speaking person - a person who speaks any
 dialect of the Spanish language exclusively or as their primary language.
<ol>
<nl>
(196) Service provider certificate of operating authority
 (SPCOA) reseller - A holder of a service provider certificate of operating
 authority that uses only resold telecommunications services provided by an
 incumbent local exchange company (ILEC) or by a certificate of operating
authority (COA) holder or by a service provider certificate of operating
authority (SPCOA) holder.<ol>
<nl>
(197) Special access - A transmission path connecting
 customer designated premises to each other either directly or through a hub
 or hubs where bridging, multiplexing or network reconfiguration service 
functions
 are performed and includes all exchange access not requiring switching 
performed
 by the dominant carrier's end office switches.<ol>
<nl>
(198) Stand-alone costs - The stand-alone costs of an
 element or service are defined as the forward-looking costs that an efficient
 entrant would incur in providing only that element or service.<ol>
<nl>
(199) Station - A telephone instrument or other terminal
 device.<ol>
<nl>
(200) Study area - An incumbent local exchange company's
 (ILEC's) existing service area in a given state.<ol>
<nl>
(201) Subcategories of basic network functions (BNFs)
 - Groupings of closely related BNFs in a category of BNFs.<ol>
<nl>
(202) Supplemental services - Telecommunications features
 or services offered by a dominant certificated telecommunications utility
 for which analogous services or products may be available to the customer
 from a source other than a dominant certificated telecommunications utility.
 Supplemental services shall not be construed to include optional extended
 area calling plans that a dominant certificated telecommunications utility
 may offer pursuant to sec.23.49 of this title (relating to Telephone Extended
 Area Service), or pursuant to a final order of the commission in a proceeding
 pursuant to the Public Utility Regulatory Act, Chapter 53.<ol>
<nl>
(203) Suspension of service - That period during which
 the customer's telephone line does not have dial tone but the customer's
telephone number is not deleted from the central office switch and 
databases.<ol>
<nl>

(204) Switched access - Access service that is provided
 by dominant certificated telecommunications utilities (DCTUs) to access 
customers
 and that requires the use of DCTU network switching or common line facilities
 generally, but not necessarily, for the origination or termination of 
interexchange
 calls. Switched access includes all forms of transport provided by the DCTU
 over which switched access traffic is delivered.<ol>
<nl>
(205) Switched access demand - Switched access minutes
 of use, or other appropriate measure where not billed on a minute of use
basis, for each switched access rate element, normalized for out of period
billings. For the purposes of this section, switched access demand shall
include minutes of use billed for the local switching rate element.<ol>
<nl>
(206) Switched access minutes - The measured or assumed
 duration of time that a dominant certificated telecommunications utility's
 (DCTU's) network facilities are used by access customers. Access minutes
are measured for the purpose of calculating access charges applicable to
access customers.<ol>
<nl>
(207) Switched transport - Transmission between a dominant
 carrier's central office (including tandem-switching offices) and an 
interexchange
 carrier's point of presence.<ol>
<nl>
(208) Switching and Switch Functions - The category of
 basic network functions (BNFs) that provide for switched access between
two or more Network Access Channels or between Network Access Channels and
other BNFs, such as interoffice transport. This function is accomplished
through the establishment of a temporary transmission path between Network
Access Channels in the same switching office; between a Network Access Channel
and the interoffice facilities that interconnect switching offices; or between
 a Network Access Channel and other BNFs. This BNF category shall cover the
 first point of switching for a customer. This BNF category consists of three
 subcategories of BNFs: Interoffice Switching; Intraoffice Switching; and
Switching Features.<ol>
<nl>
(A) Interoffice Switching - The subcategory of BNFs that provide
 for: switching between Network Access Channels and Switched Transport 
facilities
 which are connected to different wire centers; and switching between Network
 Access Channels and Switched Transport facilities when a tandem switch is
 used as the first point of interface to the DCTU switched network (e.g.,
connection of facilities from an interexchange carrier's point of network
interface).<ol>
<nl>

(B) Intraoffice Switching - The subcategory of BNFs that provide
 for switching between two or more Network Access Channels within the same
 wire center.<ol>
<nl>
(209) Tandem-switched transport - Transmission of
 traffic between the serving wire center and another dominant certificated
 telecommunications utility office that is switched at a tandem switch and
 charged on a usage basis.<ol>
<nl>
(210) Tariff - The schedule of a utility containing all
 rates, tolls, and charges stated separately by type or kind of service and
 the customer class, and the rules and regulations of the utility stated 
separately
 by type or kind of service and the customer class.<ol>
<nl>
(211) Tel-assistance service - A program providing eligible
 consumers with a 65% reduction in the applicable tariff rate for qualifying
 services.<ol>
<nl>
(212) Texas Universal Service Fund (TUSF) - The fund
authorized by the Public Utility Regulatory Act, sec.56.021 and 1997 Texas
 General Laws Chapter 149.<ol>
<nl>
(213) Telecommunications relay service (TRS) - A service
 using oral and print translations by either live or automated means between
 individuals who are hearing-impaired or speech-impaired who use specialized
 telecommunications devices and others who do not have such devices. Unless
 specified in the text, this term shall refer to intrastate telecommunications
 relay service only.<ol>
<nl>
(214) Telecommunications relay service (TRS) carrier
 - The telecommunications carrier selected by the commission to provide 
statewide
 telecommunications relay service.<ol>
<nl>
(215) TUSF - The Texas Universal Service Fund authorized
 by Texas Utilities Code Annotated sec.56.021 and 1997 Texas General Laws
 Chapter 149, sec.4.<ol>
<nl>
(216) Telecommunications utility - A telecommunications
 utility as defined in the Public Utility Regulatory Act (PURA) sec.51.002(8)
 and (11).<ol>
<nl>
(217) Telephones intended to be utilized by the public
 - Telephones that are accessible to the public, including, but not limited
 to, pay telephones, telephones in guest rooms and common areas of hotels,
 motels, or other lodging locations, and telephones in hospital patient rooms.
<ol>
<nl>
(218) Telephone solicitation - An unsolicited telephone
 call.<ol>
<nl>
(219) Telephone solicitor - A person who makes or causes
 to be made a consumer telephone call, including a call made by an automatic
 dialing/announcing device.<ol>
<nl>
(220) Test year - The most recent 12 months, beginning
 on the first day of a calendar or fiscal year quarter, for which operating
 data for a public utility are available.<ol>
<nl>
(221) Tier 1 local exchange company - A local exchange
 company with annual regulated operating revenues exceeding $100 million.
<ol>
<nl>
(222) Title IV-D Agency - The office of the attorney
 general for the state of Texas.<ol>
<nl>
(223) Toll blocking - A service provided by telecommunications
 carriers that lets consumers elect not to allow the completion of outgoing
 toll calls from their telecommunications channel.<ol>
<nl>
(224) Toll control - A service provided by telecommunications
 carriers that allows consumers to specify a certain amount of toll usage
that may be incurred on their telecommunications channel per month or per
billing cycle.<ol>
<nl>
(225) Toll limitation - Denotes both toll blocking and
 toll control.<ol>

<nl>(226) Total element long-run incremental cost (TELRIC)
 - The forward-looking cost over the long run of the total quantity of the
 facilities and functions that are directly attributable to, or reasonably
 identifiable as incremental to, such element, calculated taking as a given
 the dominant certificated telecommunications utility's (DCTU's) provision
 of other elements.<ol>
<nl>
(227) Transport - The transmission and/or any necessary
 tandem and/or switching of local telecommunications traffic from the 
interconnection
 point between the two carriers to the terminating carrier's end office switch
 that directly serves the called party, or equivalent facility provided by
 a carrier other than a dominant certificated telecommunications utility.
<ol>
<nl>
(228) Trunk - A circuit facility connecting two switching
 systems.<ol>
<nl>
(229) Two-primary interexchange carrier (Two-PIC) equal
 access - A method that allows a telephone subscriber to select one carrier
 for all 1+ and 0+ interLATA calls and the same or a different carrier for
 all 1+ and 0+ intraLATA calls.<ol>
<nl>
(230) Unbundling - The disaggregation of the ILEC's network/service
 to make available the individual network functions or features or rate elements
 used in providing an existing service.<ol>
<nl>
(231) Unit cost - A cost per unit of output calculated
 by dividing the total long run incremental cost of production by the total
 number of units.<ol>
<nl>
(232) Usage sensitive blocking - Blocking of a customer's
 access to services which are charged on a usage sensitive basis for completed
 calls. Such calls shall include, but not be limited to, call return, call
 trace, and auto redial.<ol>
<nl>
(233) Virtual private line - Circuits or bandwidths,
 between fixed locations, that are available on demand and that can be 
dynamically
 allocated.<ol>
<nl>
(234) Voice carryover - A technology that allows an individual
 who is hearing-impaired to speak directly to the other party in a telephone
 conversation and to use specialized telecommunications devices to receive
 communications through the telecommunications relay service operator.<ol>
<nl>
(235) Volume sensitive costs - The costs of providing
 a basic network function (BNF) that vary with the volume of output of the
 services that use the BNF.<ol>
<nl>
(236) Volume insensitive costs - The costs of providing
 a basic network function (BNF) that do not vary with the volume of output
 of the services that use the BNF.<ol>
<nl>
(237) Wholesale service - A telecommunications service
 is considered a wholesale service when it is provided to a telecommunications
 utility and the use of the service is to provide a retail service to residence
 or business end-user customers.<ol>
<nl>
(238) Working capital requirements - The additional capital
 required to fund the increased level of accounts receivable necessary to
provide telecommunications service.<ol>
<nl>
(239) "0-" call - A call made by the caller dialing the
 digit "0" and no other digits within five seconds. A "0-" call may be made
 after a digit (or digits) to access the local network is (are) dialed.<ol>
<nl>
(240) "0+" call - A call made by the caller dialing the
 digit "0" followed by the terminating telephone number. On some automated
 call equipment, a digit or digits may be dialed between the "0" and the 
terminating
 telephone number.<ol>

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 April
 31, 1998.

TRD-9806089


Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 936-7308






Subchapter D. Records, Reports, and Other Required Information



16 TAC sec.sec.26.71-26.82, 26.897, 26.98, 26.100

The Public Utility Commission of Texas (PUC) proposes new
 sec.26.71, relating to General Procedures, Requirements and Penalties;
sec.26.72 relating to Uniform System of Accounts; sec.26.73 relating
to Financial and Operating Reports; sec.26.74 relating to Reports on Sale
of Property and Mergers; sec.26.75 relating to Reports on Sale of 50% or
More of Stock; sec.26.76 relating to Gross Receipts Assessment Report;
sec.26.77 relating to Payments, Compensation, and Other Expenditures; sec.26.78
relating to State Agency Utility Account Information; sec.26.79 relating
to Equal Opportunity Reports; sec.26.80 relating to Annual Report on 
Historically
Underutilized Businesses; sec.26.81 relating to Service Quality Reports;
sec.26.82 relating to Construction Reports; sec.26.87 relating to Infrastructure
Reports; sec.26.98 relating to Cost Allocation Manual; and sec.26.100
relating to Other Records, Reports, and Information that May be Required.
These new sections are proposed for Chapter 26, Subchapter D relating to
Records, Reports, and Other Required Information. Project Number 19121 has
 been assigned to this proceeding.

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. Chapter 26 has been established for all commission substantive
 rules applicable to telecommunications service providers. The duplicative
 sections of Chapter 23 will be proposed for repeal as each new section is
 proposed for publication in the new chapter.

General changes to rule language:

The proposed new sections reflect different section, subsection, and paragraph
 designations due to the reorganization of the rules. Citations to the Public
 Utility Regulatory Act have been updated to conform to the Texas Utilities
 Code throughout the sections and citations to other sections of the 
commission's
 rules have been updated to reflect the new section designations. Some text
 has been proposed for deletion as unnecessary in the new sections, as a result
 of making the new chapters industry specific; or because the dates and 
requirements
 in the text no longer apply due to the passage of time and/or fulfillment
 of the requirements. References to the terms "public utility" or "utility"
 have been changed to "electric utility" where needed as a result of changes
 in the Texas Utilities Code. The Texas Register
 will publish these sections as all new text. Persons who desire a
copy of the proposed new sections as they reflect changes to existing sections
in Chapter 23 may obtain a redlined version from the commission's Central
Records under Project Number 19121.

Other changes specific to each section:


Proposed new sec.26.71 will replace corresponding sec.23.11 of this
 title (relating to General Reports), subsections (a), (l), (m), (n), (p),
 (q), and (r); and sec.23.14 of this title (relating to Maintenance and
 Location of Records). The commission proposes deletion of subsections (j)
 and (o) of sec.23.11 as unnecessary, with no new corresponding section
in Chapter 26. Subsection (f)(3) has been added because quality of service
reports are now filed semi-annually, instead of quarterly.

Proposed new sec.26.72 will replace corresponding sec.23.12(a) of this
 title (relating to Financial Records and Reports. There are no proposed changes
 in the text of sec.26.72 to that of corresponding sec.23.12(a), other
 than the general changes previously discussed.

Proposed new sec.26.73 will replace corresponding sec.23.11(k); sec.23.12(b);
 and sec.23.13(d) of this title (relating to Statistical Reports). There
 are no proposed changes in the text of sec.26.73 to that of the corresponding
 sections, other than the general changes previously discussed.

Proposed new sec.26.74 will replace corresponding sec.23.12(c) of this
 title. The commission proposes deletion of the references to certificate
of operating authorities and service provider certificate of operating 
authorities
 in new subsection (e) (formerly sec.23.12(c)(5)).

Proposed new sec.26.75 will replace corresponding sec.23.12(d) of this
 title. The commission proposes deletion of the references to certificate
of operating authorities and service provider certificate of operating 
authorities
 in new subsection (b) (formerly sec.23.12(d)(1)).

Proposed new sec.26.76 will replace corresponding sec.23.11(e) of this
 title. The commission proposes adding the term "telecommunications" before
 the word "utilities" to clarify who is required to file the gross receipts
 assessment report with the state comptroller.

Proposed new sec.26.77 will replace corresponding sec.23.11(d) of this
 title, which requires that an annual report be filed with the commission
detailing each expenditure made to a single payee exceeding $250. The commission
proposes raising the amount to $500, and specifically request comments on
the effect that raising this amount may have on protecting the public interest.


Proposed new sec.26.78 will replace corresponding sec.23.11(h) of this
 title. In this section, the definition of "center" is proposed for deletion,
 and where the term was used in sec.23.11(h), it is replaced with the actual
 definition. The definitions of "certificated telecommunications utility"
and "electric utility" are proposed for movement to the proposed new definitions
 section (sec.26.5). The commission proposes moving all definitions that
 apply throughout the rules to one definitions section. The only definitions
 that will remain in a different section are terms that are unique to that
 section only. The definition for "state agency" will remain in sec.26.78.


Proposed new sec.26.79 will replace corresponding sec.23.11(f) and
 (q)(8) of this title. There are no proposed changes in the text of sec.26.79
 to that of the corresponding section, other than the general changes previously
 discussed.

Proposed new sec.26.80 will replace corresponding sec.23.11(g) of this
 title. Proposed 26.80(b)(4) and (b)(5) are new subsections without a 
corresponding
 section in Chapter 23. These subsections have been added to the historically
 underutilized business (HUB) reporting requirements to eliminate confusion
 that occurred in past reports concerning how utilities determined which of
 its vendors are HUBs; and purchases within Texas for utilities providing
multi-state service. The proposed language in sec.26.80(c) (corresponding
 sec.23.11(g)(3)) has been changed to reflect the same language as adopted
in sec.26.4.

Proposed new sec.26.81 will replace corresponding sec.23.11(i) of this
 title. The proposed language changes "quarterly" reporting to "semi-annually"
 reporting to reflect the changes in the quality of service reporting forms
 adopted in Project Number 15013 - Proposed Commission
 Rules for Establishing Service Quality Standards.

Proposed new sec.26.82 will replace corresponding sec.23.13(b) of this
 title. The language relating to new generating plants has been removed from
 this section to make it industry specific.

Proposed new sec.26.87 will replace corresponding sec.23.13(f) of this
 title. There are no proposed changes in the text of sec.26.87 to that of
 the corresponding section, other than the general changes previously discussed.


Proposed new sec.26.98 will replace corresponding sec.23.12(e) of this
 title. There are no proposed changes in the text of sec.26.98 to that of
 the corresponding section, other than the general changes previously discussed.


Proposed sec.26.100 is a new section of the rules with no corresponding
 section in Chapter 23. This section is for the purpose of assisting persons
 in locating requirements for other records, reports and information that
may be located throughout the substantive rules.

Section 23.11(c) concerning relationships with affiliates is being replaced
 by sec.26.84 under Project Number 18811 - Rulemaking
 to Address Affiliate Activities of Telecommunications Utilities.


The commission is proposing eliminating sec.23.13(a) concerning the capital
 needs and acquisition plan and sec.23.13(e) concerning other statistical
 reports. Therefore these sections have no corresponding section in the new
 chapter.

Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined
 that for each year of the first five-year period the proposed sections are
 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 sections are in effect the public benefit anticipated as a result
 of enforcing these sections will be that the commission is able to adequately
 monitor the activities of telecommunications utilities to ensure compliance
 with the Public Utility Regulatory Act, Texas Utilities Code, sec.sec.11.001
 - 63.063, other state statutes and/or federal requirements, and to assure
 the availability of safe, reliable and high quality electric service at just
 and reasonable rates. The proposed new sections will provide rules that clarify
 commission procedures and more accurately reflect current statutes. There
 will be no effect on small businesses as a result of enforcing this section.
 The cost and benefit assessments that were performed when sec.sec.23.11,
 23.12, 23.13 and 23.14 were originally adopted or readopted as amended in
 Chapter 23 are still accurate. There are no additional anticipated economic
 costs to persons who are required to comply with these new sections as a
result of moving the sections in Chapter 23 to new Chapter 26.

Ms. Mueller has also determined that for each year of the first five years
 the proposed sections are 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 sections (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 19121, Chapter 26 - 
Telecommunications.


These new sections are 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 Reference to Statutes: Public Utility Regulatory Act sec.14.002




<nl>sec.26.71. General Procedures, Requirements
 and Penalties.<ol>
<nl>

(a) Who shall file. The record keeping, reporting, and filing
 requirements listed in this subchapter shall apply to all public utilities
 operating in the State of Texas, excluding municipally owned utilities, unless
 otherwise specified. Unless otherwise specified in this subchapter the term
 "public utility" or "utility," insofar as it relates to telecommunications
 utilities, shall refer to dominant carriers. Moreover, the provisions of
this subchapter are applicable to all services provided by such carriers.
<ol>
<nl>

(b) Initial reporting. Unless otherwise specified in a section
 of this subchapter, periodic reporting shall commence as follows:<ol>
<nl>
(1) Quarterly reporting. For all public utilities and other
 persons required to file records, reports and other required information
under this chapter, who are not already filing quarterly with the commission
as of the effective date of this section, reporting shall begin with an initial
 filing for the first fiscal quarter for which information is available.<ol>
<nl>

(2) Annual Reporting. For all public utilities and other
 persons required to file records, reports and other required information
under this chapter, who are not already filing annually with the commission
as of the effective date of this section, reporting shall begin with an initial
 filing for the most recent fiscal year ending on or prior to April 30 of
the first year the record, report or other required information must be filed
 with the commission.<ol>
<nl>

(c) Maintenance and Location of Records. All records, books,
 accounts, or memoranda required of a public utility, as defined in the Public
 Utility Regulatory Act, sec.51.002(8) may be kept outside the State of
Texas so long as those records, books, accounts, or memoranda are returned
to the state for any inspection by the commission that is authorized by the
Public Utility Regulatory Act.<ol>
<nl>

(d) Report attestation. All reports submitted to the commission
 shall be attested to by an officer or manager of the utility under whose
direction the report is prepared, or if under trust or receivership, by the
receiver or a duly authorized person, or if not incorporated, by the proprietor,
manager, superintendent, or other official in responsible charge of the 
utility's
 operation.<ol>
<nl>

(e) Information omitted from reports. The commission may waive
 the reporting of any information required in the sections of this subchapter
 if it determines that it is either impractical or unduly burdensome on any
 utility to furnish the requested information. If any such information is
omitted by permission of the commission, a written explanation of the omission
must be stated in the report.<ol>
<nl>

(f) Due dates of reports. All periodic reports must be received
 by the commission on or before the following due dates unless otherwise 
specified
 in this subchapter.<ol>
<nl>
(1) Monthly reports: 45 days after the end of the reported
 period.<ol>
<nl>
(2) Quarterly reports other than shareholder reports:
 45 days after the end of the reported period.<ol>
<nl>
(3) Semi-annual reports: 45 days after the end of the
 reported period.<ol>
<nl>
(4) Annual earnings report: May 15 of each year.<ol>
<nl>
(5) Shareholder annual reports: seven days from the date
 of mailing the same to shareholders.<ol>
<nl>
(6) Securities and Exchange Commission Filings: 15 days
 from the initial filing date with the Securities and Exchange Commission.
<ol>
<nl>
(7) Special or additional reports: as may be prescribed
 by the commission.<ol>
<nl>
(8) Annual reports required by sec.26.76 of this title
 (relating to Gross Receipts Assessment Report) and sec.26.77 of this title
 (relating to Payments, Compensation, and Other Expenditures) shall be due
 June 1 of each year and shall reflect the transactions for the most recent
 calendar year.<ol>
<nl>
(9) Periodic Certificate of Operating Authority report:
 Due as set forth in the commission order granting the certificate.<ol>
<nl>

(g) Special and additional reports. Each utility, including
 municipally owned utilities, shall report on forms prescribed by the commission
 special and additional information as requested which relates to the operation
 of the business of the utility.<ol>
<nl>

(h) Penalty for refusal to file on time. In addition to penalties
 prescribed by law, and sec.22.246 of the title (relating to Administrative
 Penalties) the commission may disallow for rate making purposes the costs
 related to the activities for which information was requested and not timely
 filed.<ol>



<nl>sec.26.72. Uniform System of Accounts.<ol>
<nl>


(a) In this section the term "utility," insofar as it relates
 to telecommunications utilities, shall refer to dominant carriers. Moreover,
 the provisions of this section are applicable to all services provided by
 such carriers. Every utility shall keep uniform accounts as prescribed by
 the commission of all business transacted. The classification of utilities,
 index of accounts, definitions, and general instructions pertaining to each
 uniform system of accounts as amended from time to time shall be adhered
to at all times, unless provided otherwise by these rules, or specifically
permitted by the commission.<ol>
<nl>

(b) Classification. For the purposes of accounting and reporting
 to the commission, each public utility shall be classified as follows:<ol>
<nl>
(1) Class A: utilities with annual regulated operating revenues
 exceeding $100 million.<ol>
<nl>
(2) Class B: utilities with annual regulated operating
 revenues less than $100 million.<ol>
<nl>

(c) System of accounts. For the purpose of accounting and
 reporting to the commission, each public utility shall maintain its books
 and records in accordance with the following prescribed uniform system of
 accounts:<ol>
<nl>
(1) Class A: uniform system of accounts as adopted and amended
 by the Federal Communications Commission for Class A utilities or other 
commission-approved
 system of accounts as will be adequately informative for all regulatory 
purposes.
<ol>
<nl>
(2) Class B: uniform system of accounts as adopted and
 amended by the Federal Communications Commission for Class B utilities or
 other commission-approved system of accounts as will be adequately informative
 for all regulatory purposes.<ol>
<nl>

(d) Other system of accounts. When a utility has adopted a
 uniform system of accounts as may be required by a state or federal agency
 other than those previously mentioned in this section (e.g. United States
 Department of Agriculture - Rural Utilities Service), that system of accounts
 may be adopted by the utility after notification to the commission.<ol>
<nl>

(e) Merchandise accounting. Each utility shall keep separate
 accounts to show all revenues and expenses resulting from the sale or lease
 of appliances, fixtures, equipment, directory advertising, or other 
merchandise.
<ol>
<nl>

(f) Accounting period. Each utility shall keep its books on
 a monthly basis so that for each month all transactions applicable thereto
 shall be entered in the books of the utility.<ol>
<nl>

(g) Rules related to capitalization of construction costs.
 Each telephone utility shall accrue interest during construction on both
short-term (on an off-book basis, if necessary) and long-term telephone plant
under construction to the extent not included in rate base. In the event
construction work in progress is included in rate base pursuant to the rules
in subsection sec.23.21(c)(2)(D) of this title (relating to Cost of Service),
interest during construction for telephone utilities shall be discontinued
to the extent construction work in progress or telephone plant under 
construction
is allowed.<ol>



<nl>sec.26.73. Financial and Operating
 Reports.<ol>


<nl>(a) Annual reports.<ol>
<nl>
(1) Each Class A and B telephone utility shall file with the
 commission the same annual report as is required of such utility by the Federal
 Communications Commission or United States Department of Agriculture - Rural
 Utilities Service. Such annual reports shall be filed on the same dates as
 required to be filed by the Federal Communications Commission or the United
 States Department of Agriculture- Rural Utilities Service, whichever is 
applicable.
<ol>
<nl>
(2) Each utility holding company subject to annual reporting
 to the Securities and Exchange Commission and each utility shall file with
 the commission three copies of its annual report to shareholders, customers,
 or members. Unless included in the annual report to shareholders, customers,
 or members, each utility shall file concurrently with the filing of such
report three copies of any audited financial statements that may have been
prepared on its behalf.<ol>
<nl>

(b) Annual earnings report. Each utility shall file with the
 commission, on commission prescribed forms, an earnings report providing
the information required to enable the commission to properly monitor telephone
 utilities within the state.<ol>
<nl>
(1) Each utility shall report information related to the most
 recent calendar year as specified in the instructions to the report.<ol>
<nl>
(2) Each utility shall file three copies of the commission-prescribed
 earnings report and shall electronically transmit one copy of the report
no later than the date prescribed in sec.26.71(f)(4) of this title (relating
 to General Procedures, Requirements, and Penalties).<ol>
<nl>
(3) On the due date of the annual earnings report, each
 utility with a rate proceeding pending before the commission, pursuant to
 the Public Utility Regulatory Act, Chapter 53, in which a rate filing package
 is required, may submit an abbreviated earnings report. Specifications for
 the abbreviated filing are included in the General Filing Instructions for
 the annual earnings report.<ol>
<nl>
(4) Each dominant certificated telecommunications utility
 shall submit annually an access line report as part of its annual earnings
 report.<ol>
<nl>

(c) Securities and Exchange Commission reports. Each utility
 and utility holding company subject to reporting requirements of the Securities
 and Exchange Commission shall file three copies of each required report with
 the commission. Three copies of each such report including 10-Ks, 10-Qs,
8-Ks, Annual Reports, and Registration Statements filed with the Securities
and Exchange Commission shall be submitted to the commission no later than
15 days from the initial filing date with the Securities and Exchange 
Commission.
<ol>
<nl>

(d) Duplicate Information. A utility shall not be required
 to file with the commission forms or reports which duplicate information
already on file with the commission.<ol>

<nl>sec.

26.74. Reports on Sale of Property
 and Mergers.<ol>


<nl>(a) Except for a local exchange company exempted in subsection
 (e) of this section a dominant carrier shall not sell, acquire, lease or
rent any plant as an operating unit or system in the State of Texas for a
total consideration in excess of $100,000 unless the public utility reports
 such transaction to the commission while pending or within 30 days after
closing.<ol>
<nl>

(b) Except for a local exchange company exempted in subsection
 (e) of this section a dominant carrier shall not merge or consolidate with
 another public utility or electric utility operating in the State of Texas
 unless the public utility reports such transaction to the commission while
 pending or within 30 days after closing.<ol>
<nl>

(c) Dominant carriers shall not purchase voting stock in another
 public utility or electric utility doing business in the State of Texas,
unless the utility reports such purchase to the commission while pending
or within 30 days after closing.<ol>
<nl>

(d) Dominant carriers shall not loan money, stocks, bonds,
 notes or other evidences of indebtedness to any corporation or person owning
 or holding directly or indirectly any stock of the public utility unless
the public utility reports such transaction to the commission while pending
or within 30 days after closing.<ol>
<nl>

(e) Incumbent local exchange companies electing under the
 Public Utility Regulatory Act, Chapter 58, are exempt from the requirements
 of subsections (a) and (b) of this section.<ol>
<nl>

(f) For dominant carriers, investigations by the commission,
 with or without public hearing, of the transactions described in subsection
 (a) and (b) of this section must be completed within 180 days after the date
 of notification by the dominant carrier. If an order is not entered within
 that time, the utility's action is considered consistent with the public
 interest.<ol>

<nl>sec.

26.75. Reports on Sale of 50%
 or More of Stock.<ol>
<nl>

(a) All transactions involving the sale of 50% or more of
 the stock of a dominant carrier except a local exchange company exempted
in subsection (b) of this section, shall be reported to the commission while
 pending or within 30 days after closing.<ol>
<nl>

(b) Incumbent local exchange companies electing under the
 Public Utility Regulatory Act, Chapter 58, are exempt from the requirements
 of this subsection.<ol>
<nl>

(c) For dominant carriers, investigations by the commission,
 with or without public hearing, of the transactions described in this section
 must be completed within 180 days after the date of notification by the 
dominant
 carrier. If an order is not entered within that time, the utility's action
 is considered consistent with the public interest.<ol>

<nl>sec.

26.76. Gross Receipts Assessment
 Report.<ol>


<nl>All telecommunications utilities subject to the jurisdiction of the
 commission shall file a gross receipts assessment report with the state 
comptroller
 reflecting those gross receipts subject to the assessment as required by
the Public Utility Regulatory Act on a form prescribed by the state comptroller.
 These reports shall be required on an annual basis for those companies that
 have elected to remit their assessment annually and on a quarterly basis
for those companies that have elected to remit their assessment quarterly.
Such reports and assessments shall be remitted in accordance with the Public
Utility Regulatory Act, Chapter 16, Subchapter A.<ol>

<nl>sec.

26.77. Payments, Compensation,
 and Other Expenditures.<ol>


<nl>Dominant carriers shall file with the commission an annual report providing
 information for each of the following classes of payments, compensation (other
 than salary or wages subject to the withholding of federal income tax) and
 expenditures made relating to matters in Texas, and detailing (by payee)
 each expenditure (and for the purposes of this section any series of 
expenditures)
 made to a single payee exceeding $500 for:<ol>
<nl>
(1) business gifts and entertainment;<ol>
<nl>
(2) institutional, consumption-inducing, and other advertising
 expenses;<ol>
<nl>
(3) public relations expenses;<ol>
<nl>
(4) legislative matters, including advocacy before any
 legislative body;<ol>
<nl>
(5) representation before any governmental agency or
 body, including municipalities;<ol>
<nl>
(6) legal expenses not accounted for in other categories
 of this subsection;<ol>
<nl>
(7) charitable, civic, religious, and political contributions
 and donations;<ol>
<nl>
(8) all dues or membership fees paid, including an identification
 of that portion of those dues or membership fees paid to a trade association,
 industry group, or other organization formed to advance, or whose activities
 are or become primarily directed toward advancing, utility interests, which
 relate to activities listed in paragraphs (1)-(7) of this subsection if known
 following reasonable inquiry by the utility; and<ol>
<nl>
(9) other expenses as deemed appropriate by the commission.
<ol>



<nl>sec.26.78. State Agency Utility Account
 Information.<ol>
<nl>

(a) Application. The requirements of this section shall apply
 to each certificated telecommunications utility.<ol>
<nl>

(b) In this section "state agency" shall have the following
 meaning:<ol>
<nl>
(1) any board, commission, department, office, or other agency
 in the executive branch of state government that is created by the constitution
 or a statute of the state;<ol>
<nl>
(2) an institution of higher education as defined by
 Section 61.003, Education Code, other than a public junior college;<ol>
<nl>
(3) the legislature or a legislative agency; or<ol>
<nl>
(4) the Supreme Court of Texas, the Court of Criminal
 Appeals of Texas, a court of civil appeals, a state judicial agency, or the
 State Bar of Texas.<ol>
<nl>

(c) A utility shall provide the information required in subsections
 (e) of this section for each state agency account in the prescribed form
and medium. The utility shall obtain from the General Services Commission
 or its designee a copy of the field layouts and electronic format that the
 utility shall use. The General Services Commission or its designee shall
notify the utility of any changes to the field layouts and electronic format
with sufficient time for the utility to submit the information required by
this subsection in a timely manner. Such form and medium must make the reports
 easy to compile and analyze in a manner which is not unreasonably costly,
 and to the extent possible, the General Services Commission or its designee
 will accommodate the utilities' electronic formats.<ol>
<nl>

(d) A utility shall retain all billing records for each state
 agency account for at least four years from the billing date, notwithstanding
 any other commission rule relating to the retention of billing records that
 may provide for a shorter retention period.<ol>
<nl>

(e) Each certificated telecommunications utility in its capacity
 as local service provider shall:<ol>
<nl>
(1) each year file the information for each state agency account
 required by this subsection within 45 days after the end of the reporting
 period for the six months ending with the February billing period and for
 the six months ending with the August billing period.<ol>
<nl>
(2) provide in the prescribed form the following information
 for each state agency account:<ol>
<nl>
(A) Utility Name: name of the utility providing service;<ol>
<nl>


(B) Account Name: name of the state agency receiving service
 from the utility;<ol>
<nl>

(C) Agency Code Number, if available, or Account Number, if
 the agency code number is not available, or Telephone Number, if the account
 number is not available;<ol>
<nl>

(D) Account Address: the address of the facility being served
 by the utility;<ol>
<nl>

(E) Service Code: identifying code for each service or product
 provided (for example, Universal Service Order Code);<ol>
<nl>

(F) Service Description: each service code should have a separate
 description;<ol>
<nl>

(G) Quantity: the number of units of each product or service
 purchased;<ol>
<nl>

(H) Unit Rate: the rate charged for each unit of each service
 or product listed; and<ol>
<nl>

(I) Total Price: the total amount charged for each service
 or product listed; and<ol>
<nl>
(3) provide the information required by this subsection
 to the General Services Commission or its designee by electronic transfer,
 if feasible, or, otherwise, by diskette. Only in cases of extreme undue 
hardship
 will it be permissible for a utility to provide the information in paper
documents.<ol>
<nl>

(f) Information provided pursuant to this subsection shall
 be subject to any protections of the Texas Government Code Public Information
 Act, Chapter 552. Any request for information required by this section shall
 be filed with the Office of the Attorney General or its designee.<ol>
<nl>

(g) The commission, utilities, and the Office of the Attorney
 General's designee, as well as representatives of interested state agencies,
 shall continue to evaluate the effectiveness and efficiency of the public
 monitoring and verification system for state agency customers provided in
 this section.<ol>
<nl>

(h) A utility shall make a good faith effort to provide all
 the information required by this section. It is a violation of this section
 for any information to be omitted from the report unless a good faith reason
 exists for less than full compliance. Examples of good faith reasons for
not providing a complete report include: technical limitations that cannot
be corrected without undue expense, unavailability of the particular information
 on a utility's billing system or database, information that cannot reasonably
 be made available in the form requested, waiver by commission order, or written
 waiver by the Office of the Attorney General or his or her designee. Unless
 otherwise challenged in a complaint proceeding by the Office of the Attorney
 General as set forth herein, a utility is presumed to have made a good faith
 effort to provide the required information and is not required to seek any
 type of advance waiver. In the event a utility does not provide a complete
 report, the Office of the Attorney General may file a complaint with the
commission. In any such complaint proceeding, the utility shall have the
burden of showing the omission was in good faith.<ol>

<nl>sec.

26.79. Equal Opportunity Reports.<ol>



<nl>(a) The term "minority group members," when used within this
 section, shall include only members of the following groups:<ol>
<nl>
(1) African-Americans;<ol>
<nl>
(2) American Indians;<ol>
<nl>
(3) Asian-Americans;<ol>
<nl>
(4) Hispanic-Americans and other Americans of Hispanic
 origin; and<ol>
<nl>
(5) women.<ol>
<nl>

(b) Each utility that files any form with local, state or
 federal governmental agencies relating to equal employment opportunities
for minority group members, (e.g., EEOC Form EEO-1, FCC Form 395, RUS Form
268, etc.) shall file copies of such completed form with the commission.
If such form submitted by a multi-jurisdictional utility does not indicate
Texas-specific numbers, the utility shall also prepare, and file with the
commission a form, in the same format and based on the numbers contained
in the form previously filed with local, state or federal governmental agencies,
indicating Texas-specific numbers. Each utility shall also file copies of
any other forms required to be filed with local, state or federal governmental
agencies which contain the same or similar information, such as personnel
data identifying numbers and occupations of minority group members employed
by the utility, and employment goals relating thereto, if any.<ol>
<nl>

(c) Any additional information relating to the matters described
 in this section may be submitted at the utility's option.<ol>
<nl>

(d) Any utility filing with the commission any documents described
 in subsections (b) and (c) of this section shall file two copies of such
documents with the commission's filing clerk under the project number assigned
by the Public Utility Commission's Central Records Office for that year's
filings. Utilities shall obtain the project number by contacting Central
Records.<ol>
<nl>

(e) A utility that files a report with local, state or federal
 governmental agencies and that is required by this section to file such report
 with the commission must file the report by February 15 of the year it is
 filed with the local, state or federal agencies. If the report is filed with
 local, state or federal agencies after February 15, the utility shall file
 the report with the commission by February 15 of the next year.<ol>
<nl>

(f) On May 1 of each year, the commission shall submit a report
 concerning the filed reports to the Texas legislature.<ol>

<nl>sec.

26.80. Annual Report on Historically
 Underutilized Businesses.<ol>


<nl>(a) In this section, "historically underutilized business"
 has the same meaning as in Texas Government Code, sec.2161.001(2), as it
 may be amended.<ol>
<nl>

(b) Every utility shall report its use of historically underutilized
 businesses (HUBs) to the commission on a form approved by the commission.
 A utility may submit the report on paper, or on paper and on a diskette (in
 Lotus 1-2-3 (*.wk*) or Microsoft Excel (*.xl*) format).<ol>
<nl>
(1) Each small local exchange company and telephone cooperative
 utility shall on or before December 30 of each year submit to the commission
 a comprehensive annual report detailing its use of HUBs for the four quarters
 ending on September 30 of the year the report is filed, on the Small Utilities
 HUB Report form.<ol>
<nl>
(2) Every utility other than those specified in paragraph
 (1) of this subsection shall on or before December 30 of each year submit
 to the commission a comprehensive annual report detailing its use of HUBs
 for the four quarters ending on September 30 of the year the report is filed,
 on the Large Utilities HUB Report form.<ol>
<nl>
(3) Each utility wishing to report indirect HUB procurements
 may use the Supplemental HUB report form.<ol>
<nl>
(4) Each utility shall submit a text description of the
 method by which it determined which of its vendors is a HUB.<ol>
<nl>
(5) Each utility which has more than 1,000 customers
 in a state other than Texas, or which purchases more than 10% of its goods
 and services from vendors in a state other than Texas, shall, if out-of-state
 vendors are included, state Texas data separately from data for other states.
<ol>
<nl>
(6) Each utility shall also file any other documents
 it believes appropriate to convey an accurate impression of its use of HUBs.
<ol>
<nl>

(c) This section may not be used to discriminate against any
 citizen on the basis of race, nationality, color, religion, sex, or martial
 status.<ol>
<nl>

(d) This section does not create a new cause of action, either
 public or private.<ol>

<nl>

sec.26.81. Service Quality Reports.<ol>
<nl>


Service quality reports shall be submitted semi-annually on a form
 prescribed by the commission.<ol>

<nl>

sec.26.82. Construction Reports.
<ol>
<nl>

Each utility constructing a facility requiring reporting to the commission
 under sec.23.31(c) of this title (relating to Certification Criteria) shall
 report to the commission on the commission-prescribed preliminary construction
 report form prior to the commencement of construction.<ol>

<nl>sec.

26.87. Infrastructure Reports.<ol>
<nl>


Each incumbent local exchange company (LEC) that elects incentive regulation
 under the Public Utility Regulatory Act (PURA), Chapters 58 or 59 shall file
 an infrastructure report with the commission each year on the anniversary
 date of its election. One copy of the report must be filed as a hard copy,
 and one copy must be filed in an electronic format. The report must include
 sufficient information to ensure compliance with the requirements of PURA
 sec.58.053, Chapter 58, Subchapters F and G, and Chapter 59, Subchapters
 C and D. At a minimum, the report must include the following information:
<ol>
<nl>
(1) End-to-end digital connectivity.<ol>
<nl>
(A) Percent and total number of access lines that have end-to-end
 digital connectivity available. Also, total number of lines that were upgraded
 to end-to-end digital connectivity during the previous year and cumulative
 for the period since election. This information shall be provided for each
 wire center or central office, identified by name and Common Language Location
 Identification (CLLI) Code, and by class of customers (such as residential
 and business).<ol>
<nl>

(B) The associated investment and expense for the previous
 year and cumulative for the period since election.<ol>
<nl>

(C) The total number of equipped and active voice channels,
 number of channels on fiber optics, and number of channels on copper 
facilities.
 This information shall be provided for each wire center or central office,
 identified by name and CLLI Code.<ol>
<nl>
(2) New digital switch deployment.<ol>
<nl>
(A) Percent and total number of local exchange access lines
 served by digital switching facilities. Also, total number of lines that
were served by new digital switching equipment during the previous year and
cumulative for the period since election. This information shall be provided
for each wire center or central office, identified by name and CLLI Code.<ol>
<nl>


(B) Percent and total number of central offices equipped with
 digital switching facilities. Also, total number of central offices that
were equipped with new digital switching equipment during the previous year
and cumulative for the period since election. This information shall be provided
 for each wire center or central office, identified by name and CLLI Code.
<ol>
<nl>

(C) The associated investment and expense for the previous
 year and cumulative for the period since election.<ol>
<nl>

(D) The type, make, and quantity of switching equipment installed
 during the previous year. This information shall be provided for each wire
 center or central office, identified by name and CLLI Code. Also include
actual installation and service dates of the switch along with a brief 
description
 of its functionalities and capabilities.<ol>
<nl>
(3) Inter-office broadband facilities (capable of
 transmitting at least 45 megabits per second of digital information).<ol>
<nl>
(A) Percent and total number of inter-office facilities that
 use broadband facilities. Also, total number of inter-office facilities that
 were upgraded for broadband capability during the previous year and cumulative
 for the period since election.<ol>
<nl>

(B) Include schematic diagrams that indicate quantity (such
 as fiber sheath miles, and number of strands, number of DS-3 channels or
optical channels, etc.) and relative location for each such facility, for
the previous year. Also include installation and service dates for such 
facilities.<ol>
<nl>


(C) The associated investment and expense data for such facilities,
 for the previous year and cumulative for the period since election.<ol>
<nl>
(4) Common Channel Signaling System (SS-7) deployment.
<ol>
<nl>
(A) Percent and total number of central offices equipped with
 SS-7 capability. Also, total number of central offices that were equipped
 with SS-7 capability during the previous year and cumulative for the period
 since election. This information shall be provided for each wire center or
 central office, identified by name and CLLI Code. Also include actual 
installation
 and service dates of SS-7 capability along with a brief description of its
 functionalities.<ol>
<nl>

(B) The associated investment and expense data for such facilities,
 for the previous year and cumulative for the period since election.<ol>
<nl>
(5) Fiber optic facilities to tandem central offices.
<ol>
<nl>
(A) Percent and number of serving central offices that have
 optical fiber facilities to their connecting tandem offices. Also, total
number of serving central offices that were upgraded with fiber optic facilities
 to their respective tandem switching office during the previous year and
cumulative for the period since election.<ol>
<nl>

(B) Include schematic diagrams that indicate quantity (such
 as fiber sheath miles, and number of strands, or number of DS-3 channels
or optical channels etc.) and relative location of each such facility, for
the previous year. Also include installation and service dates for those
facilities.<ol>
<nl>

(C) The associated investment and expense data, for the previous
 year and cumulative for the period since election.<ol>
<nl>
(6) Infrastructure commitment to certain entities.
<ol>
<nl>
(A) Identify each entity, by name and type, that requests
 services provided under PURA, Chapter 58, Subchapter G or Chapter 59, 
Subchapters
 C and D, as applicable. Include the address and telephone number for each
 entity served.<ol>
<nl>

(B) For each entity identified in subparagraph (A) of this
 paragraph, list the date of each request and the actual installation and
service dates. Also list the type of service(s) requested and actually provided,
including quantity and location. Provide information that describes the 
functionalities
 and application of each type of service provided.<ol>
<nl>

(C) For each service provided to an entity under PURA, Chapter
 58, Subchapter G or Chapter 59, Subchapters C and D, except for point-to-point
 intraLATA 1.544 megabits per second service offered at a flat monthly tariff
 rate under PURA sec.58.259, a customer specific contract shall be filed
 with the commission within 30 days of the execution of the contract. 
Information
 under this subparagraph need not be included in the annual report required
 by this subsection, although the annual report should refer the reader to
 this filing for specific data.<ol>
<nl>
(7) A listing of exchanges with no digital presence
 as of September 1, 1995. Also, state which exchanges have been upgraded with
 digital service and the date put in service. The information required by
this paragraph shall be provided in an electing company's initial report
under this subsection, and is not required to be provided in subsequent reports.
<ol>

<nl>

sec.26.98. Cost Allocation Manual
<ol>
<nl>

(a) Cost allocation manual requirement. Each dominant certificated
 telecommunications utility that provides regulated intrastate utility service
 and also provides nonregulated utility service or sells other services or
 products shall maintain and file with the commission annually a cost allocation
 manual (CAM) describing the methodology used for allocating its costs between
 its regulated activities and its other activities in accordance with this
 subsection.<ol>
<nl>

(b) Allocation of costs. Notwithstanding any provision of
 this subsection to the contrary, each dominant certificated telecommunications
 utility shall maintain its accounts and subaccounts consistent with the content
 and titles prescribed in the Uniform System of Accounts for Telecommunications
 Companies as adopted and amended by the Federal Communications Commission
 (FCC) for Class A utilities. Each dominant certificated telecommunications
 utility subject to the FCC Class A cost allocation manual (CAM) filing 
requirements
 shall apportion its total costs in each of the Part 32 accounts into regulated,
 nonregulated and other cost pools, as required by the FCC rules governing
 this allocation (FCC Rule 64.901 - Allocation of Costs) and as filed in that
 dominant certificated telecommunications utility's CAM on file with the FCC.
 For such dominant certificated telecommunications utilities, the Part 32
 accounts, appropriate cost pools, and approved apportionment methods are
set forth in the FCC-approved CAM filed by the Class A dominant certificated
 telecommunications utilities. Each dominant certificated telecommunications
 utility not subject to the FCC Class A CAM filing requirements shall describe
 the methodology used to apportion its total costs in each of the Part 32
accounts into regulated, nonregulated and other cost pools. After initial
assignment, costs included in the common cost pool shall be apportioned to
the regulated and nonregulated cost pools utilizing the apportionment methods
approved by the commission. The Part 32 accounts, appropriate cost pools,
and approved apportionment methods are set forth in the commission-approved
cost allocation matrix, which is available from the commission's central
records office.<ol>
<nl>

(c) Contents of CAM. The CAM filed with the commission by
 a dominant certificated telecommunications utility shall contain at least
 the following sections and information:<ol>
<nl>
(1) Introduction - including a discussion of the cost accounting
 concepts, language, and applications utilized throughout the CAM;<ol>
<nl>
(2) Nonregulated Activities - identifying each nonregulated
 product or service provided by the dominant certificated telecommunications
 utility and the accounts associated with each such nonregulated product or
 service;<ol>
<nl>
(3) Incidental Activities - identifying all incidental
 activities of the dominant certificated telecommunications utility. Incidental
 activities shall be defined using the following four criteria:<ol>
<nl>
(A) the activity must be an outgrowth of regulated operation;
<ol>
<nl>

(B) the activity cannot constitute a separate line of business;
<ol>
<nl>

(C) the activity must have been traditionally treated as regulated
 for accounting purposes; and<ol>
<nl>

(D) the total of all incidental activities' revenues must
 not exceed 1.0% of a carrier's total revenues;<ol>
<nl>
(4) Costs Apportionment Table - identifying the
 dominant certificated telecommunications utility's specific methodologies,
 taken from the commission- approved cost allocation matrix, applied to each
 Part 32 account to apportion costs between regulated activities and 
nonregulated
 activities. For Class A dominant certificated telecommunications utilities,
 the appropriate cost pools and apportionment methods approved by the FCC
shall be used; and<ol>
<nl>
(5) Time Reporting Procedures - describing the time reporting
 system used by the dominant certificated telecommunications utility's regulated
 telephone operating units, how frequently the reporting system is updated,
 the methods used to train employees to report time accurately, and the methods
 used to implement, monitor, and reinforce accurate time reporting by employees.
<ol>
<nl>

(d) Filing requirements. Each dominant certificated telecommunications
 utility shall file annually, by June 1, with the commission the following
 information for the preceding calendar year:<ol>
<nl>
(1) its CAM;<ol>
<nl>
(2) estimates of the monetary costs or savings associated
 with any annual revisions by the dominant certificated telecommunications
 utility to its CAM, broken down with reference to particular affected Part
 32 accounts;<ol>
<nl>
(3) a statement signed by an officer of the dominant
 certificated telecommunications utility attesting to the fact that the CAM
 was followed throughout the year for regulatory reporting purposes;<ol>
<nl>
(4) a regulated/nonregulated comparative percentage report.
 The report shall be broken down by Part 32 account, and shall be further
broken down within each such account to indicate separately:<ol>
<nl>
(A) the dollar amount of regulated and nonregulated revenues/expenses/invested
 capital (ratebase); and<ol>
<nl>

(B) the percentages (based on the total amount of revenues/expenses/invested
 capital (ratebase) within that account) of those revenues/expenses/invested
 capital (ratebase) that are generated by regulated activities and by 
nonregulated
 activities. The report shall present the information in a comparative form
 with the immediate prior year regulated/nonregulated comparative percentage
 report. The first report shall contain only first year information; and<ol>
<nl>

(5) a copy of any audits, interpretive letters,
 reviews, or orders pertaining to the dominant certificated telecommunications
 utility's CAM or its application to transactions with affiliates or 
nonregulated
 lines of business which have been issued by the FCC.<ol>
<nl>

(e) Alternative filings. Notwithstanding any provision of
 this subsection to the contrary:<ol>
<nl>
(1) If the FCC requires a dominant certificated telecommunications
 utility to file a CAM regarding its interstate activities, and that dominant
 certificated telecommunications utility uses the same allocation basis for
 its intrastate costs as it does for its interstate costs, then the dominant
 certificated telecommunications utility shall meet the requirements of 
subsection
 (e)(3) of this section by filing with the commission annually by June 1 a
 complete copy of the CAM it filed most recently with the FCC, and, for purposes
 of developing and maintaining a CAM for its intrastate costs, shall follow
 the procedures set forth by the FCC for interstate cost allocation.<ol>
<nl>
(2) If a dominant certificated telecommunications utility
 allocates its intrastate costs on the same basis on which an affiliate of
 the dominant certificated telecommunications utility allocates its interstate
 costs, and the affiliate files a CAM with the FCC, then the dominant 
certificated
 telecommunications utility shall meet the requirements of subsection (c)
of this section by filing with the commission annually by June 1 a complete
copy of the CAM its affiliate filed most recently with the FCC, and, for
purposes of developing and maintaining a CAM for its intrastate costs, shall
 follow the procedures set forth by the FCC for interstate cost allocation.<ol>
<nl>


(f) Exceptions to CAM filing requirements:<ol>
<nl>
(1) A dominant certificated telecommunications utility is
 not required to file the information specified in subsection (d)(2) of this
 section if the only nonregulated activities in which the dominant certificated
 telecommunications utility engages are the sale or installation, and/or repair
 of customer premises equipment and/or inside wire.<ol>
<nl>
(2) A dominant certificated telecommunications utility
 shall not be required to file the information specified in subsection (d)(2)
 of this section solely on the basis of its ownership of less than 5.0% of
 the voting securities of a nonregulated entity (which entity would be an
 affiliate of the dominant certificated telecommunications utility if the
dominant certificated telecommunications utility owned 5.0% or more of its
voting securities).<ol>
<nl>
(3) A dominant certificated telecommunications utility
 exclusively engaged in regulated activities is not required to file a CAM
 with the commission. Annually by June 1, each such dominant certificated
telecommunications utility shall file with the commission a statement signed
by an officer of the dominant certificated telecommunications utility attesting
to the fact that the dominant certificated telecommunications utility was
engaged in only regulated activities throughout the preceding calendar year.<ol>
<nl>

(4) A dominant certificated telecommunications utility
 is not required to file a CAM with the commission if the dominant certificated
 telecommunications utility's rates have been approved on a reciprocal basis,
 as provided for in sec.22.263 of this title (relating to Final Orders).
<ol>
<nl>
(5) A dominant certificated telecommunications utility
 is not required to file the information specified in this section if the
dominant certificated telecommunications utility is considered an average
schedule company for determining interstate revenue requirements.<ol>
<n>
(6) A small local exchange company (SLEC) as defined
 in sec.23.94 of this title (relating to Small Local Exchange Carrier 
Flexibility)
 is not required to file the information specified in subsection (d)(1) of
 this section. Each SLEC shall file annually, by June 1, with the commission,
 revision sheets containing all changes made to its CAM for the preceding
calendar year.<ol>
<nl>

(g) Dominant certificated telecommunications utility flexibility.
 If a dominant certificated telecommunications utility subject to this 
subsection
 believes that certain Part 32 accounts, cost pools, or apportionment methods
 are not applicable to its activities, and further believes that its use of
 alternative accounts, cost pools, or apportionment methods would be in the
 public interest, then that dominant certificated telecommunications utility
 may apply to the commission for permission to use specifically identified
 alternative accounts, cost pools, or apportionment methods described in its
 application. If the commission finds that such alternative accounts, cost
 pools, or apportionment methods are in the public interest, then the commission
 may grant the application. Such an application by a dominant certificated
 telecommunications utility may be reviewed administratively.<ol>
<nl>

(h) Costs of affiliate transactions. Nothing in this subsection,
 nor the commission-approved cost allocation matrix, shall relieve the dominant
 certificated telecommunications utility of its burden of proving in a 
proceeding
 pursuant to the Public Utility Regulatory Act (PURA) sec.53.151 and sec.53.152
 or sec.sec.51.009, 53.101 - 53.113, 53.201 and 53.202 that affiliate
transactions meet the requirements of PURA sec.53.058. The ability of a
dominant certificated telecommunications utility to recover its affiliate
transactions through the intrastate cost of service remains subject to PURA
 sec.53.058.<ol>

<nl>sec.

26.100. Other Records, Reports,
 and Information that May be Required.<ol>
<nl>

The following paragraphs contain other sections of this title that
 have additional requirements for records, reports and other information 
relating
 to telecommunications service, that public utilities, telecommunications
 utilities, telecommunications providers, or other persons may be required
to provide to the commission. This section is to assist persons in locating
the requirements. Failure to list a section which requires additional filings
in this section does not relieve the person responsible for filing the 
information
 of the requirement.<ol>
<nl>
(1) Section 23.21(e) of this title (relating to Cost of Service);
<ol>
<nl>
(2) Section 23.23(d)(5)(D)(v) and (ix) of this title
 (relating to Rate Design);<ol>
<nl>
(3) Section 23.24(c) of this title (relating to Form
 and Filing of Tariffs);<ol>
<nl>
(4) Section 23.26(c) and (k) of this title (relating
 to New and Experimental Services);<ol>
<nl>
(5) Section 23.28(l) of this title (relating to Promotional
 Rates for LEC Services);<ol>
<nl>
(6) Section 23.32(d)(f) of this title (relating to Automatic
 Dial Announcing Devices);<ol>
<nl>
(7) Section 23.38(g) of this title (relating to Standards
 for Granting of Certificates of Operating Authority and Service Provider
Certificates of Operating Authority);<ol>
<nl>
(8) Section 23.44(d)(4) of this title (relating to New
 Construction);<ol>
<nl>
(9) Section 23.48(d) of this title (relating to Continuity
 of Service);<ol>
<nl>
(10) Section 23.54(b), (g) and (m) of this title (relating
 to Pay Telephone Service);<ol>
<nl>
(11) Section 23.57(g)(4) and (g)(6)(B) of this title
 (relating to Telecommunications Privacy);<ol>
<nl>
(12) Section 23.58(f) of this title (relating to Pay-per-call
 Information Services Call Blocking);<ol>
<nl>
(13) Section 23.61(b), (d), (e), (g), (h), (i) and (j)
 of this title (relating to Telephone Utilities);<ol>
<nl>
(14) Section 23.91(l)(1) of this title (relating to Long
 Run Incremental Cost Methodology for Dominant Certificated Telecommunications
 Utility (DCTU) Services);<ol>
<nl>
(15) Section 23.99(g) of this title (relating to Unbundling);
<ol>
<nl>
(16) Section 23.102(i) of this title (relating to Imputation);
<ol>
<nl>
(17) Section 23.106(i) of this title (relating to Selection
 of Telecommunications Utilities);<ol>
<nl>
(18) Section 23.133(f) of this title (relating to Texas
 High Cost Universal Service Plan (THCUSP));<ol>
<nl>
(19) Section 23.134(g) of this title (relating to Small
 and Rural Incumbent Local Exchange Carrier (ILEC) Universal Service Plan);
<ol>
<nl>
(20) Section 23.136(e) of this title (relating to Implementation
 of the Public Utility Regulatory Act sec.56.025);<ol>
<nl>
(21) Section 23.138(d) of this title (relating to Additional
 Financial Assistance (AFA));<ol>
<nl>
(22) Section 23.142(h) of this title (relating to Lifeline
 Service and Link Up Service Programs);<ol>
<nl>
(23) Section 23.143(h) of this title (relating to Tel-Assistance
 Service);<ol>
<nl>
(24) Section 26.141(h) of this title (relating to Distance
 Learning, Information Sharing Programs, and Interactive Multimedia 
Communications);
<ol>
<nl>
(25) Section 26.161(c) of this title (relating to Electronic
 Publishing).<ol>

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 April
 31, 1998.

TRD-9806167


Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 936-7308






Part IV. Texas Department of Licensing and Regulation



Chapter 69. Regulation of Certain Traportation Services Provider



16 TAC sec.sec.69.1. 69.10, 69.20, 69.21, 69.22, 69.60, 69.70, 69.80,
 69.90, 69.91

The Texas Department of Licensing and Regulation proposes
 new sec.sec.69.1, 69.10, 69.20, 69.21, 69.22, 69.60, 69.70, 69.80, 69.90,
 and 69.91, concerning the Regulation of Certain Transportation Service 
Providers.


Texas Civil Statutes, article 6675(e) (Vernon 1997) and Texas Revised Civil
 Statutes Annotated, article 9100 (Vernon 1991) provide the department with
 the authority to regulate and register transportation service providers and
 freight forwarders that operate in this state.

These rules are necessary to implement Chapter 307, Acts of the 75th 
Legislature,
 Regular Session 1997 (article 6675(e) Texas Civil Statutes) and establish
 procedures and requirements necessary for the regulation and registration
 of certain transportation service providers.

Jimmy G. Martin, Manager, Consumer Protection Section, has determined that
 for the first five-year period these sections are in effect there will be
 fiscal implications as a result of enforcing or administering these new rules.
 State government will have an increase in revenue due to the collection of
 fees for Certificates of Registration. The increase will be approximately
 $89,000 for fiscal year 1998 and $78,000 for each fiscal year beginning 1999
 through fiscal year 2002. Costs to the state are expected to be approximately
 equal to these revenues. There will be no fiscal implications on local 
government.


Mr. Martin has also determined that for each year of the first five years
 these sections are in effect the public benefit anticipated as a result of
 enforcing the sections will be the regulation over certain transportation
 service providers and freight forwarders which will protect the health, safety,
 and welfare of the people of this state by identifying all who forward freight
 from, to, and within this state.

The anticipated economic effect on small businesses and persons who are
 required to comply with the sections as proposed will be approximately $175
 per year.

The cost of compliance will be minimal.

Comments on the proposal may be submitted to Jimmy G. Martin, Manager,
 Consumer Protection Section, Texas Department of Licensing and Regulation,
 P.O. Box 12157, Austin, Texas 78711.

The new rules are proposed under Texas Civil Statutes, article
 6675(e) (Vernon 1997) which authorizes the Texas Department of Licensing
and Regulation to promulgate and enforce a code of rules and take all action
necessary to assure compliance with the intent and purpose of the Article.


The Articles affected by the new rules are Texas Civil Statutes, article
 6675(e) (Vernon 1997) and Texas Revised Civil Statutes Annotated, article
 9100 (Vernon 1991).



<nl>sec.69.1. Authority.<ol>
<nl>

These rules are promulgated under the authority of the Regulation of
 Certain Transportation Service Providers, Texas Civil Statutes, article 6675(e)
 (Vernon 1997) and Texas Revised Civil Statutes Annotated, Article 9100 (Vernon
 1991).<ol>

<nl>

sec.69.10. Definitions.<ol>
<nl>

The following words and terms, when used in this chapter, shall have
 the following meanings, unless the context clearly indicates otherwise.<ol>
<nl>

(1)Applicant - All officers, directors and shareholders owning
 25% or more shares of a Corporation, General Partners in a partnership or
 the owner of a Sole Proprietorship of a freight forwarding entity.<ol>
<nl>
(2)Breakbulk - To unload and distribute a portion or
 all of the contents of a consolidated shipment for delivery or 
reconsignment.<ol>
<nl>

(3)Licensed custom broker - Any person granted a customs
 broker's license by the U. S. Secretary of the Treasury.<ol>
<nl>
(4)Location - Where the registrant maintains required
 records and/or provides freight forwarding in Texas.<ol>
<nl>
(5)Motor carrier - A person providing motor vehicle transportation
 for compensation.<ol>
<nl>
(6)Ocean freight forwarder - A person in the United
 States that dispatches shipments from the United States via common carriers
 and books or otherwise arranges space for those shipments on behalf of shippers
 and processes the documentation or performs related activities incident to
 those shipments.<ol>
<nl>
(7)Records - The required information that will be maintained
 at the location registered in Texas.<ol>

<nl>

sec.69.20. Certificate of Registration
 Requirements - General.<ol>
<nl>

(a) A Certificate is required for each location owned or operated
 by the Registrant in the State of Texas.<ol>
<nl>

(b) The Certificate shall be posted at each location so that
 it is visible to the public.<ol>
<nl>

(c) The Certificate is:<ol>
<nl>
(1) valid for two years from date of issue;<ol>
<nl>
(2) subject to renewal;<ol>
<nl>
(3) not assignable or transferable; and<ol>
<nl>
(4) will list the address of each Texas location operated
 by the applicant/registrant.<ol>

<nl>

sec.69.21. Certificate of Registration
 Requirements - Specific.<ol>
<nl>

(a) It is expressly understood that any falsification is cause
 for denial and/or revocation of registration.<ol>
<nl>

(b) The registrant/ applicant must provide:<ol>
<nl>
(1) a completed application form;<ol>
<nl>
(2) a completed Irrevocable Consent to Service of Process
 form;<ol>
<nl>
(3) an affirmation that no officer, director, member,
 owner or shareholder of the registering entity has been convicted of a crime
 under the Texas Health and Safety Code, sec.sec.481 or 483, or has been
 convicted under laws containing substantially the same elements of any other
 state, the United States, or another country:<ol>
<nl>
(4) a certification that the applicant does not owe delinquent
 taxes to any local, state, or federal taxing entity;<ol>
<nl>
(5) a completed Tax Certificate from the Texas Comptroller
 of Public Accounts;<ol>
<nl>
(6) application and certificate fees; and<ol>
<nl>
(7) a list consisting of the name, mailing address, physical
 address and telephone number of all Texas locations operated by the applicant.
<ol>

<nl>

sec.69.22. Certificate of Registration
 - Renewal.<ol>


<nl>(a) A renewal application shall be submitted 30 days before
 the expiration date.<ol>
<nl>

(b) The renewal shall consist of:<ol>
<nl>
(1) the completed renewal form,<ol>
<nl>
(2) the renewal application and certificate fees, and
<ol>
<nl>
(3) a completed Tax Certificate from the Texas Comptroller
 of Public Accounts.<ol>
<nl>

(c) If the renewal application is not postmarked before midnight
 of the Certificate of Registration expiration date, the Department will renew
 the Certificates within 30 days of the expiration upon receipt of the above
 and a late fee.<ol>

<nl>

sec.69.60. Responsibilities of the
 Department.<ol>
<nl>

(a) The Department shall make inquiries as to the applicant's
 corporate affiliations, partnerships or other affiliations as may be necessary.
<ol>
<nl>

(b) The Department shall enforce this Act pursuant to Texas
 Revised Civil Statutes Annotated, article 9100 and 16 Texas Administrative
 Code sec.60.<ol>

<nl>

sec.69.70. Responsibilities of the
 Certificate Holder.<ol>
<nl>

(a) Each Certificate Holder must notify the Department of
 any changes in information, no later than 30 days after the change occurs,
 regarding:<ol>
<nl>
(1) the registrant's name,<ol>
<nl>
(2) the name of each person who is an officer, director,
 member, shareholder, or has an interest as owner or principal.<ol>
<nl>
(3) the criminal conviction of an officer, director,
 member, shareholder, or of a person who has an interest as owner or principal.
<ol>
<nl>
(4) any delinquency in taxes owed to any local, state
 or federal taxing entity.<ol>
<nl>

(b) If any information that appears on the face of the Certificate
 of Registration changes, the Registrant must obtain a new Certificate.<ol>

<nl>

sec.69.80. Fees.<ol>


<nl>(a) The application processing and renewal fee for a Certificate
 of Registration as a Transportation Service Provider or Freight Forwarder
 is $300 for each application.<ol>
<nl>

(b) The Certificate fee is $50 for each Certificate issued.
<ol>
<nl>

(c) A duplicate Certificate fee is $25.<ol>
<nl>

(d) The late fee for renewing is $50.<ol>

<nl>

sec.69.90. Sanctions - Administrative
 Sanctions/Penalties.<ol>
<nl>

If a person violates Texas Civil Statutes, Article 6675(e) (Vernon
 1997), or a rule or order, of the commissioner or commission relating to
the Act, proceedings may be instituted to impose administrative sanctions
 and/or recommend administrative penalties in accordance with the Act or Texas
 Revised Civil Statutes Annotated, article 9100 (Vernon 1991) and 16 Texas
 Administrative Code, sec.60 (Vernon 1994) of this title (relating to the
 Texas Department of Licensing and Regulation.<ol>

<nl>

sec.69.91. Sanctions - Revocation,
 Suspension, or Denial because of a Criminal Conviction.<ol>
<nl>

The commissioner, after a hearing, may suspend or revoke an existing
 registration, or disqualify a person from receiving a registration, because
 that person has a felony or misdemeanor conviction that directly relates
to the duties and responsibilities involved in the area in which the applicant
 will be registered. The commissioner may also, after a hearing, suspend,
revoke or deny a registration because of a person's felony probation revocation,
 parole revocation, or revocation of mandatory supervision.<ol>

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 May
 4, 1998.

TRD-9806186


Rachelle A. Martin

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 463-7348





TITLE 19. EDUCATION


Part VII. State Board for Educator Certification


Chapter 230. Professional Educator Preparation and Certification



Subchapter U. Assignment of Public School Personnel


19 TAC sec.230.601

The State Board for Educator Certification (SBEC) proposes
 an amendment to sec.230.601, concerning assignment of public school personnel.


July 1997, the SBOE completed adoption of the Texas Essential Knowledge
 and Skills (TEKS). The TEKS set standards for the content and skills that
 Texas public school students must know and be able to do. School districts
 begin implementation of the TEKS September 1, 1998. The TEKS add new courses
 to the public school curriculum. Current SBEC rules do not contain requirements
 for assignment to the new TEKS courses. The criteria include requirements
 for assignment to teach American Sign Language, new technology applications
 courses, health science technology application courses, and new science and
 business education courses at the high school level and a new Home Economics
 course at the middle school.

The amendment includes deletion of criteria for assignment to positions
 requiring certification or licensure by another state agency or national
association. When the SBEC adopted the current assignment criteria in 1996,
most positions requiring a credential issued by an appropriate state agency
or national organization responsible for licensing that profession were deleted.
These included Psychologists, Speech Pathologists, Music Therapists and 
Recreation
Therapists. The rules still contain criteria for other positions such as
Athletic Trainer, Art Therapist and Interpreter for the Deaf. SBEC does not
issue certificates for assignment to these positions. The appropriate credential
issued by a state agency or national organization that licenses these 
professions
is the only requirement for assignment.

Proposed assignment criteria will ensure that teachers of students who
 are deaf or hard of hearing have appropriate communication and skills. The
 method of communication used in the classroom for delivering instruction
to students who are deaf or hard of hearing is a local decision. In most
classrooms in Texas, sign communication is the method used. Other communication
methods used in Texas classrooms are Oral/Aural and Cued Speech.

The Texas Assessment of Sign Communication (TASC) was developed to assess
 communication proficiency within any one or a combination of the five sign
 communication systems. However, there is currently no instrument available
 that appropriately assesses proficiency in the Oral/Aural and Cued Speech
 methods.

School district personnel who are appropriately certified and have the
 necessary skills and knowledge for the assignment can more effectively educate
 students.

Dr. Mark Littleton, executive director, has determined that for the first
 five-year period the section is in effect there will be fiscal implications
 for state or local government as a result of enforcing or administering the
 section. The cost for administering the TASC and TASC-ASL to assess teachers'
 signing proficiency will be supported by examinee fees. The cost to SBEC
 administering each test is $500 per test.

Dr. Littleton and Stephanie Korcheck also have 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 set standards for
the content and skills that Texas public school students must know and be
able to do. There will be no effect on small businesses. The cost to the
individual taking the exam is $72.

To submit comments on the proposal, please contact Mary Charley, Certification
 Official at (512) 469-3017, State Board for Educator Certification, 1001
 Trinity Street, Austin, Texas 78701-2603.

The amendment is proposed under the Texas Education Code (TEC),
 sec.21.041(b)(2), which requires the State Board for Educator Certification
 to propose rules that specify the classes of certificates to be offered.


TEC, sec.21.041(b)(2) is affected by the proposed amendment.



sec.230.601. Assignment of Public School Personnel.



(a) An individual who holds a valid certificate based on successful
 completion of the appropriate examination requirements specified in this
Chapter, met the assignment requirements in effect for a subject, and was
assigned to teach that subject before September 1, 1989, shall remain eligible
to teach the subject. An individual who met the assignment requirements and
was assigned to teach reading improvement, reading, or advanced reading before
September 1, 1990, shall remain eligible to teach that subject.


(b) The preparation of teachers assigned to Grades 6-8, which
 are organized on a self-contained basis, shall comply with the standards
for elementary teachers. A self-contained class shall be defined as a class
that is taught by one teacher for at least 50% of the school day.


(c) An elementary certificate may be appropriate for teaching
 high school students if the level of instruction is comparable to that in
 elementary grades. When such an assignment is made, course outlines must
be maintained in the school district files.


(d) All professional personnel employed in federally funded
 programs and innovative programs must have the qualifications and meet the
 assignment requirements specified in subsection (f) of this section.


(e) The assignment requirements in this subchapter apply to
 substitute teachers. If a school district must employ substitute teachers
 who are not certified, a list of the substitute teachers shall be retained
 in the school district files.


(f) A public school employee must have the appropriate credentials
 for his or her current assignment specified in the charts in this section,
 unless the appropriate permit has been issued under Subchapter Q of this
chapter <nl> (relating to Permits)<ol>.

Figure 19 TAC sec.230.601(f).

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 May
 4, 1998.

TRD-9806190


Dr. Mark Littleton

Executive Director

State Board for Educator Certification

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 469-3012






Chapter 232. General Requirements Appiclabe to All Certificates
 Issued


Subchapter M. Types and Classes of Certificates Issued


19 TAC sec.sec.232.500, 232.510, 232.520

The State Board for Educator Certification (SBEC) proposes
 new sec.sec.232.500, 232.510, and 232.520, concerning types and classes
 of certificates issued.

The SBEC is required by law to specify the classes of certificates to be
 issued, as well as the period of validity for each certificate. Prior to
the passage of Senate Bill 1 by the 75th Texas Legislature (1995), educator
 certificates were valid for the life of the educator, unless sanctioned by
the Commissioner of Education for criminal or unethical activity, and not
subject to renewal requirements. The Texas Education Code(TEC) requires the
 SBEC to specify the period of validity for each certificate it issues and
to establish requirements for continuing education and renewal of certificates.


The standard certificate will be issued beginning September 1, 1999, and
 will be valid for five years unless sanctioned by the SBEC. Certificates
issued prior to September 1, 1999, will continue to be valid for life unless
sanctioned by the SBEC (sec.232.500).

Certificates of current educators which were issued prior to September
 1, 1999, will be exempt from renewal and continuing professional education
 (CPE) requirements, but current educators may voluntarily choose to renew
 these certificates beginning September 1, 1999 (sec.232.810).

Educators will benefit from periodic training that is relevant to their
 individual needs as well as to state, campus, and district priorities. Students
 will be taught by educators who continue throughout their careers to enhance
 their professional and content knowledge and skills.

Dr. Mark Littleton, executive director, has determined that for the first
 five-year period the sections are in effect there will be fiscal implications
 for state or local government as a result of enforcing or administering the
 sections. The SBEC will incur costs related to the notification and auditing
 requirements in the proposed rules. Educators could be required to pay a
fee to support the administration of the continuing education and renewal
function. TEC, sec.21.041(c) limits fees to the amount necessary to administer
the duties of the agency. The amount of the renewal fee is dependent on the
specific administrative functions necessary to ensure compliance with renewal
and continuing professional education requirements as well as the costs 
associated
with approving and auditing CPE providers. These administrative procedures
must be proposed by the executive director no later than January 1, 1999.
Because for each class of educator certificate the board must appoint an
advisory committee to recommend standards for that class to the board, three
 advisory committees will meet in fiscal year 1999 at a cost of $16,200.


Dr. Littleton and Stephanie Korcheck also have determined that for each
 year of the first five years the sections are in effect the public benefit
 anticipated as a result of enforcing the sections will be the specification
 of the classes of certificates to be issued, as well as the period of validity
 for each certificate. 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.

To submit comments on the proposal, please contact Stephanie Korcheck,
 Director of Policy and Planning at (512) 469-3004, State Board for Educator
 Certification, 1001 Trinity Street, Austin, Texas 78701-2603.

The new sections are proposed under the TEC, sec.21.041(b)(2),
 which requires the SBEC to specify the classes of certificates to be issued,
 including emergency certificates; sec.21.041(b)(3) requires the SBEC to
 specify the period of validity for each certificate.

TEC, sec.21.041(b)(2) and(3) is affected by the proposed new sections.




<nl>sec.232.500. Types of Certificates.<ol>



<nl>(a) All provisional and professional lifetime educator certificates
 issued prior to September 1, 1999 shall be valid for the life of the individual
 unless suspended or revoked by lawful authority. Effective September 1, 1999
 the standard certificate shall be issued for all classes of certificates,
 except the emergency certificate, and shall be valid for no more than five
 years, subject to the requirements of Subchapter R of this title (relating
 to Certificate Renewal and Continuing Professional Education Requirements).
<ol>
<nl>

(b) Pursuant to Section 63(d), Senate Bill 1 (74th Texas Legislature),
 and not later than September 1, 2001, the board shall issue to persons holding
 a valid Texas lifetime certificate issued prior to September 1, 1999, the
 appropriate certificate without requiring the person to pay a fee or meet
 any additional requirements for the initial reissuance.<ol>

<nl>

sec.232.510. Classes of Certificates.<ol>
<nl>


The following classes of certificates are listed in paragraphs (1)-(7)
 of this section:<ol>
<nl>
(1) superintendent;<ol>
<nl>
(2) principal;<ol>

<nl>(3) classroom teacher;<ol>
<nl>
(4) learning resources specialist;<ol>
<nl>
(5) counselor;<ol>
<nl>
(6) educational aide;<ol>
<nl>
(7) emergency.<ol>



<nl>sec.232.520. Effective Date.<ol>


<nl>This subchapter shall take effect January 1, 1999.
<ol>
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 May
 4, 1998.

TRD-9806192


Dr. Mark Littleton

Executive Director

State Board for Educator Certification

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 469-3012






Subchapter R. Certificate Renewal and Continuing Professional
 Education Requirements


19 TAC sec.sec.232.800, 232.810, 232.820, 232.830, 232.840, 232.850,
 232.860, 232.870, 232.880, 232.890, 232.900

The State Board for Educator Certification (SBEC) proposes
 new sec.sec.232.800, 232.810, 232.820, 232.830, 232.840, 232.850, 232.860,
 232.870, 232.880, 232.890, 232.900, concerning certificate renewal and 
continuing
 professional education requirements.

The Texas Education Code (TEC) requires the SBEC to specify the period
 of validity for each certificate it issues and to establish requirements
for continuing education and renewal of certificates. The board proposed
rules at its October 31st SBEC meeting in order to satisfy requirements of
Senate Bill 1, 1995. These rules were published in the November 28, 1997,
issue of the Texas Register (22 TexReg 11633).
Since that time, the board amended the rules to exempt certificates issued
prior to September 1, 1999 and further modified the proposal to allow current
educators to voluntarily renew their certificates beginning September1, 1999.
 The proposed rules published previously are being withdrawn in this issue
 of the Texas Register.

Also, the board inserted language that prohibits a provider or sponsor
 from discriminating against potential participants in the provision of 
continuing
 professional education (CPE) activities and proposed a minimum number of
CPE hours for each certificate being renewed. Educators will benefit from
periodic training that is relevant to their individual needs as well as to
state, campus, and district priorities. Students will be taught by educators
who continue throughout their careers to enhance their professional and content
 knowledge and skills.

Dr. Mark Littleton, executive director, has determined that for the first
 five-year period the sections are in effect there will be fiscal implications
 for state or local government as a result of enforcing or administering the
 sections. The SBEC will incur costs related to the notification and auditing
 requirements in the proposed rules. Educators could be required to pay a
fee to support the administration of the continuing education and renewal
function. TEC, sec.21.041(c) limits fees to the amount necessary to administer
 the duties of the agency. The amount of the renewal fee is dependent on the
 specific administrative functions necessary to ensure compliance with renewal
 and continuing professional education requirements as well as the costs 
associated
 with approving and auditing CPE providers. These administrative procedures
 must be proposed by the executive director no later than January 1, 1999.


Dr. Littleton and Stephanie Korcheck also have determined that for each
 year of the first five years the sections are in effect the public benefit
 anticipated as a result of enforcing the sections will be specification of
 the period of validity for each certificate SBEC issues and established 
requirements
 for continuing education and renewal of certificates. 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.

To submit comments on the proposal, please contact Stephanie Korcheck,
 Director of Policy and Planning at (512) 469-3004, State Board for Educator
 Certification, 1001 Trinity Street, Austin, Texas 78701-2603.

The new sections are proposed under TEC, sec.21.041(b)(4),
 which requires the SBEC to specify the requirements for the renewal of a
certificate; TEC, sec.21.041(b)(9) requires the SBEC to provide for continuing
education requirements; TEC, sec.21.054 requires the SBEC to establish
 a process for identifying courses and programs that fulfill continuing 
education
 requirements; and TEC, sec.21.041(c) authorizes the board to propose rules
 adopting a fee for the issuance and maintenance of an educator certificate
 that is adequate to cover the cost of administration.

TEC, sec.21.041(b)(2),(3), (4), (9), (c) and sec.21.054 is affected
 by the proposed new sections.



<nl>sec.232.800. General Provisions.<ol>



<nl>(a) All educators should model the philosophy of life-long
 learning; therefore, participation in professional development activities
 is expected of all educators. Activities must focus on the need of each 
educator
 to continually update his or her knowledge of current content, best practices,
 research, and technology that is relevant to his or her individual role as
 an educator. The State Board for Educator Certification shall ensure that
 requirements for renewal and continuing professional education are flexible
 to allow each individual educator to identify the activities he/she will
complete to satisfy the board's requirements.<ol>


<nl>(b) The standard certificate must be renewed every five years,
 subject to the requirements of this Subchapter.<ol>
<nl>

(c) Each individual who holds a standard certificate(s) is
 responsible for renewing the certificate(s) and paying a fee for late renewal.
 Failure to receive notice of the renewal requirement or deadline does not
 excuse the individual's obligation to renew or pay applicable fees.<ol>
<nl>

(d) The board may deny renewal if the educator fails to comply
 with the requirements of this subchapter.<ol>


<nl>(e) The deadlines established for renewal, late renewals,
 and fees are established by procedures approved by the board and are subject
 to change.<ol>
<nl>

(f) The board shall deny or cancel the renewal of an educator's
 certificate(s) if required by the Texas Education Code (TEC), sec.57.491,
 regarding defaults on guaranteed student loans.<ol>
<nl>

(g) The board shall deny or cancel the renewal of an educator's
 certificate(s) suspended in accordance with the Family Code, Chapter 232,
 regarding failure to pay child support.<ol>
<nl>

(h) Reinstatements of Texas lifetime certificates revoked
 at any time shall be reissued as standard certificates and subject to the
 requirements of this subchapter.<ol>
<nl>

(i) Pursuant to TEC, sec.21.003(a), an educator employed
 by a Texas public school district who fails to satisfy each of the requirements
 to renew his or her standard certificate(s) by the renewal date moves to
inactive status and is ineligible for employment in a Texas public school
district in a position for which a certificate is required until all appropriate
 requirements are satisfied..<ol>

<nl>

sec.232.810. Voluntary Renewal of
 Current Texas Educators<ol>
<nl>

(a) Educators holding a valid Texas lifetime certificate issued
 prior to September 1, 1999, may voluntarily comply with the requirements
 of this subchapter.<ol>
<nl>

(b) The executive director shall adopt procedures to implement
 not later than September 1, 1999 voluntary renewal for current educators
who hold a certificate(s) issued prior to September 1, 1999. Upon an 
individual's
 notification to the board of the intent to renew, the board shall issue the
 appropriate standard certificate(s). An educator eligible under subsection
 (a) for voluntary renewal may choose to renew his or her standard 
certificate(s)
 every five years or at any time may revert to the lifetime certificate.<ol>
<nl>


(c) Not later than November 1 of each year, the executive
 director shall publish a report on the number of educators voluntarily renewing
 certificates under this section during the preceding fiscal year.<ol>

<nl>

sec.232.820. Renewal Date for Certificates.<ol>
<nl>


(a) The renewal date of a standard certificate shall be five
 years after the last day of the certificate holder's next birth month.<ol>
<nl>


(b) If an educator holds multiple certificates, all certificates
 will be renewed concurrently and are subject to renewal after the last day
 of the certificate holder's birth month in the year in which the earliest
 certificate was issued.<ol>

<nl>

sec.232.830. Requirements for Certificate
 Renewal.<ol>
<nl>

(a) Not later than January 1, 1999, the executive director
 shall submit to the board proposed procedures to:<ol>
<nl>
(1) notify educators at least one year prior to the expiration
 of their renewal period;<ol>
<nl>
(2) consider requests for hardship exemptions from continuing
 professional education requirements;<ol>
<nl>
(3) confirm compliance with all renewal requirements
 pursuant to this subchapter;<ol>
<nl>
(4) notify educators who are not renewed due to noncompliance
 with this section; and<ol>
<nl>
(5) verify that educators applying for reactivation of
 certificate(s) under sec.232.840(a) of this title (relating to Inactive
 Status and Late Renewal) are in compliance with subsection (b)(2)-(6) of
this section.<ol>
<nl>

(b) To be eligible for renewal, an educator must:<ol>
<nl>
(1) satisfy continuing professional education requirements,
 pursuant to sec.232.850 of this title (relating to Number and Content of
 Required Continuing Professional Education Hours);<ol>
<nl>
(2) hold a valid standard certificate that has not been
 suspended or revoked by lawful authority;<ol>
<nl>
(3) not be a defendant in a formal disciplinary action,
 which commences when notice of the filing of a petition is mailed by the
board pursuant to Chapter 137 and 157 of this title (relating to Professional
 Educator Preparation and Certification and Hearings and Appeals);<ol>
<nl>
(4) successfully resolve any criminal history, as defined
 by sec.230.414 of this title (relating to Certificates for Persons with
 Criminal Background);<ol>
<nl>
(5) not be in default on a guaranteed student loan, unless
 repayment arrangements have been made, pursuant to the Texas Education Code,
 sec.57.491;<ol>
<nl>
(6) not be in arrears of child support, pursuant to the
 Family Code, Chapter 232; and<ol>
<nl>
(7) pay the renewal fee, pursuant to sec.232.890 of
 this title (relating to Fees Payable upon Certificate Renewal or Reactivation),
 which shall be a single fee regardless of the number of certificates being
 renewed.<ol>
<nl>

(c) The executive director shall renew the certificate(s)
 of an educator who meets all requirements of this subchapter.<ol>
<nl>

(d) The board shall stay the renewal of an educator's certificate(s)
 who fails to comply with subsection (b)(3) of this section, pending resolution
 of the disciplinary action. A certificate that is not suspended or revoked
 as a result of disciplinary action shall be renewed provided that all other
 requirements have been satisfied. Payment of a late fee shall not be required
 if resolution of any disciplinary action caused the renewal to occur after
 the renewal period had expired, except in cases involving subsection (b)(5)-(6)
 of this section.<ol>

<nl>

sec.232.840. Inactive Status and
 Late Renewal.<ol>
<nl>

(a) The certificate(s) of an educator holding a valid standard
 certificate who does not satisfy the requirements of this subchapter shall
 be placed on inactive status. At any time, the educator may apply under 
procedures
 adopted by the executive director to have his or her certificate(s) reactivated
 and submit the reactivation fee. Reactivation of the educator's certificate(s)
 is subject to verification by the board that the educator is in compliance
 with sec.232.830 (b)(2)-(6) of this title (relating to Requirements for
 Certificate Renewal). The renewal date of a reactivated certificate(s) shall
 be five years after the last day of the certificate holder's next birth month.
<ol>
<nl>

(b) Under procedures approved by the board, the executive
 director shall notify a person in writing of the reason(s) for denying the
 renewal, and the actions or conditions required for removal from inactive
 status.<ol>
<nl>

(c) A person who satisfies the requirements for renewal no
 more than six months after the expiration date shall pay the appropriate
renewal and late fees, or the certificate(s) will be placed on inactive 
status.<ol>
<nl>


(d) If a person does not satisfy the required continuing professional
 education at the expiration of the renewal period, the person may have the
 certificate(s) removed from inactive status and reactivated by filing with
 the board on a form developed by the executive director evidence of completion
 of the required continuing professional education and paying any applicable
 fee(s).<ol>

<nl>

sec.232.850. Number and Content of
 Required Continuing Professional Education Hours.<ol>
<nl>

(a) Standard certificate. At least 150 clock hours of continuing
 professional education (CPE) must be completed during each five-year renewal
 period. Educators must complete a minimum of 20 clock hours of CPE each year
 of the renewal period. An educator renewing multiple certificates must complete
 a minimum of 5 CPE clock hours each year in the content area knowledge and
 skills for each certificate being renewed.<ol>
<nl>

(b) One semester credit hour earned at an accredited institution
 of higher education is equivalent to 15 CPE clock hours.<ol>
<nl>

(c) At least 80% of the CPE activities must be directly related
 to the certificate(s) being renewed and focus on the standards required for
 the initial issuance of the certificate(s), including several of the following
 listed in paragraphs (1)-(12) of this subsection:<ol>
<nl>
(1) content area knowledge and skills;<ol>
<nl>
(2) professional ethics and standards of conduct;<ol>
<nl>
(3) district and campus priorities and objectives;<ol>
<nl>
(4) child development, including research on how children
 learn;<ol>
<nl
>(5) discipline management;<ol>
<nl>
(6) applicable federal and state laws;<ol>
<nl>
(7) diversity and special needs of student populations;
<ol>
<nl>
(8) increasing and maintaining parental involvement;
<ol>
<nl>
(9) integration of technology into educational practices;
<ol>
<nl>
(10) ensuring that students read on or above grade level;
<ol>
<nl>
(11) diagnosing and removing obstacles to student achievement;
 and<ol>
<nl>
(12) instructional techniques.<ol>
<nl>

(d) Educators are encouraged to identify CPE activities based
 on results of the annual appraisal required under the Texas Education Code,
 Chapter 21, Subchapter H.<ol>

<nl>

sec.232.860. Types of Acceptable
 Continuing Professional Education (CPE) Activities.<ol>
<nl>

(a) Participation in institutes, workshops, seminars, conferences,
 in-service or staff development activities given by an approved provider
or sponsor, pursuant to sec.232.870 of this title (relating to Approval
of Continuing Professional Education Provider or Sponsor), which are related
 to or enhance the professional knowledge and skills of the educator are 
acceptable
 CPE activities.<ol>
<nl>

(b) Completion of post-graduate courses or training programs
 which are taken through an accredited institution of higher education are
 acceptable CPE activities.<ol>
<nl>

(c) Participation in interactive distance learning, video
 conferencing, or on-line activities or conferences are acceptable CPE 
activities.
<ol>
<nl>

(d) Independent study, not to exceed 20% of the required clock
 hours each year, which may include self-study of relevant professional 
materials
 (books, journals, periodicals, video and audio tapes, computer software,
and on-line information) or authoring a published work are acceptable CPE
activities.<ol>
<nl>

(e) Development of curriculum or CPE training materials is
 an acceptable CPE activity.<ol>
<nl>

(f) Teaching or presenting a CPE activity described in subsection
 (a) or (b) of this section, not to exceed 10% of the required clock hours
 each year is an acceptable CPE activity.<ol>
<nl>

(g) Providing professional guidance as a mentor educator,
 not to exceed 30% of the required clock hours each year is an acceptable
 CPE activity.<ol>

<nl>

sec.232.870. Approval of Continuing
 Professional Education Provider or Sponsor.<ol>
<nl>

(a) The following may provide and/or sponsor continuing professional
 education activities and must comply with the provisions of this section:
<ol>
<nl>
(1) State Board for Educator Certification;<ol>
<nl>
(2) Texas Education Agency;<ol>
<nl>
(3) accredited institutions of higher education;<ol>
<nl>
(4) regional education service centers;<ol>
<nl>
(5) Texas public school districts - to be creditable
 toward CPE requirements, school district in-service and/or staff development
 activities must be developed, approved, and conducted in accordance with
Texas Education Code, Chapter 21, sec.21.451;<ol>
<nl>
(6) private schools, as defined by Chapter 230, Subchapter
 Y, sec.230.801 of this title (relating to Definitions); and<ol>
<nl>
(7) entities approved under subsection (b) of this section.
<ol>
<nl>

(b) Not later than January 1, 1999, the executive director
 shall adopt procedures to approve as providers and/or sponsors national or
 statewide associations, boards, or organizations representing members of
the education profession as well as any other person, agency, or entity seeking
 to offer continuing professional education activities pursuant to the 
requirements
 of this Subchapter.<ol>
<nl>

(c) The procedures adopted by the executive director must
 require all providers or sponsors to:<ol>
<nl>
(1) notify the executive director of the intent to offer CPE
 activities;<ol>
<nl>
(2) affirm compliance with all applicable statutes and
 rules;<ol>

<nl>(3) prohibit discrimination in the provision of CPE activities
 to any certified educator;<ol>
<nl>
(4) maintain for three years documentation that each
 CPE activity:<ol>
<nl>
(A) complies with applicable board rules;<ol>
<nl>

(B) contributes to the advancement of professional knowledge
 and skills identified by standards adopted by the board for each certificate;
<ol>
<nl>

(C) is developed and presented by persons who are appropriately
 knowledgeable in the subject matter of the training being offered;<ol>
<nl>

(D) specifies the content under sec.232.850(d) of this title
 (relating to Number and Content of Required Continuing Professional Education
 Hours) and number of creditable CPE clock hours; and<ol>
<nl>

(E) lists the educators in attendance for CPE credit;<ol>
<nl>
(5) on a biennial or more frequent basis conduct
 a comprehensive, in-depth self-study to assess the CPE needs and priorities
 of educators served by the provider as well as the quality of the CPE 
activities
 offered.<ol>
<nl>

(d) At the conclusion of each activity offered for CPE credit,
 the provider or sponsor must provide to each educator in attendance written
 documentation listing the content of the activity and the number of clock
 hours creditable toward CPE requirements. The executive director shall 
establish
 a standard record of completion that must be utilized by all providers and
 sponsors.<ol>
<nl>

(e) The executive director's failure to approve a provider
 or sponsor does not entitle that provider or sponsor to a contested-case
hearing before the board or a person designated by the board to conduct 
contested-case
 hearings.<ol>
<nl>

(f) Not later than January 1, 1999, the executive director
 shall adopt procedures to receive and investigate complaints against a provider
 or sponsor alleging noncompliance with this section. The procedures shall
 include a list of available sanctions if the investigation determines that
 the provider of sponsor is operating in violation of any applicable provision
 of state law or rule.<ol>
<nl>

(g) Not later than January 1, 1999, the executive director
 shall adopt procedures to annually audit compliance with this section of
not more than 10% of the approved providers and sponsors. Any provider or
sponsor found to be in noncompliance shall be subject to the sanctions developed
under subsection (f) of this section.

<nl>

sec.232.880. Verification of Renewal
 Requirements.<ol

>
<nl>(a) Written documentation of completion of all activities
 applied toward continuing professional education (CPE) requirements shall
 be maintained by each educator.<ol>
<nl>

(b) By the date renewal is required, the educator shall verify
 through an affidavit in a manner determined by the executive director whether
 he or she is in compliance with renewal requirements, including CPE. If it
 is determined that an educator falsified any information submitted on the
 affidavit, the educator could be subject to criminal liability and sanction
 under sec.230.414 of this title (relating to Certificates for Persons with
 Criminal Background).<ol>
<nl>

(c) The executive director shall audit the required documentation
 of not more than 2.0% of educators renewed from September 1 - August 31 each
 year.<ol>
<nl>

(d) Not later than January 1, 1999, the executive director
 shall submit to the board proposed rules and procedures to administer this
 section.<ol>

<nl>

sec.232.890. Fees Payable Upon Certificate
 Renewal or Reactivation.<ol>
<nl>

Not later than January 1, 1999, the executive director shall submit
 to the board proposed rules and approve procedures to assess the following
 fees listed in paragraphs (1)-(4) of this section:<ol>
<nl>
(1) renewal fee -- payable at the time of renewal to support
 the functions of the board, including renewal, investigations, and enforcement;
<ol>
<nl>
(2) reactivation of inactive certificate -- payable upon
 application to reactivate;<ol>

<nl>(3) late renewal fee;<ol>
<nl>
(4) reinstatement following restitution for default on
 student loan or nonpayment of child support.<ol>

<nl>

sec.232.900. Effective Date.<ol>


<nl>This subchapter shall take effect January 1, 1999.<ol>

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 May
 4, 1998.

TRD-9806194


Dr. Mark Littleton

Executive Director

State Board for Educator Certification

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 469-3012






TITLE 22 EXAMINING BOARDS

Part XIV. Texas Optometry Board


Chapter 271. Examinations


22 TAC sec.271.1

The Texas Optometry Board proposes the adoption of an amendment
 to sec.271.1, regarding definitions under Chapter 271. Examinations. The
 amendment, if adopted, will correct existing rule language by replacing the
 definition of APTRA with the definition for APA and existing definitions
will be numbered as required by the Texas Register.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public will be informed of
the correct and applicable legal cite and because the amendment to the rule
does not require any additional duties for optometrists, there are no 
anticipated
economic costs to persons required to comply with the rule as proposed.


Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Articles 4552-2.14 and 4552-3.01.

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.3.01 as authorizing the entry level
 examination for licensure.

Texas Civil Statute, Article 4552-2.14, is affected by this proposed action.




sec.271.1. Definitions.


The following words and terms, when used in this chapter, shall have
 the following meanings, unless the context clearly indicates otherwise.


<nl>(1) <ol Act--The Texas Optometry Act, Texas Civil Statutes,
 Article 4552.

<nl>(2) APA <ol> [APTRA]--The Administrative
 Procedure [and Texas Register] Act, Government Code, Chapter
 2001.

<nl>(3) <ol> Board--The Texas Optometry Board.

<nl>(4) <olContested case--A proceeding, including but not
 restricted to licensing, in which the legal rights, duties, or privileges
 of a party are to be determined by the board after an opportunity for 
adjudicative
 hearing.

<nl>(5) <ol> Executive director--Executive director of the
 Texas Optometry Board.

