Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part VII. State Office of Administrative Hearings Chapter 155. Rules of Procedures 1 TAC sec.sec.155.1, 155.3, 155.5, 155.7, 155.9, 155.11, 155.13, 155.15, 155.17, 155.19, 155.21, 155.27, 155.29, 155.31, 155.35, 155.39, 155.41, 155.43, 155.45, 155.47, 155.49, 155.51, 155.53 The State Office of Administrative Hearings adopts new sec.sec.155.1, 155.3, 155.5, 155.7, 155.9, 155.11, 155.13, 155.15, 155.17, 155.19, 155.21, 155.27, 155.29, 155.31, 155.35, 155.39, 155.41, 155.43, 155.45, 155.47, 155.49, 155.51, and 155.53, concerning rules of practice and procedure for contested cases conducted by the State Office of Administrative Hearings. Sections 155.5, 155. 7, 155.9, 155.15, 155.17, 155.21, 155.27, 155.29, 155.31, 155.35, 155.41, 155. 43, 155.45, 155.47, 155.51, and 155.53 are adopted with changes to the proposed text as published in the April 10, 1992, issue of the Texas Register (17 TexReg 2565). Sections 155.1, 155.3, 155.11, 155.13, 155.19, 155.27, 155.39, and 155.49 are adopted without changes and will not be republished. The new sections are adopted for the purpose of establishing rules of practice and procedure for contested cases conducted by the State Office of Administrative Hearings. The changes to the proposed text published in the April 10, 1992 issue of the Texas Register include the following: sec.sec.155.23, 155.25, 155.33, and 155.37 were withdrawn, effective August 5, 1992. (New sections 155.23, 155.25, 155.33, and 155.37 were thereafter proposed for adoption.); sec.sec.155.5, 155.7, 155.9, 155.15, 155.17, 155.21, 155. 29, 155.31, 155.35, 155.41, 155.43, 155.45, 155.47, 155.51, and 155.53 were changed by adding clarifying language. Sections 155.21, 155.29, and 155.35 were specifically clarified in response to comments received from the Texas State Board of Public Accountancy. Additionally, the subsections of sec.155.15 were renumbered. The adopted sections will help provide uniformity of practice and clearer understanding on the part of the public of the procedural requirements to be followed in contested cases conducted by the State Office of Administrative Hearings. The only comments received relating to the adopted sections were those filed by the Texas State Board of Public Accountancy. Those comments basically requested clarification of sec. sec.155.21, 155.25(b)(12), 155.29, 155.25(c), and 155.35 and sought a change in the proposed text of sec.155.15(b)(8) (now sec.155. 15(b)(9)). As indicated previously, sec.155.25 was withdrawn, and changes were made to clarify sec.sec.155.21, 155.29, and 155.35 in response to the comments received. The State Office of Administrative Hearings disagrees with the Texas State Board of Public Accountancy's comments relating to sec.155.15(8) for the following reasons. The Texas State Board of Public Accountancy requested that sec.155.15(8) be changed to allow parties to offer proposed findings of fact and conclusions of law at the discretion of the parties rather than at the directive of the ALJ. The State Office of Administrative Hearings disagrees with this comment because not only should the parties be permitted to offer proposed findings and conclusions if they desire to do so, but the ALJ should also be permitted to direct that proposed findings and conclusions be submitted if, based upon the circumstances, the ALJ determines that such is appropriate. The new sections are adopted under Texas Civil Statutes, Article 6252-13f, which provide the State Office of Administrative Hearings with the authority to conduct contested cases all agencies which do not have a person whose only duty is to preside as a hearings officer over matters related to contested cases before the agency and Texas Civil Statutes, Article 6252-13, sec.4(a) which require agencies to adopt rules of practice setting for the nature and requirements for formal and informal procedures. sec.155.5. General. (a) Administrative hearings in contested cases conducted by the Office shall be conducted in accordance with APTRA and with the applicable law and rules of the agency for which the hearing is conducted. (b) If there is any conflict between these rules and rules of the agency for which a hearing is being conducted, the rules of the agency control unless otherwise specifically stated in these rules. This subsection does not apply if the rules of the agency for which a hearing is being conducted are contrary to or are otherwise precluded by statutory or other controlling law, including Texas Civil Statutes, Article 6252-13f. (c) The agency for which an administrative hearing is conducted, shall provide the administrative law judge with a written statement of applicable rules or policies, at the time the Office acquires jurisdiction under sec.155.7 of this title (relating to Jurisdiction). (d) The administrative law judge who conducts an administrative hearing shall consider any applicable agency rules or policies in conducting the hearing. sec.155.7. Jurisdiction. (a) A case shall be commenced in the agency with appropriate subject matter jurisdiction. (b) The Office acquires jurisdiction over a case when an agency files either a request for setting of hearing form or request for assignment of administrative law judge form. (c) A request for hearing or for assignment of administrative law judge shall be considered filed on the date the request form is received by the Office. sec.155.9. Request for Setting of Hearing or Assignment of Administrative Law Judge. (a) An agency shall submit to the Office one of the following forms accompanied by copies of all pertinent documents (including, but not limited to, the complaint, petition, application, or other document describing agency action giving rise to a contested case, and the statement required by sec.155.5(c) of this title (relating to General)): (1) request for setting of hearing; or (2) request for assignment of administrative law judge. (b) If an agency requests a setting for hearing, the Office will provide the agency with the date, time, and place of such setting. (c) If any agency requests an assignment of an administrative law judge, the Office will assign a judge to consider motions and other prehearing matters. (d) After a case has been set for hearing pursuant to a request for setting of hearing or has been assigned a judge pursuant to a request for assignment of administrative law judge, any party may move for appropriate relief, including, but not limited to, discovery and evidentiary rulings, continuances, and settings. (e) The Office may refuse to accept for filing any request that does not substantially conform to the filing procedures of this section. sec.155.15. Powers and Duties of Judges. (a) The judge shall have the authority and duty to: (1) conduct a full, fair, and impartial hearing; (2) take action to avoid unnecessary delay in the disposition of the proceeding; and (3) maintain order. (b) The judge shall have the power to regulate the course of the hearing and conduct the parties and authorized representative, including the power to: (1) administer oaths; (2) take testimony; (3) rule on questions of evidence; (4) rule on discovery issues; (5) issue orders relating to hearing and prehearing matters, including orders imposing sanctions that the agency that the contested case is before may impose; (6) admit or deny party status; (7) limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations; (8) grant a continuance; (9) request parties to submit legal memoranda, proposed findings of fact and conclusions of law; and (10) issue proposals for decision pursuant to APTRA, sec.15. sec.155.17. Recusal and Disqualification of Judges. A judge shall disqualify himself or herself or shall recuse himself or herself if on the same grounds and under the same circumstances as specified in Rule 18b of the Texas Rules of Civil Procedure. sec.155.21. Appearance of Parties at Hearings; Representation. (a) An individual may represent himself or herself. (b) A party may be represented by an attorney authorized to practice law in the State of Texas or other representative when authorized by law. (c) A party's representative shall enter his or her appearance with the Office. (d) A party's representative of record shall be copied on all notices, pleadings, and other correspondence. (e) A party's attorney of record remains the attorney of record in the absence of a formal withdrawal and an order approving such withdrawal is issued by an administrative law judge. sec.155.29. Settlement Conferences. (a) Upon request of any party and approval by the judge, or in the judge's discretion, a conference may be held to address settlement possibilities. (b) Settlement discussions shall not be made a part of the case record. (c) This section is not in derogation of the agency's and party's (or parties') ability to settle cases independently of the Office. sec.155.31. Stipulations. (a) The parties, by stipulation, may agree to any substantive or procedural matter. (b) A stipulation may be filed in writing or entered on the record at the hearing. (c) The judge may require additional development of stipulated matters. sec.155.35. Dismissal for Lack of Prosecution. An action is subject to dismissal from the office's docket or a recommendation for dismissal from the office's docket for lack of prosecution. sec.155.41. Order or Proceedings. (a) A case shall be called to order by the judge. (b) The judge shall explain briefly the purpose and nature of the hearing. (c) The judge may allow the parties to present preliminary matters. (d) The judge shall state the order of presentation of evidence. (e) Witnesses shall be sworn or put under affirmation to tell the truth. sec.155.43. Waivers. (a) Waiver of Right to Appear at Hearing. (1) A party may waive the right to appear at the hearing unless prohibited by law. (2) A waiver shall be in writing and filed with the Office. (3) A waiver may be withdrawn by a party on written notice received by the Office no later than seven days before the scheduled hearing. The judge may permit withdrawal of a waiver subsequent to that time on a showing of good cause or in the interest of justice. (4) When a waiver is permitted by law, failure of a party to appear personally or by representation after filing written notice of waiver, may not result in a finding of default. (b) waiver of hearing. A