<nl>(6) <ol> PFD--Proposal for decision.
<nl>
(7) <ol> Respondent--A person against whom a formal charge
 has been made alleging conduct that violates the Act or rules, regulations,
 or orders of the board and whose legal rights are to be determined by the
 board after the opportunity for an adjudicative hearing in a contested case
 as defined by the APTRA.

<nl>(8) <ol> SOAH--State Office of Administrative Hearings.


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
 May 1, 1998.

TRD-9806104


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.271.2

The Texas Optometry Board proposes the adoption of an amendment
 to sec.271.2, regarding applications for examination. The amendment, if
 adopted, will allow an applicant for licensure to supply references of good
 moral character from licensed optometrists in a state other than Texas on
 the required examination application and will reduce the time required for
 filing applications.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is the assurance that candidates for licensure
have met all requirements to obtain and hold a valid license to practice
and because the amendment to the rule does not require any additional duties
for optometrists, there are no anticipated economic costs to persons required
 to comply with the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Articles 4552-2.14, 4552-3.02, and 4552-3.03.

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
profession. The Board interprets sec.3.02 as authorizing the procedures
 for application to take the examination and interprets sec.3.03 as authorizing
 procedures for submitting the examination fee.

Texas Civil Statutes, Articles 4552-3.02 and 4552-3.03, are affected by
 this proposed action.



sec.271.2. Applications.


(a) (No change.)


(b) Such application shall contain references as to good moral
 character from at least two <nl>licensed <ol>optometrists [licensed
 by the State of Texas] <nl> in good standing in the state of licensure
 <ol> and who are actively engaged in the practice of optometry [in
 this state]. In the event this is not possible, affidavits from two
persons not related to the applicant or to each other, who have known the
applicant for at least five years, attesting to the good moral character
of the applicant, will be acceptable.


(c) - (f) (No change.)


(g) The completed application and examination fee must be
 filed with the executive director not later than <nl>30 <ol> [45]
 days prior to the date of the examination. In the event an applicant intends
 to retake the examination, the fee therefor and the notice of this intention
 to retake said examination must also be in the executive director's office <nl>
 30<ol> [45] days prior to the date of the examination.


(h) - (i) (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
 May 1, 1998.

TRD-9806103


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.271.3

The Texas Optometry Board proposes the adoption of an amendment
 to sec.271.3, regarding examination administration. The amendment, if adopted,
 will clarify the rule language by changing the title to Jurisprudence 
Examination
 Administration as well as clarify the procedures by which the examination
 is administered. The amendment will also specify that the jurisprudence 
examination
 can be administered in conjunction with Part III of the NBEO, provided the
 applicant has graduated from an approved college of optometry and has completed
 application with the board, and the amendment removes the requirement for
 a board member to be present during the examination.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public will be assured that
candidates for licensure have met all requirements to obtain and hold a valid
license to practice and because the amendment to the rule does not require
any additional duties for optometrists, there are no anticipated economic
costs to persons required to comply with the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Articles 4552-2.14, 4552-3.01, 4552-3.02, and 4552-3.06.


The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.3.01 as authorizing the entry level
examination for licensure. The Board interprets sec.3.02 as authorizing
the procedures for application to take the examination and interprets sec.3.06
as authorizing the conduct of examination.

Texas Civil Statutes, Articles 4552-3.01, 4552-3.02 and 4552-3.06, are
 affected by this proposed action.



sec.271.3. <nl>Jurisprudence<ol> Examination Administration.



(a) Examination for a license to practice optometry in this
 state shall be conducted in the English language in writing and by such other
 means as the board shall determine adequate to ascertain the qualifications
 of the applicant. Each applicant shall be given due notice of the date and
 place of examination. <nl>The board shall administer the jurisprudence
 examination at least on a quarterly schedule.<ol>


(b) Prior to an examination, the executive director or a member
 of the board designated by the <nl>chair<ol> [chairman] shall
 prepare a tentative schedule showing the time allotted to each examination
 [and the order in which each will be given, said schedule to meet the
 approval of a majority of the members of the board. The tentative schedule
 of examination, and any changes made therein as the examination proceeds,
 shall be made known to the applicants during each day of the examination
].


(c) The examination shall [consist of three sections,
 one of which shall be the National Board Examination (in lieu of a state
written examination), one shall be practical, and one shall] be a written
 jurisprudence examination. The passing grade [for the practical shall
 be 70 and the passing grade] on the jurisprudence written test shall
 be 70. <nl> In addition, passing scores from the National Board of Examiners
in Optometry (NBEO) Examination will be required for licensure under sec.271.6
 of this title (relating to National Board Examination).<ol>


(d) (No change.)


(e)<nl> The executive director or designee<ol> [One
 member of the board] shall at all times be in the examination room
 while the examination is in progress and no persons except applicants, board
 members, employees of the board, or persons having the express permission
 of the board shall be permitted in the examination rooms.


(f) At the beginning of an examination each applicant shall <nl>
 select<ol> [be assigned] a number. Applicants shall use the
 number [assigned to them] for purposes of identification throughout
 the examination, and no applicant name or any other identification mark other
 than the <nl>selected <ol> [assigned] number shall be entered
 on any paper containing answers to the questions of an examination. Members
 of the board shall in every way endeavor to avoid identification of an 
applicant
 prior to the awarding of the general averages.


(g) <nl>Examination <ol>[When examination] papers
 are [delivered to the presiding examiner they become] the property
 of the board and shall not be returned to the applicant. [Each board
 member shall be responsible for his own examination papers until after final
 grading and awarding of general averages.] All test papers must[
, at this point,] be retained in the board office to be preserved for
 a period of 30 days after final grading in order to allow an unsuccessful
 candidate the opportunity to request an analysis of such person's performance,
 which request must be made in writing within such 30-day period.

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
 May 1, 1998.

TRD-9806102


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.271.4

(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 Optometry Board or in the Texas Register office, Room 245, James
 Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Optometry Board proposes the repeal of
 sec.271.4, regarding reexaminations. The repeal, if adopted, will remove
 rule language which is not applicable since the Board no longer administers
 a clinical or written examination as previously given and language regarding
 the retaking of an examination exists under current language in sec.271.6.


Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the repeal of the rule is in effect,
there will be no fiscal implications for state and local governments as a
result of enforcing or administering the rule. The repeal imposes no duties
on small businesses, and thus there will be no economic effect on small 
businesses.


Lois Ewald also has determined that for each of the first five years the
 repeal is in effect, the public benefit anticipated as a result of repealing
 the rule is that the general public will be assured that candidates for 
licensure
 have met all requirements to obtain and hold a valid license to practice
and because the repeal of the rule does not require any additional duties
for optometrists, there are no anticipated economic costs to persons required
 to comply with the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The repeal is proposed under the Texas Optometry Act, Texas Civil
 Statutes, Article 4552-2.14, 4552-2.01, 4552-3.02, and 4552-3.06.

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.3.01 as authorizing the entry level
examination for licensure. The Board interprets sec.3.02 as authorizing
 the procedures for application to take the examination and interprets sec.3.06
 as authorizing the conduct of examination.

Texas Civil Statutes, Articles 4552-3.01, 4552-3.02, and 4552-3.06, are
 affected by this proposed action.


sec.271.4. Reexaminations.

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
 May 1, 1998.

TRD-9806101


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.271.6

The Texas Optometry Board proposes the adoption of an amendment
 to 271.6, regarding the national board examination required for licensure
 in Texas. The amendment will correct the existing rule and clarify requirements
 for examination for licensure since the Board no longer administers a clinical
 or written.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is the assurance that candidates for licensure
have met all requirements to obtain and hold a valid license to practice
and because the amendment to the rule does not require any additional duties
for optometrists, there are no anticipated economic costs to persons required
to comply with the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Articles 4552-2.14, 4552-3.01, and 4552-3.06.

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.3.01 as authorizing the entry level
 examination for licensure. The Board interprets sec.3.06 as authorizing
the conduct of examination.

Texas Civil Statutes, Articles 4552-3.01 and 4552-3.06, are affected by
 this proposed action.



sec.271.6. National Board Examination.


(a) (No change.)


(b) The board determines that the practical examination known
 as Part III by the National Board of Examiners in Optometry (NBEO) complies
 in all material respects with the practical examination requirements of the
 Act, sec.3.05 and sec.3.06. The passing scores on Part III shall be determined
 by the NBEO. [Beginning June 1, 1995, an applicant for licensure shall
 have the option to sit for the practical examination given by the Texas 
Optometry
 Board or Part III of the NBEO. It is the intent of the board to eliminate
 its practical examination after the administration of the June 1996 
Examination.
] The board will accept scores from an NBEO Part III examination if
 Part III was satisfactorily completed on or after June of 1994.


(c) - (d) (No change.)


(e) In addition to the <nl>NBEO <ol> [written and practical
] examinations referenced in subsections (a) and (b) of this section,
 all applicants shall take and pass a written jurisprudence examination given
 by the Texas Optometry Board in order to be eligible for licensure. [
After the administration of the June 1996 Examination, the]<nl> The 
<ol> board shall administer the jurisprudence written examination at least
 on a quarterly schedule.<nl> The jurisprudence examination can be administered
 in conjunction with Part III of the NBEO, provided the applicant has graduated
 from an approved college of optometry and has completed application with
 the board.<ol>


(f)(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
 May 1, 1998.

TRD-9806100


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502






Chapter 273. General Rules


22 TAC sec.273.1

The Texas Optometry Board proposes the adoption of an amendment
 to sec.273.1, regarding alternatives to surrender of license when a license
 has not been renewed. The amendment, if adopted, will correct the rule language
 grammatically.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public can be assured that
doctors of optometry practicing within the state have met all the renewal
of license requirements and are currently licensed to practice therapeutic
optometry and because the amendment to the rule does not require any additional
duties for optometrists, there are no anticipated economic costs to persons
required to comply with the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-2.14 and 4552-4.04.

The Board interprets sec.2.14 as authorizing the adoption of procedural
 and substantive rules for the regulation of the optometric profession and
 interprets sec.4.04 as authorizing procedures for the renewal of licenses.


Texas Civil Statutes, Article 4552-4.04 is affected by this proposed action.




sec.273.1. Surrender of License.


Any person formerly licensed to practice optometry in this state, who
 receives notification from the board that the person's license to practice
 optometry has expired for failure to pay the annual renewal fee, shall within
 10 days of receipt of such notification from the board either pay the 
applicable
 renewal fee or surrender the license by mailing or otherwise delivering such
 license to the board office. Alternatively, rather than physically surrender
 the license, the person may file with the board an affidavit in the form
acceptable to the executive director to the effect that such person is not <nl>
 practicing <ol>and will not practice optometry.

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
 May 1, 1998.

TRD-9806116


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.273.4

The Texas Optometry Board proposes the adoption of an amendment
 to sec.273.4, regarding fees assessed for therapeutic certification. The
 amendment, if adopted, will clarify the fees for therapeutic certification
 and duplicate therapeutic certificate.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
 enforcing the amended rule is that the general public can be assured that
 doctors of optometry practicing within the state have met all educational
and licensing requirements to practice therapeutic optometry and because
the amendment to the rule does not require any additional duties for 
optometrists,
there are no anticipated economic costs to persons required to comply with
 the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-1.03, 4552-2.14, 4552-3.03.

The Board interprets sec.2.14 as authorizing the adoption of procedural
 and substantive rules for the regulation of the optometric profession. The
 Board interprets sec.1.03 and sec.3.03 as authorizing the establishment
 of fees for therapeutic optometry.

Texas Civil Statutes, Articles 4552-1.03 and 4552-3.03, are affected by
 this proposed action.



sec.273.4. Fees (Not Refundable).


(a) - (j) (No change.)


(k) Therapeutic Certification Application --<nl> $80.<ol>[
 55.]


(l) <nl> Duplicate <ol>Therapeutic Certificate <nl>(lost,
 destroyed) <ol>--$25.

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
 May 1, 1998.

TRD-9806115


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.273.5

The Texas Optometry Board proposes the adoption of an amendment
 to sec.273.5, regarding limited license for clinical faculty. The amendment,
 if adopted, will clarify duties of deans of educational institutions in 
issuance
 of limited faculty licenses.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public can be assured that
doctors of optometry practicing within the educational system have met all
educational and licensing requirements and because the amendment to the rule
does not require any additional duties for deans of optometry schools, there
are no anticipated economic costs to persons required to comply with the
 rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Articles 4552-2.14 and 4552-3.09.

The Board interprets sec.2.14 as authorizing the adoption of procedural
 and substantive rules for the regulation of the optometric profession. The
 Board interprets sec.3.01 sec.3.08 as authorizing the procedures for
provisional licensure prior to examination. The Board interprets sec.3.09
as authorizing the issuance of a limited license to a clinical faculty member.


Texas Civil Statutes, Article 4552-3.09, is affected by this proposed action.




sec.273.5. Limited License for Clinical Faculty.


(a) (No change.)


(b) Duties and Responsibilities of Dean of Institution. As
 a condition to continued approval of the institution, the board imposes the
 following duties and responsibilities upon the dean of the institution relating
 to those faculty members performing professional optometric services in 
programs
 of the institution. The dean shall:

[(1) annually certify to the board the names
 and addresses of the optometry members of the faculty who are not currently
 licensed to practice optometry or therapeutic optometry in Texas;]


[(2) promptly notify the board of any
 changes in optometry personnel on the faculty;]

<nl>(1)<ol> [(3)] furnish each applicant for a
 limited faculty license a certificate that such applicant is a bona fide
 member of the faculty;

<nl> (2)<ol> [(4)] report immediately to the board
 any information received relating in any way to a member of the faculty holding
 only a limited license who is performing professional optometric services
 other than as an adjunct to such faculty member's function at the institution.
 Every reasonable means to prevent such unlawful practice shall be used by
 the dean;

<nl>(3)<ol> [(5)] cooperate fully and completely
 with the board toward the end that the limited license provided will be used
 only for the purpose for which it is intended;

<nl>(4) promptly notify the board of any
 changes in limited license personnel on the faculty.<ol>


(c) - (f) (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
 May 1, 1998.

TRD-9806114


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.273.6

The Texas Optometry Board proposes the adoption of an amendment
 to sec.273.6, regarding provisional license. The amendment, if adopted,
 will clarify testing requirements for provisional licensees wishing to obtain
 a license to practice therapeutic optometry.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public can be assured that
doctors of optometry practicing within the state have met all educational
and licensing requirements to practice therapeutic optometry and because
amendment to the rule does not require any additional duties for licensure
candidates, there are no anticipated economic costs to persons required to
 comply with the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendments are proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552- 2.14 and 4552-3.08.

The Board interprets sec.2.14 as authorizing the adoption of procedural
 and substantive rules for the regulation of the optometric profession. The
 Board interprets sec.3.08 as authorizing the procedures for provisional
 licensure prior to examination.

Texas Civil Statutes, Article 4552-3.08, is affected by this proposed action.




sec.273.6. Provisional License.


(a) Requirements for Provisional License. On application for
 examination, a candidate may apply for a provisional license under the 
following
 circumstances:

(1) (No change.)

(2) the applicant must have passed the National Board
 of Examiners in Optometry (NBEO) Examination<nl> Parts I and II, <ol>
after January 1, 1984, <nl>and Part III after June of 1994,<ol> as well
as the Treatment and Management of Ocular Disease (TMOD) Examination after
 January of 1985 and must submit a true and correct copy of the applicant's 
score report;

(3) - (5) (No change.)


(b) - (e) (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
 May 1, 1998.

TRD-9806113


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.273.7

The Texas Optometry Board proposes the adoption of an amendment
 to sec.273.7, regarding inactive license. The amendment, if adopted, will
 correct the rule language grammatically.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public can be assured that
person's desiring to reactivate their license will understand the requirements
and because the amendment to the rule does not require any additional duties
for optometrists, there are no anticipated economic costs to persons required
to comply with the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-2.14 and 4552-3.10.

The Board interprets sec.2.14 as authorizing the adoption of procedural
 and substantive rules for the regulation of the optometric profession. The
 Board interprets sec.3.10 as authorizing the provision for a licensee to
 place their license on inactive status.

Texas Civil Statutes, Article 4552-3.10, is affected by this proposed action.




sec.273.7. Inactive Licenses.


(a) (No change.)


(b) Reactivation of an Inactive License.

(1) (No change.)

(2) If the application for reactivation of the license
 is made at the time of license renewal, the applicant shall pay the license
 renewal fee specified in sec.273.4 of this title (relating to Optometry
 Fees). If the application for reactivation of the license is made at a time
 other than the time <nl>of <ol>license renewal, the applicant shall pay
 the license renewal fee as well as a fee for issuance of an amended certificate
 to practice optometry as specified in sec.273.4 of this title.


(c) (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
 May 1, 1998.

TRD-9806112


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.273.8

The Texas Optometry Board proposes the adoption of an amendment
 to sec.273.8, regarding renewal of license. The amendment, if adopted,
will establish a late penalty fee to be charged to individuals, along with
the continuing education penalty fee, who have not met mandatory continuing
education requirements in compliance with the law.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public can be assured that
doctors of optometry practicing within the state have met all educational
and licensing requirements to practice therapeutic optometry. Anticipated
economic costs are additional fee for optometrists who have not timely met
continuing education requirements.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendments are proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-2.14, 4552-4.01, and 4552-4.01B.

The Board interprets sec.2.14 as authorizing the adoption of procedural
 and substantive rules for the regulation of the optometric profession. The
 Board interprets sec.4.01 as authorizing an annual renewal fee and late
 penalty fees and sec.4.01B as authorizing the requirement of continuing
 education including penalty for not timely obtaining the mandatory continuing
 education.

Texas Civil Statutes, Articles 4552-4.01 and 4552-4.01B, are affected by
 this proposed action.



sec.273.8. Renewal of License.


(a) (No change.)


(b) Mandatory Continuing Education for Renewal of License.


(1) - (3) (No change.)

(4) The licensee must pay to the board the license renewal
 fee<nl> with a late penalty fee authorized by sec.4.01 of the Act <ol>plus
 a penalty <nl>authorized by sec.4.01B <ol>in an amount equal to the
amount of the license renewal fee.

(5) - (6) (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
 May 1, 1998.

TRD-9806111


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502






Chapter 277. Practice and Procedure


22 TAC sec.277.2

The Texas Optometry Board proposes the adoption of an amendment
 to sec.277.2, regarding disciplinary procedures. The amendments if adopted,
 will specify that the board's legal counsel may attend the informal conference.
 The current rules specify that an attorney employed by the Office of the
Attorney General attends the informal conferences.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the Board members will make informed 
decisions
by having legal counsel available, thus resulting in reduction of state lawsuits
 and because the amendment to the rule does not require any additional duties
 for optometrists, there are no anticipated economic costs to persons required
 to comply with the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendments are proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-2.14, 4552-4.04, and 4552-4.05.

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.4.04 as authorizing the Board to establish
the procedures for informal conferences and sec.4.05 as authorizing an
administrative penalty against a person licensed or regulated under the Act.


Texas Civil Statutes, Article 4552-4.04 is affected by this proposed action.




sec.277.2. Disciplinary Proceedings.


(a) (No change.)


(b) Informal disposition of contested case. Prior to the imposition
 of disciplinary sanctions against a license, the licensee shall be offered
 an opportunity to attend an informal conference and show compliance with
all requirements of law, in accordance with the APA.

(1) Informal conferences shall be attended by the executive
 director, <nl> the board's legal counsel,<ol> [an attorney employed
 by the Office of the Attorney General,] a member of the Investigation-
Enforcement
 Committee, and other representatives of the board as the executive director
 and legal counsel may deem necessary for the proper conduct of the conference.
 The licensee and/or the licensee's authorized representative may attend the
 informal conference and shall be provided an opportunity to be heard.

(2) - (4) (No change.)


(c) (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
 May 1, 1998.

TRD-9806110


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502






Chapter 279. Interpretations


22 TAC sec.279.5

The Texas Optometry Board proposes an amendment to sec.279.5
 which will specify examination steps that the optometrist or therapeutic
optometrist must perform in the initial examination of a patient, allowing
assistants to perform certain examination steps and identifying certain 
instrumentation
 which will satisfy certain tests.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule will be the protection of the public health through
the establishment of practice guidelines that optometrists or therapeutic
optometrists must follow to assure competent examination and because the
amendment to the rule does not require any additional duties for optometrists,
there are no anticipated economic costs to persons required to comply with
 the rule as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Articles 4552-2.14 and 4542-5.12.

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.5.12 as authorizing the interpretation
of what constitutes the specific basic competence steps of an initial 
examination
 as required by the Act.

Texas Civil Statutes, Article 4552-5.12 is affected by this proposed action.




sec.279.5. Board Interpretation Number Five.


<nl>(a) The optometrist or therapeutic optometrist
 shall, in the initial examination of the patient for whom ophthalmic lenses
 are prescribed, personally make and record, if possible, the following findings
 of the conditions of the patient:<ol>

<nl>(1) biomicroscopy examination (lids, cornea,
 sclera, etc.), using a binocular microscope;<ol>

<nl>(2) internal ophthalmoscopic examination
 (media, fundus, etc.), using an ophthalmoscope or biomicroscope with fundus
 condensing lenses; videos and photographs may be used only for documentation
 and consultation purposes but do not fulfill the internal ophthalmoscopic
 examination requirement; and<ol>

<nl>(3) subjective findings, far point and
 near point; <ol>


<nl>(b) When it is not possible to make and record
 the findings in subsection (a) of this section, the optometrist or therapeutic
 optometrist shall notate in the patient's record the reasons the findings
 are not possible. <ol>


<nl>(c) An assistant present in the same office
 with the optometrist or therapeutic optometrist may make and record other
 findings required by sec.5.12 of the Act, except those required by subsection
 (a) of this section. When it is not possible to make and record the findings
 in subsection (a) of this section, the optometrist or therapeutic optometrist
 shall notate in the patient's record the reasons the findings are not possible
 The authorization for assistants to make and record certain sec.5.12 findings
 does not relieve the optometrist or therapeutic optometrist of professional
 responsibility for the proper examination and recording of each finding 
required
 by sec.5.12 of the Act.<ol>


[(a) The Texas Optometry Act makes no provision
 for nonlicensed employees performing any of those acts defined as the practice
 of optometry which requires professional judgment but expressly forbids same.
 There is no such thing as supervision of nonlicensed employees by an 
optometrist
 or therapeutic optometrist while performing those acts which only optometrists
 or therapeutic optometrists can do under the Texas Optometry Act. For anyone
 other than an optometrist or therapeutic optometrist to do any thing or act
 defined as the practice of optometry or therapeutic optometry is in violation
 of the Act, sec.1.02(3)(c), which states: "It shall be construed as a violation
 of this Act for any person not a licensed optometrist, therapeutic optometrist,
 or physician to do any one thing or act, or any combination of things or
acts, named or described in this Article."]


[(b) The Act, sec.1.02, defines the practice
 of optometry and therapeutic optometry, and only a licensed optometrist or
 therapeutic optometrist can do those things set out in that section.]



[(c) Assistants to optometrists are permitted
 to perform the following duties or acts, or both, under the direction and
 supervision of a licensed optometrist or therapeutic optometrist, when working
 in the same office, which do not necessarily require the use of professional
 judgment:]

[(1) case history;]

[(2) visual acuities;]

[(3) angle of vision, to right and left,
 and/or autoperimetry;]

[(4) visual skills;]

[(5) instruction of the patient in the
 technique of insertion and removal of contact lenses and the proper hygiene,
 care, and storing of lenses;]

[(6) tonometry;]

[(7) visual training;]

[(8) autorefraction (satisfying the requirement
 for static retinoscopy);]

[(9) other duties or acts as determined
 by the board.]


[(d) When done in strict conformity with subsection
 (c) of this section, these acts will be construed by the board to have been
 done by the optometrist.]


[(e) The optometrist or therapeutic optometrist
 shall, in the initial examination of the patient, make and record, if possible,
 the following findings of the condition of the patient, but not necessarily
 limited to the following findings:]

[(1) biomicroscopy slit lamp examination (lids,
 cornea, sclera, etc.);]

[(2) internal ophthalmoscopic examination
 (media, fundus, etc.);]

[(3) static retinoscopy, O.D., O.S.,
 and/or autorefraction; autorefraction may be performed by the optometrist
 or the optometric assistant, but static retinoscopy must be performed by
 the optometrist;]

[(4) subjective findings, far point and
 near point;]

[(5) assessment of binocular function;
 and]

[(6) amplitude or range of accommodation.
]


<nl>(d)<ol> [(f)] The willful or repeated failure
 or refusal of an optometrist or therapeutic optometrist to comply with any
 of the requirements in the [Texas Optometry] Act, sec.5.12(a)
 and (b), shall be considered by the board to constitute prima facie evidence
 that the licensee is unfit or incompetent by reason of negligence within
the meaning of the Act, sec.4.04(a)(3), and shall be sufficient ground
 for the filing of charges to cancel, revoke, or suspend the license. The
 charges shall state the specific instances in which it is alleged that the
 rule was not complied with. <nl>After the board has produced evidence of
the omission of a finding required by sec.5.12, the burden shifts to the
licensee to establish that the making and recording of the findings was not
possible.<ol> [At a hearing pursuant to the filing of such charges,
 the person charged shall have the burden of establishing that compliance
 with the rule in each instance in which proof is adduced that it was not
 complied with was not necessary to a proper examination of the patient in
 that particular case (sec.5.12).]

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
 May 1, 1998.

TRD-9806109


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.279.14

The Texas Optometry Board proposes an amendment to sec.279.14,
 which will specify that contact lens prescriptions can be telephoned or faxed
 only if the patient needs an emergency refill.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to rule imposes no
duties on small businesses, and thus there will be no economic effect on
small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule will be the protection of the public health by
clarifying the form of an acceptable prescription for dispensing contact
lenses under certain circumstances and because the amendment to the rule
does not require any additional duties for optometrists, there are no 
anticipated
economic costs to persons required to comply with the rule as proposed.


Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-1.02, 4552-2.14 and Article 4552A, V.T.C.S.,
 (Texas Contact Lens Prescription Act).

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.1.02 as authorizing the interpretation
of a fully-written contact lens prescription as required by the Act including
the format of a prescription in an emergency situation as provided for in
Article 4552A.

Texas Civil Statutes, Article 4552-1.02, is affected by this proposed action.




sec.279.14. Board Interpretation Number Fourteen.



(a) (No change.)


(b) A prescription for spectacles, contact lenses, or ophthalmic
 devices is defined as a written order signed by the examining optometrist,
 therapeutic optometrist or physician. A prescription for medications may
be verbal or written. A facsimile (FAX) prescription is not considered a
valid prescription. <nl>Under the Texas Contact Lens Prescription Act, if
the optometrist or therapeutic optometrist determines the patient needs an
emergency refill of the contact lens prescription, the prescription may be
telephoned or faxed to a person authorized to fill the prescription.<ol>



(c) (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
 May 1, 1998.

TRD-9806108


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.279.15<

The Texas Optometry Board proposes an amendment to sec.279.15,
 which will grammatically correct rule language concerning definitions of
infectious or contagious diseases.

Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule will be the protection of the public health through
the establishment of practice guidelines that optometrists or therapeutic
optometrists must follow when practicing while knowingly suffering from an
infectious or contagious disease and because the amendment to the rule does
not require any additional duties for optometrists, there are no anticipated
economic costs to persons required to comply with the rule as proposed.


Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-2.14 and 4552-5.08

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.5.08 as authorizing the adoption of
rules prohibiting an optometrist or therapeutic optometrist from practicing
while knowingly suffering from a contagious disease.

Texas Civil Statutes, Article 4552-5.08, is affected by this proposed action.




sec.279.15. Board Interpretation Number Fifteen.


The Texas Optometry Act, sec.5.08(a), requires that no licensed optometrist
 or therapeutic optometrist practice optometry or therapeutic optometry while
 knowingly suffering from a contagious or infectious disease, if the disease
 is one that could reasonably be transmitted in the normal performance of
optometry or therapeutic optometry. For purposes of interpretation, a 
"contagious
or infectious disease" is defined as a "disease capable of being transmitted
 from one person to another by contact or close proximity." Infectious agents
 transmitted from one person to another by contact or close proximity would
 include bacteria and viruses. A licensee shall be deemed practicing while
 knowingly suffering from an infectious or contagious disease when a medical
 diagnosis of that disease has been made. <nl>The following include but are
 not limited to infectious diseases or diseases that can be transmitted:<ol>

(1) Infectious agents which may be transmitted by direct contact
 or by respiratory route include: chickenpox, common cold, infectious 
mononucleosis,
 influenza, mycoplasma pneumonia, measles, meningococcal disease, mumps, 
pertussis,
 rubella and tuberculosis.

(2) Diseases that could be transmitted by direct contact
 include: chlamydia trachomatous infections, herpes simplex viruses, 
staphylococcal
 infections, streptococcal infections, and bacterial and viral conjunctivitis.


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
 May 1, 1998.

TRD-9806107


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502






Chapter 280. Therapeutic Optometry


22 TAC sec.280.1

The Texas Optometry Board proposes the adoption of an amendment
 to sec.280.1 regarding application for therapeutic optometry certification
 and related fee. The amendment, if adopted, will clarify existing rule language
 by stating that the application fee of $80 is required for therapeutic 
certification
 rather than two separate fees of $55 for the examination and $25 for 
certification.


Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public can be assured that
therapeutic optometrists practicing within the state have met all educational
and licensing requirements to practice and because the amendment to the rule
does not require any additional duties or fees for optometrists, there are
no anticipated economic costs to persons required to comply with the rule
as proposed.

Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-1.03, 4552-2.14 and 4552-3.03.

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.1.03 as authorizing the interpretation
of the therapeutic optometry requirements established by the Act. The Board
interprets sec.3.03 as authorizing the Board to establish fees for examination
 certification.

Texas Civil Statutes, Articles 4552-1.03 and 4552-3.03 are affected by
 this proposed action.



sec.280.1. Application for Certification.


(a) - (b) (No change.)


(c) An application for certification must be completed by
 the applicant, signed and notarized, and forwarded to the board along with
 an application fee of <nl>$80 <ol> [$55]. Proof of the required
 education as set forth in sec.280.2 of this title (relating to Required
 Education) must accompany the application form.


(d) <nl> Successful<ol> [Once the board has approved
 the application and required education, and has received successful]
 examination results <nl> of the Treatment and Management of Ocular Disease
 (TMOD) Examination must be submitted<ol> [, the optometrist will be
 notified, and a certification fee of $25 must be submitted] prior to
 the issuance of the certificate to practice as a therapeutic optometrist.
 The certificate must be displayed along with the initial license in a 
conspicuous
 place in the principal office where the optometrist practices.


<no>(e) - (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
 May 1, 1998.

TRD-9806120


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502





22 TAC sec.280.2

The Texas Optometry Board proposes the adoption of an amendment
 to sec.280.2, regarding required education for therapeutic certification.
 The amendment, if adopted, will clarify existing rule language by changing
 the name of the Therapeutic Education Committee to Continuing Education 
Committee.


Lois Ewald, executive director of the Texas Optometry Board, has determined
 that for the first five-year period the amended rule is in effect, there
will be no fiscal implications for state and local governments as a result
 of enforcing or administering the rule. The amendment to the rule imposes
no duties on small businesses, and thus there will be no economic effect
on small businesses.

Lois Ewald also has determined that for each of the first five years the
 amended rule is in effect, the public benefit anticipated as a result of
enforcing the amended rule is that the general public can be assured that
therapeutic optometrists practicing within the state have met all educational
and licensing requirements to practice and because the amendment to the rule
does not require any additional duties for optometrists, there are no 
anticipated
economic costs to persons required to comply with the rule as proposed.


Comments on the proposal may be submitted to Lois Ewald, Executive Director,
 Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas 78701-
3942.
 The deadline for furnishing comments is June 15, 1998.

The amendment is proposed under the Texas Optometry Act, Texas
 Civil Statutes, Article 4552-1.03 and 4552-2.14.

The Texas Optometry Board interprets sec.2.14 as authorizing the adoption
 of procedural and substantive rules for the regulation of the optometric
 profession. The Board interprets sec.1.03 as authorizing the interpretation
of the therapeutic optometry requirements established by the Act.

Texas Civil Statutes, Article 4552-1.03 is affected by this proposed action.




sec.280.2. Required Education.


(a) (No change.)


(b) In order to assure that therapeutic optometrists are current
 and proficient in up-to-date therapeutic knowledge and techniques, optometrists
 having [been] graduated prior to January 1, 1991, shall obtain
 a minimum of 90 classroom hours in postgraduate courses of general and ocular
 pharmacology and related pathology. Optometrists graduated after January
1, 1991, shall be considered as having met the educational requirements.



(c) To be acceptable, courses of classroom hours must receive
 prior approval by the board, upon recommendation of the <nl>Continuing 
<ol> [Therapeutic] Education Committee. Any courses taken subsequent
 to January 1, 1991, and prior to September 1, 1991, may be submitted for
 consideration of approval by the board. Approved courses may be given only
 by accredited colleges and schools of optometry or via other educational
 programs 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
 May 1, 1998.

TRD-9806119


Lois Ewald

Executive Director

Texas Optometry Board

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-8502






Part XVIII. Texas State Board of Podiatric Medical Examiners



Chapter 378. Continuing Education


22 TAC sec.378.8

The Texas State Board of Podiatric Medical Examiners proposes
 an amendment to sec.378.8 concerning Inactive License Status. The amendments
 are being proposed to clarify the requirements for having an inactive license.


Allen M. Hymans, Executive Director, has determined that for each year
 of the first five years the sections are in effect there will be no fiscal
 implications for state or local government as a result of enforcing or 
administering
 these sections.

Mr. Hymans has also determined that for each year for the first five years
 the rule is in effect the public benefit anticipated as a result of enforcing
 the rule will be the understanding that the renewal fee must still be paid
 each year even if you are on inactive status. There will be no effect on
small businesses.

Comments on or about the proposal may be submitted to Janie Alonzo, Staff
 Services Officer I, Texas State Board of Podiatric Medical Examiners, P.O.
 Box 12216, Austin, Texas 78711-2216.

The amendments are proposed under Texas Civil Statutes, Article
 4568(j), which provides the Texas State Board of Podiatric Medical Examiners
 with the authority to adopt all reasonable or necessary rules, regulations,
 and by-laws not inconsistent with the law regulating the practice of podiatric
 medicine, the laws of this state, or of the United States; to govern its
proceedings and activities, the regulation of the practice of podiatric 
medicine,
and the enforcement of the law regulating the practice of podiatric medicine.


The proposed amendments implement the Podiatric Medical Practice Act, Article
 4571, Section 7.



sec.378.8. Inactive License Status.


(a) A licensee may place a license on inactive status by applying
 for inactive status <nl>in writing to<ol> [on a form prescribed by
] the Board before the date of the expiration of the license and by
 complying with all license renewal requirements <nl>, which includes payment
 of annual renewal fee each year<ol>[other than the continuing education
 requirements].


(b)-(c)(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
 April 28, 1998.

TRD-9805935


Janie Alonzo

Staff Services Officer I

Texas State Board of Podiatric Medical Examiners

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-7000






Chapter 382. Radiologic Technologists


22 TAC sec.382.4

The Texas State Board of Podiatric Medical Examiners proposes
 an amendment to sec.382.4 concerning Non-Certified Podiatric Technician's
 Scope of Practice. The amendment is being proposed to delete the section
that states that the podiatric physician must be physically present on the
premises.

Allen M. Hymans, Executive Director, has determined that for each year
 of the first five years the sections are in effect there will be no fiscal
 implications for state or local government as a result of enforcing or 
administering
 this section.

Mr. Hymans has also determined that for each year for the first five years
 the rule is in effect the public benefit anticipated as a result of enforcing
 the rule will be knowing who must be present during the procedure. There
will be no effect on small businesses.

Comments on or about the proposal may be submitted to Janie Alonzo, Staff
 Services Officer I, Texas State Board of Podiatric Medical Examiners, P.O.
 Box 12216, Austin, Texas 78711-2216.

The amendments are proposed under Texas Civil Statutes, Article
 4568(j), which provides the Texas State Board of Podiatric Medical Examiners
 with the authority to adopt all reasonable or necessary rules, regulations,
 and by-laws not inconsistent with the law regulating the practice of podiatric
 medicine, the laws of this state, or of the United States; to govern its
proceedings and activities, the regulation of the practice of podiatric 
medicine,
and the enforcement of the law regulating the practice of podiatric medicine.


No other code, statute or article are affected by this rule change.



sec.382.4. Non-Certified Podiatric Technician's Scope
 of Practice.


(a) No change.


(b) A registrant shall perform radiological procedures only
 under the supervision of a podiatric physician [physically present on
 the premises].


(c) (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
 April 28, 1998.

TRD-9805936


Janie Alonzo

Staff Services Officer I

Texas State Board of Podiatric Medical Examiners

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-7000





22 TAC sec.382.7

The Texas State Board of Podiatric Medical Examiners proposes

new sec.382.7 concerning Continuing Medical Education Requirements. The

new rule is being proposed to set up guidelines for the continuing medical

education requirements.

Allen M. Hymans, Executive Director, has determined that for each year

of the first five years the sections are in effect there will be no fiscal

implications for state or local government as a result of enforcing or 
administering

this section.

Mr. Hymans has also determined that for each year for the first five years

the rule is in effect the public benefit anticipated as a result of enforcing

the rule will be knowing that the technicians are receiving continued training.

There is no effect on small businesses.

Comments on or about the proposal may be submitted to Janie Alonzo, Staff

Services Officer I, Texas State Board of Podiatric Medical Examiners, P.O.

Box 12216, Austin, Texas 78711-2216.

The amendments are proposed under Texas Civil Statutes, Article

4568(j), which provides the Texas State Board of Podiatric Medical Examiners

with the authority to adopt all reasonable or necessary rules, regulations,

and by-laws not inconsistent with the law regulating the practice of podiatric

medicine, the laws of this state, or of the United States; to govern its 
proceedings

and activities, the regulation of the practice of podiatric medicine, and

the enforcement of the law regulating the practice of podiatric medicine.




No other code, statute or article are affected by this rule change.



<nl>sec.382.7. Continuing Medical Education

Requirements.<ol>
<nl>

(a) Non-certified radiologic technicians must complete four

(4) hours of CME every two (2) years to include training in radiation safety

and current developments as well as radiographic procedures in the podiatric

office.<ol>
<nl>

(b) Schools or organizations that have been certified to instruct

the twenty (20) hour certification program through the Texas Department of

Health, shall be approved to conduct the continuing medical education.<ol>
<nl>

(c) Qualified instructors who have been approved to instruct

the twenty (20) hour certification program through the Texas Department of

Health, shall be approved to conduct the continuing medical education.<ol>
<nl>

(d) Approved organizations are required to issue to each student

who successfully completes the program, a certificate of completion listing

the student's name, program name and date of completion. It is the 
responsibility

of the non-certified podiatric medical radiologic technician and the podiatric

 physician for whom they are working to provide a copy of this certificate

of completion to the Texas State Board of Podiatric Medical Examiners.<ol>

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

April 28, 1998.

TRD-9805937


Janie Alonzo

Staff Services Officer I

Texas State Board of Podiatric Medical Examiners

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 305-7000






Part XXIII. Texas Real Estate Commission


Chapter 537. Professional Agreements and Standard Contracts




22 TAC sec.sec.537.11, 537.22, 537.42, 537.45, 537.46

The Texas Real Estate Commission (TREC) proposes amendments

to sec.537.11, concerning use of standard contract forms, sec.537.22,

concerning a revised "back-up" contract addendum and sec.537.42, concerning

a revised agreement for mediation, and new sec.537.45, concerning a notice

of termination and sec.537.46, concerning an amendment form. These actions

would adopt by reference four forms to be used by Texas real estate licensees

in connection with the negotiation of a contract to buy or sell real estate.

Contract forms promulgated by TREC are developed by the Texas Real Estate

Broker-Lawyer Committee, an advisory committee consisting of six brokers 
appointed

by TREC and six attorneys appointed by the President of the State Bar of Texas.

Forms are developed by the committee to expedite real estate transactions

and reduce controversies to a minimum while safeguarding the interests of

the parties. Real estate licensees are required to use forms promulgated by

TREC in the kind of transaction for which they were intended, unless the parties

to the transaction or their attorneys prepare the documents binding the sale.

The amendments and new sections are proposed as part of the continuing review

and revision of the forms promulgated by TREC.

The proposed amendment to sec.537.11 would add the four revised and new

forms to the list of forms promulgated by TREC.

The amendment to sec.537.22 would adopt by reference a revised Addendum

for "Back-Up" Contract, TREC Form 11-3, which is used when a contract between

the seller and a second buyer is to be contingent upon the termination of

an existing contract between the seller and a first buyer. The addendum has

revised to clarify the obligations of the parties to the second contract during

the period of time the "back-up" contract is contingent upon the first contract

and to establish when any option to terminate under the "back-up" contract

may be exercised.

The amendment to sec.537.42 would adopt by reference a revised Agreement

for Mediation, TREC Form 35-1, which has been changed to clarify that the

agreement survives the closing of the real estate transaction, enabling the

parties to rely upon the agreement before resorting to litigation. The agreement

for mediation also has been rewritten to reflect nonsubstantive changes in

voice and style used in more recently promulgated contract forms. TREC had

proposed the adoption of this form in the January 23, 1998, issue of the 
Texas Register (23 TexReg 490) but withdrew the

proposal so as to be able to propose the adoption of the new form in connection

with the other forms developed by the Texas Real Estate Broker-Lawyer Committee.




New sec.537.45 adopts by reference Notice of Termination of Contract,

TREC Form No. 38-0, which a buyer would use to terminate a contract if the

buyer chose to exercise an option to terminate the contract.

New sec.537.46 adopts by reference Amendment, TREC Form No. 39-0, which

parties to the contract would use to adjust a sales price, allocate 
responsibility

for repairs and expenses, agree whether to apply an option fee to the sales

price, change the date of closing, extend the time for exercising an option

to terminate or waive the right of termination.

Mark A. Moseley, general counsel, has determined that for the first five-year

period the sections are in effect there will be no fiscal implications for

state or local government as a result of enforcing or administering the 
sections.

There is no anticipated impact on local or state employment as a result of

implementing the sections.

Mr. Moseley 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 the availability of standard contract

forms. There will be no effect on small businesses. There is no anticipated

economic cost to persons who are required to comply with the proposed sections,

other than the costs of obtaining copies of the forms, which would be available

at no charge through the TREC web site, and available from private printers

at an estimated cost of $7.50 per set of 50 copies.

Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,

Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendments and new sections are proposed under Texas Civil

Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate

Commission to make and enforce all rules and regulations necessary for the

performance of its duties.

The statute that is affected by these sections is Texas Civil Statutes,

Article 6573a.

The amendments are proposed under Texas Civil Statutes, Article 6573a,

 sec.5(h), which authorize the Texas Real Estate Commission to make and enforce

 all rules and regulations necessary for the performance of its duties.



sec.537.11. Use of Standard Contract Forms.


(a) Standard Contract Form TREC No. 9-3 is promulgated for

use in the sale of unimproved property where intended use is for one to four

family residences. Standard Contract Form TREC No. 10-2 is promulgated for

use as an addendum concerning sale of other property by a buyer to be attached

to promulgated forms of contracts. Standard Contract Form TREC No. <nl>11-3

<ol> [11-2] is promulgated for use as an addendum to be attached

to promulgated forms of contracts which are second or "back-up" contracts.

Standard Contract Form TREC No. 12-1 is promulgated for use as an addendum

to be attached to promulgated forms of contracts where there is a Veterans

Administration release of liability or restoration entitlement. Standard 
Contract

Form TREC No. 13-1 is promulgated for use as an addendum concerning new home

insulation to be attached to promulgated forms of contracts. Standard Contract

Form TREC No. 15-2 is promulgated for use as a residential lease when a seller

temporarily occupies property after closing. Standard Contract Form TREC No.

16-2 is promulgated for use as a residential lease when a buyer temporarily

occupies property prior to closing. Standard Contract Form 20-3 is promulgated

for use in the resale of residential real estate where there is all cash or

owner financing, an assumption of an existing loan, or a conventional loan.

Standard Contract Form TREC No. 21-3 is promulgated for use in the resale

of residential real estate where there is a Veterans Administration guaranteed

loan or a Federal Housing Administration insured loan. Standard Contract Form

TREC No. 23-2 is promulgated for use in the sale of a new home where 
construction

is incomplete. Standard Contract Form TREC No. 24-2 is promulgated for use

in the sale of a new home where construction is completed. Standard Contract

Form TREC No. 25-2 is promulgated for use in the sale of a farm or ranch.

Standard Contract Form TREC No. 26-2 is promulgated for use as an addendum

concerning seller financing. Standard Contract Form TREC No. 28-0 is promulgated

for use as an addendum to be attached to promulgated forms of contracts where

reports are to be obtained relating to environmental assessments, threatened

or endangered species, or wetlands. Standard Contract Form TREC No. 29-0 is

promulgated for use as an addendum to be attached to promulgated forms of

contracts where an abstract of title is to be furnished. Standard Contract

Form TREC No. 30-1 is promulgated for use in the resale of a residential 
condominium

unit where there is all cash or seller financing, an assumption of an existing

loan, or a conventional loan. Standard Contract Form TREC No.31-1 is promulgated

for use in the resale of a residential condominium unit where there is a 
Veterans

Administration guaranteed loan or a Federal Housing Administration insured

loan. Standard Contract Form TREC No. 32-0 is promulgated for use as a 
condominium

resale certificate. Standard Contract Form TREC No. 33-0 is promulgated for

use as an addendum to be added to promulgated forms of contracts in the sale

of property adjoining and sharing a common boundary with the tidally influenced

submerged lands of the state. Standard Contract Form TREC Form No. 34-0 is

promulgated for use as an addendum to be added to promulgated forms of contracts

in the sale of property located seaward of the Gulf Intracoastal Waterway.

Standard Contract Form TREC No.<nl>35-1<ol> [35-0] is promulgated

for use as an addendum to be added to promulgated forms of contracts as an

agreement for mediation. Standard Contract Form TREC Form No. 36-0 is 
promulgated

for use as an addendum to be added to promulgated forms in the sale of property

subject to mandatory membership in an owners' association. Standard Contract

Form TREC Form No. 37-0 is promulgated for use as a resale certificate when

the property is subject to mandatory membership in an owners' association. <nl>

 Standard Contract Form TREC Form No. 38-0 is promulgated for use as a notice

of termination of contract. Standard Contract Form TREC Form No. 39-0 is 
promulgated

for use as an amendment to promulgated forms of contracts.<ol>


(b)-(j)(No change.)



sec.537.22. Standard Contract Form TREC No. <nl>

11-3<ol> [11-2].


The Texas Real Estate Commission adopts by reference standard contract

form TREC No. <nl>11-3<ol> [11-2] approved by the Texas Real

Estate Commission in <nl>1998<ol> [1994]. This document is published

by and available from the Texas Real Estate Commission, P.O. Box 12188, Capitol

Station, Austin, Texas 78711.



sec.537.42. Standard Contract Form TREC No. <nl>

35-1<ol> [35-0].


The Texas Real Estate Commission adopts by reference standard contract

form TREC No. <nl>35-1<ol> [35-0] approved by the Texas Real

 Estate Commission in <nl>1998<ol> [1994]. This document is published

by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin,

Texas 78711-2188.



<nl>sec.537.45. Standard Contract Form

 TREC No. 38-0.<ol>


<nl>The Texas Real Estate Commission adopts by reference standard contract

form TREC No. 38-0 approved by the Texas Real Estate Commission in 1998. This

document is published by and available from the Texas Real Estate Commission,

 P.O. Box 12188, Austin, Texas 78711-2188.<ol>

<nl>

sec.537.46. Standard Contract Form

 TREC No. 39-0.<ol>


The Texas Real Estate Commission adopts by reference standard contract

 form TREC No. 39-0 approved by the Texas Real Estate Commission in 1998. This

 document is published by and available from the Texas Real Estate Commission,

 P.O. Box 12188, Austin, Texas 78711-2188.

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

 May 4, 1998.

TRD-9806197


Mark A. Moseley

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 465-3900






TITLE 25. HEALTH SERVICES

Part II. Texas Department of Mental Health and Mental Retardation




Chapter 407. Internal Facilities Management


Public Records


25 TAC sec.sec.407.151-407.161

(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 Department of Mental Health and Mental Retardation or in the

Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,

 Austin.)

The Texas Department of Mental Health and Mental

Retardation (department) proposes the repeal of sec.407.151-161 of Chapter

 407 concerning public information. The statutory authority for these sections

 has been repealed.

Don C. Green, chief financial officer, has determined that for each year

of the first five-year period the repeal as proposed are in effect, there

will be no significant fiscal impact on state or local governments as a result

of enforcing the repeal of these rules.

Don Gilbert, commissioner, has determined that for each year of the first

five years that the repeal as proposed are in effect, the public benefit will

be the existence of a concise and relevant body of policy documents as a result

of repealing unnecessary rules. There will be no effect on small or large

 businesses or on individuals. There is no anticipated economic cost to persons

 who are required to comply with the repeal as proposed. No local employment

 impact is anticipated as a result of repealing the sections.

Written comments on the proposal may be sent to Linda Logan, director,

Policy Development, Texas Department of Mental health and Mental Retardation,

P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.



The repeal is proposed under the Texas Health and Safety Code,

sec.532.015, which provides the Texas Mental Health and Mental Retardation

Board with broad rulemaking authority.

The sections would affect the Texas Government Code, sec.552.2611, which

has been repealed.


sec.407.151. Purpose


sec.407.152. Application


sec.407.153. Definitions


sec.407.154. Availability of Public Information


sec.407.155. Access to Public Information for Inspection

 Purposes


sec.407.156. Charges for Providing Copies of Public

 Information


sec.407.157. Format for Copies of Public Information




sec.407.158. Estimates and Waivers of Public Information

 Charges


sec.407.159. List of Charges


sec.407.160. References


sec.407.161. Distribution

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

 April 28, 1998.

TRD-9805947


Charles Cooper

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 206-4516






Chapter 409. Medicaid Programs


Subchapter D. Home and Community-based Services


25 TAC sec.sec.409.101, 409.102

The Texas Department of Mental Health and Mental Retardation

(TDMHMR) proposes amendments to sec.sec.409.101-409.102 of Chapter 409,

Subchapter D, concerning Home and Community-based Services (HCS).

The proposed amendments would allow the home and community-based waiver

 services - OBRA (HCS-O) program to be combined with the home and community-
based

services (HCS) program, effective September 1, 1998. The HCS and HCS-O programs

are Medicaid waiver programs authorized under Section 1915(c) of the Social

 Security Act. HCS-O program consumers and providers would transfer to the

HCS program on September 1, 1998. Nursing facility residents who qualify for

 the current HCS-O program would be eligible for the HCS program after September

1, 1998. After the programs are combined, current HCS-O consumers would have

continued access to those services currently included on their Individual

Plans of Care and should not experience any disruption in service provision.

The HCS program would offer transferring consumers additional services through

the dental treatment service component and an increased annual limit for 
provision

of adaptive aids.

Don Green, chief financial officer, has determined that for each year

of the first five-year period the rule, as proposed, would be in effect there

would be for FY 1999 a net fiscal impact of $11,843,918, of which $7,376,392

is federal and $4,467,526 is state; for FY 2000 the net fiscal impact would

be $12,140,016, of which $7,560,802 is federal and $4,579,214 is state; for

FY 2001 the net fiscal impact would be $12,443,516, of which $7,749,822 is

federal and $4,693,694 is state; for FY 2002 the net fiscal impact would be

$12,754,604, of which $7,943,567 is federal and $4,811,037 is state; for FY

2003 the net fiscal impact would be $13,073,469, of which $8,142,156 is federal

and $4,931,313 is state. There will be no effect on local government.

Ernest McKenney, director, Medicaid Administration, has determined that

for each year of the first five years the amendments would be in effect the

public benefit anticipated would be an increase in TDMHMR's administrative

efficiency by combining the programs. Additionally, consumers transferring

into the HCS program from the HCS-O program would have access to a larger

base of program providers. For each year of the first five years the amendments

would be in effect there would be no effect on small business. For each year

of the first five years the amendments would be in effect there would be no

anticipated economic cost to persons who are required to comply with the 
amendments.




A public hearing will be held at 8:30 a.m., Tuesday, June 2, 1998, in

auditorium of the main TDMHMR Central Office building (Building 2) at TDMHMR

Central Office, 909 West 45th Street, Austin, Texas, to accept oral and written

testimony concerning the proposal. Persons requiring an interpreter for the

deaf or hearing impaired should notify Sheila Wilkins, Office of Policy 
Development,

at least 72 hours prior to the hearing by calling (512) 206-4516.

Questions about the proposal may be directed to Ernest McKenney, director,

Medicaid Administration, Texas Department Mental Health and Mental Retardation,

P.O. Box 12668, Austin, TX 78711-2668.

Comments on the proposal may be submitted to Linda Logan, director, Policy

Development, Texas Department Mental Health and Mental Retardation, P.O. Box

 12668, Austin, TX 78711-2668, within 30 days of publication of this notice.




The amended sections are proposed under the Texas Health and

Safety Code, sec.532.015(a), which provides TDMHMR with broad rulemaking

authority; and Human Resource Code, sec.32.021, and Government Code, 
sec.531.021,

which provide the Texas Health and Human Services Commission (THHSC) with

the authority to administer federal medical assistance funds and administer

the state's medical assistance program. Senate Bill 509 of the 74th Texas

 Legislature clarifies THHSC's authority to delegate the operation of all or

 part of a Medicaid program to a health and human service agency. THHSC has

 designated TDMHMR as the operating agency for the HCS program.

The section affects Texas Human Resources Code, sec.32.021, Texas Government

 Code, sec.531.021, and Texas Health and Safety Code, sec.532.015(a).





sec.409.101. Eligibility Criteria.


(a) No change.


(b)To be determined eligible by TDMHMR for HCS services, individuals

 must also:

<nl>(1) be determined by TDMHMR or TDHS in accordance

with 25 TAC Chapter 406, Subchapter E of this title (concerning ICF/MR Program:

Eligibility and Review) and applicable federal regulations, and as verified

by a current Level of Care (LOC) Assessment form: <ol>

<nl>(A)<ol> [(1)] <nl>to<ol> meet the ICF-MR

I, V, or VI level of care criteria <nl>; or<ol> [as determined by

TDMHMR or TDHS according to 25 TAC Chapter 406, Subchapter E of this title

(concerning ICF/MR Program: Eligibility and Review) and applicable federal

regulations, and as verified by a current Level of Care (LOC) Assessment form;

]


<nl>(B) to meet the ICF-MR I, V, VI, or VIII level

of care criteria, be directly discharged from a Medicaid certified nursing

 facility, and:<ol>

<nl>(i) be enrolled or pre-enrolled (as verified

in the TDMHMR Automated Enrollment and Billing System) in the Home and 
Community-Based

Services-OBRA program on August 31, 1998, or <ol>


<nl>(ii) have been determined by TDMHMR or TDHS

on or before March 24, 1994, to have mental retardation and/or a related 
condition,

to need specialized services, and to be inappropriately placed in a Medicaid

certified nursing facility based on an annual resident review conducted in

accordance with the requirements of OBRA-87.<ol>


<nl>(C)<ol> [(A)] An LOC assessment (or reassessment)

form signed by TDMHMR or TDHS is considered valid for enrollment purposes

by TDMHMR for 364 days from the date of issuance.


<nl>(D)<ol> [(B)] Reevaluations of <nl>LOC

<ol> [level of care] are performed annually by TDMHMR. An initial

 reevaluation of <nl>LOC<ol> [level of care] must be performed

 no later than 364 calendar days from the date of enrollment. Subsequent LOC

 reevaluations must be performed no later than 364 calendar days from the 
effective

 date of the prior <nl>LOC<ol> [level of care] assignment.


<nl>(E)<ol> [(C)] In order for payment to be

considered for days that an individual was receiving HCS services but did

 not have a current LOC assessment form in place, the provider must follow

 the process described in sec.409.119 of this title (relating to Gaps in

 Level-of-Care Coverage);

(2) live in <nl>a<ol> [the] contracted

 provider's geographic catchment area. If an applicant has been removed from

 his home and community because of ICF/MR institutional placement, <nl>or

nursing facility placement<ol> he may be considered for placement in the

 HCS program even though his original county of residence is outside the 
provider's

 geographic catchment area; [and]

<nl>(3) have been determined, prior to enrollment,


 <ol>

<nl>(A) to have mental retardation in accordance

 with state law (Texas Health & Safety Code, Chapter 593: Admission and

 Commitment to Mental Retardation Services, Subchapter A: General Provisions,

 sec.593.005: Determination of Mental Retardation);<ol>


<nl>(B) to have a related condition as defined

 in sec.406.202 of this title (relating to Definitions for Level-of-Care

a nd Level-of-Need) by a licensed physician; or <ol>


<nl>(C) to have mental retardation or a related

 condition based upon an annual resident review conducted in accordance with

 the requirements of OBRA-87; and<ol>

[(3) have had a determination of

mental retardation performed in accordance state law (VACs Chapter 591 Admission

and Commitment to Mental Retardation Services, Subchapter A General Provisions,

Section 593.005 Determination of Mental Retardation), or be diagnosed by a

licensed physician as having a related condition as defined in sec.406.202

of this title (relating to Definitions for Level-of-Care and Level-of-Need),

, prior to enrollment into the HCS program; and]

(4) have an Individual Plan of Care for Home and Community-based

 Services [form] developed by the provider's interdisciplinary team <nl>

; the team must be<ol> composed of a case manager and nurse who meet the

qualifications specified in the waiver, and the individual or legally authorized

 representative.

(A) The Individual Plan of Care for Home and Community-based

 Services [form] must specify the type of waiver services required

to keep an individual in the community, the units of waiver services, and

their frequency and duration.


(B) The Individual Plan of Care for Home and Community-based

Services form must be signed and dated by the interdisciplinary team prior

to implementation. The interdisciplinary team must certify in writing that

the waiver services authorized on the Individual Plan of Care form are necessary

to avoid ICF-MR institutional placement and are appropriate to meet the 
applicant's

needs in the community, as recommended. The initial Individual Plan of Care

must be based upon the community support analysis (Exhibit A) developed by

the mental retardation authority (MRA) according to sec.409.102 of this

title (relating to Process for Applicant Referral to Contracted HCS Provider

Agencies).


(C) The initial Individual Plan of Care for Home and Community-based

Services form must be approved by TDMHMR. The Individual Plan of Care form

must be updated by the provider at least annually. Revisions and updates to

the Individual Plan of Care form are subject to review and approval during

annual on-site certification and other reviews conducted by TDMHMR. Any gaps

in the coverage periods of the individual plans of care result in loss of

payment to the provider.


(c)-(e) (No change.)



sec.409.102. Process for Applicant Referral to Contracted

 HCS Provider Agencies


(a) Beginning November 1, 1996, the local Mental Retardation

 Authority designated by [the] TDMHMR for the <nl>local service

<ol> [geographic] area in which the applicant resides will receive

 all requests from applicants seeking enrollment into the HCS program. The

 MRA will

(1) Register the applicant on the MRA's referral list as specified

 in (C)(1) of this subsection <nl>unless the applicant qualifies as a member

 of a targeted group specified in the approved HCS Program waiver request as

 follows:<ol>

<nl>(A) applicants meeting the criteria specified

in sec.409.101(b)(1)(B)(ii) of this title (relating to Eligibility Criteria),


<ol>


<nl>(B) applicants residing in a state school,

<ol>


<nl>(C) applicants to be discharged to the HCS

 Program from a multiple disability unit of a state hospital, or<ol>


<nl>(D) applicants residing in ICF-MR facilities

 scheduled for closure.<ol>

<nl>(2) TDMHMR will assign placement

 vacancies for applicants who are members of specific targeted groups defined

 in subparagraphs (1)(A) - (D) and the MRA will assist these applicants in

accordance with this section. <ol>

<nl>(3<ol>[(2)] Notify the first applicant

on the referral list when a placement vacancy occurs in the MRA's local service

 area and begin the referral process by informing the applicant and/or the

 applicant's legal representative of his/her choice between participation [

in] the ICF-MR Program or the HCS Program and documenting the applicant's

 or the representative's choice of services. If the applicant or representative

 chooses participation in the HCS program, the MRA will develop [,]

in accordance with departmental guidelines, a community support analysis for

 the applicant. For purposes of illustration, a model community support analysis 
<nl>

is included as Appendix 1 to this section<ol> [will be distributed

 with copies of the rule]. At minimum, the community support analysis

 will include the following:

(A) a determination of the services and supports the individual

requires to continue living in the community;


(B) An evaluation of the individual's current services and

 supports, identifying those that would continue to be available if the 
individual

 enrolled in the HCS program;


(C) identification of determinations needed to establish the

applicant's eligibility for <nl>the HCS program including eligibility for

<ol> SSI or Medicaid benefits and for an ICF-MR Level of Care. If the 
applicant's

financial eligibility for the HCS Program must be established, the MRA will

initiate application processes necessary to obtain a financial eligibility

 determination. If necessary, the MRA will determine or validate a determination

 that the applicant has mental retardation <nl>for the applicant<ol> in

accordance with Chapter 405, Subchapter D of this title (relating to 
Determination

 of Mental Retardation and Appropriateness for Admission to Mental Retardation

 Services).

<nl>(4)<ol> [(3)] Inform the applicant

or the applicant's legal representative of all available HCS providers in

 the <nl>MRA's<ol> local service area and facilitate the applicant's enrollment

in HCS. The MRA will:

(A) assist the applicant or the applicant's legal representative

in selecting potential HCS provider agencies within the local service area;





(B)with the consent of the applicant or the applicant's legal

representative, distribute to potential HCS provider agencies as selected

by the applicant or the applicant's legal representative the most current

community support analysis;


(C) arrange for preselection meetings/visits with potential

providers as desired by the applicant or the applicant's legal representative;





(D) assure that the applicant's or representative's choice

of a specific HCS Provider Program is documented and that the original signed

form is retained by the MRA in the individual's record and a copy of the 
original

form is sent to the selected HCS Provider; and


(E) provide a copy of the statement signed by the applicant

or the applicant's legal representative indicating the choice to participate

in the HCS Program according to paragraph (2) of this subsection to the selected

provider and all available documentation necessary for the selected provider

to complete an HCS Program enrollment request.


(b)-(c) (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

 May 4, 1998.

TRD-9806183


Ann Utley

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 206-4516






Subchapter E. Home and Community-based Waiver Services-OBRA



25 TAC sec.sec.409.151-409.163, 409.165-409.173

(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 Department of Mental Health and Mental Retardation or in the

Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,

 Austin.)

The Texas Department of Mental Health and Mental

Retardation (TDMHMR) proposes the repeal of existing sec.sec.409.151-409.163,

and 409.165-409.173 of Chapter 409, Subchapter E, governing Medicaid

programs: home and community-based waiver services - OBRA.

The proposed repeal and a concurrent proposed amendment to the HCS program

rule (25 TAC Chapter 409, Subchapter D) would allow the home and community-based

waiver services - OBRA (HCS-O) program to be combined with the home and 
community-based

services (HCS) program, effective September 1, 1998. The HCS and HCS-O programs

are Medicaid waiver programs authorized under Section 1915(C) of the Social

Security Act. HCS-O program consumers and providers would transfer to the

HCS program on September 1, 1998. Nursing facility residents who qualify for

the current HCS-O program would be eligible for the HCS program after September

1, 1998. After the programs are combined, current HCS-O consumers would have

continued access to those services currently included on their Individual

Plans of Care and should not experience any disruption in service provision.

The HCS program would offer transferring consumers additional services through

the dental treatment service component and an increases annual limit for 
provision

of adaptive aids.

Don Green, chief financial officer, has determined that for each of the

first five years the proposed repeal is in effect there will be for FY1999

a net fiscal impact of ($8,903,618), of which ($5,545,173) is federal and

($3,358,445) is state; for FY2000 a net fiscal impact of ($9,126,208), of

which ($5,683,802) is federal and ($3,442,406) is state; for FY 2001 a net

fiscal impact of ($9,354,363), of which ($5,825,897) is federal and ($3,528,466)

is state; for FY2002 a net fiscal impact of ($9,588,222), of which ($5,971,545)

is federal and ($3,616,677) is state; for FY2003 at net fiscal impact of 
($9,827,928),

of which ($6,120,834) is federal and ($3,707,094) is state. There is no 
anticipated

local economic impact.

Ernest McKenney, director, Medicaid Administration, has determined that

the public benefit anticipated would be an increase in TDMHMR's administrative

 efficiency by combining the HCS and HCS-O programs. Additionally, consumers

transferring into the HCS program from the HCS-O program would have access

to a larger base of program providers. For each year of the first five years

the repeal would be in effect there would be no effect on small business.

For each year of the first five years the repeal would be in effect there

would be no anticipated economic cost to persons who are required to comply

 with the repeal.

A public hearing will be held at 8:30 a.m., Tuesday, June 2, 1998 in the

 auditorium of the main TDMHMR Central Office building (Building 2) at TDMHMR

 Central Office, 909 West 45th Street, Austin, Texas, to accept oral and written

 testimony concerning the proposal. Persons requiring an interpreter for the

 deaf or hearing impaired should notify Sheila Wilkins, Office of Policy 
Development,

 at least 72 hours prior to the hearing by calling (512) 206-4516.

Questions about the proposal may be directed to Ernest McKenney, director,

 Medicaid Administration, Texas Department Mental Health and Mental Retardation,

 P.O. Box 12668, Austin, TX 78711-2668.

Comments on the proposal may be submitted to Linda Logan, director, Policy

 Development, Texas Department Mental Health and Mental Retardation, P.O. Box

 12668, Austin, TX 78711-2668, within 30 days of publication of this notice.




The repealed section is proposed under the Texas Health and Safety

 Code, sec.532.015(a), which provides TDMHMR with broad rulemaking authority;

 and Human Resource Code, sec.32.021, and Government Code, sec.531.021,

 which provide the Texas Health and Human Services Commission (THHSC) with

 the authority to administer federal medical assistance funds and administer

 the state's medical assistance program. Senate Bill 509 of the 74th Texas

 Legislature clarifies THHSC's authority to delegate the operation of all or

 part of a Medicaid program to a health and human service agency. THHSC has

designated TDMHMR as the operating agency for the HCS-O program.

The section affects Texas Human Resources Code, sec.32.021, Texas Government

 Code, sec.531.021, and Texas Health and Safety Code, sec.532.015(a).



sec.409.151. Introduction.


sec.409.152. Definitions.


sec.409.153. Client Eligibility Criteria.


sec.409.154. Level of Care Criteria.


sec.409.155. Individual Plan of Care for Waiver Services.





sec.409.156. Financial Eligibility Criteria.


sec.409.157. Calculation of Client Copayment.


sec.409.158. Client's Right To Appeal.


sec.409.159. Provider Claims Payment.


sec.409.160. Delegation of Signature Authority.


sec.409.161. Rejected Claims.


sec.409.162. Provider's Right to Appeal.


sec.409.163. Cost Report.


sec.409.165. Other Provider Requirements.


sec.409.166. Spousal Impoverishment Provisions.




sec.409.167. Corrective Action and Provider Sanction.





sec.409.168. Hazards to Health, Safety and Welfare.





sec.409.169. Level I Action.


sec.409.170. Level II Action.


sec.409.171. Level III Action.


sec.409.172. Unannounced or Intermittent Review Visits.





sec.409.173. Discretionary Certification Sanctions.




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

 May 4, 1998.

TRD-9806181


Charles M. Cooper

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 206-4516





TITLE 30. ENVIRONMENTAL QUALITY


Part I. Texas Natural Resource Conservation Commission




Chapter 37. Financial Assurance


Subchapter N. Financial Assurance Requirements for the Texas

 Risk Reduction Program Rules


30 TAC sec.sec.37.1301, 37.1311, 37.1321

The Texas Natural Resource Conservation Commission (commission)

proposes new sec.sec.37.1301, 37.1311, and 37.1321, concerning financial

assurance for the proposed Texas Risk Reduction Program.

EXPLANATION OF THE PROPOSED RULES. The commission is proposing a new rule,

commonly referred to as the Texas Risk Reduction Program (TRRP) rule, that

will establish a uniform set of risk-based performance-oriented technical

standards to guide response actions at affected properties regulated via the

 agency's Office of Waste Management program areas and other applicable program

areas. The rule will be promulgated as new 30 Texas Administrative Code (TAC)

Chapter 350. The commission is proposing to add Subchapter N to Chapter 37

as a conforming rulemaking to the proposed new Chapter 350.

Section 37.1301, Applicability, will clarify that the financial assurance

 requirements for Subchapter N are for sites subject to the TRRP rule that

use physical controls as part of the response action during the post-response

action care period. Section 37.1311 contains definitions, and the commission

is only proposing one definition for the new subsection, "post-response action

care estimate," which is the most recent written cost estimate for post-response

action care.

Section 37.1321 contains the specific financial assurance requirements

for the TRRP rule including the available financial assurance mechanisms for

sites in the TRRP. Under the sections, persons are required to submit their

financial assurance mechanisms within 90 days of the executive director's

approval of the Response Action Plan.

FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division,

 has determined that for the first five-year period the sections as proposed

are in effect, there will be fiscal implications as a result of administration

or enforcement of the sections. There are no increases in cost to state 
government

anticipated. Although the internal commission processes of review and evaluation

of remedial action plans may be altered under the proposed rules, the costs

associated with the process are not anticipated to be materially changed.

In that considerable remedial activity is supported with public funds by the

commission, the effects of the proposed rules on the overall costs of remedial

actions will be reflected in impacts on state funding sources. It is anticipated

that the net benefits of the greater flexibility in risk-based cleanup remedies

afforded by the proposed rules will result in reductions in the demands for

state funds for remedial actions. Similarly, no significant increases in costs

for units of local government are anticipated. For local governments operating

facilities or properties for which cleanup standards might be applied under

these proposed rules, the cost and benefit implications are essentially the

same as those for any private property owner or facility operator subject

to the same provisions.

PUBLIC BENEFIT. Mr Minick has also determined that, for the first five

years the sections as proposed are in effect, the public benefit anticipated

as a result of enforcement of and compliance with the sections will be improved

consistency and clarity in existing regulations governing the cleanup standards

for contaminated properties. The proposed rules will result in more streamlined

and cost-effective remediation of contaminated properties and increase 
incentives

for remedial actions. Remedial actions under the proposed rules will be 
initiated

more quickly, reducing potential migration of contamination and the improving

the degree of protection of human health and safety and the environment. The

proposed rule will allow greater beneficial use of limited public and private

resources and enhance public notice of and participation in the remediation

of contamination.

There are no net economic costs anticipated to any person, including small

 business, required to comply with the sections as proposed. The effect of

the proposed rule will generally be to reduce the potential costs of site

 remediation by offering risk based alternatives to current cleanup standards

 which should be achievable at a lower cost than current standards. In some

 cases, the cost of the analysis and development and justification of a remedy

 under the proposed rules may be greater than similar costs under existing

 rules. These costs increases, however, will be justified by owners and 
operators

 seeking to determine cost-effective cleanup options and should be offset by

 the cost savings realized by utilizing the risk based options offered under

 the proposed rules. In addition, a more general savings in cost is anticipated

 to result from the overall clarification and simplification of the regulations

 governing cleanup standards. Any actual determination of impact of the proposed

 rules must be made on a site-specific basis and no estimates of the net cost

 savings to owners or operators of these rules is available.

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 rule pursuant to Texas Government Code Annotated 
sec.2007.043.

The specific purpose of the rule is to create one risk-based rule that will

guide property assessments, notifications, and response actions through the

establishment of a consistent, performance-based program that encourages the

cost-effective corrective action for affected properties while ensuring the

adequate protection of human health and the environment. The proposed rule

will substantially advance this specific purpose through the use of a tiered

process for the establishment of health-based protective concentration levels,

by allowing the use of site-specific data, and by providing flexibility in

selection and design of response actions. Promulgation and enforcement of

the proposed rule will not burden private real property which is the subject

of the rule because the rule will establish reasonable and cost-effective

criteria to address contamination of environmental media that represents a

real and substantial threat to human health and safety.

COASTAL MANAGEMENT PLAN CONSISTENCY REVIEW. The commission has reviewed

the proposed rulemaking and found that the rules are subject to the Coastal

 Management Program and must be consistent with all applicable goals and 
policies

 of the Coastal Management Program (CMP).

The commission has prepared a consistency determination for the proposed

rules pursuant to 31 TAC sec.505.22 and has found that the proposed rules

are consistent with the applicable CMP goals and policies. The following is

a summary of that determination. The CMP goal applicable to the proposed rules

is the goal to protect, preserve, restore, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas. CMP policies

applicable to the proposed rules include the administrative policies and the

policies for specific activities related to construction and operation of

solid waste treatment, storage, and disposal facilities. Promulgation and

enforcement of these rules is consistent with the applicable CMP goals and

policies because the proposed rules will establish clear, consistent standards

to guide the assessment and cleanup of contaminated properties from site 
investigation

through post-response action care. The rules will require persons conducting

response actions to ensure that the concentrations of chemicals of concern

are protective of human and ecological receptors. The new rules will result

in an overall environmental benefit across the state, including in coastal

areas. In addition, the proposed rules do not violate any applicable provisions

of the CMP's stated goals and policies.

The commission invites public comment on the consistency of the proposed

rules.

SUBMITTAL OF COMMENTS. The commission will hold two public hearings. A

public hearing on the proposal will be held on July 6, 1998 at 10:00 . in

Building E, Room 201S, of Texas Natural Resource Conservation Commission 
complex,

located at 12100 North IH-35, Park 35 Technology Center, Austin. The second

public hearing will be held on July 9, 1998 at 1:00 p.m., located at the City

of Houston Polllution Control Building Auditorium, 7411 Park Place Boulevard,

Houston, Texas. The hearings are structured for the receipt of oral or written

comments by interested persons. Individuals may present oral statements when

called upon or order of registration. Open discussion within the audience

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.

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.

Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation

 Commission, 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 Rules Tracking Log Number 96106-350-WS. Comments must be received

by 5:00 p.m. on July 22, 1998. For further information, please contact Chet

 Clarke, Petroleum Storage Tank Division, (512) 239-2106; Greg Tipple, Pollution

 Cleanup Division, (512) 239-2465; Scott Crouch, Voluntary Cleanup Program,

 (512) 239-2486; Clark Talkington, Waste Policy and Regulations Division, (512)

 239-6731, or Rob Norris, Financial Assurance Section, (512) 239-239-6150.



STATUTORY AUTHORITY. The new rules are proposed under Texas Water

Code, sec.5.103 and sec.26.011, which provide the commission with authority

to adopt any rules necessary to carry out its powers, duties, and policies

and to protect water quality in the state and Texas Solid Waste Disposal Act,

Texas Health and Safety Code, sec.361.017, and sec.361.024, which provide

the commission the authority to regulate industrial solid waste and municipal

hazardous wastes and all other powers necessary or convenient to carry out

its responsibilities. In addition, the new rules are proposed under Texas

Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the new rules is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The new rules affect Water Code, Chapter 26, and Health and Safety Code

Chapter 361.



<nl>sec.37.1301. Applicability.<ol>
<nl>

This subchapter applies to a person subject to Chapter 350 of this

title (relating to Texas Risk Reduction Program) who uses a physical control

in accordance with sec.350.94 of this title (relating to Remedy Standard

B) as part of the response action for an affected property during the post-
response

action care period.<ol>

<nl>

sec.37.1311. Definitions.<ol>


<nl>The following words and terms, when used in this chapter, shall have

the following meanings, unless the context clearly indicates otherwise.<ol>
<nl>Post-response

 action care estimate -- The most recent written cost estimate for post-response

 action care for an affected property as required by sec.350.94(s) and (t)

 of this title (relating to Remedy Standard B) and approved by the executive

 director.<ol>

<nl>

sec.37.1321. Financial Assurance

Requirements for Texas Risk Reduction Program Rule.<ol>
<nl>

(a) A person subject to this subchapter shall establish financial

assurance for post-response action care for an affected property which meets

the requirements of this section, in addition to the requirements specified

under:<ol>
<nl>
(1) Subchapter A of this chapter (relating to General Financial

Assurance Requirements);<ol>
<nl>
(2) Subchapter B of this chapter (relating to Financial

Assurance Requirements for Closure) except for sec.37.131 of this title

(relating to Annual Inflation Adjustments to Closure Cost Estimates) and 
sec.37.161

of this title (relating to Establishment of a Standby Trust) to the extent

that it applies to post-response action care cost estimates which exceed 
$100,000

or as required by the executive director;<ol>
<nl>
(3) Subchapter C of this chapter (relating to Financial

Assurance Mechanisms for Closure); and<ol>
<nl>
(4) Subchapter D of this chapter (relating to Wording

of the Mechanisms for Closure), except as specified in this subchapter.<ol>
<nl>



(b) The financial assurance shall be in the amount specified

in the most recent post-response action care cost estimate required by 
sec.350.94(s)

or (t), as applicable, of this title (relating to Remedy Standard B).<ol>
<nl>

(c) A person subject to this subchapter may utilize any of

the following financial assurance instruments specified in Subchapter C of

this chapter (relating to Financial Assurance Mechanisms for Closure) to 
demonstrate

 financial assurance for post-response action care: </p>
<pp><no>(1) fully-funded trust;<ol>
<nl>
(2) surety bond guaranteeing payment;<ol>
<nl>
(3) surety bond guaranteeing performance;<ol>
<nl>
(4) irrevocable standby letter of credit;<ol>
<nl>
(5) insurance;<ol>
<nl>
(6) financial test; or<ol>
<nl>
(7) corporate guarantee.<ol>
<nl>

(d) A person subject to this subchapter is not subject to

sec.37.31 of this title (relating to Submission of Documents), but a person

required by Chapter 350 of this title (relating to Texas Risk Reduction Program)

to provide evidence of financial responsibility must submit originally signed

financial assurance mechanisms within 90 days of the executive director's

approval of the Response Action Plan.<ol>
<nl>

(e) For purposes of this subchapter, the following terms shall

have the following meanings:<ol>
<nl>
(1) The term "owner or operator" as used in other subchapters

of this chapter shall be construed to include "person undertaking a response

action subject to Chapter 350."<ol>
<nl>
(2) The term "closure" as used in other subchapters of

this chapter shall be construed to include "post-response action care."<ol>
<nl>


(3) The term "closure plan" as used in other subchapters

of this chapter shall be construed to include "response action plan."<ol>
<nl>
(4) The term "closure cost estimate" as used in other

subchapters of this chapter shall be construed to include "post-response action

care estimate."<ol>
<nl>
(5) References in sec.sec.37.221, 37.311, and 37.321

of this title (relating to Surety Bond Guaranteeing Performance for Closure,

Wording for Payment Bond, and Wording for Performance Bond) to "registration

or permit requirements" or "the registration or permit to (for) operate 
(operating)

under authorization" shall be construed to include "the requirements of 30

TAC Chapter 350."<ol>
<nl>

(f) If an affected property undergoing post-response action

care does not have an agency registration or permit number, any references

to the agency registration or permit number in the wording of mechanisms 
specified

in Subchapter D of this chapter (relating to Wording of the Mechanisms for

Closure) may be replaced with any other applicable name or number assigned

by the agency to the subject property.<ol>

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 May

 4, 1998.

TRD-9806222


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Chapter 327. Spill Prevention and Control


Subchapter A. Spill Reporting


30 TAC sec.327.5

The Texas Natural Resource Conservation Commission (commission)

proposes an amendment to sec.327.5, concerning actions required to respond

to spills or discharges of hazardous substances, oil, petroleum product, used

oil, other substances, and industrial waste.

EXPLANATION OF THE PROPOSED RULES. The commission is proposing a new rule,

commonly referred to as the Texas Risk Reduction Program (TRRP) rule, that

will establish a uniform set of risk-based performance-oriented technical

standards to guide response actions at affected properties regulated via the

agency's Office of Waste Management program areas and other applicable program

areas. The rule will be promulgated as new 30 Texas Administrative Code (TAC)

Chapter 350. The commission is proposing the amendments to sec.327.5(c)

as a conforming rulemaking to the proposed new Chapter 350.

The proposed amendments to sec.327.5(c)(1) and (3) will change the current

 references from "the Risk Reduction Rules in sec.335.8 or other risk-based

 corrective action rules" to the Texas Risk Reduction Program rules in Chapter

 350.

FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division,

 has determined that for the first five-year period the sections as proposed

are in effect, there will be fiscal implications as a result of administration

or enforcement of the sections. There are no increases in cost to state 
government

anticipated. Although the internal commission processes of review and evaluation

of remedial action plans may be altered under the proposed rules, the costs

associated with the process are not anticipated to be materially changed.

In that considerable remedial activity is supported with public funds by the

commission, the effects of the proposed rules on the overall costs of remedial

actions will be reflected in impacts on state funding sources. It is anticipated

that the net benefits of the greater flexibility in risk-based cleanup remedies

afforded by the proposed rules will result in reductions in the demands for

state funds for remedial actions. Similarly, no significant increases in costs

for units of local government are anticipated. For local governments operating

facilities or properties for which cleanup standards might be applied under

these proposed rules, the cost and benefit implications are essentially the

same as those for any private property owner or facility operator subject

to the same provisions.

PUBLIC BENEFIT. Mr Minick has also determined that, for the first five

years the sections as proposed are in effect, the public benefit anticipated

as a result of enforcement of and compliance with the sections will be improved

consistency and clarity in existing regulations governing the cleanup standards

for contaminated properties. The proposed rules will result in more streamlined

and cost-effective remediation of contaminated properties and increase 
incentives

for remedial actions. Remedial actions under the proposed rules will be 
initiated

more quickly, reducing potential migration of contamination and the improving

the degree of protection of human health and safety and the environment. The

proposed rule will allow greater beneficial use of limited public and private

resources and enhance public notice of and participation in the remediation

of contamination.

There are no net economic costs anticipated to any person, including small

business, required to comply with the sections as proposed. The effect of

the proposed rule will generally be to reduce the potential costs of site

remediation by offering risk based alternatives to current cleanup standards

which should be achievable at a lower cost than current standards. In some

cases, the cost of the analysis and development and justification of a remedy

under the proposed rules may be greater than similar costs under existing

rules. These costs increases, however, will be justified by owners and operators

seeking to determine cost-effective cleanup options and should be offset by

the cost savings realized by utilizing the risk based options offered under

the proposed rules. In addition, a more general savings in cost is anticipated

to result from the overall clarification and simplification of the regulations

governing cleanup standards. Any actual determination of impact of the proposed

rules must be made on a site-specific basis and no estimates of the net cost

savings to owners or operators of these rules is available.

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 rule pursuant to Texas Government Code Annotated 
sec.2007.043.

The specific purpose of the rule is to create one risk-based rule that will

guide property assessments, notifications, and response actions through the

establishment of a consistent, performance-based program that encourages the

cost-effective corrective action for affected properties while ensuring the

adequate protection of human health and the environment. The proposed rule

will substantially advance this specific purpose through the use of a tiered

process for the establishment of health-based protective concentration levels,

by allowing the use of site-specific data, and by providing flexibility in

selection and design of response actions. Promulgation and enforcement of

the proposed rule will not burden private real property which is the subject

of the rule because the rule will establish reasonable and cost-effective

criteria to address contamination of environmental media that represents a

real and substantial threat to human health and safety.

COASTAL MANAGEMENT PLAN CONSISTENCY REVIEW. The commission has reviewed

the proposed rulemaking and found that the rules are subject to the Coastal

Management Program and must be consistent with all applicable goals and policies

 of the Coastal Management Program (CMP).

The commission has prepared a consistency determination for the proposed

rules pursuant to 31 TAC sec.505.22 and has found that the proposed rules

are consistent with the applicable CMP goals and policies. The following is

a summary of that determination. The CMP goal applicable to the proposed rules

is the goal to protect, preserve, restore, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas. CMP policies

applicable to the proposed rules include the administrative policies and the

policies for specific activities related to construction and operation of

solid waste treatment, storage, and disposal facilities. Promulgation and

enforcement of these rules is consistent with the applicable CMP goals and

policies because the proposed rules will establish clear, consistent standards

to guide the assessment and cleanup of contaminated properties from site 
investigation

through post-response action care. The rules will require persons conducting

response actions to ensure that the concentrations of COCs are protective

of human and ecological receptors. The new rules will result in an overall

environmental benefit across the state, including in coastal areas. In addition,

the proposed rules do not violate any applicable provisions of the CMP's stated

 goals and policies.

The commission invites public comment on the consistency of the proposed

 rules.

SUBMITTAL OF COMMENTS. The commission will hold two public hearings. A

 public hearing on the proposal will be held on July 6, 1998 at 10:00 a.m.

in Building E, Room 201S, of Texas Natural Resource Conservation Commission

complex, located at 12100 North IH-35, Park 35 Technology Center, Austin.

The second public hearing will be held on July 9, 1998 at 1:00 p.m., located

at the City of Houston Pollution Control Building Auditorium, 7411 Park Place

Boulevard, Houston, Texas. The hearings are structured for the receipt of

oral or written comments by interested persons. Individuals may present oral

statements when called upon or order of registration. Open discussion within

the audience 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.

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.

Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation

 Commission, 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 Rules Tracking Log Number 96106-350-WS. Comments must be received

 by 5:00 p.m. on July 22, 1998. For further information, please contact Chet

 Clarke, Petroleum Storage Tank Division, (512) 239-2106; Greg Tipple, Pollution

Cleanup Division, (512) 239-2465; Scott Crouch, Voluntary Cleanup Program,

 (512) 239-2486; or Clark Talkington, Waste Policy and Regulations Division,

 (512) 239-6731.

STATUTORY AUTHORITY. The amendment is proposed under Texas Water

Code, sec.5.103 and sec.26.011, which provide the commission with authority

to adopt any rules necessary to carry out its powers, duties, and policies

and to protect water quality in the state and Texas Solid Waste Disposal Act,

Texas Health and Safety Code, sec.361.017, and sec.361.024, which provide

the commission the authority to regulate industrial solid waste and municipal

hazardous wastes and all other powers necessary or convenient to carry out

its responsibilities. In addition, the amendments are proposed under Texas

Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.327.5. Actions Required.


(a)-(b) (No change).


(c) Except for discharges or spills occurring during the normal

course of transportation about which carriers are required to file a written

report with the U.S. Department of Transportation under 49 CFR sec.171.16,

the responsible person shall submit written information, such as a letter,

describing the details of the discharge or spill and supporting the adequacy

of the response action, to the appropriate TNRCC regional manager within 30

working days of the discovery of the reportable discharge or spill. The regional

manager has the discretion to extend the deadline. The documentation shall

contain one of the following items:

(1) A statement that the discharge or spill response action

has been completed and a description of how the response action was conducted.

The statement shall include the initial report information required by 
sec.327.3(c)

of this title (relating to Notification Requirements). The executive director

may request additional information. Appropriate response actions at any time

following the discharge or spill include use of the <nl>Texas <olRisk

 Reduction <nl>Program<ol> rules in <nl>Chapter 350<ol> [sec.335.8

] of this title (relating to <nl>Texas Risk Reduction Program <ol>[

Closure]). [or other appropriate agency risk-based corrective action

 programs.]

(2) (No change.)

(3) A statement that the discharge or spill response

action has not been completed nor is it expected to be completed within the

maximum allowable six month extension. The statement shall explain why 
completion

of the response action is not feasible and include a projected work schedule

outlining the remaining tasks to complete the response action. This information

will also serve as notification that the response actions to the discharge

or spill will be conducted under the <nl>Texas<ol> Risk Reduction <nl>

Program<ol> rules in<nl> Chapter 350 <ol>[sec.335.8] of

this title (relating to <nl>Texas Risk Reduction Program<ol> [Closure

]). [or other commission risk-based corrective action rules, and

 shall indicate the appropriate risk-based corrective action 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 May

 4, 1998.

TRD-9806223


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Chapter 331. Underground Injection Control


Subchapter A. General Provisions


30 TAC sec.331.5

The Texas Natural Resource Conservation Commission (commission)

proposes an amendment to sec.331.5, concerning the Underground Injection

Control (UIC) Program.

EXPLANATION OF THE PROPOSED RULES. The commission is proposing a new rule,

commonly referred to as the Texas Risk Reduction Program (TRRP) rule, that

will establish a uniform set of risk-based performance-oriented technical

standards to guide response actions at affected properties regulated via the

agency's Office of Waste Management program areas and other applicable program

areas. The rule will be promulgated as new 30 Texas Administrative Code (TAC)

Chapter 350. The commission is proposing the amendment to sec.331.5 as a

conforming rulemaking to the proposed new Chapter 350.

Section 331.5 establishes the pollution prevention criteria for the underground

injection control program. The commission proposes to add new subsection (b)

to define the applicability of Chapter 350 to unauthorized discharges of 
chemicals

of concern (COCs) from associated tankage and equipment.

FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division,

has determined that for the first five-year period the sections as proposed

 are in effect, there will be fiscal implications as a result of administration

 or enforcement of the sections. There are no increases in cost to state 
government

 anticipated. Although the internal commission processes of review and 
evaluation

 of remedial action plans may be altered under the proposed rules, the costs

associated with the process are not anticipated to be materially changed.

In that considerable remedial activity is supported with public funds by the

commission, the effects of the proposed rules on the overall costs of remedial

actions will be reflected in impacts on state funding sources. It is anticipated

that the net benefits of the greater flexibility in risk-based cleanup remedies

afforded by the proposed rules will result in reductions in the demands for

state funds for remedial actions. Similarly, no significant increases in costs

for units of local government are anticipated. For local governments operating

facilities or properties for which cleanup standards might be applied under

these proposed rules, the cost and benefit implications are essentially the

same as those for any private property owner or facility operator subject

to the same provisions.

PUBLIC BENEFIT. Mr. Minick has also determined that, for the first five

years the sections as proposed are in effect, the public benefit anticipated

as a result of enforcement of and compliance with the sections will be improved

consistency and clarity in existing regulations governing the cleanup standards

for contaminated properties. The proposed rules will result in more streamlined

and cost-effective remediation of contaminated properties and increase 
incentives

for remedial actions. Remedial actions under the proposed rules will be 
initiated

more quickly, reducing potential migration of contamination and the improving

the degree of protection of human health and safety and the environment. The

proposed rule will allow greater beneficial use of limited public and private

resources and enhance public notice of and participation in the remediation

of contamination.

There are no net economic costs anticipated to any person, including small

 business, required to comply with the sections as proposed. The effect of

the proposed rule will generally be to reduce the potential costs of site

remediation by offering risk based alternatives to current cleanup standards

which should be achievable at a lower cost than current standards. In some

cases, the cost of the analysis and development and justification of a remedy

under the proposed rules may be greater than similar costs under existing

rules. These costs increases, however, will be justified by owners and operators

seeking to determine cost-effective cleanup options and should be offset by

the cost savings realized by utilizing the risk based options offered under

the proposed rules. In addition, a more general savings in cost is anticipated

to result from the overall clarification and simplification of the regulations

governing cleanup standards. Any actual determination of impact of the proposed

rules must be made on a site-specific basis and no estimates of the net cost

savings to owners or operators of these rules is available.

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 rule pursuant to Texas Government Code Annotated 
sec.2007.043.

The specific purpose of the rule is to create one risk-based rule that will

guide property assessments, notifications, and response actions through the

establishment of a consistent, performance-based program that encourages the

cost-effective corrective action for affected properties while ensuring the

adequate protection of human health and the environment. The proposed rule

will substantially advance this specific purpose through the use of a tiered

process for the establishment of health-based protective concentration levels,

by allowing the use of site-specific data, and by providing flexibility in

selection and design of response actions. Promulgation and enforcement of

the proposed rule will not burden private real property which is the subject

of the rule because the rule will establish reasonable and cost-effective

criteria to address contamination of environmental media that represents a

real and substantial threat to human health and safety.

COASTAL MANAGEMENT PLAN CONSISTENCY REVIEW. The commission has reviewed

the proposed rulemaking and found that the rules are subject to the Coastal

Management Program and must be consistent with all applicable goals and policies

of the Coastal Management Program (CMP).

The commission has prepared a consistency determination for the proposed

rules pursuant to 31 TAC sec.505.22 and has found that the proposed rules

are consistent with the applicable CMP goals and policies. The following is

a summary of that determination. The CMP goal applicable to the proposed rules

is the goal to protect, preserve, restore, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas. CMP policies

applicable to the proposed rules include the administrative policies and the

policies for specific activities related to construction and operation of

solid waste treatment, storage, and disposal facilities. Promulgation and

enforcement of these rules is consistent with the applicable CMP goals and

policies because the proposed rules will establish clear, consistent standards

to guide the assessment and cleanup of contaminated properties from site 
investigation

through post-response action care. The rules will require persons conducting

response actions to ensure that the concentrations of COCs are protective

of human and ecological receptors. The new rules will result in an overall

environmental benefit across the state, including in coastal areas. In addition,

the proposed rules do not violate any applicable provisions of the CMP's stated

 goals and policies.

The commission invites public comment on the consistency of the proposed

 rules.

SUBMITTAL OF COMMENTS. The commission will hold two public hearings. A

public hearing on the proposal will be held on July 6, 1998 at 10:00 a.m.

in Building E, Room 201S, of Texas Natural Resource Conservation Commission

complex, located at 12100 North IH-35, Park 35 Technology Center, Austin.

The second public hearing will be held on July 9, 1998 at 1:00 p.m., located

at the City of Houston Pollution Control Building Auditorium, 7411 Park Place

Boulevard, Houston, Texas. The hearings are structured for the receipt of

oral or written comments by interested persons. Individuals may present oral

statements when called upon or order of registration. Open discussion within

the audience 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.

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.

Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation

Commission, 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 Rules Tracking Log Number 96106-350-WS. Comments must be received

by 5:00 p.m. on July 22, 1998. For further information, please contact Chet

Clarke, Petroleum Storage Tank Division, (512) 239-2106; Greg Tipple, Pollution

Cleanup Division, (512) 239-2465; Scott Crouch, Voluntary Cleanup Program,

(512) 239-2486; or Clark Talkington, Waste Policy and Regulations Division,

(512) 239-6731.

STATUTORY AUTHORITY. The amendment is proposed under Texas Water

Code, sec.5.103 and sec.26.011, which provide the commission with authority

to adopt any rules necessary to carry out its powers, duties, and policies

and to protect water quality in the state and Texas Solid Waste Disposal Act,

Texas Health and Safety Code, sec.361.017, and sec.361.024, which provide

the commission the authority to regulate industrial solid waste and municipal

hazardous wastes and all other powers necessary or convenient to carry out

its responsibilities. In addition, the amendment is proposed under Texas Water

Code, sec.26.039, which states that activities which are inherently or 
potentially

capable of causing or resulting in the spillage or accidental discharge of

waste or other substances and which pose serious or significant threats of

pollution are subject to reasonable rules establishing safety and preventive

measures which the commission may adopt or issue; Texas Water Code, sec.26.121,

which prohibits persons from discharging wastes into or adjacent to any water

in the state unless authorized to do so and prohibits persons from committing

any other act or engaging in any other activity which in itself or in 
conjunction

with any other discharge or activity causes, continues to cause, or will cause

pollution of any of the water in the state; Texas Water Code, sec.26.262,

which states that it is the policy of this state to prevent the spill or 
discharge

of hazardous substances into the waters in the state and to cause the removal

of such spills and discharges without undue delay; and Texas Water Code, 
sec.26.264,

which provides the commission with authority to issue rules necessary and

convenient to carry out this policy. Authority to propose the amendment is

also provided by Texas Water Code, sec.26.341, which states that it is the

policy of this state to maintain and protect the quality of groundwater and

surface water resources in the state from certain substances in underground

and aboveground storage tanks that may pollute groundwater and surface water

resources, and requires the use of all reasonable methods, including risk-based

corrective action to implement this policy; Texas Water Code, sec.26.345,

which provides the commission with the authority to adopt rules necessary

to carry out this policy; and Texas Water Code, sec.26.401, which states

that it is the policy of this state that discharges of pollutants, disposal

of wastes, or other activities subject to regulation by state agencies be

conducted in a manner that will maintain present uses and not impair potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.331.5. Prevention of Pollution.


<nl>(a)<ol> No permit or authorization by rule shall be

allowed where an injection well causes or allows the movement of fluid that

would result in the pollution of an underground source of drinking water.

A permit or authorization by rule shall include terms and conditions reasonably

necessary to protect fresh water from pollution.