hearing before the judge is not necessary if all parties agree to the admission of the evidence and waive their right to appear. sec.155.45. Evidence. (a) General. Evidence shall be admitted in accordance with APTRA. (b) Exclusion of witnesses. (1) Upon request by any party, the judge shall exclude witnesses other than parties from the hearing room, except when testifying. (2) The judge may order the witness, parties, attorneys, and all other persons present in the hearing room not to disclose to any witness excluded under this section the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness' absence. (3) A party that is not a natural person may designate an individual to remain in the hearing room, even though the individual may be a witness. (c) Prefiled testimony. Prefiled written testimony may be received pursuant to, and in accordance with, the agency's statute and rules. (d) Official notice. The judge may take official notice of a fact that is noticeable in accordance with APTRA. (e) The judge may limit testimony or any evidence which is irrelevant, immaterial, or unduly repetitious. sec.155.47. Failure to Attend Hearing and Default. If, after receiving notice of a hearing, a party fails to attend a hearing, the judge may proceed in that party's absence and, where appropriate, may issue a proposal for decision against the defaulting party. sec.155.51. Proposal for Decision. (a) A judge shall prepare a proposal for decision which shall contain: (1) findings of fact and conclusions of law, separately stated; and (2) if appropriate, a proposed order. (b) The judge may amend the proposal for decision pursuant to exceptions, briefs and replies to exceptions and briefs without the proposal for decision again being served on the parties. (c) The judge shall submit the proposal for decision to the final decision maker with a copy to each party. sec.155.53. Service. Unless otherwise required by law, service of the following documents shall be made by personal delivery to the party or to the partys representative by certified mail, return receipt requested, hand delivery, or via facsimile to the party's address of record: (1) notices of hearing; (2) default orders; (3) prehearing orders; and (4) proposal for decisions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1992. TRD-9212454 Steven L. Martin Chief Administrative Law Judge State Office of Administrative Hearings Effective date: October 5, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 475-4993 1 TAC sec.sec.155.22, 155.23, 155.25, 155.33, 155.37 The State Office of Administrative Hearings adopts new sec.sec.155.22, 155.23, 155.25, 155.33, and 155.37, concerning rules of procedures without changes to the proposed text as published in the April 11, 1992, issue of the Texas Register (17 TexReg 5611). The new sections are adopted for the purpose of establishing rules of practice and procedure for contested cases conducted by the State Office of Administrative Hearings. The adopted sections will help provide uniformity of practice and clearer understanding on the part of the public of the procedural requirements to be followed in contested cases conducted by the State Office of Administrative Hearings. The only comments received were those filed by the Texas State Board of Public Accountancy relating to sec.155.25 (prehearing conferences). Those comments suggest that changes be made to the proposed rule to reflect the following: the parties in a case may discuss settlement among themselves without obtaining permission from the ALJ; the authority to issue subpoenas to compel the attendance of witnesses and the production of documents should be left with the agency that the contested case is before; prehearing conferences should be recorded if such is requested; and the filing of prehearing statements should be at the agency's option rather than at the ALJ's directive. The proposed rules which address these subjects have been modified to address the first three suggested changes (see sec.sec.155.23, 155.29, and 155.31). Section 155.25 has not been changed. The State Office of Administrative Hearings does not agree with the last comment for the following reasons. The board reasons that allowing the ALJ to require prehearing statements may increase the agency's preparation time and responsibilities, and result in delays and a lack of effectiveness; therefore, such statements should only be filed at the agency's option. The State Office of Administrative Hearings disagrees because: the rule does not require the filing of prehearing statements in all cases, it simply authorizes the ALJ to require such statements if and when warranted by the circumstances in the case; and if required, prehearing statements may expedite rather than delay proceedings, and provide for a more orderly process by the early identification (where possible) of both fact and legal issues in dispute and those matters over which there is no controversy. The new sections are adopted under Texas Civil Statutes, Article 6252-13f, which provide the State Office of Administrative Hearings with the authority to conduct contested cases for all agencies which do not have a person whose only duty is to preside as a hearings officer over matters related to contested cases before the agency and Texas Civil Statutes, Article 6252-13, sec.4 which require agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 5, 1992. TRD-9212452 Steven L. Martin Chief Administrative Law Judge State Office of Administrative Hearings Effective date: October 5, 1992 Proposal publication date: August 11, 1992 For further information, please call: (512) 475-4993 Chapter 157. Temporary Administrative Law Judges 1 TAC sec.157.1 The State Office of Administrative Hearings adopts new sec.157.1, concerning required qualifications for temporary administrative law judges and the selection process for such judges, without changes to the proposed text as published in the April 10, 1992, issue of the Texas Register (17 TexReg 2565). The section is adopted to establish the required qualifications for temporary administrative law judges and the selection process for such judges. This section will help ensure that qualified and experienced temporary administrative law judges are contracted with to conduct contested cases on behalf of the State Office of Administrative Hearings when employed judges are not available. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6252-13f, sec.3(c), which provides the State Office of Administrative Hearings with the authority to contract with qualified individuals to serve as temporary administrative law judges and to adopt rules relating to the qualification requirements for such judges. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1992. TRD-9212453 Steven L. Martin Chief Administrative Law Judge State Office of Administrative Hearings Effective date: October 5, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 475-4993 TITLE 4. AGRICULTURE Part II. Texas Animal Health Commission Chapter 35. Brucellosis Subchapter A. Eradication of Brucellosis in Cattle 4 TAC sec.35.4 The Texas Animal Health Commission adopts an amendment to sec.35.4, without changes to the proposed text as published in the July 3, 1992, issue of the Texas Register (17 TexReg 4723). The amendment is necessary to lessen the restrictions for cattle entering the state from Class "A" states or areas. An owner of test-eligible cattle entering Texas from a Class "A" state or area will no longer be required to have an "E" permit accompany the cattle. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 163, which provides the commission with the authority to adopt rules and sets forth the duties of this commission to control disease. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 11, 1992. TRD-9212429 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: October 9, 1992 Proposal publication date: July 3, 1992 For further information, please call: (512) 479-6697 Chapter 51. Interstate Shows and Fairs 4 TAC sec.51.2 The Texas Animal Health Commission adopts an amendment to sec.51.2, concerning general requirements, without changes to the proposed text as published in the July 3, 1992, issue of the Texas Register (17 TexReg 4723). The amendment is necessary to require horses entering a paramutuel track must have a negative EIA test within the past 12 months and a certificate of veterinary inspection. Before a race horse can be entered in a paramutuel track, it must have a negative EIA test within the past 12 rather than six months prior to entering the track. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the commission with the authority to adopt rules and sets forth the duties of this commission to control disease. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 11, 1992. TRD-9212430 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: October 9, 1992 Proposal publication date: July 3, 1992 For further information, please call: (512) 479-6697 Chapter 55. Swine 4 TAC sec.55.6 The Texas Animal Health Commission adopts an amendment to sec.55.6, concerning entry requirements, without changes to the proposed text as published in the July 3, 1992, issue of the Texas Register (17 TexReg 4723). The amendment is necessary to provide the herd owners with more freedom for entering Texas with swine from other states; and it is necessary to place an additional post-entry test on swine brought in to be fed for show purposes. Nonvaccinated swine from vaccinated herds are allowed to enter the sate provided they are tested negative prior to entry and meet other entry requirements; a 30-day post entry pseudorabies test for feeder swine imported for the stated purpose of later showing in shows, fairs, and exhibitions is required; breeding swine are allowed to enter Texas from a validated brucellosis free state without a brucellosis test. Breeding swine are required to be vaccinated within the previous 30 days with leptospirosis vaccine containing the following strains: Bratislava, Canicola, Hardjo, Icterohaemorrhagiae, Grippotyphosa and Pomona. An entry permit for swine consigned direct to slaughter and from a premise of origin to a specifically approved market is no longer required. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 165, which provides the commission with the authority to adopt rules and sets forth the duties of this commission to control disease. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 11, 1992. TRD-9212431 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: October 9, 1992 Proposal publication date: July 3, 1992 For further information, please call: (512) 479-6697 Part IV. State Entomologist Chapter 71. Bees General Provisions 4 TAC sec.71.7 The State Entomologist adopts new sec.71.7, concerning bees, without changes to the proposed text as published in the June 26, 1992, issue of the Texas Register (17 TexReg 4595). The European Honey Certification Program provides a means to document the genetic stock of these preferred bees and avoid the potential shipment and reduce the spread of genes for Africanized Bees. The certification program is a new model in the United States to enhance bee genetics. Beekeepers and queenbreeders may voluntarily request certification from the Texas Apiary Inspection Service at Texas A&M Samples will be collected and analyzed in the laboratory. Users will pay for the costs and services associated with the program. Certificates are issued, enabling migratory bees to operate and queenbreeders to sell. Honey Bee organizations and firms felt that an organized voluntary program would benefit the industry. The European Honey Bee Certification Program would document genetic stocks and provide a basis for shipping bees across county and state lines without endangering the health of the industry. The names of groups and associations making comments for the section are as follows: Texas Beekeeper Association; Weaver Apiaries; Texas Farm Bureau. The agency agrees with the supportive comments and did not receive or know of any concerns against implementing the certification program. The new section is adopted under the Texas Agriculture Code, Chapter 103, sec.103.021, which provides the Chief Apiary Inspector with the authority to adopt rules and act as necessary to control, eradicate, or prevent the introduction, spread, or dissemination of contageous diseases of bees. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 8, 1992. TRD-9212304 Dudley T. Smith Associate Director Texas Agriculture Experiment Station Effective date: October 1, 1992 Proposal publication date: June 26, 1992 For further information, please call: (512) 845-4757 TITLE 7. BANKING AND SECURITIES Part II. Banking Department of Texas Chapter 15. Orders of the Commissioner Supervision and Conservatorship 7 TAC sec.15.3 The Banking Department, under the authority of the Finance Commission of Texas, adopts an amendment to sec.15.3, concerning procedures for imposition of supervision and conservatorship on state banks and trust companies, without changes to the proposed text as published in the June 19, 1992, issue of the Texas Register (17 TexReg 4413). The Texas Banking Code, Article 342-103 was amended in 1989 to reorganize the Finance Commission and eliminate the Banking Section of the Finance Commission. All duties of the former Banking Section of the Finance Commission were assumed by the full Finance Commission. Several regulations retained a reference to the Banking Section of the Finance Commission which no longer exists. This amended regulation deletes reference to the Banking Section and substitutes reference to the Finance Commission. Appeals from an order of supervision or conservatorship will be heard on an expedited basis by the Finance Commission, which may stay effectiveness of the order during the pendency of the appeal. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Banking Code, Article 342-801a, which provides for appeal of orders of supervision or conservatorship to the Finance Commission and authorizes the Finance Commission to promulgate necessary implementing regulations. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 10, 1992. TRD-9212337 Ann Graham General Counsel Texas Department of Banking Effective date: October 1, 1992 Proposal publication date: June 19, 1992 For further information, please call: (512) 475-1300 Cease and Desist 7 TAC sec.sec.15.11-15.13 The Banking Department, under the authority of the Finance Commission of Texas, adopts sec.15.11, concerning procedures for the effective date and appeal of the issuance of cease and desist orders, without changes to the proposed text as published in the June 19, 1992, issue of the Texas Register (17 TexReg 4413). The Texas Banking Code, Article 342-103 was amended in 1989 to reorganize the Finance Commission and eliminate the Banking Section of the Finance Commission. All duties of the former Banking Section of the Finance Commission were assumed by the full Finance Commission. Several regulations retained a reference to the Banking Section of the Finance Commission which no longer exists. This amended regulation deletes reference to the Banking Section and substitutes reference to the Finance Commission. In addition, for clarity's sake, language has been added to the regulation to track the statutory language concerning when a cease and desist order becomes effective. Also in the interest of clarity rather than change, language and cross-reference to another regulation have been added relating to the effect of failure to file an application for review within 30 days of the cease and desist order. The regulation, which is part of the body of regulations adopted by the Finance Commission to govern administrative hearings, restates the statutory grounds for making a cease and desist order effective immediately and states that otherwise the order is effective at least 10 days after delivery or mailing. Cease and desist orders are appealable to the Finance Commission. Failure to file notice of appeal within 10 days and application for review within 30 days forfeits the right to appeal. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Banking Code, Article 342-412, which provides for the imposition, effectiveness, and appeal of cease and desist orders and authorizes the Finance Commission to adopt such rules or procedure as may be necessary to govern the fair hearing and adjudication of the questions appealed. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 10, 1992. TRD-9212336 Ann Graham General Counsel Texas Department of Banking Effective date: October 1, 1992 Proposal publication date: June 19, 1992 For further information, please call: (512) 475-1300 TITLE 10. COMMUNITY DEVELOPMENT Part V. Texas Department of Commerce Chapter 176. Enterprise Zone Program 10 TAC sec.176.8 The Texas Department of Commerce adopts an amendment to sec.176.8, concerning the Texas Enterprise Zone Program, without changes to the proposed text as published in the July 10, 1992, issue of the Texas Register (17 TexReg 4923). The amendment represents a nonsubstantive change governing the application deadline of enterprise zone project applications. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 5190.7, sec.8(a)(4), which provides the Texas Department of Commerce with the authority to promulgate rules to administer the Enterprise Zone Program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1992. TRD-9212472 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: October 5, 1992 Proposal publication date: July 10, 1992 For further information, please call: (512) 320-9401 Chapter 184. Work Force Development Incentive Program 10 TAC sec.sec.184.101-184.104 The Texas Department of Commerce adopts amendments to sec. sec.184.101- 184.104, concerning the Work Force Development Incentive Program. Section 184.101 and sec.184.103 are adopted with changes to the proposed text as published in the July 24, 1992, issue of the Texas Register (17 TexReg 5179). Section 184.102 and sec.184.104 are adopted without changes and will not be republished. The sections are being adopted in order to eliminate the first come, first serve nature of the program in an attempt to enhance varied industry participation and cover a broader geographic area of the state. The new sections will allow the agency to ensure that the entire state is represented by participation in the Work Force Development Incentive Program. No oral or written comments were received during the 30-day comment period. However, Commerce staff initiated a meeting with representatives of colleges across the state that serve as providers to the Work Force Incentive Program (WFIP). Several recommendations were offered and accepted at this meeting. These changes include: the word "only" was deleted from the last line of sec.184.101(b) to indicate that other economic development groups or training institutions could refer to the program and promote it; regarding the quarterly report and final report, "average" was changed to "actual" wage to require that the actual wage of the training participants be reported; and, "gender" was added as a class in sec.184.103(j). Comments were submitted to the department after the 30-day comment period, but the proposed changes were not incorporated into the rules. These criticisms were made by representatives of Austin Community College and Southwest Texas State University, providers under the program. First, these providers believe that the prior rules contained a guarantee to businesses that they could participate in the program for a period of three years. The prior language provided that "a new industry or expanding business firm may participate in the program for a period not to exceed three state fiscal years. " The new language provides simply, "contracts are to be awarded on an annual basis." The providers want to grandfather in those companies that are in their first or second year of the program. The department responds that there is no statutory or contractual obligation to award a contract to any company for more than one year. The contracts awarded under this program have always been renewed on an annual basis and this seems to be the best way to ensure varied participation. Secondly, the commenters contend that the attempt to cover a broader geographic area of the state will work to deny funds to those industries that are going to hire and train the most unemployed Texans. The attempt to cover a broader geographic section of the state constitutes a primary reason for the rule changes. For this reason, the department rejected this contention. The statute that created this program states the purpose of the program is to "enhance employment opportunities to meet the needs of existing