<nl>(b) Persons authorized to conduct

underground injection activities under this chapter shall address unauthorized

discharges of chemicals of concern (COCs) from associated tankage and equipment

according to the requirements of Chapter 350 of this title (relating to the

Texas Risk Reduction Program).<ol>

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 May

 4, 1998.

TRD-9806224


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Chapter 332. Composting

The Texas Natural Resource Conservation Commission (commission) proposes

 amendments to sec.sec.332.4, 332.23, 332.37, and 332.45, concerning the

 composting and beneficial reuse of organic materials.

EXPLANATION OF THE PROPOSED RULES. The commission is proposing a new rule,

commonly referred to as the Texas Risk Reduction Program (TRRP) rule, that

will establish a uniform set of risk-based performance-oriented technical

standards to guide response actions at affected properties regulated via the

agency's Office of Waste Management program areas and other applicable program

areas. The rule will be promulgated as new 30 Texas Administrative Code (TAC)

Chapter 350. The commission is proposing the amendments to sections in this

chapter as a conforming rulemaking to the proposed new Chapter 350. Currently,

corrective action requirements do not exist in this chapter for compost 
facilities.



The commission is proposing to amend sec.332.4, General Requirements,

to establish a general standard for corrective action at any compost facility

at which a chemical of concern is detected. Amendments to sec.sec.332.23,

332.37, and 332.45 would also add the corrective action requirement to the

operational requirements for notification, registration, and permit tier 
facilities.



FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division,

has determined that for the first five-year period the sections as proposed

are in effect, there will be fiscal implications as a result of administration

or enforcement of the sections. There are no increases in cost to state 
government

anticipated. Although the internal commission processes of review and evaluation

of remedial action plans may be altered under the proposed rules, the costs

associated with the process are not anticipated to be materially changed.

In that considerable remedial activity is supported with public funds by the

commission, the effects of the proposed rules on the overall costs of remedial

actions will be reflected in impacts on state funding sources. It is anticipated

that the net benefits of the greater flexibility in risk-based cleanup remedies

afforded by the proposed rules will result in reductions in the demands for

state funds for remedial actions. Similarly, no significant increases in costs

for units of local government are anticipated. For local governments operating

facilities or properties for which cleanup standards might be applied under

these proposed rules, the cost and benefit implications are essentially the

same as those for any private property owner or facility operator subject

to the same provisions.

PUBLIC BENEFIT. Mr. Minick has also determined that, for the first five

years the sections as proposed are in effect, the public benefit anticipated

as a result of enforcement of and compliance with the sections will be improved

consistency and clarity in existing regulations governing the cleanup standards

for contaminated properties. The proposed rules will result in more streamlined

and cost-effective remediation of contaminated properties and increase 
incentives

for remedial actions. Remedial actions under the proposed rules will be 
initiated

more quickly, reducing potential migration of contamination and the improving

the degree of protection of human health and safety and the environment. The

proposed rule will allow greater beneficial use of limited public and private

resources and enhance public notice of and participation in the remediation

of contamination.

There are no net economic costs anticipated to any person, including small

business, required to comply with the sections as proposed. The effect of

the proposed rule will generally be to reduce the potential costs of site

remediation by offering risk based alternatives to current cleanup standards

which should be achievable at a lower cost than current standards. In some

cases, the cost of the analysis and development and justification of a remedy

under the proposed rules may be greater than similar costs under existing

rules. These costs increases, however, will be justified by owners and operators

seeking to determine cost-effective cleanup options and should be offset by

the cost savings realized by utilizing the risk based options offered under

the proposed rules. In addition, a more general savings in cost is anticipated

to result from the overall clarification and simplification of the regulations

governing cleanup standards. Any actual determination of impact of the proposed

rules must be made on a site-specific basis and no estimates of the net cost

savings to owners or operators of these rules is available.

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 rule pursuant to Texas Government Code Annotated 
sec.2007.043.

The specific purpose of the rule is to create one risk-based rule that will

guide property assessments, notifications, and response actions through the

establishment of a consistent, performance-based program that encourages the

cost-effective corrective action for affected properties while ensuring the

adequate protection of human health and the environment. The proposed rule

will substantially advance this specific purpose through the use of a tiered

process for the establishment of health-based protective concentration levels,

by allowing the use of site-specific data, and by providing flexibility in

selection and design of response actions. Promulgation and enforcement of

the proposed rule will not burden private real property which is the subject

of the rule because the rule will establish reasonable and cost-effective

criteria to address contamination of environmental media that represents a

real and substantial threat to human health and safety.

COASTAL MANAGEMENT PLAN CONSISTENCY REVIEW. The commission has reviewed

the proposed rulemaking and found that the rules are subject to the Coastal

 Management Program and must be consistent with all applicable goals and 
policies

of the Coastal Management Program (CMP).

The commission has prepared a consistency determination for the proposed

rules pursuant to 31 TAC sec.505.22 and has found that the proposed rules

are consistent with the applicable CMP goals and policies. The following is

a summary of that determination. The CMP goal applicable to the proposed rules

is the goal to protect, preserve, restore, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas. CMP policies

applicable to the proposed rules include the administrative policies and the

policies for specific activities related to construction and operation of

solid waste treatment, storage, and disposal facilities. Promulgation and

enforcement of these rules is consistent with the applicable CMP goals and

policies because the proposed rules will establish clear, consistent standards

to guide the assessment and cleanup of contaminated properties from site 
investigation

through post-response action care. The rules will require persons conducting

response actions to ensure that the concentrations of COCs are protective

of human and ecological receptors. The new rules will result in an overall

environmental benefit across the state, including in coastal areas. In addition,

the proposed rules do not violate any applicable provisions of the CMP's stated

 goals and policies.

The commission invites public comment on the consistency of the proposed

 rules.

SUBMITTAL OF COMMENTS. The commission will hold two public hearings. A

public hearing on the proposal will be held on July 6, 1998 at 10:00 a.m.

in Building E, Room 201S, of Texas Natural Resource Conservation Commission

complex, located at 12100 North IH-35, Park 35 Technology Center, Austin.

The second public hearing will be held on July 9, 1998 at 1:00 p.m., located

at the City of Houston Pollution Control Building Auditorium, 7411 Park Place

Boulevard, Houston, Texas. The hearings are structured for the receipt of

oral or written comments by interested persons. Individuals may present oral

statements when called upon or order of registration. Open discussion within

the audience 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.

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.

Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation

Commission, 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 Rules Tracking Log Number 96106-350-WS. Comments must be received

by 5:00 p.m. on July 22, 1998. For further information, please contact Chet

Clarke, Petroleum Storage Tank Division, (512) 239-2106; Greg Tipple, Pollution

Cleanup Division, (512) 239-2465; Scott Crouch, Voluntary Cleanup Program,

 (512) 239-2486; or Clark Talkington, Waste Policy and Regulations Division,

 (512) 239-6731.




Subchapter A. General Information


30 TAC sec.332.4

STATUTORY AUTHORITY. The amendment is proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.332.4. General Requirements.


All composting facilities and backyard operations shall comply with

all of the following general requirements.

(1)-(11) (No change.)

<nl>(12) The operator of a compost

 facility shall address the release of a chemical of concern from a compost

 facility to any environmental media under the requirements of Chapter 350

 of this title (relating to Texas Risk Reduction Program) to perform the 
corrective

 action.<ol>

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 May

 4, 1998.

TRD-9806225


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter B. Operations Requiring a Notification


30 TAC sec.332.23

STATUTORY AUTHORITY. The amendment is proposed under Texas

 Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.332.23. Operational Requirements.


Operation of the facility shall comply with all of the following operational

 requirements.

(1)-(3) (No change.)

<nl>(4) The operator of a compost

facility shall address the release of a chemical of concern from a compost

facility to any environmental media under the requirements of Chapter 350

 of this title (relating to Texas Risk Reduction Program) to perform the 
corrective

 action.<ol>

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 May

 4, 1998.

TRD-9806226


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter C. Operations Requiring a Registration


30 TAC sec.332.37

STATUTORY AUTHORITY. The amendment is proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.332.37. Operational Requirements.


The operation of the facility shall comply with all of the following

 operational requirements.

(1)-(12) (No change.)

<nl>(13) The operator of a compost

facility shall address the release of a chemical of concern from a compost

facility to any environmental media under the requirements of Chapter 350

of this title (relating to Texas Risk Reduction Program) to perform the 
corrective

action.

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 May

 4, 1998.

TRD-9806227


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter D. Operations Requiring a Permit


30 TAC sec.332.45

STATUTORY AUTHORITY. The amendment is proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.332.45. Operational Requirements.


The operation of the facility shall comply with all of the following

 operational requirements.

(1)-(12) (No change.)

<nl>(13) The operator of a compost

facility shall address the release of a chemical of concern from a compost

facility to any environmental media under the requirements of Chapter 350

of this title (relating to Texas Risk Reduction Program) to perform the 
corrective

 action.<ol>

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 May

 4, 1998.

TRD-9806228


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Chapter 333. Brownfields Initiatives

The Texas Natural Resource Conservation Commission (commission) proposes

 amendments to sec.sec.333.2, 333.7-333.10 and the repeal of sec.333.11,

concerning the Voluntary Cleanup Program (VCP).

EXPLANATION OF THE PROPOSED RULES. The commission is proposing a new rule,

commonly referred to as the Texas Risk Reduction Program (TRRP) rule, that

will establish a uniform set of risk-based performance-oriented technical

standards to guide response actions at affected properties regulated via the

agency's Office of Waste Management program areas and other applicable program

areas. The rule will be promulgated as new 30 Texas Administrative Code (TAC)

Chapter 350. The commission is proposing the amendments to sections in Chapter

333 as a conforming rulemaking to the proposed new Chapter 350. </p>
<p>Section 333.2 contains definitions. The commission proposes amendments

to the definitions for "Change in Land Use" and "Completion." The definitions

are being amended so that terms used within the definitions are consistent

with terminology in the TRRP rule. The commission proposes to delete "Exposure

 assessment model" because the TRRP rule prescribes mandatory and contingent

exposure pathways and points of exposure rather than the use of exposure 
assessment

models. In addition, the commission is proposing to add paragraph numbers

to the definitions to comply with new 1 TAC sec.91.23 of the 

Texas Register Rules.

Section 333.7 sets forth requirements for voluntary cleanup work plans

and reports. Because proposed Chapter 350 establishes clear requirements for

site investigation and reports, the commission proposes to amend sec.333.7(a)

to reference the requirements in Chapter 350. Also references to "exposure

 assessment model" are being removed.

Section 333.8 sets forth response action standards for the VCP, sec.333.9

discusses deed recordation, and sec.333.10 establishes standards for the

certificate of completion. The proposed changes to sec.333.8 identify Chapter

350, Subchapters C and D for the development of protective concentration levels

and response action standards. Amendments to sec.333.9 will make the deed

recordation requirements of the VCP the same as for other programs governed

by the TRRP. Section 333.10 is being amended to make terminology consistent

with the TRRP rule terminology.

Section 333.11 address public notice requirements for sites entering the

VCP. The commission is proposing to repeal the section because the TRRP rule

contains requirements for notice to owners of off-site properties and leased

lands.

FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division,

has determined that for the first five-year period the sections as proposed

are in effect, there will be fiscal implications as a result of administration

or enforcement of the sections. There are no increases in cost to state 
government

anticipated. Although the internal commission processes of review and evaluation

of remedial action plans may be altered under the proposed rules, the costs

associated with the process are not anticipated to be materially changed.

In that considerable remedial activity is supported with public funds by the

commission, the effects of the proposed rules on the overall costs of remedial

actions will be reflected in impacts on state funding sources. It is anticipated

that the net benefits of the greater flexibility in risk-based cleanup remedies

afforded by the proposed rules will result in reductions in the demands for

state funds for remedial actions. Similarly, no significant increases in costs

for units of local government are anticipated. For local governments operating

facilities or properties for which cleanup standards might be applied under

these proposed rules, the cost and benefit implications are essentially the

same as those for any private property owner or facility operator subject

to the same provisions.

PUBLIC BENEFIT. Mr. Minick has also determined that, for the first five

years the sections as proposed are in effect, the public benefit anticipated

as a result of enforcement of and compliance with the sections will be improved

consistency and clarity in existing regulations governing the cleanup standards

for contaminated properties. The proposed rules will result in more streamlined

and cost-effective remediation of contaminated properties and increase 
incentives

for remedial actions. Remedial actions under the proposed rules will be 
initiated

more quickly, reducing potential migration of contamination and the improving

the degree of protection of human health and safety and the environment. The

proposed rule will allow greater beneficial use of limited public and private

resources and enhance public notice of and participation in the remediation

of contamination.

There are no net economic costs anticipated to any person, including small

business, required to comply with the sections as proposed. The effect of

the proposed rule will generally be to reduce the potential costs of site

remediation by offering risk based alternatives to current cleanup standards

which should be achievable at a lower cost than current standards. In some

cases, the cost of the analysis and development and justification of a remedy

under the proposed rules may be greater than similar costs under existing

rules. These costs increases, however, will be justified by owners and operators

seeking to determine cost-effective cleanup options and should be offset by

the cost savings realized by utilizing the risk based options offered under

the proposed rules. In addition, a more general savings in cost is anticipated

to result from the overall clarification and simplification of the regulations

governing cleanup standards. Any actual determination of impact of the proposed

rules must be made on a site-specific basis and no estimates of the net cost

savings to owners or operators of these rules is available.

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 rule pursuant to Texas Government Code Annotated 
sec.2007.043.

The specific purpose of the rule is to create one risk-based rule that will

guide property assessments, notifications, and response actions through the

establishment of a consistent, performance-based program that encourages the

cost-effective corrective action for affected properties while ensuring the

adequate protection of human health and the environment. The proposed rule

will substantially advance this specific purpose through the use of a tiered

process for the establishment of health-based protective concentration levels,

by allowing the use of site-specific data, and by providing flexibility in

selection and design of response actions. Promulgation and enforcement of

the proposed rule will not burden private real property which is the subject

of the rule because the rule will establish reasonable and cost-effective

criteria to address contamination of environmental media that represents a

real and substantial threat to human health and safety.

COASTAL MANAGEMENT PLAN CONSISTENCY REVIEW. The commission has reviewed

the proposed rulemaking and found that the rules are subject to the Coastal

 Management Program and must be consistent with all applicable goals and 
policies

of the Coastal Management Program (CMP).

The commission has prepared a consistency determination for the proposed

rules pursuant to 31 TAC sec.505.22 and has found that the proposed rules

are consistent with the applicable CMP goals and policies. The following is

a summary of that determination. The CMP goal applicable to the proposed rules

is the goal to protect, preserve, restore, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas. CMP policies

applicable to the proposed rules include the administrative policies and the

policies for specific activities related to construction and operation of

solid waste treatment, storage, and disposal facilities. Promulgation and

enforcement of these rules is consistent with the applicable CMP goals and

policies because the proposed rules will establish clear, consistent standards

to guide the assessment and cleanup of contaminated properties from site 
investigation

through post-response action care. The rules will require persons conducting

response actions to ensure that the concentrations of COCs are protective

of human and ecological receptors. The new rules will result in an overall

environmental benefit across the state, including in coastal areas. In addition,

the proposed rules do not violate any applicable provisions of the CMP's stated

 goals and policies.

The commission invites public comment on the consistency of the proposed

 rules.

SUBMITTAL OF COMMENTS. The commission will hold two public hearings. A

 public hearing on the proposal will be held on July 6, 1998 at 10:00 a.m.

in Building E, Room 201S, of Texas Natural Resource Conservation Commission

complex, located at 12100 North IH-35, Park 35 Technology Center, Austin.

The second public hearing will be held on July 9, 1998 at 1:00 p.m., located

at the City of Houston Pollution Control Building Auditorium, 7411 Park Place

Boulevard, Houston, Texas. The hearings are structured for the receipt of

oral or written comments by interested persons. Individuals may present oral

statements when called upon or order of registration. Open discussion within

the audience 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.

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.

Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation

Commission, 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 Rules Tracking Log Number 96106-350-WS. Comments must be received

by 5:00 p.m. on July 22, 1998. For further information, please contact Chet

Clarke, Petroleum Storage Tank Division, (512) 239-2106; Greg Tipple, Pollution

Cleanup Division, (512) 239-2465; Scott Crouch, Voluntary Cleanup Program,

(512) 239-2486; or Clark Talkington, Waste Policy and Regulations Division,

 (512) 239-6731.




Subchapter A. Voluntary Cleanup Program Section


30 TAC sec.sec.333.2, 333.7-333.10

STATUTORY AUTHORITY. The amendments are proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendments affect Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.333.2. Definitions.


The following words and terms, when used in this subchapter, shall

have the following meanings, unless the context clearly indicates otherwise:



<nl>(1)<ol> Change in land use - A change in use from a

less protective risk classification to a more protective risk classification

 (e.g., <nl>commercial/industrial<ol> [non-residential] to residential)

 or not maintaining a physical [engineering] control, remediation

 system, or <nl>post-response action<ol> [post-closure] care

 or non-permanent institutional control as set out in the conditional 
Certificate.


<nl>
(2)<ol> Completion - No more response actions

are necessary or the applicant is satisfactorily maintaining the <nl>physical


<ol>[engineering] controls, remediation systems, or<nl> post-response

action<ol> [post-closure] care or non-permanent institutional

 controls are utilized pursuant to the Voluntary Cleanup agreement.

<nl>(3)<ol> Initiate an enforcement action--The issuance

 of a notice of violation by the executive director or referral to the United

 States Environmental Protection Agency or Attorney General's Office for a

possible enforcement action.

<nl>(4)<ol> Partial response action--A response action

which is limited to an areal portion of the site and off-site areas, if any,

contaminated due to releases which have migrated from the partial response

action area onto property owned or controlled by others, inclusive of all

media.

<nl>(5)<ol> Partial response action area--The area

of the site and off-site within which the partial response action will be

conducted in accordance with a plan approved by the executive director.

<nl>(6)<ol> Pending enforcement action--Concerning

the remediation of the hazardous substance or contaminant described in the

application, a notice of violation has been issued and further administrative,

state, or federal enforcement action is under evaluation or an enforcement

action is required by federal grant, or the state has incurred unreimbursed

costs under the Texas Health and Safety Code, Chapter 361, Subchapter F.



<nl>(7)<ol> Response action objectives--The goals

of the response actions, which may include both qualitative and quantitative

 goals.

<nl>(8)<ol> Site--The property as described in the

legal description provided in the voluntary cleanup agreement.

<nl>(9)<ol> Site subject to a commission permit or

order--A site or portion of a site concerning which an order or permit has

been issued by the commission. These also include hazardous waste facilities,

which are operating under interim status.

[Exposure assessment model - A conceptual

model of the physical site conditions, contaminants of concern by media, release

mechanisms, environmental fate and transport, and potential receptors, and

the interaction of each as it relates to site risk. The model identifies the

universe of on-site and off-site current and reasonably anticipated future

human and environmental exposure pathways and receptors. The purpose of the

model is to design and focus site investigations and to assist in the 
determination

of site response action objectives.]



sec.333.7. Voluntary Cleanup Work Plans and Reports.





(a) Voluntary cleanup work plans and reports shall <nl>meet

 all the requirements for work plans and reports set forth in Chapter 350 of

 this title (relating to Texas Risk Reduction Program).<ol> [include

 an investigation of the full nature and extent of contamination in all media

unless the person demonstrates to the satisfaction of the executive director

that site conditions warrant a focused investigation. This may be demonstrated

with an exposure assessment model. The exposure assessment model shall examine

all currently discovered and reasonably anticipated future exposure pathways

for all contaminants and media of concern.]. Contaminated media within

 the investigation area shall be addressed according to the appropriate 
established

 technical standards.


(b)-(c) (No change).



sec.333.8. Response Action Standards.


(a) Excepting areal limitations with partial response actions,

 all <nl>environmental<ol> media which exceed the<nl> critical protective

 concentration levels developed in accordance with Chapter 350, Subchapter

C of this title (relating to Development of Protective Concentration Levels)

<ol> [health-based and environmental cleanup levels] shall be

 addressed through the appropriate response<nl> actions as required in Chapter

 350, Subchapter D of this title (relating to Remedy Standards).<ol> [

action and in accordance with the appropriate technical standards based upon

the site characteristics and site contaminants.]


(b) <nl>State or local permits are not required for removal

or remedial action under the Voluntary Cleanup Program. The person conducting

the voluntary cleanup shall comply with any federal or state standard, 
requirement,

criterion, or limitation to which the response action would otherwise be subject

if a permit were required unless such commission rule requirements are 
inconsistent

with a specific provision of this subchapter. <ol>[The applicant shall

select a response action for the response action area which will achieve the

response action objectives.]


[(c) State or local permits are

not required for removal or remedial action under the Voluntary Cleanup Program.

The person conducting the voluntary cleanup shall comply with any federal

or state standard, requirement, criterion, or limitation to which the response

action would otherwise be subject if a permit were required unless such 
commission

rule requirements are inconsistent with a specific provision of this 
subchapter.]





sec.333.9. Deed Certification.


The filing of the certificate of completion into the<nl> real property


<ol>[deed]<nl> records <ol>[record] shall satisfy

the <nl>requirements of Chapter 350 of this title (relating to Texas Risk

 Reduction Program) to file institutional controls in the real property records

<ol> [deed certification requirements of Chapter 334 of this title

(relating to Underground and Aboveground Storage Tanks) and Chapter 335 of

this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)

] for the areas covered by the certificate of completion. [However,

if the certificate of completion is not recorded for the off-site properties,

the deed certification requirements, if any, of other applicable rules must

be met for cleanups which do not achieve residential health-based levels in

all media of concern and/or cleanups that include engineering controls, 
remediation

systems, or post-closure care or non-permanent institutional controls.]





sec.333.10. Certificate of Completion.


(a) If reports acceptable to the executive director that are

submitted under this subchapter demonstrate that no further action is required

to protect human health and the environment, the executive director shall

certify such facts by issuing the person a final certificate of completion.

If the applicant is satisfactorily maintaining the <nl>physical <ol>[

engineering] controls, remediation systems, or<nl> post-response action

<ol> [post-closure] care, or if non-permanent institutional controls

are utilized pursuant to an agreement, the executive director shall certify

such facts by issuing the applicant a conditional certificate of completion.

The executive director may authorize an applicant to conduct a phased response

action only when, in the executive director's evaluation, the schedule is

reasonable.


(b)-(c) (No change.)


(d) The executive director may allow the applicant to file

the copy of the certificate of completion into the site deed record on the

executive director's behalf if the applicant provides subsequent documentation

of the filing. The applicant must file the copy of the certificate of completion

prior to the sale or transfer of the property, but not later than<nl> 90

<ol> [60] days after the date of issuance of the certificate

of completion.


(e) (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 May

 4, 1998.

TRD-9806229


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087





30 TAC sec.333.11

(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 and Conservation Commission or in the Texas Register

office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)



STATUTORY AUTHORITY. The repeal is proposed under

Texas Water Code, sec.5.103 and sec.26.011, which provide the commission

with authority to adopt any rules necessary to carry out its powers, duties,

and policies and to protect water quality in the state and Texas Solid Waste

Disposal Act, Texas Health and Safety Code, sec.361.017, and sec.361.024,

which provide the commission the authority to regulate industrial solid waste

and municipal hazardous wastes and all other powers necessary or convenient

to carry out its responsibilities. In addition, the repeal is proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the repeal is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The repeal affects Water Code, Chapter 26, and Health and Safety Code Chapter

 361.


sec.333.11. Public Notice.

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 May

 4, 1998.

TRD-9806230


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Chapter 334. Petroleum Storage Tank Program

The Texas Natural Resource Conservation Commission (commission) proposes

amendments to sec.sec.334.71, 334.201, and 334.503, concerning the Petroleum

 Storage Tank Program (PST).

EXPLANATION OF THE PROPOSED RULES. The commission is proposing a new rule,

commonly referred to as the Texas Risk Reduction Program (TRRP) rule, that

will establish a uniform set of risk-based performance-oriented technical

standards to guide response actions at affected properties regulated via the

agency's Office of Waste Management program areas and other applicable program

areas. The rule will be promulgated as new 30 Texas Administrative Code (TAC)

Chapter 350. The commission is proposing the amendments to sections in Chapter

334 as a conforming rulemaking to the proposed new Chapter 350.

Section 334.71 defines the applicability of PST corrective action regulations.

The commission proposes to amend the section by designating Chapter 350 as

the applicable corrective action requirements in lieu of sec.sec.334.78-334.81

for all releases from underground and aboveground storage tanks which are

reported on or after December 23, 1998.

Section 334.201 defines the applicability of Chapter 334, Subchapter G

 which contains the risk-based corrective action requirements for the PST 
program.

The commission proposes amendments to this section which require that any

release from underground and aboveground storage tanks which are reported

on or after December 23, 1998 be subject to Chapter 350. Subchapter G is 
applicable

only to those releases discovered and reported prior to that date.

Section 334.503 sets the requirements for reuse of petroleum-substance

waste. The commission proposes to amend this section to establish reuse levels

in accordance with the provisions of Chapter 350.

FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division,

has determined that for the first five-year period the sections as proposed

are in effect, there will be fiscal implications as a result of administration

or enforcement of the sections. There are no increases in cost to state 
government

anticipated. Although the internal commission processes of review and evaluation

of remedial action plans may be altered under the proposed rules, the costs

associated with the process are not anticipated to be materially changed.

In that considerable remedial activity is supported with public funds by the

commission, the effects of the proposed rules on the overall costs of remedial

actions will be reflected in impacts on state funding sources. It is anticipated

that the net benefits of the greater flexibility in risk-based cleanup remedies

afforded by the proposed rules will result in reductions in the demands for

state funds for remedial actions. Similarly, no significant increases in costs

for units of local government are anticipated. For local governments operating

facilities or properties for which cleanup standards might be applied under

these proposed rules, the cost and benefit implications are essentially the

same as those for any private property owner or facility operator subject

to the same provisions.

PUBLIC BENEFIT. Mr. Minick has also determined that, for the first five

years the sections as proposed are in effect, the public benefit anticipated

as a result of enforcement of and compliance with the sections will be improved

consistency and clarity in existing regulations governing the cleanup standards

for contaminated properties. The proposed rules will result in more streamlined

and cost-effective remediation of contaminated properties and increase 
incentives

for remedial actions. Remedial actions under the proposed rules will be 
initiated

more quickly, reducing potential migration of contamination and the improving

the degree of protection of human health and safety and the environment. The

proposed rule will allow greater beneficial use of limited public and private

resources and enhance public notice of and participation in the remediation

of contamination.

There are no net economic costs anticipated to any person, including small

business, required to comply with the sections as proposed. The effect of

the proposed rule will generally be to reduce the potential costs of site

remediation by offering risk based alternatives to current cleanup standards

which should be achievable at a lower cost than current standards. In some

cases, the cost of the analysis and development and justification of a remedy

under the proposed rules may be greater than similar costs under existing

rules. These costs increases, however, will be justified by owners and operators

seeking to determine cost-effective cleanup options and should be offset by

the cost savings realized by utilizing the risk based options offered under

the proposed rules. In addition, a more general savings in cost is anticipated

to result from the overall clarification and simplification of the regulations

governing cleanup standards. Any actual determination of impact of the proposed

rules must be made on a site-specific basis and no estimates of the net cost

savings to owners or operators of these rules is available.

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 rule pursuant to Texas Government Code Annotated 
sec.2007.043.

The specific purpose of the rule is to create one risk-based rule that will

guide property assessments, notifications, and response actions through the

establishment of a consistent, performance-based program that encourages the

cost-effective corrective action for affected properties while ensuring the

adequate protection of human health and the environment. The proposed rule

will substantially advance this specific purpose through the use of a tiered

process for the establishment of health-based protective concentration levels,

by allowing the use of site-specific data, and by providing flexibility in

selection and design of response actions. Promulgation and enforcement of

the proposed rule will not burden private real property which is the subject

of the rule because the rule will establish reasonable and cost-effective

criteria to address contamination of environmental media that represents a

real and substantial threat to human health and safety.

COASTAL MANAGEMENT PLAN CONSISTENCY REVIEW. The commission has reviewed

the proposed rulemaking and found that the rules are subject to the Coastal

Management Program and must be consistent with all applicable goals and policies

of the Coastal Management Program (CMP).

The commission has prepared a consistency determination for the proposed

rules pursuant to 31 TAC sec.505.22 and has found that the proposed rules

are consistent with the applicable CMP goals and policies. The following is

a summary of that determination. The CMP goal applicable to the proposed rules

is the goal to protect, preserve, restore, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas. CMP policies

applicable to the proposed rules include the administrative policies and the

policies for specific activities related to construction and operation of

solid waste treatment, storage, and disposal facilities. Promulgation and

enforcement of these rules is consistent with the applicable CMP goals and

policies because the proposed rules will establish clear, consistent standards

to guide the assessment and cleanup of contaminated properties from site 
investigation

through post-response action care. The rules will require persons conducting

response actions to ensure that the concentrations of COCs are protective

of human and ecological receptors. The new rules will result in an overall

environmental benefit across the state, including in coastal areas. In addition,

the proposed rules do not violate any applicable provisions of the CMP's stated

 goals and policies.

The commission invites public comment on the consistency of the proposed

 rules.

SUBMITTAL OF COMMENTS. The commission will hold two public hearings. A

public hearing on the proposal will be held on July 6, 1998 at 10:00 a.m.

in Building E, Room 201S, of Texas Natural Resource Conservation Commission

complex, located at 12100 North IH-35, Park 35 Technology Center, Austin.

The second public hearing will be held on July 9, 1998 at 1:00 p.m., located

at the City of Houston Pollution Control Building Auditorium, 7411 Park Place

Boulevard, Houston, Texas. The hearings are structured for the receipt of

oral or written comments by interested persons. Individuals may present oral

statements when called upon or order of registration. Open discussion within

the audience 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.

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.

Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation

Commission, 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 Rules Tracking Log Number 96106-350-WS. Comments must be received

by 5:00 p.m. on July 22, 1998. For further information, please contact Chet

Clarke, Petroleum Storage Tank Division, (512) 239-2106; Greg Tipple, Pollution

Cleanup Division, (512) 239-2465; Scott Crouch, Voluntary Cleanup Program,

(512) 239-2486; or Clark Talkington, Waste Policy and Regulations Division,

(512) 239-6731.




Subchapter D. Release Reporting and Corrective Action


30 TAC sec.334.71

STATUTORY AUTHORITY. The amendment is proposed under Texas
 Water Code, sec.5.103 and sec.26.011, which provide the commission with
 authority to adopt any rules necessary to carry out its powers, duties, and
 policies and to protect water quality in the state and Texas Solid Waste
Disposal Act, Texas Health and Safety Code, sec.361.017, and sec.361.024,
which provide the commission the authority to regulate industrial solid waste
and municipal hazardous wastes and all other powers necessary or convenient
to carry out its responsibilities. In addition, the amendments are proposed
under Texas Water Code, sec.26.039, which states that activities which
are inherently or potentially capable of causing or resulting in the spillage
or accidental discharge of waste or other substances and which pose serious
or significant threats of pollution are subject to reasonable rules establishing
safety and preventive measures which the commission may adopt or issue; Texas
Water Code, sec.26.121, which prohibits persons from discharging wastes
into or adjacent to any water in the state unless authorized to do so and
prohibits persons from committing any other act or engaging in any other
activity which in itself or in conjunction with any other discharge or activity
causes, continues to cause, or will cause pollution of any of the water in
the state; Texas Water Code, sec.26.262, which states that it is the policy
of this state to prevent the spill or discharge of hazardous substances into
the waters in the state and to cause the removal of such spills and discharges
without undue delay; and Texas Water Code, sec.26.264, which provides the
commission with authority to issue rules necessary and convenient to carry
out this policy. Authority to propose the amendments is also provided by
Texas Water Code, sec.26.341, which states that it is the policy of this
state to maintain and protect the quality of groundwater and surface water
resources in the state from certain substances in underground and aboveground
storage tanks that may pollute groundwater and surface water resources, and
requires the use of all reasonable methods, including risk-based corrective
action to implement this policy; Texas Water Code, sec.26.345, which provides
the commission with the authority to adopt rules necessary to carry out this
policy; and Texas Water Code, sec.26.401, which states that it is the policy
of this state that discharges of pollutants, disposal of wastes, or other
activities subject to regulation by state agencies be conducted in a manner
that will maintain present uses and not impair potential uses of groundwater
or pose a public health hazard, and that the quality of groundwater be restored
if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code
 Chapter 361.



sec.334.71. Applicability.


<nl>For releases discovered and reported to the executive director
 on or before December 22, 1998, the<ol> [The] provisions of
this subchapter are applicable to owners and operators of all underground
storage tanks<nl> and all petroleum product aboveground storage tanks<ol>
unless otherwise specified in <nl>Subchapters<ol> [Subchapter]
A <nl> or F<ol> of this chapter (relating to General Provisions <nl>and
Aboveground Storage Tanks, respectively). For releases reported to the executive
director on or after December 23, 1998, the provisions of this subchapter
are applicable to owners and operators of all underground storage tanks and
all petroleum product aboveground storage tanks, except that Chapter 350
of this title (relating to Texas Risk Reduction Program) shall be used in
lieu of sec.sec.334.78-334.81 of this title (relating to Site Assessment,
Free Product Removal, Investigation for Soil and Groundwater Cleanup, and
Corrective Action Plans, respectively). <ol>

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 May
 4, 1998.

TRD-9806231


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter G. Target Concentration Criteria


30 TAC sec.334.201

STATUTORY AUTHORITY. The amendment is proposed under Texas

 Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.334.201. Purpose and Applicability.


(a) Purpose. The purpose of this subchapter is to establish

the criteria by which target concentrations are established for <nl>the cleanup

of<ol> leaking storage tank site <nl>releases discovered and reported to

the executive director on or before December 22, 1998<ol> [cleanups

].


(b) Applicability. <nl> For releases which are discovered

and reported to the executive director on or before December 22, 1998,<ol>

the provisions of this subchapter are applicable to owners and operators of

all underground storage tanks and petroleum product aboveground storage tanks

unless otherwise specified in Subchapters A and F of this chapter (relating

to General Provisions and Aboveground Storage Tanks) respectively. These rules

supersede previous cleanup guidelines as published in the January 1990, 
Guidance Manual for LPST Cleanups in Texas . All

 leaking storage tank cases which are not eligible for closure pursuant to

 the cleanup guidelines as published in the January 1990, 

Guidance Manual for LPST Cleanups in Texas as of the effective date

of this rule shall be reevaluated by the owner and operator under this rule

to establish target concentrations unless the executive director has provided

written approval of a remediation plan to clean a site to a specific numeric

target concentration and the remediation plan has been initiated prior to

the effective date of these rules. <nl>For releases reported to the executive

director on or after December 23, 1998, the provisions of Chapter 350 of this

title (relating to Texas Risk Reduction Program) are applicable to owners

and operators of all underground storage tanks and petroleum product aboveground

storage tanks unless otherwise specified in Subchapters A and F of this chapter

in place of the provisions of this subchapter.<ol>

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 May

 4, 1998.

TRD-9806232


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter K. Storage, Treatment, and Reuse Procedure for Petroleum-Substance

 Contaminated Soil


30 TAC sec.334.503

STATUTORY AUTHORITY. The amendment is proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.334.503. Reuse of Petroleum-Substance Waste.





(a) (No change.)


(b) <nl>Petroleum-substance waste may be reused in accordance

with sec.350.96 of this title (relating to the Relocation of Soils Containing

COCs for Reuse Purposes). <ol> [Recordkeeping and reporting requirements

for any person who intends to reuse petroleum-substance wastes shall require

that person to maintain records and provide to the executive director when

requested such information deemed necessary by the executive director to ensure

compliance with the requirements of this subsection. This information shall

include, but is not limited to:]

[(1) identification, address,

and name of the authorized representative of the generating facility;]

[(2) identification, address,

and name of the authorized representative for the receiving facility or 
location;]



[(3) identification of the

landowner of the receiving location or facility;]

[(4) the quantity, type,

and contaminant levels of the reused wastes;]

[(5) documentation of the

reuse methods and dates of reuse;]

[(6) documentation that asphalt

mix or road base mix meets the specifications required by the final user;]



[(7) documentation that the

landowner of the receiving location has approved the use of the reused wastes

on his property.]


[(c) Reuse requirements are as

 follows.]

[(1) Any person who intends to utilize petroleum-substance

wastes for reuse shall obtain written approval from the landowner of the land

on which the wastes will be placed. The landowner's approval shall be submitted

to the executive director upon demand.]

[(2) Petroleum-substance wastes shall be reused

only in manners which are in accordance with sec.334.482 of this title and

at contaminant levels specified by the executive director.]

[(3) Petroleum-substance wastes may be reused

under the following conditions.]

[(A) Petroleum-substance wastes may be utilized

in cold-mix-emulsion bituminous paving at a cold-mix asphalt-producing facility

registered under the terms of this subchapter. The petroleum-substance waste

shall be mixed with aggregate or other suitable materials at a rate which

will result in a mixture meeting or exceeding the specifications required

by the final user. The petroleum-substance waste shall contain less than 0.5

mg/kg for each component of benzene, toluene, ethyl benzene, and total xylenes

prior to mixing. Authorization for the facility shall also be obtained from

all other appropriate federal, state, or local governing agencies. Authorization

from the owner of the road or other area where the asphalt is to be utilized

shall be obtained prior to laying the asphalt.]


[(B) Petroleum-substance wastes may be utilized

in asphalt mix at hot-mix asphalt-producing facilities registered under this

subchapter. The petroleum-substance waste shall contain less than 0.5 mg/kg

for each component of benzene, toluene, ethyl benzene, and total xylenes prior

to mixing. The petroleum-substance waste shall be mixed with aggregate at

a rate which will result in a mixture meeting or exceeding the specifications

required by the final user. Authorization for the facility shall also be 
obtained

from all other appropriate federal, state, or local governing agencies. 
Authorization

from the owner of the road or other area where the asphalt is to be utilized

shall be obtained prior to laying the asphalt.]


[(C) Petroleum-substance wastes may be utilized

in road base or parking lot stabilized base when the base will be covered

with concrete or asphalt if the contaminant levels of the soil prior to mixing

into the stabilized base are less than 0.5 mg/kg for each component of benzene,

toluene, ethyl benzene, and total xylenes, and less than 500.0 mg/kg total

petroleum hydrocarbons or at contaminant levels otherwise specified by the

executive director. The base shall be mixed according to the specifications

required by the final user. Soil which is not mixed into stabilized road base

shall meet the criteria for clean soil as specified by the executive director

in order to be spread on a road or parking lot. The generator shall obtain

prior written consent for the placement of the soil from the owner of the

road (if different from the landowner).]


[(D) Petroleum-substance wastes may be utilized

in road base or parking lot stabilized base when the base will not be covered

with asphalt or concrete if the contaminant levels are less than 0.5 mg/kg

for each component of benzene, toluene, ethyl benzene, and total xylenes,

and less than 200 mg/kg of total petroleum hydrocarbons or at contaminant

levels otherwise specified by the executive director. The base shall be mixed

according to the specifications required by the final user. The base shall

be professionally mixed by a facility registered under the terms of this 
subchapter.

Soil which is not mixed into stabilized road base shall meet the criteria

for clean soil in order to be spread on a road or parking lot. The generator

shall obtain prior written consent for the placement of the soil from the

owner of the road (if different from the landowner).]


[(E) Petroleum-substance wastes will be considered

clean, and may be used as fill in another leaking petroleum storage tank site

tankhold if the contaminant levels do not exceed 0.5 mg/kg for each component

of benzene, toluene, ethyl benzene, and total xylenes, and 10.0 mg/kg total

petroleum hydrocarbons. Other contaminant levels may be considered by the

executive director if documentation indicates that there is no threat to public

health or safety and if there is no threat of groundwater contamination at

the receiving site. The owner of the underground storage tanks at the receiving

facility, and the landowner (if different from the tank owner) shall give

written consent for this activity. The soil shall not be utilized in a tankhold

in which a new tank installation will occur.]


[(F) Petroleum-substance waste may be reused by

alternative methods or contaminant levels deemed appropriate and as authorized

by the executive director. The generator shall obtain authorization, including

authorization pursuant to the requirements of this subchapter, from the 
executive

director prior to reusing the waste by alternative methods.]


[(G) The executive director may, in his discretion,

grant a variance for the pre-treatment requirements set forth in subparagraphs

(A)-(E) of this paragraph. It shall be the burden of the applicant to apply

for a variance under this subparagraph.]

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 May

 4, 1998.

TRD-9806233


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Chapter 335. Industrial Solid Waste and Municipal Hazardous

 Waste

The Texas Natural Resource Conservation Commission (commission) proposes

 amendments to sec.335.8 and sec.335.551, concerning Industrial Solid Waste

 and Municipal Hazardous Waste rules.

EXPLANATION OF THE PROPOSED RULES. The commission is proposing a new rule,

commonly referred to as the Texas Risk Reduction Program (TRRP) rule, that

will establish a uniform set of risk-based performance-oriented technical

standards to guide response actions at affected properties regulated via the

agency's Office of Waste Management program areas and other applicable program

areas. The rule will be promulgated as new 30 Texas Administrative Code (TAC)

Chapter 350. The commission is proposing amendments to Chapter 335 as a 
conforming

rulemaking to the proposed new Chapter 350.

Section 335.8 defines the applicability of the existing risk reduction

rules to persons who perform closures and remediations at facilities or areas

subject to industrial solid waste and municipal hazardous waste regulations.

The commission proposes to add to subsection (a) provisions that will establish

dates by which persons must terminate their use of the existing risk reduction

rules for projects in progress. New closures and remediations reported and

initiated after the effective date of Chapter 350 must comply with that chapter.

Subsection (b) establishes the closure and remediation obligations which must

be completed once a person establishes applicability under subsection (a).

The commission proposes to add provisions to paragraph (2) of subsection (b)

to clarify the performance requirement for closure for waste management facility

components such as a tank, sump, surface impoundment, etc., and to distinguish

the requirements for remediation of unauthorized discharges, which are to

be addressed with the procedures of Chapter 350 after the effective date of

 that chapter.

Section 335.551 establishes the purpose, scope and applicability of Chapter

 335, Subchapter S (relating to Risk Reduction Standards). The commission

 proposes to add to subsection (c) provisions that will establish dates by

 which persons must terminate their use of the existing risk reduction rules

for projects in progress. New closures and remediations reported and initiated

after the effective date of Chapter 350 must comply with that chapter.

FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division,

has determined that for the first five-year period the sections as proposed

are in effect, there will be fiscal implications as a result of administration

or enforcement of the sections. There are no increases in cost to state 
government

anticipated. Although the internal commission processes of review and evaluation

of remedial action plans may be altered under the proposed rules, the costs

associated with the process are not anticipated to be materially changed.

In that considerable remedial activity is supported with public funds by the

commission, the effects of the proposed rules on the overall costs of remedial

actions will be reflected in impacts on state funding sources. It is anticipated

that the net benefits of the greater flexibility in risk-based cleanup remedies

afforded by the proposed rules will result in reductions in the demands for

state funds for remedial actions. Similarly, no significant increases in costs

for units of local government are anticipated. For local governments operating

facilities or properties for which cleanup standards might be applied under

these proposed rules, the cost and benefit implications are essentially the

same as those for any private property owner or facility operator subject

to the same provisions.

PUBLIC BENEFIT. Mr. Minick has also determined that, for the first five

years the sections as proposed are in effect, the public benefit anticipated

as a result of enforcement of and compliance with the sections will be improved

consistency and clarity in existing regulations governing the cleanup standards

for contaminated properties. The proposed rules will result in more streamlined

and cost-effective remediation of contaminated properties and increase 
incentives

for remedial actions. Remedial actions under the proposed rules will be 
initiated

more quickly, reducing potential migration of contamination and the improving

the degree of protection of human health and safety and the environment. The

proposed rule will allow greater beneficial use of limited public and private

resources and enhance public notice of and participation in the remediation

of contamination.

There are no net economic costs anticipated to any person, including small

business, required to comply with the sections as proposed. The effect of

the proposed rule will generally be to reduce the potential costs of site

remediation by offering risk based alternatives to current cleanup standards

which should be achievable at a lower cost than current standards. In some

cases, the cost of the analysis and development and justification of a remedy

under the proposed rules may be greater than similar costs under existing

rules. These costs increases, however, will be justified by owners and operators

seeking to determine cost-effective cleanup options and should be offset by

the cost savings realized by utilizing the risk based options offered under

the proposed rules. In addition, a more general savings in cost is anticipated

to result from the overall clarification and simplification of the regulations

governing cleanup standards. Any actual determination of impact of the proposed

rules must be made on a site-specific basis and no estimates of the net cost

savings to owners or operators of these rules is available.

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 rule pursuant to Texas Government Code Annotated 
sec.2007.043.

The specific purpose of the rule is to create one risk-based rule that will

guide property assessments, notifications, and response actions through the

establishment of a consistent, performance-based program that encourages the

cost-effective corrective action for affected properties while ensuring the

adequate protection of human health and the environment. The proposed rule

will substantially advance this specific purpose through the use of a tiered

process for the establishment of health-based protective concentration levels,

by allowing the use of site-specific data, and by providing flexibility in

selection and design of response actions. Promulgation and enforcement of

the proposed rule will not burden private real property which is the subject

of the rule because the rule will establish reasonable, cost-effective criteria

to address contamination of environmental media that represents a real and

substantial threat to human health and safety.

COASTAL MANAGEMENT PLAN CONSISTENCY REVIEW. The commission has reviewed

the proposed rulemaking and found that the rules are subject to the Coastal

Management Program and must be consistent with all applicable goals and policies

of the Coastal Management Program (CMP).

The commission has prepared a consistency determination for the proposed

rules pursuant to 31 TAC sec.505.22 and has found that the proposed rules

are consistent with the applicable CMP goals and policies. The following is

a summary of that determination. The CMP goal applicable to the proposed rules

is the goal to protect, preserve, restore, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas. CMP policies

applicable to the proposed rules include the administrative policies and the

policies for specific activities related to construction and operation of

solid waste treatment, storage, and disposal facilities. Promulgation and

enforcement of these rules is consistent with the applicable CMP goals and

policies because the proposed rules will establish clear, consistent standards

to guide the assessment and cleanup of contaminated properties from site 
investigation

through post-response action care. The rules will require persons conducting

response actions to ensure that the concentrations of chemicals of concern

are protective of human and ecological receptors. The new rules will result

in an overall environmental benefit across the state, including in coastal

areas. In addition, the proposed rules do not violate any applicable provisions

of the CMP's stated goals and policies.

The commission invites public comment on the consistency of the proposed

 rules.

SUBMITTAL OF COMMENTS. The commission will hold two public hearings. A

public hearing on the proposal will be held on July 6, 1998 at 10:00 a.m.

in Building E, Room 201S, of Texas Natural Resource Conservation Commission

complex, located at 12100 North IH-35, Park 35 Technology Center, Austin.

The second public hearing will be held on July 9, 1998 at 1:00 p.m., located

at the City of Houston Pollution Control Building Auditorium, 7411 Park Place

Boulevard, Houston, Texas. The hearings are structured for the receipt of

oral or written comments by interested persons. Individuals may present oral

statements when called upon or order of registration. Open discussion within

the audience 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.

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.

Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation

Commission, 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 Rules Tracking Log Number 96106-350-WS. Comments must be received

by 5:00 p.m. on July 22, 1998. For further information, please contact Chet

Clarke, Petroleum Storage Tank Division, (512) 239-2106; Greg Tipple, Pollution

Cleanup Division, (512) 239-2465; Scott Crouch, Voluntary Cleanup Program,

(512) 239-2486; or Clark Talkington, Waste Policy and Regulations Division,

(512) 239-6731.




Subchapter A. Industrial Solid Waste and Municipal Hazardous

Waste in General


30 TAC sec.335.8

STATUTORY AUTHORITY. The amendment is proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

Chapter 361.



sec.335.8. Closure and Remediation.


(a) Applicability. The regulations in this section are effective

on June 28, 1993<nl>, and will remain in effect for persons who notify the

executive director on or before September 30, 1998 of a closure or remediation

in accordance with this section. Persons who notify and initiate a closure

or remediation in response to this section have up to three years from October

1, 1998 within which to submit for executive director review and approval

according to this section a final report which demonstrates attainment of

applicable risk reduction standards. If the executive director denies approval

of the final report under this section for reasons of technical inadequacy,

the executive director may require the person to comply with the requirements

of Chapter 350 of this title (relating to Texas Risk Reduction Program). For

closures and remediations initially reported to the executive director on

or after October 1, 1998, the person shall use the procedures of Chapter 350.

<ol> The regulations in this section apply to persons who undertake the

closure of facilities used for the storage, processing or disposal of industrial

solid waste or municipal hazardous waste. The regulations in this section

also apply to persons who undertake the remediation of contaminated media

resulting from unauthorized discharges from such facilities, either as part

of closure or at any time before or after closure. The regulations in this

section also apply to persons who undertake remediation of areas that are

not otherwise designated as a facility but that contain unauthorized discharges

of industrial solid waste or municipal hazardous waste. The regulations of

this subsection, in addition to other applicable rules, permits or orders,

establish the obligation for persons to perform closures or remediations for

facilities or areas containing industrial solid and municipal hazardous waste

and further specify the mechanism to evaluate such closures or remediations.

The obligation to perform remediations for unauthorized discharges of 
contaminants

under the state superfund and spill response programs occurs through the 
application

of the commission's rules and statutes pertaining to those programs; however,

once such obligation has occurred the regulations in this section will be

used to specify the mechanism to evaluate remediation of unauthorized discharges

of contaminants subject to those programs. The regulations in this section

supplement but do not replace any requirements for closure or remediation

specified in the regulations for the programs subject to these rules and shall

apply as specified in paragraphs (1)-(6) of this subsection.

(1)-(6) (No change.)


(b) Closure and Remediation Obligations. Persons identified

in subsection (a) of this section have the obligation to conduct the activities

described in paragraphs (1)-(4) of this subsection when performing a closure

or remediation. Upon receipt of approval by the executive director of reports

demonstrating compliance with all applicable requirements, the person has

completed these obligations unless a substantial change in circumstances results

in an unacceptable risk to human health or the environment as described in

paragraph (5) of this subsection.

(1) (No change.)

(2) Perform closure or remediation activities at the

facility or area of unauthorized discharge which meet one or more of the risk

reduction standards specified in subparagraphs (A) - (C) of this paragraph. <nl>

The person shall close a waste management facility component (e.g., tank,

sump, surface impoundment, etc.) in a manner that minimizes the need for further

maintenance and controls. The manner of closure shall also minimize or 
eliminate,

to the extent necessary to protect human health and the environment, the post-
closure

escape of waste, contaminants, leachate, run-off, or decomposition products

to the surrounding environmental media. For remediations performed in 
conjunction

with closure initiated after October 1, 1998, the person shall use the 
procedures

of Chapter 350 of this title (relating to Texas Risk Reduction Program) to

determine any response actions that are necessary to address unauthorized

discharges from waste management facility components at time of closure.<ol>

Unless the requirement to close a waste management facility <nl>component

<ol> is specified by other rule, permit or order, the person will determine

the time for initiation of closure. The timely remediation of unauthorized

discharges resulting from <nl>continuing<ol> operation of a waste management 
<nl>

facility component <ol>[unit] does not compel the closure of

the <nl>component<ol> [unit] unless closure is a necessary part

of the remedy to achieve protection of human health and the environment.




(A)-(C) (No change.)

(3)-(5) (No change.)


(c)-(d) (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 May

 4, 1998.

TRD-9806235


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter S. Risk Reduction Standards


30 TAC sec.335.551

STATUTORY AUTHORITY. The amendment is proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the amendments are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the amendments is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The amendment affects Water Code, Chapter 26, and Health and Safety Code

 Chapter 361.



sec.335.551. Purpose, Scope and Applicability.




(a)-(b) (No change.)


(c) Applicability. The requirements of this subchapter apply

to persons who undertake a closure or remediation in accordance with sec.335.8

of this title (relating to Closure <nl>and Remediation<ol>) <nl>during

the period from June 28, 1993 through September 30, 1998. Persons who notify

and initiate a closure or remediation in response to sec.335.8 have up to

three years from October 1, 1998 within which to submit for executive director

review and approval a final report which demonstrates attainment of applicable

risk reduction standards as detailed in this subchapter. If the executive

director denies approval of the final report for reasons of technical 
inadequacy,

the executive director may require the person to comply with the requirements

of Chapter 350 of this title (relating to Texas Risk Reduction Program). For

remediations initially reported to the executive director on or after October

1, 1998, the person shall use the procedures of Chapter 350 of this title

in place of this subchapter. <ol>

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 May

 4, 1998.

TRD-9806234


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Chapter 350. Texas Risk Reduction Program

The Texas Natural Resource Conservation Commission (commission or

agency) proposes new sec.sec.350.1-350.5, 350.31-350.35, 350.51-350.62,

350.91-350.96, 350.111-350.117, 350.131-350.132, concerning requirements 
pertaining

to off-site properties and leased lands; required actions when substantial

changes in circumstances occur at an affected property; the assessment of

property affected by chemicals of concern (COCs); the development of protective

concentration levels for human and ecological receptors; the performance of

response actions necessary to restore a property to active and productive

use; the performance of post-response action care; the establishment and 
maintenance

of financial assurance for post-response action care in certain circumstances;

reporting requirements; and standardized deed recordation/restrictive covenant

language.

EXPLANATION OF PROPOSED RULE The proposed rule, commonly referred to as

the Texas Risk Reduction Program (TRRP) rule, will establish a uniform set

of risk-based performance-oriented technical standards to guide response actions

at affected properties regulated via the agency's Office of Waste Management

program areas and other applicable program areas. The rule will be promulgated

as a new chapter (i.e., 30 Texas Administrative Code (TAC) Chapter 350). 
Currently,

several different rules govern corrective actions, closures, and post-closure

care within the agency's waste management programs. The State Superfund program,

the Industrial and Hazardous Waste program, and the Voluntary Cleanup Program

(VCP) use the existing Risk Reduction Rules in 30 TAC Chapter 335, Subchapters

A and S for risk-based corrective action. Any person who stores, processes

or disposes of hazardous waste is also subject to the closure and post-closure

care requirements in 30 TAC Chapter 335, Subchapters E and F. The Petroleum

Storage Tank (PST) program uses 30 TAC Chapter 334, Subchapters D and G for

risk-based corrective action. Corrective action and closure requirements for

operating municipal solid waste landfills subject to federal Resource 
Conservation

and Recovery Act (RCRA) Subtitle D requirements are found in 30 TAC Chapter

330. There are no specific corrective action requirements for other municipal

landfills. Corrective action requirements for the Underground Injection Control

(UIC) program are found in 30 TAC Chapter 331, Subchapter C. Spill response

actions regulated under 30 TAC Chapter 327 that will take longer than six

months to complete follow the Risk Reduction Rules or the PST rules, whichever

is appropriate for a particular release. Currently, there are no rules for

corrective action at compost facilities.

The adoption of the existing Risk Reduction Rules in 1993 and the PST risk-based

rules in 1995 established the commission's philosophy that risk-based cleanups

are an acceptable remedial response to affected environmental media because

risk-based corrective action ensures protection of human health and the 
environment

while making response actions more economically feasible than complete, or

background, cleanups. Prior to the adoption of the Risk Reduction Rules in

1993, the agency's industrial solid waste programs required all affected media

to be restored to background levels or to be closed as a landfill with post-
closure

care. The agency recognized for the first time in the Risk Reduction Rules

that a limited quantity of COCs could remain within an environmental medium

and not present an unacceptable risk to human health or the environment. 
However,

the current Risk Reduction Rules have a remedy standard which is based upon

the attainment of background conditions (i.e., Risk Reduction Standard 1)

and require a notice to be placed in the property deed records for all sites

where contaminants remain in environmental media above background levels.



The commission initiated today's rulemaking in 1995 as the next logical

step in the development of a risk-based program. The goals of the new program

are: to create a unified performance-based approach to corrective action which

will be the same regardless of which of the agency's program areas reviewed

the adequacy of a proposed response action; to complete the movement away

from background as a cleanup standard; and to implement a consistent, 
streamlined

approach that will expedite remediations of affected properties. The commission

also seeks to address in the proposed rule a substantial number of technical,

legal, risk assessment and risk management policy questions which have arisen

and were unaddressed in the previously promulgated risk-based rules.

Acknowledging the scope, complexity and impact of the proposed rule, the

commission has sought public input throughout the rulemaking process. The

agency has released two versions of a conceptual document setting forth the

agency's vision of the proposed program. The first version was released May

15, 1996, and the second was released December 16, 1996. In addition, a draft

ecological risk assessment guidance document was released in November 1996.

The commission received comment from a large number of interested parties

and has considered those comments in the development of this proposed rule.

In addition to the public comment periods, the commission also discussed the

TRRP at commission work sessions on February 22, 1996, and September 18, 1997.



New Chapter 350 is subdivided into Subchapters A through F. Subchapter

A - General Information consists of sec.sec.350.1-350.5 and sets forth

the general requirements of the TRRP rules. Subchapter B - Affected Property

Assessment, sec.sec.350.31-350.35, establishes the necessary actions for

property assessments. Subchapter C - Development of Protective Concentration

Levels, sec.sec.350.51-350.62, and Subchapter D - Remedy Standards, 
sec.sec.350.91-350.96,

form the basis of the risk-based corrective action process. Subchapter C directs

persons to evaluate exposure pathways and determine the concentration of the

COC which is protective for human and ecological receptors at the point of

exposure (POE). This concentration is referred to as risk-based exposure limits

(RBELs). Separate RBELs are established for human and ecological receptors.

For example, when a volatile organic compound (VOC) is present in subsurface

soils, vapors rise to the surface and are released into the air. The POE to

air is where a receptor inhales the vapors. The RBEL is the concentration

of the VOC in the air that is safe for the receptor to breathe assuming long-
term,

chronic exposure.

Persons then derive protective concentration levels (PCLs). PCLs are the

concentration limits of COCs in the source media (e.g., soil and groundwater)

that will achieve the RBELs in the exposure media. Continuing the example,

the PCL is the concentration of the VOC in the subsurface soil that will,

based upon modeling of cross-media transfer, achieve the RBEL for breathing

the VOC at the POE in air. A tiered process is provided to establish both

human health and ecological PCLs: Tier 1, 2 and 3. This tiered process for

human health PCLs is patterned after the tiered process of the American Society

 of Testing and Materials Standard Guide for Risk-Based

 Corrective Action Applied at Petroleum Release Sites ES-1739-95.

Once PCLs are determined, the person must choose a remedy standard under

Subchapter D. The person may choose one of two remedy standards, Remedy Standard

A or Remedy Standard B. Remedy Standard A is a pollution cleanup approach

and does not allow a person to use either physical or institutional controls,

other than requiring a deed notice/restrictive covenant for 
commercial/industrial

land use. Remedy Standard A requires that all media be removed or decontaminated

to the applicable PCLs. Remedy Standard B allows exposure prevention approaches

which rely on physical and/or institutional controls to protect human health

and the environment. Persons may base remedy standards on residential or 
commercial/industrial

land use as appropriate for the particular affected property.

Subchapter E - Reports, sec.sec.350.111-350.117, sets forth the necessary

information for each report required by the TRRP rule. Subchapter G - 
Institutional

Controls, sec.sec.350.131-350.132, identifies accepted institutional controls

and provides standardized forms for each institutional control.

Section 350.1 sets forth the purpose, scope, and process of the rule. The
 purpose of the proposed rule, as noted earlier, is to establish a reasonable,
 consistent, risk-based, performance-oriented approach applicable to most
waste program areas regulated by the commission. Because of the evolving
nature of risk methodologies and improved data, the commission notes in the
rule that the agency will periodically review the general procedures and
revise the rule as necessary. The discussion on the process is intended to
generally summarize the necessary steps in the TRRP.

Section 350.2 contains definitions and acronyms. Because the TRRP brings
 together several different programs into one set of standards, many terms
 will be new to the reader. The agency has attempted to use generic terms
which do not have pre-existing meanings within the covered program areas.
In numerous instances we have developed new terms, since the old terms may
be used by several program areas but do not have the same definitions. For
example, the TRRP rule refers to "affected property" rather than "site" because
site does not have the same meaning within the covered program areas. In
addition, the TRRP rule is expressed in terms of the "person" rather than
the "responsible party" because all entities performing response actions
under the TRRP will not be "responsible parties." The agency has also had
to add definitions to more comprehensively explain the process for defining
RBELs, PCLs, exposure pathways, and POE to environmental media. In particular,
source medium PCL is the concentration of a COC which can remain within the
source medium and protect human and ecological receptors at a POE which is
located within, above or below the source medium (e.g., soil and groundwater).
Additionally, lateral transport PCL is the concentration of a COC which can
remain within the source medium and protect human and ecological receptors
at a POE which is located at some lateral distance from the source area.
Also, a critical PCL is the lowest PCL for a COC within a source medium 
considering
all of the applicable exposure pathways for that source medium. And finally,
critical Tier 1 PCL is the critical PCL where the human health PCLs are 
established
under Tier 1, with the exception of soil PCLs established to protect groundwater
which may be determined under any tier. The section also contains lists of
acronyms and risk-based nomenclature.

Section 350.3 establishes the applicability of the TRRP rule. The commission's
 goal is to establish one set of assessment and response action standards
to the extent possible. Specifically, the rule will affect programs governed
 by the following chapters in 30 TAC: Chapter 327 relating to Spill Prevention
 and Control; Chapter 330 relating to Municipal Solid Waste; Chapter 331 
relating
 to Underground Injection Control; Chapter 332 relating to Composting; Chapter

333 relating to the Voluntary Cleanup Program; Chapter 334 relating to 
Underground

and Aboveground Storage Tanks; and Chapter 335 relating to Industrial Solid

Waste and Municipal Hazardous Waste including State Superfund Sites. The 
commission

is proposing conforming amendments to Chapters 327, 331, 332, 333, 334, and

Chapter 335 to clarify the applicability of Chapter 350. Conforming amendments

to Chapter 330, Chapter 335, Subchapter K affecting the State Superfund Program,

and sec.335.1, Industrial and Hazardous Waste Definitions, will be proposed

at a later date because on-going rulemakings affecting those rules prohibit

the commission from proposing changes today. The executive director may 
reference

this chapter in permits subject to Chapter 312 of this title (relating to

Sludge Use, Disposal and Transportation) when specifying closure provisions

to address unauthorized releases of COCs from facility components at municipal

wastewater treatment plants. The executive director may require the use of

this chapter to address other unauthorized releases of COCs subject to Texas

Water Code, Chapter 26. The TRRP rule proposed today will not establish the

requirement for a person to take a response action at an affected property.

This rule will be used to review the adequacy of a property assessment and

a response action once the obligation to respond has occurred via the agency

rules for one of the covered program areas, by statute, or by other agency

order or permit. In some cases, minimum standards are established by federal

rule or state statute. The commission emphasizes that the TRRP rule supplements

but does not replace any requirements for closure or response actions specified

in the regulations in programs where these minimum standards exist. Closure

of industrial solid and municipal hazardous waste units will be regulated

under 30 TAC Chapter 335, Subchapters A, E, and F. The TRRP rule being proposed

today will apply to any discharges of COCs from such units into environmental

media, either as a part of closure or at any time before or after closure.

For property regulated under 30 TAC Chapter 334 pertaining to underground

and aboveground storage tanks, the TRRP rule will be applicable to releases

which are discovered and reported to the executive director on or after December

23, 1998.

The section also addresses use of the chapter on or after the effective

date of the rule. A person who has submitted a response action plan under

a previous rule (e.g., previous risk reduction standard 1, 2, or 3, PST plan

A or B), but has not received approval, may continue under the previous rules

or submit a new plan under the TRRP.

A person who has submitted an initial notification of intent to conduct

a response action prior to the effective date of the TRRP rule and has submitted

a final report within three years of the effective date of this rule may request

that a response action be reviewed according to the regulations in effect

at the time of initial notification. If the executive director denies approval

of the submitted response action completion report under those previous 
commission

rules for reasons of technical inadequacy, the executive director may then

require the person to comply with the requirements of the TRRP rule. The person

may resubmit plans or reports that they have revised voluntarily to conform

with the requirements of Chapter 350, unless such resubmittal will result

in noncompliance with a previously approved or imposed schedule of compliance.

A plan for an affected property for which the agency is initially notified

on or after the effective date of this rule must meet all the requirements

of Chapter 350.

Section 350.4 discusses requirements pertaining to off-site properties

and leased lands. The proposed rule will require the person to make 
environmental

sampling data available to the owners and interest holders of the property

where the samples are collected. The owner and interest holders will be made

aware of the availability of the data by a standardized notice form included

in this rule. The proposed rule specifies time frames for providing the notice

and responding to any requests for information. Prior written landowner 
concurrence

is required before any deed notice/restrictive covenant can be recorded in

the county deed records for an affected property. The person must submit a

written request to the landowner requesting permission to file the deed 
notice/restrictive

covenant in the county deed records. A landowner provided a request for deed

recordation under sec.350.4 must respond within 90 days to the person providing

the notice. The commission will consider the lack of a response from a properly

notified landowner to be implied consent for the recording of a deed notice.

The implied consent provision cannot be used if a restrictive covenant is

required for property owned by a landowner.

In developing the proposed requirements for landowner concurrence, the

commission considered takings and long term effectiveness issues. The commission

is concerned that allowing the placement of institutional and/or physical

controls without landowner concurrence may cause innocent landowners to assert

takings claims . Additionally, the executive director is responsible for 
ensuring

that response actions remain effective over the long term. Landowner concurrence

with the placement of physical and institutional controls is effectively an

acknowledgment by that landowner of the conditions necessary for the control.

This acknowledgment better assures the active participation of the landowner

and thereby enhances long term effectiveness of the control. The commission

is aware of concerns that a landowner may deny consent for deed recordation,

thus delaying the implementation of remedies requiring deed recordation. The

commission seeks comment on this issue of denial of consent to deed record

and potential alternatives/processes to address takings and long-term 
effectiveness

of physical and institutional controls.

The commission is seeking comment on the use of deed notices verses restrictive

covenants placed on the property of innocent landowners. Texas Health and

Safety Code, Chapter 361, Subchapter V, provides that an owner/operator of

property that is contaminated as a result of a release or migration from an

off-site affected property source may be considered an innocent owner or 
operator

and, as such, is not liable under the Texas Health and Safety Code or the

Texas Water Code regarding the chemicals of concern from the off-site affected

property source. A qualification for this status is the requirement that the

owner/operator grant reasonable access for purposes of assessment and 
remediation.

In the event a landowner does not allow access to the off-site affected 
property,

the landowner is no longer considered an innocent landowner and may be viewed

as causing, suffering, allowing, or permitting a release. This in turn could

lead to designation as a responsible person. The commission is proposing two

alternative approaches related to properties owned by an innocent owner as

defined in Texas Health and Safety Code, Chapter 361, Subchapter V. The 
commission

seeks comment on both of these approaches. The first approach would establish

deed notices as the only instrument for deed recordation. This would be coupled

with and predicated on rule sec. 350.5 that no person shall, by changing

land use from commercial/industrial to residential or by removing, altering,

or failing to maintain a physical or institutional control, cause, suffer,

allow or permit a threat to human health or the environment. The commission

is seeking comment on its ability to enforce the predicating rule and deed

notice provisions on innocent landowners. The second alternative approach

would be to require a restrictive covenant in favor of the State of Texas

in lieu of a simple deed notice for properties where an innocent owner is

involved.

Beyond the discussion of innocent owners, the commission is seeking comment

on using restrictive covenants as the sole instrument for deed recordation

in all cases where deed recordation is required. Restrictive covenants restrict

how a current and future landowner may use his or her property. A restrictive

covenant would be enforceable by the state and must be implemented by the

landowner, unlike deed notices which could be implemented by others without

the landowner's consent. Deed notices are only notices, not legally enforceable

instruments to restrict use of the land. In general, deed notices are viewed

as being protective while having less of an impact on the value of property

compared with a restrictive covenant. The commission has proposed the use

of deed notices, which would notify buyers and owners of property that special

conditions exist on the piece of property, or the use of restrictive covenants,

which would restrict the use of the property.

Section 350.5 provides that no person shall suffer or allow a threat to

human health or the environment by changing a land use specified in an approved

RACR from commercial/industrial to residential or by removing, altering or

failing to maintain a physical or institutional control that applies to an

affected property that underwent an approved response action. The person shall

use the rule in effect at the time of the substantial change to protect human

health or the environment. However for state-funded projects, the executive

director may allow the use of the rule in effect at the time the case was

closed (i.e., an agency letter issued specifying no further action). Such

possible changed circumstances include the failure of an institutional or

physical control to prevent exposure at the required levels, a change in land

use from commercial/industrial to residential, modification of the response

action, insufficient characterization of property conditions such that an

unacceptable threat to human health or the environment continues to exist,

an actual exposure to COCs above health-based or environmentally protective

levels is occurring, the exposure area changes, a health and safety plan to

ensure compliance with Occupational Safety and Health Administration (OSHA)

permissible exposure limits for commercial/industrial property will no longer

be maintained, and changed conditions result in an affected property no longer

meeting the Tier 1 ecological exclusion criteria. The section clarifies that

a change in numeric cleanup levels or a change in the procedures to calculate

those levels does not constitute a substantial change in circumstances unless

these changes are of such magnitude to present an unacceptable threat to human

health or the environment.

Subchapter B consists of sec.sec.350.31 through 350.35. Section 350.31

establishes the groundwater resource classification system under the TRRP.

The current Risk Reduction Rules have two classes of groundwater: waters that

constitute a current or potential groundwater supply and those that do not.

The commission proposes to add a third class of groundwater called primary

groundwater resources. The section also sets forth the process for determining

the groundwater resource class for the upper-most groundwater-bearing unit

and any other groundwater-bearing unit which contains COCs.

Section 350.32 requires persons to determine the current land use of the

properties where the COCs exceed the Tier 1 PCLs. The commission proposes

two types of land use: residential and commercial/industrial. If land use

changes during the remedial process, the final response action must be 
protective

 of the new use.

Section 350.33 requires that persons conduct appropriate assessments of

the affected property. The goal of the assessment is to define the vertical

and horizontal extent of COCs above the critical Tier 1 PCLs within soil and

groundwater and above the applicable source medium PCLs for other environmental

media. The assessment must also define the maximum concentration and 
distribution

of COCs within environmental media at the affected property. Persons must

investigate to the critical Tier 1 PCLs in soil and groundwater and must show

declining values beyond the critical Tier 1 PCLs to demonstrate that the 
presence

of COCs has been adequately characterized. Depending upon the planned response

objective, additional assessment may be necessary.

Section 350.34 requires persons to determine the representative concentrations

of COCs within all affected environmental media at affected properties. The

commission proposes to allow persons to determine representative concentrations

of COCs using statistical methods for some environmental media and exposure

pathways. Once representative concentrations are determined, the person must

compare these concentrations with the critical soil and groundwater PCLs or

source medium PCLs for other environmental media. Statistical methods may

not be used for certain media or exposure pathways, which will require a person

to directly compare individual measurements of COCs to the critical soil and

groundwater PCLs or source medium PCLs. Additionally, statistical methods

shall not be applied to judgmental or purposeful samples; statistics may only

be applied to randomly collected data.

Section 350.35 sets forth minimum quality assurance/quality control requirements

that a person must follow in order to ensure that the data user is informed

of the quality of the data used in risk management decisions.

Subchapter C contains sec.sec.350.51 through 350.62. Section 350.51

requires persons to develop PCLs for each COC detected in environmental media

for the complete and reasonably anticipated ecological and human health exposure

pathways for groundwater, soil, air, surface water, and sediment. PCLs must

always be developed for certain soil and groundwater exposure pathways (e.g.,

the combined surface soil exposure pathway consisting of ingestion of soil,

dermal contact with soil, inhalation of volatiles and particulates from soil,

and for residential land use, the consumption of vegetables grown in surface

soil) which are assumed to have the potential to be complete at all affected

properties. Persons are not required to combine exposure pathways across source

media (e.g., soil and groundwater) unless otherwise directed by the executive

director. When establishing PCLs for on-site commercial/industrial land use,

a person must demonstrate that both on-site commercial/industrial workers

and off-site residents will be protected. Section 350.51 also describes the

conditions when a COC may be screened from further consideration so that those

PCLs do not need to be developed.

Section 350.52 sets forth the risk levels for carcinogens and the hazard

quotient/hazard indices for non-carcinogens. The commission proposes a 
carcinogenic

risk level of 1 x 10<sup>-5</sup> (1 in 100,000) for individual

 carcinogens and a cumulative risk level of 1 x 10<sup>-4

</sup> (1 in 10,000) for multiple carcinogens. For non-carcinogens, the 
commission

proposes a hazard quotient of 1.0 for individual non-carcinogens and a hazard

index of 10 for multiple non-carcinogens. It is important to note that if

multiple carcinogens or non-carcinogens are present, the individual risk level

for each carcinogen or non-carcinogen can never exceed 1 x 10<sup>

-5</sup> or 1.0, respectively; therefore, individual risk levels cannot be

upwardly adjusted to meet the cumulative risk levels. Taking carcinogens as

an example, only when 10 or more carcinogens are present at their 1 x 10<
sup>-5</sup> PCL concentrations will the 1 x 10<sup>

-4</sup> cumulative risk level be reached. If there are more than 10 
carcinogens,

then the PCL for at least one individual carcinogen will have to be downwardly

 adjusted so that the cumulative risk of 1 x 10<sup>-4</sup>

is not exceeded. There are exceptions to using the risk levels. Examples include

use of predetermined standards such as maximum contaminant levels (MCLs),

OSHA Permissible Exposure Limits (PELs), and Texas Surface Water Quality

Standards.

Section 350.53 directs persons to use a hierarchy of sources to determine

the most current chronic toxicity factors including the following two highest

ranked sources: the U.S. Environmental Protection Agency's (EPA) Integrated

Risk Information System (IRIS) and the U.S. EPA Health Effects Assessment

Summary Tables. For COCs which do not have chronic toxicity factors provided

in the listed sources, persons shall request the executive director to provide

 toxicity factors. In circumstances where neither a U.S. EPA unit risk factor

nor a U.S. EPA reference concentration (RfC) is available, the person shall

use the Texas Natural Resource Conservation Commission (TNRCC) Chronic 
Remediation-Specific

Effects Screening Level value as the RfC in evaluating the inhalation pathway

for both residential and commercial/industrial land use. The section also

specifies the chemical/physical parameter values for COCs that persons must

use to determine PCLs unless the executive director identifies a more 
scientifically

supportable alternative parameter value in guidance.

Section 350.54 contains the procedures for the development of RBELs. The

section identifies the specific RBEL pathways to evaluate along with the 
equations

to calculate the RBELs. The TRRP requires the following human health RBELs

to be calculated for residential and commercial/industrial land uses: air

inhalation, soil dermal contact, soil ingestion, vegetable ingestion 
(residential

only), groundwater ingestion, class 3 groundwater and surface water. Figures

1 and 2 of proposed sec.350.54 provide the equations to determine the RBELs

for residential and commercial/industrial land use, respectively. The legend

to each table identifies the symbol used for each term in the equations, 
provides

a written description of each exposure factor, lists an exposure factor value

or makes reference to Figure 3 to determine COC physical/chemical parameter

values, specifies whether changes to the default exposure factors are allowed,

and provides a rule citation for any allowed changes to the default exposure

factors. For the air inhalation RBEL, the person may use the OSHA PELs as

the RBEL for the inhalation pathway at affected commercial/industrial properties

with a health and safety plan in place. The health and safety plan shall be

designed to ensure compliance with OSHA PELs and require the monitoring of

COC levels in the working air environment, and specify actions that will be

taken in the event of exceedence of the OSHA PELs. For the groundwater ingestion

RBEL, the person shall use the primary MCLs as provided in 40 CFR Part 141

or the most currently available federal action level for drinking water (e.g.,

lead and copper) as the RBEL when available for the COC. When available, the

COC-specific secondary MCLs as provided in 40 CFR 143 shall be used as the

RBEL when the COCs are present in class 1 groundwater and for class 2 
groundwater

under certain circumstances specified in the proposed rule. The class 3 
groundwater

RBEL is set at a factor of 100 times the RBEL established for class 1 and

2 groundwaters. The surface water RBEL is based upon a consideration of the

acute and chronic criteria and the human health criteria to protect drinking

water and fisheries, all as specified in the Texas Surface Water Quality 
Standards

presented at 30 TAC Chapter 307. If a RBEL cannot be calculated by the methods

outlined in the TRRP rule or the RBEL concentration adversely impacts 
environmental

quality, public welfare and safety, or presents objectionable characteristics

such as odor or taste, then there are additional criteria for the development

of RBELs. Specifically, the agency proposes to determine the potential for

objectionable odors through the use of agency short term, odor-based effects

screening levels. Also, the agency is proposing that the maximum total soil

concentration of COCs which are liquid at standard temperature and pressure

shall not exceed 10,000 milligram per kilogram (ms/kg) within the soil interval

of 0-10 feet, unless it can be demonstrated that there are no free liquids

or sludges and that higher concentrations do not adversely impair surface

use of the affected property. Also, the executive director may require other

scientifically valid published criteria such as non-COC specific secondary

MCLs for water to be used as RBELs.

The commission is proposing to allow variances on certain default RBEL
 exposure factors through a process by which a person will request and receive
 prior approval before varying the factors. The proposed rule lists which
default RBEL exposure factors can be modified and describes the information
a person will be required to submit to support such a modification. In the
case of three default exposure factors for commercial/industrial land use,
the commission is proposing a more rigorous process since changes to these
factors will be strictly a risk management policy determination rather than
a technical decision. Persons wishing to vary the averaging time for 
noncarcinogens,
exposure duration, or the exposure frequency for commercial/industrial land
use must submit a request for variance to the executive director, and the
executive director cannot delegate this decision to agency staff. Public
notice is required, and at the executive director's discretion, a public
meeting may also be required. Public comment will be accepted on the proposed
variance(s). If a variance is granted for one or more of these three exposure
factors, the person must indicate the variance(s) granted by filing a deed
notice/restrictive covenant within the real property records for county in
which the affected property is located. Persons disagreeing with the executive
director's decision may file a Motion for Reconsideration of the executive
director's decision. If the commission rules on the motion, the ruling is
final. The executive director may delegate decision-making authority to the
agency staff on the other default exposure factors that can be varied, and
changes in those factors do not require public notice or deed recordation.
The section concludes by listing those default exposure factors which shall
not be modified when determining RBELs under the proposed TRRP rule.

The next step in the TRRP process is the establishment of human health-based
 PCLs through a tiered process. Section 350.55 presents the three tiers 
available
 to persons using the TRRP. The decision regarding which tier to use to 
determine
 PCLs is left to the discretion of the person except for state-funded response
 actions where the executive director may specify which tier will be used.
 Tier 1 PCLs incorporate conservative assumptions that do not consider alternate
 points of exposure or property-specific affected property parameters. Tier
 1 PCLs are based upon source medium exposure pathways where the POE is either
 within, directly above, or directly below the source area within the source
 medium. No lateral transport equations may be used for a Tier 1 evaluation
 other than to ensure that residential receptors at off-site points of exposure
 are protected when on-site commercial/industrial land use is assumed. Where
 standards such as MCLs or Texas Surface Water Quality Standards exist, those
 standards will be the Tier 1 PCLs. If the concentration of a COC in any media
 exceeds the Tier 1 PCL for that media, persons must either conduct a response
 action that meets the Tier 1 PCL or proceed to a Tier 2 assessment that 
incorporates
 more property-specific affected property parameters and lateral transport
 equations. Although the Tier 1 PCLs can be used as cleanup standards, the
 commission expects them to be used primarily as screening tools during affected
 property assessments. Also, the person shall establish PCLs using parameters
 which are specific to the affected property when use of the Tier 1 default
 affected property parameters will not be protective for human health or when
 requested by the executive director. If the concentration of a COC exceeds
 the calculated Tier 2 PCL, then persons must conduct a response action to
 the Tier 2 PCL or proceed to Tier 3. In a Tier 3 evaluation, the person can

use field measured natural attenuation factors (NAFs) and/or appropriate

NAF equations/models other than the Tier 1 and 2 cross media and lateral 
transport

NAF portions of the soil and groundwater PCL equations provided in the proposed

rule. The proposed rule provides minimum performance criteria for any models

other than those specified in Chapter 350. Further, use of an alternative

model must be documented such that the derivation of the model can be understood

and the results of the model can be reproduced. The executive director may

require the person to obtain prior approval for the use of alternative NAF

equations/models in a Tier 3 evaluation. When the person uses biodecay factors

in any cross-media or lateral transport NAF equation in either Tier 2 or 3,

the person shall subsequently sample soils and/or monitor groundwater to the

satisfaction of the executive director to verify the conclusions of the NAF

equation. For Tiers 1, 2, and 3, the person and the executive director shall

base response action decisions on the monitoring data when fate and transport

modeling outputs are inconsistent with monitoring data for environmental media

at an affected property. The commission emphasizes that conducting a lower

tier evaluation before conducting a Tier 2 or Tier 3 evaluation is not 
necessary.

In other words, to save time and possibly money, a person can choose to develop

PCLs under Tier 3 without conducting a Tier 1 or Tier 2 evaluation.

The Tier 1 and 2 PCL equations and input parameters are integral to the

 technical adequacy, consistency, and streamlining of the rule. Therefore,

those equations and input parameters have been included in the rule. However,

by listing the equations in rule, any desired improvements to the equations

and parameters could not be made except through a formal rulemaking process.

This will mean a delay in the use of the amended equations and parameters

because the rulemaking process by its very nature contains certain procedural

and timing aspects which preclude making immediate changes. An alternative

is to include the equations and input parameters in a guidance document rather

than the rule. Doing so would provide flexibility to make immediate changes;

however, the commission is concerned that presenting figures in a guidance

document might undermine the consistency and certainty the commission is 
attempting

to achieve. In addition, the commission is also concerned that if the figures

are in a guidance document rather than the rule, interested and affected 
stakeholders

will not have the opportunity to review and comment on the proposed changes.

The commission requests comment on this issue of rules versus guidance for

the figures. In addition, the commission seeks comment on other alternatives

which may balance the need for consistency and certainty with the need for

flexibility.

Section 350.56 requires the person to conduct an ecological risk assessment

(ERA). The purpose of the ERA is to characterize the ecological setting of

the affected property, identify complete and reasonably anticipated exposure

pathways and representative ecological receptors, scientifically eliminate

COCs that pose an acceptable risk, and develop PCLs for ecological receptors

where warranted. A three-tiered process is proposed for conducting the ERA,

but the person may begin the evaluation of the affected property at any tier

desired. Tier 1 is the completion of an exclusion criteria checklist contained

in the rule. Completion of the Tier 1 checklist should identify any complete

or reasonably anticipated ecological exposure pathways. If the affected property

meets the exclusion criteria, then the person has completed the ERA requirement

and is not required to conduct a Tier 2 or Tier 3 ERA unless changing 
circumstances

result in the affected property not meeting the exclusion criteria. If the

exclusion criteria cannot be met, then the person shall perform a Tier 2 
screening-level

ERA or may proceed directly to a Tier 3 quantitative ERA. The commission will

develop a guidance document to assist the person with conducting both a Tier

2 and Tier 3 assessment; however, other guidance may be used if it meets the

performance criteria set forth in the proposed rule. The Tier 2 assessment

will identify COCs that pose an unacceptable ecological risk and will 
scientifically

eliminate those that do not. Following a Tier 2 assessment, if any COCs remain

that pose an unacceptable ecological risk for any remaining complete or 
reasonably

anticipated exposure pathways, then the person shall conduct a Tier 3 ERA

which is a full quantitative analysis. Consistent with the development of

human health protective concentrations, ecological RBELs shall be derived.

After the ecological RBELs have been established, the person shall determine

PCLs. In the situation where the ecological POE is within the source medium

and within the source area such that no cross-media or lateral transport is

necessary for exposure to occur, then the PCL is equal to the ecological RBEL.

In situations where cross-media and/or lateral transport of a COC from a source

medium to a POE within an exposure medium must occur for the ecological receptor

to be exposed, then the person may use the cross-media NAF equations or lateral

transport NAF equations provided in Figures 1-5 of proposed sec.350.57 for

any applicable groundwater exposure pathways or Figures 2-7 of proposed 
sec.350.59

for any applicable soil exposure pathways to establish PCLs. In lieu of using

the human health RBEL referenced in the figures, the person shall use the

ecological RBEL.

The agency has actively solicited input from State and Federal natural

resource trustee representatives (Texas Natural Resource Conservation 
Commission,

Texas Parks and Wildlife Department, Texas General Land Office, National Oceanic

and Atmospheric Administration, Department of the Interior) in the development

of exclusion criteria for Ecological Risk Assessments. The trustees acknowledge

that the potential for continuing injury to ecological resources should be

negligible at sites which have undergone corrective actions where remedial

decisions were based on an appropriate application of the proposed Ecological

Risk Assessment process. It should be noted that natural resource damages

liability beyond that associated with injury to biological resources is not

addressed within the Ecological Risk Assessment framework.

In order to facilitate the cooperative natural resource damage assessment

process currently practiced in Texas, natural resource trustees will be provided

notification from TNRCC of those corrective action sites which progress to

the Tier 3 (full ecological risk assessment) level. The trustees will exercise

their discretion on a case-by-case basis and may not become involved at all

sites which have advanced to the Tier 3 level or the equivalent. Trustees

may participate in the Ecological Risk Assessment process to ensure that natural

resources under their jurisdiction are adequately protected and to obtain

information which may be utilized in the natural resource damage assessment

process. Persons may benefit from timely trustee involvement in the Ecological

Risk Assessment process through decreased costs associated with the coordination

of risk assessment and injury determination; reduction of residual natural

resources injury, and timely resolution of natural resource damages liability.



Section 350.57 establishes the methods for developing the human health

PCLs for each groundwater exposure pathway. The groundwater exposure pathways

are ingestion of groundwater, class 3 groundwater, inhalation of volatile

COCs in outdoor air from class 1, 2, or 3 groundwater, groundwater discharge

to surface water, any other complete or reasonably anticipated exposure pathway,

or any other groundwater pathway identified by the executive director. PCLs

for groundwater ingestion must always be developed in order to determine the

extent of the affected property. For class 1 or 2 groundwater, groundwater

ingestion must be assumed. The person shall develop PCLs for class 3 groundwater

when class 3 groundwater occurs at an affected property. For the contingent

exposure pathways, a person shall develop PCLs based on the inhalation of

volatile COCs in outdoor air from class 1, 2, or 3 groundwater and for 
groundwater

discharge to surface water unless the affected property satisfies the exclusion

criteria specified for each exposure pathway in the proposed rule. For the

groundwater discharge to surface water exposure pathway, the dilution of a

COC in surface water may only be taken into account when the concentration

of the COC in groundwater at the zone of discharge to surface water already

exceeds the surface water RBEL when the affected property assessment required

by sec.350.33 is conducted. The person shall also establish PCLs for any

other groundwater exposure pathway which is complete or reasonably anticipated

to be complete (e.g., inhalation of volatile emissions in indoor air from

groundwater). The Tier 1 and Tier 2 source medium and lateral transport PCL

equations for groundwater exposure pathways are provided in Figures 1-5 of

proposed sec.350.57. The legend for each figure identifies the symbol for

each term used in the equations, provides a definition for the COC 
chemical/physical

and affected property parameters, identifies the values for any Tier 1 defaults

or provides a rule citation to determine a Tier 1 default, states whether

a change to each of the Tier 1 defaults is allowed, and provides a rule citation

which describes how any modified values to replace a Tier 1 default value

will be determined.

Methods for determining the critical groundwater PCLs and critical groundwater

lateral transport PCLs are set forth in sec.350.58. The critical groundwater

PCL for a COC is the lowest of the groundwater source medium PCLs and the

applicable groundwater lateral transport PCLs identified in sec.350.58(b).

Persons are required to establish the critical groundwater PCL for each COC

and then establish the areal and vertical extent of the Protective Concentration

Level Exceedence (PCLE) zone in the groundwater at an affected property. The

groundwater PCLE zone is that portion of a groundwater-bearing unit which

contains COCs in excess of the critical groundwater PCL. If on-site 
commercial/industrial

land use is assumed, or alternate POEs are assumed for class 2 or 3 groundwater,

critical groundwater lateral transport PCLs must also be established. The

critical groundwater lateral transport PCL for a COC is the lowest concentration

determined from the groundwater lateral transport equations listed in 
sec.350.58(c)

which can remain within the groundwater source area and not result in the

critical groundwater PCL being exceeded at the off-site or alternate POE to

groundwater. For class 2 groundwater resources, the critical groundwater lateral

transport PCL cannot exceed the concentration of the COC measured at the lateral

transport point of compliance (POC) at the time of response action plan (RAP)

submittal. If the critical groundwater PCL or critical groundwater lateral

transport PCL for a COC is greater than the solubility limit for that COC

in water as provided in Figure 1 of sec.350.53, then the solubility limit

is the critical groundwater PCL or critical groundwater lateral transport

PCL for that COC. If the critical groundwater PCL for a COC is less than the

required quantitation limit/required detection limit or natural background

groundwater concentration for that COC, then the greater of the method 
quantitation

limit or background concentration is the critical groundwater PCL for that

 COC.

Development of PCLs for soil exposure pathways is set forth in sec.350.59.

The soil exposure pathways include: the combined exposure pathway for ingestion

of surface soil; dermal contact with surface soil; inhalation of volatile

emissions and particulates from surface soil; and for residential land use

only, ingestion of above-ground and below-ground vegetables grown in the surface

soil; groundwater protection from surface and subsurface soil leachate; 
inhalation

from volatile emission in outdoor air from subsurface soils; other complete

or reasonably anticipated surface and subsurface soil exposure pathways; and

any other soil exposure pathways identified by the executive director. The

depth for surface soil is defined as 15 feet for residential land use and

5 feet for commercial/industrial land use. PCLs must always be developed for

the combined surface soil exposure pathway. When the on-site land use is 
commercial/industrial,

the person shall also demonstrate that the PCL for the combined surface soil

exposure pathway is protective for off-site residents via the air inhalation

exposure pathway. The proposed rule contains detailed instructions for making

this demonstration. Under Tiers 2 and 3, this may involve the establishment

of a property-specific theoretical soil saturation limit (Csat) using the

equation presented in Figure 4 of proposed sec.350.59. The person shall

also develop PCLs for groundwater protection from surface and subsurface soil

leachate at all affected properties. The person shall establish the soil-to-
groundwater

protective PCL such that the soil leachate does not result in an exceedence

of the critical groundwater PCL established in response to sec.350.58 when

the use of a groundwater plume management zone has not been authorized by

the executive director in response to sec.350.94(m)(4). Alternatively, the

person shall establish the soil-to-groundwater protective PCL such that soil

leachate does not result in exceedence of the groundwater critical lateral

transport PCL established in response to sec.350.58 when the use of a 
groundwater

plume management zone has been authorized by the executive director in response

to sec.350.94(m)(4). A person must also develop PCLs based on the inhalation

of volatile emissions in outdoor air from subsurface soils unless the affected

property satisfies the exclusion criteria specified in the proposed rule.

The person must also establish PCLs for any other soil exposure pathway which

is complete or reasonably anticipated to be complete (e.g., inhalation of

volatile emissions in indoor air from subsurface soils). The Tier 1 and Tier

2 source medium and lateral transport PCL equations for soil exposure pathways

are provided in Figures 1-7 of proposed sec.350.59. The legend to these

tables presents the same information as previously discussed for the groundwater

PCL tables.

Section 350.60 requires the person to determine the critical surface and

subsurface soil PCLs. The critical surface soil PCL is the lowest of the surface

soil source medium PCLs and the applicable surface soil lateral transport

PCLs identified in sec.350.60(b). Persons are required to establish the

critical surface soil PCL for each COC and then establish the areal and vertical

extent of the surface soil PCLE zone at an affected property. The surface

soil PCLE zone is that portion of the surface soil at an affected property

which contains COCs in excess of the critical surface soil PCLs. The critical

subsurface soil PCL is the lowest of the subsurface source medium PCLs and

the applicable subsurface soil lateral transport PCLs identified in 
sec.350.60(c).

Persons are required to establish the critical subsurface soil PCL for each

COC and then establish the areal and vertical extent of the subsurface soil

PCLE zone at an affected property. The subsurface soil PCLE zone is that portion

of the subsurface soil at an affected property which contains COCs in excess

of the critical subsurface soil PCLs. If the critical surface or subsurface

soil PCL for a COC is less than the method quantitation limit or the natural

or anthropogenic background surface or subsurface soil concentration for that

COC, the critical surface or subsurface soil PCL, as applicable, for that

COC is the greater of the required quantitation limit/required detection limit

or background concentration.

Section 350.61 describes the requirements for developing PCLs for air,

surface water, and sediments. For air inhalation exposure pathways, the person

may be required by the executive director to establish the source medium PCL

for air solely for the purpose of determining the protective concentration

that must be met in air at the POE. The person shall use the PCL equation

provided in Figure 1 of sec.350.61 to establish this PCL. The person may

also be required by the executive director to establish the source medium

PCL for surface water when COCs are present in surface water or when COCs

will enter into surface water due to an unauthorized release, and a surface

water response action is necessary to protect human or ecological receptors.

The person shall use the PCL equation provided in Figure 2 of sec.350.61

to establish the surface water source medium PCL. The person shall establish

PCLs for air and surface water exposure pathways other than the source medium

PCLs when those other exposure pathways are complete or reasonably anticipated,

or when required by the executive director. The person shall establish PCLs

for sediment exposure pathways when those exposure pathways are complete or

reasonably anticipated, or when required by the executive director.

Due to the unique nature and toxicity and/or exposure of certain COCs,

the commission is proposing COC-specific approaches in sec.350.62. A person

shall use the methods prescribed in previous sections of the rule to determine

RBELs and PCLs unless otherwise directed by this section. Specifically, 
chemicals

with a COC-specific approach include the following: cadmium, lead, 
polychlorinated

biphenyls (PCBs), polychlorinated dibenzodioxins (PCDDs) and dibenzonfurans

 (PCDFs), polycyclic aromatic hydrocarbons (PAHs), and total petroleum 
hydrocarbons

(TPH). The methodology used to establish PCLs for TPH is a modified version

of the completed work of the national Total Petroleum Hydrocarbon Criteria

Work Group (TPHCWG). Specifically, the hydrocarbon fractions and toxicity

factors have been modified from the TPHCWG recommendations. The executive

director anticipates accepting the analytical fractionation method which is

under final development by the TPHCWG. The executive director may require

some modifications to the TPHCWG analytical fractionation method upon final

evaluation of the method for acceptance under this Subchapter. Other appropriate

analytical fractionation methods may be proposed to the executive director

for use on a site-specific basis.

Subchapter D contains sec.sec.350.91-350.96. Section 350.91 sets forth

the prescribed on-site and off-site human health POEs to environmental media

under Remedy Standards A and B. The prescribed POEs are the locations where

human receptors are reasonably likely to come into contact with COCs in 
environmental

media. The establishment of prescribed POEs is integral to the adoption of

a consistent, performance-oriented, risk-based corrective action rule. The

section sets the prescribed on-site and off-site human POEs for the following

environmental media: air, soil, uncontaminated groundwater of all classes,

class 1 groundwater, class 2 groundwater, class 3 groundwater, surface water

runoff or groundwater discharges to surface water, unauthorized releases of

COCs directly to surface water, and sediments. Within each medium, the rule

prescribes on-site and off-site POEs for residential and commercial/industrial

land use. Anytime commercial/industrial land use is assumed, additional POEs

must be established to ensure residents are protected. Existing or proposed

physical controls, such as a cap, building, fence, or parking lot cannot be

used to screen out soil or groundwater exposure pathways. Likewise, existing

or proposed institutional controls, such as use of personal protective 
equipment,

deed restrictions, or municipal zoning ordinances for land use or groundwater

use cannot be used to screen out human health soil or groundwater exposure

pathways. Physical and institutional control measures can be used under Remedy

Standard B as a response action once the PCLs have been established and the

extent of the soil and groundwater PCLE zones have been defined. Whenever

there is an existing class 1, 2, or 3 groundwater PCLE zone beneath an existing

engineered waste control unit or an engineered waste control unit planned

as part of an approved RAP, under Remedy Standard B the person may, with the

executive director's approval, exclude the area underlying the engineered

waste control unit as a POE to groundwater. To establish on-site or off-site

POEs for commercial/industrial land use, or alternate POEs for on-site or

off-site properties, the person must comply with sec.350.4 and obtain the

landowner's written approval for the placement of a deed notice/restrictive

covenant in the county deed records for the affected property. If the landowner

does not provide written approval for the deed notice/restrictive covenant,

the person must conduct a Remedy Standard A - residential response action.

The POEs for ecological receptors shall be established on a property-specific

basis in accordance with sec.350.56. In addition, the commission proposes

to allow alternate POEs to class 2 and class 3 groundwater which currently

contains a groundwater PCLE zone and for which a plume management zone approach

is approved by the executive director in response to sec.350.94(m)(4) under

Remedy Standard B. In this instance, the POE can be moved from throughout

the class 2 or 3 groundwater PCLE zone to the downgradient boundary of the

plume management zone. Plume management zones allow persons flexibility to

leave COCs at concentrations which exceed critical PCLs within a specified

area in the groundwater when certain criteria can be met, but the person is

required to prevent exposure to COCs within the plume management zone through

use of effective institutional controls. Long term monitoring and reporting

may be necessary. Plume management zones cannot be established for class 1

groundwater, or in class 2 or 3 groundwaters which do not presently contain

PCLE zones.

The proposed rule contains detailed requirements for the location of a

plume management zone but in general the maximum on-site length of the plume

management zone in class 2 groundwater shall be established as the smallest

of the following distances: up to 500 feet beyond the current length of the

applicable (i.e., residential or commercial/industrial) groundwater PCLE zone;

a total length of up to 1.25 times the current length of the applicable (i.e.,

residential or commercial/industrial) groundwater PCLE zone (i.e., up to 25%

additional plume length); or to within 2 years groundwater travel time 
upgradient

of the nearest boundary of the closest hydraulically downgradient off-site

property. Similar distance requirements are used to establish an alternate

POE for class 2 groundwater at the off-site boundary of a plume management

zone for off-site properties which currently contain the groundwater PCLE

zone for residents. Unless the person can demonstrate to the satisfaction

of the executive director that the existing quality of class 2 groundwater,

considering non-point sources of COCs and their cumulative impact on the 
groundwater

quality, or the proximity and the withdrawal rates of groundwater users 
indicates

that the groundwater-bearing unit has no reasonably anticipated beneficial

use, the person shall not allow a plume management zone to extend onto off-site

property with class 2 groundwater which does not currently contain the 
groundwater

PCLE zone for residents. For class 3 groundwater, a person may establish a

plume management zone to within 2 years groundwater travel time upgradient

of the nearest boundary of the closest hydraulically downgradient property

for which the person has not received the landowner's written permission to

record an institutional control which prevents exposure to the groundwater.

The commission has prepared an issues paper which details the prescribed on-site

and off-site, and alternate POEs for the various environmental media. The

issues paper may be obtained from the Office of Policy and Regulatory 
Development

at 512/239-4900 or at http://www.tnrcc.state.tx.us/waste.

Section 350.92 specifies the general requirements which apply to both remedy

standards. The section requires that a person must use Remedy Standard A or

Remedy Standard B to guide their response actions at affected properties under

the proposed rule. The section also specifies the performance standard to

be used to distinguish between a treatment process which achieves 
decontamination

and a treatment process which is a physical control measure. Finally, the

section requires persons to notify the executive director and the agency's

regional office at least 10 days before confirmation sampling to demonstrate

that a response action is complete and a remedy standard has been attained.



Sections 350.93 and 350.94 set forth the specific requirements to achieve

Remedy Standard A and Remedy Standard B, respectively.

To attain Remedy Standard A in response to sec.350.93, a person must:

remove any listed hazardous waste as defined in 40 CFR Part 261, Subpart D

that is separable using simple mechanical removal processes; remove and/or

decontaminate any waste or environmental media which is characteristically

hazardous due to ignitability, corrosivity, reactivity, or toxicity 
characteristic

as defined in 40 CFR Part 261, Subpart C; remove and/or decontaminate the

soil and groundwater PCLE zones, other environmental media, and non-hazardous

waste to the critical residential or commercial/industrial PCLs or source

medium PCLs, as applicable; and demonstrate that remaining concentrations

of volatile COCs in the soil or groundwater will not result in vapor 
concentrations

in excess of 25% of the lower explosive limit for the COC or COC mixture within

outdoor air, surface or below-ground structures, or within the soil zone 
extending

from ground surface to 15 feet in depth, or to the typical depth of the 
construction

zone as defined in accordance with sec.350.2. Response actions under Remedy

Standard A must result in permanent risk reduction at an affected property.

The person shall not use physical controls under Remedy Standard A. The person

shall remediate the affected property such that the concentration of COCs

in soil and groundwater do not exceed the applicable critical PCLs and the

concentration of COCs in surface water, sediment and air do not exceed the

applicable source medium PCLs. The person shall determine the PCLs for Remedy

Standard A using source medium exposure pathways where the human or ecological

receptor comes into contact with the COCs directly within, above, or below

a source medium. Lateral transport exposure pathways using lateral transport

equations which place the POE at a location outside of the source area cannot

be used to determine PCLs for Standard A response actions other than to ensure

that an off-site resident is protected when the receptor is assumed to be

a commercial/industrial worker for purposes of establishing a source medium

PCL and when development of the groundwater-to-surface water lateral transport

PCL is required in accordance with sec.350.57(d).

The commission is proposing that this standard be a self-implementing standard

to expedite response actions unless the person wishes to modify default exposure

factors. A person must submit a Self-Implementation Notice (SIN) at least

10 days prior to conducting a response action in order to notify the executive

director and the agency's office in the region where the affected property

is located of the planned action. Unless a response action completion report

(RACR) has been approved or is pending review by the executive director, the

person shall submit a response action effectiveness report (RAER) to the

executive director within 3 years of submitting the SIN. The RAER shall be

accompanied by an affected property assessment report (APAR), and a sampling

and statistical analysis plan (SSAP) if statistical methods are used. The

RAER must document that sufficient progress is being made to achieve Remedy

Standard A within a reasonable time frame given the particular circumstances

of an affected property. The person shall also submit a RAER each subsequent

3 years, unless the executive director requires a more frequent reporting

period. If insufficient progress is being made, based on an evaluation by

the person or the executive director, the executive director may require the

person to evaluate an alternative response action or to perform a response

action under Remedy Standard B to address the soil and/or groundwater PCLE

zone(s) in a more effective manner.

Within 90 days of completing a Remedy Standard A response action, the person

shall submit a RACR for review and approval by the executive director. The

RACR shall be accompanied by an APAR, and a SSAP if statistical methods are

used, unless an APAR and SSAP have been previously submitted. The person may

choose to sequentially submit a SSAP and then an APAR for the executive 
director's

review and approval prior to performing the response action. The person 
attaining

Remedy Standard A for commercial/industrial land use shall provide proof of

the filing of a deed notice within the real property records of the county

of the affected property within 90 days of the approval of the RACR by the

executive director. However, a person who completes a response action using

commercial/industrial land use on property with an innocent owner shall provide

proof of the filing of a restrictive covenant, rather than a deed notice,

within the real property records of the county of the affected property within

90 days of the approval of the RACR by the executive director. Neither a deed

notice nor a restrictive covenant is required for a property restored for

residential land use under Remedy Standard A. The person shall secure the

written permission of the landowner in accordance with sec.350.4 prior to

filing, or causing to be filed, any such notice or restrictive covenant within

the real property records for leased lands or off-site properties.

In order to inform others of on-going long-term response actions, the person

shall provide proof of the filing of a deed notice within the real property

records of the affected property within 90 days of the following determinations:

the response action is predicted in the SIN to take in excess of 10 years

from the date of submittal of the SIN to achieve the Standard A remedy 
requirements;

the response action is predicted in a RAER to take in excess of 10 years from

the date of submittal of the SIN, or an alternate time period, as approved

by the executive director, not to exceed 13 years from the date of submittal

of the SIN to achieve the Standard A remedy requirements; or the Standard

A remedy requirements have not been achieved within 10 years of submittal

of the SIN or an alternate time period, as approved by the executive director,

not to exceed 13 years from the date of submittal of the SIN. Also, until

such time as a deed notice or restrictive covenant is filed within the property

records of the county for an affected property, the on-site and/or off-site

owner(s) of affected property shall, prior to transfer of the property or

signing of lease agreements, inform any prospective purchaser or tenant of

the property of the existing or planned response actions and of any current

or future potential limitations on the use of the property.

Response actions under Remedy Standard A are divided into residential (A-Res)

and commercial/industrial (A-Com/Ind) land use categories. Upon completion

of a response action to attain A-Res, the affected property must be protective

for unrestricted residential use and also for ecological receptors. Upon 
completion

of a response action to attain A-Com/Ind, the affected property must be 
protective

for unrestricted commercial/industrial use and also for ecological receptors.

A person cannot use a demonstration of technical impracticability when 
responding

to soil and/or groundwater PCLE zones under Remedy Standard A. Technical 
impracticability

must be addressed under Remedy Standard B. While restoring groundwater to

the critical groundwater PCLs, the person must prevent COCs at concentrations

above the critical groundwater PCLs from migrating beyond the existing boundary

of the groundwater PCLE zone. Monitored natural attenuation can be used as

all or part of a groundwater response action under Remedy Standard A provided

the no growth requirement is followed and the Remedy Standard A performance

requirements will be achieved within a reasonable time frame given the 
particular

circumstances of an affected property. There are no post-response action care

or financial assurance requirements for Remedy Standard A response actions,

provided the person adequately documents attainment of the Standard A remedy

requirements. When considered warranted, the executive director may require

the person to monitor environmental media to verify the models used under

a Tier 2 or 3 evaluation of PCLs.

To attain Remedy Standard B in response to sec.350.94, a person must

remove, decontaminate, and/or control the surface soil, subsurface soil, and

groundwater PCLE zones, other environmental media, and hazardous and non-
hazardous

waste such that human and ecological receptors will not be exposed to 
concentrations

of COCs in the exposure media in excess of the residential or 
commercial/industrial

critical PCLs or source medium PCLs, as applicable, at the prescribed, or

any approved alternate, on-site or off-site POEs established for environmental

media. The person must also achieve the same performance standard regarding

25% of the lower explosive limit described previously under the discussion

for Remedy Standard A with the exception that the criterion does not apply

to soils and groundwater within the boundaries of a physical control measure.

The person performing a response action to attain Remedy Standard B may use

removal and/or decontamination with controls or controls only, with the 
exception

of response actions for class 1 groundwater PCLE zones which must be removed

and/or decontaminated to the critical groundwater PCL for each COC. The person

may use both physical and institutional controls. The person shall demonstrate

to the satisfaction of the executive director that the response action which

they propose to use will attain the Standard B remedy requirements within

a reasonable time frame given the particular circumstances of an affected

property. The person shall also perform any more stringent or additional 
response

actions which are required by the statute or regulations governing the program

areas covered by Chapter 350.

PCLs for Remedy Standard B are determined through consideration of both

source medium and lateral transport exposure pathways. Lateral transport 
equations

may be used to back-calculate lateral transport PCLs which are applied within

soil and groundwater source areas and will result in attainment of the critical

groundwater PCLs and source medium PCLs for other exposure media at the 
prescribed,

or any approved alternate, on-site and off-site POEs established for 
environmental

 media.

Due to the complex nature of the response actions used to attain Remedy

 Standard B, this remedy standard will not be a self-implementing standard.

Persons must submit a RAP, a SSAP (if statistical methods will be utilized)

and the APAR and receive the executive director's approval before commencing

response actions. These three reports can be submitted simultaneously, or

submitted sequentially in the following order: SSAP (when statistical methods

are to be used), APAR, then RAP. Requirements for reports during and after

the completion of the response action and for deed recordation/restrictive

covenants are the same for Remedy Standard B as previously discussed for Remedy

Standard A except that any response action, whether for residential or 
commercial/industrial

land use, completed under Remedy Standard B requires a deed 
notification/restrictive

covenant. Remedy Standard B is subdivided into residential (B-Res) and 
commercial/industrial

 (B-Com/Ind) land use categories.

Upon completion of a B-Res response action, the property must be protective

for restricted residential land use and for ecological receptors. The property

will be protective for restricted rather than unrestricted use because some

type of physical and/or institutional control will be relied upon to prevent

human and ecological exposure to environmental media with COC levels greater

than the residential critical surface soil, subsurface soil, and groundwater

PCLs and the residential source medium PCLs for other environmental media.



Upon completion of a B-Com/Ind response action, the property must be protective

for restricted commercial/industrial land use and for ecological receptors.

The property will be protective for restricted rather than unrestricted use

because some type of physical and/or institutional control will be relied

upon to prevent human and ecological exposure to environmental media with

COC levels greater than the commercial/industrial critical surface soil, 
subsurface

soil, and groundwater PCLs and the commercial/industrial source medium PCLs

for other environmental media. The affected property must also be protective

for residents on the nearest downwind, nearest hydraulically downgradient,

and nearest physiographically downgradient off-site property for which the

landowner has not provided written concurrence to allow the recording of an

institutional control in the real property records of the county of the affected 

property.

The proposed rule describes two optional approaches from which a responsible

 person may choose when designing a response action to address a soil PCLE

zone at an affected property in response to Remedy Standard B. Under Optional

Approach 1, the person must use permanent, removal and/or decontamination

response actions to respond to the hazards posed by soil PCLE zone materials.

The person is required under soil Optional Approach 1 to fulfill the post-
response

action care obligations described in the approved RAP. However, provided the

person adequately documents attainment of the soil response objectives for

Optional Approach 1, the person will not be required to establish financial

assurance for post-response action care. Specifically, to pursue Optional

Approach 1, the person must remove and/or decontaminate the soil PCLE zone

materials to the extent necessary to prevent the direct exposure of humans

and ecological receptors to surface soil PCLE zone materials; to reduce the

concentration of COCs throughout the surface and subsurface soil PCLE zones

to the critical surface and subsurface soil PCLs, respectively, based upon

prescribed, or any approved alternate, on-site and off-site POEs to 
environmental

media; to prevent the cross-media transfer and lateral transport of COCs from

the surface and subsurface soil PCLE zones to groundwater, air, sediment,

or surface water above the critical groundwater PCLs and source medium PCLs

for other environmental media at the prescribed, or any approved alternate,

on-site and off-site POEs for those environmental media; to prevent leachate

from the surface and subsurface soil PCLE zones from increasing the 
concentration

of COCs in class 2 groundwater at the lateral transport POC above the 
concentration

measured at the time of RAP submittal in circumstances when an alternate POE

to class 2 groundwater is authorized in response to sec.350.94(m)(4); and

to prevent the continuing occurrence or development of explosive conditions

as determined by 25% of the lower explosive limit.

Under soil Optional Approach 2, the person may use removal and/or 
decontamination

with controls, or controls only, to address the hazards posed by soil PCLE

zone materials. The person must achieve the same response objectives as 
described

for Optional Approach 1 with the exception that there is no requirement to

reduce the concentration of COCs throughout the surface and subsurface soil

PCLE zones to the critical surface and subsurface soil PCLs. Instead of a

reduction in surface and subsurface soil COC concentrations, physical and/or

institutional controls are relied upon to adequately protect human health

and the environment. The person must demonstrate that any physical control

measure or combination of measures proposed to be used (e.g., capping, slurry

wall, treatment that does not attain decontamination, or a landfill) will

reliably contain COCs derived from the surface and subsurface soil PCLE zone

materials over time. The person must also demonstrate that the 25% lower 
explosive

limit criterion will not be exceeded beyond the boundary of any physical control

over time. The person is required under Optional Approach 2 to fulfill the

post-response action care obligations described in the approved RAP. In view

of the reliance upon physical controls, a greater degree of post-response

action care will be required than for response actions performed in response

to Optional Approach 1. Under Optional Approach 2, financial assurance is

required which will be adequate for third party performance of the required

post-response action care.

The person shall achieve the Remedy Standard B groundwater PCLE zone response

objectives, unless the person demonstrates to the satisfaction of the executive

director that an affected property meets the qualifying criteria for one,

or a combination, of the modified groundwater response approaches described

in the proposed rule. These modified approaches include removal of areas below

engineered waste control units from consideration as a POE to groundwater,

use of a technical impracticability demonstration, and use of groundwater

lateral transport PCLs. A person cannot combine a technical impracticability

demonstration with the use of groundwater lateral transport PCLs. A person

who uses one, or a combination, of the modified groundwater response approaches

shall fulfill the post-response action care obligations described in the 
approved

RAP. A person who uses one, or a combination, of the modified groundwater

response approaches which utilizes physical control(s) shall provide financial

assurance adequate for third party performance of the required post-response

action care. The person must achieve the following general groundwater response

objectives under Remedy Standard B for all groundwater classes: use either

an active restoration approach or monitored natural attenuation (if appropriate

considering the hydrogeologic characteristics of the affected property and

chemical-specific data for the COCs) to reduce the concentration of COCs to

the critical groundwater PCLs throughout the groundwater PCLE zone; while

achieving the first objective, prevent COCs at concentrations above the critical

groundwater PCLs from migrating beyond the existing boundary of the groundwater

PCLE zone; remove non-aqueous phase liquids (NAPLs) to the maximum extent

practicable unless it is demonstrated to the satisfaction of the executive

director that the COC is a low toxicity substance (i.e., where the critical

groundwater PCL for a COC is defined by its solubility), such as food grade

oil, and will not result in the 25% of the lower explosive limit criterion

being exceeded; prevent COCs from migrating to air at concentrations above

the source medium PCL for air; prevent COCs from migrating to surface water

at concentration levels above the source medium PCLs for groundwater discharges

to surface water; prevent human and ecological receptor exposure to the 
groundwater

PCLE zone; and demonstrate through the performance of a field survey that

there are no artificial penetrations (e.g., abandoned wells or wells with

open-hole completions) which can allow COCs which exceed the critical 
groundwater

PCLs to migrate from the groundwater PCLE zone to currently unaffected 
groundwater-bearing

units.

When the approved RAP under Remedy Standard B includes an existing or planned

engineered waste control unit which overlies an existing groundwater PCLE

zone, the person may, with the executive director's approval exclude the 
groundwater

throughout that portion of the groundwater PCLE zone directly underlying the

engineered waste control unit from the requirement to meet the previously

stated groundwater response objectives. To use this approach, the person must

place a deed notice or restrictive covenant, as applicable, in the real property

records of the county of the affected property which provides notice of the

existence and location of the groundwater PCLE zone beneath the engineered

waste control unit and which prevents usage of and exposure to this groundwater

until such time as the COCs may reduce to the critical groundwater PCLs. Beyond

the perimeter of the engineered waste control unit, the groundwater response

objectives must be met.

A person can use a technical impracticability demonstration for all three

classes of groundwater under Remedy Standard B. The use this approach, the

person must demonstrate in accordance with U.S. EPA "Guidance for Evaluating

the Technical Impracticability of Ground-Water Restoration" (Office of Solid

Waste and Emergency Response Directive 9234.2-25 or subsequent version), or

other method approved by the executive director, that it is not feasible from

an engineering perspective using currently available remediation technologies

due either to hydrogeologic or chemical-specific factors to reduce the 
concentration

of COCs throughout all or a portion of the groundwater PCLE zone to the 
applicable

critical PCLs within a reasonable time frame. In addition, the person must:

use removal or decontamination actions to reduce the concentrations of COCs

to the critical groundwater PCLs for any portion of the groundwater PCLE zone

for which it is technically practicable; use physical control(s) to prevent

migration of COCs from that portion of the groundwater PCLE zone which satisfies

the technical impracticability demonstration; prevent COCs at concentrations

above the critical groundwater PCLs from spreading beyond the existing boundary

of the groundwater PCLE zone; and place a deed notice or restrictive covenant,

as applicable, in the real property records of the county of the affected

property which provides notice of the existence and location of the groundwater

PCLE zone and which prevents usage of and exposure to groundwater from this

zone until such time as the COCs may reduce to the critical groundwater PCLs.



With the approval of the executive director, the person may use a groundwater
 lateral transport PCL approach under Remedy Standard B for class 2 and 3
groundwater-bearing units which presently contain a groundwater PCLE zone
to protect potential receptors at alternate on-site or off-site groundwater
POEs established in accordance with sec.350.91. To use groundwater lateral
transport PCLs, the person must demonstrate to the satisfaction of the executive
director that the COCs will not pose a substantial present or potential hazard
to human health or the environment as long as the critical groundwater lateral
transport PCLs are not exceeded at the groundwater lateral transport POC.
This determination will be based upon a list of factors presented in the
proposed rule regarding potentially adverse effects on groundwater quality
and potentially adverse effects on hydraulically-connected surface water
quality. Provided the person demonstrates to the satisfaction of the executive
director that the establishment of groundwater lateral transport PCLs is
appropriate, the POE to groundwater may be changed from throughout the 
groundwater
PCLE zone to an alternate location established at the boundary of a plume
management zone established in accordance with sec.350.91(f)(3) and 
sec.350.91(g)(3)
for class 2 and class 3 groundwaters, respectively. In order to use an alternate
location for the POE to class 2 or 3 groundwater, the person must: place
a deed notice or restrictive covenant, as applicable, in the real property
records of the county of the affected property which provides notice of the
existence and location of the plume management zone and which prevents usage
of and exposure to groundwater from this zone until such time as COCs may
reduce to the critical groundwater PCLs; demonstrate through an appropriate
technical presentation that COCs will not migrate beyond the boundary of
the plume management zone at concentrations above the critical groundwater
PCLs; and demonstrate through the performance of a field survey in the plume
management zone that there are no artificial penetrations (e.g., abandoned
wells or wells with open-hole completions) which can allow COCs at 
concentrations
which exceed the critical groundwater PCLs to migrate from the groundwater
PCLE zone to currently unaffected groundwater-bearing units. The groundwater
lateral transport POC where attainment of the critical groundwater lateral
transport PCLs will be measured is a vertical surface within the groundwater-
bearing
unit containing the plume management zone. The groundwater lateral transport
POC is located at the most hydraulically downgradient extent of surface or
subsurface soils with COCs in excess of the soil-to-groundwater PCL. The
person shall establish a sufficient number of attenuation monitoring points
beginning at the most hydraulically upgradient location within the groundwater
PCLE zone and continuing along the flow path of the COCs throughout the entire
plume management zone so that conformance with the groundwater response 
objectives
for Optional Approach 1 or 2 can be reliably verified over time. The proposed
rule contains detailed requirements for the number and placement of attenuation
monitoring points and for the calculation of attenuation action levels for
each COC at each attenuation monitoring point. The person shall monitor 
concentrations
of COCs in groundwater at the attenuation monitoring points, the groundwater
lateral transport POC, and the groundwater POE in accordance with a schedule
approved by the executive director which is adequate to reliably demonstrate
conformance with the applicable groundwater response objectives. The executive
director may authorize the person to implement an accelerated monitoring
program prior to initiating an active response action in order to verify
that a response action is warranted. If any of the following conditions occur,
the person shall take an active response action to meet the response objectives
of Optional Approach 1 or 2: an attenuation action level is exceeded at its
respective attenuation monitoring point; a critical groundwater lateral 
transport
PCL is exceeded at the groundwater lateral transport POC; or a critical 
groundwater
PCL is exceeded at the groundwater POE.

The person is not required to remove NAPLs if use of groundwater lateral
 transport PCLs is approved under Remedy Standard B provided the person 
demonstrates
 to the executive director's satisfaction that all of the following conditions
 are met: the NAPLs will not generate explosive conditions, defined as 25%
 of the lower explosive limit; the NAPLs will not discharge to the ground
surface, to surface waters, to structures, or to other groundwater-bearing
units; the NAPLs will not result in a larger groundwater PCLE zone (i.e.,
a steady state or decreasing groundwater PCLE zone will remain if NAPLs are
not removed); and the NAPLs will not result in the critical groundwater PCLs,
critical surface soil PCLs, critical subsurface soil PCLs, or source medium
PCLs for other environmental media being exceeded within any exposure medium,
as applicable, at the prescribed, or any approved alternate, on-site or off-site
POEs.

The person may select either Optional Approach 1 or Optional Approach 2
 to demonstrate conformance with the groundwater requirements of Remedy Standard
 B once a satisfactory demonstration has been made that the use of groundwater
 lateral transport PCLs is acceptable. The person shall have the continuing
 obligation, under either of these optional approaches, to assess whether
changes to local hydraulic gradients will increase the likelihood that COCs
can migrate beyond the plume management zone at concentrations above the
critical groundwater PCLs. If such changed conditions occur, the person must
take any necessary corrective action to ensure that concentrations of COCs
exceeding the critical groundwater PCLs do not migrate beyond the boundary
of the plume management zone. The person may demonstrate that the hydrogeologic
characteristics of

a property are such that off-site activities cannot influence an on-site plume

management zone and thus not be required to monitor changes in the hydraulic

gradient.

Under groundwater Optional Approach 1 for Remedy Standard B, the person

must remove and/or decontaminate the plume management zone to the extent 
necessary

so that the critical groundwater PCLs will not be exceeded at the prescribed,

or any approved alternate, on-site or off-site POEs to groundwater and so

that the source medium PCLs for other environmental media will not be exceeded

at either their prescribed on-site or off-site POEs. This option requires

the person to reduce the concentration of COCs within the groundwater plume

management zone such that the remaining COCs in groundwater can migrate freely

and: the critical groundwater lateral transport PCLs are not exceeded at the

groundwater lateral transport POC; the groundwater attenuation action levels

are not exceeded at their respective attenuation monitoring points; the critical

groundwater PCLs are not exceeded at the prescribed, or any approved alternate,

on-site or off-site POEs to groundwater; the source medium PCLs for air, surface

water or sediment are not exceeded at either their prescribed on-site or off-
site

POEs; and explosive conditions defined as 25% of the lower explosive limit

are not occurring or developing. For situations where the POE is located within

the existing limits of the groundwater PCLE zone, a person may use monitored

natural attenuation to meet the conditions stated above provided the person

can demonstrate to the satisfaction of the executive director that the 
groundwater

PCLE zone is not expanding and that the conditions stated above will be met

within a reasonable time frame given the particular circumstances of an affected

property. In the situation where the groundwater PCLE zone has not reached

steady-state conditions and is migrating downgradient within the plume 
management

zone, the person must use a response action other than monitored natural 
attenuation

to meet the conditions stated above. The person under Optional Approach 1

for groundwater shall fulfill the post-response action care obligations 
described

in the approved RAP. Provided the person adequately documents attainment of

the groundwater plume management zone objectives, there are no financial 
assurance

requirements for post-response action care under Optional Approach 1.

Under groundwater Optional Approach 2 for Remedy Standard B, the person

must remove, decontaminate and/or control the plume management zone to the

extent necessary so that the critical groundwater PCLs will not be exceeded

at the prescribed, or any approved alternate, on-site or off-site POEs to

groundwater and so that the source medium PCLs for air, surface water, and

sediment will not be exceeded at either their prescribed on-site or off-site

POEs. This option requires the person to use physical controls (e.g., slurry

walls, sheet piling, interceptor trenches or hydraulic control wells): to

reliably contain and to prevent the expansion over time of that portion of

the plume management zone which is upgradient of the groundwater lateral 
transport

POC and contains COCs in excess of the attenuation action levels; to reliably

contain and to prevent the expansion over time of that portion of the plume

management zone which is downgradient of the groundwater lateral transport

POC and contains COCs in excess of the critical groundwater lateral transport

PCLs; and to reliably prevent the continuing occurrence or development over

time of explosive conditions defined as 25% of the lower explosive limit beyond

the boundary of the physical control(s). This option further requires the

person to reduce the concentration of COCs to the attenuation action levels

within that portion of the plume management zone which is downgradient of

the containment zone described above and to the critical groundwater PCLs

at the POE. For the area downgradient of the containment zone described above,

monitored natural attenuation can be used and is limited in the same fashion

as described previously for Optional Approach 1. The person under Optional

Approach 2 shall fulfill the post-response action care obligations described

in the approved RAP. The person under Optional Approach 2 is required to provide

financial assurance in an amount which is adequate for third party performance

of the post-response action care described in the approved RAP.

The type method and extent of post-response action care required under

Remedy Standard B will be a function of the long-term effectiveness of the

response action used to address the soil and/or groundwater PCLE zones or

other environmental media containing COCs, the nature and design of any physical

controls, the physical and chemical characteristics of the COCs, the geology

and hydrogeology of the affected property, and the adjacent land use. The

post-response action care period begins upon approval of the RACR by the 
executive

director. The person shall perform post-response action care for 30 years

unless the person demonstrates to the satisfaction of the executive director

that a shorter post-response action care period will be appropriate. The person

shall continue post-response action care activities throughout the initial

post-response action care period and during any continued post-response action

care period until a demonstration is made, to the satisfaction of the executive

director, that there is no longer a threat to human health or the environment

from the presence of COCs in any environmental media or physical control.

The proposed rule presents detailed criteria for determining when post-response

action care can be discontinued. If the person cannot make one of these 
demonstrations

by the end of the initial post-response action care period, then the person

shall be required to continue post-response action care for additional 30-year

periods until one of the demonstrations can be made. If the person submits

a demonstration which documents that financial assurance for post-response

action care is no longer necessary, then upon written approval by the executive

director the remainder of the initial or any continued post-response action

care period will be canceled and the financial assurance will be returned

to the person. The person shall prepare and include in the RAP a written cost

estimate, in current dollars, of the annual cost of the post-response action

care activities for the post-response action care period. The cost estimate

shall be based on the costs of hiring a third party to conduct the post-response

action care activities. The person shall use the mechanisms described in 30

TAC Chapter 37 Subchapter N, when demonstrating financial assurance for post-
response

action care. The person shall submit documentation of the establishment of

financial assurance for post-response action care in the amount specified

in the approved RAP within 90 days of the executive director's approval of

the RAP. The executive director may perform the post-response action care

activities at an affected property using the funds provided for this purpose

when the executive director determines that a person has failed to perform

the post-response action care described in the approved RAP.

The person shall perform the following record keeping and reporting requirements

during the initial and any continued post-response action care period: keep

a copy of the approved RAP at the property, or specified alternative location;

keep records of all monitoring data, inspections and maintenance reports,

and unexpected occurrences affecting any engineered waste control unit or

post-response action care systems; submit post-response action care reports

(PRACRs) in accordance with the schedule in the approved RAP; and notify the

executive director in writing within 30 days after an unexpected event occurs,

or a condition is detected, during the post-response action care period which

indicates that additional response actions will be required at an affected

property. The person shall prepare and submit in the last PRACR submitted

before the end of the post-response action care period a written cost estimate,

in current dollars, of the annual cost of the post-response action care 
activities

specified in the approved RAP for the post-response action care period. The

person shall submit documentation of the establishment of financial assurance

for the continued post-response action care period in an amount approved by

the executive director at least 90 days before the end of the preceding post-
response

action care period.

Section 350.95, No Further Action, states that individual agency programs

will confirm that a person has completed all necessary response actions and

that no further action is required. For Remedy Standard A, such confirmation

will be issued subsequent to approval of the RACR by the executive director

and, when applicable, receipt by the agency of proof of filing of a deed notice

or restrictive covenant, as applicable within the real property records of

the county of the affected property noting commercial/industrial land use

for the affected property. For Remedy Standard B, such confirmation will be

issued subsequent to: approval of the RACR by the executive director; receipt

by the agency of proof of filing of a deed notice or restrictive covenant,

as applicable, within the real property records of the affected property;

and termination of the post-response action care period by the executive 
director.



Section 350.96 sets forth standards for soil reuse. At a minimum, soils

from affected properties subject to the proposed rules must comply with the

requirements in sec.350.96 plus any additional requirements on soil reuse

found in other chapters. The excavation of soils containing COCs by non-
responsible

parties, as determined by the applicable program area, during construction

activities (e.g., installation, repair, removal of telephone lines or other

utilities, or other construction activities) and the subsequent replacement

of those soils back into that same excavation at the same approximate location

and depth shall not be considered to constitute relocation or reuse for the

purposes of this section and shall not be subject to the provisions of this

section. Soils intended for reuse at residential properties must meet the

critical residential soil PCLs and soils intended for reuse at 
commercial/industrial

properties must meet the critical commercial/industrial soil PCLs. Additional

requirements similar to requirements for response actions under Remedy Standards

A and B apply to ensure that the relocation of the soils for reuse purposes

is protective of human health and the environment. Soils are not considered

solid wastes if the soils: do not contain sludges, industrial or municipal

solid waste, or listed hazardous wastes as defined in 40 CFR Part 261, Subpart

D, any of which are separable using simple mechanical removal processes; are

not characteristically hazardous due to ignitability, corrosivity, reactivity,

or toxicity characteristic as defined in 40 CFR Part 261, Subpart C; do not

contain concentrations of COCs in excess of the residential Tier 1 surface

soil PCLs; and do not contain concentrations of COCs which are ecologically

unprotective at its location. The solid waste determination is dependent on

the location of the soil. Each time the location of the soil changes, the

solid waste determination must be made again. Soils which are solid wastes

must be evaluated for waste classification in accordance with Chapter 335,

Subchapter R of this title (relating to Waste Classification) prior to being

sent for reuse at any location which is beyond the limits of the on-site or

off-site property which contains the affected property and must be managed

in accordance with any resulting waste classification, unless the soils which

contain COCs meet the definition of petroleum substance wastes as defined

in sec.334.481 of this title (relating to Definitions). The management of

petroleum substance wastes shall comply with the provisions of Chapter 334,

Subchapter K. Finally, if soils which contain concentrations of COCs above

naturally-occurring background levels resulting from an unauthorized releases

are to be relocated for reuse on property not owned by the person, then the

person shall obtain the written consent of the landowner prior to relocation

of the soils.

Subchapter E contains sec.350.111-sec.350.117, and describes the necessary

information for each report required by the proposed rule. Section 350.111

sets forth the requirements for the Sampling and Statistical Analysis Plan

(SSAP) which is required in the event a person intends to use statistical

methods and sec.350.112 establishes the information to be contained in the

Affected Property Assessment Report (APAR) required by sec.350.33. Sections

350.113-350.116 prescribe the information to be submitted with the previously

discussed Self-Implementation Notice, Response Action Effectiveness Report,

Response Action Plan, and the Response Action Completion Report, respectively.

In the event post-response action care is necessary under Remedy Standard

B, Post-Response Action Care Reports (PRACRs) must be submitted. The 
requirements

for PRACRs are found in sec.350.117.

Subchapter F consists of sec.350.131-sec.350.132. Section 350.131 establishes

 the institutional controls to be used in each instance that recordation of

language in the property deed records is required by the proposed rule. Notices

and restrictive covenants are the institutional controls specifically identified

in the proposed rule. Deed notices do not restrict the use of the property,

but are intended to provide notice and information regarding the property

to the owner of the property, prospective buyers, and others. Restrictive

covenants do restrict use of the property and its resources and are used to

ensure that the recordation on the deed will be legally enforceable when the

person owning the property is an innocent landowner, changes ownership, or

sells the property. Section 350.131 contains standardized forms for each of

the following institutional controls: Notice of Remediation in Progress, Notice

of Further Remediation Requirements Prior to Residential Use, Notice of Possible

Limitation on Property Use, Release of Deed Notice, Restrictive Covenant 
Limiting

Land Use to Commercial/Industrial Uses Only, Restrictive Covenant for 
Limitations

on Property Use, Release of Restrictive Covenant, Notice of Exception to Default

Residential Exposure Area, Notice of Exception to Default Commercial/Industrial

Exposure Area, Restrictive Covenant for Subdivision of Residential Property,

Restrictive Covenant for Subdivision of Commercial/Industrial Property, Notice

of Limit on Number of Days Property May Be Used, and Restrictive Covenant

Limiting the Number of Days Property May Be Used. Section 350.132 discusses

the requirements for use of institutional control measures which may be 
mechanisms

other than the deed notices and restrictive covenants specifically identified

in sec.350.131.

FISCAL NOTE Stephen Minick, Strategic Planning and Appropriations Division,

has determined that for the first five-year period the sections as proposed

are in effect, there will be fiscal implications as a result of administration

or enforcement of the sections. There are no increases in cost to state 
government

anticipated. Although the internal commission processes of review and evaluation

of remedial action plans may be altered under the proposed rules, the costs

associated with the process are not anticipated to be materially changed.

In that considerable remedial activity is supported with public funds by the

commission, the effects of the proposed rules on the overall costs of remedial

actions will be reflected in impacts on state funding sources. It is anticipated

that the net benefits of the greater flexibility in risk-based cleanup remedies

afforded by the proposed rules will result in reductions in the demands for

state funds for remedial actions. Similarly, no significant increases in costs

for units of local government are anticipated. For local governments operating

facilities or properties for which cleanup standards might be applied under

these proposed rules, the cost and benefit implications are essentially the

same as those for any private property owner or facility operator subject

to the same provisions.

PUBLIC BENEFIT Mr. Minick has also determined that, for the first five

years the sections as proposed are in effect, the public benefit anticipated

as a result of enforcement of and compliance with the sections will be improved

consistency and clarity in existing regulations governing the cleanup standards

for contaminated properties. The proposed rules will result in more streamlined

and cost-effective remediation of contaminated properties and increase 
incentives

for remedial actions. Remedial actions under the proposed rules will be 
initiated

more quickly, reducing potential migration of contamination and the improving

the degree of protection of human health and safety and the environment. The

proposed rule will allow greater beneficial use of limited public and private

resources and enhance public notice of and participation in the remediation

of contamination.

There are no net economic costs anticipated to any person, including small

business, required to comply with the sections as proposed. The effect of

the proposed rule will generally be to reduce the potential costs of site

remediation by offering risk based alternatives to current cleanup standards

which should be achievable at a lower cost than current standards. In some

cases, the cost of the analysis and development and justification of a remedy

under the proposed rules may be greater than similar costs under existing

rules. These costs increases, however, will be justified by owners and operators

seeking to determine cost-effective cleanup options and should be offset by

the cost savings realized by utilizing the risk based options offered under

the proposed rules. In addition, a more general savings in cost is anticipated

to result from the overall clarification and simplification of the regulations

governing cleanup standards. Any actual determination of impact of the proposed

rules must be made on a site-specific basis and no estimates of the net cost

savings to owners or operators of these rules is available.

DRAFT REGULATORY IMPACT ANALYSIS The proposed rule is not a major environmental

rule as defined by Government Code sec.2001.0225 and does meet any of the

applicability requirements that would require the preparation of a Regulatory

Analysis as required by that section. However, the proposed rules do constitute

a significant rulemaking effort that the commission has taken great care in

developing, with considerable input from other interested parties, and offers

the following relevant information it has accumulated and conclusions it has

reached in the process. Accordingly, the commission herein presents a detailed

discussion of 1) the reasons that the commission does not consider the proposed

rule to be a major environmental rule, and 2) the alternatives considered

for the central concepts of the proposed rule.

The commission invites public comment on the draft regulatory impact analysis.

All comments on the analysis will be addressed in the final regulatory impact

analysis.

Major Environmental Rule The proposed Texas Risk Reduction Program Rule

(TRRP) is not a major environmental rule. A "major environmental rule" as

defined in Texas Government Code Annotated sec.2001.0225(g)(3) (Vernon

Pamph. 1998) means a rule the specific intent of which is to protect the 
environment

or reduce risks to human health from environmental exposure and that may 
adversely

affect in a material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, or the public health and safety of the

state or a sector of the state. This Regulatory Impact Analysis will discuss

general reasons why this proposed rule is not a major environmental rule because

it will not have an adverse impact. Section 1 to this draft regulatory impact

analysis will include a more detailed discussion of the central concepts of

the proposed rule in light of the elements of a "major environmental rule"

and conclude that the proposed rule is not a "major environmental rule."




Currently there are rules which dictate remediation standards and techniques

for contaminated properties. The purpose of the proposed rule is to harmonize

the existing corrective action programs into one set of corrective action

requirements applicable to the identified programs. This one set of requirements

is protective, yet reasonable, considering the limited public and private

sector resources available for response actions at affected properties. 
Corrective

action, the removal of the risk to human health and the environment caused

by contaminants, is not a new requirement, and the programs affected by the

proposed rule currently maintain corrective action programs either through

formal rules or through enforcement of state statutes. The commission believes

this proposed rule will improve the existing corrective action programs and

encourage more voluntary response actions, which will result in greater levels

of protection for human health and the environment. The proposed rule is 
intended

primarily as a harmonization of the existing corrective action programs and

reconciliation of conflicting program requirements. Analysis of these issues

demonstrates that the proposed rule does not adversely impact in a material

way the economy, a sector of the economy, productivity, competition, jobs,

the environment, or the public health and safety of the state or a sector

of the state for the following reasons:

(1) it does not bring under regulation persons, properties, or situations

that are not already subject to corrective action requirements under existing

agency rules or state statutes;

(2) it does not require re-evaluation of previously approved plans under

existing rules in the affected programs;

(3) it establishes performance-based remedy standards to maintain protection

for human health and the environment, while providing a more appropriate

balance between removal or decontamination of pollutants (pollution cleanup)

and approaches that isolate pollutants to prevent public or ecological exposures

(exposure prevention); and

(4) it contains a more streamlined, consistent manner of developing appropriate

 protective concentration levels of chemicals of concern, thus eliminating

the need for baseline risk assessments.

First, the proposed rule does not bring under regulation persons, properties,

or situations that are not already subject to corrective action requirements.

All programs affected by the proposed rule already have specific corrective

action programs or are guided by statute. For example, the State Superfund

Program, Industrial and Hazardous Waste Program, and Voluntary Cleanup Program

(VCP) currently utilize the Risk Reduction rules in 30 TAC Chapter 335, 
Subchapter

A and S (existing or current Risk Reduction rules) for risk-based corrective

action. The Petroleum Storage Tank (PST) Program and the VCP utilize 30 TAC

Chapter 334, Subchapter G (Petroleum Storage Tank rules) for risk-based 
corrective

action for leaking storage tank sites. Corrective action requirements for

operating municipal solid waste landfills subject to federal RCRA Subtitle

D requirements are found in 30 TAC Chapter 330. In instances where a maximum

contaminant level does not exist, the executive director may develop a risk-
based

cleanup standard under the Municipal Solid Waste (MSW) rules. For all other

municipal landfills, the requirement for corrective action is determined on

a site-specific basis. Corrective action requirements for the Underground

Injection Control program are found in 30 TAC Chapter 331, Subchapter C. Spill

response actions regulated under 30 TAC Chapter 327 that will take longer

than six months follow the Risk Reduction rules or the PST rules, whichever

is appropriate. Although there are no rules for corrective action at compost

facilities, the commission would invoke statutory authority to compel cleanup.

For corrective action guidance, the commission and the responsible person

would look to existing rules in current programs such as MSW and the existing

 Risk Reduction rules.

The intent of the proposed rule is to unify corrective action requirements

so that affected property assessments, determinations of protective 
concentration

levels, and the performance-based soil and groundwater objectives for response

actions taken at affected properties will be consistent across different program

areas. In addition, implementation of the proposed rule will resolve ambiguities

in the existing rules, and provide more alternatives and control to persons

undertaking corrective action. Additional alternatives and increased control

over corrective actions will expedite response actions and thereby provide

greater protection to human health and the environment. For all of the above

reasons, the proposed rule does not adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the 
environment,

or the public health and safety of the state or a sector of the state. 
Therefore,

the proposed rule is not a major environmental rule.

Second, in most circumstances, the commission will not require sites that

have begun a response action under a plan approved prior the effective date

of the proposed rule to comply with the proposed rule when it is effective.

Instead, persons will have the option of switching to the new rule if they

desire, or completing the response action under the previous rule (e.g., Chapter

335 Risk Reduction rules). However, once the decision is made to use the 
proposed

rule as the guiding rule for the response action, persons may not switch back

to the previous rule. As in the current Risk Reduction rules, if a person

completes a response action under an existing rule, but a substantial change

in circumstances occurs, the executive director may require that any new 
remedial

activities correspond to the proposed rule. Because the proposed rule does

not require re-evaluation of previously approved plans under existing rules

in the affected programs, the proposed rule does not adversely affect in a

material way the economy, a sector of the economy, productivity, competition,

jobs, the environment, or the public health and safety of the state or a sector

of the state. Therefore, the proposed rule is not a major environmental rule.



Third, the commission has chosen to propose a rule which uses performance-based

remedy standards for responding to areas of soil, groundwater, and other 
environmental

media which contain a chemical of concern in excess of the protective 
concentration

level. Remedy Standard A is a pollution cleanup approach. Remedy Standard

B is an exposure prevention approach. Unless another requirement is mandated

by another state statute, federally delegated programs, or TNRCC regulation,

permit, or order, the person may choose either Remedy Standard A or Remedy

Standard B to guide the response action for an affected property.

The proposed rule will implement a more appropriate balance between pollution

cleanup and exposure prevention approaches. The commission recognizes that

pollution cleanup approaches are not always feasible at sites, and that exposure

prevention techniques may be more readily employed and are capable of providing

long term effectiveness. Long-term effectiveness is the ability of a remediation

or corrective action to maintain over time the required level of protection

of human health and the environment. Under this proposed rule, there will

be no diminution in the requirement that response actions under Standard B

must be capable of protecting human health and the environment over the long

term. However, Remedy Standard B provides more flexibility to use response

actions which are based upon an exposure prevention approach. Such response

actions may use physical and institutional controls coupled with sufficient

post-response action care to monitor for long-term effectiveness.

At the same time, the proposed rule contains a requirement of financial

assurance when physical controls are used. Financial assurance ensures that

resources will be available to monitor and maintain physical controls which

are protective of human health and the environment over the long term. The

commission has spent several years developing the remedy standards in the

proposed rule and believes that they will encourage more response actions

to be taken, and ultimately provide a greater level of protection of human

health and the environment. Additionally, the TNRCC will approve the response

action if the person is successful in demonstrating that the proposed response

action is capable of attaining the performance-based and administrative 
requirements

specified for a particular remedy standard within a reasonable time frame

considering the particular circumstances of an affected property. Thus, the

TNRCC's evaluation will be limited to an assessment of whether a proposed

response action will or will not achieve the performance-based and 
administrative

requirements of the selected remedy standard. In regard to self-implementation

and the remedy selection process, this approach is consistent with Remedy

Standards 1 and 2 under the existing Risk Reduction Rules, with the PST rules

for sites not seeking reimbursement, and with the VCP rules. The proposed

rule does not require persons to follow a remedy selection process. Experience

shows that demonstrating to the satisfaction of the executive director that

a remedy selection process has been followed is difficult and unnecessarily

delays initiating response actions.

The remedy standards in the proposed rule use performance-based response

objectives, which will lead to more timely and cost-effective solutions, and

provide a more streamlined approach for the approval of response actions to

address areas of soils, groundwater, and other environmental media which exceed

protective concentration levels. Therefore, the proposed rule will be more

effective in protecting human health and the environment while not adversely

affecting in a material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, or the public health and safety of the

state or a sector of the state. As a result, the proposed rule is not a major

environmental rule.

Finally, the proposed rule does not require or allow a baseline risk assessment

to be completed. The preparation of a baseline risk assessment is not a 
necessary

step in the determination of the protective concentration level for a chemical

of concern within environmental media. The amorphous nature of baseline risk

assessments often leads to delays and disagreements regarding the exposure

pathways and conditions which should be assumed, preventing timely response

actions. The proposed rule prescribes mandatory and contingent exposure 
pathways,

sets risk levels, establishes a tiered process to determine the protective

concentration levels that must be met at defined human points of exposure.

Because the proposed rule will provide consistency among corrective action

programs, facilitate preparation of response action plans by regulated entities,

streamline the Commission's review of submitted reports, and ultimately result

in cost savings for both the agency and persons conducting response actions,

it does not adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state. Therefore, the proposed

rule is not a major environmental rule.

Overall, the proposed rule will harmonize existing rules and streamline

 corrective action programs to make these programs more cost-effective for

the regulated community while assuring continued protection of the environment.

Thus, the proposed rule will not have a material adverse affect as provided

in the above-stated definition of a major environmental rule.

Applicability of Regulatory Impact Analysis In addition to not meeting

the definition of a major environmental rule, the proposed rule does not meet

the other criteria under Government Code sec. 2001.0225 that would require

the preparation of a regulatory impact analysis. Specifically, the proposed

rule does not exceed a standard set by federal law (and is not specifically

required by state law), does not exceed an express requirement of state law

(and is not specifically required by federal law), does not exceed a requirement

of a delegation agreement or contract between the state and an agency or 
representative

of the federal government to implement a state or federal program, is not

adopted solely under the general rulemaking powers of the agency, and is not

proposed on an emergency basis to protect the environment or reduce risks

to human health from environmental exposure.

Although differing in individual aspects, the proposed Texas Risk Reduction

Program (TRRP) rule does not exceed standards set by federal law. The proposed

rule modifies, but does not substantially change or affect any of the existing

rule requirements with respect to federal standards. The existing rules do

not exceed federal standards. The federal laws require protection of human

health and the environment. Like the existing rules, this proposed rule 
quantifies

what is meant by protection of human health and the environment so that 
protection

of human health and the environment can be demonstrated. Of the programs subject

to this rule, Municipal Solid Waste (MSW), Petroleum Storage Tanks (PST),

Underground Injection Control (UIC) and hazardous waste (RCRA) are subject

to federal rules addressing corrective action. MSW landfills subject to the

federal rules must comply with the corrective action requirements in 30 TAC

Chapter 330 which implement detailed federal rules found in 40 CFR Part 258.

The federal rules allow the use of risk-based corrective action in one instance.

If a maximum contaminant level does not exist for a chemical of concern, the

federal rule allows the executive director to develop a risk-based cleanup

level. In this instance, the TRRP would be used to develop that cleanup level.

The federal corrective action requirements for the UIC program and for hazardous

waste are found in 40 CFR Parts 144 and 264, respectively. In both instances,

the proposed rule would be consistent with the general corrective action 
objectives

established by federal rule. The federal requirements for corrective action

at PST sites exists in 40 CFR Part 280, which, like MSW, contains detailed

program requirements. The proposed rule has been drafted to be consistent

with those federal requirements. There are no federal programs for compost

operations, industrial non-hazardous waste or the State Superfund program.

Corrective action through the VCP and for long-terms spills in the spill 
response

program is substance-specific and will follow the guidelines established in

the TRRP and, if applicable, the rules for PST sites, RCRA sites, etc.

In addition, the proposed rule does not exceed any state requirements governing

corrective action and is not specifically required by federal law; however,

it is necessary to carry out federal regulations. The proposed rule is intended

to implement the state and federal statutory clean-up provisions while providing

the largest amount of flexibility and the most efficient use of corrective

action resources.

The proposed rule does not exceed the requirements of any delegation agreement

between the state and an agency of the federal government. The MSW, UIC, PST

and RCRA programs are the only programs affected by the proposed rule that

have received federal delegation or federal approval. The rule was developed

to not exceed any federal requirement. Each provision of the proposed rule

was evaluated specifically to ensure that federal requirements were not 
exceeded.

In most instances federal requirements are relatively broad. Some parts of

the proposed rule may appear to exceed the federal requirements because they

provide more specificity than federal regulations in that area; however, the

proposed rule is only providing necessary structure to assure that the broad

mandate of the federal requirements are met. Additionally, the specific 
provisions

of the proposed rule do not exceed federal requirements when viewed in their

entirety. Judging single provisions outside of the context of other rule 
provisions

is misleading. The proposed rule is essentially a fabric where each provision

must be evaluated in the context of other provisions to appropriately determine

whether federal requirements would be exceeded or not. The proposed rule sets

forth the minimum performance-based remedial objectives that would have to

be met in order to satisfy the commission that human health and the environment

are protected. For each of the delegated programs, there may be additional

federal requirements that primarily relate to procedural aspects that would

also have to be met in order to satisfy delegation requirements. To ensure

that the proposed corrective action objectives met the minimum federal 
requirements

to maintain delegation, the agency has worked closely with the U.S. 
Environmental

Protection Agency throughout the development of the proposed rule. In fact,

in order to satisfy some concerns expressed by the US EPA that some aspects

of the remedial response objectives contained in an early draft of the proposed

rule may not meet minimum federal requirements, some amendments were made.



This rule is not proposed to be adopted solely under the general powers

of the agency. The following list identifies the specific statutory authority

under which the commission proposes this rule:

(1) Texas Water Code, sec. 5.103 and sec. 26.011, which provide the

commission with authority to adopt any rules necessary to carry out its powers,

duties, and policies and to protect water quality in the state

(2) Texas Solid Waste Disposal Act, Texas Health and Safety Code, sec.

361.017, and sec. 361.024, which provide the commission the authority to

regulate industrial solid waste and municipal hazardous wastes and all other

powers necessary or convenient to carry out its responsibilities.

(3) Texas Water Code, sec. 26.039, which states that activities which

are inherently or potentially capable of causing or resulting in the spillage

or accidental discharge of waste or other substances and which pose serious

or significant threats of pollution are subject to reasonable rules establishing

safety and preventive measures which the commission may adopt or issue.

(4) Texas Water Code, sec. 26.121, which prohibits persons from discharging

wastes into or adjacent to any water in the state unless authorized by rule,

permit, or order to do so and prohibits persons from committing any other

act or engaging in any other activity which in itself or in conjunction with

any other discharge or activity causes, continues to cause, or will cause

pollution of any of the water in the state.

(5) Texas Water Code, sec. 26.262, which states that it is the policy

of this state to prevent the spill or discharge of hazardous substances into

the waters in the state and to cause the removal of such spills and discharges

without undue delay, and Texas Water Code, sec. 26.264, which provides the

commission with authority to issue rules necessary and convenient to carry

out this policy.

(6) Texas Water Code, sec. 26.341, which states that it is the policy

of this state to maintain and protect the quality of groundwater and surface

water resources in the state from certain substances in underground and 
aboveground

storage tanks that may pollute groundwater and surface water resources, and

requires the use of all reasonable methods, including risk-based corrective

action to implement this policy. Texas Water Code, sec. 26.345, provides

the commission with the authority to adopt rules necessary to carry out this

 policy.

(7) Texas Water Code, sec. 26.401, which states that it is the policy

of this state that discharges of pollutants, disposal of wastes, or other

activities subject to regulation by state agencies be conducted in a manner

that will maintain present uses and not impair potential uses of groundwater

or pose a public health hazard, and that the quality of groundwater be restored

if feasible.

(8) Texas Health and Safety Code sec.sec. 361.022, 361.023, and 361.0231,

 declare state policy for handling industrial solid waste, municipal solid

 waste, sludge, hazardous waste, and capacity for industrial and hazardous

 waste.

(9) Texas Health and Safety Code sec. 361.193 declares the goals of remedial
 actions at hazardous waste facilities listed on the state registry.

Alternatives to the Proposed Rule The purpose of the rule is to harmonize
 existing corrective action regulations. The first alternative was to maintain
 the status quo with the existing rules. However, multiple corrective action
 programs, which have conflicting requirements, adds to inconsistency, confusion
 in the regulated community, and reduces maximum utility of existing state
 staff. The second alternative was to maintain existing regulations and develop
 new guidance. This alternative is limited by the fact that requirements within
 the existing regulations differ, and a mere guidance document cannot override
 specific regulatory requirements. The best reasonable alternative is the
creation of a new regulation. With regard to specific central concepts within
the proposed rule, a discussion of the alternatives considered is provided
 in Section 2.

Data and Methodology In October 1995, commission staff participated in
 risk-based corrective action training sponsored by the national Partnership
 in Risk Based Corrective Action Implementation (PIRI) (a formal US EPA/Industry
 partnership) and the American Society for Testing and Materials. The training
 covered critical issues and policies that most impact the effectiveness and
 protectiveness of risk-based corrective action programs such as the TRRP.
 From that training an initial concept of the TRRP began to develop. The staff
 developing the TRRP had extensive implementation history with the existing
 rules and qualitatively evaluated requirements of the existing rules which
 related to the various central concepts discussed in Appendix I to determine
 which provisions are working in effective or ineffective manners, and the
 reasons for those levels of effectiveness. Additionally, the trainer who
led the October 1995 training was conferred with frequently to determine
the probable consequences associated with implementing various regulatory
alternatives in order to identify those alternatives which likely provided
the greatest degrees of protectiveness, efficiency, and streamlining. In
May 1996, a 304 page concept document was issued for public review. The document
contained a basic outline of the TRRP, a discussion of the regulatory 
requirements
and process that was envisioned, and requested that the public provide comments
 regarding the concepts contained within the document and their likely benefits
 or drawbacks, and any alternatives that they believe would be better. The
 commission received extensive comments and thoroughly reviewed them, analyzing
 the pros and cons of suggested alternatives. To identify effective solutions
 raised in the May 1996 regarding impacts on property/real estate matters,

the commission worked with representatives from the Real Estate, Probate and

Trust Law Section of the State Bar of Texas in 1996 to craft rule language

regarding institutional controls. The commission then further developed the

TRRP, and issued a second concept document in December 1996 of 513 pages to

seek further input from the general public and regulatory community. The 
commission

then analyzed comments submitted for the December 1996 concept document and

prepared the proposed rule. The above data and methodology assisted the 
commission

in ensuring compliance with the requirements for a regulatory impact analysis

and Government Code sec. 2001.0225.

Single Method of Compliance The proposed rule is performance-based and

it does not specify a single method of compliance. The rule provides a three

tier system that may be used to develop protective concentration levels. The

rule only defines bounding constraints, but the three tiers provide flexibility

to the regulated community to develop site-specific protective concentration

levels. The rule also defines two remedy standards from which persons may

choose to base response actions. Finally, the rule specifies remedy objectives

and allows the person to determine the most-effective way to achieve those

remedy objectives. At the conclusion of the response action, the person has

to satisfy the agency that the remedy objectives have been met.

SECTION 1: Specific Provisions of the Proposed Rule in Light of Major 
Environmental

Rule Definition </p>
<p>The proposed Texas Risk Reduction Program Rule (TRRP) is not a major 
environmental

rule. A "major environmental rule" as defined in Texas Government Code Annotated

sec. 2001.0225(g)(3) (Vernon Pamph. 1998) means a rule the specific intent

of which is to protect the environment or reduce risks to human health from

environmental exposure and that may adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the 
environment,

or the public health and safety of the state or a sector of the state. This

preamble has discussed general reasons why this proposed rule is not a major

environmental rule. This Appendix will analyze the central concepts of the

proposed rule in light of the elements of a "major environmental rule" and

conclude that the proposed rule is not a "major environmental rule."

A. Affected Property Assessment The proposed rule requires persons to perform

an affected property assessment. The affected property assessment entails

the collection of environmental samples to determine the horizontal and vertical

extent of chemicals of concern in soil and groundwater which equal or exceed

the most conservative (Tier 1) risk-based protective concentration levels

applicable for that land use. The Tier 1 protective concentrations levels

consider both human health and ecological exposures. An affected property

assessment is not a new requirement. The existing rules require affected 
property

assessments to be conducted. However, the existing rules do not specify the

assessment criteria. The existing rules refer only to vague assessment criteria

such as the "nature and extent" or "degree and extent" or "full extent" of

chemicals of concern, the meanings of which have been interpreted 
inconsistently.

The PST and VCP programs have interpreted these vague assessment criteria

to mean risk-based values; whereas, other programs have interpreted these

same vague assessment criteria to mean background concentrations. The experience

of the commission has been that defining the extent of chemicals of concern

to background concentrations often results in unnecessary delays in the 
corrective

action process while the persons conducting the assessment and commission

work to agree as to what the background concentration actually is. Additionally,

the incremental cost associated with defining the extent of chemicals of concern

to background concentration levels reduces the finite private and public sector

dollars that are available to undertake response actions.

The requirement to define the extent of the release to Tier 1 values is

reasonable for all corrective action programs and will reduce cost, uncertainty,

and time. This approach therefore does not adversely affect in a material

way the economy, a sector of the economy, productivity, competition, jobs,

the environment, or the public health and safety of the state or a sector

 of the state.

B. Notice to Owners and Interest Holders of Affected Property In the course

of the affected property assessment, if any environmental samples are collected

on property owned by another person (i.e., off-site areas and leased lands)

or on property where an interest such as a fee ownership, leasehold, easement,

or right-of-way is held by another person, then the proposed rule requires

that the person provide notice, as provided by the executive director, to

 leaseholders to the extent they are known or obvious, and to all interest

 holders of record within ninety days of the date of analysis. The notice will

inform the interest holders that information related to those environmental

samples is available. Once a lease holder or interest holder of record requests

that the information be made available, the person must provide the information

to the requestor within seven days of the date of the request. If an actual

exposure is occurring at concentrations exceeding the protective concentration

level, the proposed rule will require that notice to the affected persons

be made as soon as possible, but no later than three weeks after the laboratory

analysis confirms the concentrations.

The corrective action programs principally affected by this proposed rule

(PST, VCP, State Superfund, RCRA hazardous waste) already contain public 
participation

provisions. Specifically, the VCP and PST rules contain very specific 
requirements

regarding notification of affected landowners. The state Superfund and RCRA

hazardous waste programs contain public participation tenets through the remedy

selection and permitting processes. Further, other agency rules such as the

Spill rules in 30 TAC Chapter 327 already address immediate risks. These 
existing

public participation provisions are designed to allow owners of affected or

potentially affected properties the opportunity to be informed. Additionally,

during assessments conducted under the state Superfund program, property access

agreements must be sought for expanding the assessment onto off-site properties.

Similarly, under the RCRA hazardous waste programs, owners/operators are 
required

to attempt to obtain access to off-site affected properties to achieve 
corrective

action. Landowners are notified of the release as a result of property access

agreements. Therefore, the commission believes this proposed requirement does

not materially change the outcome of current practices and will actually 
alleviate

inconsistencies and delays in assessing and remediating affected properties.

Further, the proposed notification provisions allow for the expanded use of

exposure prevention response actions. A consistent notification process, such

as the one proposed, is necessary to ensure protection of human health and

the environment. At the same time, expanded use of exposure prevention 
approaches

increases options to persons under taking response actions.

Because this proposed rule does not materially change the outcome of current

practices, provides greater consistency, and increases flexibility this central

concept of the proposed rule does not adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the 
environment,

or the public health and safety of the state or a sector of the state.

C. Landowner Concurrence for Physical and Institutional Controls Consistent

 with the existing PST rules and the practices of the VCP program, the 
commission

is proposing that prior written landowner concurrence be required for the

use of institutional controls (deed notices or restrictive covenants) and

physical controls. Landowner concurrence is necessary for response actions

which rely on such controls to be approved by the executive director. This

aspect of the proposed rule addresses concerns over "takings" claims which

appear to allow the placement of institutional and/or physical controls without

landowner concurrence. Again, all of the corrective action program areas 
principally

affected by this proposed rule currently contain public participation tenets.



Landowner concurrence is a particularly relevant and specific form of public

participation. Additionally, the executive director is responsible for ensuring

that response actions remain effective over the long term. Landowner concurrence

with the placement of physical and institutional controls is effectively an

acknowledgment by that landowner of the conditions necessary for the control.

This acknowledgment better assures the active participation of the landowner

and thereby helps ensure the long term effectiveness of the control. Landowner

concurrence is required under the existing PST rule, is currently practiced

within the agency due to takings concerns, and is authorized under the broad

provisions of the existing Risk Reduction rule.

Thus, the requirement to obtain landowner concurrence does not adversely

affect in a material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, or the public health and safety of the

state or a sector of the state and is consistent with the philosophy of 
protecting

and preserving private property rights.

D. Risk and Hazard Criteria The proposed rule establishes benchmarks for

protection (i.e., carcinogenic risk level and hazard quotient/index) for 
carcinogens

and noncarcinogens. Specifically, the proposed rule requires that for each

chemical of concern, the carcinogenic risk level of 1 x 10<sup>

-5 </sup> and the noncarcinogenic hazard quotient of 1 shall be met. When

there are multiple chemicals of concern, a cumulative carcinogenic risk level

of 1 x 10<sup>-4</sup> and a noncarcinogenic hazard index

of 10 shall also be met to ensure that the combined exposure to multiple 
chemicals

of concern is protective. The cumulative risk level and hazard index are only

used as a check to determine if the individual risk level and hazard quotient

must be downwardly adjusted to a more protective value. These levels, with

the exception of the criteria for a hazard index of 10, which is only used

to provide a check for the situation of multiple noncarcinogenic chemicals

of concern, are within the protectiveness benchmarks contained within the

existing rules. The existing rules appear to some to set forth a risk range

of 1 x 10<sup>-6</sup> to 1 x 10<sup>-4


</sup>for carcinogens, although setting 1 x 10<sup>-6</sup>

 as the point of departure. The existing rule language has led to disagreements

 over the appropriate risk level among the commission, responsible persons,

 affected property owners, and others, which have ultimately resulted in delays

in initiating response actions. The commission believes the use of a clear,

single risk level will benefit public health and the environment by avoiding

such delays and allowing response actions to be initiated quicker. Further,

the commission believes the 1 x 10<sup>-5</sup> risk level,

which is seemingly less strict than the 1 x 10<sup>-6</sup>

 standard under existing rules, maintains equivalent protection of public health

 and the environment because the proposed rule requires that more exposure

 pathways be evaluated than required under the existing rules and that more

 pathways be added to develop combined exposure pathways. The cumulative effect

 of these changes does not result in a material change in protectiveness from

the existing rules. The proposed cumulative risk level criteria of 1 x 10<
sup>-4</sup> is the same as existing rule requirements. The hazard

index of 10, when evaluated in the context of other conservative proposed

provisions, will provide an equivalent level of protection to the current

rule. Therefore, considering other provisions contained within the proposed

rule for the development of protective concentration levels, the protectiveness

criteria proposed within this rule provides a level of protection equivalent

to that of existing rule, but in a more streamlined fashion.

Because the change in the risk level is not materially different from the

existing rules and eliminates delay which results from disagreements over

the appropriate levels, the proposed change does not adversely affect in a

material way the economy, a sector of the economy, productivity, competition,

jobs, the environment, or the public health and safety of the state or a sector

of the state.

E. Mandatory Exposure Pathways with Prescribed Points of Exposure vs. Site

Specific Pathways The proposed rule will require a person to determine 
protective

concentration levels for certain soil and groundwater exposure pathways on

a mandatory basis at all affected properties. A person must also determine

protective concentration levels for other soil and groundwater exposure pathways

if the pathway is complete or reasonably anticipated to be complete based

upon criteria specified in the proposed rule. Finally, a person must determine

protective concentration levels for any other identified exposure pathways

which are either complete or reasonably anticipated to be complete. An exposure

pathway describes the way in which a chemical of concern gets from the source

to a person or ecological receptor. For example, the release of chemicals

of concern from a tank to the surrounding soils which subsequently leach the

chemicals of concern to the underlying groundwater which serves as a drinking

water supply is an exposure pathway. When exposure actually occurs or is likely

to occur through the exposure pathway, then the exposure pathway is considered

to be complete.

Existing Risk Reduction rule Standard 2 and PST Plan A already set mandatory

exposure pathways criteria. Under the existing Risk Reduction rule Standard

3 and PST Plan B of the PST rules, exposure pathways are approached on a site-
specific

basis. The lack of standardization as to minimum exposure pathways that are

to be evaluated has often resulted in delays in the corrective action process

while agreements as to the applicable exposure pathways have been worked out

between the commission and persons undertaking the response action. 
Uncertainties

regarding minimum exposure pathways have also often resulted in the need for

properties to be re-evaluated. Mandatory exposure pathways eliminate such

delays and wasteful expenditure of resources. Mandatory pathways serve the

economy by creating certainty and an environment conducive to efficiency.

The mandatory pathways also protect human health and the environment by reducing

the risk of delay caused by disagreement over exposure pathways, and by setting

a threshold of mandatory exposure pathways that assures this protection. 
Additionally,

the use of mandatory exposure pathways was integrated into the commission

decision to rely on the risk and hazard criteria proposed in this rule. If

the commission were not to set mandatory exposure pathways, then the commission

would be compelled to reevaluate the risk and hazard criteria.

Because the proposed change eliminates delays, is conducive to efficiency,

and is protective of human health and the environment, it does not adversely

affect in a material way the economy, a sector of the economy, productivity,

 competition, jobs, the environment, or the public health and safety of the

state or a sector of the state.

F. Points of Exposure The proposed rule also prescribes on-site and off-site

points of exposure for humans to environmental media (i.e., air, soil, 
groundwater,

and surface water) and identifies alternate points of exposure to class 2

and 3 groundwater under Remedy Standard B. Under the proposed rule, points

of exposure to ecological receptors will be established on a site-specific

basis in accordance with guidance to be developed by the executive director.

Although existing rules utilize points of exposure, the existing rules are

not as clear as the proposed rule in criteria for setting points of exposure,

particularly with regard to alternate points of exposure, and often result

in implementation difficulties. The proposed rule lays out in greater detail

criteria for setting points of exposure. This additional criteria will 
accelerate

the corrective action process by clearly laying out the expectations of the

commission. The commission anticipates that any additional costs realized

by corrective action plans meeting the point of exposure requirements of the

proposed rule will be balanced by the acceleration of the corrective action

process, and by anticipated technological advances that are more likely to

evolve in the presence of a constant target. Eliminating delays and setting

detailed point of exposure criteria serves the public health and the 
environment.

It serves the economy because it reduces the risk for waste, encourages 
technological

development, and adds certainty to the equation.

Because the proposed rule change will accelerate the corrective action

process and will clarify points of exposure criteria, it will not adversely

affect in a material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, or the public health and safety of the

state or a sector of the state.

G. Soil Points of Exposure The proposed rule sets soil points of exposure

for residential and commercial/industrial land use. For residential land use

under the proposed rule, the soil point of exposure will be the upper fifteen

feet of soils at an affected property. For commercial/industrial land use,

the point of exposure will be the upper five feet of soils. Currently, the

PST rules establish a soil point of exposure of fifteen feet or to the extent

of the construction zone for an area for both residential and 
commercial/industrial

properties. The existing Risk Reduction rules establish the soil point of

exposure throughout all soils for residential property and the upper two feet

of soil for commercial/industrial properties under Standard 2. However, under

Standard 2 of the existing Risk Reduction rules, the two foot soil point of

exposure is somewhat irrelevant, because the driving criteria for soil is

generally protection for the underlying groundwater and not direct human health

exposure to soils. The existing Risk Reduction rules do not specify the soil

point of exposure under Standard 3 which has lead to some delays and 
inconsistent

implementation. The proposed provisions are within the criteria of existing

rules and are less restrictive than the PST rules, but still protective of

human health and the environment.

Because the proposed soil points of exposure criteria do not significantly

stray from current risk reduction and PST rule requirements, the proposed

changes do not adversely affect in a material way the economy, a sector of

the economy, productivity, competition, jobs, the environment, or the public

health and safety of the state or a sector of the state.

H. Changes to Default Exposure Factors Consistent with the existing rules,

under the proposed rule, persons may provide site-specific evidence that 
demonstrates

to the satisfaction of the executive director that site specific exposure

values are more appropriate than default values in the rule. However, the

proposed rule will require that persons petition the executive director to

vary three of the default exposure factors: exposure duration, exposure 
frequency,

and averaging time for noncarcinogens. These exposure factors can only be

varied for commercial/industrial land use. These three exposure factors are

based on the frequency of use of an affected property. As such, the decision

to approve or disapprove the use of alternate values for these exposure factors

is purely a non-technical policy decision that could have some direct or 
indirect

influence on surrounding property. Therefore, the commission is proposing

that persons submitting a request to change these default exposure factors

 must also provide public notice.

Public comment will be accepted for thirty days after the initial public

notice is released. The Executive Director, not the executive director's staff,

will approve or deny the request. A person may file a motion for reconsideration

of the Executive Director's decision to the commission following the guidelines

established in commission rules for filing such motions. A commission decision

on the Executive Director's decision is final. A person receiving approval

to vary these exposure factors must file a notice to the property deed record

acknowledging the change from default exposure factors and identifying the

final exposure factors. The existing rules provide the flexibility to modify

exposure factors, provided they are based on site-specific data. However,

in general, the executive director has had difficulty in making decisions

on such requests because of a lack of sufficient basis to approve such 
variances.

The commission is proposing these new procedures to provide a consistent 
evaluation

process. Because public participation, though inconsistent, is already mandated

for the program areas principally affected by this rule, the change does not

significantly impact the corrective action process. The public participation

requirements proposed enhance health and environmental protection because

they set criteria that will be applied consistently across program areas.



Because public participation is already required for changes to the default

exposure factors and will be applied more consistently, the proposed rule

change will not adversely affect in a material way the economy, a sector of

the economy, productivity, competition, jobs, the environment, or the public

health and safety of the state or a sector of the state.

I. Groundwater Classification The commission is proposing to establish

three classes of groundwater which will unify the requirements of the existing

rules. The existing Risk Reduction rules designate two classes of groundwater,

and the existing PST rules designate four classes of groundwater. Under the

proposed rule, class 1 groundwater is groundwater considered to have a high

resource value, be a high quality single source of drinking water, or be within

one half mile of a public drinking water supply and likely to migrate to that

water supply. Class 2 groundwater is usable or potentially usable groundwater

based upon total dissolved solids content and the ability to produce 150 gallons

per day. Class 3 groundwater is not a current or potential groundwater supply

due to high total dissolved solids content or the inability to produce 150

gallons per day. The legislature "recognizes the important role of the use

of the best professional judgment of the responsible state agencies in attaining

the groundwater goal and policy of this state." Texas Water Code sec. 26.401(d)

(Vernon 1992). The three part groundwater classification system used in 
conjunction

with the associated soil and groundwater response objectives presented in

this proposed rule represents the Commission's best professional judgment

for an appropriate overall risk reduction program taking into account all

relevant factors to best achieve the groundwater goal and policy stated by

the legislature. The change from a two and four class approach to a three

class approach will have only an incidental impact on persons performing 
corrective

actions, particularly when viewed with the strides such a system makes toward

serving the overall groundwater goals and policies of the state.

Because this concept is a reasonable compromise between the two classification

systems which currently exist, the proposed rule change will not adversely

affect in a material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, or the public health and safety of the

state or a sector of the state.

J. Groundwater Response Objectives Under Remedy Standard A of the proposed

 rule, persons will be required to restore groundwater to the protective 
concentration

levels throughout the entire groundwater protective concentration level 
exceedence

zone.

Remedy Standard B of the proposed rule will allow persons in certain 
circumstances

to use physical and institutional controls to provide protection of human

 health and the environment through the prevention of exposure. Specifically,

persons may be allowed to establish plume management zones for class 2 and

3 groundwaters which already contain chemicals of concern in excess of 
protective

concentration levels. However, the proposed rule will establish a pollution

cleanup approach for class 1 groundwater (i.e., a Primary Groundwater Resource)

under Remedy Standard B by specifying that a well for use by the applicable

receptor could be installed at any location throughout the groundwater 
protective

concentration level exceedence zone. The proposed requirement is that the

relevant protective concentration levels not be exceeded at the point of 
exposure

to class 2 groundwater. The person must place a deed notice/restrictive covenant

in the deed records for the property which notes the presence of the plume

management zone and alerts against/prevents usage of and exposure to groundwater

from this zone.

The proposed rule also specifies an exposure prevention approach for class

3 groundwater which by definition is not a potential or current groundwater

supply. For both residential and commercial/industrial land uses, the prescribed

on-site point of exposure to class 3 groundwater will be at all locations

throughout a groundwater protective concentration level exceedence zone defined

by concentrations greater than 100 times the protective concentration level

for groundwater ingestion for the applicable land use. The person must place

a deed notice/restrictive covenant in the deed records for the property which

notes the presence of the plume management zone.

Finally, the proposed rule provides additional flexibility for groundwater

response actions under Remedy Standard B through exclusion of the zone directly

below a waste control unit as a point of exposure to groundwater, demonstration

of technical impracticability of groundwater restoration, and the ability

to leave free product (non-aqueous phase liquids) in place under certain 
conditions.

Monitored natural attenuation can be used as all or part of the groundwater

response action under either Remedy Standard A or B provided the person 
demonstrates

that the groundwater response objectives will be attained within a reasonable

time frame given the particular circumstances of an affected property.

These concepts, many of which are already used under the existing rules,

provide appropriate flexibility to encourage more persons to take actions

to protect human health and the environment from groundwater containing 
chemicals

of concern above protective concentration levels. Additionally, proposed 
specific

criteria will provide the greatest degree of protection to class 1 groundwaters

and unaffected groundwaters. For affected class 2 and 3 groundwaters, the

commission recognizes the difficulty of groundwater restoration and recognizes

the drain on limited public and private sector resources that results when

conditions at and around the affected property do not warrant such restoration.

Those limited resources can be better used to address other corrective action

needs. When the plume management zone concept is demonstrated to be an 
appropriate

response action in the context of criteria established in the proposed rule,

it significantly eases the burden of completing the corrective action while

protecting public health and the environment. In view of such eased burden

and the addition of the "plume management zone" option to corrective measures

already used under the existing rules, the proposed rule will result in a

decrease in cost and will maintain and enhance protection of public health

and the environment.

Thus, the proposed rule change will not adversely affect in a material

way the economy, a sector of the economy, productivity, competition, jobs,

the environment, or the public health and safety of the state or a sector

of the state.

K. Soil Source Area Response Objectives For affected properties with class

1 groundwater or uncontaminated class 2 or 3 groundwater, the proposed rule

will set the soil protective concentration level to protect groundwater. The

protective concentration level for groundwater will not be exceeded in 
groundwater

directly below the soil source area. If an affected property already contains

a protective concentration level exceedence zone in class 2 or class 3 
groundwater

and an alternate point of exposure is established under Remedy Standard B

at the boundary of a plume management zone, then the soil-to-groundwater 
protective

concentration level will be set such that the protective concentration levels

for groundwater will not be exceeded at this alternate groundwater point of

exposure. For class 2 groundwater under Remedy Standard B, the soil protective

concentration level exceedence zone must be removed, decontaminated, and/or

controlled to the extent necessary such that the concentrations of chemicals

of concern at the point of compliance within the class 2 groundwater beneath

the soil source area do not increase above the concentrations measured at

the time when the response action plan is submitted to the commission.

These soil response objectives are already currently practiced under existing

regulations such as PST. Accordingly, these soil response objectives will

not have an adverse material affect on the economy, a sector of the economy,

productivity, competition, jobs, the environment, or the public health and

safety of the state or a sector of the state.

L. Financial Assurance Under the proposed rule, financial assurance will

be required for response actions under Remedy Standard B that use a physical

control. The amount of financial assurance will be limited to the amount 
necessary

to maintain the physical control throughout the post-response action care

period. Mechanisms to demonstrate financial assurance will be set forth in

30 TAC Chapter 37 which contain the Commission's financial assurance 
requirements.

The financial assurance requirement in this chapter is superseded by financial

assurance requirements in specific programs such as the MSW landfill and PST

programs. Under the existing Risk Reduction rules, the commission can accept

financial assurance on a case-by-case basis as a condition for approval of

an exposure prevention response action under Risk Reduction Standard 3 when

such proposed action would not otherwise meet the long-term effectiveness

requirements. Financial assurance requirements are limited to what is required

to maintain the physical controls to which the person has already committed.

They are triggered only when the person chooses physical controls. If persons

do not wish to put up financial assurance, then persons may take response

actions which do not rely on physical controls.

The commission, therefore, does not reasonably expect the financial assurance

requirement to result in a material adverse affect on the economy, a sector

of the economy, productivity, competition, jobs, the environment, or the public

health and safety of the state or a sector of the state because the required

level of financial assurance is inherently limited.

M. Self-Implementation The proposed rule will allow self-implementation

for response actions designed to achieve residential or commercial/industrial

land use under Remedy Standard A. To self implement, persons will be required

to submit a Self-Implementation Notice, and submit response action effectiveness

reports every three years so that the remedial progress can be evaluated.

If the response action will take in excess of ten years, then persons must

place a recordation on the deed to provide interim notice that response actions

are underway. Self-implementation will not be allowed for response actions

under Remedy Standard B. The existing Risk Reduction rule Standards 1 and

2 are self-implementing. The PST rules allow for self-implementation, although

it has rarely been used because preapproval is required to receive reimbursement

from the state. The experience of the commission has generally been that reduced

regulatory oversight through self-implementation has promoted quick cleanups

that might have otherwise been avoided or delayed. Self-implementation has

proven to be effective in protecting human health and the environment.

Based on its experience with self-implementation, the commission does not

 reasonably expect this provision, which is already allowed under the existing

rules, to create a material adverse affect on the economy, a sector of the

economy, productivity, competition, jobs, the environment, or the public health

and safety of the state or a sector of the state.

N. Deed Notices/Restrictive Covenants Under the proposed rule, deed 
notices/restrictive

covenants will be required for response actions completed under Remedy Standard

A-Commercial/Industrial, Remedy Standard B-Residential, and Remedy Standard

B-Commercial/Industrial. Response actions that achieve residential health-based

levels without physical or institutional controls under Remedy Standard A-
Residential

will not require deed notices/restrictive covenants. Because the commission

believes the cleanups to residential levels are fully protective, deed notices

for such cleanups are unnecessary, which offers some relief to persons who

are either undertaking corrective action or who are affected by releases without

compromising protection of human health or the environment. Deed notices are

already required under the existing Risk Reduction rules any time an affected

property is not cleaned up to background concentrations. Under the PST rules,

deed notices can be required on a site-specific basis when the executive 
director

determines that deed notices are necessary to ensure response actions are

protective of human health and the environment over the long term. The proposed

rule represents a midpoint position between the existing rules. Deed notices

and restrictive covenants are favored for two reasons. First, they provide

a consistent and permanent mechanism to ensure that persons have adequate

notice of the conditions under which affected properties must be managed in

order that human health and the environment will remain protected over the

long term. Second, by providing such assurance deed notices and restrictive

covenants allow for increased flexibility by the use of exposure prevention

remedies in lieu of pollution cleanup remedies. The commission believes that

the public health concerns satisfied by deed notification and restrictive

covenants and the benefit of increased flexibility outweighs the perceived

burden created by these requirements. In addition, once persons demonstrate

that the deed notice is no longer warranted, provisions in the proposed rule

provide for the filing of a Release of Notice to terminate the deed 
notification.

Alternatively, persons can clean up sites to residential levels and avoid

the need for deed notification altogether.

Upon taking all important factors into account, the commission reasonably

 expects the deed notice and restrictive covenant provisions in the proposed

rule to enhance public health and the environment and will not adversely affect

in a material way the economy, a sector of the economy, productivity, 
competition,

jobs, the environment or the public health and safety of the state or a sector

of the state.

O. Ecological Risk Assessment The proposed rule requires persons to consider

both human and ecological receptors when determining the critical protective

concentration level for a chemical of concern within an environmental medium.

A human health protective concentration level may be downwardly adjusted for

protection of ecological receptors. To determine if an ecological risk 
assessment

is required, persons must complete the Tier 1: Exclusion Criteria Checklist.

If an affected property is not excluded, then the person must conduct an 
ecological

risk assessment using a tiered approach. Ecological protection is a requirement

under the existing rules. The proposed exclusion criteria will streamline

the assessment and require quantitative ecological risk assessments to only

be performed at those affected properties with potential ecological exposures.

This proposed rule will provide a more effective and reasonable basis than

current rules for ensuring ecological protection.

Because the proposed rule will streamline the assessment and limit when

 quantitative ecological risk assessments are to be performed, this proposed

rule change will not adversely affect in a material way the economy, a sector

of the economy, productivity, competition, jobs, the environment, or the public

health and safety of the state or a sector of the state.

Conclusion The proposed rule harmonizes the existing corrective action

requirements into one corrective action rule applicable to the identified

programs. The proposed rule streamlines the existing rules, establishes 
consistent

requirements, minimizes delay and disagreement among the commission and the

affected parties, and creates a predictable working environment for the 
regulated

community, all of which provides greater protection to human health and the

environment. Because of these reasons and those described above, this proposed

rule is not a major environmental rule as defined in Texas Government Code

sec. 2001.0225 (Vernon Pamph. 1998).

SECTION 2: Alternatives for Central Concepts of the Proposed Rule

The overall goal to harmonize existing program requirements will be accomplished

by reconciling existing conflicts pertaining to the central concepts of the

rule. For each of these central concepts, the following discussion will examine

alternatives considered by the commission and provide reasons why the commission

selected the alternative included in the proposed rule.

A. Affected Property Assessment To set the required level of assessment,

the commission considered the use of: (1) background concentrations, (2) any

tiered protective concentration levels, and (3) declining trends beyond Tier

1 protective concentration levels. The commission chose not to use background

concentrations because background concentrations are difficult to determine

and are often debated. Moreover, assessments designed to reach background

concentrations do not provide an obvious benefit over assessments designed

to reach human health and ecologically protective concentration levels. Further,

background-based assessments can result in significant cost increases and

time delays without a compensatory increase in the level of protection provided.



Alternatively, the commission considered allowing assessments to be based

on the protective concentration level established under any of the three tiers

proposed in the rule. One of the goals of the proposed rules is to promote

consistency and eliminate potential disputes with regard to the adequacy of

assessments. Allowing assessments to be based under any of the three tiers

 would undermine this goal because the protective concentration levels would

 change from site-to-site.

The third alternative considered by the commission was to base the assessment

on documentation of results to the point that concentrations are decreasing

below Tier 1 protective concentration levels. This alternative ensures 
consistency

by using standard assessment goals. Additionally, by requiring assessment

to be conducted until concentrations are below the Tier 1 protective 
concentration

levels, the commission is minimizing the potential to overlook "hot spots."

Further, the use of risk-based concentrations based on well-accepted risk

assessment practices is fully protective of human health and the environment.

Finally, this option is a reasonable compromise between the various assessment

criteria that are used under existing program areas. Hence, the commission

chose this alternative.

B. Notice to Owners and Interest Holders of Affected Property The commission

considered two broad alternatives with regard to the issue of notice to owners

and interest holders of affected properties: (1) maintain the status quo,

and (2) develop a consistent notification process.

Notification provisions under existing regulations are inconsistent in

their requirements. The commission is concerned that such inconsistency 
unintentionally

sets an unlevel playing field for persons having to comply with the notice

provisions and provides disparate levels of information conveyed to owners

and interest holders of affected property without justification based on human

health and environmental effects. Further the commission is concerned that

the existing rules do not consistently address "community right to know" issues.

The commission desires that the process be open to the owners and interest

holders of affected property in order that inconsistent degrees of public

notice will not be viewed as suppressing information which could ultimately

lead to undermining public trust in risk-based corrective action programs.

These considerations have led the commission to reject the status quo and

 propose standard notification provisions.

C. Landowner Concurrence for Physical and Institutional Controls The commission

considered: (1) not requiring landowner concurrence for physical and 
institutional

controls, and (2) requiring written landowner concurrence for physical and

institutional controls.

The commission considered not requiring landowner concurrence for the placement

of physical and institutional controls. However, there are several compelling

reasons to require landowner concurrence. First, landowners may able to argue

that the placement of a physical or institutional control without their consent

is a taking. Therefore, requiring landowner consent should avoid unnecessary

litigation of takings issues and is consistent with the philosophy of protecting

and preserving private real property rights. Second, since the proposed rule

has expanded opportunities to utilize physical and institutional controls

to prevent exposure, landowner participation is critical to ensure that the

controls will be maintained. Written evidence that the landowner agrees to

the placement of the control and the conditions surrounding the control better

assures the control will be protective of human health and the environment

over the long term. Hence, the commission selected the second option.

With regard to the timing of the concurrence, the commission considered:

(1) requiring the concurrence to be provided in the response action plan,

and (2) allowing the concurrence to be obtained after agency approval of a

response action plan. The commission anticipates that requiring landowner

concurrence before agency approval of a response action plan could cause 
unnecessary

delays in cleanups. Additionally, if the commission ultimately does not approve

the submitted response action plan, the person may be compelled to go back

to the landowner and negotiate concurrence for different controls, adding

further delay to the project. The commission determined that allowing 
concurrence

to be obtained during the implementation phase of the response action offers

the most efficient process. Moreover, the commission believes that if the

person approaches the landowner with a response action plan approved by the

agency, the person will have greater credibility when approaching a landowner

for concurrence. For these reasons the commission selected the second 
alternative.



D. Risk and Hazard Criteria The commission considered: (1) maintaining

the current rule language which may mislead parties to believe there is a

carcinogenic risk level range, and (2) using a single carcinogenic risk level

value. Experience shows that the risk range approach essentially hinders the

corrective action process. Projects are delayed while parties argue concerning

what the acceptable risk level will be for a site. The commission wants to

ensure that the level of protectiveness is a consistent measure in all 
situations

and avoid non-productive disputes. The commission does not intend to impart

flexibility in the rule regarding the level of protection that must ultimately

be achieved, but rather intends to impart a high degree of flexibility in

how that level of protectiveness is actually achieved. Additionally, the 
proposed

rule does not utilize a baseline risk assessment process. Rather than measuring

the risk represented by the concentration of a chemical of concern at an 
affected

property, and determining the suitability of that risk, the proposed rule

back calculates a protective concentration level from a defined risk level.

In the opinion of the commission, a base-line risk assessment process is 
relatively

incompatible with the proposed rule because the rule does not focus on the

management of unacceptable risk, but rather on the exceedence of protective

concentration levels. Therefore, the commission chose to set a single 
carcinogenic

risk level. This should reduce disagreements and transaction costs, as well

as lead to earlier completion of response actions.

Once the commission made that decision, it had to decide what the single

carcinogenic risk level would be. The US EPA has established an acceptable

 carcinogenic risk range of 1 x 10<sup>-6</sup> to 1 x 10<
sup>-4</sup>. To be consistent with this well accepted risk range,

the commission considered three alternatives: 1) 1 x 10<sup>

-6</sup>, 2) 1 x 10<sup>-5</sup>, and 3) 1 x 10<sup>

-4</sup>. Although no clear pattern has yet to emerge, the US EPA appears

to generally seek remediation goals for carcinogenic chemicals of concern

at Superfund sites that ensure individual lifetime risks of less that 1 x

10<sup>-6</sup> and cumulative excess risks that do not

 exceed 1 x 10<sup>-4</sup>. In some cases, the US EPA has

determined risks to be acceptable when the maximally exposed individual had

an estimated cancer risk in the range of 1 x 10<sup>-4</>.



For the proposed rule, the commission has revised the exposure pathways

in the existing rules that persons will be required to evaluate to ensure

consistency and to ensure that all of the potentially significant individual

exposure pathways are addressed and combined in an appropriate manner. When

exposure pathways are combined, the level of conservatism factored into each

individual exposure pathway is compounded. The commission was concerned that

maintaining a 1 x 10<sup>-6</sup> risk level and adding

the combined exposure pathways would result in an inappropriate level of 
conservatism.

Additionally, the proposed rule would require the use of standard conservative

exposure factors in the calculation of protective concentration levels. 
Therefore,

because the significant exposure pathways would be combined in a more 
conservative

manner, and the fact that conservative exposure factors would be required,

the commission determined that the use of a single carcinogenic risk level

of 1 x 10<sup>-5</sup> would be necessary to provide an

appropriate balance to these conservative aspects of the proposed rule.



The commission has determined that the highest acceptable level for cumulative

carcinogenic risk is 1 x 10<sup>-4</sup>. Therefore, the

 commission considered setting the risk level at 1 x 10<sup>

-4</sup> for individual carcinogens. However, the commission notes three

reasons for rejecting this alternative. First, the commission desires to allow

the Tier 1 protective concentration levels to be used in some respects as

screening values to determine which chemicals of concern will need to be 
addressed

in a response action in order the expedite site evaluations. In order for

the Tier 1 protective concentration levels to be used as a screening tool,

there must be sufficient buffer incorporated into those levels of protectiveness

to protect against the effects from exposure to multiple carcinogens without

exceeding the limits of acceptable cumulative risk. If the individual 
carcinogenic

risk level is set at 1 x 10<sup>-4</sup>, then the level

of protectiveness for each chemical of concern is set at the minimum acceptable

level of protectiveness. Therefore, there would be no buffer to account for

cumulative effects which would severely limit the utility of the Tier 1 
protective

concentration levels for screening purposes. Second, cumulative risk evaluations

add complexity to the process. If the commission adopted a 1 x 10<sup>

-4 </sup>risk level, then cumulative risk evaluations would have to be conducted

at all sites which have more than a single carcinogen. Under the proposed

rule, such cumulative evaluations would only need to be specifically conducted

when there are more than 10 carcinogens. In order to increase efficiency,

the commission decided to use procedures which reduce the frequency of 
cumulative

risk evaluations. Third, if 1 x 10<sup>-4</sup> were set

as the risk level, the commission would then require cross-media cumulative

risk evaluations. Historically, such evaluations have been difficult for the

regulated community to conduct and for the agency to evaluate and have often

resulted inefficient uses of resources. This cross-media risk evaluation 
requirement

would likely off-set any apparent benefit to using a 1 x 10<esup>

-4</sup> risk level.

The commission originally considered options which would avoid the need

to evaluate cumulative effects from exposure to multiple chemicals of concern

at an affected property when setting protective concentration levels. The

commission considered setting the carcinogenic risk level at 1 x 10<sup>

-5</sup> for carcinogens and the hazard quotient at 0.2 for noncarcinogens.

The commission determined that if more than 10 carcinogenic chemicals are

present at an affected property, which is common, then the minimum acceptable

risk level of 1 x 10<sup>-4</sup> could be exceeded, in

which case the affected property would be unprotective. Conversely, setting

the hazard quotient at 0.2 is severely restrictive in situations where there

are only one or two noncarcinogens present at an affected property. Therefore,

the commission decided that the most reasonable solution is to set the 
carcinogenic

risk level at 1 x 10<sup>-5</sup>, and set a cumulative

threshold of 1 x 10<sup>-4</sup>. For noncarcinogens, the

commission determined that the best course of action was to use the status

quo hazard quotient of 1, and set a hazard index of 10 to account for cumulative

 effects.

The commission considered two alternatives for the hazard index for 
noncarcinogens:

(1) setting the hazard index at 1 (status quo), and (2) setting the hazard

index at 10. When the hazard index is evaluated, the most scientifically 
defensible

procedure is to only consider the cumulative effects of those chemicals of

concern which act on the same target organ. However, this is a very 
sophisticated

evaluation which is difficult to implement. There is significant technical

debate as to the target organs affected by individual chemicals of concern,

the nature of those effects, and the level of synergistic or antagonistic

interplay between chemicals of concern when in the presence of one another.

Therefore, in order the simplify and streamline evaluations, the commission

has chosen a conservative approach of adding across all chemicals of concern

regardless of target organs affected. Additionally, the noncarcinogenic toxicity

factors that the US EPA establishes are based on conservative assumptions.

The overlapping conservatism in adding across chemicals of concern regardless

of target organs and the conservatism inherent to the toxicity factors led

the commission to the conclusion that using a hazard index of 1 would be 
inappropriate.

Therefore, the commission has chosen to propose a hazard index of 10.

E.Mandatory Exposure Pathways with Prescribed Points of Exposure vs. Site

 Specific Pathways Procedures for evaluation of exposure pathways are a critical

element in the design of a risk-based corrective action program. To have 
environmental

risk, there must be chemicals present at unprotective concentrations and there

must be potential for human and/or ecological receptor exposure to those 
chemicals.

In considering requirements for the evaluation of exposure pathways, the 
commission

considered: (1) the site-specific determination of exposure pathways through

development of a conceptual site model, and (2) establishing mandatory and

contingent exposure pathways by rule. Under the VCP and PST, a conceptual

exposure model is used as a substitute for a base-line risk assessment to

identify relevant exposure pathways while screening out others on a site-
specific

basis. However, because there are no standard criteria for determining the

future applicability of exposure pathways, site-specific evaluation often

delays remedial actions as the agency and responsible persons debate the 
accuracy

of the conceptual exposure model and the applicable exposure pathways. In

order to promote consistency, to expedite corrective action, and to ensure

adequate protection for future as well as current conditions, the commission

has chosen to establish minimum mandatory and contingent exposure pathways

that must be evaluated at all affected properties. The commission believes

that this approach will result in no net significant difference in the exposure

pathways that the commission would require for base-line risk assessments;

rather the same endpoints are reached, but in a more expeditious manner. This

approach will ensure that adequate response actions are taken to address 
unprotective

concentrations of chemicals of concern in the soil and groundwater.

F. Points of Exposure The commission evaluated two point of exposure options:

(1) not setting prescribed locations for points of exposure, and (2) setting

prescribed locations for points of exposure. One of the primary goals of the

proposed rule is to establish performance-based rules which establish the

protective objectives that must be met, but which allow flexibility in how

those objectives are met. In order to provide a meaningful performance-based

response objective, two attributes must be clearly specified. First, the process

for determining the concentration of a chemical of concern to which humans

and ecological receptors can be safely exposed must be defined. Second, the

location within an environmental medium (i.e., point of exposure) where 
comparison

with the protective concentration levels will be performed must also be 
specified.