and new industries in this state." The department contends it is reasonable to infer that the Legislature intended the entire state to benefit from this program. For that reason, the department makes no changes to the provision as originally adopted. Thirdly, these providers suggested that the agency use a point system to select applicants. A point system was initially viewed by the agency as the best way to ensure a proper representative of participants in the program. However, the department legal division determined that in order to have a legally sound point system there must be clear statutory authority to use specific, mandatory criteria. Their fourth contention is that the new rules impose increased governmental monitoring and reporting. The department disagreed with such a conclusion. Lastly, they complain about the stated preference in the rules to award contracts to companies that hire Texas residents receiving financial or other aid. This mandatory preference was established by the legislature in the enabling legislation and the department is, therefore, not authorized to alter this provision. No other written comments were received during the comment period. The amendment and new sections are adopted under the Texas Government Code, sec.481.021(a)(1), which provides the Texas Department of Commerce with the authority to promulgate rules concerning the administration of the Work Force Development Incentive Program. sec.184.101. General Provisions. (a) Introduction. The development and expansion of business, commerce, and industry are essential to the economic growth of the state and to the full employment, welfare, and prosperity of its citizens. Pursuant to the authority granted by the Government Code, sec.481.076, the Texas Department of Commerce prescribes the following sections regarding practice and procedure before the Department in the administration and implementation of the Work Force Development Incentive Program. (b) Purpose. It is the purpose of the Work Force Development Incentive Program to stimulate job creation by providing worker training for newly locating businesses and to encourage existing industries to expand by creating new jobs. These objectives are to be accomplished through training for new jobs as well as skill upgrade training in an effort to retain existing jobs. All promotional activity for the program shall be done by the Department. (c) (No change.) (d) Waivers. The executive director may, in his/her discretion, waive any requirement in situations where, in his/her opinion, such requirement is not necessary for the protection of the public interest. (e) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(3) (No change.) (4) executive director-The executive director of the Department or his or her designee. (5) Eligible business-The following business entities are eligible for participation in the program: (A) a business firm that produces a product by changing tangible objects from one form into another; (B) businesses with occupational demand jobs that require skill upgrade training; and, (C) Service industries that perform any of the business functions auxiliary to production or distribution and whose product generally is intangible. (6)-(7) (No change.) (8) Application-A completed application including information required by the department for a project. (9) Staff-The staff of the department. (10) New job-A new employment position created by a business that provides employment to an employee. (f) Selection of contractor. The selection of contractors is made according to the following criteria: (1) The department contracts with existing educational facilities of the public school districts, technical institutes, public junior colleges, and public universities to provide employee training for the industry. (2) Programs shall be short-term, industry-specific, skill and task-oriented, and shall not compete with regular, available vocational-technical education programs. (3) The contractor is selected by the department, based on the contractor's proximity to the industry and ability to perform the instruction. (g) Contracting procedures. The following standards apply to contracting procedures. (1) The department, contractor, and industry develop a skill training program consistent with these rules. (2) A training program must contain at least 10 trainees. (3) Wherever feasible, preference must be given, in descending order of priority, to hiring Texas residents receiving financial or other aid through a state or federal assistance program such as, but not limited to, aid to families with dependent children, food stamps and unemployment compensation; unemployed Texas residents; and all other Texas residents. (4) After consultation with the Central Education Agency, the department may conduct preemployment and developmental training if there is firm commitment to hire on the part of the industry. Since training is tailored to the needs of a specific industry, trainees in excess of the number of available jobs are ineligible for the program. Failure to meet the hiring commitment may result in repayment of training costs to the department by the industry. (5) Contractor may use