The commission's experience has shown that the existing rules, which do not

adequately detail criteria for setting points of exposure, cause disagreements

and delay, potentially compromising the efficiency of the corrective action

process. Further, the lack of objective criteria on which to base decisions

has led to criticism of the inconsistency in setting points of exposure. 
Detailed

criteria for setting points of exposure will accelerate the corrective action

process by clearly stating the expectations of the commission. The commission

anticipates that any additional costs realized by corrective action plans

meeting the point of exposure requirements of the proposed rule will be balanced

by the acceleration of the corrective action process, and the anticipated

technological advances that are more likely to evolve in the presence of a

constant target. Eliminating delays and setting detailed point of exposure

criteria serves human health and the environment. It serves the economy because

it reduces the risk for waste, encourages technological development, and adds

certainty. Therefore, the commission will propose prescribed locations for

points of exposure.

G. Soil Points of Exposure The commission first considered adopting the

soil points of exposure contained in the existing Risk Reduction rules. The

current Risk Reduction rules do not specify a point of exposure for residential

soils, thus the potential for exposure is effectively "bottomless." The soil

point of exposure for non-residential soils is the upper two feet under Risk

Reduction rule Standard 2. The commission determined that the "bottomless"

aspect of the residential soil point of exposure provisions of the existing

Risk Reduction rules is unreasonable given that the likelihood for human 
exposure

drastically declines with depth, and beyond the depths of normal construction

the likelihood of human exposures is virtually non-existent. The PST rules

use a soil point of exposure depth criteria of 15 feet which is based on the

practical observation that most subsurface construction at residential 
properties

in Texas commonly involves installation of subsurface utilities, swimming

pools, shallow basements, and septic systems which are typically confined

to within the upper 15 feet of the subsurface. The basis of this 15 foot 
assumption

is also generally consistent with the soil points of exposure depths 
incorporated

in corrective action regulations for other states. During or after this 
excavation

work, it is reasonable that any of this soil could be spread at ground surface

where exposure could occur. The commission recognized that some would perceive

this to be a very conservative assumption, but given that institutional controls

would not be required under the proposed rule for residential-based cleanups,

there would be no notice to residents that chemicals of concern would be present

within typical construction zones. Therefore, the commission decided this

position is reasonable and proposes to set the point of exposure to soils

at residential sites to 15 feet.

The commission also evaluated the alternatives of using the 2 foot soil

point of exposure criteria established in the existing Risk Reduction rules

for commercial/industrial properties, as well as the 15 foot soil point of

exposure criteria incorporated into the PST rules for commercial/industrial

land use. The commission decided that a depth criteria of 15 feet for 
commercial/industrial

sites would be unnecessarily costly under the proposed rule because deed 
notification

is required for all affected properties where the response action is based

on commercial/industrial land use which would provide notice that chemicals

of concern are present at the affected property. However, the commission also

determined that small quantities of soil that may be excavated during routine

maintenance of subsurface utilities may be periodically brought to ground

surface and left. The 2 foot criteria of the existing Risk Reduction rule

does not provide adequate working depths or adequate coverage of common depths

of subsurface utilities, therefore the commission will propose a depth of

5 feet for commercial/industrial properties. The commission evaluated the

potential for the proposed 5 foot depth on properties currently regulated

under the 2 foot criteria of the existing Risk Reduction rules to put an undue

economic impact on the regulated community. The commission determined that

under the existing Risk Reduction rules, the soil-to-groundwater criteria

typically drives corrective action. Since the soil-to-groundwater criteria

are not limited to 2 feet and extend all the way to groundwater, the 2 foot

criteria generally does not limit many actions. Additionally, the 5 foot 
criteria

is a relaxation of the existing PST rules. Therefore, the commission determined

that there should be not net undue burden as a result of proposing the 5 foot

provision.

H. Changes to Default Exposure Factors The commission evaluated several

alternatives for handling requests to changes the default values for the 
exposure

factors: exposure duration, exposure frequency, and averaging time. These

factors reflect the use characteristics of a property which can significantly

influence the calculated protective concentration level. For example, how

many years a property is used, how many days per year, and how many hours

per day a property is used is very important. The less a property is used,

the less exposure is occurs, and therefore, the higher the concentration of

chemical of concern can be and remain protective.

The commission considered: (1) to not allow changes to these default exposure

factors, (2) to allow changes, but require the commission to approve it, (3)

allow changes, but require the Executive Director to approve it, (4) allow

changes, but require the staff to approve it, and (5) allow changes, but 
establish

screening criteria to determine on a case-by-case basis if it would be approved

by the commission, the Executive Director, or the staff. The commission 
determined

that there is a basis to allow changes to these default exposure factors based

on land use policy considerations. The commission also determined that to

establish criteria for option (5) would be extremely difficult, arbitrary,

and sites could be inappropriately classified and that controversial matters

related to land use policy could be decided at an inappropriate level of agency

authority.

In a commission work session, the commission decided that it would be too

much of an administrative burden to require such items to be routinely handled

by placement on the commission's agenda. The commission also determined that

the nature of such decisions centers on the current and planned use patterns

for an affected property. As such the commission determined that these decisions

are primarily policy in nature. Therefore, to avoid inconsistent policy 
decisions,

and to ensure the consideration of such policy issues at the appropriate level

of authority within the agency, the commission decided not to give staff the

discretion to approve these requests. The commission decided that these requests

should be approved by the Executive Director. The Executive Director's decision

can be appealed to the commission through the use of a Motion for 
Reconsideration.



I. Groundwater Classification The legislature has described the groundwater

protection policy for the state in Texas Water Code sec.26.401 by stating

 that:

The legislature determines that, consistent with the protection of the

public health and welfare, the propagation and protection of terrestrial

and aquatic life, the protection of the environment, the operation of existing

industries, and the maintenance and enhancement of the long-term economic

health of the state, it is the goal of groundwater policy in this state that

the existing quality of groundwater not be degraded. This goal of nondegradation

does not mean zero-contaminant discharge. It is the policy of the state that:

(1) discharges of pollutants, disposal of wastes, or other activities subject

to regulation by state agencies be conducted in a manner that will maintain

present uses and not impair potential uses of groundwater or pose a public

 health hazard; and (2) the quality of groundwater be restored if feasible.



Other than for the existing PST program, the commission has traditionally

classified groundwater as either a current or potential groundwater supply

or not a current or potential groundwater supply. A current or potential 
groundwater

supply is one defined as having total dissolved solids content of less than

or equal to 10,000 milligrams per liter (mg/l) that produces water in usable

quantities, typically 150 gallons per day. The commission considered maintaining

the status quo or developing additional classifications of groundwater. The

commission decided to establish an additional class of groundwater due to

the increased reliance on exposure prevention approaches in the proposed rule

and the resulting concern that the most valuable groundwaters in the state

called for a pollution cleanup approach.

Proposed class 2 and class 3 groundwaters will be the equivalent of the

current definitions for current and potential groundwater supply and not a

current or potential groundwater supply, respectively. The commission has

established the separate category of class 1 groundwater to ensure the 
protection

of the most valuable groundwaters in the state, and to provide some flexibility

for response actions in class 2 groundwater. The commission has considered

differing standards for class 1 groundwater including: 1) not having any limits

on depth, total dissolved solids content, and well production for sole-source

water supplies; 2) only requiring well production of 150 gallons per day on

a sole-source water supply; and 3) lowering the total dissolved solids content

to 1,000 mg/l for high-resource value groundwater. The commission modified

the qualifications for class 1 to those proposed because the commission wants

to establish practical criteria for these special groundwater-bearing units.



The legislature also "recognizes the important role of the use of the best

professional judgment of the responsible state agencies in attaining the 
groundwater

goal and policy of this state." This three part groundwater classification

system used in conjunction with the associated soil and groundwater response

objectives presented in Subchapter D of the proposed rule represent the 
commission's

best professional judgment for an appropriate overall program taking into

account all relevant factors such as protection of human health and the 
environment,

increasing demands for groundwater resources, the practicality of groundwater

restoration, the limited corrective action resources, incentives for pollution

prevention and timely response actions, the applicability of exposure prevention

response actions, and maintaining the economic vitality of the state to best

achieve the groundwater goal and policy stated by the legislature.

J. Groundwater Response Objectives In determining groundwater response

objectives, the commission considered the following issues: (1) requiring

cleanup of all groundwater to protective concentration levels; (2) establishing

plume management zones; and (3) modifying existing requirements for non-aqueous

phase liquids. Initially, the commission considered requiring cleanup of all

affected groundwater to the drinking water levels, but moved from this position

because this groundwater response objective is more stringent than existing

regulation. Also, it does not recognize technical and financial limitations.

It does not recognize that all groundwater impacts do not represent the same

threat to human health and the environment, and therefore, do not warrant

the same level of restoration. Finally, it does not recognize the potential

effectiveness of exposure prevention response actions. The commission has

determined that allowing the use of exposure prevention response actions in

certain situations is consistent with existing regulations and practices,

protective of human health and the environment, and may foster the initiation

of more response actions because such response actions are often more feasible

to implement. Therefore, the commission chose not to require pollution cleanup

for all groundwater impacts.

To implement the exposure prevention response objectives, the commission

 determined that the most practical approach was to establish plume management

zones which will be managed such that exposure does not occur and groundwater

impact is minimized. The commission considered basing the use of these plume

management zones on: (1) geographic locations, or (2) strictly on site-specific

considerations. The commission considered establishing industrial regions

within which the commission would allow the use of exposure prevention in

a regional context. Due to the inherent difficulties in establishing these

industrial regions and the potential to create inequitable response objectives

as a function of boundaries for industrial regions which could be perceived

as arbitrary, the commission chose not to adopt this alternative. Additionally,

limiting the use of plume management zones to industrial regions did not 
recognize

the fact that such practices in other non-industrial regions may be appropriate.

Therefore, the commission determined that the appropriateness for plume 
management

zones is best determined considering site-specific factors.

The most important site-specific factor is groundwater classification.

The commission evaluated various approaches for determining how groundwater

classification would be used in conjunction with plume management zones. The

commission evaluated: (1) allowing plume management zones for all classes

of groundwater, or (2) restricting the use of plume management zones to only

certain groundwater classes. The commission defined class 1 groundwater as

a primary groundwater resource. Class 1 groundwater is a valuable natural

resource, is a current public water supply for many large municipalities,

and has a high probability of future use in many areas of the state. Thus,

the commission concluded that the potential use of plume management zones

should be restricted to class 2 and 3 groundwaters because public water supplies

are not as large an issue. The commission determined that this would ensure

an effective balance between pollution cleanup and exposure prevention. The

allowance of plume management zones is consistent with current trends to 
incorporate

natural attenuation as an appropriate groundwater response action while 
considering

site-specific factors.

The commission considered three alternatives concerning size limitations

for plume management zones: (1) not to allow any plume migration beyond the

current health-based limit of the plume; (2) to allow plume migration up to

a specified distance; and (3) to allow plume migration throughout any area

covered by an institutional control. Out of the three alternatives, the 
commission

is proposing to allow plume migration up to a specified distance because this

alternative provides the best balance between the protectiveness of pollution

cleanup and the economy of exposure prevention. The commission proposes to

limit plume management zones to a maximum of 500 feet beyond the current limit

of the health-based plume. The 500 foot limit for the plume management zone

was the subject of many comments on the conceptual document, some arguing

that the 500 foot limit was too much, whereas others argued that an 
institutional

control was adequate in that the commission should not set specified limits.

The commission's proposal to use a 500 foot limit was the commission's best

professional judgement as the best balance between pollution cleanup and 
exposure

prevention. Also, use of 500 feet to evaluate compliance with groundwater

standards is currently allowed in the MSW rules.

When examining the removal of non-aqueous phase liquids, the commission

considered two alternatives relative to: (1) require non-aqueous phase liquids

to be removed to the maximum extent technically practicable (status quo) or

(2) provide screening criteria by which persons could demonstrate that the

removal of non-aqueous phase liquids is not necessary to protect human health

and the environment. Due to the fact that some non-aqueous phase liquids are

not a threat to human or ecological receptors and may occur where they do

not present any objectionable characteristics (e.g., odor or taste) or make

a natural resource unfit for use, the commission is proposing criteria to

limit the requirement to remove non-aqueous phase liquids in appropriate 
situations.



K. Soil Source Area Response Objectives The process used to define soil

concentrations which will be protective of groundwater is an important policy

decision. At many affected properties, soil-to-groundwater protective 
concentration

levels will be the driving protective concentration levels for defining the

volume of soils which must be removed, decontaminated, and/or controlled in

some fashion. In considering alternatives, the commission distinguished between

two scenarios. The first instance involved soils overlying uncontaminated

groundwater and class 1 groundwater. The alternatives consist of allowing

soil sources to potentially contaminate these groundwaters while requiring

an institutional control to prevent exposure to the groundwater, or requiring

that soil sources be addressed to control potential releases to the underlying

groundwater. For uncontaminated groundwater and class 1 groundwater, a pollution

cleanup approach is proposed to preserve future use of these resources. If

groundwater is presently uncontaminated, then the soil source area should

be removed, decontaminated, and/or controlled to the extent necessary such

that the groundwater does not become contaminated over time. Groundwater in

the state is an extremely valuable and limited resource impacting the state's

economic well-being. Since the response objective for contaminated class 1

groundwater is to restore it to levels suitable for use as a drinking water

supply, the leaching of chemicals of concern from a soil source area must

be reduced to levels which will allow this objective to be attained. The 
commission

considers it imperative to protect uncontaminated groundwater supplies to

assure that present uses of uncontaminated and class 1 groundwaters are 
maintained,

potential uses are not impaired, and human health and the environment are

protected.

The second instance involved soils overlying affected class 2 and class

3 groundwater. Pollution cleanup and exposure prevention alternatives similar

to those referenced above were considered for soils overlying affected class

2 and class 3 groundwater. First, the soil source area could always be 
controlled,

regardless of the current condition of the underlying groundwater, such that

it does not serve as a continuing source of any contaminant migration to 
groundwater.

Second, the commission could require that the concentration of chemicals of

concern within class 2 groundwater below the soil source area not be allowed

to increase over time. Third, the soil source area could be controlled such

that concentrations of chemicals of concern could be to allowed to increase

just so long as protective concentration level is not exceeded at the 
groundwater

point of exposure.

The commission considers the exposure prevention approach under proposed

Remedy Standard B which potentially allows the use of alternate points of

exposure for affected class 2 and class 3 groundwater to be economically 
reasonable

and also protective. The commission is proposing flexibility with regard to

the degree of control required for soil source areas overlying currently 
contaminated

class 2 and 3 groundwater because such groundwaters are not sole source water

supplies. Such flexibility is not provided for soil source areas overlying

class 1 groundwater or uncontaminated groundwater. When a plume management

zone is allowed, groundwater points of exposure are not set beneath the soil

source area, but are alternatively set some distance downgradient from the

soil source area at the boundary of the plume management zone. In this 
situation,

the protective concentration levels must be met at the boundary of the plume

management zone and not in the groundwater located directly beneath the soil

source area. Concentrations which exceed protective concentration levels will

be allowed to remain in the groundwater in the intervening area between the

boundary of the plume management zone where the alternate points of exposure

are set and the soil source area. Therefore, it would be very difficult in

the field to determine whether leachate from overlying soils is resulting

in concentrations above the health-based protective-concentration levels within

the groundwater directly beneath the soil source area when higher concentrations

may already exist in the groundwater in accordance with the response objectives

for that same groundwater. However, the commission believes that it is important

to take a pollution prevention approach which requires the soil source area

to be controlled such that the level of chemicals of concern in the underlying

groundwater does not increase with time in order to minimize the ultimate

impact to class 2 groundwater as it is potentially a potable water source.



L. Financial Assurance The commission considered whether to require financial

assurance at all, require it for only maintaining physical controls or require

it for the entire costs of the response action. The commission is proposing

the financial assurance requirement so that adequate funds exist to ensure

the continued viability of a physical control in the event the person 
responsible

for maintaining the control cannot or is unavailable to do so. The commission

decided to require financial assurance for maintaining physical controls.

The commission rejected the alternative of requiring financial assurance for

the entire costs of the response action as unjustifiably expensive considering

the risk. It should be noted that several waste programs already require 
financial

assurance for closure and those specific program requirements would supersede

the proposed financial assurance requirements in this rule. It is important

to note that the financial assurance is for maintaining the physical control

and would not cover the cost of the response action or of any corrective action

in the event a physical control fails. Although this financial assurance 
requirement

will be a new requirement, financial assurance could have been required under

the existing rules. The commission now believes financial assurance is necessary

and provides balance because the state has very limited resources and by this

proposal is assuming greater risks due to the increased reliance on control

measures.

M. Self-Implementation Under the current Risk Reduction rules, Standards

1 and 2 are self-implementing. The PST rules allow for self-implementation,

although it has rarely been used because preapproval is required to receive

reimbursement from the state. In the development of the proposed rule, the

commission has always intended allowing Remedy Standard A to be self-
implementing

because of the success such as expedient cleanup achieved by the current program

with regard to self-implementation. Due to the complexity of response actions

under Remedy Standard B, the commission considers agency preapproval of the

response action to be appropriate. In both conceptual documents, the commission

proposed allowing self-implementation for Remedy Standard A and not for Remedy

Standard B. There appears to be general agreement with the commission's position

that self-implementation should not be allowed for Remedy Standard B since

more technical judgement is involved. There was some concern voiced that self-
implementation

should not be allowed under Remedy Standard A, and that the agency should

have some method to ensure that a response action is actually occurring. Based

on these concerns, the commission included the requirement for a Self-
Implementation

Notice, the update reports, and the deed recordation for self-implementing

response actions which will take in excess of 10 years to complete.

N. Deed Notices/Restrictive Covenants The existing Risk Reduction rules

require deed notices for any concentration of chemicals of concern remaining

in environmental media above background levels. Under the current PST rules,

deed recordation is evaluated on an affected property-by-affected property

basis and deed recordation is not always required for commercial/industrial-
based

cleanups. Under the VCP, a recorded Certificate of Completion is allowed in

lieu of deed recordation and is not required for cleaned up areas outside

the site entered into the program when residential cleanups are achieved without

controls. The commission considered the existing requirements when formulating

possible alternatives for deed notices/restrictive covenants. From the existing

requirements the commission developed a third alternative, which is to not

require deed recordation for residential properties that do not use physical

controls (Remedy Standard A) but always require deed recordation for 
commercial/industrial

properties. The proposed rule does not require deed notices/restrictive 
covenants

for properties which meet residential health-based protective concentration

levels without controls because these levels are fully protective of human

health and the environment for all uses without restriction. The proposed

rule does require a person to use a deed notice/restrictive covenant to notify

future owners when properties are remediated to commercial/industrial levels

or when physical controls are used at residential properties. The commission

is requiring these notices/restrictive covenants to ensure that future owners

are aware of any potential limitations on the use of the property and potential

exposure if those limitations are not followed.

O. Ecological Risk Assessment A lthough the existing rules require consideration

of ecological receptors, the provision has never been effectively or 
consistently

implemented with the exception of the State Superfund program. Thus, the 
commission

undertook to develop a reasonable process by which persons could meet the

existing requirement to evaluate impacts to ecological receptors. The 
alternatives

the commission considered to achieve this goal were: (1) to exclusively use

guidance documents based upon a tiered approach to consider ecological 
receptors;

(2) to include specific requirements in the proposed rule to consider ecological

receptors; and (3) to develop a combination of guidance and rule. The commission

is proposing to develop a combination of guidance and rule. The proposed rule

will establish when an ecological risk assessment is necessary. Because the

science of ecological risk assessments is still evolving, the commission is

providing a tier approach in guidance rather than rule. The guidance will

provide methods to complete an ecological risk assessment which may change

over time as the science develops. The primary impediment to assessing 
ecological

risks to this point has been that scientific studies have focussed on human

health, so the data on ecological receptors is still developing. In addition,

humans are only one species. Hundreds of species of ecological receptors could

be present at an affected property. Although there is not as much data for

ecological receptors as human receptors, the commission is intent on protecting

the environment. Since the beginning of this rulemaking, the commission has

been clear that it will require ecological risk assessments to be performed

when warranted by the conditions at an affected property. The method for doing

so has been a subject of substantial debate. The commission determined that

exclusion criteria should be included in the Tier 1 checklist and be part

of the rule. The commission considers the exclusion criteria checklist to

be an excellent mechanism for initially determining if ecological receptors

may be at risk. This is a reasonable compromise resulting from a desire to

protect ecological receptors without creating an overly burdensome process

subject to rapidly evolving science that would likely increase costs and produce

questionable benefit.

TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact

Assessment for this rule pursuant to Texas Government Code Annotated sec.

2007.043. The specific purpose of the proposed rule is to create one risk-based

rule that will guide affected property assessments, notifications, and response

actions through the establishment of a consistent, reliable program that 
encourages

the cost-effective corrective action for affected properties while ensuring

the adequate protection of human health and the environment. The proposed

rule will substantially advance this specific purpose through the use of a

tiered process for the establishment of health-based protective concentration

levels, by allowing the use of site-specific data, and by providing flexibility

in selection and design of response actions. Promulgation and enforcement

of the proposed rule will not burden private real property which is the subject

of the rule because the rule will establish reasonable, cost-effective criteria

to address contamination of environmental media that represents a real and

substantial threat to human health and safety.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has reviewed

the proposed rulemaking and found that the rules are subject to the Coastal

Management Program and must be consistent with all applicable goals and policies

 of the Coastal Management Program (CMP).

The commission has prepared a consistency determination for the proposed

rules pursuant to 31 TAC sec.505.22 and has found that the proposed rules

are consistent with the applicable CMP goals and policies. The following is

a summary of that determination. The CMP goal applicable to the proposed rules

is the goal to protect, preserve, restore, and enhance the diversity, quality,

quantity, functions, and values of coastal natural resource areas. CMP policies

applicable to the proposed rules include the administrative policies and the

policies for specific activities related to construction and operation of

solid waste treatment, storage, and disposal facilities. Promulgation and

enforcement of these rules is consistent with the applicable CMP goals and

policies because the proposed rules will establish clear, consistent standards

to guide the assessment and cleanup of contaminated properties from site 
investigation

through post-response action care. The rules will require persons conducting

response actions to ensure that the concentrations of COCs are protective

of human and ecological receptors. The new rules will result in an overall

environmental benefit across the state, including in coastal areas. In addition,

the proposed rules do not violate any applicable provisions of the CMP's stated

goals and policies.

The commission invites public comment on the consistency of the proposed

rules.

SUBMITTAL OF COMMENTS Written comments may be mailed to Bettie Bell, Texas

 Natural Resource Conservation Commission, 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 Rules Tracking Log Number 96106-
350-WS.

 Comments must be received by 5:00 p.m.on July 22, 1998. For further 
information,

please contact Chet Clarke, Petroleum Storage Tank Division, (512) 239-2106;

Greg Tipple, Pollution Cleanup Division, (512) 239-2465; Scott Crouch, Voluntary

Cleanup Program, (512) 239-2486; or Clark Talkington, Waste Policy and 
Regulations

 Division, (512) 239-6731.

The commission will hold two public hearings. A public hearing on the proposal

will be held on July 6, 1998 at 10:00 a.m. in Building E, Room 201S, of Texas

Natural Resource Conservation Commission complex, located at 12100 North IH-35,

Park 35 Technology Center, Austin. The second public hearing will be held

on July 9, 1998 at 1:00 p.m., located at the City of Houston Pollution Control

Building Auditorium, 7411 Park Place Boulevard, Houston, Texas. The hearings

are structured for the receipt of oral or written comments by interested 
persons.

Individuals may present oral statements when called upon or order of 
registration.

Open discussion within the audience 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.






Subchapter A. General Information


30 TAC sec.sec.350.1-350.5

STATUTORY AUTHORITY. The new rules are proposed under Texas

 Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the new rules are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the new rules is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The new rules affect Texas Water Code, Chapter 26, and Health and Safety

Code Chapter 361.



sec.350.1. Purpose, Scope, and Process.





(a)Purpose. This chapter specifies the information and procedures

necessary to demonstrate compliance with the Texas Risk Reduction Program.

This program provides a consistent and reasonable risk-based corrective action

process directed toward protection of human health and the environment balanced

with the economic welfare of the citizens of this state. This program uses

a risk-based approach to help focus investigations, to determine appropriate

protective concentration levels, and to set reasonable response objectives

that will protect human health and the environment and preserve the active

and productive use of land. The provisions of this chapter in no way prohibit

actions which should be taken by the person to mitigate emergency situations,

abate an on-going release, or to stabilize or abate the spread of released

 chemicals of concern.


(b)Scope. The requirements of this chapter will, when adequately

carried out, assure protection of human health and the environment from 
potential

exposure to unprotective concentrations of chemicals of concern. General 
procedures

based on scientific principles are provided or referenced by these rules so

that specific numeric protective concentration levels can be generated which

are protective for both human and ecological receptors. The commission will

periodically review the general procedures and revise these regulations as

 necessary.


(c)Process.

(1)The person shall conduct an affected property assessment,

classify groundwater, determine land use, and notify affected property owners

in accordance with this subchapter and Subchapter B of this chapter (relating

to Affected Property Assessment).

(2)The person shall determine critical protective concentration

levels in accordance with Subchapter C of this chapter (relating to Development

of Protective Concentration Levels) and define any soil and/or groundwater

protective concentration level exceedence zones.

(3)The person shall develop a remedy for soil and/or

groundwater protective concentration level exceedence zone(s) capable of 
attaining

the response objectives under Remedy Standard A or B in accordance with 
Subchapter

D of this chapter (relating to Remedy Standards).

(4)The person shall develop and submit the reports required

in Subchapter D of this chapter (relating to Remedy Standards) which contain

the information specified for each report in Subchapter E of this chapter

(relating to Reports).

(5)The person shall implement the response action, document

conformance with the response objectives, file any required deed 
notices/restrictive

covenants, perform any required post-response action care, and establish any

required financial assurance in accordance with Subchapter D of this chapter

(relating to Remedy Standards).



sec.350.2. Definitions and Acronyms.




(a)Definitions.

(1)Affected property - The entire area (i.e., on-site and

off-site; including all environmental media) which contains unauthorized 
releases

of chemicals of concern at concentrations equal to or greater than the critical

Tier 1 protective concentration level applicable for the land use (i.e., 
residential

or commercial/industrial). To define an affected property, a class 1 groundwater

resource is assumed, regardless of the actual class of groundwater present

at the site.

(2)Alternate point of exposure - A location other than

the prescribed point of exposure where an individual or population will be

assumed to have a reasonable potential to come into contact with chemicals

of concern based on property-specific considerations.

(3)Anthropogenic background - The concentration level

of chemicals of concern that are present in the environment due to the 
activities

of human beings and are not the result of unauthorized use or releases of

waste or products, or of industrial activities (e.g., non-site specific sources

such as lead from automobile emissions, or arsenic from use of defoliants).

There are some commonalities regardless of the activity; specifically, the

chemicals of concern are present over large areas (tens of square miles up

to hundreds of square miles) and the concentration levels are generally low.



(4)Attenuation action level - The maximum concentration

of a chemical of concern which can be present at an attenuation monitoring

point and not result in levels which will exceed the applicable source medium

protective concentration level at the point of exposure over time.

(5)Attenuation monitoring point - A location between

the source area and the point of exposure within the migration pathway of

a chemical of concern which is used to verify the adequacy of a lateral 
transport

protective concentration level.

(6)Carcinogen - A chemical of concern which causes an

increased incidence of benign or malignant neoplasms, or substantially decreases

the time to develop neoplasms, in animals or humans (a chemical of concern

can act as both a carcinogen and a noncarcinogen).

(7)Carcinogenic risk level - The probability of development

of a neoplasm due to continuous lifetime exposure to a single carcinogen acting

through an individual or combined exposure pathway.

(8)Case narrative - The required deliverable for each

sample batch that discusses any anomalies in, or problems with, the data as

noted by the laboratory generating the data.

(9)Chemicals of concern - Any substance detected at an

affected property that has the potential to adversely affect ecological or

human receptors due to its concentration, distribution, and mode of toxicity.

Chemicals of concern include all of the following: solid waste, industrial

solid waste, municipal solid waste, and hazardous waste as defined in Texas

Health and Safety Code, sec.361.003; hazardous constituents as listed in

40 Code of Federal Regulations Part 261, Appendix VIII; constituents on the

groundwater monitoring list in 40 Code of Federal Regulations Part 264, Appendix

IX; constituents as listed in 40 CFR Part 258 Appendices I and II; pollutant

as defined in Texas Water Code, sec.26.001; hazardous substance as defined

in Texas Health and Safety Code, sec.361.003, and Texas Water Code sec.26.263;

regulated substance as defined in Texas Water Code sec.26.342 and sec.334.2

of this title (relating to Definitions); petroleum product as defined in Texas

Water Code sec.26.342 and sec.334.122(b)(12) of this title (relating to

Definitions for ASTs); other substances as defined in Texas Water Code 
sec.26.039(a);

and daughter products of the aforementioned constituents.

(10)Closure - The act of permanently taking a waste management

unit or facility out of service.

(11)Commercial/industrial land use - Any real property

or portions of a property not used for human habitation or for other purposes

with a similar potential for human exposure as defined for residential land.

Examples of commercial/industrial land use include manufacturing; industrial

research and development; utilities; commercial warehouse operations; lumber

yards; retail gas stations; auto service stations; auto dealerships; equipment

repair and service stations; professional offices (lawyers, architects, 
engineers,

real estate, insurance, etc.); medical/dental offices and clinics (not including

hospitals); financial institutions; office buildings; any retail business

whose principal activity is the sale of food or merchandise; personal service

establishments (health clubs, barber/beauty salons, mortuaries, photographic

studios, etc.); churches (not including churches providing day care or school

services other than during normal worship services); motels/hotels (not 
including

those which allow residence); agricultural lands and portions of government-
owned

land (local, state, or federal) that has commercial/industrial activities

occurring. Land use activities consistent with this classification have the

North American Industrial Classification System code numbers 11- 21 inclusive;

22 except 22131; 23 - 56 inclusive; 61 except 61111, 61121, and 61131; 62

except 62211, 62221, 62231, 62311, 62322, 623311, 623312, 62399, and 62441;

71 inclusive; 72 except 721211 and 72131; 81 inclusive; and 92 excluding 92214.



(12)Complete exposure pathway - A source medium or lateral

transport exposure pathway where a human or ecological receptor is exposed

to a chemical of concern via an exposure route (e.g., incidental soil ingestion,

inhalation of volatiles and particulates, consumption of prey, etc).

(13)Construction zone - The typical depth of construction

for an affected property considering the planned or historical installation

of subsurface utilities, foundations, basements, or other such subsurface

structures within the general region.

(14)Control - To apply measures such as capping or reversible

treatment methods and/or institutional measures such as deed notices or 
restrictive

covenants to prevent exposure to chemicals of concern. Control measures must

be combined with appropriate maintenance, monitoring, and any necessary further

response action to be protective of human health and the environment.

(15)Critical protective concentration level - The lowest

protective concentration level for a chemical of concern within a source medium

determined from all of the applicable human health exposure pathways as 
described

in sec.350.51 of this title (relating to General Requirements) considering

both carcinogenic and noncarcinogenic effects, and all applicable ecological

exposure pathways as required in sec.350.56 of this title (relating to 
Ecological

Risk Assessment and Development of Ecological PCLs).

(16)Critical Tier 1 protective concentration level -

A critical protective concentration level for a chemical of concern where

the human health protective concentration level is established under a Tier

1 evaluation as described in sec.350.55(b) of this title (relating to Tiered

Human Health PCL Evaluation), except for the protective concentration level

for the soil-to-groundwater exposure pathway which may be established under

Tier 1, 2, or 3 as described in sec.350.59(b)(2) of this title (relating

to Development of Human Health PCLs for Soil Exposure Pathways), and ecological

PCLs are developed, when necessary, in accordance with sec.350.56(d) of

this title.

(17)Cumulative carcinogenic risk - The aggregate risk

due to exposure of an individual human receptor to multiple carcinogens 
originating

from a single affected property and acting through an individual or combined

exposure pathway.

(18)Decontaminate - To apply a permanent and irreversible

treatment process to a waste or environmental medium so that the threat of

release of chemicals of concern at concentrations above the critical protective

concentration levels is eliminated.

(19)Discrete sample - A sample of an environmental medium

which is limited to a prespecified interval according to the environmental

media. A discrete soil/sediment sample interval may not exceed 6 inches in

length, unless the 6 inch interval is not adequate to obtain sufficient sample

volume to prepare samples for quality assurance/quality control requirements

 (e.g., split samples). In no instance may a discrete soil/sediment sample

interval exceed 1 foot in length or include the compositing of samples from

different sampling locations.

(20)Ecological benchmark - A state standard, federal

guideline, or other exposure level for a chemical of concern in water, sediment,

or soil that represents a protective threshold from adverse ecological effects.

An ecological benchmark may also be a toxicity reference value that is 
established

by the person based on scientific studies in the literature.

(21)Ecological hazard quotient - The ratio of an exposure

level to a chemical of concern to a toxicity value selected for the risk 
assessment

for that chemical of concern (e.g., a no observed adverse effects level).



(22)Ecological risk assessment - The process that evaluates

the likelihood that adverse ecological effects may occur or are occurring

as a result of exposure to one or more stressors.

(23)Ecological risk-based exposure limit - The concentration

of a chemical of concern at the point of exposure within an exposure medium

(e.g., soil, sediment, plants, groundwater, surface water, or air) which is

protective for ecological receptors as determined by procedures defined in

sec.350.56(d) of this title.

(24)Environmental medium - A material found in the natural

environment such as soil (including non-waste fill materials), groundwater,

air, surface water, and sediments, or a mixture of such materials with liquids,

sludges, gases, or solids, including hazardous waste which is inseparable

by simple mechanical removal processes, and is made up primarily of natural

environmental material.

(25)Exclusion criteria - Those conditions at an affected

property which preclude the need to establish a protective concentration level

for an ecological exposure pathway because the exposure pathway between the

chemical of concern and the ecological or human receptors is not complete.



(26)Exposure area - The smallest property surface area

within which it is believed that exposure to chemicals of concern by a receptor

would be limited under the most conservative, reasonable current or future

use scenario.

(27)Exposure medium - The environmental medium or plants

in which or by which exposure to chemicals of concern by ecological or human

receptors occurs.

(28)Exposure pathway - The course that a chemical of

concern takes from a source area to ecological or human receptors and includes

a source area, a point of exposure, and an exposure route (e.g., ingestion),

as well as a transport mechanism if the point of exposure is different from

the source area.

(29)Facility - The installation associated with the affected

property where the release of chemicals of concern occurred.

(30)Functioning cap - A low permeability layer or other

approved cover meeting its design specifications to minimize chemical of concern

infiltration and migration and whose design requirements are routinely 
maintained.



(31)Groundwater-bearing unit - A formation, group of

formations, or part of a formation which is saturated and has a hydraulic

conductivity greater than or equal to 1 x 10<sup>-6</sup>

centimeters/second.

(32)Groundwater production zone - The groundwater-bearing

unit which contributes water to a well. For example, if a well penetrates

four distinct groundwater-bearing units isolated by competent aquitards, but

the well is screened in only two of the units and has a competent annular

seal to isolate the other two units, then the groundwater production zone

consists of only the two units that contribute water to the well.

(33)Groundwater protective concentration level exceedence

zone - A protective concentration level exceedence zone within a groundwater-
bearing

unit as established in accordance with sec.350.57 of this title (relating

to Determination of Critical Groundwater PCLs and Critical Groundwater Lateral

Transport PCLs).

(34)Hazard index - The sum of two or more hazard quotients

for multiple noncarcinogens originating from a single affected property.




(35)Hazard quotient - The ratio of the level of exposure

of a noncarcinogen acting through an individual or combined exposure pathway

over a specified time period to a reference dose for the noncarcinogen derived

for a similar exposure period.

(36)Implementation procedures - The most current version

of Implementation of the Texas Natural Resource Conservation

Commission Standards via Permitting.

(37)Institutional control - A legal instrument placed

in the property records in the form of a deed notice or restrictive covenant

which indicates the limitations or the conditions on use of the property which

ensures protection of human health and the environment.

(38)Instrument detection limit - The concentration of

a chemical of concern above which 99% of the measurements made are attributable

to the sample.

(39)Judgmental sample - An investigative sample of an

environmental medium which is purposefully located based upon property-specific

information. These samples are biased and cannot be used for statistical 
analysis.



(40)Landscaped area - An area of ornamental, or introduced,

or commercially installed, or manicured vegetation which is routinely 
maintained.



(41)Lateral transport protective concentration level

- The concentration of a chemical of concern for a particular lateral transport

exposure pathway which can remain at the point of compliance within a source

medium and not result in levels which exceed the applicable source medium

protective concentration level at the point of exposure within the exposure

medium. For groundwater exposure pathways, this term is similar to the Alternate

Concentration Limit concept as employed by the U.S. Environmental Protection

Agency.

(42)Lateral transport exposure pathway - Exposure pathway

which requires the lateral transport of chemicals of concern to a specific

off-site or alternate point of exposure in order for exposure to occur.



(43)Long-term effectiveness - The ability of a remedy

to maintain the required level of protection of human health and the environment

over time.

(44)Lower explosive limit - The lowest concentration

of a vapor or gas in air that will produce a flash of fire when an ignition

source (heat, arc, or flame) is present.

(45)Method detection limit - The minimum concentration

of the chemical of concern that can be measured and reported with 99% confidence

that the analyte concentration is greater than zero as determined by a specific

laboratory method.

(46)Method quantitation limit - The lowest non-zero calibration

standard for the chemical of concern.

(47)Monitored natural attenuation - The use of natural

attenuation within the context of a carefully controlled and monitored response

action to achieve protective concentration levels at the point of exposure.



(48)Natural attenuation - The reduction in mass or concentration

of a chemical of concern over time or distance from the source of chemicals

of concern due to naturally occurring physical, chemical, and biological 
processes,

such as: biodegradation, dispersion, dilution, adsorption, and volatilization.



(49)Natural attenuation factor - The numerical value

which represents the natural attenuation (i.e., reduction) in chemical of

concern concentrations during transport from the source area to the point

of exposure. The natural attenuation factor is the concentration at the source

area divided by the concentration at the point of exposure. The natural 
attenuation

factor is always greater than or equal to 1 for the purposes of this rule.



(50)Naturally occurring background concentrations - The

concentration level of a chemical of concern in an area unaffected by use

or unauthorized release of waste or products, industrial activity, or any

other of man's activities.

(51)Noncarcinogen - A substance which causes adverse

effects other than the induction of benign or malignant neoplasms (a substance

can act as both a carcinogen and a noncarcinogen).

(52)Off-site - All environmental media which is outside

of the legal boundaries of the on-site property.

(53)On-site - All environmental media within the legal

boundaries of a property owned or leased by a person who has filed a self-
implementation

notice or a response action plan for that property or who has become subject

to such action through one of the agency's program areas for that property.



(54)Permanence/permanent/permanently - The property of

a response action which is capable of enduring indefinitely without posing

the threat of any future release of chemicals of concern above the critical

protective concentration levels established for the property.

(55)Physical barrier - Any structure or system, natural

or manmade, that prevents exposure or prevents migration of chemicals of concern

to the points of exposure.

(56)Physical control - A structure or hydraulic containment

action which prevents exposure to and/or migration of chemicals of concern

when combined with appropriate post-response action care to protect human

health and the environment. Examples of physical controls are caps, slurry

walls, sheet piling, hydraulic containment wells, and interceptor trenches.



(57)Plume management zone - The area of the groundwater

protective concentration level exceedence zone at the time of response action

plan submittal plus the area from the downgradient limit of the groundwater

protective concentration level exceedence zone to the downgradient alternate

groundwater point(s) of exposure.

(58)Point of compliance - The location within the groundwater-bearing

unit where conformance with the lateral transport protective concentration

level is determined.

(59)Point of exposure - The location within an environmental

medium where a receptor will be assumed to have a reasonable potential to

come into contact with chemicals of concern. The point of exposure may be

a discrete point, plane, or an area within or beyond some location.

(60)Prescribed points of exposure - The prescribed on-site

and off-site locations within an environmental medium as detailed in Subchapter

D of this chapter (relating to Remedy Standards) where an individual or 
population

will be assumed to have a reasonable potential to come into contact with 
chemicals

of concern from an affected property.

(61)Protective concentration level - The concentration

of a chemical of concern which can remain within the source medium and not

result in levels which exceed the applicable human health risk-based exposure

limit or ecological risk-based exposure limit at the point of exposure for

that exposure pathway. The protective concentration level may be adjusted

to a lower concentration due to the presence of multiple chemicals of concern

as discussed in sec.350.52(d) of this title (relating to Carcinogenic Risk

Levels and Hazard Indices for Human Health Exposure Pathways).

(62)Protective concentration level exceedence zone -

The lateral and vertical extent of all wastes and environmental media which

contain chemicals of concern at concentrations greater than the critical 
protective

concentration level determined for that medium, as well as, hazardous waste.

A protective concentration level exceedence zone can be thought of as the

volume of waste and environmental media which must be removed, decontaminated,

and/or controlled in some fashion to adequately protect human health and the

 environment.

(63)Reasonably anticipated exposure pathway - A situation

with a credible chance of occurrence in which an ecological or human receptor

may become exposed to a chemical of concern (i.e., complete exposure pathway)

without consideration of circumstances which are extreme or improbable based

on property characteristics.

(64)Remediation - The act of eliminating or reducing

the concentration of chemicals of concern in environmental media.

(65)Remove - To take waste or environmental media away

from the affected property to another location for storage, processing or

disposal in accordance with all applicable requirements. Removal is an 
irreversible

process which results in permanent risk reduction at an affected property.



(66)Residential land use - Property used for dwellings

such as single family houses and multi-family apartments, children's homes,

nursing homes, and residential portions of government-owned lands (local,

state or federal). Because of the similarity of exposure potential and the

sensitive nature of the potentially exposed population, day care facilities,

educational facilities, hospitals, and parks (local, state or federal) shall

also be considered residential.

(67)Response action - Any activity taken to comply with

these regulations to remove, decontaminate and/or control (i.e., physical

controls and institutional controls) chemicals of concern in excess of critical

PCLs in environmental media, including actions taken in response to releases

to environmental media from a waste management unit before, during, or after

closure.

(68)Risk-based exposure limit - The concentration of

a chemical of concern at the point of exposure within an exposure medium (e.g.,

soil, sediment, vegetables, groundwater, surface water, or air) which is 
protective

for human health as determined by procedures defined in Subchapter C (relating

to Development of Protective Concentration Levels). Risk-based exposure limits

are the fundamental risk-based values which are initially determined and used

in the development of protective concentration levels. Risk-based exposure

limits do not account for cumulative effects from exposure to multiple chemicals

of concern, combined exposure pathways, and cross-media or lateral transport

of chemicals of concern within environmental media.

(69)Sample batch - A group of samples, not to exceed

20 environmental samples, that are similar in matrix, and that are extracted,

or digested, at the same time and with the same lot of laboratory reagents.

This term also covers samples that do not require digestion or extraction.



(70)Sample quantitation limit - That concentration above

which a chemical of concern can be quantified with a specified degree of 
confidence

for a particular sample and includes the effects on the sample from all 
procedures

performed during preparation, extraction, and/or analysis which are in addition

to the standard method procedures. These additional procedures may include,

but are not limited to, the initial sample aliquot (volume) used in the 
analysis,

the moisture content of the sample, any dilution or concentration steps, etc.



(71)Sediment - Particulate material lying immediately

below surface waters such as bays, the ocean, rivers, streams, lakes, ponds,

or other similar surface water body (including intermittent streams). Dredged

sediments which have been removed from surface water bodies and placed on

land shall be considered soils.

(72)Soil protective concentration level exceedence zone

- A protective concentration level exceedence zone within the soil which may

extend down to a groundwater-bearing unit.

(73)Source area - The location of non-aqueous phase liquids

and/or the location of highest concentration of chemicals of concern, or the

location releasing the chemicals of concern. Generally, a source area is located

in the immediate vicinity of or below primary release sources (e.g., tanks,

pipelines, drums, lagoons, landfills, etc.).

(74)Source medium - An environmental medium containing

chemicals of concern which must be removed, decontaminated and/or controlled

in order to protect human health and the environment. The source medium may

be the exposure medium for some source medium exposure pathways.

(75)Source medium protective concentration level - The

concentration of a chemical of concern for an individual or combined source

medium exposure pathway which can remain within a source medium and protect

the point(s) of exposure within the exposure media. If multiple chemicals

of concern are present, then it may be necessary to make an adjustment to

account for the cumulative effects when setting the source medium protective

concentration level. If the adjustment for multiple chemicals of concern is

necessary, then the source medium protective concentration level for a COC

may be lower than the risk-based exposure limit for that COC.

(76)Source medium exposure pathway - An exposure pathway

in which the point of exposure to chemicals of concern is directly within,

above, or below a source medium. Source medium exposure pathways may involve

the transfer of chemicals of concern between media but lateral transport of

chemicals of concern is not required for exposure to occur (e.g., soil 
ingestion,

dermal contact with soil).

(77)Stressor - Any physical, chemical, or biological

entity that can induce an adverse response.

(78)Subsurface soil - The portion of the soil zone between

the base of surface soil and the top of the groundwater-bearing unit.

(79)Surface cover - A layer of artificially placed utility

material (e.g., shell, gravel).

(80)Surface soil - The soil zone extending from ground

surface to 15 feet in depth for residential land use and from ground surface

to 5 feet in depth for commercial/industrial land use; or to the top of the

groundwater-bearing unit, whichever is less in depth.

(81)Toxicity reference value - An exposure level from

a valid scientific study that represents a conservative threshold for adverse

ecological effects.

(82)Unauthorized release - The movement of chemicals

of concern into environmental media which is not allowed by state or federal

law, regulation, or permit.

(83)Waste control unit - A municipal or industrial solid

waste landfill, including those RCRA regulated units closed as landfills,

with an engineered cap and liner system which have been closed pursuant to

an approved closure plan or will be implemented pursuant to an approved response

action plan.


(b)Acronyms.

(1)APAR - Affected property assessment report

(2)AST - Above ground storage tank

(3)CFR - Code of Federal Regulations

(4)COC - Chemical of concern

(5)C<sub>sat</sub> - Theoretical soil

saturation limit

(6)DF - Dilution factor

(7)ERA - Ecological risk assessment

(8)ESL - Effects screening level

(9)foc - Fraction organic carbon

(10)gpd - Gallons per day

(11)HI - Hazard index

(12)HQ - Hazard quotient

(13)IDL - Instrument detection limit

(14)K<sub>d</sub> - Soil-water partition

 coefficient

(15)K<sub>oc</sub>- Octanol-water partition

 coefficient

(16)LCL - Lower confidence limit

(17)MCL - Maximum contaminant level

(18)MDL - Method detection limit

(19)MQL - Method quantitation limit

(20)MSW - Municipal solid waste

(21)MSWLF - Municipal solid waste landfill

(22)NAF - Natural attenuation factor

(23)NAPLs - Non-aqueous phase liquids

(24)NOAEL - No-observable adverse effects level

(25)OSHA - Occupational Safety and Health Administration



(26)PAH - Polycyclic aromatic hydrocarbon

(27)PCB - Polychlorinated biphenyl

(28)PCDD - Polychlorinated dibenzodioxin

(29)PCDF - Polychlorinated dibenzofuran

(30)PCL - Protective concentration level

(31)PCLE zone - Protective concentration level exceedence

 zone

(32)PEF - Particulate emission factor

(33)PEL - Permissible exposure limit

(34)POC - Point of compliance

(35)POE - Point of exposure

(36)PRACR - Post-response action care report

(37)RACR - Response action completion report

(38)RAER - Response action effectiveness report

(39)RAP - Response action plan

(40)RBEL - Risk-based exposure limit

(41)RCRA - Resource Conservation and Recovery Act

(42)RfC - Reference concentration

(43)RfD - Reference dose

(44)RL - Risk level

(45)RL<sub>cum</sub> - Cumulative risk

 level

(46)RPF - Relative potency factor

(47)SIN - Self implementation notice

(48)SQL - Sample quantitation limit

(49)SSAP - Sampling and statistical analysis plan

(50)TDS - Total dissolved solids

(51)TEF - Toxicity equivalency factor

(52)TEQ - Toxicity equivalency quotient

(53)TNRCC - Texas Natural Resource Conservation Commission



(54)TPH - Total petroleum hydrocarbons

(55)TSS - Total suspended solids

(56)UCL - Upper confidence limit

(57)U.S. EPA - United States Environmental Protection

 Agency

(58)URF - Unit risk factor

(59)VCP - Voluntary cleanup program


(c)Risk-based exposure limit nomenclature. A nomenclature

is used in Subchapter C of this chapter (relating the Development of Protective

Concentration Levels) to refer to specific RBELs. The RBEL nomenclature reflects

the exposure medium and the exposure route. The exposure medium appears first

in superscript text, followed by RBEL in regular text and lastly the exposure

route in subscript text. For example <sup>Soil</sup>RBEL<
sub>Ing</sub> is a RBEL where soil is the exposure medium and

ingestion is the exposure route.

(1)<sup>Air</sup>RBEL<sub>

Inh</sub> - air inhalation RBEL.

(2)<sup>Soil</sup>RBEL<sub>

Derm</sub> - dermal contact with soil RBEL.

(3)<sup>Soil</sup>RBEL<sub>

Ing</sub> - ingestion of soil RBEL.

(4)<sup>GW</sup>RBEL<sub>

Ing</sub>- ingestion of groundwater RBEL.

(5)<sup>GW</sup>RBEL<sub>

Class 3</sub> - class 3 groundwater RBEL.

(6)<sup>SW</sup>RBEL - surface water

RBEL.

(7)<sup>AbgVeg</sup>RBEL<sub>

Ing</sub> - ingestion of above-ground vegetables RBEL.

(8)<sup>BgVeg</sup>RBEL<sub>

Ing</sub> - ingestion of below-ground vegetables RBEL.


(d)Protective concentration level nomenclature. A nomenclature

is used in Subchapter C of this chapter (relating the Development of Protective

Concentration Levels) to refer to specific PCLs. The PCL nomenclature reflects

the source medium, exposure medium and the exposure route. The exposure medium

appears first in superscript text, followed by the source medium in regular

text and lastly the exposure route in subscript text. For example, <sup>

GW</sup>GW<sub>Ing</sub> is a PCL where groundwater is

the source medium (GW), groundwater is the exposure medium (<sup>

GW</sup>), and ingestion is the exposure route (<sub>Ing

</sub.). Also indicated is any lateral transport, with the symbol LT placed

in front of the medium within which lateral transport occurs. For example, <
sup>GW</sup>LT-GW<sub>Ing</sub> is a PCL where

lateral transport occurs in the source medium (LT-GW), groundwater is the

exposure medium (<sup>GW</sup>), and ingestion is the exposure

 route (<sub>Ing</sub>). Cross-media transfer is indicated

when exposure occurs in a different medium than the source medium. For example, 
<
sup>Air</sup>Soil<sub>Inh-V</sub> is a PCL

where soil is the source medium and air is the exposure medium.

(1)<sup>GW</sup>GW<sub>

Ing</sub> - PCL for groundwater ingestion.

(2)<sup>GW</sup>LT-GW<sub>

Ing</sub> - lateral transport PCL for groundwater ingestion.

(3)<sup>GW</sup>GW<sub>

Class 3</sub> - PCL for class 3 groundwater.

(4)<sup>GW</sup>LT-GW<sub>

Class 3</sub> - lateral transport PCL for class 3 groundwater.

(5)<sup>Air</sup>GW<sub>

Inh-V</sub> - PCL for inhalation of volatiles from groundwater.

(6)<sup>LT-Air</sup>GW<sub>

Inh-V</sub> - lateral transport PCL for inhalation of volatiles from 
groundwater.



(7)<sup>SW</sup>GW - PCL for groundwater

discharge to surface water.

(8)<sup>SW</sup>LT-GW - lateral transport

PCL for groundwater discharge to surface water.

(9)<sup>Tot</sup>Soil<sub>

Comb </sub> - surface soil PCL for combined dermal ingestion, dermal contact,

inhalation of volatiles and particulates, and for residential land use, 
ingestion

of above-ground and below-ground vegetables.

(10)<sup>Air</sup>Soil<sub>

Ing-VP</sub> - PCL for inhalation of volatiles and particulates from surface

soil.

(11)<sup>Soil</sup>Soil<sub>

Derm</sub> - PCL for dermal contact with surface soil.

(12)<sup>Soil</sup>Soil<sub>

Ing</sub> - PCL for ingestion of surface soil.

(13)<sup>Veg</sup>Soil<sub>

Ing-Inorg</sub> - surface soil PCL for ingestion of inorganic COCs in 
vegetables.



(14)<sup>Veg</sup>Soil<sub>

Ing-Org</sub> - surface soil PCL for ingestion of organic COCs in vegetables.



(15)<sup>LT-Air</sup>Soil<sub>

Inh-VP</sub> - lateral transport PCL for inhalation of volatiles and 
particulates

from surface soil.

(16)<sup>GW</sup>Soil - PCL for surface

 and subsurface soil to protect groundwater.

(17)<sup>Air</sup>Soil<sub>

Inh-V</sub> - PCL for inhalation of volatiles from subsurface soil.

(18)<sup>LT-Air</sup>Soil<sub>

Inh-V</sub> - lateral transport PCL for inhalation of volatiles from subsurface

soil.

(19)<sup>Air</sup>Soil<sub>

Inh-O</sub> - PCL for inhalation of noxious emissions from soil.

(20)<sup>LT-Air</sup>Soil<sub>

Inh-O</sub> - lateral transport PCL for inhalation of noxious emissions from

soil.

(21)<sup>Air</sup>Air<sub>

Inh</sub> - air PCL for inhalation.

(22)<sup>SW</sup>SW - surface water

PCL.



<nl>sec.350.3. Applicability.


(a)General applicability. The rules in this chapter apply

 to the assessment of and response action for affected property. The rules

 in this chapter specify objectives for response actions for affected properties

 and further specify the mechanism to evaluate such response actions once an

 obligation is established to take a response action via other applicable rules,

orders, permits or statutes. The regulations in this chapter supplement but

do not replace any requirements for closure or response actions specified

in the regulations for the programs subject to this chapter and shall apply

as specified in subsections (b)-(n) of this section.


(b)Property where a spill or unauthorized discharge of COCs

occurs that is regulated under Chapter 327 of this title (relating to Spill

Prevention and Control). The person shall first complete notification for

spills or unauthorized releases under sec.327.3 of this title (relating

to Notification Requirements), and then conduct response actions under sec.327.5

of this title (relating to Actions Required). The person shall utilize this

chapter to conduct response actions when either the conditions of paragraphs

(1) or (2) of this subsection apply.

(1) The person chooses to respond under this chapter to a spill

or unauthorized discharge of COCs within the first six months after the spill

or discharge is reported to the executive director.

(2)The person determines that the response action to

the spill or unauthorized discharge of COCs cannot be completed to the 
satisfaction

of the executive director within the first six months following notification

to the executive director.


(c)Property regulated under Chapter 330 of this title (relating

to Municipal Solid Waste). Persons shall comply with the requirements of this

chapter for affected property assessment, development of PCLs, response actions,

and post-response action care (i.e., corrective action, closure, and post-
closure

care requirements in Chapter 330) for municipal solid waste (MSW) properties

except as noted below:

(1) Landfill gas control. At the executive director's discretion,

persons shall test for and monitor all landfill gases.

(2) Type I, Type I-AE, Type IV, and Type IV-AE municipal

solid waste landfills (MSWLFs) subject to the requirements of 40 CFR Parts

257 and/or 258. Persons shall comply with the requirements of Chapter 330

for corrective action for affected groundwater, closure, post-closure care,

and landfill gas control. Under sec.330.235(i) of this title (relating to

Assessment Monitoring Program), the executive director may establish an 
alternative

health-based groundwater protection standard for a COC for which an MCL has

not been established. Determination of an alternative standard shall be made

using the procedures of Subchapter C of this chapter (relating to Development

of Protective Concentration Levels).

(3) Type I, Type II, Type III, Type IV MSWLFs not subject

to 40 CFR Parts 257 and/or 258. Persons shall comply with the requirements

of Chapter 330, Subchapter J of this title (relating to Closure and Post-Closure

Care) for closure and post-closure care.


(d) Property regulated under Chapter 331 of this title (relating

to Underground Injection Control). The person shall address unauthorized 
releases

of COCs from associated tankage and equipment utilizing the procedures of

this chapter. Excursions of injected mining solutions at in-situ mining 
properties

or injection of waste which is confined below all underground sources of 
drinking

water as defined in sec.331.2 of this title (relating to Definitions) are

not subject to the requirements of this chapter.


(e) Property regulated under Chapter 332 of this title (relating

to Composting). The person shall comply with the requirements of this chapter

to conduct assessment, response actions, and post-response action care if

COCs are detected in environmental media at levels greater than the critical

PCLs developed in accordance with Subchapter C of this title (relating to

Development of Protective Concentration Levels) as a result of an unauthorized

discharge at a compost facility, mulching facility or land application property

authorized under Chapter 332 of this title.


(f) Property regulated under Chapter 333 of this title (relating

to Voluntary Cleanup Programs). The person entering the Voluntary Cleanup

Program (VCP) shall comply with all requirements found in Health and Safety

Code, Chapter 361, Subchapter S concerning the VCP; Subchapter A of Chapter

333 of this title (relating to Voluntary Cleanup Programs); and the requirements

of this chapter. Where there is a conflict between the requirements of this

chapter and the requirements in Health and Safety Code 361, Subchapter S and

Chapter 333, Subchapter A of this title, the requirements of Health and Safety

Code 361, Subchapter S and Chapter 333, Subchapter A shall apply.


(g) Property regulated under Chapter 334 of this title (relating

to Underground and Aboveground Storage Tanks). The person shall comply with

the requirements of this chapter for the assessment, response actions, and

post-response action care for releases of regulated substances from underground

storage tanks as specified in Chapter 334, Subchapter A of this title (relating

to General Provisions) and for releases of petroleum products from aboveground

storage tanks as specified in Chapter 334, Subchapter F of this title (relating

to Aboveground Storage Tanks) which are reported to the executive director

in accordance with Chapter 334, Subchapter D of this title (relating to Release

Reporting and Corrective Action) on or after December 23, 1998. Additional

corrective action requirements for these facilities are found in Chapter 334,

Subchapters D, J, and K of this title (relating to Release Reporting and 
Corrective

Action; Registration of Corrective Action Specialists and Project Managers

for Product Storage Tank Remediation Projects; and Storage, Treatment and

Reuse Procedures for Petroleum-Substance Contaminated Soil, respectively).

For releases discovered and reported to the executive director on or before

December 22, 1998, the person shall continue to comply with Chapter 334, 
Subchapters

D, G, H, J, K and M of this title (relating to Release Reporting and Corrective

Action; Target Concentration Criteria; Interim Reimbursement Program; 
Registration

of Corrective Action Specialists and Project Managers for Product Storage

Tank Remediation Projects; Storage, Treatment and Reuse Procedures for 
Petroleum-Substance

Contaminated Soil; and Reimbursable Cost Guidelines for the Petroleum Storage

Tank Reimbursement Program, respectively).


(h) Affected property regulated under Chapter 335 of this title

(relating to Industrial Solid Waste and Municipal Hazardous Waste). The person

shall comply with the requirements of this chapter when undertaking the 
remediation

of affected property at facilities used for the storage, processing or disposal

of industrial solid waste or municipal hazardous waste, or for the remediation

of environmental media containing COCs resulting from unauthorized discharges

from such facilities, either as part of closure or at any time before or after

closure. The person shall comply with sec.335.118(b) of this title (relating

to Closure Plan; Submission and Approval of Plan) or applicable permit 
provisions

regarding requirements for public participation in the corrective action process

for permitted hazardous waste facilities. The person shall also comply with

the requirements of paragraphs (1)-(3) of this subsection, as applicable.



(1) Any person who stores, processes, or disposes of industrial

solid waste or municipal hazardous waste at a facility permitted under 
sec.335.2(a)

of this title (relating to Permit Required), shall, unless specifically modified

by other order of the commission, close the facility in accordance with the

 closing provisions of the permit.

(2) Any person who stores, processes, or disposes of hazardous

waste is also subject to the applicable provisions relating to closure and

post-closure in Chapter 335, Subchapters E and F (relating to Interim Standards

for Hazardous Waste Storage, Processing, or Disposal Facilities; and Permitting

Standards for Owners and Operators of Hazardous Waste Storage, Processing,

or Disposal Facilities, respectively).

(3) The person shall not utilize this chapter for purposes

of waste classification other than to determine if environmental media contain

COCs (specifically hazardous waste or hazardous constituents) in concentrations

exceeding levels protective of human health and the environment for purposes

of hazardous waste determinations in conjunction with Chapter 335, Subchapters

A and R of this title (relating to Industrial Solid Waste and Municipal 
Hazardous

Waste Management in General; and Waste Classification, respectively).


(i) Affected property regulated under Chapter 335, Subchapter

K of this title (relating to Hazardous Substance Facilities Assessment and

Remediation). The person shall comply with all requirements found in Health

and Safety Code, Chapter 361, Subchapter F; Subchapter K of Chapter 335 of

this title (relating to Hazardous Substance Facilities Assessment and 
Remediation);

and the requirements of this chapter for any release or threatened release

of hazardous substances into the environment that may constitute an imminent

and substantial endangerment to public health and safety or the environment.

Where there is a conflict between the requirements in this chapter and the

requirements of Chapter 361, Subchapter F and Chapter 335, Subchapter K, the

requirements of Chapter 361 and Chapter 335 shall apply. In particular, as

required by Health and Safety Code sec.361.1855, the executive director

shall hold a public meeting to obtain public input and information regarding

the appropriate use of an affected property whenever a land use other than

residential is proposed.


(j) Property regulated under Chapter 336 of this title (relating

to Radiation Rules). The person shall comply with the requirements of Chapter

336 of this title regarding contamination limits for radioactive material

in environmental media. In instances involving remediation of unauthorized

releases in media containing both radioactive material and other COCs, the

person shall use the contamination limits determined in accordance with Chapter

336 of this title for radioactive material and PCLs determined by the procedures

of this chapter for other COCs.


(k) Property regulated under Chapter 312 of this title (relating

to Sludge Use, Disposal and Transportation). The executive director may 
reference

this chapter in permits subject to Chapter 312 of this title when specifying

closure provisions to address unauthorized releases of COCs from facility

components at municipal wastewater treatment plants.


(l) Other unauthorized releases. The executive director may

require the use of this chapter to address other unauthorized releases of

COCs subject to Texas Water Code, Chapter 26.


(m) Timing of response actions. The person may choose the time

to pursue a response action under Remedy Standard A or Remedy Standard B as

described in sec.350.93 and sec.350.94, respectively, of this title (relating

to Remedy Standard A and Remedy Standard B) unless otherwise specified in

other applicable statute, rule, permit, or order. However, once the person

has submitted the self-implementation notice under Remedy Standard A or a

response action plan (RAP) described in sec.350.115 of this title (relating

to Remedial Action Plan) under Remedy Standard A or B, the person shall perform

subsequent response actions in accordance with the time frames specified in

this chapter.


(n) Use of this chapter on or after the effective date of the

rule.

(1) A person who has submitted a RAP to the executive director

under previous commission rules (e.g., previous risk reduction standard 1,

2, or 3; petroleum storage tank plan A or B) and has not received approval

of the RAP prior to the effective date of this chapter may either wait for

executive director review of the RAP under the previous rules, or submit a

new RAP in accordance with this chapter. If the executive director denies

approval of the RAP under those previous commission rules for reasons of 
technical

inadequacy, the executive director may then require the person to comply with

the requirements of this chapter.

(2) A person who has received approval of a RAP by the

executive director under previous commission rules (e.g., previous risk 
reduction

standard 1, 2, or 3; petroleum storage tank plan A or B) and has either 
completed

or not completed the action prior to the effective date of this chapter may

either maintain or complete the action, as applicable, according to the approved

RAP and is not subject to the requirements of this chapter unless a substantial

change in circumstances develops at the property which results in an 
unacceptable

threat to human health or the environment as described in sec.350.5 of this

title (relating to Substantial Change in Circumstances).

(3) The person who has submitted an initial notification

of intent to conduct a response action prior to the effective date of this

chapter (e.g., previous risk reduction standard 1, 2, or 3;) and has submitted

a final report within 3 years of the effective date of this rule may request

that a response action be reviewed according to the regulations in effect

at the time of initial notification. If the executive director denies approval

of the submitted response action completion report (RACR) described in 
sec.350.116

of this title (relating to Response Action Completion Report) under those

previous commission rules for reasons of technical inadequacy, the executive

director may then require the person to comply with the requirements of this

chapter.

(4) Any RAPs submitted to address unauthorized releases

of COCs which were approved as part of a permit issued prior to the effective

date of this chapter but not implemented at the time of permit renewal are

subject to review for compliance with this chapter as part of the permit renewal

process.

(5) The person may resubmit plans or reports that they

have revised voluntarily to conform with the requirements of this chapter,

unless such resubmittal would result in noncompliance with a previously approved

or imposed schedule of compliance.



<nl>sec.350.4. Requirements Pertaining

to Off-Site Properties and Leased Lands.


(a)If in the course of the affected property assessment conducted

pursuant to sec.350.33 of this title (relating to Affected Property Assessment),

a person collects any samples from property they do not own, (i.e., off-site

properties and leased lands) or on property where an interest such as a fee

ownership, leasehold, easement, or right-of-way is held by another person,

then all information related to those samples shall be made available to 
leaseholders

to the extent they are known or obvious, and to all interest holders of record.

The information made available shall include at a minimum, all analytical

results from the sample analyses along with the critical Tier 1 PCL values

for both land use classifications and each COC detected in the sample analysis.

If an ecological exposure pathway is complete, but ecological PCLs have not

yet been established in accordance with sec.350.56 of this title (relating

to Ecological Risk Assessment and Development of Ecological PCLs), then the

person shall at a minimum provide the critical human health Tier 1 PCLs. Once

the ecological PCLs have been established, then the person shall make the

ecological PCLs available to leaseholders to the extent they are known or

obvious, and to all interest holders of record.


(b) The person shall provide a notice of the availability of

this information to the parties listed in subsection (a) of this section within

90 calendar days of the date of analysis as recorded by the performing 
laboratory

or at the time of submission of a plan and/or report containing such information

for executive director review, whichever occurs first.


(c) If the person submits other information (i.e., evidence

other than samples of environmental media collected from a particular property)

to the executive director which indicates that a COC originating from on-site

activities more likely than not exceeds a critical Tier 1 residential PCL

on property they do not own or on property where an interest such as a fee

ownership, leasehold, easement, or right-of-way is held by another person,

then the person shall also make this information available to leaseholders

to the extent they are known or obvious, and to all interest holders of record.

The timing of this "notice of availability" shall coincide with submission

of this information to the executive director.


(d) The person shall provide notice of the availability of

historical information (i.e., information collected prior to these rules being

applicable to the property) to the parties listed in subsection (a) of this

section at the time of submission of the first plan and/or report to the 
executive

director for review under these rules which includes this same historical

information.


(e) Once a leaseholder or interest holder of record requests

the information required to be made available in subsections (a), (c) or (d)

of this section, the person must deliver the information to the requestor

and the executive director within seven calendar days of the date of request.




(f) When there is an actual human exposure to a COC at a concentration

which exceeds the source medium PCL established in accordance with Subchapter

C of this chapter (relating to Development of Protective Concentration Levels)

for that specific exposure pathway and that land use, the person shall provide

notice, as soon as possible, but no later than 3 weeks after the date of 
analysis

as recorded by the performing laboratory, to those exposed, the property 
owner(s),

and the executive director.


(g) When subsections (a), (c), or (d) of this section require

information to be made available, the person shall also provide the leaseholder

or interest holder a copy of the notification explaining the Texas Risk 
Reduction

Process provided in the following figure and provide proof of receipt by all

persons required to receive the notification to the executive director in

accordance with sec.350.112 of this title (relating to Affected Property

Assessment Report).

Figure 1: 30 TAC sec.350.4(g)


(h) Concerning the timing of landowner concurrence and recordation

of the deed notice/restrictive covenant, the person shall obtain written 
concurrence

from the landowner prior to recording the deed notice/restrictive covenant

required under sec.sec.350.34(a)(2)(E)(iii) and (iv); 350.54(b)(2) and

(j)(2)(L); 350.93(g) and (h); or 350.94(g) and (i) of this title (relating

to Determination of Concentrations of COCs and Comparisons to PCLs; Development

of Risk-Based Exposure Limits; Remedy Standard A; and Remedy Standard B, 
respectively).

The person shall submit a written request to the landowner to obtain permission

to file the deed notice/restrictive covenant in the county deed records. This

written request must contain a copy of the proposed deed notice/restrictive

covenant as set forth in Subchapter F of this chapter (relating to Institutional

Controls), a clear explanation as to the content and purpose of the deed 
notice/restrictive

covenant, and a clear statement that failure on the part of the landowner

to respond within 90 calendar days from the date of receipt of the request

will be construed as implied consent by the executive director to the recording

of the deed notice. The executive director will not accept failure on the

part of the landowner to respond to the written request for placement of a

restrictive covenant as implied consent to the recording of the restrictive

covenant.


(i) The requirement in subsection (h) of this section to obtain

landowner concurrence prior to recording the deed notice/restrictive covenant

still pertains when decontamination or removal of all media to residential

PCLs is demonstrated to be technically impracticable.


(j) The person shall provide a copy of the request sent to

the landowner and proof of the date of receipt by the landowner with the RACR

submitted for agency review and approval in accordance with Subchapter D of

this title (relating to Remedy Standards). Either written landowner concurrence

shall be obtained, or the person shall demonstrate to the satisfaction of

the executive director that the 90 days implied consent provision of subsection

(h) of this section has been met before the executive director will approve

the RACR documenting attainment of the response objective(s).



<nl>sec.350.5. Substantial Change in

 Circumstances.


(a)Upon receipt of approval by the executive director of the

RACR described in sec.350.116 of this title (relating to Response Action

Completion Report), performance of applicable post-response action care, 
maintenance

of any applicable financial assurance, and termination of the post-response

action care period by the executive director, the person will have completed

the obligations of this chapter unless a substantial change in circumstances

results in an unacceptable risk to human health or the environment.


(b) No person shall, by changing a land use specified in an

approved RACR from commercial/industrial to residential or by removing, altering

or failing to maintain a physical or institutional control that applies to

an affected property that underwent an approved response action, cause, suffer

or allow a threat to human health or the environment.


(c) If a liable person or an innocent owner or operator subject

to the restrictive covenant in sec.350.131(b)(5) or (6) of this title (relating

to Instruments for Institutional Controls) plans to change the land use from

commercial/industrial to residential, or to eliminate or modify the use of

a physical control or institutional control, then any necessary actions to

make the property protective for such changed conditions must be completed

by the person prior to the change. The person making the change shall notify

the executive director in writing at least 120 days prior to changing the

land use or the use of the approved physical or institutional controls. The

person making the change shall then provide a reevaluation of the property

to the executive director within 30 days of the date of notification such

that the person is able to demonstrate:

(1)that levels of COCs have degraded to concentration levels

below the applicable critical PCLs for the planned land use or property 
condition

change;

(2)that the COCs will be adequately removed or decontaminated

to meet the applicable critical PCLs for the planned land use or property

condition change; or

(3)that the application of a revised physical and/or

institutional control will ensure adequate protection of human health and

the environment. Any revised institutional control shall conform with all

requirements of sec.350.4(h) of this title (relating to Requirements Pertaining

to Off-Site Properties and Leased Lands) and sec.350.131 of this title (relating

to Instruments for Institutional Controls).


(d) A substantial change in circumstance shall include but

is not limited to the situations described in paragraphs (1) - (6) of this

subsection. In response to these substantial changes in circumstances, the

person shall use the rule in effect at the time of the substantial change

to protect human health or the environment. For state-funded projects, however,

the executive director may allow the use of the rule in effect at the time

the case was closed (i.e., an agency letter issued specifying no further 
action).



(1) An institutional or physical control fails to prevent exposure

at the approved performance level.

(2) An actual exposure condition is determined to be occurring

at levels not protective of human health or the environment.

(3) New information indicates that the presence of COCs

at the affected property was not sufficiently characterized such that an 
unacceptable

threat to human health or the environment continues to exist.

(4) The exposure area upon which representative concentrations

are based in accordance with sec.350.34 of this title (relating to Determination

of Representative Concentrations of COCs and Comparisons to PCLs) changes,

and as a result of the changed exposure area, there is an unacceptable threat

to human health or the environment.

(5) A health and safety plan to ensure compliance with

Occupational Safety and Health Administration permissible exposure limits

(PELs) for the purpose of using PELs as RBELs as provided for in 
sec.350.54(b)(2)

of this title (relating to Development of Risk-Based Exposure Limits) will

no longer be maintained.

(6) Changed conditions at an affected property result

in the affected property no longer meeting the ecological Tier 1 exclusion

criteria as described in sec.350.56(b) of this title (relating to Ecological

Risk Assessment and Development of Ecological PCLs).


(e) For purposes of this section, changes made to this chapter

 in response to periodic reviews of the general procedures specified to generate

PCLs, or in response to revisions to reflect new toxicity data, do not 
constitute

a substantial change in circumstances, unless these changes are of such 
magnitude

to present an unacceptable threat to human health or the environment when

evaluated for future exposure conditions based on property-specific 
considerations.




(f) If the person determines that the conditions specified

in subsection (c)(1) or (2) of this section are met such that an institutional

control is no longer needed to protect human health and the environment, then

the person may request that the executive director file a Release of Deed

Notice in accordance with sec.350.131(b)(4) or a Release of Restrictive

Covenant in accordance with sec.350.131(b)(7) of this title (relating to

Institutional Controls). The person shall provide the necessary information

to document to the satisfaction of the executive director that the conditions

of subsection (c)(1) or (2) of this section are met.

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 May

 4, 1998.

TRD-9806236


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter B. Affected Property Assessment


30 TAC sec.sec.350.31-350.35

STATUTORY AUTHORITY The new rules are proposed under Texas

 Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the new rules are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the new rules is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The new rules affect Texas Water Code, Chapter 26, and Health and Safety

Code Chapter 361.



<nl>sec.350.31. Groundwater Resource

 Classification.


The person shall use the following groundwater resource classification

system and process to classify the upper-most groundwater-bearing unit and

each groundwater-bearing unit which contains COCs originating from the release

activities at concentrations equal to or greater than the residential critical

Tier 1 PCL. For the purposes of making horizontal distance measurements by

this section, the person shall use the lateral limits of groundwater which

contains COCs in excess of the residential Tier 1 PCLs for class 1 groundwater

as the starting point for the measurement.

(1) Class 1 groundwater resource (Primary Groundwater Resource).

To be considered a class 1 primary groundwater resource, the groundwater-bearing

unit must meet one of the following conditions:

(A) a groundwater-bearing unit which contains COCs at concentrations

equal to or greater than the residential critical Tier 1 PCL within 1/2 mile

of a well used to supply drinking water to a public water system as defined

in sec.290.38 of this title (relating to Definitions) of Chapter 290 of

this title (relating to Water Hygiene) and the COCs are likely to migrate

to the groundwater production zone of such public water supply well based

on the chemical properties of the COCs and the hydrogeology;


(B) a groundwater-bearing unit which is the only reliable

source of water (i.e., a connection to a public water system is not currently

available and will not be provided to the affected property as part of the

RAP described in sec.350.115 of this title (relating to Response Action

Plan) not more than 800 feet below the land surface that is capable of producing

groundwater with a naturally occurring total dissolved solids (TDS) content

of less than 1,000 milligrams per liter (mg/l) and at a rate greater than

5,000 gallons per day (gpd) to a well with a 4 inch diameter casing; or




(C) high resource value groundwater-bearing units capable

of yielding groundwater with less than or equal to a naturally occurring TDS

content of 3,000 mg/l and at rates greater than or equal to 144,000 gpd to

a well with a 12 inch diameter casing, and the natural quality of that 
groundwater

meets all primary drinking water standards as defined in 40 Code of Federal

Regulations Part 141.

(2) Class 2 groundwater resource. Class 2 groundwater

resources include:

(A) any groundwater-bearing units which are a groundwater

production zone for a well located within 1/2 mile of the affected property

and which is currently used to supply groundwater for human consumption, 
agricultural

purposes or any purpose which could result in exposure to human or ecological

receptors; or


(B) groundwater-bearing units which are capable of producing

waters with a naturally occurring TDS content of less than 10,000 mg/l and

at rates greater than 150 gpd to a well with a 4 inch diameter casing.

(3) Class 3 groundwater resource (Not a Potential

or Current Groundwater Supply). Class 3 groundwater resources include 
groundwater-bearing

units which produce water with a naturally occurring TDS of greater than 10,000

mg/l or produce water only at rates less than 150 gpd to a well with a 4 inch

diameter casing, and the conditions specified in paragraph (2)(A) of this

section are not met.

(4) Classification procedures. The groundwater resource

classification process shall consist of the collection and analysis of relevant

affected property information as outlined in subparagraphs of this paragraph.

It may not be necessary to complete all steps if a determination can be made

prior to completion of all steps.

(A) The person shall identify the upper-most groundwater-bearing

unit, each groundwater-bearing unit which contains COCs originating from the

release at concentrations equal to or greater than the residential critical

Tier 1 PCL, and any hydraulically interconnected groundwater-bearing units.




(B) The person shall identify any current use of groundwater

within &laquo; mile in all directions from the affected property.


(C) The person shall determine the naturally occurring TDS

concentration of the groundwater-bearing unit(s) specified in paragraphs (1)

- (3) of this section.


(D) The person shall determine maximum sustainable yield of

the groundwater-bearing unit(s) specified in paragraphs (1) - (3) of this

section based on either:

(i) developing an upper bound value for production well yield

based on the saturated thickness, hydraulic conductivity, and confining head

of the groundwater-bearing unit estimated in accordance with the method 
specified

in guidance developed by the executive director, or


(ii) conducting a yield test(s) on a production well(s) that

is designed, constructed, and operated so as to achieve the maximum sustainable

yield from the groundwater-bearing unit.


(E) The person shall submit supporting data and results of

the groundwater resource classification in the affected property assessment

report as described in sec.350.112 of this title (relating to Affected Property

Assessment Report) for executive director review and approval.



<nl>sec.350.32. Land Use Classification.




The person shall determine the current land use of all properties affected

with concentrations of COCs originating from the release which exceed the

critical Tier 1 PCLs during the affected property assessment. Land use shall

be determined by comparison of existing land use to the definitions for 
residential

and commercial/industrial land use as specified in sec.350.2 of this title

(relating to Definitions and Acronyms). If off-site property or leased affected

property is determined to be commercial/industrial, the person must provide

written landowner concurrence to the associated deed notification/restrictive

covenant required in sec.350.4(h) of this title (relating to Requirements

Pertaining to Off-Site Properties and Leased Lands) in the RACR as described

in sec.350.116 of this title (relating to Response Action Completion Report).

In the event the land use changes prior to the executive director's approval

of the RACR, the PCLs must be protective of that final land use.



<nl>sec.350.33. Affected Property Assessment.




(a) The person shall conduct an affected property assessment

in a manner appropriate for the affected property. The assessment shall consider

the hydrogeology, physical and chemical properties of the COCs, location of

human and ecological receptors, and the mandatory and complete or reasonably

anticipated contingent exposure pathways identified in sec.350.51 of this

title (relating to General Requirements). The assessment shall be conducted

in a manner most likely to detect the presence of COCs considering the nature

of the release and subsequent modifications to the affected property, and

shall use appropriate quality assurance/quality control protocols. The geology

and hydrogeology of the affected property shall be adequately characterized,

such that COC fate and transport can be reliably predicted in order to 
confidently

locate existing environmental media containing COCs. The person shall use

sample collection techniques and analytical methodologies which are described

in the most recent version of "SW 846, Test Methods

 for Evaluating Solid Waste," U.S. EPA when available. Otherwise, the

person shall use available agency or U.S. EPA guidance, or American Society

for Testing and Materials standards. The person shall use a sampling and 
analysis

approach which, to the satisfaction of the executive director, is appropriate

for the distribution, composition and heterogeneity of the COCs and 
environmental

media. The results of the assessment shall be documented in an Affected Property

Assessment Report in accordance with sec.350.112 of this title (relating

to Affected Property Assessment Report). The person shall conduct an assessment

in a manner which is timely considering size and complexity of the situation,

and shall comply with an assessment schedule established in any commission

rule, order, or permit, or any assessment schedule approved by the executive

director.


(b) The person shall perform an affected property assessment

through the collection and analysis of a sufficient number of samples from

environmental media to reliably characterize the nature and degree of COCs

in the source area(s), as well as the horizontal and vertical extent of COCs

in soil and groundwater which equals or exceeds the applicable (residential

or commercial/industrial) critical Tier 1 PCL, which considers both human

health and ecological exposures as determined by the procedures in Subchapter

C of this chapter (relating to Development of Protective Concentration Levels).

The executive director may require the person to determine the concentrations

of COCs in outdoor or indoor air on a property-specific basis.


(c) In order to successfully demonstrate to the satisfaction

of the executive director that all COCs in soils and groundwater which equal

or exceed the critical Tier 1 PCL have been characterized horizontally, the

person shall investigate to concentrations below the critical Tier 1 PCL in

all directions and shall demonstrate that concentrations decrease away from

the lateral limit of the critical Tier 1 PCL. For soils, the person can use

the critical Tier 1 PCL applicable for the land use. For groundwater, the

person shall use the residential critical Tier 1 PCL for class 1 groundwater

to determine the lateral extent of investigation.


(d) For the vertical soil assessment, the person shall define

the vertical limit of COCs in the soil beyond the critical Tier 1 PCL to the

higher of the method quantitation limit (MQL) as defined in accordance with

sec.350.2 of this title (relating to Definitions and Acronyms), natural

or anthropogenic background concentrations, or to the upper-most groundwater-
bearing

unit, whichever is encountered first. The vertical extent of the soil assessment

shall continue beyond the upper-most groundwater-bearing unit as appropriate

based on the likelihood that COC concentrations above the applicable soil-to-
groundwater

 PCL <sup>GW</sup>Soil have migrated deeper considering the

chemical and physical properties of the COCs (e.g., dense nonaqueous phase

liquids) and the hydrogeology of the affected property. If groundwater is

encountered during the soil assessment, representative groundwater samples

must be collected to evaluate potential groundwater impacts.


(e) The person shall define the vertical extent of COCs in

groundwater to below the residential critical Tier 1 PCL by collecting a 
representative

sample from a deeper groundwater-bearing unit with concentrations less than

the residential critical Tier 1 PCL, unless the person demonstrates to the

satisfaction of the executive director vertical migration to a lower aquifer

is not possible. The person shall base such demonstration on the hydrogeology

and the chemical and physical properties of the COCs. For investigative 
purposes,

the critical Tier 1 PCL must be determined as if the groundwater is a class

1 groundwater resource. The person shall take proper precautions to prevent

cross-contamination when collecting a sample from a deeper groundwater-bearing

unit. If the concentration of volatile COCs in groundwater exceeds the critical

Tier 1 PCL during a post-closure care period for a closed MSWLF, then the

person shall initiate an investigation to determine methane gas levels in

the landfill.


(f) The person must determine if concentrations of COCs in

soil have migrated onto off-site properties above the applicable critical

Tier 1 PCLs for the off-site properties. The land use of the off-site property

should be considered to be residential for the purposes of assessment unless

concurrence for a commercial/industrial land use has been obtained from the

off-sitelandowners. The person must also investigate to determine if 
concentrations

of COCs in surface water and sediments have migrated onto off-site properties

above the applicable critical Tier 1 PCLs for the off-site properties when

there is a reasonable potential for such migration to have occurred.


(g) The person shall determine if COCs in soil or groundwater

have migrated into surface waters via an unauthorized release when there is

a reasonable potential for such migration to have occurred. The person shall

use concentrations measured in groundwater at or immediately upgradient of

the zone of groundwater discharge to surface water to determine if COCs in

groundwater have discharged to surface waters. If the COCs in soil or 
groundwater

have migrated to surface waters, then the person shall also determine the

concentration of COCs in sediments where the COCs are most likely to have

accumulated in the sediments. Additionally, if COCs have been directly 
discharged

into surface water via an unauthorized release, then persons shall determine

the concentrations of COCs in the surface water and sediments.


(h) For affected properties with response actions which are

designed and approved under Remedy Standard B for the use of a plume management

zone, the person shall characterize the geology and hydrogeology throughout

all areas of the plume management zone (i.e., including those areas of the

plume management zone which are currently beyond the limits of the groundwater

which contains COCs in excess of the critical Tier 1 PCL).


(i) The person shall identify all surface and subsurface structures,

including subsurface utilities at the affected property.


(j) The person shall conduct a field survey to locate all

parks, playgrounds, foot pathways, water wells and surface waters to at least

500 feet beyond the boundary of the affected property; and conduct a records

survey to identify all water wells and surface water bodies within &laquo;

mile of the limits of groundwater which contains COCs in excess of the 
residential

critical Tier 1 PCL.


(k) The person shall perform an affected property assessment

to meet any more stringent or additional requirements established by commission

rule, order or permit of each applicable program area.


(l) When determining concentrations of COCs in groundwater,

the person shall collect and handle groundwater samples in accordance with

the following procedures:

(1) use sampling methodologies which do not artificially increase

or decrease naturally suspended particle concentrations;

(2) collect groundwater samples using a low flow rate

(e.g., 0.1 liter/minute) that does not exceed the rate at which the well was

developed and minimizes drawdown (i.e., less than 0.1 meter) in the well;



(3) do not filter groundwater samples where:

(A) aquifers contain naturally occurring suspended particles

resulting from transport through the aquifer due to the nature of the subsurface

geology; or


(B) samples are collected from drinking water wells; and




(4) obtain executive director approval for filtering

groundwater samples. The executive director will only approve the use of a

10.0 micron filter to filter groundwater samples when turbidity exceeds 10

nephelometric turbidity units and the filtering can be performed while still

fulfilling the data quality objectives.


(m) When determining concentrations of COCs in surface water,

the person shall collect and handle surface water samples in accordance with

the requirements in the Implementation Procedures.


(n) When required by the executive director, the person shall

classify an affected property in accordance with a system established by the

executive director. The classification shall consider all information collected

during the affected property assessment, any historical knowledge concerning

the conditions at the affected property, and the short term or long term 
potential

for human or ecological receptors to be exposed to COCs.



<nl>sec.350.34. Determination of Concentrations

of COCs and Comparisons to PCLs.


(a) The person shall determine concentrations of COCs within

the environmental media at the affected property for each applicable exposure

pathway. Concentrations of COCs for the affected property may be determined

by the procedures described in either paragraph (1) or (2) of this subsection.

If the person chooses to determine representative concentrations of COCs for

background areas, they shall use the procedures in paragraph (2)(G) of this

subsection unless the executive director approves alternative methods.

(1) Direct use of individual measurements of COC concentrations

from discrete judgmental samples of an environmental medium. The person shall

meet the following requirements:

(A) Collect and analyze a sufficient number of discrete judgemental

samples from an environmental medium to reliably identify areas of maximum

concentration, as well as areas with concentrations of COCs exceeding the

critical Tier 1 PCL as required in sec.350.33 of this title (relating to

 Affected Property Assessment); and


(B) If the executive director determines that insufficient

site-specific information exists to allow the person to meet the requirement

of subparagraph (A) of this paragraph, the executive director may require

the person to collect additional samples. This may include limited individual

samples or sampling based upon an appropriate grid spacing.

(2) Use of appropriate statistical methods based

upon the suitability of the data. The following provisions apply to the use

of statistical methods to determine representative concentrations of COCs

(note that the exposure areas specified are specific to human receptors and

may not be appropriate for ecological receptors):

(A) The person shall ensure that all assumptions for the selected

statistical method used for hypothesis testing or to compute confidence limits

for a population parameter such as the mean are met or critically examined

and explained to the satisfaction of the executive director if the assumptions

cannot be met (e.g., random sampling design, independence, normal or log-normal

distribution, etc.). The person shall follow appropriate statistical guidance

from one of the documents listed in the following figure or other references

acceptable to the executive director.

Figure 1: 30 TAC sec.350.34(a)(2)(A).


(B) For the <sup>GW</sup>GW<sub>

Ing</sub>, <sup>GW</sup>LT-GW<sub>Ing

</sub>, <sup>GW</sup>GW<sub>class 3</sub>, <
sup>GW</sup>LT-GW<sub>class 3</sub>, <
sup>SW</sup>GW, <sup>SW</sup>LT-GW, pathways,

 statistical methods shall not be used to determine representative COC 
concentrations

for the affected property in groundwater across wells (inter-well), but 
statistical

methods may be used to determine representative COC concentrations in 
groundwater

within an individual well (intra-well). Statistical methods may be used to

determine representative COC concentrations in groundwater across wells (inter-
well)

for the <sup>Air</sup>GW<sub>Inh-V</sub>

 and <sup>LT-Air</sup>GW<sub>Inh-V</sub>

pathways. The person shall determine representative concentrations of COCs

based upon the 95% Upper Confidence Limit (UCL) for the population mean with

a minimum of 10 samples (inter-well) or a minimum of 4 quarterly samples from

an individual well (intra-well). If the data is not appropriate for computing

confidence limits for the population mean or the person desires to use an

alternative statistical method, the person must obtain prior executive director

approval for the use of any alternative method.


(C) For surface water evaluations, the person shall use the

95% UCL for the population mean to determine the representative concentration

of COCs for each exposure area. A separate exposure area shall be established

for each affected surface water body. The person shall use a minimum data

set of 10 individual measurements for each exposure area. If the data is not

appropriate for computing confidence limits for the population mean or the

person desires to use an alternative statistical method, the person must obtain

prior executive director approval for the use of any alternative method.





(D) A person may only use statistical methods in accordance

with clauses (i) or (ii) of this subparagraph to evaluate whether the presence

of COCs in soils will be protective of the underlying groundwater.

(i) The person shall not use statistical methods to directly

determine a representative concentration of COCs in soil to evaluate compliance

with <sup>GW</sup>Soil under Tiers 1 and 2.


(ii) If a person is using equations under Tier 3, in accordance

with sec.350.55 of this title (relating to Tiered Human Health PCL Evaluation)

requiring representative concentrations of COCs in soil, the person shall

use the 95% UCL for the population mean to determine the representative 
concentration

of COCs. The person shall only use concentration data within the lateral and

vertical confines of the soils which exceed 100 times the Tier 1<emph type-
name="sup">

 GW</emph>Soil concentration developed in accordance with sec.350.59(b)

of this title (relating to Development of Human Health PCLs for Soil Exposure

 Pathways). If all of the measured concentrations of a COC in soil are less

than 100 times the Tier 1<sup> GW</sup>Soil concentration,

then the person may use concentration data which exceeds the Tier 1<sup>

 GW</sup>Soil concentration. The person shall use a minimum data set of 10

individual measurements. If the data is not appropriate for computing confidence

limits for the population mean or the person desires to use an alternative

statistical method, the person must obtain prior executive director approval

for the use of any alternative method.


(E) The following provisions apply to the determination of

representative concentrations of COCs for the surface and subsurface soil

exposure pathways listed in sec.350.59 (a), (c), (d), and (e) of this title

(relating to Development of Human Health PCLs for Soil Exposure Pathways):



(i) The person shall use discrete samples within surface soils

(i.e., multiple samples shall not be composited into a single sample). The

person shall divide the surface soils into separate vertical intervals to

determine representative concentrations of COCs for each vertical interval.

The intervals shall be the upper 6 inches, 6 inches to 5 feet below land 
surface,

5 feet to 10 feet below land surface, and 10 feet to 15 feet below the land

surface. The person shall use discrete samples within subsurface soils (i.e.,

multiple samples shall not be composited into a single sample) and divide

the subsurface soils into separate 5 foot vertical intervals.


(ii) The person shall use the 95% UCL for the population mean

to determine the representative concentration of COCs for each vertical interval

within an exposure area. The person shall use a minimum data set of 10 
individual

measurements for each vertical interval and exposure area. If the data is

not appropriate for computing confidence limits for the population mean or

the person desires to use an alternative statistical method, the person must

obtain prior executive director approval for the use of any alternative method.




(iii) The soil exposure area for residential properties shall

not exceed 1/8th acre or the size of the front or back yard of the existing

affected residential lot. The person may demonstrate to the executive director's

satisfaction that a larger area, not to exceed &laquo; acre, is appropriate

based upon the activity patterns of residents at a specific affected property.

If an area larger than 1/8th acre or the size of the front or back yard of

the existing affected residential lot is approved by the executive director,

the person shall note this fact by filing a deed notice in accordance with

sec.350.131(b)(8) of this title (relating to Instruments for Institutional

Controls) within the county real property records of the affected property.

If an area larger than 1/8th acre is approved by the executive director for

property associated with an innocent owner, the person shall note this fact

by filing a restrictive covenant in accordance with sec.350.131(b)(10) of

this title (relating to Instruments for Institutional Controls) within the

county real property records of the affected property.


(iv) The soil exposure area for commercial/industrial properties

shall not exceed 1/2 acre, unless it is demonstrated to the executive director's

satisfaction that a larger area, not to exceed 5 acres, is appropriate based

upon the activity patterns of commercial/industrial workers at a specific

affected property. If an area larger than &laquo; acre is approved by the

executive director, the person shall note this fact by filing a deed notice

in accordance with sec.350.131(b)(9) of this title (relating to Instruments

for Institutional Controls) within the county real property records of the

affected property. If an area larger than 1/2 acre is approved by the executive

director for property associated with an innocent owner, the person shall

note this fact by filing a restrictive covenant in accordance with 
sec.350.131(b)(11)

of this title (relating to Instruments for Institutional Controls) within

the county real property records of the affected property.


(F) For sediment evaluations, the exposure area shall encompass

drainage features, as well as stream channels, throughout the affected property.

The person shall divide the sediments into separate vertical intervals and

determine representative concentrations of COCs for each vertical interval.

The intervals shall be the upper 6 inches and 2 foot intervals below the upper

6 inches. The person shall use the 95% UCL for the population mean to determine

the representative concentration of COCs for each exposure area. The person

shall use a minimum data set of 10 individual measurements for each exposure

area. If the data is not appropriate for computing confidence limits for the

population mean or the person desires to use an alternative statistical method,

the person must obtain prior executive director approval for the use of any

alternative method.


(G) If the person concludes that the concentrations of COCs

in environmental media at the affected property are greater than background

concentrations as per subsection (b)(2)(C) of this section and desires to

use a representative background concentration as the PCL, the representative

background concentration is defined as the 95% Lower Confidence Limit (LCL)

of the background area. If the data is not appropriate for computing confidence

limits for the population mean or the person desires to use an alternative

statistical method, the person shall obtain prior executive director approval

for the use of any alternative method.

(i) The soils background area for the affected property is

defined as the area immediately surrounding the affected property which is

unaffected by the COCs at the affected property, except for COCs which are

anthropogenic background as defined in sec.350.2 of this title (relating

to Definitions and Acronyms). The background area shall have approximately

the same square footage as the affected property itself. Background soils

shall be of the same type and depth as the affected property soils.


(ii) Background for drainage ditch and stream sediments shall

be upgradient of the affected property within the same drainage ditch or stream.




(iii) Monitoring wells located to determine background concentrations

of COCs for the affected property shall be upgradient of the affected property

and along the same flow path as the wells on the affected property which produce

groundwater with COCs in excess of the residential critical Tier 1 PCL for

 class 1 groundwater.


(b) The person shall follow the procedures of this subsection

to determine if a response action in accordance with either sec.350.93 of

this title (relating to Remedy Standard A) or sec.350.94 of this title (relating

to Remedy Standard B) is necessary to protect human health and the environment.

The person shall make these determinations using the procedures described

in either paragraph (1) or (2) of this subsection.

(1) The person shall make a direct comparison between individual

measurements of COC concentrations within environmental media determined using

the procedure in subsection (a)(1) of this section and either the critical

PCLs or source medium PCLs, as applicable. If the concentrations of COCs within

environmental media determined using the procedure in subsection (a)(1) of

this section exceed either the critical PCLs or source medium PCLs as 
applicable,

a response action is required. The person shall establish groundwater, surface

soil, and subsurface soil PCLE zones as appropriate in accordance with 
sec.sec.350.58

and 350.60 of this title (relating to Determination of Critical Groundwater

PCLs and Critical Groundwater Lateral Transport PCLs, and Determination of

Critical Surface and Subsurface Soil PCLs).

(2) The person shall determine if a response action is

required by using the methods in subparagraphs (A), (B) or (C) of this paragraph

and then checking to determine if the requirement of subparagraph (D) of this

paragraph is met. The person shall ensure that all assumptions for the selected

statistical method used for hypothesis testing or to compute confidence limits

for a population parameter such as the mean are met or critically examined

and explained to the satisfaction of the executive director if the assumptions

cannot be met (e.g., random sampling design, independence, normal or log-normal

distribution, etc.). The person shall follow appropriate statistical guidance

from one of the documents listed in the following figure or other references

acceptable to the executive director.
Figure 1: 30 TAC sec.350.34(a)(2)(A)



(A) The person shall compare the representative concentrations

of COCs as determined in subsection (a)(2) of this section to either the 
critical

PCLs or source medium PCLs, as applicable. If the representative concentrations

of COCs for an exposure area as determined in subsection (a)(2) of this section

exceed either the critical PCLs or source medium PCLs, as applicable, a response

action is required and the person shall establish a PCLE zone for the entire

exposure area. If the critical PCL is based upon a pathway which allows the

development of representative concentrations of COCs under subsection (a)(2)

of this section and the representative concentration of a COC is less than

the critical PCL or source medium PCL, as applicable, then the person shall

proceed under subsection (b)(1) of this section to ensure that no other exposure

pathway requires a response action (e.g., check to see that individual 
measurements

of COC concentrations in soil do not exceed <sup>GW</sup>Soil).




(B) The person may conduct a statistical hypothesis test to

determine if a response action is necessary only for those exposure media

and pathways for a which a representative concentration of COCs may be 
determined

under subsection (a)(2) of this section. The null hypothesis (Ho:) shall

state that the mean population concentration is greater than or equal to the

PCL. The type 1 error rate shall be less than or equal to 5%. The person shall

use a minimum data set of 10 individual measurements for each exposure area.

Exposure areas shall be determined in accordance with the requirements for

exposure areas in subsection (a)(2) of this section. If the data is not 
appropriate

for conducting a hypothesis test, the person shall proceed under paragraph

(1) of this subsection. If the null hypothesis is not rejected, a response

action is required, unless the mean population concentration is equal to the

PCL. If the null hypothesis is not rejected, then the person shall establish

a groundwater, surface soil, and subsurface soil PCLE zone, as appropriate,

for the entire exposure area.


(C) In order to determine if concentrations of COCs in environmental

media at the affected property are greater than COC concentrations for 
background

areas, the person shall use a two-sample one-sided statistical test when 
comparing

the two populations. The null hypothesis (Ho:) shall state that the mean

population concentration of the affected property is greater than or equal

to the mean population concentration of the background area. The type 1 error

rate shall be less than or equal to 5%. The person shall use a minimum data

set of 10 individual measurements for each population. Both population 
distributions

shall have the same shape (e.g., they shall both be normally distributed,

symmetric, etc.). The person shall obtain executive director approval for

the use of any alternative methods.


(D) If the concentration of a COC from any single sample exceeds

five times either the critical PCL or the source medium PCL, as appropriate,

then a response action is required.


(c) Whenever statistical methods are used in response to subsection

(a)(2) or (b)(2) of this section, the person shall submit a Sampling and 
Statistical

 Analysis Plan (SSAP) which contains the information specified in sec.350.111

of this title (relating to Sampling and Statistical Analysis Plan) in accordance

with the schedule established in sec.350.93 of this title (relating to Remedy

Standard A) or sec.350.94 of this title (relating to Remedy Standard B).





<nl>sec.350.35. Data Acquisition and

Reporting Requirements.


(a) Field quality assurance/quality control requirements.

The person shall collect quality control samples as required in paragraphs

(1) - (5) of this subsection to assess the quality of sampling procedures.

The quality control samples shall be used to detect problems in sampling such

as potential contamination from incomplete decontamination of the sampling

equipment; contamination introduced in the field during sample handling; 
container

or preservative contamination; atmospheric contamination; and variability

in the samples. At a minimum, the quality control samples shall consist of

the following:

(1) Field duplicates are used to assess the quality of sampling

methods and sample handling. The person shall collect a minimum of one field

duplicate sample per matrix, and one additional field duplicate sample per

matrix for every 10 samples collected per matrix.

(2) Co-located samples are taken next to each other to

provide data on variability of the COCs in soils. The person shall collect

a minimum of one co-located soil sample, and one additional co-located soil

sample for every 20 soil samples collected.

(3) The following additional quality control samples

are required for affected property addressed with state funds.

(A) Equipment rinsate blanks are used to evaluate equipment

decontamination measures. The person shall collect at least 1 equipment rinsate

blank per day for each medium sampled by pouring laboratory grade distilled

water over the sample collection equipment after decontamination has been

performed.


(B) Trip blanks are used to assess the amount of volatile

organic compounds (VOCs) that are absorbed through the sample container while

in the field and/or during shipment to and from the laboratory. The person

shall require the laboratory to prepare a trip blank by filling a 40-mL VOC

vial with ASTM Type II reagent grade distilled water. The trip blank shall

be placed unopened in the cooler used to transport, store, or hold environmental

soil and water samples for volatile analyses. The trip blank shall accompany

the cooler throughout the transport process from the laboratory to the affected

property, the collection of the samples, and the transport of the cooler back

to the laboratory.


(C) Ambient blanks are used to assess the potential for introduction

of COCs into a sample from ambient field sources. The person shall prepare

these samples in the field by pouring laboratory grade distilled water into

a sample container and preparing it in the same way as all other samples to

provide the ambient blank with exposure to COCs equivalent to that of the

environmental samples.


(b) Laboratory analysis. The person shall ensure that the

laboratory selected to perform the analyses of samples has in place a quality

assurance program that complies with the requirements specified in the 
International

Organization of Standardization "Guide 25: General Requirements for the 
Competence

of Calibration and Testing Laboratories (ISO 25, 3rd Edition, 1990)." The

person shall also ensure that the selected laboratory performs the analyses

according to the specified method and shall require that the performing 
laboratory

have a standard operating procedure for each specified method in place prior

to the analysis of any environmental samples by that method. The performing

 laboratory's standard operating procedure shall include all method specified

 quality control checks and the associated acceptance criteria for these checks.

 The person shall ensure that any deviation to these standard operating 
procedures

 shall be documented in the case narrative for each sample batch. The analytical

quantitation limits shall be determined in accordance with the following 
requirements:



(1) The instrument detection limit (IDL) shall be determined,

on at least an annual basis, by multiplying by 3, the average of the standard

 deviation obtained on three nonconsecutive days from the analysis of a standard

solution (in reagent grade water or solvent) at a concentration 3 to 5 times

the instrument manufacture's suggested IDL, with seven consecutive measurements

per day. Each measurement shall be performed as though it were a separate

analytical sample (i.e., each measurement shall be followed by a rinse and/or

any other procedure normally performed between the analysis of separate 
samples).

IDLs shall be determined for each COC and provided upon request by the executive

director. If the instrument is adjusted in any way that may affect the IDL,

the IDL for that instrument shall be redetermined.

(2) The MDL shall be estimated using the IDL, as described

in paragraph (1) of this subsection, and shall be determined on an annual

basis using documented procedures which meet, or exceed, the requirements

in 40 CFR 136, Appendix B, including the iterative procedure to verify the

reasonableness of the initial estimate of the MDL (Step 7 in Appendix B of

40 CFR 136).

(3) The MQL can be established by the laboratory using

the "5 to 10 times the MDL" approach discussed in SW846, and shall be the

lowest non-zero calibration standard for the COC. The person shall select

an analytical method which provides a MQL below the critical Tier 1 PCL. If

it is not possible to achieve a MQL below the critical Tier 1 PCL, then the

person shall select the method that provides the lowest possible MQL for that

COC. The executive director may require that the person demonstrate that a

lower MQL is not achievable or is not practicable.

(4) The sample quantitation limit (SQL) shall be determined

for inorganic COCs by multiplying the IDL by the dilution factor (and the

reciprocal of the percent solids if the sample is considered a solid) in the

sample. The SQL shall be determined for organic COCs by multiplying the MQL

by the dilution factor (and the reciprocal of the percent solids, if the sample

is a solid) in the sample.


(c) Laboratory reporting requirements. The person shall ensure

that the performing laboratory reviews the data to ensure compliance with

the specified methods and the associated quality control acceptance criteria.

The person shall require the performing laboratory to note any anomalies in

the data using defined flagging criteria in accordance with the performing

laboratory's standard operating procedure for data review. The person shall

request the following hardcopy data from the laboratory, and shall have these

data readily available upon request by the executive director:

(1) For organic data:

(A) chain of custody record;


(B) sample receipt and log-in information;


(C) case narrative for each sample batch;


(D) system monitoring compound data (surrogate recoveries);




(E) matrix spike/spike duplicate data;


(F) laboratory control sample or blank spike data;


(G) method blank data;


(H) GC/MS tuning data;


(I) internal standard area and retention time summary;


(J) sample preparation information;


(K) sample data, including:

(i) summary results;


(ii) quantitation report;


(iii) chromatograms;


(iv) spectra; and


(v) instrument run log; and


(L) standard data, including;

(i) initial calibration;


(ii) continuing calibration;


(iii) quantitation reports;


(iv) chromatographs; and


(v) instrument run log.

(2) For inorganic data:

(A) chain of custody record;


(B) sample receipt and login information;


(C) case narrative for each sample batch;


(D) matrix spike data;


(E) duplicate data;


(F) laboratory control sample or blank spike data;


(G) method blank data;


(H) interference check sample;


(I) post digestion spike sample information;


(J) serial dilution results;


(K) method of standard addition information, if required;




(L) sample preparation information;


(M) sample data;


(N) summary results;


(O) raw sample data (i.e., instrument output); and


(P) standard data, including;

(i) initial calibration;


(ii) continuing calibration; and


(iii) raw sample data.


(d) Data review requirements. Upon receipt of the data, the

person shall ensure that data review/validation procedures are performed similar

to the procedures outlined in the USEPA Contract

Laboratory Program Data National Functional Guidelines for Inorganic Data

 Review (Feb 1994) and the USEPA Contract

 Laboratory Program Data National Functional Guidelines for Organic Data Review

 (Feb 1994). If less than 10 sample batches are generated for the sampling

event(s) which result in the submittal of a report described in Subchapter

E of this chapter (relating to Reports), one sample batch per

medium per analytical method shall be fully validated according to the data

reviewer's standard operating procedure. If more than 10 sample batches are

generated, 10% of the sample batches per medium per anlytical method shall

be fully validated according to the data reviewer's standard operating 
procedure.

All sample batches will be reviewed for chain of custody documentation, holding

time compliance, detection limits, calibration checks, surrogate recoveries

(organic analyses only), laboratory control sample recoveries, matrix 
spike/matrix

spike duplicate recoveries and relative percent difference, blank results

(i.e., field and laboratory blanks), post-digestion spike recoveries (inorganic

analyses only), interference check sample results (inorganic analyses only),

and dilution check sample results (inorganic analyses only). The results of

the data review/validation shall be summarized in a discussion included with

the information reported to the executive director, in accordance with 
subsection

(e) of this section. Based upon this review/validation, the data shall be

flagged with the appropriate qualifiers. The person performing the data 
review/validation

shall use the flags specified in paragraphs (1) and (2) of this subsection

to qualify the data.

(1) The following flags apply to inorganic data.

(A) The person shall use "U," when the analyte was analyzed

for, but was not detected above the level of the associated value. The 
associated

value is the SQL.


(B) The person shall use "J," when the associate value is

an estimated quantity.


(C) The person shall use "R," when the data are unusable.

(Note: Analyte may, or may not, be present.)


(D) The person shall use "UJ," when the material was analyzed

for, but was not detected. The associated value is an estimate and may be

inaccurate or imprecise.

(2) The following flags apply to organic data.




(A) The person shall use "U," when the analyte was analyzed

for, but was not detected above the reported quantitation limit. The associated

value is the sample quantitation limit.


(B) The person shall use "J," when the analyte was positively

identified and the associated numerical value is the approximate concentration

of the analyte in the sample.


(C) The person shall use "N," when the analysis indicates

the presence of an analyte for which presumptive evidence exists to make a

"tentative identification."


(D) The person shall use "NJ," when the analysis indicates

the presence of an analyte that has been "tentatively identified" and the

associated numerical value represents its approximate concentration.


(E) The person shall use "UJ," when the analyte was not detected

above the reported sample quantitation limit. However, the reported quantitation

limit, i.e., the sample quantitation limit, is approximate and may, or may

not, represent the actual limit of quantitation necessary to accurately and

precisely measure the analyte in the sample.


(F) The person shall use "R," when the associated data are

rejected due to serious deficiencies in the ability to analyze the sample

and meet quality control criteria, or the presence or absence of the analyte

cannot be verified.


(e) Data reporting requirements. All analytical data reported
 to the agency shall meet the following requirements:

(1) The person shall prepare data summary tables for all environmental
 samples, including field duplicates. The data summary tables shall include
 the following:

(A) the analytical results for each COC. These results shall
 be reported down to the applicable detection limit (i.e., IDL);


(B) the analytical results for each tentatively identified
 compound (TIC). Except for low concentration water analyses, the analytical
 results of the largest peaks which are not system monitoring compounds, 
internal
 standards, or target compounds, and which have area or height greater than
 10% of the area or height of the nearest internal standard, will be reported.
 For low water concentration analyses, the results of the largest peaks which
 meet the above criteria, but are 40 percent of the area or height of the
internal standard, will be reported. For low concentration water analyses,
the mass spectra search must include the NIST/EPA/NIH and/or Wiley mass spectral
library. For medium to high concentration water analyses, the search can
be limited to the NIST library. In areas of known contamination or where
the associated process-knowledge exists, the executive director may determine
that results for TICs may not be required.


(C) the operating MDL used by the laboratory(ies) during the
 analyses of the samples;


(D) the sample location, the sample ID#, the date sampled,
 and the sample preparation method number, and the sample analytical method
 number;


(E) the operating MQL;


(F) the SQL, as applicable;


(G) any data qualifiers applied by the data reviewer or the
 laboratory, with the qualifiers used by the data reviewer taking precedence
 over the laboratory's;


(H) footnotes which include the definition for each data qualifier
 used;

(2) The person shall report the data in the summary
 tables in the following manner:

(A) Measurements above the quantitation limit (i.e., the SQL
 or MQL) which are within the linear range of the calibration shall be reported
 as the values measured. Samples which have COCs measured above the linear

range of the calibration shall be diluted, or otherwise manipulated in the

laboratory, and reanalyzed until the measurements are within the linear range

of the instrument.


(B) Measurements between the quantitation limit (i.e., the

SQL or MQL) and the IDL shall be reported as the value estimated by the 
laboratory

and flagged with an alpha character in accordance with subsection (d) of this

section to indicate the COC is present but the value is an estimate.


(C) Measurements below the detection limit (i.e., IDL) shall

be reported as less than the value of the detection limit.


(D) Review/validation data qualifiers shall be assigned to

the data after the laboratory qualifiers and shall supersede the laboratory

qualifiers.

(3) The person shall include the following with

any reports prepared in accordance with Subchapter E of this chapter (relating

to Reports) which require the submission of analytical data:

(A) The person shall include, as an appendix to the report,

the data review/validation summary. The data review/validation summary shall

identify samples that were subjected to the data review process and samples

that were subjected to the full data validation process. The data 
review/validation

summary shall include the conclusions of the data reviewer and shall discuss

the usability of the data based on the data review.


(B) The person shall include, as an appendix to the report,

a table which cross-references current field location numbers with any 
historically

used field location numbers, if appropriate, the field/sample ID numbers with

the laboratory ID numbers and the associated QC batch number.


(C) The person shall submit, as an appendix to the report,

the laboratory case narrative for each sample batch. The laboratory case 
narrative

shall identify the method and the laboratory's associated standard operating

procedure, and shall note and discuss all deviations to the method and/or

problems, or anomalies, associated with the data. The laboratory case narrative

shall state that "all samples were processed according to the cited standard

operating procedure except as noted in this case narrative." The laboratory

case narrative shall identify by title and name the laboratory manager 
responsible

for the release of the data and shall include his/her signature.


(D) The person shall include, as an appendix to the report,

the laboratory quality control data reports which shall include the results

and applicable acceptance criteria for all of the blanks (e.g., method, trip,

rinse, and field blanks), the surrogates for organic COCs, the post-digestion

spikes and serial dilutions for inorganic COCs, the matrix spikes and matrix

spike duplicates, the laboratory control samples, and the laboratory duplicates.

The identity of each sample batch shall be unambiguously reported with the

results so that a reviewer can identify the quality control samples and the

associated environmental samples.


(E) The person shall include, as an appendix to the report,

a table presenting the sample identification number, the date of sample 
collection,

the date of extraction/digestion, the date of analysis, and whether the sample

was properly preserved.


(F) The person shall include, as an appendix to the report,

the completed chain of custodies for all the environmental samples.

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 May

 4, 1998.

TRD-9806237


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter C. Development of Protective Concentration Levels




30 TAC sec.sec.350.51-351.62

STATUTORY AUTHORITY The new rules are proposed under Texas

 Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the new rules are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the new rules is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The new rules affect Water Code, Chapter 26, and Health and Safety Code

Chapter 361.



<nl>sec.350.51. General Requirements.





(a) Unless the conditions in subsection (g) of this section

are met for individual COCs, the person shall develop PCLs for each COC detected

in environmental media for:

(1) all complete or reasonably anticipated exposure pathways

for ecological receptors as required in sec.350.56 of this title (relating

to Ecological Risk Assessment and Development of Ecological PCLs);

(2) the mandatory groundwater exposure pathways listed

in sec.350.57(a) or (b) of this title (relating to Development of Human

Health PCLs for Groundwater Exposure Pathways) depending on the groundwater

class, and the mandatory soil exposure pathways listed in sec.350.59(a),

(b) and (c) of this title (relating to Development of Human Health PCLs for

Soil Exposure Pathways);

(3) the complete or reasonably anticipated contingent

groundwater exposure pathways listed in sec.350.57(c), (d), and (e) of this

title (relating to Development of Human Health PCLs for Groundwater Exposure

Pathways), and the complete or reasonably anticipated contingent soil exposure

pathways listed in sec.350.59(d), (e) and (f) of this title (relating to

Development of Human Health PCLs for Soil Exposure Pathways); and

(4) the complete or reasonably anticipated air, surface

water, and sediment exposure pathways as required in sec.350.61 of this

title (relating to Development of PCLs for Air, Surface Water and Sediments).





(b) The person is not required to combine exposure pathways

across source media (e.g., soil exposure pathways combined with groundwater

exposure pathways) unless otherwise directed by the executive director.


(c) For COCs which have both carcinogenic and noncarcinogenic

effects for an exposure pathway, the person shall establish separate PCLs

for both carcinogenic and noncarcinogenic effects for the individual and 
combined

exposure pathways established in sec.350.57 of this title (relating to 
Development

of Human Health PCLs for Groundwater Exposure Pathways) and sec.350.59 of

this title (relating to Development of Human Health PCLs for Soil Exposure

Pathways). The person shall then use the lower of the carcinogenic or 
noncarcinogenic

PCL when establishing the PCL for an exposure pathway.


(d) The person shall establish critical groundwater PCLs and

critical groundwater lateral transport PCLs in accordance with sec.350.58

of this title (relating to Determination of Critical Groundwater PCLs and

Critical Groundwater Lateral Transport PCLs) and critical surface and subsurface

soil PCLs in accordance with sec.350.60 of this title (relating to Determination

of Critical Surface and Subsurface Soil PCLs).


(e) The person shall:

(1) determine human health PCLs based on residential or commercial/industrial

exposure as appropriate for the land use of each affected on-site and off-site

 property;

(2) assume the human receptor is a resident for residential

property; and

(3) assume the human receptor is a commercial/industrial

worker for commercial/industrial property.


(f) The person shall ensure that PCLs developed are protective

for both on-site and off-site human receptors at the carcinogenic risk level

and hazard indices as specified in sec.350.52 of this title (relating to

Carcinogenic Risk Levels and Hazard Indices for Human Health Exposure Pathways).

To ensure protection for on-site human receptors, the person shall assume

potential for exposure to all COCs within an exposure area as described in

sec.350.34 of this title (relating to Determination of Concentrations of

COCs and Comparisons to PCLs) for which PCLs must be established. To ensure

protection of off-site human receptors, the person shall assume potential

for exposure to all COCs present at the affected property for which PCLs must

be established.


(g) For Tiers 1, 2, and 3 as explained in sec.350.55 of

this title (relating to Tiered Human Health PCL Evaluation), the person shall

establish PCLs for each individual COC within an environmental medium unless

the conditions in paragraphs (1), (2), (3), (4), or (5) of this subsection

are met.

(1) The COC meets all of the conditions in subparagraphs (A)

- (D) of this paragraph.

(A) the COC is detected in less than 5% of the samples for

a particular environmental medium;


(B) the COC is not detected in any other sampled environmental

medium;


(C) the COC is not detected at concentrations higher than

the critical Tier 1 PCL for that environmental medium; and


(D) there is no reason to believe that the COC may be present

 based upon historical operations at the affected property.

(2) The COC is a common laboratory contaminant (i.e.,

methylene chloride, acetone, toluene, 2-butanone (methyl ethyl ketone), 
phthalates

(dimethyl phthalate, diethyl phthalate, di-n-butyl phthalate, butylbenzyl

phthalate, bis(2-ethylhexyl) phthalate, di-n-octyl phthalate)) and does not

exceed 10 times the amount detected in the method blanks and the COC is not

anticipated to be present based on historical operations at the affected 
property.




(3) The COC is a tentatively identified compound, but

is not a transformation product of COCs present at the affected property,

nor is it associated with historical operations at the affected property.




(4) The maximum concentration of the COC does not exceed

the property-specific natural or anthropogenic concentration at the affected

property for that COC.

(5) The maximum concentration of the COC detected in

soils on the affected property does not exceed the lower of 1/10th of the

residential Tier 1 <sup>Tot</sup>Soil<sub>

Comb</sub> PCL and 1/10th of the residential Tier 1 <sup>

GW</sup>Soil PCL, both of which shall be based on a 30 acre source area 
assumption.

The maximum concentration of the COC detected in groundwater on the affected

property does not exceed 1/10th of the residential Tier 1 <sup>

GW</sup>GW<sub>Ing</sub> PCL.


(h) The person shall use the same set of COCs established

in accordance with subsection (g) of this section when PCLs are determined

for Tiers 1, 2 or 3. The set of COCs shall not be changed by moving through

the tiered process set forth in sec.350.55 of this title (relating to Tiered

Human Health PCL Evaluation).


(i) As part of the development of PCLs, regardless of the

tier of evaluation as addressed in sec.350.55 of this title (relating to

Tiered Human Health PCL Evaluation), the person shall use the RBELs provided

in sec.350.54 of this title (relating to Development of Risk-Based Exposure

Limits) and as provided in the following figure depending upon the particular

land use. Figures 1 or 2; 30 TAC sec.350.54(a)



<nl>sec.350.52. Carcinogenic Risk Levels

and Hazard Indices for Human Health Exposure Pathways.


(a) As the first step in the development of PCLs for human

health exposure pathways, the person shall base the RBELs developed in 
accordance

with sec.350.54 of this title (relating to Development of Risk-Based Exposure

Limits) on the following carcinogenic risk level and hazard quotient.

(1) Carcinogenic COCs. The RBEL for each carcinogenic COC

shall be based on a carcinogenic risk level of 1 x 10<sup>

-5</sup> (1 in 100,000) except when other standards shall be used as RBELs

as discussed in sec.350.54 of this title (relating to Development of Risk-Based

Exposure Limits).

(2) Noncarcinogenic COCs. The RBEL for each noncarcinogenic

COC shall be based on a hazard quotient of 1 except when other standards shall

be used as RBELs as discussed in sec.350.54 of this title (relating to 
Development

of Risk-Based Exposure Limits).


(b) In the development of PCLs, the person shall comply with

subsections (c) and (d) of this section.


(c) Below are the carcinogenic risk level and hazard quotient

requirements for individual COCs.

(1) Carcinogenic COCs. The PCLs for each carcinogenic COC,

including those PCLs based on combined exposure pathways, shall be based on

a carcinogenic risk level of 1 x 10<sup>-5</sup> except

when other standards apply as set forth in sec.350.54 of this title (relating

to Development of Risk-Based Exposure Limits).

(2) Noncarcinogenic COCs. The PCLs for each noncarcinogenic

COC, including those PCLs based on combined exposure pathways, shall be based

on a hazard quotient of 1 except when other standards apply as set forth in

sec.350.54 of this title (relating to Development of Risk-Based Exposure

Limits).


(d) The person shall evaluate whether the PCLs for a human

health exposure pathway need to be adjusted to lower concentrations to meet

the cumulative carcinogenic risk level and hazard index criteria in subsection

(e) of this section when there are more than 10 carcinogenic COCs and/or more

than 10 noncarcinogenic COCs within a source medium. The person shall conduct

this evaluation separately for each individual and combined human health 
exposure

pathway for which PCLs must be developed in accordance with sec.350.51(a)(2)-(4)

of this title (relating to General Requirements). For each tier this cumulative

evaluation shall include all COCs for which the person is required to establish

PCLs in accordance with sec.350.51(g) of this title (relating to General

Requirements). In cases where ten or more carcinogenic COCs and ten or more

noncarcinogenic COCs are present in the source medium, the cumulative evaluation

shall be conducted for both carcinogenic COCs and noncarcinogenic COCs by

separately addressing the cumulative effects of multiple carcinogenic COCs

and multiple noncarcinogenic COCs. The COCs which exhibit both carcinogenic

and noncarcinogenic characteristics shall be counted as both a carcinogenic

COC and a noncarcinogenic COC and evaluated as required by this subsection.

This evaluation shall be modified as specified in paragraphs (1)-(6) of this

 subsection.

(1) For the groundwater ingestion exposure pathway, the person

shall not include COCs with a primary maximum contaminant level (MCL) as 
provided

in 40 Code of Federal Regulations (CFR) Part 141 or the most currently available

federal action level for drinking water (e.g., lead and copper) in the 
cumulative

carcinogenic risk level or hazard index evaluation when that MCL or action

level is the groundwater ingestion PCL. The person is also not required to

include COCs with a secondary MCL as provided in 40 CFR Part 143 in the 
cumulative

carcinogenic risk level or hazard index evaluation when the secondary MCL

is used as the groundwater PCL and is based on a RBEL established in accordance

with sec.350.54(f)(3) of this title (relating to Development of Risk-Based

 Exposure Limits) for that COC.

(2) The person is not required to comply with subsection

(e) of this section for the class 3 groundwater PCL <sup>

GW</sup>GW<sub>Class 3</sub>.

(3) When Occupational Safety and Health Administration

permissible exposure limits (PELs) are used at affected industrial properties

as RBELs for air inhalation exposure in accordance with sec.350.54(b)(2)

of this title (relating to Development of Risk-Based Exposure Limits), the

person shall not include the inhalation exposure pathway when performing the

cumulative carcinogenic risk level or hazard index evaluation during the 
determination

of PCLs (i.e., <sup>Tot</sup>Soil<sub>

Comb</sub>, <sup>Air</sup>Soil<sub>Inh-V

</sub>, <sup>LT-Air</sup>Soil<sub>Inh-V

</sub>, <sup>Air</sup>Soil<sub>Inh-VP

</sub>, <sup>LT-Air</sup>Soil<sub>Inh-VP

</sub>, <sup>Air</sup>GW<sub>Inh-V</sub>, <
sup>LT-Air</sup>GW<sub>Inh-V</sub>).

(4) The person is not required to conduct an additional

cumulative check in accordance with subsection (e) of this section for the

soil-to-groundwater PCL <sup>GW</sup>Soil. The cumulative

 check is already addressed when establishing <sup>GW</sup>Soil

to meet the groundwater PCLs which have been adjusted to comply with the 
criteria

specified in subsection (e) of this section.

(5) The person is not required to comply with subsection

(e) of this section for the groundwater-to-surface water PCL <sup>

SW</sup>GW.

(6) The person shall not include the PCL established

in sec.350.62 of this title (relating to Approaches for Specific COCs) for

lead in soil in the hazard index evaluation.


(e) The person shall use the following criteria for the cumulative

carcinogenic risk level and hazard index when determining if the evaluation

in subsection (d) of this section requires PCLs for individual COCs to be

adjusted to a lower concentration.

(1) Carcinogenic COCs. The cumulative carcinogenic risk level

for multiple carcinogenic COCs shall not exceed 1 x 10<sup>

-4</sup>.

(2) Noncarcinogenic COCs. The hazard index for multiple

noncarcinogenic COCs shall not exceed 10.


(f) The person shall use the equation in the following figure

to adjust PCLs to a lower concentration as required in subsection (d) of this

section to achieve the cumulative carcinogenic risk level or hazard index

established in subsection (e) of this section. The person shall adjust the

PCL for one or more COCs to a lower concentration (carcinogens and 
noncarcinogens

are treated separately) such that the conditions of the equation are met.

The person shall choose which PCLs are adjusted downward and the magnitude

of the reduction. The PCL<sub>i</sub> shall remain constant

in the denominator. PCL-adj<sub>i</sub>, which is the final

human health PCL for a particular COC and exposure pathway, shall be less

than or equal to PCL<sub>i</sub>.

Figure 1: 30 TAC sec.350.52(f)



<nl>sec.350.53. Determination and Use

of Human Toxicity Factors and Chemical Properties.


(a) The person shall use the most current chronic human toxicity

factors taken from the following hierarchy of sources (unless otherwise 
specified

in sec.350.62 of this title (relating to Approaches for Specific COCs))

as of the submittal date of the self implementation notice (SIN) or the approval

date of the RAP as required in Subchapter D of this chapter (relating to Remedy

Standards), unless the executive director determines during review of the

RACR described in sec.350.116 of this title (relating to Response Action

Completion Report) that a change in a toxicity factor has been of such a 
magnitude

that the PCLs previously developed for a COC would not be adequately protective

 of human health and the environment.

(1) U.S. EPA Integrated Risk Information System (IRIS);

(2) U.S. EPA Health Effects Assessment Summary Tables;




(3) U.S. EPA National Center for Environmental Assessment

(i.e., Superfund Technical Support Center);

(4) TNRCC Chronic Remediation-Specific Effects Screening

Levels;

(5) Agency for Toxic Substances and Disease Registry;

and

(6) other scientifically valid sources as approved by

the executive director.


(b) For COCs which do not have any human chronic toxicity

factors provided in the sources listed in subsection (a) of this section,

the person shall request that the executive director provide chronic toxicity

factors. The recommended chronic toxicity factors shall be developed in 
accordance

with U.S. EPA methodologies using toxicological data or data from 
epidemiological

studies from the peer-reviewed scientific literature or from in-house studies

conducted in accordance with "Good Laboratory Practices Standards." The person

may provide toxicological information to the executive director for 
consideration

in the derivation of the chronic toxicity factors. The person shall provide

all toxicological data from any toxicological studies conducted for the person

when such information is requested by the executive director.

(1) For COCs classified as Groups A, B, and C carcinogenic

COCs, or as "known/likely" under the 1996 U.S. EPA "Proposed Guidelines for

Carcinogen Risk Assessment," results from well-designed carcinogenicity 
bioassays

and standard dose-response models shall be used if available. In the absence

of results from well-designed carcinogenicity bioassay studies, the data for

structurally-related COCs may be used.

(2) Toxicity factors for noncarcinogenic COCs shall be

calculated using appropriate safety factors. Results from well-designed and

conducted chronic toxicity studies shall be considered first. The no-observable

adverse effects level (NOAEL) shall be selected. The lowest-observable adverse

effect level shall be selected when NOAELs are not available. In the absence

of results from well-designed chronic or relevant subchronic studies, the

 data for structurally-related COCs may be used.

(3) The person shall use the TNRCC Chronic Remediation-Specific

Effects Screening Level (ESL) value as the reference concentration (RfC) in

evaluating the inhalation pathway for both residential and commercial/industrial

land use in accordance with sec.350.59(a) and (d) of this title (relating

to Development of Human Health PCLs for Soil Exposure Pathways), and all chronic

inhalation exposure pathways for which PCLs are established in accordance

with sec.350.59(f) of this title, but only in cases where neither a U.S.

EPA unit risk factor (URF) nor a U.S. EPA RfC is available for that COC from

the hierarchy list provided in subsection (a) of this section. For example,

if a COC has only an oral slope factor, then the COC shall be evaluated for

carcinogenic effects for ingestion, dermal and vegetable uptake exposure 
pathways;

and as a noncarcinogen for the inhalation pathway using the Chronic Remediation-
Specific

ESL in the noncarcinogenic inhalation RBEL-1 equation (<sup>

Air</sup>RBEL<sub>Inh-nc</sub>) as provided in the following

figure. A Chronic Remediation-Specific ESL shall not be used when there is

either a U.S. EPA URF or RfC in the hierarchy list in subsection (a) of this

section. The person shall use the most current Chronic Remediation-Specific

ESL value as of the submittal date of the SIN or the approval date of the

RAP as required in Subchapter D of this chapter (relating to Remedy Standards).


Figure 1: 30 TAC sec.350.54(a)


(c) Unless prior approval is provided by the executive director

in accordance with sec.350.54(j)(2) of this title (relating to Development

of Risk-Based Exposure Limits) to use a subchronic exposure duration (i.e.,

&lt;7 years) for a commercial/industrial property, the person shall not use

subchronic toxicity factors.


(d) In the situation where different reference doses have

been established for a COC based on water ingestion and food consumption,

the person shall use the reference dose for water ingestion for the water

ingestion exposure pathway and the reference dose for food consumption for

all soil exposure pathways.


(e) The person shall use the COC chemical/physical parameter

values for COCs provided in in the following figure to calculate PCLs, unless

the executive director identifies an alternative value in guidance. If the

executive director identifies an alternate value in guidance, then the person

shall use the most current values as of the submittal date of the SIN or the

approval date of the RAP as required in Subchapter D of this chapter (relating

to Remedy Standards).

Figure 1: 30 TAC sec.350.53(e)

(1) If the executive director determines during the review

of the RACR that the COC chemical/physical parameter value initially provided

by the executive director has changed to a more scientifically supportable

COC chemical/physical parameter value such that a previously determined PCL

would not be adequately protective of human health and the environment; then

the person shall be required to use the more protective value.

(2) For Tiers 2 and 3, the person may determine property-specific

soil pH in accordance with this paragraph in order to account for the high

pH dependence of the soil-water partition coefficient (K<sub>

d</sub>) of inorganic compounds and the organic carbon-water partition 
coefficient

(K<sub>oc</sub>) of ionizing organic compounds. The pH shall

be the 95% Lower Confidence Limit (LCL) for the condition when K<sub>

d</sub> increases with increasing pH and the 95% Upper Confidence Limit (UCL)

when K<sub>d</sub> decreases with increasing pH. Samples

shall be collected from appropriate locations to be representative of conditions

along the COC transport pathway (e.g., samples from similar soil types or

similar depths). The person shall use a minimum data set of 10 individual

measurements. If the data is not appropriate for computing confidence limits

for the population mean, the person must obtain prior executive director 
approval

for the use of any alternative method. Once the property-specific pH is 
determined,

the person shall apply subparagraphs (A) - (C) of this paragraph as applicable

to determine pH-dependent K<sub>d </sub> and K<sub>

oc</sub> values unless another appropriate method is approved by the executive

director.

(A) For aluminum and lead, the person shall select a K<
sub>d</sub> from the following figure in accordance with the

pH range and the total weight percent of clay, organic matter, iron and aluminum

oxyhydroxide representative of the affected property soils.

Figure 2: 30 TAC sec.350.53(e)(2)(A)


(B) The person shall use in the following figure to determine

the pH-dependent K<sub>oc</sub> value for the ionizing organic

COCs listed.

Figure 3: 30 TAC sec.350.53(e)(2)(B)


(C) The person shall use in the following figure to estimate

the pH-dependent K<sub>d</sub> value for the inorganic COCs

 listed.

Figure 4: 30 TAC sec.350.53(e)(2)(C)

(3) For Tiers 2 and 3, the person may establish

alternate soil-to-plant biotransfer factors (Br<sub>abg</sub>

 and Br<sub>bg</sub>) by establishing the pH of the soil

and the soil type, and then identifying a biotransfer factor in the published

literature appropriate for those soil conditions. Alternatively, the person

can measure the biotransfer factor in accordance with procedures acceptable

to the executive director.



<nl>sec.350.54. Development of Risk-Based

 Exposure Limits.


(a) General requirement. The person shall use the criteria

provided in subsections (b) - (j) of this section and the RBEL equations 
provided

in the following figures for residents and for commercial/industrial workers

to establish RBELs appropriate for the type of COC, exposure pathway, receptor,

 and land use.

Figure 1: 30 TAC sec.350.54(a) and Figure 2: 30 TAC sec.350.54(a)




(b) Air inhalation RBEL.

(1) The air inhalation RBEL (<sup>Air</sup>RBEL<
sub>Inh</sub>) is the protective concentration of a COC in air

at the POE for human inhalation.

(A) For chronic exposures, RBELs are established for carcinogenic

COCs and noncarcinogenic COCs for residents and commercial/industrial workers

using equation RBEL-1 and the default exposure factors provided in the following

figures as applicable for the land use, unless the executive director approves

the use of alternate exposure factors in accordance with subsection (j) of

this section. Figures 1 or 2: 30 TAC sec.350.54(a)


(B) For acute exposures, where PCLs are to be established

in accordance with sec.350.59(c) of this title (relating to Development

of Human Health PCLs for Soil Exposure Pathways), the RBEL is the TNRCC Acute

Remediation-Specific ESL. The person shall use the most current value as of

the date of the SIN or the date of approval of the RAP by the executive director

as required in Subchapter D of this title (relating to Remedy Standards).




(2) The person may use Occupational Safety and Health

Administration (OSHA) Permissible Exposure Limits (PELs) under Tiers 2 and

3 as <sup>Air</sup>RBEL<sub>Inh</sub>

 for inhalation pathways for commercial/industrial workers at affected 
commercial/industrial

properties which have a health and safety plan in place. Tiers 2 and 3 are

described in sec.350.55 of this title (relating to Tiered Human Health PCL

Evaluation). The health and safety plan shall be designed to ensure compliance

with OSHA PELs and require the monitoring of COC levels in the working air

environment, and specify actions that will be taken in the event of exceedence

of the OSHA PELs. When PELs are used, the person shall provide documentation

of the health and safety plan, certify that the plan is followed, and 
demonstrate

that the off-site receptors are protected as required by sec.350.51(f) of

this title (relating to General Requirements). The use of PELs as RBELs shall

be noted in the real property records of the county of the affected property

in accordance with sec.350.131(b)(3) of this title (relating to Instruments

for Institutional Controls) and sec.350.94(g) of this title (relating to

Remedy Standard B). For property with an innocent owner, the use of PELs as

RBELs shall be noted as a restrictive covenant in the real property records

of the county of the affected property in accordance with sec.350.131(b)(6)

of this title and sec.350.94(g) of this title.


(c) Soil dermal contact RBEL. The soil dermal contact RBEL

(<sup>Soil</sup>RBEL<sub>Derm</sub>) is

the protective concentration of a COC at the POE in soil based upon direct

dermal contact to soil by humans. Separate values are established for 
carcinogenic

COCs and noncarcinogenic COCs for residents and commercial/industrial workers

using equation RBEL-2 and the default exposure factors provided in the following

figures as applicable for the land use unless the executive director approves

the use of alternate exposure factors in accordance with subsection (j) of

this section. The soil dermal contact RBEL shall also be based on COC-specific

values for dermal absorption fraction (ABS.d) and gastrointestinal absorption

fraction (ABS<sub>GI</sub>) provided in the following figure

, unless the executive director provides more current values in guidance or

approves the use of alternate ABS.d and ABS<sub>GI</sub>

values in accordance with subsection (j)(1) of this section.

Figure 3: 30 TAC sec.350.54(c)


(d) Soil ingestion RBEL. The soil ingestion RBEL (<sup>

Soil</sup>RBEL<sub>Ing</sub>) is the protective concentration

of a COC at the POE in soil based upon human ingestion. RBELs shall be 
established

for carcinogenic COCs and noncarcinogenic COCs for residents and 
commercial/industrial

workers using equation RBEL-3 and the default exposure factors provided in

the following figures, as applicable for the land use unless the executive

director approves the use of alternate exposure factors in accordance with

subsection (j) of this section.
Figures 1 or 2: 30 TAC sec.350.54(a)


(e) Vegetable ingestion RBEL. The vegetable RBELs (<sup>

AbgVeg</suph>RBEL<sub>Ing</sub> and <sup>

BgVeg</sup>RBEL<sub>Ing</sub>) are the protective concentration

of a COC in above-ground vegetables and below-ground vegetables, respectively,

for ingestion by residents. RBELs shall be established for carcinogenic COCs

and noncarcinogenic COCs for residents using the equation RBEL-7 and the default

exposure factors provided in the following figure, unless the executive director

approves the use of alternate exposure factors in accordance with subsection

(j) of this section. The person shall establish RBELs for ingestion of above-
ground

vegetables for all carcinogenic and noncarcinogenic COCs which are metals.

The person shall establish separate RBELs for ingestion of below-ground 
vegetables

containing organic and inorganic carcinogenic and noncarcinogenic COCs when

any of the following criteria are met: Figure 1: 30 TAC sec.350.54(a) </p>
<pp>(1) the COC is a metal;

(2) the COC has a logarithmic octanol-water partition

coefficient (Log K<sub>ow</sub>) greater than 4 as listed

in the following figure; or Figure 1: 30 TAC sec.350.53(e)

(3) the COC has a dimensionless Henry's Law Constant

less than 0.03 as listed in the following figure.
Figure 1: 30 TAC sec.350.53(e)





(f) Groundwater ingestion RBEL.

(1) The groundwater ingestion RBEL (<sup>

GW</sup>RBEL<sub>Ing</sub>) is the protective concentration

of a COC at the POE in groundwater based upon human ingestion of groundwater.

RBELs shall be established for carcinogenic COCs and noncarcinogenic COCs

for residents and commercial/industrial workers as applicable. The person

shall use the equation RBEL-4 and the default exposure factors provided in

the following figures applicable for the land use, unless the executive director

approves the use of alternate exposure factors in accordance with subsection

(j) of this section. However, if available, the person shall use the lower

of the two values established under paragraphs (2) and (3) of this subsection

instead. Figures 1 or 2: 30 TAC sec.350.54(a))

(2) The person shall use the primary MCL as provided

in 40 CFR Part 141 or the most currently available federal action level for

drinking water (e.g., lead and copper) as the RBEL when available for the

COC.

(3) The person shall use the secondary MCLs established

for individual COCs as provided in 40 CFR Part 143 as RBELs under the following

circumstances:

(A) when the COCs are present in class 1 groundwater;


(B) when the COCs are present in class 2 groundwater that

is within &laquo; mile of a well used to supply drinking water and is also

within or is likely to migrate, based upon the chemical properties of the

COCs and the hydrogeology, to the groundwater production zone of such drinking

water supply well; or when the COCs are present in class 2 groundwater and

there are no alternative water supplies available.


(g) Class 3 groundwater RBEL. The class 3 groundwater RBEL

(<sup>GW</sup>RBEL<sub>Class 3 </sub>)

is the acceptable concentration of a COC at the POE in class 3 groundwater.

The RBELs shall be established using the equation RBEL-5 provided in the 
following

figures as applicable for the land use unless the executive director approves

the use of alternate exposure factors in accordance with subsection (j) of

this section.
Figures 1 or 2: 30 TAC sec.350.54(a)


(h) Surface water RBEL. The surface water RBEL (<sup>

SW</sup>RBEL) is the protective concentration of a COC at the POE in surface

water. To establish <sup>SW</sup>RBEL for a COC, the person

shall determine the lowest value from paragraphs (1) - (4) of this subsection

for each COC, unless the person has sufficient surface water quality information

specific to the particular surface water body to support an adjustment to

the RBEL in accordance with paragraph (5) of this subsection. The <sup>

SW</sup>RBEL value determined pursuant to paragraphs (1)-(5) of this subsection

may require modification in response to the requirements of paragraphs (6)

and (7) of this subsection.

(1) The lower of the acute or chronic criteria for fresh or

marine waters as applicable, based on the classification of the surface water,

to protect aquatic life as provided in sec.307.6, Table 1 of this title

(relating to Toxic Materials). For fresh waters, the person shall calculate

aquatic life criteria for metals with hardness-dependent criteria at a hardness

value of 50 mg/l CaCO<sub>3</sub>. The person shall apply

criteria for metals as dissolved concentrations and not total concentrations,

with the exception of mercury and silver. The standard for mercury is for

total mercury and the standard for silver is for the free ion form. The person

shall convert total metal concentrations in groundwater to dissolved 
concentrations

as described in the Implementation Procedures. The person may use the basin-
specific

pH values provided in sec.307.6, Table 2 relevant to the particular affected

property for purposes of determining the appropriate values for the pH dependent

criteria. The person shall use the total suspended solids (TSS) concentration

for the nearest classified segment, as listed in Table 6 of the Implementation

 Procedures.

(2) Human health criteria to protect drinking water and

fisheries as provided in Table 3 of sec.307.6 of this title (relating to

Toxic Materials). The person shall apply criteria for metals as dissolved

concentrations and not total concentrations, with the exception of mercury

and selenium. The person shall convert total metal concentrations in groundwater

to dissolved concentrations as described in the Implementation Procedures.

The standards for mercury and selenium are for the total recoverable 
concentrations.

The person shall determine the applicability of human health criteria according

to the water body uses (e.g., public water supply, sustainable fishery, 
incidental

fishery) in accordance with the procedures contained in sec.307.3 and sec.307.6

of this title (relating to Definitions and Abbreviations, and Toxic Materials,

respectively) and the Implementation Procedures. The person shall use the

total suspended solids (TSS) concentration for the nearest classified segment,

as listed in Table 6 of the Implementation Procedures.

(3) Limits for discharges to surface waters of petroleum

fuel contaminated waters as specified in Subchapter H of Chapter 321 of this

title (relating to Discharge to Surface Waters from Treatment of Petroleum

Fuel Substance Contaminated Waters).

(4) The person shall apply EPA guidance criteria for

surface waters in accordance with sec.307.6 (c)(7) of this title (relating

to Toxic Materials) when criteria for aquatic life protection are not provided

for a COC in sec.307.6, Table 1. In addition, the person shall apply federal

guidance criteria for surface waters in accordance with sec.307.6(c)(7)

and (d)(8) of this title (relating to Toxic Materials) when human health 
criteria

for a COC are not provided in Table 3 of sec.307.6.

(5) The person may apply additional provisions where

data on surface water quality for a specific surface water body at the affected

property is available or can be reasonably obtained.

(A) The person may determine property-specific hardness, based

on sampling data, for calculating metals criteria in accordance with the 
procedures

contained in the Implementation Procedures.


(B) The person may determine property-specific total suspended

solids (TSS), based on sampling data, for estimating "dissolved" metals in

accordance with the Implementation Procedures.


(C) The person may determine the actual pH of the particular

surface water body at the affected property.

(6) Additional numeric and narrative criteria defined

in Chapter 307 of this title (relating to Texas Surface Water Quality 
Standards).




(A) General criteria related to aesthetic parameters, nutrient

parameters, and salinity in accordance with sec.307.4 (b), (e), and (g)

of this title (relating to General Criteria).


(B) Numerical criteria for chlorides, sulfates, total dissolved

solids, and pH for classified segments as specified in sec.307.10, Appendix

A of this title (relating to Appendices A-E).


(C) General provisions related to the preclusion of adverse

toxic effects on aquatic and terrestrial life, livestock, or domestic animals

in accordance with sec.307.6 (b) of this title (relating to Toxic Materials).




(7) If the executive director determines that the

release has the potential to lower the surface water dissolved oxygen, then

the executive director may require the person to apply the dissolved oxygen

criteria for classified segments specified in sec.307.10, Appendix A of

this title (relating to Appendices A-E), or the dissolved oxygen criteria

for unclassified waters specified in sec.307.10, Appendix D of this title,

sec.307.4 (h) of this title (relating to General Criteria), and sec.307.7

(b)(3)(A) of this title (relating to Site Specific Uses and Criteria).


(i) Aesthetics. For COCs for which a RBEL cannot be calculated

by the procedures of this section, or the RBEL concentration for the COC 
otherwise

adversely impacts environmental quality, or the public welfare and safety,

or presents objectionable characteristics (e.g., taste, odor), or makes a

natural resource unfit for use, the person shall comply with paragraphs (1)

- (3) of this subsection as appropriate.

(1) The potential for objectionable odors shall be determined

using commission Remediation-Specific Odor-Based ESLs. The person shall use

the most current Remediation-Specific Odor-Based ESL value for a COC as of

the submittal date of the SIN or the approval date of the RAP as required

in Subchapter D of this chapter (relating to Remedy Standards).

(2) The maximum total soil concentration of COCs which

are liquid at standard temperature and pressure shall not exceed 10,000 mg/kg

within the soil interval of 0-10 feet, unless it can be demonstrated to the

satisfaction of the executive director that:

(A) no free liquids or sludges exist or;


(B) that higher concentrations do not adversely impair surface

use of the affected property.

(3) Other scientifically valid published criteria

such as, but not limited to, non-COC specific secondary MCLs for water may

be required by the executive director to be used as the RBEL.


(j) Requirements for variance to default RBEL exposure factors.




(1) Under Tiers 2 or 3 as provided in sec.350.55 of this

title (relating to Tiered Human Health PCL Evaluation) and with prior executive

director approval, the person may vary the following default exposure factors

provided in the following figures based on conditions or exposure levels at

a particular affected property and in accordance with the conditions specified.

The person shall provide the supporting documentation to justify the use of

such alternative factors to the executive director.
Figures 1 and 2: 30 TAC

 sec.350.54(a) and Figure 3: 30 TAC sec.350.54(c)

(A) Gastrointestinal absorption fraction (ABS<sub>

GI</sub>). The person may use a scientifically justifiable ABS<sub>

GI</sub> value for soil in Tiers 2 and 3. Only in cases where the ABS<
sub>GI</sub> is less than 50% shall the oral slope factor and

oral reference dose be adjusted using equation RBEL-2 provided in the following

figures as applicable to calculate the corresponding dermal slope factor and

dermal reference dose. The person shall not use ABS<sub>

GI</sub> to modify the oral slope factor or oral reference dose for any exposure

pathway other than the dermal exposure pathway.
Figure 1 or 2: 30 TAC sec.350.54(a))




(B) Soil-to-skin adherence factors (AF.C.res, AF<sub>

(0&lt;6)</sub>, AF<sub>(6&lt;18)</sub>, AF<sub>

(18&lt;33)</sub>, and AF.w). The person may conduct scientifically valid

studies using soils specific to the affected property to determine acceptable

body-part specific alternative soil-to-skin adherence factors.


(C) Dermal absorption fraction (ABS.d). The person may conduct

a scientifically valid study using property-specific soils or may use 
scientifically

valid dermal absorption values from studies published after the effective

date of this chapter.


(D) Fraction of above-ground (Fabg.res) and below-ground (Fbg.res)

vegetables contaminated. The person may use an alternative value based on

scientifically valid local market basket surveys or information obtained from

local agricultural extension agents.


(E) Relative bioavailability factor (RBAF). The person may

use data from well designed property-specific bioavailabilty or mineralogical

evaluations.


(F) Dermal adjustment factor (DF.adj). The person may use

alternative soil-to-skin adherence factors in equation RBEL-2 provided in

the following figures as applicable to calculate an alternative DF.adj. The

person may conduct scientifically valid studies using soils specific to the

affected property to determine acceptable body-part specific alternative soil-
to-skin

adherence factors.
Figure 1 or 2: 30 TAC sec.350.54(a)

(2) Under Tier 3 as provided in sec.350.55 of

this title (relating to Tiered Human Health PCL Evaluation), a person may

request that the executive director allow a variance to the following default

commercial/industrial exposure factors for the affected property as detailed

in the following figure: averaging time for noncarcinogens (AT.w), exposure

duration (ED.w), and exposure frequency (EF.w). This shall only be allowed

for facilities that have or will have, as a condition of the approval, 
restricted

property access. The executive director shall not delegate this decision to

agency staff.
Figure 2: 30 TAC sec.350.54(a)

(A) The person shall submit information to the executive director

which demonstrates that variance from the default exposure factors is supported

by property-specific information; historical, current, and probable future

land use; redevelopment potential; and compatibility with surrounding land

use. The person shall also provide written concurrence from the landowner

for the placement of the deed notice/restrictive covenant in the county deed

records, as required in subparagraph (L) of this paragraph.


(B) The person requesting such variance shall provide public

notification regarding the request to vary the default exposure factors at

the same time that a request for such variance is submitted to the executive

director. The person shall provide notice of the variance request to the public

by means of a notice by publication and a notice by certified mail as described

in subparagraphs (D) and (E) of this paragraph.


(C) The notice shall contain, at a minimum, the following

information:

(i) the name, address and telephone number of the person requesting

the variance;


(ii) the address and the physical description for the location

of the property and the agency case designation number;


(iii) the modified value(s) the person seeks to use and the

associated default exposure factor(s) contained in the following figure;
Figure

 2: 30 TAC sec.350.54(a)


(iv) a clear and concise explanation as to the effect the

variance will have on the future use of the subject property and on surrounding

properties;


(v) a statement that more detailed information regarding the

variance request is available for review at the agency's central office in

Austin, Texas, 8:00 am - 5:00 pm Monday thru Friday; and


(vi) a notice to the public of the opportunity to submit written

information, within 30 calendar days after the date of the initial published

notice (publish the actual date), to the executive director which demonstrates

that the proposal for variance from the default exposure factors would be

compatible or incompatible with existing neighboring land uses and preservation

of the active and productive land use of the subject property.


(D) The notice by publication shall be published in a newspaper

distributed daily, if available, and generally circulated in the county or

area where the property is located. The notice shall be published once a week

for three weeks, with at least one of the notices appearing in a Sunday edition,

if available.


(E) The notice by certified mail, return receipt requested,

shall be sent to the following persons in clauses (i) - (viii) of this 
subparagraph.




(i) all adjacent landowners;


(ii) the local municipality planning board or similar governmental

unit, if applicable;


(iii) local taxing authorities;


(iv) the mayor and health authorities of the city in which

the property is located, if applicable;


(v) the county judge and county health authority of the county

in which the property is located;


(vi) the agency's Public Interest Council;


(vii) all persons or organizations who have requested the

notice or expressed interest; and


(viii) other persons or organizations specified by the executive

director.


(F) The person shall provide copies of each notice sent by

mail, copies of the published notice, and copies of the signed publisher's

affidavit for the initial notice to the agency's Austin office and to the

appropriate agency region office within 10 calendar days after the initial

publication and mailing. Copies of the signed publisher's affidavits for the

subsequent notices shall be provided to the agency's Austin office and to

the appropriate agency region office within 10 days of both subsequent notices.





(G) At the executive director's request, and at the expense

of the person, the person shall schedule and hold a public meeting at a time

and place which are convenient for persons identified in subparagraph (E)

of this paragraph. The forum chosen for the meeting shall comply with the

Americans with Disabilities Act. Prior to scheduling the public meeting, the

person shall coordinate the scheduling of the public meeting with the executive

director's office to ensure the availability of agency personnel for the 
meeting.

The person shall confirm with the executive director's office the date, time,

and location of the meeting not less than 15 days prior to the meeting. The

meeting shall be open to the public to provide information on the request

to vary the default exposure factors and to allow for comments by the public.

The person shall again confirm with the executive director's office on the

time and place of the meeting at least 72 hours prior to the meeting.


(H) In order to inform persons of the public meeting, the

person shall, at least 30 calendar days prior to the public meeting, follow

the notification process required in subparagraphs (C)-(F) of this paragraph

with the following exceptions:

(i) the notice shall be supplemented to include the date,

time, and location of the public meeting and to indicate that the meeting

is open to the public for the purposes of providing information on the request

to vary default exposure factors and to provide the public the opportunity

to provide comments on the request;


(ii) the notice shall indicate that the public shall have

15 calendar days after the date of the public meeting to submit written 
information

to the executive director which demonstrates that the proposal for variance

from the default exposure factors would be compatible or incompatible with

existing neighboring land uses and preservation of the active and productive

land use of the subject property; and


(iii) the notice by publication of the public meeting shall

only be published once and shall be placed in a Sunday edition, if available.





(I) The executive director's decision on the request for a

variance from the default exposure factors shall occur at least 15 calendar

days after any public meeting or if no public meeting is held, at least 45

days after the date of the initial published notice. The executive director's

decision shall be based upon property-specific data; historical, current,

and probable future land use; redevelopment potential; and compatibility with

surrounding land use.


(J) At the same time that the executive director's decision

is mailed to the person requesting the variance, a copy of this decision shall

also be mailed to all persons identified in subparagraph (E) of this paragraph.

The notice of the executive director's decision shall explain the method for

submitting a motion for reconsideration of the executive director's decision

by the commission.


(K) The person requesting the variance and persons identified

in subparagraph (E) of this paragraph may file with the chief clerk a motion

for reconsideration of the executive director's decision related to the request

for variance, in accordance with sec.50.39 (b) - (f) of this title (relating

to Motion for Reconsideration).


(L) A person who receives a variance from the default exposure

factors must indicate this fact in a deed notice in the real property records

of the county of the affected property in accordance with sec.350.131(b)(12)

of this title (relating to Instruments for Institutional Controls) and provide

proof of such filing prior to approval by the executive director of the RACR,

as required in Subchapter D of this chapter (relating to Remedy Standards).

A person who receives a variance from the default exposure factors for property

with an innocent owner must indicate this fact in a restrictive covenant in

the real property records of the county of the affected property in accordance

with sec.350.131(b)(13) of this title and provide proof of such filing prior

to approval by the executive director of the RACR, as required in Subchapter

D of this chapter.

(3) The person shall not vary the following exposure

factors provided in the following figures:
Figures 1 and 2: 30 TAC sec.350.54(a)




(A) averaging time for residents for noncarcinogens (AT.A.res

and AT.C.res) or carcinogens (ATc);


(B) body weight for adults and children (BW.A, BW.C, BW<
sub>(o&lt;6)</sub>, BW<sub>(6&lt;18)</sub>,

and BW<sub>(18&lt;33)</sub>);


(C) exposure duration for residents (ED.A.res, ED.C.res, ED<
sub>(o&lt;6)</sub>, ED<sub> (6&lt;18)</sub>,

and ED<sub>(18&lt;33)</sub>);


(D) exposure frequency for residents (EF.res);


(E) hazard quotient (HQ);


(F) ingestion rate for soil, water, or vegetables (IRsoil.AgeAdj.res,

IRsoil.C.res, IRsoil.w, IRw.AgeAdj.res, IRw.C.res, IRw.w, IRabg.AgeAdj.res,

IRbg.AgeAdj.res, IRabg.C.res, IRbg.C.res);


(G) toxicity modifying factor (MF);


(H) risk level (RL); and


(I) skin surface area (SA.C.res, SA <sub>

(o&lt;6)</sub>, SA <sub>(6&lt;18)</sub>, SA<sub>

 (18&lt;33)</sub>, SA.w).



<nl>sec.350.55. Tiered Human Health

 PCL Evaluation.


(a) General requirements.

(1) The person shall establish a human health-based PCL for

each COC identified in response to sec.350.51 (g) of this title (relating

to General Requirements) in accordance with Tier 1, 2, or 3 for:

(A) the mandatory groundwater exposure pathways listed in

sec.350.57(a) or (b) of this title (relating to Development of Human Health

PCLs for Groundwater Exposure Pathways) depending on the groundwater class,

and the mandatory soil exposure pathways listed in sec.350.59(a), (b) and

(c) of this title (relating to Development of Human Health PCLs for Soil 
Exposure

Pathways);


(B) the complete or reasonably anticipated contingent groundwater

exposure pathways listed in sec.350.57(c), (d), and (e) of this title (relating

to Development of Human Health PCLs for Groundwater Exposure Pathways), and

the complete or reasonably anticipated contingent soil exposure pathways listed

in sec.350.59(d), (e) and (f) of this title (relating to Development of

Human Health PCLs for Soil Exposure Pathways); and


(C) the complete or reasonably anticipated air, surface water,

and sediment exposure pathways as required in sec.350.61 of this title (relating

to Development of PCLs for Air, Surface Water and Sediments).

(2) The executive director may require the person

to establish PCLs in accordance with Tier 1, 2, and/or 3 for state-funded

response actions at affected properties.

(3) The person shall decide whether to use Tier 1, 2,

and/or 3 to determine the PCLs for an affected property, except as provided

in paragraph (2) of this subsection and unless required by subsection (b)

or (d) of this section to use a higher level tier because a lower level tier

does not reference an equation which can be used to determine PCLs for a human

health exposure pathway which is complete or reasonably anticipated.


(b) Requirements for determining Tier 1 PCLs.

(1) To establish Tier 1 PCLs, the person shall:

(A) use the groundwater source medium exposure pathway PCL

equations and the default affected property parameters provided in the following

figures for groundwater exposure pathways;
Figure 1: 30 TAC sec.350.57(a)(1),

Figure 2: 30 TAC sec.350.57(b)(1) and Figure 3: 30 TAC sec.350.57(c)(2)





(B) use the soil source medium exposure pathway PCL equations

and the default affected property parameters provided in the following figures

for soil exposure pathways;. Figure 1: 30 TAC sec.350.59(a)(1); Figure 2:

30 TAC sec.350.59(a)(2)(A); Figure 5: 30 TAC sec.350.59(b)(2); Figure

6: 30 TAC sec.350.59(c)(1); Figure 8: 30 TAC sec.350.59(d)(2); and Figure

10: 30 TAC sec.350.59(e)(1)


(C) use the COC chemical/physical parameter values provided

in the following figure modified, if necessary, in accordance with the 
requirements

of sec.350.53(f) of this title (relating to Determination and Use of Human

Toxicity Factors and Chemical Properties); and Figure 1: 30 TAC sec.350.53(e)





(D) use the relevant RBEL, appropriate for the type of COC,

exposure pathway, receptor, and land use, and the default exposure factors

provided in sec.350.54 of this title (relating to Development of Risk-Based

Exposure Limits) and in the following figures. Figures 1 and 2: 30 TAC 
sec.350.54(a)




(2) No lateral transport equations may be used for

a Tier 1 evaluation other than to ensure that receptors at off-site POEs are

protected when on-site commercial/industrial land use is assumed. The person

shall assume a 0.5 acre source area for an affected property with a 0.5 acre

or less source area and a 30 acre source area for an affected property with

a source area in excess of 0.5 acres. The size of the source area in groundwater

shall be determined using the critical Tier 1 groundwater PCL calculated for

a 0.5 acre source area. The size of the source area in soil shall be determined

using the critical Tier 1 PCLs for surface and subsurface soil calculated

for a 0.5 acre source area. The executive director may require that the source

area include all areas of the affected property which exceed the critical

Tier 1 PCLs and not just contiguous areas when such assumption is appropriate

considering the distribution of the COCs.

(3) The person shall establish PCLs using parameters

which are specific to the affected property when use of the Tier 1 default

affected property parameters would not be protective for human health or when

requested by the executive director. In this situation, the person shall 
establish

PCLs in accordance with subsections (c) and (d), or (c) and (e) of this section.




(4) The person shall establish PCLs in accordance with

subsections (c) and (d) or (c) and (e) of this section for any groundwater,

soil, surface water, air, or sediment human health exposure pathway which

is complete or reasonably anticipated at an affected property, or when required

by the executive director, and for which an equation is not referenced in

this subsection.


(c) Requirements common to determining Tier 2 and Tier 3 PCLs.

To establish Tier 2 or Tier 3 PCLs, the person shall:

(1) use the air source medium exposure pathway PCL equation

provided in the following figure for air exposure pathways; Figure 1: 30 TAC

350.61(a)

(2) use the surface water source medium exposure pathway

PCL equation provided in the following figure for surface water exposure 
pathways;

Figure 2: 30 TAC 350.61(b)

(3) establish PCLs for sediment human health exposure

pathways when such exposure pathways are complete or reasonably anticipated,

or when required by the executive director;

(4) use the relevant RBELs appropriate for the type of

COC, exposure pathway, receptor, and land use provided in sec.350.54 of

this title (relating to Development of Risk-Based Exposure Limits) and in

the following figures. Figures 1 and 2: 30 TAC sec.350.54(a)

(5) use the COC chemical/physical parameter values provided

in the following figure modified, if necessary, in accordance with the 
requirements

of sec.350.53(f) of this title (relating to Determination and use of Human

Toxicity Factors and Chemical Properties); Figure 1: 30 TAC sec.350.53(e)




(6) use the default exposure factors provided in the

following figures when determining RBELs or exposure factors modified in 
accordance

with sec.350.54(j) of this title (relating to Development of Risk-Based

Exposure Limits) and; Figures 1 and 2: 30 TAC sec.350.54(a)

(7) use:

(A) the Tier 1 default affected property parameters provided

in the following figures; or Figure 1: 30 TAC sec.350.57(a)(1); Figure 2:

30 TAC sec.350.57(b)(1); Figure 3: 30 TAC sec.350.57(c)(2); Figure 4:

30 TAC sec.350.57(c)(3); Figure 5: 30 TAC sec.350.57(d)(1) and Figure

1: 30 TAC sec.350.59(a)(1); Figure 2: 30 TAC sec.350.59(a)(2)(A); Figure

3: 30 TAC sec.350.59(a)(2)(B); Figure 4: 30 TAC sec.350.59(a)(3); Figure

5: 30 TAC sec.350.59(b)(2); Figure 6: 30 TAC sec.350.59(c)(1); Figure

7: 30 TAC sec.350.59(c)(2); Figure 8: 30 TAC sec.350.59(d)(2); Figure

9: 30 TAC sec.350.59(d)(3); Figure 10: 30 TAC sec.350.59(e)(1); and Figure

11: 30 TAC sec.350.59(e)(2)


(B) appropriately collected and representative property-specific

affected property parameters, unless an entry of "No" in the column titled

"Change To Tier 1 Default Allowed?" on one of the referenced figures indicates

that a particular Tier 1 affected property parameter value shall not be modified

under either a Tier 2 or Tier 3 evaluation. The fraction of organic carbon

(foc) shall be determined using the 95% LCL for the population mean. Samples

shall be collected from locations which are unaffected by the release of COCs,

but representative of conditions along the COC transport pathway (e.g., samples

from similar soil types or similar depths). The person shall determine foc

content by measuring the total carbon concentration and the inorganic carbon

concentration in the sample and taking the difference. If the value calculated

is equal to the total carbon concentration, then the total carbon concentration

shall be used as the foc for the sample and analysis for the inorganic carbon

concentration shall be discontinued, provided the soil matrix does not change.

The person shall use Method S-9.30 for total carbon and Methods S-13.1 or

S-13.2 for inorganic carbon as presented in the "Western States Laboratory

Proficiency Testing Program: Soil and Plant Analytical Methods," 1997, version

4.01, which is available through Utah State University. Alternatively, the

person may use Method 6A2e for total carbon and Method 6E1g (&lt;2 mm basis)

for inorganic carbon as presented in the "Soil Survey Laboratory Methods 
Manual,"

Soil Survey Investigations Report No. 42, Version 3.0, available from the

United States Department of Agriculture. The person shall use a minimum data

set of 10 individual measurements. If the data is not appropriate for computing

confidence limits for the population mean, the person must obtain prior 
executive

director approval for the use of any alternative method.


(d) Requirements specific to determining Tier 2 PCLs.

(1) In addition to the requirements of subsection (c) of this

section, to establish Tier 2 PCLs the person shall:

(A) use the groundwater source medium and lateral transport

exposure pathway PCL equations provided in the following figures for groundwater

exposure pathways; Figure 1: 30 TAC sec.350.57(a)(1); Figure 2: 30 TAC 
sec.350.57(b)(1);

Figure 3: 30 TAC sec.350.57(c)(2); Figure 4: 30 TAC sec.350.57(c)(3);

and Figure 5: 30 TAC sec.350.57(d)(1)


(B) use the soil source medium and lateral transport exposure

pathway PCL equations provided in the following figures for groundwater exposure

pathways and for soil exposure pathways; Figure 1: 30 TAC sec.350.59(a)(1);

Figure 2: 30 TAC sec.350.59(a)(2)(A); Figure 3: 30 TAC sec.350.59(a)(2)(B);

Figure 4: 30 TAC sec.350.59(a)(3); Figure 5: 30 TAC sec.350.59(b)(2);

Figure 6: 30 TAC sec.350.59(c)(1); Figure 7: 30 TAC sec.350.59(c)(2));

Figure 8: 30 TAC sec.350.59(d)(2); Figure 9: 30 TAC sec.350.59(d)(3));

Figure 10: 30 TAC sec.350.59(e)(1); and Figure 11: 30 TAC sec.350.59(e)(2)




(2) The person shall establish PCLs in accordance

with subsection (e) of this section for any groundwater, soil, surface water,

air, or sediment exposure pathway which is complete or reasonably anticipated

at an affected property, or when required by the executive director, and for

which an equation is not referenced either in this subsection or in subsection

(c) of this section.


(e) Requirements specific to determining Tier 3 PCLs.

(1) In addition to the requirements of subsection (c) of this

section, to establish Tier 3 PCLs the person shall:

(A) use field measured natural attenuation factors (NAFs)

and/or appropriate NAF equations/models other than the Tier 1 and 2 cross

media and lateral transport NAF portions of the PCL equations provided in

the following figures for groundwater exposure pathways; Figure 1: 30 TAC

sec.350.57(a)(1); Figure 2: 30 TAC sec.350.57(b)(1); Figure 3: 30 TAC

sec.350.57(c)(2); Figure 4: 30 TAC sec.350.57(c)(3); and Figure 5: 30

TAC sec.350.57(d)(1)


(B) use field measured NAFs and/or appropriate NAF equations/models

other than the Tier 1 and 2 cross media and lateral transport NAF portions

of the PCL equations provided in the following figures for soil exposure 
pathways;

and Figure 1: 30 TAC sec.350.59(a)(1); Figure 2: 30 TAC sec.350.59(a)(2)(A);

Figure 3: 30 TAC sec.350.59(a)(2)(B); Figure 4: 30 TAC sec.350.59(a)(3);

Figure 5: 30 TAC sec.350.59(b)(2); Figure 6: 30 TAC sec.350.59(c)(1);

Figure 7: 30 TAC sec.350.59(c)(2); Figure 8: 30 TAC sec.350.59(d)(2);

Figure 9: 30 TAC sec.350.59(d)(3); Figure 10: 30 TAC sec.350.59(e)(1));

and Figure 11: 30 TAC sec.350.59(e)(2)


(C) use appropriate equations/models for any remaining surface

water, air, or sediment human exposure pathway which is complete or reasonably

anticipated at an affected property, or when required by the executive director,

and for which an equation is not referenced in subsection (c) or (d) of this

section.

(2) The person must document the use of all models

other than the NAF equations provided in this subchapter to the executive

director's satisfaction, such that the derivation of the model can be understood

and the results of the model reproduced by the executive director. The 
documentation

shall include, at a minimum:

(A) a description of the underlying problem;


(B) a description of the fundamental equations that conceptualize

the solution to the problem;


(C) a list of all assumptions used in the model and the rationale

for their use;


(D) a description of the code used in the model;


(E) a verification of the model codes against other solutions

to the problem to verify its accuracy;


(F) an application of the model to a problem with a known

solution, albeit perhaps a simpler problem, and a comparison of the results

with the known results;


(G) a sensitivity analysis;


(H) the results of a quality assurance program;


(I) model validation, including a comparison of model results

with independently derived laboratory or field data and possibly other computer

codes;


(J) verification of the program structure and coding, including

mass balance results;


(K) a list of prior uses of the model, if any;


(L) a clear identification of the data specific to the affected

property used in the application of the model;


(M) a characterization of the level of precision, accuracy,

and degree of uncertainty in the model results;


(N) an assessment as to the time frame over which the model's

prediction can be considered acceptable; and


(O) any other information that is essential to understanding

or being able to replicate the results.


(f) Prior approval for Tier 3. The executive director may

require the person to obtain prior approval for the use of alternative NAF

equations/models in a Tier 3 evaluation.


(g) Biodecay factors. When the person uses biodecay factors

in any cross-media or lateral transport NAF equation in either Tier 2 or 3,

the person shall subsequently sample soils and/or monitor groundwater to the

satisfaction of the executive director to verify the conclusions of the NAF

equation.


(h) Verification. For Tiers 1, 2, and 3 when fate and transport

modeling outputs are inconsistent with monitoring data for environmental media

at an affected property, the person and the executive director shall base

response action decisions on the monitoring data. When considered warranted,

the executive director may require the person to monitor environmental media

to verify the models used to determine PCLs established under any tier.


(i) Performance. The person shall determine PCLs to the satisfaction

of the executive director.


(j) Data adequacy. The person shall collect any additional

data necessary to support the development of PCLs under any of the tiers.






<nl>sec.350.56. Ecological Risk Assessment

and Development of Ecological PCLs.


(a) General. The person shall evaluate the affected property

by conducting an ecological risk assessment (ERA) in a manner appropriate

and consistent with subsections (b) or (c) or (d) of this section. The purpose

of the ERA will be to characterize the ecological setting of the affected

property, identify complete and reasonably anticipated exposure pathways and

representative ecological receptors, scientifically eliminate COCs that pose

no unacceptable risk, and develop ecologically-protective concentration levels

where warranted. However, if the person can demonstrate that no ecological

risk exists due to incomplete exposure pathways as specified in subsection

(b) of this section, then the ERA will terminate at that point. Also, if at

anytime during the ERA process specified in subsections (c) or (d) of this

section, the person can show either that implementation of a control mechanism

(e.g., a cap) planned as part of a response action to address the exceedence

of human health-based PCLs will eliminate the exposure pathway to ecological

receptors, or that human health PCLs will be protective of ecological receptors,

then no further ERA evaluation will be required. Although there is a logical

progression from one tier to the next, the person may begin the evaluation

of the affected property at any tier desired.


(b) Tier 1: exclusion criteria checklist. The person shall

conduct an exclusion criteria checklist assessment at all affected properties

to which this rule is applicable as presented in sec.350.3 of this title

(relating to Applicability). The person shall use the Tier 1 Exclusion Criteria

Checklist provided in the following figure. This checklist is a standardized

form consisting of a series of property-related questions and exclusion criteria

designed to determine the existence of complete ecological exposure pathways

through descriptions of the affected property setting and/or the presence

and distribution of COCs within environmental media. The intent of the checklist

is to aid the person and the agency in determining whether or not further

ecological evaluation is necessary at an affected property where PCLs are

being determined under this rule. The person will have fulfilled the ERA 
requirements

if the affected property meets the exclusion criteria. However, the person

shall re-enter the ERA process if changing circumstances result in the affected

property not meeting the Tier 1 exclusion criteria. The person is required

to continue the ERA process as described in subsections (c) or (d) of this

section if the affected property fails the exclusion criteria. </p>
<p>Figure 1: 30 TAC sec.350.56(b)


(c) Tier 2: screening-level ecological risk assessment.

(1) Unless the person elects to proceed under subsection (d)

of this section, the person shall conduct a screening-level ecological risk

assessment (SLERA) when the evaluation completed in subsection (b) of this

section indicates there is a complete or reasonably anticipated exposure pathway

to ecological receptors. The primary purposes of the SLERA shall be to identify

COCs that pose an unacceptable ecological risk and to scientifically eliminate

those that do not. At a minimum, the person shall:

(A) identify major feeding guilds (e.g., omnivorous mammals,

piscivorous birds) and their representative ecological receptors for each

complete or reasonably anticipated exposure pathway;


(B) use established ecological benchmarks and toxicity reference

values to determine potential effects; and


(C) utilize an ecological hazard quotient methodology to eliminate

COCs that pose no unacceptable risk.

(2) The executive director will develop a guidance

document which provides a particular method of conducting a SLERA. The person

is encouraged to use this guidance, but may use other guidance documents that

meet the minimum requirements listed above. Following the SLERA, the person

shall conduct a quantitative ERA in a manner appropriate and consistent with

subsection (d) of this section for any remaining COCs identified as imparting

unacceptable ecological risk at an affected property.


(d) Tier 3: quantitative ecological risk assessment.

(1) When COCs and ecological exposure pathways cannot be eliminated

by a SLERA, as described in subsection (c) of this section, or when otherwise

elected, the person shall conduct a quantitative ERA. The purpose of the 
quantitative

ERA shall be to establish the ecological RBELs that are to be met at the POE

for all exposure pathways and COCs which were not determined to be protective

of ecological receptors at an affected property. At a minimum, the quantitative

ERA shall contain the three following widely-acknowledged phases of an ERA

as discussed in "Framework for Ecological Risk Assessment" (U. S. Environmental

Protection Agency. 1992. "Framework for Ecological Risk Assessment." Washington,

DC: Risk Assessment Forum; EPA/630/R-02/011) and

 other documents:

(A) problem formulation, which establishes the goals, breadth,

and focus of the assessment;


(B) analysis, which consists of the technical evaluation of

data on both the exposure of the ecological receptor to a stressor and the

potential adverse effects; and


(C) risk characterization, where the likelihood of adverse

effects occurring as a result of exposure to a stressor is evaluated.

(2) After the ecological RBELs have been established,

the person shall determine PCLs. In the situation where the ecological POE

is within the source medium and within the source area such that no cross-media

or lateral transport is necessary for exposure to occur, then the PCL is equal

to the ecological RBEL. In situations where cross-media and/or lateral transport

of a COC from a source medium to a POE within an exposure medium must occur

for the receptor to be exposed, then the person may use the cross-media NAF

equations or lateral transport NAF equations provided in the following figures

for any applicable groundwater exposure pathways in sec.350.57 of this title

(relating to Development of Human Health PCLs for Groundwater Exposure Pathways)

or for any applicable soil exposure pathways in sec.350.59 of this title

(relating to Development of Human Health PCLs for Soil Exposure Pathways)

to establish PCLs. In lieu of using the human health RBEL referenced in the

figures, the person shall use the ecological RBEL established under paragraph

(1) of this subsection. Figure 1: 30 TAC sec.350.57(a)(1); Figure 2: 30

TAC sec.350.57(b)(1); Figure 3: 30 TAC sec.350.57(c)(2); Figure 4: 30

TAC sec.350.57(c)(3); and Figure 5: 30 TAC sec.350.57(d)(1); Figure 2:

30 TAC sec.350.59(a)(2)(A); Figure 3: 30 TAC sec.350.59(a)(2)(B); Figure

4: 30 TAC sec.350.59(a)(3); Figure 5: 30 TAC sec.350.59(b)(2); Figure

8: 30 TAC sec.350.59(d)(2); and Figure 9: 30 TAC sec.350.59(d)(3)

(3) The executive director will develop a guidance document

which provides a particular method of conducting a quantitative ERA. The person

is encouraged to use this guidance, but will be allowed to use other guidance

documents that adequately address the three phases of a quantitative ERA 
described

in paragraph (1) of this subsection to the satisfaction of the executive 
director.






<nl>sec.350.57. Development of Human

 Health PCLs for Groundwater Exposure Pathways.


(a) PCLs for ingestion of groundwater.

(1) Source medium exposure pathway PCL (<sup>

GW</sup>GW<sub>Ing</sub>). The person shall always establish <
sup>GW</sup>GW<sub>Ing</sub> for each COC present

at the affected property using the source medium PCL equation provided in

the following figure in order to:

Figure 1: 30 TAC sec.350.57(a)(1)

(A) determine the class of groundwater in accordance with

sec.350.31 of this title (relating to Groundwater Resource Classification);





(B) determine the protective concentration to be met at the

groundwater POE in accordance with sec.350.91(d) of this title (relating

to Human Health Points of Exposure) when the conditions specified in 
sec.350.91(d)

are applicable (not to imply that soil leachate has to be protective for <
sup>GW</sup>GW<sub>Ing</sub> instead of the

class 3 groundwater PCL set forth in subsection (b) of this section in class

3 groundwater situations); and </p>
</sp>
<sp>(C) determine the protective concentration for ingestion of

class 1 or 2 groundwater at the prescribed on-site and off-site POEs established

in accordance with sec.350.91(e)(1) and (2) or (f)(1) and (2) of this title

(relating to Human Health Points of Exposure) as applicable depending on the

class of groundwater.

(2) Lateral transport exposure pathway PCL (<
sup>GW</sup>LT-GW<sub>Ing</sub>).

(A) When commercial/industrial land use is assumed, the person

shall establish <sup>GW</sup>LT-GW<sub>

Ing</sub> for each COC present in class 1 or 2 groundwater which is protective

for residential <sup>GW</sup>GW<sub>Ing

</sub> at an on-site POE established in accordance with sec.350.91(e)(1)(B)

and (f)(1)(B) of this title (relating to Human Health Points of Exposure)

or an off-site POE established in accordance with sec.350.91(e)(2) or (f)(2).

The person shall use the lateral transport PCL equations provided in the 
following

figure, or appropriate Tier 3 method in accordance with sec.350.55(c) and

(e) of this title (relating to Tiered Human Health PCL Evaluation). Figure

1: 30 TAC sec.350.57(a)(1))


(B) When authorized to establish a lateral transport PCL in

response to sec.350.94(m)(4) of this title (relating to Remedy Standard

B), the person shall establish <sup>GW</sup>LT-GW<sub>

Ing</sub> for each COC present in class 2 groundwater such that <sup>

GW</sup>GW<sub>Ing</sub> is met at any alternate on-site

or off-site POE to groundwater established in accordance with sec.350.91(f)(3)

of this title (relating to Human Health Points of Exposure). The person shall

use the lateral transport PCL equations provided in the following figure,

or appropriate Tier 3 method in accordance with sec.350.55(c) and (e) of

this title (relating to Tiered Human Health PCL Evaluation). Figure 1: 30

TAC sec.350.57(a)(1)


(b) PCLs for class 3 groundwater. The person shall develop

these PCLs when class 3 groundwater occurs at an affected property.

(1) Source medium exposure pathway PCL (<sup>

GW</sup>GW<sub>Class 3</sub>). The person shall establish <
sup>GW</sup>GW<sub>Class 3</sub> for each COC

present at the affected property such that the class 3 groundwater PCL is

met at the prescribed on-site and off-site POEs to groundwater established

in accordance with sec.350.91(d) or sec.350.91(g)(1) and (2) of this title

(relating to Human Health Points of Exposure) as applicable. The person shall

use the source medium PCL equation provided in the following figure.

Figure 2: 30 TAC sec.350.57(b)(1)

(2) Lateral transport exposure pathway PCL (<sup>

GW</sup>LT-GW<sub>Class 3</sub>).

(A) When commercial/industrial land use is assumed, the person

shall establish <sup>GW</sup>LT-GW<sub>

Class 3</sub> for each COC present in class 3 groundwater which is protective

 of residential <sup>GW</sup>GW<sub>Class

3</sub> at an off-site POE established in accordance with sec.350.91(g)(2)

of this title (relating to Human Health Points of Exposure). The person shall

use the lateral transport PCL equations provided in the following figure,

or appropriate Tier 3 method in accordance with sec.350.55(c) and (e) of

this title (relating to Tiered Human Health PCL Evaluation). Figure 2: 30

TAC sec.350.57(b)(1)


(B) When authorized to establish a lateral transport PCL in

response to sec.350.94(m)(4) of this title (relating to Remedy Standard

B), the person shall establish <sup>GW</sup>LT-GW<sub>

Class 3</sub> for each COC present in class 3 groundwater such that <
sup>GW</sup>GW<sub>Class 3</sub> is met at

any alternate on-site or off-site POE to groundwater established in accordance

with sec.350.91(g)(3) of this title (relating to Human Health Points of

Exposure). The person shall use the lateral transport PCL equations provided

in the following figure, or appropriate Tier 3 method in accordance with 
sec.350.55(c)

and (e) of this title (relating to Tiered Human Health PCL Evaluation).
Figure

 2: 30 TAC sec.350.57(b)(1)


(c) PCLs for inhalation of volatile COCs in outdoor air from

class 1, 2, or 3 groundwater, and saturated zones with a hydraulic conductivity

of less than 1 x 10<sup>-6</sup> cm/s. The person shall

establish PCLs for this contingent exposure pathway when it is a complete

or reasonably anticipated exposure pathway at an affected property.

(1) Applicability. The person shall establish a source medium

PCL in accordance with paragraph (2) of this subsection and a lateral transport

PCL in accordance with paragraph (3) of this subsection unless:

(A) the concentration of COCs in the groundwater do not exceed

the residential-based <sup>GW</sup>GW<sub>

Ing</sub>, (regardless of the class of groundwater and land use);


(B) the person can demonstrate with representative and appropriate

soil vapor monitoring data that volatile emissions from groundwater are 
protective

for both on-site and off-site receptors; or


(C) the person otherwise demonstrates to the executive director

that the pathway is incomplete at the affected property.

(2) Source medium exposure pathway PCL (<sup>

Air</sup>GW<sub>Inh-V</sub>). The person shall establish <
sup>Air</sup>GW<sub>Inh-V</sub> for each COC

to be protective for the inhalation of volatile emissions from class 1, 2,

or 3 groundwater at the prescribed on-site POE to air established in accordance

with sec.350.91(b)(1) of this title (relating to Human Health Points of

Exposure). The person shall use the source medium PCL equations provided in

the following figure for Tiers 1 and 2, or appropriate Tier 3 method in 
accordance

with sec.350.55(c) and (e) of this title (relating to Tiered Human Health

PCL Evaluation). The person shall determine the lateral width of the groundwater

source area in the direction to the closest off-site property line from the

source area. (i.e., W<sub>g</sub> in the Tier 1 and 2 PCL

equations) for the determination of the <sup>Air</sup>GW<
sub>Inh-V</sub>, and also for any similar source area input parameter

for Tier 3 methods in order to determine <sup>Air</sup>GW<
sub>Inh-V</sub>.

Figure 3: 30 TAC sec.350.57(c)(2)

(3) Lateral transport exposure pathway PCL (<sup>

LT-Air</sup>GW<sub>Inh-V</sup>). In order to ensure off-site

residents are protected, the person shall evaluate this exposure pathway when

the on-site receptor is assumed to be a commercial/industrial worker for 
purposes

of establishing <sup>Air</sup>GW<sub>Inh-V

</sub>. The person shall establish <sup>LT-Air</sup>GW<
sub>Inh-V</sub> for each COC to be protective for the inhalation

of volatile emissions from the groundwater at an off-site residential POE

to air established in accordance with sec.350.91(b)(2) of this title (relating

to Human Health Points of Exposure). The person shall use the lateral transport

PCL equations provided in the following figure, or appropriate Tier 3 method

in accordance with sec.350.55(c) and (e) of this title (relating to Tiered

Human Health PCL Evaluation).

Figure 4: 30 TAC sec.350.57(c)(3)


(d) PCLs for groundwater discharge to surface water.

(1) General. The person shall establish a PCL for this contingent

exposure pathway when a COC in groundwater has discharged or will discharge

to a surface water body. The person shall treat this exposure pathway as a

lateral groundwater transport exposure pathway and accordingly establish the

lateral transport PCL <sup>SW</sup>LT-GW. The person shall

establish <sup>SW</sup>LT-GW with the lateral transport

PCL equation provided in the following figure , or appropriate Tier 3 method

in accordance with sec.350.55(c) and (e) of this title (relating to Tiered

Human Health PCL Evaluation). The person shall also establish the groundwater

PCL <sup>SW</sup>GW in accordance with paragraph (2) of

this subsection. The PCL <sup>SW</sup>GW is the groundwater

concentration that must be met at the on-site and off-site surface water POE(s)

established in accordance with sec.350.91(h)(1) and (2) of this title (relating

to Human Health Points of Exposure). In order to establish <sup>

SW</sup>LT-GW, specific authorization in accordance with sec.350.94(m)(4)

of this title (relating to Remedy Standard B) is not required, however, the

person shall comply with the establishment of a lateral transport POC as 
specified

in sec.350.94(m)(4)(D).

Figure 5: 30 TAC sec.350.57(d)(1)

(2) Source medium exposure pathway PCL (<sup>

SW</sup>GW).

(A) The person shall set <sup>SW</sup>GW

equal to <sup>SW</sup>RBEL established in accordance with

sec.350.54(h) of this title (relating to Development of Risk-Based Exposure

Limits), or as modified in accordance with subparagraph (C) and (D) of this

paragraph. The person shall use the source medium PCL equation provided in

the following figure to establish <sup>SW</sup>GW.
Figure

 5: 30 TAC sec.350.57(d)(1)

(i) The person shall assume a surface water dilution factor

(DF) of 1 when the concentration of all COCs in groundwater at the zone of

discharge to surface water is less than or equal to the <sup>

SW</sup>RBEL for those COCs at the time the affected property assessment

required in sec.350.33 of this title (relating to Affected Property Assessment)

is conducted. The person shall also assume a surface water DF of 1 for those

specific COCs which are listed as impairing the nearest classified segment

at or downstream of the affected property; and for all COCs when a stream

is listed as impaired, but not for any particular COC. Impaired water bodies

are listed in the current publication of the "State of Texas Water Quality

Inventory Report SFR-50, Volume 1."


(ii) When the concentration of a COC in groundwater at the

zone of discharge to surface water exceeds the <sup>SW</sup>RBEL

for that COC at the time the affected property assessment required in sec.350.33

of this title (relating to Affected Property Assessment) is conducted, the

person may establish a surface water dilution factor in accordance with 
subparagraphs

(C) or (D) of this paragraph.


(B) In order to verify the applicability of the provisions

specified in subparagraph (A)(ii) of this subsection, the person shall compare

the concentration of each COC present in groundwater in the immediate area

of and upgradient of the zone of groundwater discharge to the surface water

to the <sup>SW</sup>RBEL.


(C) The person may divide the <sup>SW</sup>RBEL

by a surface water DF of 0.15 for lakes, estuaries, tidal rivers, and fresh

water streams and rivers where the groundwater discharge is clearly less than

15% of the 7Q2 stream flow as defined in sec.307.3(a)(34) of this title

(relating to Definitions and Abbreviations), and in accordance with clauses

(i)-(iii) of this subparagraph.

(i) The person shall determine if the affected water body

is freshwater or marine in order to apply applicable aquatic life and/or human

health criteria listed in Tables 1 and 3 of sec.307.10 of this title (relating

to Appendices A-E).


(ii) The person shall use the 7Q2 flows as listed in Appendix

C of sec.307.10 of this title (relating to Appendices A-E) for groundwater

discharges directly to a classified segment as listed in Appendix A of 
sec.307.10

of this title. For groundwater discharges which are not directly to a classified

segment, site-specific 7Q2 values must be determined for the water body directly

receiving the groundwater discharge.


(iii) The person shall not apply a DF to the allowable concentrations

of petroleum COCs in Subchapter H of Chapter 321 of this title (relating to

Discharge to Surface Waters from Treatment of Petroleum Fuel Substance 
Contaminated

 Waters).


(D) For freshwater streams and rivers where the groundwater

discharge is clearly greater than 15% of the 7Q2 flow, the person shall estimate

property-specific surface water DFs based on 7Q2 flows for chronic aquatic-life

criteria, 0.25% of 7Q2 flows for acute aquatic-life criteria, and harmonic

mean flows as defined in sec.307.3(a)(19) of this title (relating to Definitions

and Abbreviations) for human health criteria in accordance with the procedures

contained in the Implementation Procedures. The person should divide the <
sup>SW</sup>RBEL by the estimated property-specific dilution

factor.

(i) The person shall determine if the affected water body

is freshwater or marine in order to apply applicable aquatic life and/or human

health criteria listed in Tables 1 and 3 of sec.350.10 of this title (relating

to Appendices A-E).


(ii) The person shall use the 7Q2 flows listed in Appendix

C of sec.307.10 of this title (relating to Appendices A-E) for groundwater

discharges directly to a classified segment as listed in Appendix A of 
sec.307.10

of this title. For groundwater discharges which are not directly to a classified

segment, site-specific 7Q2 values must be determined for the water body directly

receiving the groundwater discharge.


(iii) The person shall not apply a DF to the allowable concentrations

of petroleum COCs in Subchapter H of Chapter 321 of this title (relating to

Discharge to Surface Waters from Treatment of Petroleum Fuel Substance 
Contaminated

 Waters).


(e) PCLs for other groundwater exposure pathways. The person

shall establish PCLs for exposure pathways other than those listed in 
subsections

(a) - (d) of this section when those other exposure pathways are complete

or reasonably anticipated, or when required by the executive director.


(f) Combining groundwater exposure pathways. The person is

not required to combine any of the groundwater exposure pathways when 
determining

PCLs unless otherwise directed by the executive director.



<nl>sec.350.58. Determination of Critical

 Groundwater PCLs and Critical Groundwater Lateral Transport PCLs.


(a) For each COC present in groundwater which has been identified

in response to sec.350.51(g) of this title (relating to General Requirements),

the person shall establish the critical groundwater PCL in accordance with

subsection (b) of this section and, if applicable, the critical groundwater

lateral transport PCL in accordance with subsection (c) of this section.




(b) The person shall establish the groundwater PCLE zone which

is that portion of a groundwater-bearing unit containing COCs in excess of

the critical groundwater PCL. The critical groundwater PCL for a COC is the

lowest of:

(1) <sup>GW</sup>GW<sub>

Ing</sub> for class 1 or 2 groundwater, or <sup>GW</sup>GW<
sub>Class 3</sub> for class 3 groundwater;

(2) <sup>Air</sup>GW<sub>

Inh-V</sub>;

(3) <sup>LT-Air</sup>GW<sub>

Inh-V</sub>;

(4) <sup>SW</sup>LT-GW;

(5) any other groundwater exposure pathway PCL for a

COC established in accordance with sec.350.57(e) of this title (relating

to Development of Human Health PCLs for Groundwater Exposure Pathways); and




(6) any PCL for a COC established to be protective of

ecological receptors as required in sec.350.56 of this title (relating to

Ecological Risk Assessment and Development of Ecological PCLs).


(c) The person shall establish the critical groundwater lateral

transport PCL for each COC as the lowest of paragraphs (1) - (6) when on-site

commercial/industrial land use is assumed or alternate POEs are assumed for

class 2 or 3 groundwater in accordance with sec.350.91(f) and (g) of this

title (relating to Human Health Points of Exposure).

(1) <sup>GW</sup>LT-GW<sub>

Ing</sub> for class 1 or 2 groundwater, or <sup>GW</sup>LT-GW<
sub>Class 3</sub> for class 3 groundwater;

(2) <sup>LT-Air</sup>GW<sub>

Inh-V</sub>;

(3) <sup>SW</sup>LT-GW;

(4) any other groundwater lateral transport PCL established

for a COC in accordance with sec.350.57(e) of this title (relating to 
Development

of Human Health PCLs for Groundwater Exposure Pathways);

(5) for class 2 groundwater resources, when a lateral

transport PCL is authorized in response to sec.350.94(m)(4) of this title

(relating to Remedy Standard B), the concentration of a COC measured at the

lateral transport POC at the time of RAP submittal; and

(6) any groundwater lateral transport PCL established

to be protective of ecological receptors as required in sec.350.56 of this

title (relating to Ecological Risk Assessment and Development of Ecological

PCLs).


(d) If the critical groundwater PCL or critical groundwater

lateral transport PCL for a COC established in subsection (b) or (c) of this

section is greater than the solubility limit for that COC in water as provided

in the following figure, then the solubility limit is the critical groundwater

PCL or critical groundwater lateral transport PCL for that COC. However, the

person is not required to use the solubility limit to determine conformance

with the cumulative carcinogenic risk level or hazard index criteria specified

in sec.350.52 of this title (relating to Carcinogenic Risk Levels and Hazard

Indices for Human Health Exposure Pathways). Figure 1: 30 TAC sec.350.53(e)





(e) If the critical groundwater PCL for a COC established

in subsection (b) of this section is less than the MQL as defined in sec.350.2

of this title (relating to Definitions and Acronyms) or natural background

groundwater concentration for that COC, then the greater of the MQL or 
background

concentration is the critical groundwater PCL for that COC.


(f) As an additional requirement, the critical groundwater

PCL and the critical groundwater lateral transport PCL must allow the explosive

vapor criteria set forth in sec.350.93(a) of this title (relating to Remedy

Standard A) and sec.350.94(a) of this title (relating to Remedy Standard

B) to be met.



<nl>sec.350.59. Development of Human

Health PCLs for Soil Exposure Pathways.


(a) PCLs for combined exposure from ingestion of surface soil,

dermal contact with surface soil, inhalation of volatile emissions and 
particulates

from surface soil, and for residential land use only, ingestion of above-ground

and below-ground vegetables grown in the surface soil (<sup>

Tot</sup>Soil<sub>Comb</sub>). The person shall determine

PCLs for this mandatory exposure pathway for all surface soil.

(1) The person shall establish <sup>Tot</sup>Soil<
sub>comb</sub> for each COC based on combined exposure due to

soil ingestion (<sup>Soil</sup>Soil<sub>

Ing</sub>), dermal contact (<sup>Soil</sup>Soil<sub>

Derm</sub>), inhalation of volatiles and particulates (<sup>

Air</sup>Soil<sub>Inh-VP</sub>), and for residential land

use only, consumption of above-ground and below-ground vegetables grown on

the affected property (<sup>Veg</sup>Soil<sub>

Ing-Inorg</sub> and <sup>Veg</sup>Soil<sub>

Ing-Org</sub>). The person shall use the source medium PCL equations presented

in the following figure for Tiers 1 and 2, or appropriate Tier 3 method in

accordance with sec.350.55(c) and (e) of this title (relating to Tiered

Human Health PCL Evaluation). The person shall use the Tier 1 <sup>

Tot</sup>Soil<sub>Comb</sub> appropriate for the size of

the source area as described in sec.350.55(b) of this title (relating to

Tiered Human Health PCL Evaluation).

Figure 1: 30 TAC sec.350.59(a)(1)

(2) When the on-site land use is commercial/industrial,

the person shall also demonstrate that <sup>Tot</sup>Soil<
sub>Comb</sub> calculated for this combined soil exposure pathway

is protective for off-site residents via the air inhalation exposure pathway.

To conduct this evaluation, the person shall comply with the following 
procedures.




(A) For Tier 1, the person shall make this determination by

comparison of the commercial/industrial-based <sup>Tot</sup>Soil<
sub>Comb</sub> for each COC to the residential <sup>

Air</sup>Soil<sub>Inh-VP</sub> for that COC calculated

using the source medium PCL equation provided in the following figure.

Figure 2: 30 TAC sec.350.59(a)(2)(A)

(i) If the commercial/industrial-based <sup>

Tot</sup>Soil<sub>Comb</sub> is lower than the residential

 PCL <sup>Air</sup>Soil<sub>Inh-VP</sub>,

then the commercial/industrial-based <sup>Tot</sup>Soil<
sub>Comb</sub> is the PCL.


(ii) If the commercial/industrial-based <sup>

Tot</sup>Soil<sub>Comb</sub> is higher than the residential

PCL <sup>Air</sup>Soil<sub>Inh-VP</sub>,

then the residential <sup>Air</sup>Soil<sub>

Inh-VP</sub> is the PCL.


(B) For Tiers 2 and 3 the person shall compare the commercial/industrial-based <
sup>Tot</sup> Soil<sub>Comb</sub> to the residential-based

lateral transport PCL <sup>LT-Air</sup>Soil<sub>

Inh-VP</sub>, unless the person can demonstrate with representative and 
appropriate

soil vapor monitoring data that volatile emissions from soils are protective

for off-site residents. The person may use the lateral transport PCL equation

as provided in the following figure for Tier 2, or appropriate Tier 3 method

in accordance with sec.350.55(c) and (e) of this title (relating to Tiered

Human Health PCL Evaluation).

Figure 3: 30 TAC sec.350.59(a)(2)(B)

(i) If the commercial/industrial-based <sup>

Tot</sup>Soil<sub>Comb</sub> is lower than the residential-based

lateral transport PCL <sup>LT-Air</sup>Soil<sub>

Inh-VP</sub>, then the commercial/industrial-based <sup>

Tot</sup>Soil<sub>Comb</sub> is protective for off-site

residents and will serve as the PCL.


(ii) If the commercial/industrial-based <sup>

Tot</sup>Soil<sub>Comb</sub> is higher than the residential-based

lateral transport PCL <sup>LT-Air</sup>Soil<sub>

Inh-VP</sub>, then the residential <sup>LT-Air</sup>Soil<
sub>Inh-VP</sub> is the PCL.

(3) The person may establish a property-specific

theoretical soil saturation limit (C<sub>sat</sub>) using

the equation presented in the following figure under Tiers 2 or 3. The 
calculation

of a property-specific C<sub>sat</sub> concentration may

be advisable when the volatile inhalation component of <sup>

Air</sup>Soil<sub>Inh-VP</sub> (i.e., <sup>

Air</sup>RBEL<sub>Inh</sub> /VF<sub>ss

</sub>) contributes significantly to <sup>Tot</sup>Soil<
sub>Comb</sub>. When a property-specific <sup>

Air</sup>RBEL<sub>Inh</sub> /VF<sub>ss

</sub> exceeds a property-specific C<sub>sat</sub> concentration,

the volatilization model is likely to overestimate actual emissions from soil.




Figure 4: 30 TAC sec.350.59(a)(3)

(A) If the property-specific <sup>Air</sup>RBEL<
sub>Inh</sub> /VF<sub>ss</sub> is greater than

the property-specific C<sub>sat</sub> concentration, then

 the person may establish a property-specific <sup>Tot</sup>Soil<
sub>Comb</sub> without including the volatilization component

of <sup>Air</sup>Soil<sub>Inh-VP</sub>

( i.e., use <sup>Air</sup>RBEL<sub>Inh

</sub>/PEF). The person shall then compare the resulting <sup>

Tot</sup>Soil<sub>Comb</sub> to the property-specific

C<sub>sat</sub> and use the lower of the two values as the

 PCL.


(B) If the property-specific <sup>Air</sup>RBEL<
sub>Inh</sub> /VF<sub>ss</sub> is smaller than

 the property-specific C<sub>sat</sub> concentration, then <
sup>Air</sup>Soil<sub>Inh-VP </sub> must include

VF<sub>ss</sub> ( i.e., use <sup>Air</sup>RBEL
<sub>Inh</sub> /VF<sub>ss</sub> +PEF) when establishing <
sup>Tot</sup>Soil<sub>Comb</sub>.


(C) The C<sub>sat</sub> shall be based on

the same property-specific parameters as those used to calculate <sup>

Air</sup>Soil<sub>Inh-VP</sub>.


(b) PCLs for groundwater protection from surface and subsurface

soil leachate.

(1) The person shall always establish <sup>

GW</sup>Soil for each COC present in the surface and subsurface soil such

that soil leachate is protective for:

(A) the critical groundwater PCL as established in sec.350.58

of this title (relating to Determination of Critical Groundwater PCLs and

Critical Groundwater Lateral Transport PCLs) when the use of a groundwater

lateral transport PCL is not authorized in sec.350.94(m)(4) of this title

(relating to Remedy Standard B); or


(B) the critical groundwater lateral transport PCL as established

in sec.350.58 of this title (relating to Determination of Critical Groundwater

PCLs and Critical Groundwater Lateral Transport PCLs) when the use of a 
groundwater

lateral transport PCL is authorized in response to sec.350.94(m)(4) of this

title (relating to Remedy Standard B).

(2) The person shall use the source medium PCL equations

presented in for Tiers 1 and 2, or appropriate Tier 3 method in accordance

with sec.350.55(c) and (e) of this title (relating to Tiered Human Health

PCL Evaluation). The person shall use the 0.5 acre-based Tier 1 <sup>

GW</sup>Soil value multiplied by a factor of 100 to determine the lateral

width of the soil source area parallel to the direction of groundwater flow

(i.e., W<sub>s</sub> in the Tier 1 and 2 <sup>

GW</sup>Soil PCL equations), and also for any similar source area input 
parameter

for Tier 3 methods in order to determine <sup>GW</sup>Soil.




Figure 5: 30 TAC sec.350.59(b)(2)

(3) The person may not be required to establish a soil

leachate-to-groundwater PCL in accordance with paragraphs (1) and (2) of this

subsection when a demonstration to the executive director's satisfaction can

be made with appropriate soil and groundwater monitoring data that the soils

will attain the soil response objectives for groundwater protection set forth

in Subchapter D of this chapter (relating to Remedy Standards). The 
determination

that the soils are adequately protective shall be based on soil sample data,

the concentration trends of groundwater monitoring data over time when 
groundwater

is impacted, probable time since release occurred, adequate identification

of the soil source areas, and other hydrogeologic or property-specific 
information.

The executive director may also require the change in soil concentrations

over time be documented to support this evaluation in a property-specific

situation. The executive director may require the person to install a sufficient

number groundwater monitoring wells to demonstrate that groundwater is not

affected when soil COC concentration data are inadequate to sufficiently 
substantiate

that groundwater is not affected.

(4) For Tiers 2 or 3, the person may use the Synthetic

Precipitation Leachate Procedure (Method 1312 of SW846, "Test Methods for

Evaluating Solid Waste," U.S. EPA) or other leachate test method acceptable

to the executive director which is more representative of property-specific

conditions to determine a property-specific soil-water partition coefficient

(K<sub>d</sub>). The K<sub>d</sub> may

be determined using the 95% LCL for the population mean of the ratio of the

total concentration of the COC in soil to the concentration of the COC in

the soil leachate. Soil samples for the leachate test shall be collected from

appropriate locations to be representative of conditions within the soil source

area. The person shall use a minimum data set of 10 individual measurements.

If the data is not appropriate for computing confidence limits for the 
population

mean, the person must obtain prior executive director approval for the use

of any alternative method.


(c) PCLs for inhalation of acute volatile and particulate

emissions in outdoor air from surface soil. The person shall establish PCLs

for this mandatory pathway for each COC present in surface soils above the

MQL as defined in sec.350.2 of this title (relating to Definitions and 
Acronyms).




(1) Source medium exposure pathway PCL (<sup>

Air</sup>Soil<sub>Inh-VP Acute</sub>). When the TNRCC Acute

 Remediation-Specific ESL is available, the person shall establish <sup>

Air</sup>Soil<sub>Inh-VP Acute</sub> for each COC present

in surface soil which is protective for the inhalation of volatile and 
particulate

emissions at the prescribed on-site and off-site POEs to air in accordance

with sec.350.91(b)(1) and (2) of this title (relating to Human Health Points

of Exposure). The person shall use the PCL equations provided in the following

figure for Tiers 1 and 2, or an appropriate Tier 3 method in accordance with

sec.350.55(c) and (e) of this title (relating to Tiered Human Health PCL

Evaluation). The person shall use the Tier 1 <sup>Air</sup>Soil<
sub>Inh-VP Acute</sub> appropriate for the size of the source

area as described in sec.350.55(b) of this title (relating to Tiered Human

Health PCL Evaluation).

Figure 6: 30 TAC sec.350.59(c)(1)

(2) Lateral transport exposure pathway PCL (<sup>

LT-Air</sup>Soil<sub>Inh-VP Acute</sub>). The person shall

evaluate this pathway when the on-site receptor is assumed to be a 
commercial/industrial

worker for purposes of establishing <sup>Air</sup>Soil<
sub>Inh-VP Acute</sub>. The person shall establish <sup>

LT-Air</sup>Soil<sub>Inh-VP Acute</sub> for each COC present

in surface soil which is protective for residential inhalation at an off-site

POE to air established in accordance with sec.350.91(b)(2) of this title

(relating to Human Health Points of Exposure) using the PCL equations provided

in the following figure, or an appropriate Tier 3 method in accordance with

sec.350.55(c) and (e) of this title (relating to Tiered Human Health PCL

Evaluation). </p>
<p>Figure 7: 30 TAC sec.350.59(c)(2)

(3) C<sub>sat</sub>. Under Tiers 2

or 3, the person may establish a property-specific (i.e., not based on Tier

1 default affected property parameters) C<sub>sat</sub>

using the equation presented in the following figure for comparison to the

 volatilization PCL component (i.e., <sup>Air</sup>Soil<
sub>Inh-V Acute</sub> or <sup>LT-Air</sup>Soil<
sub>Inh-V Acute</sub>) of the property-specific <sup>

Air</sup>Soil<sub>Inh-VP Acute</sub> or <sup>

LT-Air</sup>Soil<sub>Inh-VP Acute</sub> for that COC. Figure

4: 30 TAC sec.350.59(a)(3)

(A) If the property-specific <sup>Air</sup>Soil<
sub>Inh-V Acute</sub> or <sup>LT-Air</sup>Soil<
sub>Inh-V Acute</sub> is greater than the property-specific C<
sub>sat</sub>, then the person shall establish a PCL based only

on <sup>Air</sup>Soil<sub>Inh-P Acute</sub>

or <sup>LT-Air</sup>Soil<sub>Inh-P Acute

</sub>. The person shall then compare these PCLs to the property-specific

C<sub>sat</sub> and use the lower of the two.


(B) If the property-specific <sup>Air</sup>Soil<
sub>Inh-V Acute</sub> or <sup>LT-Air</sup>Soil<
sub>Inh-V Acute </sub>is smaller than the property-specific C<
sub>sat</sub>, then the person shall set the PCL for this exposure

 pathway as <sup>Air</sup>Soil<sub>Inh-VP

Acute</sub> or <sup>LT-Air</sup>Soil<sub>

Inh-VP Acute</sub> as applicable.


(C) The C<sub>sat</sub> shall be based on

the same property-specific parameters as those used to calculate <sup>

Air</sup>Soil<sub>Inh-V Acute</sub> and <sup>

LT-Air</sup>Soil<sub>Inh-V Acute.</sub>


(d) PCLs for inhalation of volatile emissions in outdoor air

from subsurface soils. The person shall determine the PCLs for this contingent

exposure pathway when it is a complete or reasonably anticipated exposure

pathway at an affected property.

(1) The person shall establish PCLs in accordance with paragraphs

(2) and (3) of this subsection as applicable when COCs are present in subsurface

soils above the MQL as defined in sec.350.2 of this title (relating to 
Definitions

and Acronyms) or above natural or anthropogenic background concentrations;

 unless:

(A) the person can demonstrate with representative and appropriate

soil vapor monitoring data that volatile emissions from subsurface soils are

protective for on-site and off-site human receptors; or


(B) the person otherwise demonstrates to the executive director

that the pathway is incomplete at the affected property.

(2) Source medium exposure pathway PCL (<sup>

Air</sup>Soil<sub>Inh-V</sub>). When required, the person

shall establish <sup>Air</sup>Soil<sub>

Inh-V</sub> for each COC present in subsurface soil which is protective for

the inhalation of volatile emissions at the prescribed on-site and off-site

POEs to air in accordance with sec.350.91(b)(1) and (2) of this title (relating

to Human Health Points of Exposure). The person shall use the source medium

PCL equations provided in the following figure for Tiers 1 and 2, or an 
appropriate

Tier 3 method in accordance with sec.350.55(c) and (e) of this title (relating

to Tiered Human Health PCL Evaluation). The person shall use the Tier 1 <
sup>Air</sup>Soil<sub>Inh-V</sub> appropriate

for the size of the source area as described in sec.350.55(b) of this title

(relating to Tiered Human Health PCL Evaluation).

Figure 8: 30 TAC sec.350.59(d)(2)

(3) Lateral transport exposure pathway PCL (<sup>

LT-Air</sup>Soil<sub>Inh-V</sub>). The person shall evaluate

this pathway when the on-site receptor is assumed to be a commercial/industrial

worker for purposes of establishing <sup>Air</sup>Soil<
sub>Inh-V</sub>. The person shall establish <sup>

LT-Air</emph>Soil<sub>Inh-V</emph> for each COC present in

subsurface soil which is protective for residential inhalation at an off-site

POE to air established in accordance with sec.350.91(b)(2) of this title

(relating to Human Health Points of Exposure) using the PCL equations provided

in the following figure, or an appropriate Tier 3 method in accordance with

sec.350.55(c) and (e) of this title (relating to Tiered Human Health PCL

Evaluation).

Figure 9: 30 TAC sec.350.59(d)(3)

(4) C<sub>sat</sub>. Under Tiers 2

or 3, the person may establish a property-specific (i.e., not based on Tier

1 default affected property parameters) C<sub>sat</emph>

using the equation presented in the following figure for comparison to property-
specific <
sup>Air</sup>Soil<sub>Inh-V</sub> or <
sup>LT-Air</sup>Soil<sub>Inh-V</sub> for that

COC.
Figure 4: 30 TAC sec.350.59(a)(3)

(A) If the property-specific <sup>Air</sup>Soil<
sub>Inh-V </sub> or <sup>LT-Air</sup>Soil<
sub>Inh-V</sub> is greater than the property-specific C<
sub>sat</sub>, then the inhalation of volatile emissions from

soils shall not be considered a relevant exposure pathway for that COC, and

C<sub>sat</sub> shall be the PCL.


(B) If the property-specific <sup>Air</sup>Soil<
sub>Inh-V</sub> or <sup>LT-Air</sup>Soil<
sub>Inh-V </sub>is smaller than the property-specific C<
sub>sat</sub>, then <sup>Air</sup>Soil<
sub>Inh-V</sub> or <sup>LT-Air</sup>Soil<
sub>Inh-V</sub> shall be considered relevant exposure pathways.

The person shall use the equation presented in the following figure for the

estimation of C<sub>sat</sub>.
Figure 4: 30 TAC sec.350.59(a)(3)





(C) The C<sub>sat</sub> shall be based on

the same property-specific parameters as those used to calculate <sup>

Air</sup>Soil<sub>Inh-V</sub> and <sup>

LT-Air</sup>Soil<sub>Inh-V.</sub>


(e) PCLs for odors from surface soils. The person shall establish

a surface soil PCL to protect against odors when such nuisance conditions

exist.

(1) Source medium exposure pathway PCL (<sup>

Air</sup>Soil<sub>Inh-VP Odor</sub>). When required, the

 person shall establish <sup>Air</sup>Soil<sub>

Inh-VP Odor</sub> for each COC present in surface soil which is protective

for the inhalation of volatile and particulate emissions at the prescribed

on-site and off-site POEs to air established in accordance with sec.350.91(b)(1)

and (2) of this title (relating to Human Health Points of Exposure). The person

shall use the PCL equations provided in the following figure for Tiers 1 and

2, or an appropriate Tier 3 method in accordance with sec.350.55(c) and

(e) of this title (relating to Tiered Human Health PCL Evaluation). The person

shall use the Tier 1 <sup>Air</sup>Soil<sub>

Inh-VP Odor </sub> appropriate for the size of the source area as described

in sec.350.55(b) of this title (relating to Tiered Human Health PCL Evaluation).




Figure 10: 30 TAC sec.350.59(e)(1)

(2) Lateral transport exposure pathway PCL (<sup>

LT-Air</sup>Soil<sub>Inh-VP Odor</sub>). The person shall

use the PCL equations provided in the following figure, or an appropriate

Tier 3 method in accordance with sec.350.55(c) and (e) of this title (relating

to Tiered Human Health PCL Evaluation).

Figure 11: 30 TAC sec.350.59(e)(2)

(3) C<sub>sat</sub>. Under Tiers 2

or 3, the person may establish a property-specific (i.e., not based on Tier

1 default affected property parameters) C<sub>sat</sub>

 using the equation presented in the following figure for comparison to the

 volatilization PCL component (i.e., <sup>Air</sup>Soil<
sub>Inh-V Odor </sub>or <sup>LT-Air</sup>Soil<
sub>Inh-V Odor</sub>) of the property-specific <sup>

Air</sup>Soil<sub>Inh-VP Odor</sub> or <sup>

LT-Air</sup>Soil<sub>Inh-VP Odor</sub> for that COC.
Figure

 4: 30 TAC sec.350.59(a)(3)

(A) If the property-specific <sup>Air</sup>Soil<
sub>Inh-V Odor</sub> or <sup>LT-Air</sup>Soil<
sub>Inh-V Odor</sub> is greater than the property-specific C<
sub>sat</sub>, then the person shall establish a PCL based only

on <sup>Air</sup>Soil<sub>Inh-P Odor</sub>

or <sup>LT-Air</sup>Soil<sub>Inh-P Odor

</sub>. The person shall then compare these PCLs to the property-specific

C<sub>sat</sub> and use the lower of the two.


(B) If the property-specific <sup>Air</sup>Soil<
sub>Inh-V Odor</sub> or <sup>LT-Air</sup>Soil<
sub>Inh-V Odor </sub>is smaller than the property-specific C<
sub>sat</sub>, then the person shall set the PCL for this exposure

pathway as <sup>Air</sup>Soil<sub>Inh-VP

Odor</sub> or <sup>LT-Air</sup>Soil<sub>

Inh-VP Odor</sub> as applicable.


(C) The C<sub>sat</sub> shall be based on

the same property-specific parameters as those used to calculate <sup>

Air</sup>Soil<sub>Inh-V Odor</sub> and <sup>

LT-Air</sup>Soil<sub>Inh-V Odor.</sub>


(f) PCLs for other surface and subsurface soil exposure pathways.

The person shall establish PCLs for surface and subsurface soil exposure 
pathways

other than those listed in subsections (a) - (e) of this section when those

other exposure pathways are complete or reasonably anticipated, or when required

by the executive director.


(g) Combining soil exposure pathways. The person is not required

to combine soil exposure pathways when determining PCLs with the exception

of the combined exposure pathway required in subsection (a) of this section,

unless otherwise directed by the executive director.



<nl>sec.350.60. Determination of Critical

Surface and Subsurface Soil PCLs.


(a) The person shall establish the critical surface soil PCL

in accordance with subsection (b) of this section for each COC which has been

identified in surface soils in response to sec.350.51(g) of this title (relating

to General Requirements). The person shall also establish the critical 
subsurface

soil PCL in accordance with subsection (c) of this section for each COC which

has been identified in subsurface soils in response to sec.350.51(g) of

this title.


(b) The person shall establish the surface soil PCLE zone

which is that portion of the surface soil containing COCs in excess of the

critical surface soil PCL. The critical surface soil PCL is the lowest of:




(1) <sup>Tot</sup>Soil<sub>

Comb</sub>;

(2) any <sup>Air</sup>Soil<sub>

Inh-VP</sub> established under sec.350.59(a)(2)(A) of this title (relating

 to Development of Human Health PCLs for Soil Exposure Pathways);

(3) any <sup>LT-Air</sup>Soil<
sub>Inh-VP</sub> established under sec.350.59(a)(2)(B) of this

 title (relating to Development of Human Health PCLs for Soil Exposure 
Pathways);




(4) <sup>GW</sup>Soil;

(5) <sup>Air</sup>Soil<sub>

Inh-VP Acute</sub>;

(6) Any <sup>Lt-Air</sup>Soil<
sub>Inh-VP Acute</sub> established under sec.350.59(c)(2) of

this title (relating to Development of Human Health PCLs for Soil Exposure

Pathways);

(7) Any <sup>Air</sup>Soil<sub>

Inh-VP Odor</sub> established under sec.350.59(e) of this title (relating

to Development of Human Health PCLs for Soil Exposure Pathways);

(8) Any <sup>LT-Air</sup>Soil<
sub>Inh-VP Odor</sub> established under sec.350.59(e) of this

title (relating to Development of Human Health PCLs for Soil Exposure Pathways);




(9) any other surface soil PCL established in accordance

with sec.350.59(f) of this title (relating to Development of Human Health

PCLs for Soil Exposure Pathways); and

(10) for the interval of soil extending from ground surface

to a subsurface depth of 5 feet, any surface soil PCL established to be 
protective

of ecological receptors as required in sec.350.56 of this title (relating

to Ecological Risk Assessment and Development of Ecological PCLs).


(c) The person shall establish the subsurface soil PCLE zone

which is that portion of the subsurface soil containing COCs in excess of

the critical subsurface soil PCL. The critical subsurface soil PCL is the

lowest of:

(1) <sup> Air</sup>Soil<sub>

Inh-V;</sub>

(2) <sup>GW</sup>Soil;

(3) <sup>LT-Air</sup>Soil<sub>

Inh-V;</sub>

(4) any other subsurface soil PCL established in accordance

with sec.350.59(f) of this title (relating to Development of Human Health

PCLs for Soil Exposure Pathways).


(d) If the critical surface or subsurface soil PCL for a COC

is less than the MQL as defined in sec.350.2 of this title (relating to

Definitions and Acronyms) or the natural or anthropogenic background surface

or subsurface soil concentration for that COC, then the greater of the MQL

or background concentration is the critical surface or subsurface soil PCL,

as applicable, for that COC.


(e) As an additional requirement, the critical surface and

subsurface soil PCLs must allow the explosive vapor criteria set forth in

sec.350.93(a) of this title (relating to Remedy Standard A) and sec.350.94(a)

of this title (relating to Remedy Standard B) to be met.



<nl>sec.350.61. Development of PCLs

for Air, Surface Water and Sediments.


(a) For air inhalation exposure pathways, the person may be

required by the executive director to establish the source medium PCL <
sup>Air</sup>Air<sub>Inh</sub> solely for the

purposes of determining the protective concentration that must be met in air

at the POE. The person shall use the PCL equation provided in the following

figure to establish <sup>Air</sup>Air<sub>

Inh</sub>.

Figure 1: 30 TAC sec.350.61(a)


(b) The person may be required by the executive director to

establish the source medium PCL <sup>SW</sup>SW when COCs

are present in surface water or when COCs will enter into surface water due

to an unauthorized release, and a surface water response action is necessary

to protect human or ecological receptors. The person shall use the PCL equation

provided in the following figure to establish <sup>SW</sup>SW.




Figure 2: 30 TAC sec.350.61(b)


(c) The person shall establish PCLs for air and surface water

exposure pathways other than those listed in subsections (a) and (b) of this

section when those other exposure pathways are complete or reasonably 
anticipated,

or when required by the executive director.


(d) The person is not required to combine air exposure pathways

or surface water exposure pathways when determining PCLs, unless otherwise

directed by the executive director.


(e) The person shall establish PCLs for sediment exposure

pathways when those exposure pathways are complete or reasonably anticipated,

or when required by the executive director.



<nl>sec.350.62. Approaches for Specific

 COCs.


(a) General.

(1) Due to the unique nature of the toxicity and/or exposure

for certain COCs, the person must use the COC-specific approaches described

in this section for the following COCs:

(A) cadmium,


(B) lead,


(C) polychlorinated biphenyls (PCBs),


(D) polychlorinated dibenzodioxins (PCDDs) and dibenzofurans

(PCDFs),


(E) polycyclic aromatic hydrocarbons (PAHs), and


(F) total petroleum hydrocarbons (TPH).

(2) Except for the specific provisions contained

in this section, the person shall establish RBELs and PCLs in accordance with

the standard procedures outlined in the previous sections of this subchapter.




(3) This section addresses exposure pathways for which

PCL equations are provided in this subchapter. When dealing with other exposure

pathways as required in sec.350.51(a) of this title (relating to General

Requirements), the executive director will specify how those pathways should

be addressed for these COCs.


(b) Cadmium.

(1) In calculating residential soil PCLs that are protective

for noncarcinogenic effects for all tiers, the person shall incorporate age-
adjusted

exposure assumptions for the soil ingestion, vegetable ingestion, and dermal

soil exposure pathways. Accordingly, 33 years of cadmium exposure shall be

partitioned into three specific exposure periods: &lt;1-6 years, 6-18 years,

and 18-33 years. Cadmium intake shall be calculated for each of these periods,

based on the period-specific exposure assumptions. The soil PCL for cadmium

shall be a function of the final integrated intake estimate, which shall be

determined by time-weighting intake from each of the three exposure periods.

The age-adjusted RBEL equations and default parameters to be used for cadmium

are provided in the following figure. The soil PCL for cadmium shall be 
calculated

by combining the pathway-specific PCLs as outlined in sec.350.59(a) of this

title (relating to Development of Human Health PCLs for Soil Exposure Pathways).




Figure 1: 30 TAC sec.350.62(b)(1)

(2) In calculating residential and commercial/industrial

soil PCLs for all tiers, the person shall use the RfD values for cadmium in

food in evaluating exposures to cadmium through the soil ingestion, vegetable

ingestion, and dermal soil exposure pathways.


(c) Lead.

(1) The residential soil PCL (<sup>Tot</sup>Soil<
sub>Comb</sub>) for lead is 500 mg/kg.

(2) The person shall use the most current version of

the U.S. EPA's Exposure Model for Assessing Risk

 Associated with Adult Exposures to Lead in Soil to calculate the 
commercial/industrial

soil PCL (<sup>Tot</sup>Soil<sub>Comb</sub>).




(A) The commercial/industrial soil PCL (<sup>

Tot</sup>Soil<sub>Comb</sub>) is based only on the soil

ingestion pathway (<sup>Soil</sup>Soil<sub>

Ing</sub>). The person shall use the exposure algorithm and default exposure

factors in the following for calculating the Tier 1 commercial/industrial <
sup>Soil</sup>RBEL<sub>Ing</sub> value.

Figure 2: 30 TAC sec.350.62(c)(2)(A)


(B) The person may use a different exposure algorithm as presented

in the following figure that considers soil and dust separately for calculating

the Tier 2 and 3 commercial/industrial <sup>Soil</sup>RBEL<
sub>Ing</sub> value. In addition, in calculating Tier 2 or 3 <
sup>Soil</sup>RBEL<sub>Ing</sub> values, the

person may deviate from the default exposure factors listed in the following

 figures if property-specific or defensible alternative data (e.g., from open

literature or privately funded studies) adequately support such an approach.

The specific exposure factors for which the person may use property-specific

or scientifically defensible alternative values are the following: Figure

3: 30 TAC sec.350.62(c)(2)(B); Figure 2: 30 TAC sec.350.62(c)(2)(A)) and

Figure 3: 30 TAC sec.350.62(c)(2)(B)

(i) individual geometric standard deviation (GSD<sub>

i</sub>),


(ii) baseline blood lead (PbBO),


(iii) absolute absorption fraction of lead in soil/dust (AF<
sub>sd</sub>),


(iv) absolute absorption fraction of lead in soil (AF<
sub>s</sub>),


(v) absolute absorption fraction of lead in dust (AF<
sub>d</sub>), and


(vi) the ratio of concentration in dust to that in soil (K<
sub>sd</sub>).


(d) Polychlorinated Biphenyls (PCBs).

(1) In calculating Tier 1 residential and commercial/industrial

soil and groundwater PCLs, the person shall use the upper-reference point

of the upper-bound slope factors (2 (mg/kg-day)<sup>-1</sup>)

for the soil ingestion, dermal contact with soil, vegetable ingestion, and

inhalation (both vapor and particulate phases) exposure pathways.

(2) For Tiers 2 and 3, the person may use alternative

slope factors when the following criteria are met:

(A) The person may use the lower reference point of the upper

bound slope factors (0.4 (mg/kg-day)<sup>-1</sup>) to calculate

an inhalation unit risk factor when evaluating inhalation exposures to 
volatilized

PCBs. The person must still use the upper reference point of the upper bound

slope factors (2 (mg/kg-day)<sup>-1</sup>) to evaluate inhalation

exposures to particulate phase PCBs.


(B) The person may conduct congener or isomer analyses. The

person may use the lowest reference point of the upper-bound slope factors

(0.07 (mg/kg-day)<sup>-1</sup>) for the soil ingestion,

dermal contact with soil, and inhalation exposure pathways if congener or

isomer analyses verify that congeners with more than four chlorines comprise

less than one-half percent of total PCBs in a given exposure medium. The upper

reference point of the upper-bound slope factors (2 (mg/kg-day)<sup>

-1</sup>) must be used for all other exposure pathways regardless of the

results of the congener- or isomer-specific analyses. If congener or isomer

analyses indicate that congeners with more than 4 chlorines comprise greater

than one-half percent of total PCBs in a given exposure medium, then the person

shall use the upper-reference point of the upper-bound slope factors (2 (mg/kg-
day)<
sup>-1</sup>) for all pathways for that specific exposure medium.

Further, when congener concentrations are available, the contribution of dioxin-
like

PCBs to total dioxin equivalents shall be considered. The person shall apply

the toxicity equivalency factors (TEFs) specified in the following figure

to the measured soil concentrations for each of the dioxin-like PCBs. These

values shall then be summed to obtain a 2,3,7,8-TCDD toxicity equivalency

quotient (TEQ). TEQs for dioxin-like PCBs shall then be added to those for

other dioxin-like compounds as specified in subsection (e) of this section

to yield a total TEQ concentration. This total TEQ concentration shall then

be compared with the critical soil PCL for TCDD, 2,3,7,8- (dioxin). When 
addressing

dioxin-like PCBs in this manner, the person should subtract the concentration

of dioxin-like PCBs from the total PCB concentration to avoid overestimating

dioxin-like PCBs by evaluating them twice.

Figure 4: 30 TAC sec.350.62(d)(2)(B)

(3) In evaluating inhalation exposures, the person

should convert the appropriate slope factor to an inhalation unit risk factor,

based on the following equation: Inhalation Unit Risk Factor (risk per g/m<
sup>3</sup>)= oral slope factor x 20 m<sup>

3</sup>/day &divide; 70 kg x 10<sup>-3</sup>


(e) Polychlorinated Dibenzo-p-dioxins (PCDDs) and Dibenzofurans

(PCDFs).

(1) In demonstrating attainment of the critical soil PCL for

TCDD, 2,3,7,8- (dioxin), the person shall apply the TEFs specified in the

following figure to the measured soil concentrations in accordance with the

following procedures.
Figure 4: 30 TAC sec.350.62(d)(2)(B)

(A) When analytical data are only available for total dioxins/furans,

the person shall assume that the mixture consists solely of 2,3,7,8-TCDD,

and a TEF value of 1.0 shall be applied to the measured soil concentration

to yield the 2,3,7,8-TCDD TEQ concentration for the soil sample.


(B) When homologue-specific analytical data are available

 (e.g., tetrachlorodibenzodioxins), the person shall assume that each homologue

class is comprised solely of 2,3,7,8-substituted congeners, and the TEF 
specified

for the 2,3,7,8-substituted congeners in the homologue class should be applied

to the measured soil concentrations for that homologue class. A TEF value

of 0.5 should be used for the pentachlorodibenzofuran homologue class. The

TEQ concentrations for each homologue class should then be summed to obtain

a total TEQ concentration for the soil sample.


(C) When congener-specific analytical data are available (e.g.,

1,2,3,4,7,8-hexachlorodibenzofuran), the person shall apply the TEF for the

2,3,7,8-substituted congeners to the measured soil concentrations. The TEQ

concentrations for each 2,3,7,8-substituted congener should then be summed

to obtain a total TEQ concentration for the soil sample.

(2) The person shall then compare the total TEQ

soil concentration to the critical soil PCL for TCDD, 2,3,7,8- (dioxins).




(3) For all relevant exposure pathways in any tier, the

person shall use the most current cancer potency estimate presented in the

U.S. EPA "Dioxin Reassessment Document." As of the date of this rule, the

risk-specific dose (0.01 pg TEQ/kg-day) presented in the 1994 draft of the

U.S. EPA Dioxin Reassessment yields an oral cancer slope factor of 100,000

(mg/kg-day)<sup>-1</sup>. Should this cancer potency estimate

be revised in subsequent updates to the U.S. EPA "Dioxin Reassessment Document",

the person shall use this updated potency estimate in calculating a PCL.




(f) Polycyclic Aromatic Hydrocarbons (PAHs).

(1) In calculating residential and commercial/industrial PCLs

for all tiers, the person shall evaluate the following seven PAHs as 
carcinogens:




(A) benz {a} anthracene,


(B) benzo {b} fluoranthene,


(C) benzo {k} fluoranthene,


(D) benzo {a} pyrene (B {a} P),


(E) chrysene,


(F) dibenz {a, h} anthracene, and


(G) indeno {1, 2, 3-c, d} pyrene.

(2) The person shall use the relative potency factors

(RPFs) outlined in the following figure to estimate cancer slope factors and

unit risk estimates for each of the PAHs identified in paragraph (1) of this

subsection for all exposure pathways (e.g., the soil ingestion, vegetable

ingestion, inhalation, dermal contact with soil, and groundwater ingestion

(in the absence of a primary MCL) exposure pathways).

Figure 5: 30 TAC sec.350.62(f)(2)

(3) The cancer slope factors and inhalation unit risk

factors for the seven carcinogenic PAHs shall be calculated according to the

equations set forth in the following figure.

Figure 6: 30 TAC sec.350.62(f)(3)

(4) The person shall not apply the RPFs for any pathways

when evaluating noncarcinogenic endpoints.

(5) For class 1 or 2 groundwater, the person shall establish

PCLs according to the procedures in subparagraphs (A) and (B) of this paragraph.




(A) In evaluating residential and commercial/industrial exposures

to class 1 and 2 groundwater for all tiers, the person shall use the most

currently available primary MCL for benzo[a]pyrene as <sup>

GW</sup>GW<sub>Ing</sub> for benzo[a]pyrene.


(B) In establishing <sup>GW</sup>GW<
sub>Ing</sub> for class 1 and 2 groundwater for the six remaining

 carcinogenic PAHs, the person shall use the higher of the calculated <
sup>GW</sup>RBEL<sub>Ing</sub> or the primary

MCL for B[a]P as <sup>GW</sup>GW<sub>Ing

</sub> for that specific PAH.


(g) Total Petroleum Hydrocarbons (TPH).

(1) If the executive director requires TPH PCLs to be established

for soil or groundwater at an affected property, the person shall follow the

methodology prescribed by this subsection, unless the executive director 
approves

the use of an alternate method.

(2) In order to establish PCLs for TPH, the person shall

establish PCLs for each of the aliphatic and aromatic hydrocarbon fractions

listed in the following figure (e.g., aliphatic C<sub>5</sub>-C<
sub>6</sub>) for the mandatory and complete or reasonably anticipated

exposure pathways as required in sec.350.51 of this title (relating to General

Requirements).

Figure 7: 30 TAC sec.350.62(g)(2)

(3) The persons shall use the PCL equations provided

in sec.350.75 of this title (relating to Development of Human Health PCLs

for Groundwater Exposure Pathways), sec.350.59 of this title (relating to

Development of Human Health PCLs for Soil Exposure Pathways), sec.350.61

of this title (relating to Development of PCLs for Air Surface Water and 
Sediments),

or other appropriate Tier 3 equation in accordance with sec.350.55(c) and

(e) of this title (relating to Tiered Human Health PCL Evaluation), and the

chemical/physical properties for each of the hydrocarbon fractions as provided

in sec.350.53(e) of this title (relating to Determination and Use of Human

Toxicity Factors and Chimical Properties). The person shall use the specific

toxicity factor listed in paragraph (2) of this subsection for a hydrocarbon

fraction. If an RfC is not available, then the person shall not be required

to comply with sec.350.53(e) of this title. PCLs established under this

subsection shall be based on noncarcinogenic effects. Figure 1: 30 TAC 
sec.350.53(e),

Figure 1: 30 TAC sec.350.57(a)(1)); Figure 2: 30 TAC sec.350.57(b)(1));

Figure 3: 30 TAC sec.350.57(c)(2); Figure 4: 30 TAC sec.350.57(c)(3);

Figure 5: 30 TAC sec.350.57(d)(1); Figure 1: 30 TAC sec.350.59(a)(1);

Figure 2: 30 TAC sec.350.59(a)(2)(A); Figure 3: 30 TAC sec.350.59(a)(2)(B);

Figure 4: 30 TAC sec.350.59(a)(3); Figure 5: 30 TAC sec.350.59(b)(2);

Figure 8: 30 TAC sec.350.59(d)(2); Figure 9: 30 TAC sec.350.59(d)(3);

Figure 1: 30 TAC sec.350.61(a); Figure 2: 30 TAC sec.350.61(b); and Figure

7: 30 TAC sec.350.62(g)(2)

(4) The person shall ensure that the PCLs established

for each hydrocarbon fraction comply with the hazard quotient criteria as

set forth in sec.350.52 of this title (relating to Carcinogenic Risk Levels

and Hazard Indices for Human Health Exposure Pathways).

(5) The person shall ensure that the PCLs established

for each hydrocarbon fraction comply with the hazard index criteria as set

forth in sec.350.52 of this title (relating to Carcinogenic Risk Levels

and Hazard Indices for Human Health Exposure Pathways) considering only the

hydrocarbon fractions listed in the following figure. The person shall follow

the methodology prescribed in sec.350.52(f) of this title to adjust the

hydrocarbon fraction PCLs to meet the hazard index criteria.
Figure 7: 30

TAC sec.350.62(g)(2)

(6) The person shall use an analytical method approved

by the executive director to determine the concentration of the hydrocarbon

fractions at the affected property.

(7) When the bulk TPH composition can be assumed to be

relatively consistent based on process knowledge, the person may establish

mixture-specific (e.g., gasoline, diesel, mineral oil, or other petroleum

product) PCLs based on property-specific mixture compositions or mixture 
compositions

considered to be representative of the mixture. The person shall comply with

the other provisions of this subsection in the development of the mixture-
specific

PCLs, but the person shall be allowed to determine compliance with the mixture-
specific

TPH PCL with a bulk TPH analytical method acceptable to the executive director

in lieu of analysis of the concentration of each hydrocarbon fraction.

(8) The PCLs established for each individual aliphatic

and aromatic hydrocarbon fraction used to establish the mixture specific PCLs

shall not exceed a hazard quotient of 1 and the mixture-specific PCL shall

not exceed a hazard index of 10.

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 May

 4, 1998.

TRD-9806238


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter D. Remedy Standards


30 TAC sec.sec.350.91-350.96

STATUTORY AUTHORITY The new rules are proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the new rules are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the new rules is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The new rules affect Water Code, Chapter 26, and Health and Safety Code

Chapter 361.



sec.350.91. Human Health Points

 of Exposure.


(a) General. The person shall use the prescribed on-site and

off-site POEs for humans to environmental media to determine PCLs under Remedy

Standard A in response to sec.350.93 of this title (relating to Remedy Standard

A) and under Remedy Standard B in response to sec.350.94 of this title (relating

to Remedy Standard B). In order to establish on-site or off-site POEs for

commercial/industrial land use, or alternate POEs for on-site or off-site

properties, the person must comply with sec.350.4 of this title (relating

to Requirements Pertaining to Off-Site Properties and Leased Lands). Existing

or proposed physical controls, such as a cap, building, fence, or parking

lot cannot be used to screen out soil or groundwater exposure pathways. 
Likewise,

existing or proposed institutional controls, such as use of personal protective

equipment, deed restrictions, or municipal zoning ordinances for land use

or groundwater use cannot be used to screen out human health soil or groundwater

exposure pathways. Physical and institutional control measures can be used

under Remedy Standard B as a response action once the PCLs have been established

and the extent of the soil and groundwater PCLE zones have been defined. The

POEs for ecological receptors shall be established on a property-specific

basis and in accordance with sec.350.56 of this title (relating to Ecological

Risk Assessment and Development of Ecological PCLs).


(b) Air human health POEs.

(1) On-site POEs.

(A) Residential land use. The prescribed on-site POE to air

is within the breathing zone (2 meter height) for residents directly over

the soil or groundwater COCs.


(B) Commercial/industrial land use. The prescribed on-site

POE to air is within the breathing zone (2 meter height) for 
commercial/industrial

workers directly over the soil or groundwater COCs.

(2) Off-site POEs.

(A) Residential land use. The prescribed off-site POE to air

is within the breathing zone (2 meter height) for residents located on the

nearest boundary of the closest off-site property from the of the COCs.




(B) Commercial/industrial land use. The prescribed off-site

POE to air is within the breathing zone (2 meter height) of 
commercial/industrial

workers located on the nearest boundary of the closest off-site property from

the of the COCs. The person shall establish an additional POE to air within

the breathing zone for residents at the closest boundary of the neighboring

property for which commercial/industrial land use is not established.

(3) Alternate POEs to air. There are no alternate

POEs to air.


(c) Soil human health POEs.

(1) On-site POEs.

(A) Residential land use. The prescribed on-site POE is throughout

the surface soil for residents.


(B) Commercial/industrial land use. The prescribed on-site

POE to soil is throughout the surface soil for commercial/industrial workers.



(2) Off-site POEs.

(A) Residential land use. The prescribed off-site POE to soil

is throughout the surface soil for residents starting at the nearest boundary

with and continuing throughout neighboring off-site properties.


(B) Commercial/industrial land use. The prescribed off-site

POE to soil is throughout the surface soil for commercial/industrial workers

starting at the nearest boundary with and continuing throughout any neighboring

off-site properties classified as commercial/industrial. The person shall

establish an additional POE to soil for residents at the closest boundary

of the neighboring property for which commercial/industrial land use is not

established.

(3) Alternate POEs to soil. There are no alternate

POEs to soil.


(d) Human health POEs for class 1, 2, and 3 groundwaters which

do not contain any COCs in excess of the critical groundwater PCLs.

(1) On-site POE. The prescribed on-site POE to groundwater

is throughout the first groundwater-bearing unit.

(2) Off-site POE. The prescribed off-site POE to groundwater

is throughout the first groundwater-bearing unit on the nearest boundary with

the closest hydraulically downgradient off-site property.

(3) Alternate POEs for class 1, 2, or 3 groundwaters

which do not contain any COCs in excess of the critical groundwater PCLs.

There are no alternate POEs.


(e) Human health POEs for class 1 groundwater. Whenever there

is an existing class 1 groundwater PCLE zone beneath a existing waste control

unit or a waste control unit planned as part of an approved RAP described

in sec.350.115 of this title (relating to Response Action Plan), under Remedy

Standard B the person may, with the executive director's approval, exclude

the area underlying the waste control unit as a POE to class 1 groundwater.



(1) On-site POEs.

(A) Residential land use. The prescribed on-site POE to class

1 groundwater is a well for residents completed at all locations throughout

the on-site groundwater PCLE zone.


(B) Commercial/industrial land use. The prescribed on-site

POE to class 1 groundwater is a well for commercial/industrial workers completed

at all locations throughout the on-site groundwater PCLE zone. The person

shall establish an additional on-site POE for class 1 groundwater for residents

unless the residential-based groundwater PCLE zone already extends off-site.

The residential POE shall be set at a distance of 2 years groundwater travel

time (darcy velocity based on prevailing hydraulic gradient and hydraulic

conductivity) upgradient of the nearest boundary with the closest hydraulically

downgradient off-site property. If the residential-based groundwater PCLE

zone already extends beyond the 2 year groundwater travel time setback distance

but not off-site, then the residential POE shall be set at the existing limit

of the residential-based groundwater PCLE zone.

(2) Off-site POEs.

(A) Residential land use. The prescribed off-site POE to class

1 groundwater is a well for residents completed at and all locations beyond

the nearest boundary with the closest hydraulically downgradient off-site

property within the groundwater-bearing unit containing a residential-based

groundwater PCLE zone.


(B) Commercial/industrial land use. The prescribed off-site

POE to class 1 groundwater is a well for commercial/industrial workers completed

at and all locations beyond the nearest boundary with the closest hydraulically

downgradient off-site property within the groundwater-bearing unit containing

a commercial/industrial-based groundwater PCLE zone. The person shall establish

an additional POE for class 1 groundwater for residents at and all locations

beyond the existing limit of the off-site residential-based groundwater PCLE

 zone.

(3) Alternate POEs to class 1 groundwater. There

are no alternate POEs to class 1 groundwater.


(f) Human health POEs for class 2 groundwater. Whenever there

is an existing class 2 groundwater PCLE zone beneath an existing waste control

unit or an waste control unit planned as part of an approved RAP, under Remedy

Standard B the person may, with the executive director's approval, exclude

the area underlying the waste control unit as a POE to class 2 groundwater.



(1) On-site POEs.

(A) Residential land use. The prescribed on-site POE to class

2 groundwater is a well for residents completed at all locations throughout

the on-site groundwater PCLE zone.


(B) Commercial/industrial land use. The prescribed on-site

POE to class 2 groundwater is a well for commercial/industrial workers completed

at all locations throughout the on-site groundwater PCLE zone. The person

shall establish an additional on-site POE for class 2 groundwater for residents

unless the residential-based groundwater PCLE zone already extends off-site.

The residential POE shall be set at a distance of 2 years groundwater travel

time (darcy velocity based on prevailing hydraulic gradient and hydraulic

conductivity) upgradient of the nearest boundary with the closest hydraulically

downgradient off-site property. If the residential-based groundwater PCLE

zone already extends beyond the 2 year groundwater travel time setback distance

but not off-site, then the residential POE shall be set at the existing limit

of the residential-based groundwater PCLE zone.

(2) Off-site POEs.

(A) Residential land use. The prescribed off-site POE to class

2 groundwater is a well for residents completed at and all locations beyond

the nearest boundary with the closest hydraulically downgradient off-site

property within the groundwater-bearing unit containing a residential-based

groundwater PCLE zone.


(B) Commercial/industrial land use. The prescribed off-site

POE to class 2 groundwater is a well for commercial/industrial workers completed

at and all locations beyond the nearest boundary with the closest hydraulically

 downgradient off-site property within the groundwater-bearing unit containing

a commercial/industrial-based groundwater PCLE zone. The person shall establish

an additional POE for class 2 groundwater for residents at and all locations

beyond the existing limit of the off-site residential-based groundwater PCLE

 zone.

(3) Alternate POEs to class 2 groundwater.

(A) Remedy Standard A. There are no alternate POEs to class

2 groundwater.


(B) Remedy Standard B. Provided the person is authorized by

the executive director to use groundwater lateral transport PCLs in response

to sec.350.94(m)(4) of this title  (relating to Remedy Standard B), the

person may establish an alternate on-site POE or off-site POE to class 2 
groundwater

in accordance with clause (i), (ii), or (iii) of this subparagraph as dictated

by the particular circumstances at the affected property. The current length

of the groundwater PCLE zone shall be determined as of the submittal date

of the RAP for Remedy Standard B response actions.

(i) On-site POE.

(I) The on-site POE to class 2 groundwater may be modified

to be a well for the applicable on-site receptor (i.e., residents or 
commercial/industrial

workers) completed at the on-site boundary of a plume management zone determined

in accordance with subclause (II) of this clause. If the on-site land use

is commercial/industrial, then the person shall establish an additional on-site

POE for class 2 groundwater for residents unless the residential-based 
groundwater

PCLE zone already extends off-site. The residential POE shall be set at a

distance of 2 years groundwater travel time (darcy velocity based on prevailing

hydraulic gradient and hydraulic conductivity) upgradient of the nearest 
boundary

with the closest hydraulically downgradient off-site property. If the 
residential-based

groundwater PCLE zone already extends beyond the 2 year groundwater travel

time setback distance but not off-site, then the residential POE shall be

set at the existing limit of the residential-based groundwater PCLE zone.




(II) The maximum length of the plume management zone shall

be established as the smallest of the following distances:

(-a-) up to 500 feet beyond the current length of the applicable

(i.e., residential or commercial/industrial) groundwater PCLE zone;

(-b-) a total length of up to 1.25 times the current

length of the applicable (i.e., residential or commercial/industrial) 
groundwater

PCLE zone (i.e., up to 25% additional plume length); or

(-c-) to within 2 years groundwater travel time (darcy

velocity based on prevailing hydraulic gradient and hydraulic conductivity)

upgradient of the nearest boundary with the closest hydraulically downgradient

off-site property.


(III) In the situation where multiple on-site plume management

zones exist, and have commingled, or are of minimal separation such that the

management as a combined plume management zone is more feasible and appropriate,

with site-specific approval from the executive director, the person may combine

the separate plume management zones into a single, combined plume management

zone provided the following conditions are met:

(-a-) POEs are established in accordance with subclause (I)

of this clause;

(-b-) the downgradient-most individual on-site plume

management zone included in the combined plume management zone shall meet

the criteria specified in subclause (II) of this clause; and

(-c-) an individual upgradient plume management zone

overlaps an individual downgradient plume management zone, or the individual

plume management zones are within 500 feet of one another.


(ii) Off-site POEs for off-site properties with class 2 groundwater

which currently contains the groundwater PCLE zone.

(I) The person may establish an alternate off-site POE to

class 2 groundwater for residents at the off-site boundary of a plume management

zone determined in accordance with subclause (II) of this clause.


(II) The maximum length of the plume management zone shall

be established as the smallest of the following distances:

(-a-) up to 500 feet beyond the current length of the residential-based

groundwater PCLE zone;

(-b-) a total length of up to 1.25 times the current

length of the residential-based groundwater PCLE zone (i.e., up to 25% 
additional

plume length);

(-c-) to within 2 years groundwater travel time (darcy

velocity based on prevailing hydraulic gradient and hydraulic conductivity)

upgradient from the closest property boundary hydraulically downgradient of

the residential-based groundwater PCLE zone; or

(-d-) at the current downgradient extent of the residential-based

groundwater PCLE zone when the residential-based groundwater PCLE zone is

already within the 2 year travel time setback distance.


(iii) Off-site POEs for off-site properties with class 2 groundwater

which currently does not contain the groundwater PCLE zone.

(I) Unless the person can demonstrate to the satisfaction

of the executive director that the groundwater-bearing unit has no reasonably

anticipated future beneficial use, the person shall not allow a plume management

zone within class 2 groundwater to extend onto any off-site property which

does not currently contain the groundwater PCLE zone. This determination of

future beneficial use shall be based upon the existing quality of groundwater,

considering non-point sources of COCs and their cumulative impact on the 
groundwater

quality, and the proximity and withdrawal rates of groundwater users. The

executive director may require the collection of groundwater samples to document

the presence of the COCs originating from non-point sources.


(II) If the person can demonstrate to the satisfaction of

the executive director that the class 2 groundwater does not have a reasonably

anticipated future beneficial use based on the existing quality of the 
groundwater

or the lack of use of the groundwater, then the person may allow a plume 
management

zone to extend onto an off-site property. The person shall establish an 
alternate

off-site POE to class 2 groundwater for residents at the off-site boundary

of a plume management zone determined in accordance with subclause (III) of

this clause.


(III) The maximum length of the plume management zone shall

be established as the smallest of the following distances:

(-a-) up to 500 feet beyond the current length of the residential-based

groundwater PCLE zone;

(-b-) a total length of up to 1.25 times the current

length of the residential-based groundwater PCLE zone (i.e., up to 25% 
additional

plume length);

(-c-) to within 2 years groundwater travel time (darcy

velocity based on prevailing hydraulic gradient and hydraulic conductivity)

upgradient of the nearest boundary with the closest hydraulically downgradient

off-site property for which the owner has not provided written concurrence

to allow the recording of an institutional control (i.e., deed 
notice/restrictive

covenant noting limitations on the use of groundwater) in the real property

records of the county of the affected property.


(g) POEs for class 3 groundwater. Whenever there is an existing

 class 3 groundwater PCLE zone beneath an existing waste control unit or an

waste control unit planned as part of an approved RAP, under Remedy Standard

B the person may, with the executive director's approval, exclude the area

underlying the waste control unit as a POE to class 3 groundwater.

(1) On-site POEs. For both residential and commercial/industrial

land uses, the prescribed on-site POE to class 3 groundwater is at all locations

throughout a groundwater PCLE zone defined by concentrations greater than <
sup>GW</sup>GW<sub>Class 3</sub> for the applicable

on-site land use (i.e., residential or commercial/industrial).

(2) Off-site POEs.

(A) For both residential and commercial/industrial land uses,

the prescribed off-site POE to class 3 groundwater is at and all locations

beyond the nearest boundary with the closest hydraulically downgradient off-site

property within the groundwater-bearing unit containing the groundwater PCLE

zone defined by concentrations greater than <sup>GW</sup>GW<
sub>Class 3</sub> for the applicable off-site land use (i.e.,

residential or commercial/industrial).


(B) If commercial/industrial land use is assumed for the off-site

property, then the person shall establish an additional POE for class 3 
groundwater

for residents at and all locations beyond the existing limit of the off-site

residential-based groundwater PCLE zone.

(3) Alternate POEs to class 3 groundwater.

(A) Remedy Standard A. There are no alternate POEs to class

3 groundwater.


(B) Remedy Standard B. Provided the person is authorized by

the executive director to use groundwater lateral transport PCLs in response

to sec.350.94(m)(4) of this title  (relating to Remedy Standard B), the

person may establish an alternate on-site POE or off-site POE to class 3 
groundwater

in accordance with clause (i) or (ii), respectively, of this subparagraph.



(i) On-site POE. The on-site POE to class 3 groundwater identified

in paragraph (1) of this subsection may be moved to the on-site boundary of

a plume management zone for the applicable on-site land use (i.e., residential

or commercial/industrial). The plume management zone may extend to within

2 years groundwater travel time (darcy velocity based on prevailing hydraulic

gradient and hydraulic conductivity) upgradient of the nearest boundary with

the closest hydraulically downgradient off-site property. However, in the

circumstance where the closest hydraulically downgradient off-site property

has a residential land use, the <sup>GW</sup>GW<sub>

Class 3</sub> to be applied at the alternate on-site POE shall be based upon

 residential land use.


(ii) Off-site POEs.

(I) The person may establish an alternate off-site POE to

class 3 groundwater which is beyond the property boundary at the off-site

boundary of a plume management zone determined in accordance with subclause

(II) of this clause. The <sup>GW</sup>GW<sub>

Class 3</sub> to be applied at this alternate off-site POE shall be based

upon residential land use.


(II) The boundary of the plume management zone may be established

up to within 2 years groundwater travel time (darcy velocity based on prevailing

hydraulic gradient and hydraulic conductivity) upgradient of the nearest 
boundary

with the closest hydraulically downgradient off-site property for which the

landowner has not provided written concurrence to allow the recording of an

institutional control (i.e., deed notice/restrictive covenant noting limitations

on use of groundwater) in the real property records of the county of the 
affected

property.


(h) Human health POEs for surface water runoff or groundwater

discharges to surface water.

(1) On-site POEs. The prescribed on-site POEs to surface water

will be at the point of surface water runoff or groundwater discharge into

any on-site surface water body meeting the definition of surface water in

the State as defined in sec.307.3 of this title (relating to Definitions

and Abbreviations).

(2) Off-site POEs. The prescribed off-site POEs to surface

water will be at the point of surface water runoff or groundwater discharge

into any off-site surface water body meeting the definition of surface water

in the State as defined in sec.307.3 of this title (relating to Definitions

and Abbreviations).

(3) Alternate POEs to surface water. There are no alternate

POEs for surface water runoff or groundwater discharges to surface water.




(i) Human health POEs for unauthorized releases of COCs directly

to surface water.

(1) On-site POE. The prescribed on-site POE for unauthorized

releases directly to surface water is at the point of entry of COCs into and

throughout the on-site extent of any surface water body meeting the definition

of surface water in the State as defined in sec.307.3 of this title  (relating

to Definitions and Abbreviations).

(2) Off-site POE. The prescribed off-site POE for unauthorized

releases directly to surface water is at the point of entry of COCs into and

throughout the off-site extent of any surface water body meeting the definition

of surface water in the State as defined in sec.307.3 of this title  (relating

to Definitions and Abbreviations).

(3) Alternate POEs for unauthorized releases directly

to surface water. There are no alternate POEs for unauthorized releases of

COCs directly to surface water.


(j) Human health POEs for sediment.

(1) On-site POE. The prescribed on-site POE to sediment is

within the upper 1 foot of sediment within any surface water body meeting

the definition of surface water in the State as defined in sec.307.3 of

this title (relating to Definitions and Abbreviations).

(2) Off-site POE. The prescribed off-site POE to sediment

is within the upper 1 foot of sediment within any surface water body meeting

the definition of surface water in the State as defined in sec.307.3 of

this title (relating to Definitions and Abbreviations).

(3) Alternate POEs to sediment. There are no alternate

POEs to sediment.



<nl>sec.350.92. General Requirements

for Remedy Standards.


(a) The person shall use Remedy Standard A or B to satisfy

cleanup responsibilities at affected properties subject to these rules as

specified in sec.350.3 of this title (relating to Applicability) unless

an alternative approach is required by another commission regulation, permit,

or order.


(b) For Remedy Standards A and B, in order for a treatment

process to achieve decontamination rather than being an physical control 
measure,

the person must demonstrate to the satisfaction of the executive director

that the treatment process permanently and irreversibly destructs or extracts

COCs in a waste or environmental medium to concentration levels below the

critical PCLs and must further demonstrate that any residue remaining after

treatment will not pose the threat of a future release of COCs into 
environmental

media at concentration levels greater than the critical PCLs. The executive

director shall initially presume that stabilization, solidification, and 
fixation

processes are physical control measures rather than decontamination. The person

may rebut this initial presumption by demonstrating to the satisfaction of

the executive director that a stabilization, solidification, or fixation process

can achieve the performance requirements for a decontamination action.


(c) The person shall notify the executive director and the

agency's office in the region where the affected property is located in writing

at least 10 days in advance of performing confirmation sampling to demonstrate

that a response action is complete and a remedy standard has been attained.





<nl>sec.350.93. Remedy Standard A.





(a) To attain Remedy Standard A, the person shall:

(1) remove any listed hazardous waste as defined in 40 CFR

Part 261, Subpart D which is separable using simple mechanical removal 
processes;



(2) remove and/or decontaminate any waste or environmental

media which is characteristically hazardous due to ignitability, corrosivity,

reactivity, or toxicity characteristic as defined in 40 CFR Part 261, Subpart

C;

(3) remove and/or decontaminate the soil and groundwater

PCLE zones (monitored natural attenuation can be used when appropriate 
considering

the hydrogeologic characteristics of the affected property and chemical-specific

data), other environmental media, and non-hazardous waste to the critical

residential or commercial/industrial PCLs or source medium PCLs, as applicable;

and

(4) demonstrate that remaining concentrations of volatile

COCs in the soil or groundwater will not result in vapor concentrations in

excess of 25% of the lower explosive limit for the COC or COC mixture within

outdoor air, surface or below-ground structures, or within the soil zone 
extending

from ground surface to 15 feet in depth, or to the typical depth of the 
construction

zone as defined in accordance with sec.350.2 of this title (relating to

Definitions and Acronyms) when it extends to depths greater than 15 feet.




(b) Response actions under Remedy Standard A must result in

permanent risk reduction at an affected property. The person shall not use

physical controls under Remedy Standard A. The person shall remediate the

affected property such that the concentration of COCs in soil and groundwater

do not exceed the applicable critical PCLs and the concentration of COCs in

surface water, sediment and air do not exceed the applicable source medium

PCLs.


(c) The person shall determine the PCLs for Remedy Standard

A using source medium exposure pathways where the human or ecological receptor

comes into contact with the COCs directly within, above, or below a source

medium. Lateral transport exposure pathways using lateral transport equations

which place the POE at a location outside of the source area cannot be used

to determine PCLs for Standard A response actions with the following exceptions:



(1) to ensure that an off-site resident is protected when

the receptor is assumed to be a commercial/industrial worker for purposes

of establishing a source medium PCL; or

(2) when development of <sup>SW</sup>LT-GW

is required in accordance with sec.350.57(d) of this title (relating to

Development of Human Health PCLs for Groundwater Exposure Pathways).


(d) Remedy Standard A is a self-implementing standard unless

the person desires to modify exposure factors under sec.350.54(j) of this

title (relating to Development of Risk-Based Exposure Limits) which requires

prior executive director approval, or unless the person chooses not to self-
implement.

The person shall submit a SIN as described in sec.350.113 of this title

(relating to Self-Implementation Notice) to the executive director and the

agency's office in the region where the affected property is located at least

10 days prior to conducting a response action under this remedy standard.

The person may then perform the response action without receiving the executive

director's approval, unless such prior approval is required by another agency

rule, order, or permit. If the person chooses not to self-implement, then

the person shall submit a RAP for review and approval by the executive director

in accordance with sec.350.115 of this title (relating to Response Action

Plan). The person shall include an APAR, and a SSAP if statistical methods

are used, with the RAP, unless the APAR and SSAP have previously been submitted.

The APAR and SSAP shall conform to the requirements in sec.350.112 and 
sec.350.111

of this title (relating to Affected Property Assessment Report, and Sampling

and Statistical Analysis Plan, respectively). The person may choose to 
sequentially

submit a SSAP and then an APAR for executive director review and approval

prior to submitting the RAP for review.


(e) Unless a RACR described in sec.350.116 (relating to

Response Action Completion Report) has been approved or is pending review

by the executive director, the person shall submit a response action 
effectiveness

report (RAER) prepared in accordance with sec.350.114 of this title  (relating

to Response Action Effectiveness Report) to the executive director within

3 years of submitting the SIN or the date of approval of the RAP by the 
executive

director. The RAER shall be accompanied by an APAR, and a SSAP if statistical

methods are used, unless the APAR and SSAP have previously been submitted.

The APAR and SSAP shall conform to the requirements in sec.350.112 of this

title (relating to Affected Property Assessment Report) and sec.350.111

of this title (relating to Sampling and Statistical Analysis Plan), 
respectively.

The RAER must document that sufficient progress is being made to achieve Remedy

Standard A within a reasonable time frame given the particular circumstances

of an affected property. The person shall also submit a RAER each subsequent

3 years, unless the executive director requires a more frequent reporting

period. If insufficient progress is being made, based on an evaluation by

the person or the executive director, the executive director may require the

person to evaluate an alternative response action or to perform a response

action under Remedy Standard B to address the soil and/or groundwater PCLE

zone(s) in a more effective manner.


(f) Within 90 days of completing a Remedy Standard A response

action, the person shall submit a RACR as described in sec.350.116 of this

title (relating to Response Action Completion Report) for review and approval

by the executive director. The RACR shall be accompanied by an APAR, and a

SSAP if statistical methods are used, unless an APAR and SSAP have been 
previously

submitted in accordance with subsection (d) or (e) of this section.


(g) The person attaining Remedy Standard A for commercial/industrial

land use shall provide proof of the filing of a deed notice in accordance

with sec.350.131(b)(2) of this title (relating to Instruments for Institutional

Controls) within the real property records of the county of the affected 
property

within 90 days of the approval of the RACR by the executive director. However,

a person who completes a response action using commercial/industrial land

use on property with an innocent owner shall provide proof of the filing of

a restrictive covenant, rather than a deed notice, in accordance with 
sec.350.131(b)(5)

of this title (relating to Instruments for Institutional Controls) within

the real property records of the county of the affected property within 90

days of the approval of the RACR by the executive director. The person shall

meet the requirements set forth in sec.350.4 of this title (relating to

Requirements Pertaining to Off-Site Properties and Leased Lands) prior to

filing, or causing to be filed, any such notice or restrictive covenant within

the real property records for leased lands or off-site properties.


(h) In order to inform others of ongoing long-term response

actions, the person shall provide proof of the filing of a deed notice in

accordance with sec.350.131(b)(1) of this title (relating to Instruments

for Institutional Controls) within the real property records of the county

of the affected property within 90 days of the determination made under 
paragraphs

(1), (2) or (3) of this subsection. The person shall meet the requirements

set forth in sec.350.4 of this title (relating to Requirements Pertaining

to Off-Site Properties and Leased Lands) prior to filing, or causing to be

filed, any such notice within the real property records for leased lands or

off-site properties.

(1) The response action is predicted in the SIN or RAP to

take in excess of 10 years from the date of submittal of the SIN or the date

of executive director approval of the RAP to achieve the requirements of 
subsection

(a) of this section at the affected property.

(2) The response action is predicted in a RAER to take

in excess of 10 years from the date of submittal of the SIN or the date of

executive director approval of the RAP, or an alternate time period, as approved

by the executive director, not to exceed 13 years from the date of submittal

of the SIN or the date of executive director approval of the RAP to achieve

the requirements of subsection (a) of this section at the affected property.



(3) The requirements of subsection (a) of this section

have not been achieved within 10 years of submittal of the SIN or the date

of executive director approval of the RAP, or an alternate time period, as

approved by the executive director, not to exceed 13 years from the date of

submittal of the SIN or the date of executive director approval of the RAP.




(i) Until such time as a deed notice or restrictive covenant

is filed within the real property records of the county for an affected property

as required in subsections (g) or (h) of this section, the on-site and/or

off-site owner(s) of affected property shall, prior to transfer of the property

or signing of lease agreements, inform any prospective purchaser or tenant

of the property of the existing or planned response actions and of any current

or future potential limitations on the use of the property.


(j) Remedy Standard A is subdivided into residential (A-Res)

and commercial/industrial (A-Com/Ind) land use categories.

(1) A-Res.

(A) To attain category A-Res, the person must respond to soil

and groundwater PCLE zones, other environmental media, and non-hazardous waste

and achieve the response objective specified in subsection (a)(3) of this

section using the residential critical surface soil, subsurface soil, and

groundwater PCLs and the residential source medium PCLs for other environmental

media, as applicable, and must also achieve the requirements of subsections

(a)(1)-(2), and (a)(4) of this section.


(B) Upon completion of the response action, the affected property

must be protective for unrestricted residential use and also for ecological

receptors.

(2) A-Com/Ind.

(A) To attain the A-Com/Ind category, the person must respond

to soil and groundwater PCLE zones, other environmental media, and non-hazardous

waste and achieve the response objective specified in subsection (a)(3) of

this section using the commercial/industrial critical surface soil, subsurface

soil, and groundwater PCLs and the commercial/industrial source medium PCLs

for other environmental media, as applicable, and must also achieve the 
requirements

of subsections (a)(1)-(2), and (a)(4) of this section.


(B) Upon completion of the response action, the affected property

must be protective for unrestricted commercial/industrial use and also for

ecological receptors.


(k) The current landowner or any future landowner of an on-site

or off-site property attaining A-Com/Ind shall perform additional response

actions in accordance with sec.350.5 of this title  (relating to Substantial

Changes in Circumstances) prior to allowing the property to be used for 
residential

purposes.


(l) The person cannot use a demonstration of technical impracticability

when responding to soil and/or groundwater PCLE zones under Remedy Standard

A. Technical impracticability must be addressed under Remedy Standard B.





(m) The person shall prevent COCs at concentrations above

the critical groundwater PCLs from migrating beyond the existing boundary

of the groundwater PCLE zone while achieving the requirements of subsection

(j) of this section.


(n) There are no post-response action care or financial assurance

requirements for Remedy Standard A response actions, provided the person 
adequately

documents attainment of the response objectives provided in subsection (a)

of this section. When considered warranted, the executive director may require

the person to monitor environmental media to verify the models used to determine

PCLs established under Tiers 2 or 3 as provided in sec.350.55 of this title

(relating to Tiered Human Health PCL Evaluation).



<nl>sec.350.94. Remedy Standard B.





(a) To attain Remedy Standard B, the person shall:

(1) remove, decontaminate, and/or control the surface soil,

subsurface soil, and groundwater PCLE zones, other environmental media, and

hazardous and non-hazardous waste in accordance with the provisions of this

section such that human and ecological receptors will not be exposed to 
concentrations

of COCs in the exposure media in excess of the residential or 
commercial/industrial

 critical PCLs or source medium PCLs, as applicable, at the prescribed, or

any approved alternate, on-site or off-site POEs established for environmental

 media; and

(2) demonstrate that remaining concentrations of volatile

COCs in the soil or groundwater will not result in vapor concentrations in

excess of 25% of the lower explosive limit for the COC or COC mixture within

outdoor air, surface or below-ground structures, or within the soil zone (beyond

the boundaries of an physical control measure) extending from ground surface

to 15 feet in depth, or to the typical depth of the construction zone as defined

in accordance with sec.350.2 of this title (relating to Definitions and

Acronyms) when it extends to depths greater than 15 feet.


(b) The person performing a response action to attain Remedy

Standard B may use removal and/or decontamination with controls or controls

only, with the exception of response actions for class 1 groundwater PCLE

zones which must be removed and/or decontaminated to the critical groundwater

PCL for each COC. The person may use both physical and institutional controls.

The person shall demonstrate to the satisfaction of the executive director

that the response actions which they propose to use will attain the requirements

of subsection (a) of this section within a reasonable time frame given the

particular circumstances of an affected property. The person shall also perform

any more stringent or additional response actions which are required by the

statute or regulations governing the program areas covered by this chapter

as specified in sec.350.3 of this title (relating to Applicability).


(c) PCLs for Remedy Standard B are determined through consideration

of both source medium and lateral transport exposure pathways. Lateral transport

 equations may be used to back-calculate lateral transport PCLs which are 
applied

within the soil and groundwater source areas and will result in the attainment

of the critical groundwater PCLs and source medium PCLs for other exposure

media at the prescribed, or any approved alternate, on-site and off-site POEs

established for environmental media.


(d) Remedy Standard B is not a self-implementing standard.

The person must receive the executive director's written approval of the 
following

reports before commencing response actions to attain the standard:

(1) a SSAP as described in sec.350.111 of this title (relating

to Sampling and Statistical Analysis Plan) if the person plans to use 
statistical

 methods;

(2) an APAR prepared in accordance with sec.350.112

of this title (relating to Affected Property Assessment Report); and

(3) a RAP as described in sec.350.115 of this title

(relating to Response Action Plan), or a revised RAP as discussed in subsection

(e) of this section.


(e) The person seeking changes to a previously approved RAP

shall submit a revised RAP for consideration of approval by the executive

director at least 120 days prior to the intended implementation date of the

proposed changes. This provision may not be used to result in noncompliance

with a previously approved or imposed schedule of compliance for an enforcement

action.


(f) Within 90 days of completing a Remedy Standard B response

action, the person shall submit a RACR as described in sec.350.116 of this

title (relating to Response Action Completion Report) for review and approval

by the executive director.


(g) The person shall provide proof of the filing of a deed

notice in the real property records of the county of the affected property

for physical controls and/or institutional controls in accordance with 
sec.350.131(b)(3)

of this title (relating to Instruments for Institutional Controls) within

90 days of the approval of the RACR by the executive director. However, a

person who completes a response action using physical controls and/or 
institutional

controls on property with an innocent owner shall provide proof of the filing

of a restrictive covenant, rather than a deed notice, in accordance with 
sec.350.131(b)(6)

of this title (relating to Instruments for Institutional Controls) within

the real property records of the county of the affected property within 90

days of the approval of the RACR by the executive director. The notice or

restrictive covenant shall indicate the presence of the soil and/or groundwater

PCLE zone(s) and the lateral extent of any required physical and/or 
institutional

control(s) that will remain following completion of the Remedy Standard B

response actions. The person shall meet the requirements set forth in sec.350.4

of this title (relating to Requirements Pertaining to Off-Site Properties

and Leased Lands) prior to filing, or causing to be filed, any such notice

or restrictive covenant within the real property records for leased lands

or off-site properties.


(h) Unless a RACR has been approved or is pending review by

the executive director, the person shall submit a RAER prepared in accordance

with sec.350.114 of this title (relating to Response Action Effectiveness

Report) to the executive director within 3 years of approval of the RAP. The

RAER shall document whether sufficient progress is being made to achieve Remedy

Standard B in accordance with the schedule contained in the approved RAP.

The person shall also submit a RAER each subsequent 3 years, unless the 
executive

director requires or approves a more frequent reporting period in the RAP.

If insufficient progress is being made, based on an evaluation by the person

or the executive director, the executive director may require the person to

evaluate an alternative response action to address any surface soil, subsurface

soil, or groundwater PCLE zones or other environmental media containing COCs

in a more effective manner.


(i) In order to inform others of ongoing long-term response

actions, the person shall provide proof of the filing of a deed notice in

accordance with sec.350.131(b)(1) of this title (relating to Instruments

for Institutional Controls) within the real property records of the county

of the affected property within 90 days of the determination made under 
paragraphs

(1), (2), or (3) of this subsection. The person shall meet the requirements

set forth in sec.350.4 of this title (relating to Requirements Pertaining

to Off-Site Properties and Leased Lands) prior to filing, or causing to be

filed, any such notice within the real property records for leased lands or

off-site properties.

(1) The response action is predicted in the RAP to take in

excess of 10 years from the date of approval of the RAP to achieve the 
requirements

of subsection (a) of this section at the affected property.

(2) The response action is predicted in a RAER to take

in excess of 10 years from the date of approval of the RAP, or an alternate

time period, as approved by the executive director, not to exceed 13 years

from the date of approval of the RAP to achieve the requirements of subsection

(a) of this section at the affected property.

(3) The requirements of subsection (a) of this section

have not been achieved at the affected property within 10 years of approval

of the RAP or an alternate time period, as approved by the executive director,

not to exceed 13 years from the date of approval of the RAP.


(j) Until such time as a deed notice or restrictive covenant

is filed within the real property records of the county of an affected property

as required in subsections (g) or (i) of this section, the on-site and/or

off-site owner of affected property shall, prior to transfer of the property

or signing of lease agreements, inform any prospective purchaser or tenant

of the property of the existing or planned response actions and of any current

or future potential limitations on the use of the property.


(k) Remedy Standard B is subdivided into residential (B-Res)

and commercial/industrial (B-Com/Ind) land use categories.

(1) B-Res. To attain category B-Res, the person must respond

to surface soil, subsurface soil, and groundwater PCLE zones; other 
environmental

media; and hazardous and non-hazardous waste and achieve the response objective

specified in subsection (a)(1) of this section using the residential critical

surface soil, subsurface soil, and groundwater PCLs; the residential critical

groundwater lateral transport PCLs; and the residential source medium PCLs

for other environmental media, as applicable, and must also achieve the 
requirements

of subsection (a)(2) of this section. Upon completion, the property must be

protective for restricted residential land use and for ecological receptors.



(2) B-Com/Ind. To attain category B-Com/Ind, the person

must respond to surface soil, subsurface soil, and groundwater PCLE zones;

other environmental media; and hazardous and non-hazardous waste and achieve

the response objective specified in subsection (a)(1) of this section using

the commercial/industrial critical surface soil, subsurface soil, and 
groundwater

PCLs; the commercial/industrial critical groundwater lateral transport PCLs;

and the commercial/industrial source medium PCLs for other environmental media,

as applicable, and must also achieve the requirements of subsection (a)(2)

of this section. Upon completion, the property must be protective for restricted

commercial/industrial land use and for ecological receptors. The affected

property must also be protective for residents on the nearest downwind, nearest

hydraulically downgradient, and nearest physiographically downgradient off-site

property for which the landowner has not provided written concurrence to allow

the recording of an institutional control in the real property records of

the county of the affected property.


(l) The following are the surface and subsurface soil PCLE

zone response objectives and associated requirements for Remedy Standard B.

The person may choose to use either optional approach 1 or 2, as follows:



(1) Optional approach 1.

(A) The person shall remove and/or decontaminate soil PCLE

zone materials to the extent necessary to:

(i) prevent the direct exposure of humans and ecological receptors

to surface soil PCLE zone materials;


(ii) reduce the concentrations of COCs throughout the surface

and subsurface soil PCLE zones to the critical surface and subsurface soil

PCLs, respectively, based upon the prescribed, or any approved alternate,

on-site and off-site POEs to environmental media;


(iii) prevent the cross-media transfer and lateral transport

of COCs from the surface and subsurface soil PCLE zones to groundwater, air,

sediment or surface water above the critical groundwater PCLs and source medium

PCLs for other environmental media at the prescribed, or any approved alternate,

on-site and off-site POEs for those environmental media;


(iv) prevent leachate from the surface and subsurface soil

PCLE zones from increasing the concentration of COCs in class 2 groundwater

at the lateral transport POC above the measured concentration at the time

of RAP submittal in circumstances when an alternate POE to class 2 groundwater

is authorized in response to subsection (m)(4) of this section; and


(v) prevent the continuing occurrence or development of explosive

conditions as defined in subsection (a)(2) of this section.


(B) The person shall fulfill the post-response action care

obligations described in the approved RAP prepared in accordance with 
sec.350.115

of this title (relating to Response Action Plan).


(C) Provided the person adequately documents attainment of

the soil PCLE zone response objectives provided in subparagraph (A) of this

paragraph, there are no financial assurance requirements under optional approach

1.

(2) Optional approach 2.

(A) The person shall use removal and/or decontamination with

controls, or controls only, to respond to soil PCLE zone materials to the

extent necessary to:

(i) prevent the direct exposure of humans and ecological receptors

to surface soil PCLE zone materials;


(ii) prevent the cross-media transfer and lateral transport

of COCs from the surface and subsurface soil PCLE zones to groundwater, air,

sediment, or surface water above the critical groundwater PCLs and source

medium PCLs for other environmental media at the prescribed, or any approved

alternate, on-site and off-site POEs for those environmental media; and




(iii) prevent leachate from the surface and subsurface soil

PCLE zone from increasing the concentration of COCs in class 2 groundwater

at the lateral transport POC above the measured concentration at the time

of RAP submittal in circumstances when an alternate POE to class 2 groundwater

is authorized in response to subsection (m)(4) of this section.


(B) The person shall demonstrate that any physical control

measure or combination of measures proposed to be used (e.g., capping, slurry

wall, treatment that does not attain decontamination, or a landfill) will

reliably contain COCs derived from the surface and subsurface soil PCLE zone

materials over time. The person shall also demonstrate that the proposed 
physical

control or combination of measures will reliably prevent the development of

explosive conditions as defined in subsection (a)(2) of this section over

time beyond the boundary of the physical control(s).


(C) The person shall fulfill the post-response action care

obligations described in the approved RAP prepared in accordance with 
sec.350.115

of this title (relating to Response Action Plan).


(D) The person shall provide financial assurance in accordance

with subsections (s) and (t) of this section.


(m) The person shall achieve the Remedy Standard B groundwater

PCLE zone response objectives stated in paragraph (1) of this section, unless

the person demonstrates to the satisfaction of the executive director that

an affected property meets the qualifying criteria for one, or a combination,

of the modified groundwater response approaches described in paragraphs (2)

- (4) of this subsection. The person shall not combine a technical 
impracticability

demonstration as presented in paragraph (3) of this subsection with use of

groundwater lateral transport PCLs as presented in paragraph (4) of this 
subsection.

A person who uses one, or a combination, of the modified groundwater response

approaches shall fulfill the post-response action care obligations described

in the approved RAP prepared in accordance with sec.350.115 of this title

(relating to Response Action Plan). A person who uses one, or a combination,

of the modified groundwater response approaches which utilizes an physical

control(s) shall provide financial assurance as specified in subsections (s)

and (t) of this section.

(1) General groundwater response objectives. For all groundwater

classes, the person must:

(A) use either an active restoration approach or monitored

natural attenuation  (if appropriate considering the hydrogeologic 
characteristics

of the affected property and chemical-specific data for the COCs) to reduce

the concentration of COCs to the critical groundwater PCLs throughout the

groundwater PCLE zone;


(B) while achieving subparagraph (A) of this paragraph, prevent

COCs at concentrations above the critical groundwater PCLs from migrating

beyond the existing boundary of the groundwater PCLE zone;


(C) remove non-aqueous phase liquids (NAPLs) to the maximum

extent practicable unless it is demonstrated to the satisfaction of the 
executive

director that the COC is a low toxicity substance (i.e., where the critical

groundwater PCL of a COC is defined by its solubility), such as food grade

oil, and will not result in an explosive condition as defined in subsection

(a)(2) of this section;


(D) prevent COCs from migrating to air at concentration levels

above the source medium PCLs for air (i.e., <sup>Air</sup>Air<
sub>Inh</sub>);


(E) prevent COCs from migrating to surface water at concentration

levels above the source medium PCLs for groundwater discharges to surface

water (i.e., <sup>SW</sup>GW);


(F) prevent human and ecological receptor exposure to the

groundwater PCLE zone.

(2) Waste control unit. When the approved RAP includes

an existing or planned waste control unit which overlies an existing groundwater

PCLE zone, the person may, with the executive director's approval, exclude

the groundwater throughout that portion of the groundwater PCLE zone directly

underlying the waste control unit from the requirement to meet the groundwater

response objectives provided in paragraph (1) of this subsection. To use this

approach, the person must place a deed notice or restrictive covenant, as

applicable, in the real property records of the county of the affected property

in accordance with subsection (g) of this section which provides notice of

the existence and location of the groundwater PCLE zone beneath the waste

control unit and which prevents usage of and exposure to this groundwater

until such time as the COCs may reduce to the critical groundwater PCLs. Beyond

the perimeter of the waste control unit, the groundwater response objectives

must be met.

(3) Technical impracticability. A technical impracticability

demonstration can be used for all three classes of groundwater under Remedy

Standard B. To use this approach, the person must:

(A) demonstrate in accordance with the U.S. EPA "Guidance

for Evaluating the Technical Impracticability of Ground-Water Restoration"

(Office of Solid Waste and Emergency Response Directive 9234.2-25 or subsequent

version), or other method approved by the executive director, that it is not

feasible from an physical perspective using currently available remediation

technologies due either to hydrogeologic or chemical-specific factors to reduce

the concentration of COCs throughout all or a portion of the groundwater PCLE

zone to the applicable critical groundwater PCLs within a reasonable time

frame;


(B) use removal or decontamination actions to reduce the concentrations

of COCs to the critical groundwater PCLs for any portion of the groundwater

PCLE zone for which it is technically practicable;


(C) use physical control(s) to prevent migration of COCs from

that portion of the groundwater PCLE zone which satisfies the technical 
impracticability

demonstration in subparagraph (A) of this paragraph;


(D) prevent COCs at concentrations above the critical groundwater

PCLs from spreading beyond the existing boundary of the groundwater PCLE zone;

and


(E) place a deed notice or restrictive covenant, as applicable,

in the real property records of the county of the affected property in 
accordance

with subsection (g) of this section which provides notice of the existence

and location of the groundwater PCLE zone and which prevents usage of and

exposure to groundwater from this zone until such time as the COCs may reduce

to the critical groundwater PCLs.

(4) Groundwater lateral transport PCLs. With the

approval of the executive director, the person may use a groundwater lateral

transport PCL approach under Remedy Standard B for class 2 and 3 groundwater-
bearing

units which presently contain a groundwater PCLE zone to protect potential

receptors at alternate on-site or off-site POEs established in accordance

with sec.350.91 of this title  (relating to Human Health Points of Exposure).



(A) To use groundwater lateral transport PCLs, the person

must demonstrate to the satisfaction of the executive director that the COCs

will not pose a substantial present or potential hazard to human health or

the environment as long as the critical groundwater lateral transport PCLs

are not exceeded at the groundwater lateral transport POC based upon a 
consideration

of the following factors:

(i) potentially adverse effects on groundwater quality, considering:



(I) the physical and chemical characteristics of the COC,

including its potential for migration;


(II) the hydrogeological characteristics of the affected property

and surrounding land;


(III) the quantity of groundwater and the direction of groundwater

flow;


(IV) the proximity and withdrawal rates of groundwater users;




(V) the current and future uses of groundwater in the area;




(VI) the existing quality of groundwater, including other

sources of COCs and their cumulative impact on the groundwater quality;




(VII) the potential for health risks caused by human exposure

to COCs;


(VIII) the potential damage to wildlife, crops, vegetation,

and physical structures caused by exposure to COCs;


(IX) the persistence and permanence of the potentially adverse

effects; and


(ii) potentially adverse effects on hydraulically-connected

surface water quality, considering:

(I) the volume and physical and chemical characteristics of

the COCs present at the affected property;


(II) the hydrogeological characteristics of the affected property

and surrounding land;


(III) the quantity and quality of groundwater, and the direction

of groundwater flow;


(IV) the patterns of rainfall in the region;


(V) the proximity of the source area to surface water;


(VI) the current and future uses of surface waters in the

area and any water quality standards established for these surface waters;




(VII) the existing quality of surface water, including other

sources of COCs and their cumulative impact on surface-water quality;


(VIII) the potential for health risks caused by human exposure

to COCs;


(IX) the potential damage to wildlife, crops, vegetation,

and physical structures caused by exposure to COCs; and


(X) the persistence and permanence of the potentially adverse

effects.


(B) Provided the person demonstrates to the satisfaction of

the executive director that the establishment of groundwater lateral transport

PCLs is appropriate, the POE to groundwater may be changed from throughout

the groundwater PCLE zone to an alternate location established at the boundary

of a plume management zone established in accordance with sec.350.91(f)(3)

and sec.350.91(g)(3) of this title (relating to Human Health Points of Exposure)

for class 2 and class 3 groundwaters, respectively.


(C) In order to use an alternate location for the POE to class

2 or 3 groundwater, the person must:

(i) place a deed notice or restrictive covenant, as applicable,

in the real property records of the county of the affected property in 
accordance

with subsection (g) of this section which provides notice of the existence

and location of the plume management zone and which prevents usage of and

exposure to groundwater from this zone until such time as COCs may reduce

to the critical groundwater PCLs;


(ii) demonstrate through an appropriate technical presentation

that COCs will not migrate beyond the boundary of the plume management zone

at concentrations above the critical groundwater PCLs; and


(iii) demonstrate through the performance of a field survey

in the plume management zone that there are no artificial penetrations (e.g.,

abandoned wells or wells with open-hole completions) which can allow COCs

at concentrations which exceed the critical groundwater PCLs to migrate from

the groundwater PCLE zone to currently unaffected groundwater-bearing units.




(D) The groundwater lateral transport POC where attainment

of the critical groundwater lateral transport PCLs will be measured is a 
vertical

surface within the groundwater-bearing unit containing the plume management

zone. The groundwater lateral transport POC is located at the most hydraulically

downgradient extent of surface or subsurface soils with a concentration of

a COC in excess of 100 times the 0.5 acre Tier 1 <sup>GW

</sup>Soil value for that COC. When multiple COCs are present there is the

probability that the POC location described in the previous sentence will

be different for the individual COCs. However, a separate POC is not required

for each COC. Rather, the POC shall be set for all COCs according to the COC

where 100 times <sup>GW</sup>Soil represents the most hydraulically

downgradient location.


(E) The person shall establish a sufficient number of attenuation

monitoring points beginning at the most hydraulically upgradient location

within the groundwater PCLE zone and continuing along the flow path of the

COCs throughout the entire plume management zone so that conformance with

the groundwater response objectives for Optional Approach 1 or 2 as presented

in subparagraph (G) of this paragraph can be reliably verified over time.



(i) The number of attenuation monitoring points shall be to

the satisfaction of the executive director and shall depend upon a site-specific

evaluation of the hydrogeologic conditions of an affected property, the fate

and transport characteristics of the COCs, and the length and configuration

of the plume management zone. For the area between the downgradient limit

of the groundwater PCLE zone at the time of RAP submittal and the downgradient

boundary of the plume management zone, the spacing between attenuation 
monitoring

points shall not be greater than 100 feet and shall not be smaller than 50

feet, unless the distance between these two points is less than 50 feet, in

which case attenuation monitoring points shall be placed at the downgradient

limit of the groundwater PCLE zone established at the time of RAP submittal

and midway between this location and the groundwater POE.


(ii) The person shall calculate attenuation action levels

for each COC at each attenuation monitoring point that cannot be exceeded

in order for the critical groundwater PCLs to not be exceeded at the POE located

at the downgradient boundary of the plume management zone. To develop 
attenuation

action levels, the person can establish a curve for each COC representing

the natural attenuation with distance between the hydraulically upgradient

limit of the groundwater PCLE zone and the POE. From the curve, the person

may select the attenuation action levels corresponding to the location of

the attenuation monitoring points, and the critical groundwater lateral 
transport

PCLs corresponding to the location of the groundwater lateral transport POC.

The person shall periodically evaluate the adequacy of the attenuation action

levels using any newly acquired empirical monitoring data and reestablish

them as necessary to ensure the critical groundwater PCLs are not exceeded

 at the POE.


(iii) The person shall monitor concentrations of COCs in groundwater

at the attenuation monitoring points, the groundwater lateral transport POC,

and the groundwater POE in accordance with a schedule approved by the executive

director which is adequate to reliably demonstrate conformance with the 
applicable

groundwater response objectives. If any of the conditions specified in 
subclauses

(I)-(III) of this clause occur, then the person shall take an active response

action to meet the response objectives of Optional Approach 1 or 2 as presented

in subparagraph (G) of this paragraph. The executive director may authorize

the person to implement an accelerated monitoring program prior to initiating

an active response action in order to verify that a response action is 
warranted.



(I) An attenuation action level is exceeded at its respective

attenuation monitoring point.


(II) A critical groundwater lateral transport PCL is exceeded

at the groundwater lateral transport POC.


(III) A critical groundwater PCL is exceeded at the groundwater

POE.


(F) The person is not required to remove NAPLs if use of groundwater

lateral transport PCLs is approved provided the person demonstrates to the

executive director's satisfaction that all of the following conditions are

met:

(i) the NAPLs will not generate explosive conditions as defined

in subsection (a)(2) of this section;


(ii) the NAPLs will not discharge to the ground surface, to

surface waters, to structures, or to other groundwater-bearing units;


(iii) the NAPLs will not result in a larger groundwater PCLE

zone not considering the effects of a physical control (i.e., a steady state

or decreasing groundwater PCLE zone will remain if NAPLs are not removed);

and


(iv) the NAPLs will not result in the critical groundwater

PCLs, critical surface soil PCLs, critical subsurface soil PCLs, or source

medium PCLs for other environmental media being exceeded within any exposure

medium, as applicable, at the prescribed, or any approved alternate, on-site

or off-site POEs.


(G) The person may select either Optional Approach 1 or Optional

Approach 2 to demonstrate conformance with the groundwater requirements of

Remedy Standard B once a satisfactory demonstration has been made that use

of groundwater lateral transport PCLs is acceptable. The person shall have

the continuing obligation, under either of these optional approaches, to assess

whether changes to local hydraulic gradients would increase the likelihood

that COCs can migrate beyond the plume management zone at concentrations above

the critical groundwater PCLs. If such changed conditions occur, the person

must take any necessary corrective action to ensure that concentrations of

COCs exceeding the critical groundwater PCLs do not migrate beyond the boundary

of the plume management zone. The person may demonstrate that the hydrogeologic

characteristics of a property are such that off-site activities cannot influence

an on-site plume management zone and thus not be required to monitor changes

in the hydraulic gradient.

(i) Optional Approach 1.

(I) The person must remove and/or decontaminate the plume

management zone to the extent necessary so that the critical groundwater PCLs

will not be exceeded at the prescribed, or any approved alternate, on-site

or off-site POEs to groundwater and so that the source medium PCLs for other

environmental media will not be exceeded at either their prescribed on-site

or off-site POEs. This option requires the person to reduce the concentration

of COCs within the groundwater plume management zone such that the remaining

COCs in groundwater can migrate freely and satisfy the conditions stated in

items (-a-)-(-e-) of this subclause. For situations where the POE is located

within the existing limits of the groundwater PCLE zone, persons may use 
monitored

natural attenuation to meet the conditions stated in items (-a-)-(-e-) of

this subclause provided the person can demonstrate to the satisfaction of

the executive director that the groundwater PCLE zone is not expanding and

that conditions (-a-)-(-e-) will be met within a reasonable time frame given

the particular circumstances of an affected property. In the situation where

the groundwater PCLE zone has not reached steady-state conditions and is 
migrating

downgradient within the plume management zone, the person must use a response

action other than monitored natural attenuation to meet the conditions stated

in items (-a-)-(-e-) of this subclause.

(-a-) The critical groundwater lateral transport PCLs are

not exceeded at the groundwater lateral transport POC.

(-b-) The groundwater attenuation action levels are not

exceeded at their respective attenuation monitoring points.

(-c-) The critical groundwater PCLs are not exceeded

at the prescribed, or any approved alternate, on-site or off-site POEs to

groundwater.

(-d-) The source medium PCLs for air, surface water,

or sediment are not exceeded at either their prescribed on-site or off-site

POEs.

(-e-) Explosive conditions as defined in subsection (a)(2)

of this section are not occurring and shall not develop.


(II) The person under optional approach 1 shall fulfill the

post-response action care obligations described in the approved RAP prepared

in accordance with sec.350.115 of this title (relating to Response Action

Plan).


(III) Provided the person adequately documents attainment

of the groundwater plume management zone response objectives provided in 
subclause

(I) of this clause, there are no financial assurance requirements under optional

approach 1.


(ii) Optional Approach 2.

(I) The person must remove, decontaminate, and/or control

the plume management zone to the extent necessary so that the critical 
groundwater

PCLs will not be exceeded at the prescribed, or any approved alternate, on-site

or off-site POEs to groundwater and so that the source medium PCLs for air,

surface water, and sediment will not be exceeded at either their prescribed

on-site or off-site POEs. This option requires the person:

(-a-) to use physical controls (e.g., slurry walls, sheet

piling, interceptor trenches or hydraulic control wells):

(-1-) to reliably contain and to prevent the expansion over

time of that portion of the plume management zone which is upgradient of the

groundwater lateral transport POC and contains COCs in excess of the attenuation

action levels;


(-2-) to reliably contain and to prevent the expansion over

time of that portion of the plume management zone which is downgradient of

the groundwater lateral transport POC and contains COCs in excess of the 
critical

groundwater lateral transport PCLs; and


(-3-) to reliably prevent the continuing occurrence or development

of explosive conditions as defined in subsection (a)(2) of this section over

time beyond the boundary of the physical control(s); and

(-b-) to reduce the concentration of COCs to the

attenuation action levels within that portion of the plume management zone

which is downgradient of the containment zone described in subitems (-1-)

and (-2-) of item (-a-) of this subclause and to the critical groundwater

PCLs at the POE. For situations where the POE is located within the existing

limits of the groundwater PCLE zone, persons may use monitored natural 
attenuation

to meet the attenuation action levels provided the person can demonstrate

to the satisfaction of the executive director that the groundwater PCLE zone

is not expanding and that the attenuation action levels will be met within

a reasonable time frame given the particular circumstances of an affected

property. In the situation where the groundwater PCLE zone has not reached

steady-state conditions and is migrating downgradient within the plume 
management

zone, the person must use a response action other than monitored natural 
attenuation

to meet the attenuation action levels.


(II) The person under optional approach 2 shall fulfill the

post-response action care obligations described in the approved RAP prepared

in accordance with sec.350.115 of this title (relating to Response Action

Plan).


(III) The person under optional approach 2 shall provide financial

assurance in accordance with subsections (s) and (t) of this section.


(n) The type, method and extent of post-response action care

is a function of the long-term effectiveness of the response action used to

address the soil and/or groundwater PCLE zones or other environmental media

containing COCs, the nature and design of any physical controls, the physical

and chemical characteristics of the COCs, the geology and hydrogeology of

the affected property, and the adjacent land use. The person shall conduct

post-response action care as appropriate which includes, but is not limited

to, the following activities:

(1) monitoring of environmental media to verify response action

effectiveness over time;

(2) inspection, operation, and maintenance of physical

controls to ensure the effectiveness and integrity of the controls over time;

and

(3) any other actions after the initial completion of

the response action at an affected property which are necessary to protect

human health or the environment.


(o) The post-response action care period begins upon approval

of the RACR by the executive director. The person shall perform post-response

action care for 30 years unless the person demonstrates to the satisfaction

of the executive director that a shorter post-response action care period

would be appropriate due to:

(1) the nature of the response action;

(2) the persistence, migration potential, and toxicity

of the COCs; and

(3) the physical characteristics and location of the

affected property.


(p) The post-response action care activities shall continue

throughout the initial post-response action care period in response to 
subsection

(o) of this section and during any continued post-response action care period

in response to subsection (q) of this section until a demonstration is made,

to the satisfaction of the executive director, that there is no longer a threat

to human health or the environment from the presence of COCs in any 
environmental

media or physical controls. If the person submits a demonstration which 
documents

that financial assurance for post-response action care is no longer necessary,

then upon written approval by the executive director the remainder of the

initial or any continued post-response action care period will be canceled

and the person will be released from the requirement to maintain financial

assurance, and the financial assurance will be returned. The demonstration

of no threat to human health or the environment shall be made by adequately

documenting one of the following conditions:

(1) the concentrations of COCs in soils are less than or equal

to the critical surface and subsurface soil PCLs, as applicable, and the 
concentrations

of COCs in groundwater are less than or equal to the critical groundwater

PCLs as documented with 3 consecutive years of groundwater monitoring data,

unless an alternate monitoring period is approved by the executive director;



(2) the post-response action care activity consists entirely

of monitoring the effectiveness of an physical control, and the physical control

has been proven successful and secure  (i.e., the physical control is permanent

and does not require any inspections or maintenance);

(3) an affected property contains only a groundwater

PCLE zone and such groundwater PCLE zone has been demonstrated to be reducing

in size and to have boundaries which are sufficiently smaller than the 
boundaries

of an institutional control so as to preclude any potential for the groundwater

PCLE zone to migrate beyond the boundaries of the institutional control 
considering

both natural hydrogeologic conditions and changes to hydraulic gradients by

off-site activities; or

(4) an affected property contains a soil PCLE zone based

upon the critical PCL <sup>GW</sup>Soil, the COC concentrations

in surface soils are less than <sup>Tot</sup>Soil<sub>

Comb</sub>, the COC concentrations in surface and subsurface soils are less

than the PCLs for any complete or reasonably anticipated soil exposure pathways,

and the groundwater PCLE zone has been demonstrated to be reducing in size

and to have boundaries which are sufficiently smaller than the boundaries

of an institutional control so as to preclude any potential for the groundwater

PCLE zone to migrate beyond the boundaries of the institutional control 
considering

both natural hydrogeologic conditions and changes to hydraulic gradients by

off-site activities.


(q) If the person cannot make one of the demonstrations specified

in subsection (p) of this section by the end of the initial post-response

action care period specified in subsection (o) of this section, then the person

shall be required to continue post-response action care for additional 30

years periods or until a demonstration can be made under subsection (p) of

this section. A shorter continued post-response action care period can be

used provided the person demonstrates to the satisfaction of the executive

director that such period would be appropriate due to:

(1) the nature of the response action;

(2) the persistence, migration potential, and toxicity

of the COCs; and

(3) the physical characteristics and location of the

affected property.


(r) The person shall perform the following record keeping

and reporting requirements during the initial and any continued post-response

action care period:

(1) keep a copy of the approved RAP at the property, or specified

alternative location;

(2) keep records of all monitoring data, inspection and

maintenance reports, and unexpected occurrences affecting any waste control

unit or post-response action care systems;

(3) submit Post-Response Action Care Reports (PRACRs)

in accordance with the schedule in the approved RAP which provide the 
information

specified in sec.350.117 of this title  (relating to Post-Response Action

Care Reports); and

(4) notify the executive director in writing within 30

days after an unexpected event occurs, or a condition is detected, during

the post-response action care period which indicates that additional response

actions will be required at an affected property.


(s) The person shall establish financial assurance for the

time period specified in subsection (o) of this section and maintain the 
financial

assurance for post-response action care for affected properties which use

physical control measures in response to subsections (l)(2)(D) and (m) of

this section during the post-response action care period specified in 
subsections

(o) and (p) of this section. The person shall prepare and include in the RAP

a written cost estimate, in current dollars, of the annual cost of the post-
response

action care activities for the post-response action care period specified

in subsection (o) of this section. The cost estimate shall be based on the

costs of hiring a third party to conduct the post-response action care 
activities.

The person shall comply with Chapter 37, Subchapter N of this title (relating

to Financial Assurance Requirements for the Texas Risk Reduction Program Rule)

when demonstrating financial assurance for post-response action care. The

person shall submit documentation of the establishment of financial assurance

for post-response action care in the amount specified in the approved RAP

within 90 days of the executive director's approval of the RAP. The executive

director may perform the post-response action care activities at an affected

property using the funds provided for this purpose when the executive director

determines that a person has failed to provide the post-response action care

described in an approved RAP.


(t) The person shall establish financial assurance for periods

of 30 years and maintain the financial assurance for post-response action

care during any continued post-response action care period required by 
subsections

(p) and (q) of this section for affected properties which use physical controls

in response to subsections (l)(2)(D) and (m) of this section. The person shall

prepare and submit in the last PRACR submitted before the end of a post-response

action care period a written cost estimate, in current dollars, of the annual

cost of the post-response action care activities specified in the approved

RAP for the post-response action care period specified in subsection (q) of

this section. The cost estimate shall be based on the cost of hiring a third

party to conduct the post-response action care activities. The person shall

use the mechanisms described in Chapter 37, Subchapter N  of this title  
(relating

to Financial Assurance Requirements for the Texas Risk Reduction Program Rule)

when demonstrating financial assurance for a continued post-response action

care period. The person shall submit documentation of financial assurance

for the continued post-response action care period in an amount approved by

the executive director at least 90 days before the end of the preceding post-
response

action care period. The executive director may perform the post-response action

care activities at an affected property during the continued post-response

action care period using the funds provided for this purpose when the executive

director determines that a person has failed to provide the post-response

action care described in the approved RAP.



<nl>sec.350.95. No Further Action.




Particular agency program areas covered by this rule will confirm that

a person has completed all necessary response actions at an affected property

and that no further action is required.

(1) For Remedy Standard A, such confirmation will be issued

subsequent to approval of the RACR described in sec.350.116 of this title

(relating to Response Action Completion Report) by the executive director

and, when applicable, receipt by the agency of proof of filing of a deed notice

or restrictive covenant, as applicable, within the real property records of

the county of the affected property noting commercial/industrial land use

for the affected property in accordance with sec.350.93(g) of this title

(relating to Remedy Standard A).

(2) For Remedy Standard B, such confirmation will be

issued subsequent to:

(A) approval of the RACR by the executive director;


(B) receipt by the agency of proof of filing of a deed notice

or restrictive covenant, as applicable, within the real property records of

the county of the affected property in accordance with sec.350.94(g) of

this title (relating to Remedy Standard B); and


(C) termination of the post-response action care period by

the executive director as described in sec.350.94(p) of this title (relating

to Remedy Standard B).



<nl>sec.350.96. Relocation of Soils

Containing COCs for Reuse Purposes.


(a) A person wishing to relocate soils containing COCs for

reuse purposes which are present on an affected property (on-site or off-site)

which is undergoing or has completed a response action under Remedy Standard

A or B must comply with the requirements of this section. Relocation of soils

which contain COCs may be subject to additional requirements within each program

area identified in sec.350.3 of this title (relating to Applicability).

The excavation of soils containing COCs by non-responsible parties, as 
determined

by the applicable program area, during construction activities (e.g., 
installation,

repair, removal of telephone lines or other utilities, or other construction

activities) and the subsequent replacement of those soils back into that same

excavation at the same approximate location and depth shall not be considered

to constitute relocation or reuse for the purposes of this section and shall

not be subject to the provisions of this section.


(b) The person may relocate soils for reuse in response to

Remedy Standard A when COCs meet the critical soil PCLs and the following

requirements for the new location.

(1) Soils to be reused at residential properties must meet

the residential critical surface or subsurface soil PCLs for the new location,

depending upon depth of placement, established in accordance with Subchapter

C of this chapter (relating to Development of Protective Concentration Levels).



(2) Soils to be reused at commercial/industrial properties

must meet the commercial/industrial critical surface or subsurface soil PCLs

for the new location, depending upon depth of placement, established in 
accordance

with Subchapter C of this chapter (relating to Development of Protective 
Concentration

 Levels).

(3) The soil reuse must be protective of ecological receptors

at the new location.

(4) The soil reuse activity must allow the requirements

for Remedy Standard A response actions set forth in sec.350.93(a) of this

title (relating to Remedy Standard A) to be met at the new location.

(5) The person shall comply with the deed notice or restrictive

covenant requirement, as applicable, for commercial/industrial land use as

specified in sec.350.93(g) of this title (relating to Remedy Standard A).



(6) The reuse of soils with concentrations of COCs which

do not exceed the critical soil PCLs for the new location does not require

the prior approval of the executive director, when that new location is within

the boundary of on-site or off-site property which contains the affected 
property

 (i.e., not just within the affected property limits).


(c) The person must meet the following requirements in response

to Remedy Standard B when soils are to be relocated for reuse purposes when

the concentration of COCs exceed the critical soil PCLs for the new location.



(1) The person shall determine the critical surface and, if

applicable, subsurface soil PCLs in accordance with Subchapter C of this chapter

(relating to Development of Protective Concentration Levels) for the new 
location.



(2) The soil reuse must be protective of ecological receptors

at the new location.

(3) The person shall demonstrate that the soil reuse

activity will allow the requirements for Remedy Standard B response actions

set forth in sec.350.94(a) of this title (relating to Remedy Standard B)

to be met for the new location.

(4) The person shall comply with the deed notice or restrictive

covenant requirement, as applicable, specified in sec.350.94(g) of this

title (relating to Remedy Standard B).

(5) The reuse of soil under Remedy Standard B requires

prior executive director approval.

(6) The executive director may require the person to

conduct post-response action care and submit PRACRs in accordance with 
sec.350.117

of this title (relating to Post-Response Action Care Reports).

(7) The executive director may require the person to

provide financial assurance for post-response action care in response to 
sec.350.94(l)(2)(D)

of this title (relating to Remedy Standard B).


(d) Soils which do not contain sludges, industrial or municipal

solid waste, or listed hazardous wastes as defined in 40 CFR Part 261, Subpart

D, any of which are separable using simple mechanical removal processes; are

not characteristically hazardous due to ignitability, corrosivity, reactivity,

or toxicity characteristic as defined in 40 CFR Part 261, Subpart C; do not

contain concentrations of COCs in excess of the residential Tier 1 surface

soil PCLs; and do not contain concentrations of COCs which are ecologically

unprotective at its location, are not solid wastes. The ecological receptor

evaluation portion of the solid waste determination is dependent on the location

of the soil. Each time the location of the soil changes, the ecological receptor

evaluation portion of the solid waste determination must be made again. Soils

which are solid wastes, based on the planned reuse location, must be categorized

as municipal solid waste or industrial solid waste as defined in Chapter 335,

Subchapter A of this title (relating to Industrial Solid Waste and Municipal

Hazardous Waste In General). Soils which are categorized as industrial solid

wastes or municipal hazardous wastes must be evaluated for waste classification

in accordance with Chapter 335, Subchapter R of this title (relating to Waste

Classification) prior to being sent for reuse at any location which is beyond

the limits of the on-site or off-site property which contain the affected

property and must be managed in accordance with any resulting waste 
classification.

Soils which are classified as non-hazardous municipal solid waste must be

managed in accordance with Chapter 330 of this title (relating to Municipal

Solid Waste) when sent for reuse at any location which is beyond the limits

of the on-site or off-site property which contain the affected property. If

the soils which contain COCs meet the definition of petroleum substance wastes

as defined in sec.334.481 of this title (relating to Definitions), then

classification of the soils under Subchapter R is not required and management

of petroleum substance wastes shall comply with the provisions of Chapter

334, Subchapter K of this title (relating to Storage, Treatment, and Reuse

Procedure For Petroleum-Substance Contaminated Soil).


(e) If soils which contain concentrations of COCs above naturally-occurring

background levels resulting from an unauthorized release are to be relocated

for reuse on property not owned by the person, then the person shall obtain

the written consent of the landowner prior to relocation of the soils.


(f) Within 90 days of completing a soil relocation action

under this section, the person shall submit the applicable portions of a RACR

as described in sec.350.116 of this title (relating to Response Action 
Completion

Report) for review and approval by the executive director.

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 May

 4, 1998.

TRD-9806239


Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter E. Reports


30 TAC sec.sec.350.111-350.117

STATUTORY AUTHORITY The new rules are proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the new rules are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the new rules is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.

The new rules affect Water Code, Chapter 26, and Health and Safety Code

Chapter 361.



<nl>sec.350.111. Sampling and Statistical

 Analysis Plan.


The person shall include the following information in a sampling and

statistical analysis plan (SSAP):

(1) a detailed discussion of the question/hypothesis which

is being tested;

(2) a discussion of the data collection effort from an

environmental medium to support this determination (e.g., random sampling

design);

(3) the statistical methodology which will be applied;



(4) the assumptions of the statistical method and how

those assumptions are met; and

(5) any other reasonable information required by the

executive director.



<nl>sec.350.112. Affected Property Assessment

 Report.


(a) The person shall include the contact and identifications

as described below in an affected property assessment report (APAR):

(1) the name, address, and phone number of the person or office

to contact about the on-site affected property;

(2) the program and identification numbers for the project

(e.g., Solid Waste Registration number, Leaking Petroleum Storage Tank 
identification

number, Voluntary Cleanup Program number, etc.); and

(3) the physical address/location of the affected property,

including an accurate latitude and longitude.


(b) An APAR shall document descriptions of procedures and

conclusions of the assessment and shall include all information required to

meet the requirements of sec.350.31 of this title (relating to Groundwater

Resource Classification), sec.350.32 of this title (relating to Land Use

Classification) and sec.350.33 of this title (relating to Affected Property

Assessment). This includes, but is not limited to:

(1) the classification of the groundwater(s) at an affected

property including all supporting data and results;

(2) the classification of the land use(s) of the affected

property;

(3) the identification and characterization of all source

areas (e.g., NAPLs);

(4) a characterization of the local geology and hydrogeology;



(5) the direction and rate of movement, composition,

and representative concentrations of COCs in environmental media (including

the potential for migration to other media);

(6) an identification of all potential human receptors

and exposure pathways;

(7) a completed Tier 1 Exclusion Criteria Checklist,

and as required a Tier 2 screening level assessment, and/or a Tier 3 
quantitative

ecological risk assessment as specified in sec.350.56 of this title (relating

to Ecological Risk Assessment and Development of Ecological PCLs);

(8) summaries of sampling methodology;

(9) all analytical data in accordance with sec.350.35

of this title (relating to Data Acquisition and Reporting Requirements);




(10) documentation that the data necessary to support

the development of PCLs and remedy selection have been adequately and 
appropriately

collected;

(11) documentation of the derivation of all RBELs and

PCLs and the determination of the critical PCLs for environmental media 
including

all associated assumptions and calculations;

(12) a tabular comparison between representative concentrations

of COCs and the critical PCLs for soil and groundwater, and source medium

PCLs for air, surface water, and sediment when applicable (air 
sampling/monitoring

may be required in specific instances);

(13) graphical representations (i.e., maps and cross-sections)

of the soil and/or groundwater PCLE zone(s), and the plume management zone

when lateral transport PCLs are proposed;

(14) proof of receipt by the parties of any notices or

information required to be provided to parties in accordance with sec.350.4

of this title (relating to Requirements Pertaining to Off-Site Properties

and Leased Lands); and

(15) any other reasonable information required by the

executive director.


(c) The APAR shall be submitted in a format and according

to a schedule established by the executive director.



<nl>sec.350.113. Self-Implementation

 Notice.


(a) The person shall include the following information in

a self-implementation notice (SIN):

(1) The person shall include the contact and identifications:



(A) the name, address, and phone number of the person or office

to contact about the on-site affected property;


(B) the program and identification numbers for the project

(e.g., Solid Waste Registration number, Leaking Petroleum Storage Tank 
identification

number, Voluntary Cleanup Program number, etc.); and


(C) the physical address/location of the affected property;



(2) a list of the COCs which require a response

action;

(3) a description of the qualitative and quantitative

response action objectives to be achieved by the response action;

(4) a description of the response action chosen to achieve

Remedy Standard A;

(5) acknowledgment that any permits needed to implement

the remedy will be obtained prior to implementation;

(6) a schedule for implementation and completion of the

response action; and

(7) if applicable, a copy of the deed notification proposed

to be used in response to sec.350.93(h)(1) of this title (relating to Remedy

Standard A); and

(8) any other reasonable information required by the

executive director.


(b) The SIN shall be submitted in a format established by

the executive director.



<nl>sec.350.114. Response Action Effectiveness

 Report.


(a) The person shall include the following information in

a response action effectiveness report (RAER):

(1) a summary of the response actions taken since the last

reporting period;

(2) for each environmental medium, a comparison among

the critical or source medium PCL; the initial concentration of COCs; and

the current (i.e., at the time of RAER submittal) concentrations of COCs;



(3) an estimate of the percentage of the response action

which has been completed;

(4) an estimate in years of the additional time necessary

to complete the response actions;

(5) a determination whether sufficient progress is being

made to achieve the selected remedy standard within the reasonable time frame

given the particular circumstances of an affected property;

(6) if applicable, a copy of the deed notification proposed

to be used in response to sec.350.93(h)(2) of this title (relating to Remedy

Standard A) or sec.350.94(I)(2) of this title (relating to Remedy Standard

 B); and

(7) any other reasonable information required by the

executive director.


(b) The RAER shall be submitted in a format established by

the executive director.



<nl>sec.350.115. Response Action Plan.




(a) The person shall address all environmental media containing

COCs in excess of the critical or source medium PCLs in a response action

plan (RAP).


(b) The RAP must clearly state property-specific response

objectives which are consistent with the soil and groundwater PCLE zone response

objectives specified in sec.350.94 of this title  (relating to Remedy Standard

B) or sec.350.93 of this title (relating to Remedy Standard A) if a person

chooses not to self-implement under Remedy Standard A.


(c) The person must demonstrate that the proposed property-specific

response actions are capable of achieving the response action objectives within

the time frame specified in sec.350.94 of this title (relating to Remedy

Standard B) or sec.350.93 of this title (relating to Remedy Standard A).

The person shall demonstrate that any physical control, or a combination of

controls, which they desire to use under Remedy Standard B (e.g., capping,

a slurry wall, treatment which does not achieve decontamination, or a landfill)

will reliably contain the soil and/or groundwater PCLE zone materials so that

conformance with the response objectives will be met and maintained over time.




(d) If monitoring of environmental media is proposed during

the response action, the RAP shall address the proposed monitoring frequencies,

parameters, locations, analytical methods, and all associated quality control

procedures.


(e) The RAP shall describe any soil and/or groundwater treatment

systems proposed as a part of the response actions for the affected property.



(1) The person shall list necessary inspection, operation

and maintenance tasks, as well as characterize optimum operating conditions

for any treatment system.

(2) The person shall discuss potential problems and indicate

how they propose to respond to those potential problems.

(3) The person shall identify any permits needed to construct

and/or implement the remedy.


(f) The person must include a discussion of any sampling to

be conducted to demonstrate conformance with the response objectives and to

meet all requirements of sec.350.34 of this title  (relating to Determination

of Concentrations of COCs and Comparisons to PCLs).


(g) The RAP must specify the type, location, duration, and

implementation schedule for the various removal actions, decontamination 
measures,

and physical and/or institutional controls to be implemented as the response

action for the affected property.


(h) The person shall include a schedule for submission of

RAERs described in sec.350.114 of this title (relating to Response Action

Effectiveness Report) to the executive director.


(i) The person shall include a copy of the deed notice/restrictive

covenant they plan to use to meet the requirements of 
sec.sec.350.34(a)(2)(E)(iii)

and (iv); 350.54(b)(2) and (j)(2)(L); 350.93(g) and (h); or 350.94(g) and

(I) of this title (relating to Determination of Concentrations of COCs and

Comparisons to PCLs; Development of Risk-Based Exposure Limits; Remedy Standard

A; and Remedy Standard B, respectively).


(j) Cost information for the recommended response action and

comparative cost analyses for a number of response actions may be required

by specific program areas.


(k) For Remedy Standard B, the person shall include the following

information regarding post-response action care in a RAP:

(1) a description of the monitoring program for the post-response

action care period, including, but not limited to the following where 
applicable:



(A) the type of monitoring to be performed (e.g., groundwater,

soil, and soil gas);


(B) plot plan(s) indicating monitoring locations (including

attenuation monitoring points);


(C) well construction details;


(D) environmental media monitoring frequency;


(E) COCs to be analyzed;


(F) sampling procedures, chain of custody protocols, and laboratory

methods; and


(G) quality assurance/quality control procedures in accordance

with sec.350.35 of this title (relating to Data Acquisition and Reporting

Requirements);

(2) a description of and schedule for the inspection,

operation, and maintenance of any physical controls for the post-response

action care period;

(3) a description of the proposed post-response action

land use and a demonstration that the proposed use:

(A) will not compromise the integrity of the physical controls;




(B) will not interfere with the function of the monitoring

systems;


(C) will not pose a threat to human health or the environment;

and


(D) will be in accordance with any institutional controls.



(4) a written financial assurance cost estimate,

when applicable, for performing the post-response action care which has been

prepared in accordance with sec.350.94(s) of this title  (relating to Remedy

Standard B);

(5) a reporting schedule for submission of the PRACRs

described in sec.350.117 of this title (relating to Post-Response Action

Care Reports) under Remedy Standard B based on annual reporting unless the

executive director approves an alternate reporting schedule. Alternate schedules

may have a greater or lesser period, or may specify quarterly reporting in

the earlier post-response action care period, decreasing to annual, biannual

or other appropriate schedule; and


(l) any other reasonable information required by the executive

director.


(m) The person shall submit the RAP in a format specified

by the executive director.



<nl>sec.350.116. Response Action Completion

 Report.


(a) For both Remedy Standard A and B the person shall include

in the response action completion report (RACR):

(1) information specified in sec.350.4(j) of this title

(relating to Requirements Pertaining to Off-Site Properties and Leased Lands)

whenever a deed notice/restrictive covenant will be placed within the real

property records of the county for an off-site property or leased lands;




(2) all analytical data prepared and presented in accordance

with sec.350.35 of this title (relating to Data Acquisition and Reporting

Requirements); and

(3) a description of the volume and final disposal or

reuse location, and a copy of any waste manifests for waste or environmental

media which were removed from the affected property.


(b) The RACR shall include information which documents to

the satisfaction of the executive director that the requirements for response

actions stated in sec.350.93 of this title (relating to Remedy Standard

A) have been fulfilled. The report shall:

(1) include a demonstration that the requirements of sec.350.93(j)

of this title (relating to Remedy Standard A) for residential land use under

category A-Res and/or commercial/industrial land use under category A-Com/Ind

have been fulfilled for the affected property based upon concentration of

COCs remaining at the property;

(2) include a demonstration that any treatment process

used meets the performance requirements for decontamination as described in

sec.350.92(b) of this title (relating to General Requirements for Remedy

Standards);

(3) demonstrate that the assumptions for any statistical

method(s) described in the approved SSAP described in sec.350.111 of this

title (relating to Sampling and Statistical Analysis Plan) have been satisfied;

and

(4) include a copy of the document that the person proposes

to use to fulfill the deed notation/restrictive covenant requirements of 
sec.350.93(g)

of this title (relating to Remedy Standard A) when the affected property has

been restored for commercial/industrial use.


(c) The RACR shall include information which documents to

the satisfaction of the elective director that the response actions described

in the approved RAP described in sec.350.115 of this title  (relating to

Response Action Plan) have been completed. The report shall:

(1) include a demonstration that the requirements of sec.350.94(k),

(l), and (m) of this title (relating to Remedy Standard B) for residential

land use under category B-Res and/or commercial/industrial land use under

category B-Com/Ind have been fulfilled for the affected property based upon

concentration of COCs remaining at the property and the application of physical

and institutional controls;

(2) demonstrate that the assumptions for any statistical

method(s) described in the approved SSAP have been satisfied; and

(3) document that any physical control, or combination

of physical controls, (e.g., caps, slurry walls, treatment which does not

constitute decontamination, and/or landfills) has been constructed or completed

and is functioning as described in the approved RAP.


(d) In situations where soils which contain COCs are relocated

for reuse in accordance with sec.350.96 of this title (relating to Relocation

of Soils Containing COCs for Reuse Purposes), the person shall also provide:



(1) documentation of the prior written landowner consent required

in sec.350.96(e) of this title (relating to Relocation of Soils Containing

COCs for Reuse Purposes) for soil reuse on property not owned by the person,

and

(2) documentation that any asphalt mix or road base mix

meets the specifications required by the user when requested by the executive

director.


(e) The person shall provide any other reasonable information

required by the executive director.


(f) The person shall submit the RACR in a format established

by the executive director.



<nl>sec.350.117. Post-Response Action

 Care Reports.


(a) The person shall include the following information in

a post-response action care reports (PRACR):

(1) the results of any monitoring program with all analytical

data prepared and presented in accordance with sec.350.35 of this title

(relating to Data Acquisition and Reporting Requirements);

(2) a summary of activities related to the inspection,

operation, and maintenance of physical controls;

(3) a discussion of any corrective actions taken in response

to failure of institutional and/or controls; and

(4) any other reasonable information required by the

executive director.


(b) The person shall submit PRACRs in a format established

by the executive director.

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 May

 4, 1998.



TRD-9806240
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Earliest possible date of adoption: June 14, 1998

For further information, please call: (512) 239-6087






Subchapter F. Institutional Controls


30 TAC sec.sec.350.131, sec.350.132

STATUTORY AUTHORITY The new rules are proposed under Texas

Water Code, sec.5.103 and sec.26.011, which provide the commission with

authority to adopt any rules necessary to carry out its powers, duties, and

policies and to protect water quality in the state and Texas Solid Waste 
Disposal

Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which

provide the commission the authority to regulate industrial solid waste and

municipal hazardous wastes and all other powers necessary or convenient to

carry out its responsibilities. In addition, the new rules are proposed under

Texas Water Code, sec.26.039, which states that activities which are inherently

or potentially capable of causing or resulting in the spillage or accidental

discharge of waste or other substances and which pose serious or significant

threats of pollution are subject to reasonable rules establishing safety and

preventive measures which the commission may adopt or issue; Texas Water Code,

sec.26.121, which prohibits persons from discharging wastes into or adjacent

to any water in the state unless authorized to do so and prohibits persons

from committing any other act or engaging in any other activity which in itself

or in conjunction with any other discharge or activity causes, continues to

cause, or will cause pollution of any of the water in the state; Texas Water

Code, sec.26.262, which states that it is the policy of this state to prevent

the spill or discharge of hazardous substances into the waters in the state

and to cause the removal of such spills and discharges without undue delay;

and Texas Water Code, sec.26.264, which provides the commission with authority

to issue rules necessary and convenient to carry out this policy. Authority

to propose the new rules is also provided by Texas Water Code, sec.26.341,

which states that it is the policy of this state to maintain and protect the

quality of groundwater and surface water resources in the state from certain

substances in underground and aboveground storage tanks that may pollute 
groundwater

and surface water resources, and requires the use of all reasonable methods,

including risk-based corrective action to implement this policy; Texas Water

Code, sec.26.345, which provides the commission with the authority to adopt

rules necessary to carry out this policy; and Texas Water Code, sec.26.401,

which states that it is the policy of this state that discharges of pollutants,

disposal of wastes, or other activities subject to regulation by state agencies

be conducted in a manner that will maintain present uses and not impair 
potential

uses of groundwater or pose a public health hazard, and that the quality of

groundwater be restored if feasible.  The new rules affect Water Code, Chapter

26, and Health and Safety Code Chapter 361.



<nl>sec.350.131. Instruments for Institutional

 Controls.


(a) Whenever required by this chapter, the person shall file

a copy of the appropriate deed notice/restrictive covenant in the real property

records of the county in which the property is located to notify future owners

of any limitations on the use of the property. Contained within the deed 
notice/restrictive

covenant will be a statement discussing the appropriate land use for the 
property

along with a statement noting any property use limitations or any requirements

for maintenance of physical and/or institutional controls.


(b) The person will record the proper deed notice/restrictive

covenant and shall submit proof that the deed notice/restrictive covenant

has been filed. The following deed notice/restrictive covenant forms shall

be used:

(1) For on-site and off-site properties where deed notification

is required pursuant to sec.350.93(h) of this title (relating to Remedy

Standard A) and sec.350.94(i) of this title (relating to Remedy Standard

B) for residential or commercial/industrial land use, the person shall use

the "Notice of Remediation in Progress" form.

Figure 1: 30 TAC sec.350.131(b)(1)

(2) For on-site and off-site properties that have achieved

Remedy Standard A for commercial/industrial land use, pursuant to sec.350.93(g)

of this title (relating to Remedy Standard A) the person shall use the "Notice

of Further Remediation Requirements Prior to Residential Use" deed notice

form.

Figure 2: 30 TAC sec.350.131(b)(2)

(3) For on-site and off-site properties where deed notification

is required pursuant to sec.350.54(b)(2) and sec.350.94(g) of this title

(relating to Development of Risk-Based Exposure Limits, and Remedy Standard

B, respectively) because an physical and/or institutional control has been

used to attain Remedy Standard B, the person shall use the "Notice of Possible

Limitations on Property Use" form.

Figure 3: 30 TAC sec.350.131(b)(3)

(4) For any on-site or off-site properties with changes

in circumstances as discussed in sec.350.5 of this title (relating to 
Substantial

Change in Circumstances) that negate the need for a deed notice, the person

shall use the "Release of Deed Notice" form.

Figure 4: 30 TAC sec.350.131(b)(4)

(5) In response to sec.350.93(g) of this title (relating

to Remedy Standard A), a person who completes a response action achieving

Remedy Standard A for commercial/ industrial land use for on-site or off-site

property with an innocent owner shall use the "Restrictive Covenant Limiting

Land Use to Commercial/Industrial Uses Only" form.

Figure 5: 30 TAC sec.350.131(b)(5)

(6) In response to sec.350.54(b)(2) and sec.350.94(g)

of this title (relating to Development of Risk-Based Exposure Limits, and

Remedy Standard B, respectively), a person who completes a response action

achieving Remedy Standard B that uses an physical and/or institutional control

for on-site or off-site property with an innocent owner shall use the 
"Restrictive

Covenant for Limitations on Property Use" form.

Figure 6: 30 TAC sec.350.131(b)(6)

(7) For any on-site or off-site properties with changes

in circumstances as discussed in sec.350.5 of this title (relating to 
Substantial

Change in Circumstances) that negate the need for a restrictive covenant,

the person shall use the "Release of Restrictive Covenant" form.

Figure 7: 30 TAC sec.350.131(b)(7)

(8) For on-site and off-site properties where deed notification

is required pursuant to sec.350.34(a)(2)(E)(iii) of this title (relating

to Determination of Concentrations of COCs and Comparisons to PCLs), the person

shall use the "Notice of Exception to Default Residential Exposure Area" form.



Figure 8: 30 TAC sec.350.131(b)(8)

(9) For on-site and off-site properties where deed notification

is required pursuant to sec.350.34(a)(2)(E)(iv) of this title (relating

to Determination of Concentrations of COCs and Comparisons to PCLs), the person

shall use the "Notice of Exception to Default Commercial/Industrial Exposure

Area" form.

Figure 9: 30 TAC sec.350.131(b)(9)

(10) For on-site and off-site properties with an innocent

owner and where a restrictive covenant is required pursuant to 
sec.350.34(a)(2)(E)(iii)

of this title (relating to Determination of Concentrations of COCs and 
Comparisons

to PCLs), the person shall use the "Restrictive Covenant for Subdivision of

 Residential Property" form.

Figure 10: 30 TAC sec.350.131(b)(10)

(11) For on-site and off-site properties with an innocent owner and where a 
restrictive covenant is required pursuant to sec.350.34(a)(2)(E)(iv) of this 
title (relating to Determination of Concentrations of COCs and Comparisons to 
PCLs), the person shall use the "Restrictive Covenant for Subdivision of 
Commercial/Industrial Property" form.
Figure 11: 30 TAC sec.350.131(b)(11)
(12) For on-site and off-site properties where deed notification is required 
pursuant to sec.350.54(j)(2)(L) of this title (relating to Development of Risk-
Based Exposure Limits), the person shall use the "Notice of Limit on Number of 
Days Property May Be Used" form.
Figure 12: 30 TAC sec.350.131(b)(12)
(13) For on-site and off-site properties with an innocent owner and where a 
restrictive covenant is required pursuant to sec.350.54(j)(2)(L) of this title 
(relating to Development of Risk-Based Exposure Limits), the person shall use 
the "Restrictive Covenant Limiting the Number of Days Property May Be Used" 
form.
Figure 13: 30 TAC sec.350.131(b)(13)

<nl>sec.350.132. Institutional Control Measures.
(a) In accordance with sec.350.54(b)(2) of this title (relating to Development 
of Risk-Based Exposure Limits) and sec.350.94(b) of this title (relating to 
Remedy Standard B), the person may use institutional control measures to ensure 
the protection of human health and the environment with executive director 
approval of the control measures.
(b) In order to use institutional control measures, the person shall:
(1) maintain the institutional control measure unless or until the executive 
director approves any modifications; and
(2) inform the executive director 120 days prior to making any modifications to 
approved institutional control measures.
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 May 4, 1998.
TRD-9806241
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 239-6087

TITLE 31 NATURAL RESOURCES AND CONSERVATION
Part I. General Land Office
Chapter 1. Executive Administration
Subchapter A. Vacancies
31 TAC sec.sec.1.1, 1.2
(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 General Land 
Office or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The General Land Office (GLO) proposes the repeal of sec.1.1 (relating to Good-
Faith Claimants) and sec.1.2 (relating to Applications). On April 12, 1998, the 
GLO adopted new sec.sec. 13.71-13.86 (relating to Applications to Purchase or 
Lease Vacant and Unsurveyed Public School Land) under Texas Natural Resources 
Code, Chapter 51, Subchapter E.
These new rules reflect current law and sec.sec.1.1 and 1.2 have become obsolete 
due to changes in the law.
Spencer Reid, General Counsel, has determined that for each year of the first 
five-year period this repeal is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
repeal.
Mr. Reid 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 confusion resulting from conflicting rule sections. There will be 
no effect on small businesses as a result of repealing these sections. There is 
no anticipated economic cost to persons as a result of repealing these sections.
Interested parties may submit comments on the proposed repeal to Ms. Carol 
Milner, Texas Register Liaison, General Land Office, 1700 North Congress, Room 
626, Austin, Texas 78701-1495. Comments are due no later than 5:00 p.m. on June 
15, 1998.
The repeal is proposed under the Texas Natural Resources Code, sec.51.201 which 
authorizes the GLO to adopt rules relating to applications to purchase or lease 
vacant and unsurveyed public school land.
sec.1.1. Good Faith Claimants.
sec.1.2.  Applicants.
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 May 4, 1998.
TRD-9806185
Garry Mauro
Commissioner
General Land Office
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 305-9129

TITLE 34. PUBLIC FINANCE
Part I. Comptroller of Public Accounts
Chapter 3. Tax Administration
Subchapter O. State Sales and Use Tax
34 TAC sec.3.297
The Comptroller of Public Accounts proposes an amendment to sec.3.297, 
concerning carriers. The amendment deletes subsection (a)(2)
concerning exemptions for carrier devices acquired outside this state when moved 
into Texas for use as carriers. Exemptions for such devices are addressed in 
provisions dealing with each specific type of device.
The amendment adds language to subsection (b)(1) limiting the exemption on 
purchases of commercial vessels in excess of eight tons displacement to those 
over 65 feet in length. Shorter commercial vessels are subject to boat tax at 
the time of purchase.
The amendment adds language to subsection (b)(2) recognizing that labor to 
repair vessels in excess of eight tons displacement used exclusively for 
commercial purposes is exempt from sales tax.
The amendment also deletes subsection (b)(3) concerning vessels acquired outside 
this state when moved into Texas for use as carriers. The statutory basis for 
this subsection, Tax Code, sec.151.330(c), was repealed. Purchases of commercial 
vessels of eight tons displacement made from the vessels' builders continue to 
be exempt.
The amendment expands subsection (b)(4) as a result of prior legislation that 
became effective July 1, 1995, to exempt materials and supplies purchased by 
stevedoring companies if the materials and supplies are loaded on the vessel and 
are not removed before departure.
A new subsection (c)(5), added as a result of prior legislation and effective 
September 1, 1995, exempts from sales and use tax supplies used in 
electrochemical plating or a similar process by persons overhauling, 
retrofitting, or repairing jet turbine aircraft engines or their component 
parts.
Also added as a result of prior legislation and effective September 1, 1995, is 
a new subsection (d)(4). The subsection exempts from sales and use tax 
electricity and natural gas used in the off- wing processing, overhaul, or 
repair of a jet turbine engine or its parts for licensed and certificated 
carriers.
The following changes are made as a result of prior legislation that became 
effective July 1, 1995.
Renumbered subsection (c)(7) is expanded to exempt aircraft purchased for use by 
flight schools regardless of the Federal Aviation Regulations (FAR) provision 
under which the school operates.
A new subsection (c)(8) is added to allow flight students to issue exemption 
certificates for certain aircraft rentals and explain records requirements.
Renumbered subsection (d)(2) is expanded to exempt items used in the repair, 
remodeling, or maintenance of flight school aircraft.
Renumbered subsection (d)(3) is amended to extend the exemption to tangible
personal property that is necessary for the normal operations of the aircraft 
and is pumped, poured, or otherwise placed in an aircraft owned or operated by a 
common carrier or flight school.
Subsection (e) is amended to refer individuals making a taxable use of aircraft 
owned or rented by flight schools or rented by students to 34 TAC sec.3.287, 
concerning exemption certificates.
Subsection (f)(3) is added as a result of prior legislation and effective 
October 1, 1995. The new subsection exempts from sales tax the electricity, 
natural gas, and other fuels used predominately in the repair, maintenance, or 
restoration of rolling stock.
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government.
Mr. Reissig also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of adopting 
the amendment will be in providing new information regarding tax 
responsibilities.
This amendment is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There is no significant 
anticipated economic cost to individuals who are required to comply with the 
proposed amendment.
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2.
The amendment implements the Tax Code, sec.sec.151.318, 151.328, 151.329, 
151.330, 151.331.

sec.3.297. Carriers.
(a) Carriers generally.
(1) Licensed and certificated carrier - A person authorized by the appropriate 
United States agency or by the appropriate state agency within the United States 
to operate an aircraft, vessel, train, motor vehicle, or pipeline as a common or 
contract carrier transporting persons or property for hire in the regular course 
of business. Certificates of inspection or airworthiness certificates are not 
the appropriate documents for authorizing a person to operate as a common or 
contract carrier. These documents relate to the carrier device itself rather 
than a person's right to operate a carrier business.
[(2) Use tax is not due on carrier devices acquired outside this state when 
moved into the state for use in the regular course of business of transporting 
persons or property by a person qualified under paragraph (1) of this 
subsection.]
<nl>(2)<ol>[(3)] Use tax is not due on repair or replacement parts acquired 
outside this state and actually affixed in this state to a self-propelled 
vehicle that is used as a licensed and certificated common carrier. Trailers, 
barges, and semitrailers are not considered to be self-propelled vehicles.
<nl>(3)<ol>[(4)] Except as provided under subsection (d) of this section, 
taxable items brought into this state to be assembled into licensed and 
certificated carrier devices are not exempt from the taxes imposed by the Tax 
Code, Chapter 151, Subchapter D.
<nl>(4)<ol>[(5)] Sales tax is not due on the sale of taxable items to a common 
carrier if such items are shipped to a point outside this state using the 
purchasing carrier's facilities under a bill of lading, and if such items are to 
be used by the purchasing carrier in the conduct of its business outside the 
State of Texas.
<nl>(5)<ol>[(6)] Sales tax is due on licensed and certificated carrier devices 
purchased under valid resale or exemption certificates that are put to a use 
other than the one specified in the certificate. The sales tax is based on the 
fair market rental value of the licensed and certificated carrier device for the 
period of time used. At any time the person using the carrier device in a 
taxable manner may stop paying tax on the fair market rental value and instead 
pay sales tax on the original purchase price. When the person elects to pay 
sales tax on the purchase price, credit will not be allowed for taxes previously 
paid on the fair market rental value. See sec.3.285 of this title (relating to 
Resale Certificate; Sales for Resale) and sec.3.287 of this title (relating to 
Exemption Certificates).
(b) Vessels.
(1) Sales or use tax is not due on the sale by the builder of a vessel in excess 
of eight tons displacement that is used exclusively for commercial purposes. For 
the purpose of this section, eight tons displacement means the weight of fresh 
water displaced by a vessel before being loaded with fuel, supplies, or cargo. 
<nl>Vessels not more than 65 feet in length measured from end to end over the 
deck, excluding sheer, are subject to Boat and Boat Motor Sales Tax under Tax 
Code, Chapter 160.<ol>
(2) <nl>Sales or use tax is not due on labor to repair vessels, or machinery, 
equipment, or component parts of vessels in excess of eight tons displacement 
that are used exclusively for commercial purposes <ol>[Sales or use tax is not 
due on materials, equipment, and machinery that become component parts of 
vessels qualified under paragraph (1) of this subsection] whether purchased by 
the builder or by a subsequent owner or operator. A component part is:
(A) a marine cargo container that is fully or partially enclosed to constitute a 
compartment of a permanent character intended for containing goods. It is strong 
enough to be suitable for repeated use, specially designed to facilitate the 
carriage of goods, by one or more modes of transport, without intermediate 
reloading. It is designed for ready handling, particularly when being 
transferred from one mode of transport to another. The term "marine cargo 
container" includes the accessories and equipment of the container provided that 
such accessories and equipment are carried with the container. The term "marine 
cargo container" does not include chassis, vehicles, accessories or spare parts 
of vehicles.
(B) all tangible personal property that is actually attached to and becomes a 
part of a vessel qualified under paragraph (1) of this subsection. The term does 
not include furnishings of any kind that are not attached to the vessel, nor 
does it include consumable supplies. For example, it does not include bedding, 
linen, kitchenware, tables, chairs, ice for cooling, refrigerants for cooling 
systems, fuels or lubricants.
[(3) Use tax is not due on vessels acquired outside this state and moved into 
this state for use in the regular course of business of transporting persons or 
property by a person qualified under subsection (a)(1) of this section.]
<nl>(3)<ol>[(4)] Materials and supplies, including items commonly known as 
ships' stores and sea stores, sold to owners or operators of ships or vessels 
operating exclusively in foreign or interstate commerce for use and consumption 
in the operation and maintenance of such ships or vessels, are exempt from the 
sales and use tax.
(A) "Operating exclusively in foreign or interstate coastwise commerce" is 
defined, for the purposes of this section, as transporting goods or persons 
between a point in the State of Texas and a point in another state or in a 
foreign country. It does not include trips to and from offshore areas or fishing 
areas on the high seas, or trips between two points in the State of Texas.
(B) Operation of the vessel in a manner other than in foreign or interstate 
commerce will result in a loss of the exemption for ships' stores and sea stores 
for the quarterly period in which the nonexempt operation occurs.
(C) Any owner or operator of such a vessel shall, when giving an exemption 
certificate, set forth the title or position of the person issuing the 
certificate and the name of the vessel on which the items are to be loaded.
(D) Sales tax is due on sales made to individual seamen operating these vessels.
<nl>(4)<ol>[(5)] Closely associated service companies provide servicing 
operations such as stevedoring, loading, and unloading vessels. <nl>Sales or use 
tax is not due on materials and supplies purchased by a person providing 
stevedoring services for a ship or vessel operating exclusively in foreign or 
interstate coastal commerce if the materials and supplies are loaded aboard the 
ship or vessel and are not removed before its departure. This includes, but is 
not limited to, such items as lumber, plywood, deck lathing, turnbuckles, and 
lashing shackles<ol> [Tax is due on taxable items sold, leased, or rented to the 
service company without regard to the fact that such property may be used on 
vessels involved in interstate or foreign commerce].
(c) Aircraft other than aircraft used by licensed and certificated carriers.
(1) The term "aircraft" does not include rockets or missiles, but does include:
(A) a fixed-wing, heavier-than-air craft that is driven by propeller or jet and 
is supported by the dynamic reaction of the air against its wings;
(B) a helicopter;
(C) an airplane flight simulator approved by the Federal Aviation Administration 
for use as a Phase II or higher flight simulator under Appendix  H, 14 Code of 
Federal Regulations, Part 121.
(2) Sales or use tax is not due on aircraft sold to a foreign government.
(3) An aircraft is not subject to use tax if it is hangared outside this state 
and is used more than 50% outside this state. In order to qualify for exemption 
from the use tax, owners or operators of aircraft entering this state must 
maintain sufficient records to show the percentage of time the aircraft was used 
in this state.
(A) In determining whether an aircraft is used more than 50% outside this state, 
the comptroller will consider all flight time in this state, including the 
portion of interstate flights in Texas airspace.
(B) The comptroller may examine all flight, engine, passenger, airframe, and 
other logs and records maintained on any aircraft brought into this state to 
determine whether it is used more than 50% in this state.
(4) An aircraft purchased outside this state is subject to Texas use tax, if not 
otherwise exempt, if it is hangared in this state. Some factors to be considered 
in determining whether an aircraft is hangared in this state include:
(A) where the aircraft is rendered for ad valorem taxes;
(B) whether the owner owns or leases hangar space in this state; and
(C) declarations made to the Federal Aviation Administration, an insurer, or 
another taxing authority concerning the place of storage of the aircraft.
<nl>(5)<ol><nl> Sales or use tax is not due on supplies, including aluminum 
oxide, nitric acid, and sodium cyanide, used in electrochemical plating or a 
similar process by persons overhauling, retrofitting, or repairing jet turbine 
aircraft engines and their component parts.<ol>
<nl>(6)<ol>[(5)] Persons repairing or remodeling aircraft other than aircraft 
used by persons qualified under subsection (a)(1) of this section <nl>or 
paragraph (7) of this subsection<ol> should refer to <nl>sec.3.292 of this title 
(relating to Repair, Remodeling, Maintenance, and Restoration of Tangible 
Personal Property)<ol>[3.359 of this title (relating to Motor Vehicles and 
Private Aircraft)].
<nl>(7)<ol>[(6)] Sales or use tax is not due on aircraft purchased <nl>by a 
person who uses the aircraft to provide flight instruction that is recognized by 
the Federal Aviation Administration (FAA), under the direct or general 
supervision of an FAA certified flight instructor, and designed to lead to a 
pilot certificate or rating issued by a rule or regulation of the FAA<ol> [and 
used for the exclusive purpose of pilot training in a licensed course of 
instruction. Licensed course of instruction means pilot training or instruction 
conducted by a flight training school that has been certified or granted 
provisional certification under Federal Aviation Administration Regulations, 14 
Code of Federal Regulations, Part 141 (1974). Any nonexempt use of the aircraft 
will cause the purchaser to become liable for the sales tax on either the fair 
market rental value of the aircraft for the period of nonexempt use or upon the 
original purchase price]. See sec.3.287 of this title (relating to Exemption 
Certificates).
<nl>(8)<ol><nl> A student enrolled in an FAA approved program may claim a tax 
exemption when renting aircraft for flight training, including solo flights and 
other flights, under an instructor's direction. When completing an exemption 
certificate claiming sales tax exemption, the student must identify the flight 
school (name and address) or if the student is not enrolled in a flight school, 
the student must list his or her primary flight instructor with the instructor's 
address. The student must also retain copies of written tests and instructors 
endorsements. Without evidence that the student is in pursuit of a flight 
rating, he or she will owe tax on aircraft rentals.
<nl>(9)<ol>[(7)] Texas sales or use tax is not due on aircraft sold to a person 
for use and registration in another state or nation before any use in Texas. 
Flight training in the aircraft in Texas and flying the aircraft out of state 
does not constitute a use of the aircraft in Texas.
(A) To claim the exemption, an exemption certificate, substantially similar in 
form and content to the certificate shown on the last page of this section, must 
be signed by both the seller and the purchaser at the time of purchase. The 
seller may accept a certificate if the seller lacks actual knowledge that the 
claimed exemption is invalid. The seller must provide a copy of the completed 
certificate to the Comptroller of Public Accounts within 30 days of the sale.
(B) By signing the certificate, the purchaser authorizes the comptroller to 
provide a copy of the certificate to the state or nation of intended use and 
registration.
(C) Issuing an invalid certificate is a misdemeanor punishable by a fine not to 
exceed $500 in addition to the assessment of tax and, when applicable, penalty 
and interest on the purchase price of the aircraft.
(d) Licensed and certificated carriers<nl>, flight schools, and flight school 
instructors<ol>.
<nl>(1)<ol> Sales or use tax is not due on aircraft used by persons defined in 
subsection (a)(1) of this section in the regular course of business of 
transporting persons or property for hire.
<nl>(2)<ol>[(1)] The following items or services used in the repair, remodeling, 
or maintenance of aircraft or aircraft engines or component parts by or for a 
person qualified under subsection (a)(1) <nl> or (c)(7)<ol> of this section are 
exempt if purchased by the aircraft owner or operator, by the aircraft 
manufacturer, or by a repair facility [licensed and certified by the appropriate 
regulatory agency].
(A) Machinery, tools, <nl>supplies,<ol> and equipment used directly and 
exclusively in the repair, remodeling, or maintenance. Included in the exemption 
is equipment used to sustain or support safe and continuous operations or to 
keep the aircraft in good working order by preventing its decline, failure, 
lapse, or deterioration, such as battery chargers or diagnostic equipment. 
[Consumable supplies, such as cleaning solvents, used in providing the repair, 
remodeling, or maintenance, but that are not part of or used in the aircraft, 
are not included in the exemption.]
(B) Repair, remodeling, and maintenance services.
<nl>(3)<ol>[(2)] Tax is not due on tangible personal property that is 
permanently affixed or attached as a component part of an aircraft <nl>owned or 
operated by a person described in subsection (a)(1) or (c)(7) of this section or 
that is necessary for the normal operations of the aircraft and is pumped, 
poured, or otherwise placed in an aircraft owned or operated by a person 
described in subsection (a)(1) or (c)(7) of this section<ol> [used as a licensed 
and certificated carrier device of persons or property, even though the property 
may be detached from the aircraft for servicing, maintenance, or other 
purposes]. Exempt component parts include air cargo containers that are secured 
or attached to the aircraft while in flight, radar equipment or other electronic 
devices used for navigational or communications purposes, food carts, smoke 
detectors, fire extinguishers, and seats. <nl>Pillows, blankets, trays, ice for 
drinks, kitchenware, or toilet articles are not exempt from tax.<ol>
[(3) Tax is not due on hydraulic fluids, gases, and lubricants used or consumed 
on or in the aircraft. Pillows, blankets, trays, ice for drinks, kitchenware, or 
toilet articles are not exempt from tax.]
<nl>(4)<ol> <nl>Tax is not due on electricity or natural gas used in the off-
wing processing, overhaul or repair of a jet turbine engine or its parts for a 
person described in subsection (a)(1) of this section.<ol>
<nl>(5)<ol>[(4)] Machinery, tools, and equipment that support the overall 
carrier operation such as baggage loading or handling equipment, garbage and 
other waste disposal equipment, or reservation making or booking machinery and 
equipment, do not qualify for exemption.
(e)Taxable uses of tangible personal property purchased tax free. Persons making 
a taxable use of tangible personal property purchased tax free <nl>, including 
aircraft purchased for flight training,<ol> should refer to sec.3.285 of this 
title (relating to Resale Certificate; Sales for Resale) and sec.3.287 of this 
title (relating to Exemption Certificates).
(f) Rolling stock.
(1) Sales or use tax is not due on the sale or use of locomotives and rolling 
stock.
(2) Sales or use tax is not due on the fuel or supplies essential to the 
operation of locomotives and trains if required by federal or state regulation.
<nl>(3)<ol> <nl>Sales or use tax is not due on electricity, natural gas, and 
other fuels used or consumed predominately in the repair, maintenance, or 
restoration of rolling stock.
(g) Motor carriers. The sale and use of motor carriers are taxed under the Tax 
Code, Chapters 152 and 157, and are not be subject to the limited sales and use 
taxes.
(h) Certificate. The comptroller adopts by reference the Texas Aircraft 
Exemption Certificate Out- of-State Registration and Use <nl>(Form 01-907)<ol>. 
Copies of the certificate are available for inspection at the office of the 
Texas Register or may be obtained from the Comptroller of Public Accounts, 
Account Maintenance, 111 E. 17th Street, Austin, Texas 78774-0100. Copies may 
also be requested by calling our toll-free number 1-800-252-5555. In Austin, 
call 463-4600. (From a Telecommunication Device for the Deaf (TDD) only, call 1-
800-248-4099 toll free. In Austin, the local TDD number is 463-4621.)
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 April 30, 1998.
TRD-9806047
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 463-4062

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
Part II. Texas Rehabilitation Commission
Chapter 109. Developmental Disabilities <nl>Council<ol> Program
40 TAC sec.sec.109.1-109.6
The Texas Rehabilitation Commission proposes amendments to sec.sec.109.1-109.6, 
concerning developmental disabilities council. In accordance with the 
Appropriations Act, sec.167, the Commission has reviewed these sections and has 
determined that they should be readopted with changes.
The sections are being amended so that the rules are consistent with revisions 
to the Developmental Disabilities Act 1984 and with the current Management 
Agreement between the Developmental Disabilities Council and the Texas 
Rehabilitation Commission.
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has 
determined that for the first five-year period the sections are in effect, there 
will be no fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be consistency with the revisions to the Developmental 
Disabilities Act 1984 and with the current Management Agreement between the 
Developmental Disabilities Council and the Texas Rehabilitation Commission. 
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 Roger Darley, Assistant General 
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 
7300, Austin, Texas 78751.
The amendments are proposed under the Texas Human Resources Code, Title 7, 
Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, 
sec.167, which provides the Texas Rehabilitation Commission with the authority 
to promulgate rules consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.

sec.109.1. Definitions.
The following words and terms, when used in these sections, shall have the 
following meanings, unless the context clearly indicates otherwise.
<nl>(1)<ol>Commission-Texas Rehabilitation Commission.
<nl>(2)<ol>Commissioner-Executive head of the Texas Rehabilitation Commission.
<nl>(3)<ol>Council-Texas Planning Council for Developmental Disabilities.
<nl>(4)<ol>Designated State agency-The state agency designated by the governor 
to provide administrative support to the Council.
<nl>(5)<ol>Developmental disability-A severe, chronic disability <nl>of an 
individual 5 years of age or older<ol> that:
(A) is attributable to a mental or physical impairment or combination of mental 
and physical impairments;
(B) is manifested before the person attains age 22;
(C) is likely to continue indefinitely;
(D) results in substantial functional limitations in three or more of the 
following areas of major life activity:
(i) self-care;
(ii) receptive and expressive language;
(iii) learning;
(iv) mobility;
(v) self-direction;
(vi) capacity for independent living; or
(vii) economic sufficiency; and
(E) reflects the person's need for a combination and sequence of special, 
interdisciplinary, or generic <nl>services, supports or other assistance that 
is<ol> [care, treatment, or other services that are] of lifelong or extended 
duration and are individually planned and coordinated<nl>, except that such 
term, when applied to infants and young children means individuals from birth to 
age 5, inclusive, who have a substantial developmental delay or specific 
congenital or acquired conditions with a high probability of resulting in 
developmental disabilities if services are not provided<ol>.
<nl>(6)<ol>Executive director-Chief administrative officer of the Texas Planning 
Council for Developmental Disabilities.
<nl>(7)<ol>Grant-Money or property provided in lieu of money paid or furnished 
by the commission/council to an eligible recipient under a program that provides 
financial assistance or provided by contract.
<nl>(8)<ol>State plan-Plan submitted by the <nl> Council<ol> [state] and 
approved by the secretary, Department of Health and Human Services, which sets 
out the specific objectives to be achieved under the plan, a listing of the 
programs and resources to be used to meet such objectives, and other related 
matters.

sec.109.2. Legal Basis.
The following federal and state laws and regulations are adopted by reference 
into this part:
(1) Developmental Disabilities Services and Facilities Construction Act (Public 
Law 91-517);
(2) Developmental Disabilities Assistance and Bill of Rights Act (Public Law 94-
103);
(3) Developmental Disabilities Assistance and Bill of 
Rights Act, as amended (Public Law 97-35);
(4) Developmental Disabilities Act of 1984 (Public Law 98-527);
<nl>(5)<ol> Developmental Disabilities Assistance and Bill of Rights Act 
Amendments of 1987 (Public Law 100-146);
<nl>(6)<ol> Developmental Disabilities Assistance and Bill of Rights Act of 1990 
(Public Law 101-496);
<nl>(7)<ol> Developmental Disabilities Assistance and Bill of Rights Act of 1994 
(Public Law 103-230);
<nl>(8)<ol> Developmental Disabilities Assistance and Bill of Rights Act of 1996 
(Public Law 104-183);
(9)<ol> [(5)] Developmental Disabilities Program, 45 Code of Federal 
Regulations, Parts 1385-1387; and
(10)<ol> [(6)] the Human Resources Code, Texas Civil Statutes, Chapter 112, 
Developmental Disabilities.

sec.109.3. Administration.
(a) The <nl>Texas Planning Council for<ol> Developmental Disabilities [Program] 
involving the federal Administration on Developmental Disabilities[, Texas 
Planning Council for Developmental Disabilities,] and the Texas Rehabilitation 
Commission is a joint state-federal program designed to <nl>promote the 
development of a consumer and family-centered, comprehensive system and a 
coordinated array of culturally competent services, supports, and other 
assistance designed to achieve independence, productivity, and integration and 
inclusion into the community for individuals<ol> [enhance services available to 
persons] with developmental disabilities.
(b) The council performs its responsibilities through <nl> staff activities,<ol> 
project grants to public<nl>,<ol> [or] nonprofit<nl>, or private for-profit<ol> 
organizations and in other ways as determined within the state plan.
(c) The council[, under the Developmental Disabilities Program]:
(1) develops [jointly with the commission as administering agency] <nl>and 
submits<ol> the state plan [of services] <nl> consistent with requirements of 
the Developmental Disabilities Assistance and Bill of Rights Act as amended<ol>.
(2) promotes <nl>the development of a consumer and family-centered, 
comprehensive system and a coordinated array of culturally competent services, 
supports, and other assistance designed to achieve independence, productivity, 
and integration and inclusion into the community for individuals<ol> [a system 
of effective and efficient services for persons] with developmental disabilities 
and plans, coordinates, [monitors, tests,] and evaluates those services<nl>, 
supports and assistance;<ol>
(3) <nl>assures that all programs funded on behalf of the Council meet standards 
which are designed to assure the most favorable outcome for those served<ol> 
[assures that persons with developmental disabilities receive the care, 
treatment, and services necessary to enable them to achieve their maximum 
potential];
(4) assures compliance with appropriate federal and state law;
(5) enters into a management agreement with the commission<nl>, as designated 
state agency,<ol> which sets forth their respective roles;
(6) <nl>initiates activities<ol> [provides services] subject to the availability 
of funds and in accordance with the state plan as prescribed by federal law;
(7) reviews and comments, to the maximum extent feasible, on all state plans in 
the state which relate to programs affecting <nl>individuals <ol> [persons] with 
developmental disabilities; and
(8) advocates for state and federal legislation, appropriations, and policies on 
behalf of <nl>individuals<ol> [persons] with developmental disabilities.
(d) The commission, as the <nl>designated state agency,<ol> [administering 
agency under the Administration on Developmental Disabilities,] carries out the 
functions set forth in <nl>applicable<ol> [the] federal and state laws and 
regulations [cited in subsection (c) of this section] and the management 
agreement with the Council.

sec.109.4. Organization.
(a) <nl>The Texas Rehabilitation Commission is designated by the Governor as the 
designated state agency to provide administrative support to the Council in 
accordance with applicable federal and state law<ol> [The Developmental 
Disabilities Program is supervised and administered by the Texas Rehabilitation 
Commission].
(b) Members of the Texas Planning Council for Developmental Disabilities shall 
be appointed by the governor in accordance with applicable federal developmental 
disabilities laws.
(c) The executive director of the Council is responsible for the day-to-day 
managing of the administrative, planning, consultative, and coordinating work of 
the Developmental Disabilities <nl>staff<ol> [Program]. The executive director 
works under the <nl>general<ol> supervision of the [Texas Rehabilitation] 
Commission and <nl> Council consistent with the Management Agreement<ol> 
[council].

sec.109.5. Grant Awards.
(a) The Developmental Disabilities <nl>Council staff<ol> [Program office] 
solicits requests for proposals for grants from the community at large in 
accordance with the goals, objectives, and priorities contained in the state 
plan.
(b) Requests for proposals are published in the Texas Register and state agency 
publications, and sent to providers and consumer groups identified as serving or 
interested in serving <nl>individuals with developmental disabilities<ol> [the 
developmentally disabled].
(c) Each applicant for a grant receives an information packet containing the 
terms and conditions of the grant. The completed application is submitted to the 
Developmental Disabilities <nl>Council<ol> [Program] office in accordance with 
instructions in the information packet.
(d) Each grant application which passes an initial technical review is reviewed 
by a review panel in a competitive process. After all grant applications are 
reviewed, those receiving the highest ratings are sent to the executive director 
<nl>for approval.<ol> [who forwards them to the commissioner for final decision 
on each grant award.] <nl>All awards are also reviewed and approved by the 
Commissioner or designee to assure compliance with applicable rules and 
regulations.<ol>

sec.109.6. Appeal of Grant Awards.
(a) Appeals from applicants for grants who did not receive funding, or from 
grantees whose grants have been suspended or terminated, shall be received, 
processed, and resolved with fairness and promptness. The person appealing shall 
be known as the appellant.
(b) The appellant shall file an appeal in writing addressed to the executive 
director of the <nl>Council<ol> [Developmental Disabilities Program]. The 
written appeal must be postmarked within 15 days of the date of the written 
notice of denial, suspension, or termination. The executive director will 
acknowledge receipt of the letter with a copy to the commissioner[, Texas 
Rehabilitation Commission].
(c) The executive director will investigate, compile, and study all relevant 
information about the appeal and, within 30 days of the receipt of the 
appellant's letter, submit a written report to the commissioner <nl> and Council 
Chair<ol>. The report will contain recommended action and the evidence 
supporting the recommended action.
(d) The commissioner <nl>will review<ol> [reviews] the report of the executive 
director and <nl>may approve<ol> [approves] the recommendations of the executive 
director, makes such modifications as [he finds] <nl>deemed<ol> appropriate, 
orders further investigation, or takes other appropriate action. <nl>The 
commissioner shall consult with the Council Chair prior to making any final 
decision.<ol> The commissioner <nl>shall notify<ol> [notifies] the appellant of 
his decision. The decision of the commissioner is final.
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 May 4, 1998.
TRD-9806173
Charles Schiesser
Chief of Staff
Texas Rehabilitaton Commission
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 424-4050

Part XX. Texas Workforce Commission
Chapter 800. General Administration
Subchapter B. Allocation and Funding
40 TAC sec.800.61
The Texas Workforce Commission (Commission) proposes new sec.800.61, relating to 
the Welfare to Work program.
Section 800.61 explains the allocation formula for the Welfare to Work program.
The Balanced Budget Act of 1997 authorized the U.S. Department of Labor (DOL) to 
provide Welfare- to-Work (WtW) Formula Grants to states and local communities to 
create additional job opportunities for hard-to-employ recipients of Temporary 
Assistance for Needy Families (TANF). These grants will provide many welfare 
recipients with job placement services, transitional employment, and other 
support services which they need to make the successful progression into long-
term unsubsidized employment. The State Welfare to Work plan is an addendum to 
the State's TANF plan. Under the WtW Formula Grant Program, Texas will allocate 
85 percent of its funding from DOL to the Boards. If a Local Workforce 
Development Area does not have a certified Board, the funds for that area will 
be allocated to the PIC for that area. Federal law requires that the allocation 
of funding to Boards be based on a formula in which allocation of at least half 
of the funds is based on the relative percentage of the Local Workforce 
Development Area's (LWDA) residents who are poor, i.e. the number of poor 
individuals living in the area in excess of 7.5 percent of the total population 
of the area. Not more than half of the funds may be distributed based on one or 
both of two additional factors: (1) the number of adults in the LWDA receiving 
TANF for 30 months or more (long-term TANF factor), and/or (2) the number of 
unemployed individuals in the LWDA (unemployment factor).
The Commission proposes that the WtW Formula Grant funds be allocated to the 
LWDAs based upon the poverty factor and the long-term TANF factor. This formula 
provides the maximum emphasis permitted under the law on those whom the program 
is targeted to serve--hard-to-employ TANF recipients.
Randy Townsend, Director of Finance, has determined that for each year of the 
first five years the rule as proposed will be in effect, there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the rule.
Mike Sheridan, Executive Director of the Commission, has determined that the 
public benefit anticipated as a result of the rule as proposed will be the 
allocation of funds to assist hard-to-employ welfare recipients living in high 
poverty areas transition into unsubsidized employment and economic self- 
sufficiency. There is no cost to small businesses to comply with the new rule as 
proposed. There is no economic cost to persons required to comply with the rule.
Mark Hughes, Director of Labor Market Information, has determined that there is 
no significant negative impact upon employment conditions in this state as a 
result of this proposed rule.
Comments on the proposed rule may be submitted to Larry Temple, Welfare Reform 
Division, Texas Workforce Commission, 101 East 15th Street, Room 440T, Austin, 
Texas 78778; Fax Number 512-463- 7379; or E-mail to 
larry.temple@twc.state.tx.us.
Comments must be received by the Commission no later than thirty (30) days from 
the date this proposal is published in the Texas Register.
The rule is proposed under Texas Labor Code sec.301.061 which provides the Texas 
Workforce Commission with the authority to adopt, amend, or repeal such rules as 
it deems necessary for the effective administration of Texas Workforce 
Commission programs.
The proposal affects the Texas Labor Code, Title 4.

<nl>sec.800.61. Welfare to Work Program.
(a) At least eighty-five percent (85%) of the federal funds available to the 
Texas Workforce Commission (Commission) for the Welfare to Work program will be 
allocated by the Commission to the workforce areas according to the formula, as 
follows:
(1) fifty percent (50%) of these federal funds will be allocated based on the 
relative number by which the population in the area below poverty exceeds 7.5 
percent of the total population (referred to as the poverty factor), and
(2) fifty percent (50%) of these federal funds will be allocated based on the 
relative number of adults residing in the areas receiving assistance under TANF 
or the predecessor program for at least 30 months (referred to as the long-term 
TANF factor.)
(b) Notwithstanding the allocation formula in (a) above, of the funds allocated, 
no more funds may be disbursed than the total for which match is recorded, 
documented, or certified by the state.
(c) At least 85% of any unencumbered general revenue funds appropriated or 
otherwise made available to the Commission for the sole purpose of providing 
cash match for the Welfare to Work program shall be allocated based upon the 
same allocation formula as in (a) above.
(d) No more than ten percent (10%) of the funds expended as part of a workforce 
area's allocation shall be used for administrative costs, as defined by the 
appropriate federal regulations and Commission policy.
(e) Subsections (a)-(c) of sec.800.51 of this chapter (relating to Allocation 
and Funding) do not apply to this section.
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 April 29, 1998.
TRD-9806035
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 463-8812

40 TAC sec.800.62
The Texas Workforce Commission (Commission) proposes new sec. 800.62, concerning 
School-to-Careers activities.
The proposed rule is based on a five-year period for implementation of the 
state's School-to-Careers activities, which began March 1, 1997, in accordance 
with the federal grant awarded to the state by the U.S. Department of Education.
The rule is proposed based on the presumption of continued federal funding in 
accordance with the state's application for an implementation grant as approved 
by the U.S. Department of Education, U.S. Department of Labor and the National 
School-to-Work Office.
For the need-based method of allocation, the Commission anticipates using 
student population information from the following sources: the Texas Education 
Agency for grades kindergarten - 12, the Texas Higher Education Coordinating 
Board for community and technical college enrollment of students ages 15-25, and 
the Texas Workforce Commission JTPA Title II- C Youth Training Program for 
youths ages 16-21.
From the total amount of funds awarded to the state, the state's share for 
conducting School- to-Careers activities shall be no more than thirty percent in 
the first year of the grant; twenty percent in the second year; and ten percent 
in the third, fourth, and fifth years. State administrative costs shall be 
limited to an amount not to exceed ten percent of each year's total grant award. 
Competitive subgrants were awarded to local partnerships for the first year of 
the implementation grant in accordance with the state's application to the U.S. 
Department of Education. For the continuation of the implementation grant, a 
need-based formula will be used to allocate funds among local workforce 
development areas throughout the state in accordance with Texas Labor Code, 
sec.302.062.
New sec.800.62, School-to Careers, sets out the method of allocating funds to 
local partnerships for the state's School-to-Careers activities funded by the 
School-to-Work Opportunities Act as codified at 20 U.S.C.A. sec.sec.6141 et seq.
Randy Townsend, Director of Finance, has determined that for the first five-year 
period the rule is in effect, there will be no fiscal impact to state or to 
local governments as a result of enforcing or administering the rule. There will 
be no foreseeable cost reductions to the state or to local governments, no net 
effect on revenues as a result of enforcing and administering the rule, and no 
foreseeable implications relating to costs or revenues to the state or to local 
governments associated with implementing the rule. There will be no effect on 
small businesses. There are no anticipated costs to persons who are required to 
comply with the rule as proposed.
Alan Miller, Director of Workforce Development Division, 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 providing funding to 
assist communities in offering multiple opportunities for interested students to 
experience increased awareness of career possibilities and the expectations of 
employers in the workplace and community.
Comments on the proposed rule may be submitted to Sandra Smith, Education and 
Special Services, Texas Workforce Commission Building, 101 East 15th Street, 
Room 526BT, Austin, Texas 78778, fax (512) 305-9182. Comments may also be 
submitted via e-mail to Ms. Smith at sandra.smith@twc.state.tx.us.
The new rule is proposed under Texas Labor Code, sec.301.061, which provides the 
Texas Workforce Commission with the authority to adopt such rules as it deems 
necessary for the effective administration of the Act.
Texas Labor Code, Title IV and particularly, Chapter 301 and Chapter 302, will 
be affected by the proposed rule.

<nl>sec.800.62. School-to Careers.
(a) The purpose of this section is to establish a method of allocating funds 
received by the Texas Workforce Commission (Commission) under a federal grant 
pursuant to the School-to-Work Opportunities Act as codified at 20 U.S.C.A. 
sec.sec.6141 et seq. (the Act) to local partnerships for implementation of 
School-to-Careers activities.
The purpose of School-to- Careers is to assist local partnerships in developing 
local School-to-Careers activities that engage interested youths in the lifelong 
acquisition of knowledge and skills necessary to pursue meaningful, challenging 
and productive careers in high-skill, high-wage jobs. Subsections (a) - (c) of 
sec. 800.51 of this subchapter (relating to Allocation and Funding) do not apply 
to funds awarded pursuant to this section.
(b) The following words and terms, when used in this section, shall have the 
following meanings, unless the context clearly indicates otherwise:
(1) Local partnership -- A local committee in a workforce area or group of 
workforce areas or advisory committee of a local workforce development board 
(workforce board), in areas where the workforce board has been certified, that 
is responsible for developing local School-to-Careers activities and whose 
membership is in accordance with the Act. Local partnerships are comprised 
typically of interested students; parents; local educators, including secondary 
and postsecondary educators; local employers and labor representatives; local 
elected officials, including school boards; and others as detailed in the Act.
(2) School-to-Careers activities -- Voluntary activities that facilitate 
understanding by interested students and their parents of expectations of 
employers and community professionals and provide multiple opportunities for 
interested students to experience success in meeting those expectations in the 
workplace and in the community.
(3) Substate application -- An application submitted by a local partnership to 
the Commission to request funds for implementation of School-to-Careers 
activities.
(c) A local partnership shall receive a base amount each year as follows to 
implement basic School-to-Careers activities.
(1) In the second, third, and fourth years of the grant, the base amount is 
estimated at $75,000 or the amount as determined by the Commission taking into 
consideration available funds.
(2) In the fifth year of the grant, the base amount is estimated at $45,000 or 
the amount as determined by the Commission taking into consideration available 
funds.
(d) After allocating the base amount, the Commission shall allocate the 
remaining funds according to a need-based method which uses as the primary 
factor each local partnership's relative share of the state's student 
population. The Commission may reduce the need-based allocation to any local 
partnership that does not demonstrate or maintain satisfactory progress in the 
previous year, relative to the following factors:
(1) the overall quality of the plan submitted;
(2) the readiness of the local partnerships to implement the plan or the ability 
to continue implementing the plan;
(3) the progress made by the local partnerships in accomplishing specific 
objectives to date; and
(4) the relevant additional factors as deemed appropriate for consideration by 
the Commission that bear upon the ability of the local partnerships to meet 
their goals.
(e) The Commission shall allocate and reallocate funds under this section only 
to a local partnership that meets all of the following requirements:
(1) the substate applicant submitted a complete application, which the 
Commission approved;
(2) the substate application contained assurances that the School-to-Careers 
activities shall be implemented only if there is strong local school board 
control, complete student choice, and informed parental involvement;
(3) the local partnership and the Commission properly executed a contract for 
implementing the School-to-Careers activities; and
(4) the local partnership demonstrated satisfactory progress in fulfilling the 
previous year's contract.
(f) To facilitate the transition to the need-based method of allocations, the 
Commission may use a portion of the state's share of the second year grant to 
offset any reduction in allocation to local partnerships in the second year if 
the implementation of the need-based method would reduce the local partnership's 
second year allocation.
(g) The Commission may allocate additional funds from the state's share of the 
grant according to criteria established at the discretion of the Commission.
(h) Notwithstanding any other provision of this section, the level of funding 
allocated to a local partnership may be modified or reallocated by the 
Commission for one or more of the following purposes:
(1) to ensure compliance with state and federal requirements applicable to the 
state,
(2) to ensure full utilization of the funding, or
(3) to ensure appropriate progress in accomplishing the state's responsibilities 
under the School-to-Careers implementation grant.
(i) If it is determined by the Commission that a local partnership will not 
fulfill its responsibilities under the substate grant, the Commission may 
declare the local partnership non-responsive and accept an application from a 
newly constituted local partnership or other entity meeting the criteria of the 
Act, established in accordance with guidance from the Commission, to proceed 
with implementation of the School-to-Careers activity in the workforce area. 
Section 800.59, of this Subchapter (relating to Funds Not Allocated), and sec. 
800.60, of this Subchapter (relating to Reallocation of Funds), shall not apply 
to this section.
(j) State administrative costs may not exceed ten percent of the grant award or 
as otherwise permitted by the Act.
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 May 4, 1998.
TRD-9806198
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 463-8812

Chapter 813. Food Stamp Employment and Training
The Texas Workforce Commission (Commission) proposes the repeal of sec.sec.813.1 
and 813.2 and new sec.sec.813.1 and 813.2, relating to the Food Stamp Employment 
and Training program. The proposed repeal and proposed new sections are due to 
the mandates of recent federal guidance requiring the state to adopt these rules 
or risk losing federal funds.
Section 813.1 explains the expenditure of funds.
Section 813.2 sets forth the allowable activities for the Food Stamp Employment 
and Training Program.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 
requires able-bodied food stamp recipients, ages 18-50, with no dependents 
(ABAWDs) to participate in specific activities in order to receive food stamp 
benefits. Failure of these participants to comply with the federal requirements 
will limit their assistance to three months out of thirty-six (36) months. This 
targeted population is referred to as ABAWDs. Allowable activities include 
training funded by the Trade Adjustment Act of 1974 (TAA), Job Training 
Partnership Act (JTPA), workfare, and state training and education programs of 
at least twenty (20) hours a week. Recent federal guidance mandates that the 
state utilize at least eighty percent (80%) of federal Food Stamp Employment and 
Training funds to assist ABAWDs in allowable activities.
Randy Townsend, Director of Finance, has determined that for each year of the 
first five years the rules as proposed will be in effect, there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the rules.
Mike Sheridan, Executive Director of the Commission, has determined that the 
public benefit anticipated as a result of the rules as proposed will be to 
provide work opportunities for ABAWDs who would otherwise lose food assistance 
because of the time limits imposed under the Welfare Reform legislation which 
restricts participation in the Food Stamp Program to 3-in-36 months unless the 
individual is working or participating in a work program 20 hours per week, or 
participating in a workfare program. There is no cost to small businesses to 
comply with the new rules as proposed. There is no economic cost to persons 
required to comply with the rules.
Mark Hughes, Director of Labor Market Information, has determined that there is 
no significant negative impact upon employment conditions in this state as a 
result of these proposed rules. The only impact on private employers as a result 
of these rules would be an expanded applicant pool.
Comments on the proposed rules may be submitted to Larry Temple, Director of 
Welfare Reform, Texas Workforce Commission, 101 East 15th Street, Room 458-T, 
Austin, Texas 78778; Fax Number 512- 463-2209; or E-mail to 
larry.temple@twc.state.tx.us.
Comments must be received by the Commission no later than thirty days from the 
date this proposal is published in the Texas Register.

40 TAC sec.sec.813.1, 813.2
(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 Workforce 
Commission or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
(The Texas Workforce Commission proposed for permanent adoption the repealed 
sections it adopts on an emergency basis in this issue.)
The repeals are proposed under the Texas Labor Code, Chapter 301, which provides 
the Texas Workforce Commission with the authority to adopt, amend, or repeal 
such rules as it deems necessary for the effective administration of Texas 
Workforce Commission programs.
The repeals affect the Texas Labor Code, Title 4.
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 April 29, 1998.
TRD-9806034
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 463-8812

40 TAC sec.sec.813.1, 813.2
(Editor's note: The Texas Workforce Commission proposes for permanent adoption 
the new sections it adopts on an emergency basis in this issue. The text of the 
new sections are in the Emergency Rules section of this issue.)
The new rules are proposed under Texas Labor Code sec.301.061 which provides the 
Texas Workforce Commission with the authority to adopt, amend, or repeal such 
rules as it deems necessary for the effective administration of Texas Workforce 
Commission programs.
The proposal affects the Texas Labor Code, Title 4.
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 April 29, 1998.
TRD-9806033
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 463-8812

Chapter 839. Welfare to Work
40 TAC sec.sec.839.1-839.3
The Texas Workforce Commission (Commission) proposes new sec.sec.839.1-839.3 
relating to the Welfare to Work program.
Section 839.1 states the requirements for Local Workforce Development Boards 
(Boards), private industry councils (PICs), or other approved entities 
administering the Welfare to Work program to comply with the federal statutes 
and regulations.
Section 839.2 states that the Boards, PICs, or other approved entities 
administering the Welfare to Work program must comply with the state plan as 
approved by the U.S. Department of Labor.
Section 839.3 states under what conditions the Commission will reimburse funds.
The Balanced Budget Act of 1997 authorized the U.S. Department of Labor (DOL) to 
provide Welfare- to-Work (WtW) Formula Grants to states and local communities to 
create additional job opportunities for hard-to-employ recipients of Temporary 
Assistance for Needy Families (TANF). These grants will provide many welfare 
recipients with job placement services, transitional employment, and other 
support services that they need to make the successful progression into long-
term unsubsidized employment. The State Welfare to Work plan is an addendum to 
the State's TANF plan.
Under the WtW Formula Grant Program, Texas will allocate 85 percent of its 
funding from DOL to the Boards. If a Local Workforce Development Area does not 
have a certified Board, the funds for that area will be allocated to the PIC for 
that area. Federal law requires that the allocation of funding to Boards be 
based on a formula in which allocation of at least half of the funds is based on 
the relative percentage of the Local Workforce Development Area's (LWDA) 
residents who are poor, i.e. the number of poor individuals living in the area 
in excess of 7.5 percent of the total population of the area. Not more than half 
of the funds may be distributed based on one or both of two additional factors: 
(1) the number of adults in the LWDA receiving TANF for 30 months or more (long-
term TANF factor), and/or (2) the number of unemployed individuals in the LWDA 
(unemployment factor). Boards have the jurisdiction and the authority to develop 
local policy, to determine which segments of the eligible population to target, 
to determine service delivery practices and procedures, to set the services and 
activities available in each local workforce development area, to demonstrate 
collaboration with other local partners, and to provide in-kind matching funds 
for the program. These activities and services are to be delivered consistent 
with federal and state regulations, rules, and policies.
Randy Townsend, Director of Finance, has determined that for each year of the 
first five years the rules as proposed will be in effect, there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the rules.
Mike Sheridan, Executive Director of the Commission, has determined that the 
public benefit anticipated as a result of the rules as proposed will be to 
assist hard-to-employ welfare recipients living in high poverty areas transition 
into unsubsidized employment and economic self-sufficiency. There is no cost to 
small businesses to comply with the new rules as proposed. There is no economic 
cost to persons required to comply with the rules.
Mark Hughes, Director of Labor Market Information, has determined that there is 
no significant negative impact upon employment conditions in this state as a 
result of the proposed rules.
Comments on the proposed rules may be submitted to Larry Temple, Welfare Reform 
Division, Texas Workforce Commission, 101 East 15th Street, Room 440T, Austin, 
Texas 78778; Fax Number 512-463- 7379; or E-mail to 
larry.temple@twc.state.tx.us.

Comments must be received by the Commission no later than thirty (30) days from 
the date this proposal is published in the Texas Register.
The rules are proposed under Texas Labor Code sec.301.061 which provides the 
Texas Workforce Commission with the authority to adopt, amend, or repeal such 
rules as it deems necessary for the effective administration of Texas Workforce 
Commission programs.
The proposal affects the Texas Labor Code, Title 4.

<nl>sec.839.1. Compliance with Federal Statute and Regulations.
(a) Each local workforce development board, private industry council, or other 
entity administering the Welfare to Work program must comply with federal 
statutory requirements, located at 42 U.S.C.A. sec.403 et seq.
(b)Each local workforce development board, private industry council, or other 
entity administering the Welfare to Work program must comply with federal 
regulatory requirements, located at 20 CFR Part 645.

<nl>sec.839.2. Compliance with the State Plan.
Each local workforce development board, private industry council, or other 
entity administering the Welfare to Work program must comply with the State 
Welfare to Work Plan, as approved by the U.S. Department of Labor.

<nl>sec.839.3. Reimbursement of Funds.
The Texas Workforce Commission (Commission) will not reimburse for any expenses 
incurred by the local workforce development boards, private industry councils, 
or other entities administering the Welfare to Work program except in compliance 
with the terms of the contract between the Commission and that  entity.
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 April 29, 1998.
TRD-9806036
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 463-8812

TITLE 43. TRANSPORTATION
Part Texas Department of Transportation
Chapter 17. Vehicle Titles and Registration
Subchapter B. Motor Vehicle Registration
43 TAC sec.17.22

The Texas Department of Transportation proposes amendments to sec.17.22, 
concerning motor vehicle registration.
EXPLANATION OF PROPOSED AMENDMENTS House Bill 1532, 75th Texas Legislature, 
1997, amended the Transportation Code by adding sec.502.185. This new section 
provides the procedure that the department or a county tax assessor-collector 
may, pursuant to the provisions of a contract entered into between the 
department and the county in accordance with Government Code, Chapter 791, 
refuse to register a vehicle owned by a person who owes the county money for a 
fine, fee, or tax that is past due. Once the fine, fee or tax is paid the 
registration may be completed. The amendments are proposed in response to House 
Bill 1532 and a need to provide an additional enforcement tool for the 
collection of delinquent county fines, fees, or taxes.
FISCAL NOTE Frank J. Smith, Director, Finance Division, has determined that for 
the first five-year period the amendments are in effect, there will be fiscal 
implications for state and local governments as a result of enforcing or 
administering the amendments. The effect on state government for the first five-
year period the section is in effect will be additional cost for 1998 of $77,667 
for automated system program. The cost to the state for years 1999-2002 will be 
reimbursed by participating counties through contract. The cost to the county 
cannot be determined because there is insufficient data to determine how often 
or how many times the county will use the service. Additionally, there will be a 
decrease to state and county revenue that cannot be determined because there is 
not enough data to accurately predict how many owners will avoid re-registration 
because they do not wish to pay the past due county fines, fees, or taxes. There 
is no anticipated economic cost to individuals who are required to comply with 
the section as proposed.
Jerry L. Dike, Director, Vehicle Titles and Registration Division, has certified 
that there will be no significant impact on local economies or overall 
employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT Mr. Dike has also determined that for each year of the first five 
years the amendments are in effect the public benefit anticipated as a result of 
enforcing or administering the amendments will be a procedure to assist in the 
mandated collection of fines, fees, and tax monies owed to a county of this 
state before a motor vehicle may be registered. There will be no effect on small 
businesses.
SUBMITTAL OF COMMENTS Written comments on the proposed amendments may be 
submitted to Jerry L. Dike, Director, Vehicle Titles and Registration Division, 
125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of 
comments will be 5:00 p.m. on June 16, 1998.

STATUTORY AUTHORITY The amendments are proposed under Transportation Code, 
sec.201.101, which provides the Texas Transportation Commission with the 
authority to establish rules for the conduct of the work of the Texas Department 
of Transportation, and more specifically, Government Code, Chapter 791, which 
authorizes local governments to enter into contracts, and Transportation Code, 
Chapter 502.185, which authorizes the department or a county tax assessor-
collector to refuse to register a vehicle owned by a person who owes the county 
money for a fine, fee, or tax that is past due.
No statutes, articles, or codes are affected by these proposed amendments.

sec.17.22. Motor Vehicle Registration.
(a) Registration. Unless otherwise exempted by law or this chapter, a vehicle to 
be used upon the public highways of this state must be registered in accordance 
with Transportation Code, Chapter 502 and the provisions of this section. Texas 
Civil Statutes, Article 6687-1(37A)(j) and (n), and sec.17.8 of this title 
(relating to Certificates of Title for Salvage Vehicles) prohibit registration 
of a vehicle whose owner has been issued a salvage or nonrepairable motor 
vehicle certificate of title. These vehicles may not be operated upon a public 
roadway.
(b) Initial application for vehicle registration.
(1) An applicant for initial vehicle registration must file an application on a 
form prescribed by the department. The form shall at a minimum require:
(A) the signature of the owner;
(B) the motor vehicle description which includes, but is not limited to, the 
motor vehicle's year, make, model, vehicle identification number, body style, 
manufacturer's rated carrying capacity in tons for commercial motor vehicles, 
and empty weight;
(C) the license plate number;
(D) the odometer reading, or the word "exempt" if the motor vehicle is exempt 
from federal and state odometer disclosure requirements;
(E) the name and complete address of the applicant; and
(F) the name, mailing address, and date of any liens.
(2) The application must be accompanied by the following documents:
(A) evidence of vehicle ownership as specified in Transportation Code, 
sec.501.030, unless the vehicle has been issued a salvage or nonrepairable motor 
vehicle certificate of title in accordance with Texas Civil Statutes, Article 
6687-1 (37A)(j) and (n);
(B) registration fees as may be prescribed by law;
(C) any local fees or other fees as may be prescribed by law and collected in 
conjunction with registering a vehicle;
(D) evidence of financial responsibility as required <nl> by<ol> Transportation 
Code, sec.502.153, unless otherwise exempted by law; and
(E) any other documents or fees required by law.
(3) Place of registration. An initial application for registration shall be 
filed with the tax assessor-collector of the county in which the owner resides; 
provided, however:
(A) registration involving the transfer of vehicle ownership by a motor vehicle 
dealer shall be governed by 16 Texas Administrative Code, sec.sec.111.1-111.16; 
and
(B) an application for registration as a prerequisite to filing an application 
for certificate of title may be filed with the county tax assessor-collector in 
the county in which the motor vehicle is purchased or encumbered.
(c) Vehicle registration insignia.
(1) Upon receipt of a complete initial application for registration with the 
accompanying documents and fees, the department will issue vehicle registration 
insignia to be displayed on the vehicle for which the registration was issued 
for the current registration period.
(A) If the vehicle has a windshield, the symbol, tab or other device prescribed 
by and issued by the department must be attached to the inside lower left corner 
of the vehicle's front windshield within six inches of the vehicle inspection 
sticker in a manner that will not obstruct the vision of the driver.
(B) If the vehicle has no windshield, the symbol, tab, or other device 
prescribed by and issued by the department shall be attached to the rear license 
plate.
(C) If the vehicle is registered as a Former Military Vehicle as prescribed by 
sec.17.28(b)(14) of this title (relating to Special Category License Plates, 
Symbols, and Tabs), the vehicle's registration number shall be displayed in lieu 
of displaying a symbol, tab, or license plate.
(i) Former Military Vehicle registration numbers shall be displayed on a 
prominent location on the vehicle in numbers and letters of at least two inches 
in height.
(ii) To the extent possible, the location and design of the Former Military 
Vehicle registration number must conform with the vehicle's original military 
registration number.
(2) Unless otherwise prescribed by law, each vehicle registered under this 
subchapter must display two license plates, one at the front and one at the rear 
of the vehicle.
(3) The provisions of paragraph (1) of this subsection do not apply to vehicles 
registered with annual license plates issued by the department.
(d) Vehicle registration renewal.
(1) A vehicle owner shall apply to the tax assessor- collector of the county in 
which the owner resides for registration renewal prior to the expiration of the 
vehicle's registration.
(2) The department will mail a license plate renewal notice, indicating the 
proper registration fee and the month and year the registration expires to each 
vehicle owner approximately six to eight weeks prior to the expiration of the 
vehicle's registration.
(3) The license plate renewal notice must be returned by the vehicle owner to 
the appropriate county tax assessor- collector or his or her deputy, either in 
person or by mail, and shall be accompanied by the following documents and fees:
(A) registration renewal fees as may be prescribed by law;
(B) any local fees or other fees as may be prescribed by law and collected in 
conjunction with registration renewal; and
(C) evidence of financial responsibility as required by Transportation Code, 
sec.502.153, unless otherwise exempted by law.
(4) If a renewal notice is lost, destroyed, or not received by the vehicle 
owner, the vehicle may be registered if the owner presents personal 
identification acceptable to the tax assessor-collector. Failure to receive the 
notice does not relieve the owner of the responsibility to renew the vehicle's 
registration.
(5) Renewal of expired vehicle registrations.
(A) In accordance with Transportation Code, sec.502.407, a vehicle with an 
expired registration may not be operated upon the highways of the state after 
the fifth day after the date a vehicle registration expires.
(B) A 20% delinquency penalty is due any time a vehicle is operated upon the 
public streets or highways without the required registration.
(C) If an owner renews the registration of a vehicle more than one month after 
the previous registration has expired and the vehicle has not been operated upon 
the public streets or highways, the vehicle owner will be required to execute a 
non-use affidavit stating such, and the registration fee will be prorated for 
the balance of the registration year.
(D) If an owner renews the registration of a vehicle more than one month after 
the previous registration has expired and cannot execute the non-use affidavit 
because the vehicle has been operated, the full annual fee shall be collected 
plus a 20% delinquency penalty as provided by Transportation Code, sec.502.176.
(6) License plate reissuance and recall program.
(A) The county tax assessor-collectors are authorized to issue new multi-year 
license plates at no additional charge upon request by the owner at the time of 
registration renewal, provided the current plates are over five years old.
(B) The county tax assessor-collectors shall issue new multi-year license plates 
at no additional charge at the time of registration renewal provided the current 
plates are over eight years old.
(e) Replacement of registration symbol, tab, device, or number plates.
(1) When the registration symbol, tab, device or number plates are lost, stolen, 
or mutilated, a replacement may be obtained from any county tax assessor-
collector as prescribed by law.
(2) The owner must properly execute a replacement affidavit, containing the 
vehicle description, original license plate number, and sworn statement that the 
registration symbol, tab, device, or number plates furnished for the vehicle 
described have been lost, stolen, or mutilated, and will not be used on any 
other vehicle.
(3) The owner's remaining part of the registration symbol, tab, device, or 
number plates must be removed and surrendered to the department upon issuance of 
the replacement and upon request by the county tax assessor-collector, the 
owner's current year's license receipt.
(f) Out-of-state vehicles. A vehicle brought to Texas from out-of-state must be 
registered within 30 days of the date which the owner establishes residence or 
secures gainful employment. Accompanying a completed application, an applicant 
shall provide:
(1) an application for certificate of title as required by the Certificate of 
Title Act, Transportation Code, Chapter 501, if the vehicle to be registered has 
not been previously titled in this state; and
(2) an identification certificate required by the Transportation Code, 
sec.548.256 and sec.501.030.
(g) Enforcement of traffic warrant. The department or a county tax assessor-
collector may, pursuant to the provisions of a contract entered into under 
Transportation Code, sec.702.003, refuse to register a vehicle owned by a person 
for whom a warrant of arrest is outstanding for failure to appear or pay a fine 
on a complaint involving a violation of a traffic law.
<nl>(h)<ol><nl> Refusal to register vehicle in certain counties. The department 
or a county tax assessor-collector may, pursuant to the provisions of a contract 
entered into in accordance with Government Code, Chapter 791, and Transportation 
Code, sec.502.185, refuse to register a vehicle owned by a person who owes the 
county money for a fine, fee, or tax that is past due.
<nl>(1)<ol> <nl>To place or remove a registration denial flag on a vehicle 
record, the county must submit a magnetic tape, or other acceptable submission 
medium as determined by the department in a format prescribed by the department. 
<ol>
<nl>(2)<ol><nl> The information submitted by the county will include, at a 
minimum, the vehicle identification number (VIN) and the registration plate 
number of the affected vehicle.<ol>
<nl>(3)<ol><nl> If a county data submission contains bad or corrupted data, the 
submission medium will be returned to the county 
with no further action by the department.<ol>
<nl>(4)<ol><nl> The magnetic tape or other submission medium must be submitted 
to the department from a single source within the county, as approved by the 
county commissioner's court.<ol>
<nl>(5)<ol><nl> County submission of a magnetic tape or other submission medium 
to the department constitutes a certification that  the county has notified 
owners of vehicles whose records appear on the tapes  that past due fines, fees, 
or taxes are owed to the county.<ol>
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 May 1, 1998.
TRD-9806158
Bob Jackson
Acting General Counsel
Texas Department of Transportation
Earliest possible date of adoption: June 14, 1998
For further information, please call: (512) 463-8630