the industry's employees and private consultants as instructors if the services to be rendered cannot be provided by contractor's employees. (6) Program funds may be expended for training only within the state. (7) Contractor must submit the initial contract proposal to the department a minimum of 30 days prior to the desired starting date to allow sufficient time for review. (8) A report of expenditures and projected expenditures must be submitted to the department for contracts implemented within the first, second, and/or third quarter of the program year for the purpose of deobligation and reobligation of funds which will be negotiated between the contractor and the department. (h) Program funds. Expenditures are governed by the following standards: (1) Instructor wages for contractor's employees are reimbursed at a rate not to exceed $20 per hour of instruction. (2) Travel per diem for contractor instructor is reimbursed at the State of Texas allowable rate. (3) Industry employees and private consultants are reimbursed by contractor for instruction at a rate not to exceed $20 per hour of instruction. (4) Contractor is reimbursed for consumable instructional supplies required during instruction by contractor's employees. (5) Program funds may not be used to purchase permanent equipment or supplies with a durable life of more than 12 months. (6) Program funds may not be used to reimburse contractor or eligible business for lease or rental of facilities. (7) Contractor may be reimbursed for miscellaneous other items directly related to employee training. (8) Total contract reimbursement will not exceed $1,000 per worker trained. (9) Contracts may be approved for any period within the state fiscal year. (10) Reimbursement is not allowed for expenditures made prior to the date the contract is executed by the department. (11) Funds provided for a training project in excess of $250,000 must be matched by funds provided by the industry benefiting from the project in an amount at least equal to twice the amount provided by the Department. (12) Forty percent of the funds are reserved for work force training projects to assist existing businesses. (i) Reimbursement procedures. Procedures for reimbursement are as follows. (1) Contractor shall submit a quarterly report of contract expenditures. Dates for submission, as applicable, are December 10, March 10, and June 10. If the submission dates fall on a Saturday, Sunday, or holiday then the report shall be submitted on the next business day. (2) Final expenditures and closeouts shall be submitted within 60 days after the close of the fiscal year, August 31. (3) Requests for reimbursement shall be submitted on State of Texas purchase vouchers. (4) A report of project expenditures shall be submitted with the purchase voucher. (5) The contract between the department and the contractor shall be null and void if it is not implemented within 90 days after the commencement date of the contract. (j) Monitoring and program evaluation. Monitoring of the program is governed by the following standards. (1) The department shall monitor the performance of the contractor to assure that all performance goals are being achieved. (2) Contractor shall submit a quarterly narrative report, summarizing the progress of the training program to date. Dates for submission, as applicable, are December 10, March 10, and June 10. (3) Contractor shall submit at the end of the training program a final performance report. (4) The final report shall include the name, social security number, courses taken, and hours of instruction for each employee trained, and a comparison of the accomplishments to goals. (5) Contractor shall submit information indicating which of the three categories specified in subsection (g)(3) of this section that each trainee falls. (6) The quarterly report and final report shall include the actual wage at placement for each trainee. (7) The department conducts assessments through formal interviews with business personnel. (8) The department prepares final evaluation and follow-up reports to include information on costs, unit costs, and personnel trained. sec.184.103. Criteria for Selection of Eligible Business. (a) Business firms that require training for at least 10 new employees in new job positions not previously available or offered by the business are eligible for participation in the program. (b) Contracts are to be awarded on an annual basis with the year corresponding to the state fiscal year unless otherwise determined by the executive director. (c) United States military bases with manufacturing projects are eligible for the program. (d) An eligible business that wishes to participate in the program must submit a written request to the department, stating the nature of the project, the number of employees to be trained, the time period in which the training will take place, and whether the training is for new employees or the skill upgrade training of existing employees. (e) To qualify as a business expansion the eligible business must create new jobs as a result of the acquisition of additional equipment, expansion of facilities, or expansion or addition of a product line. (f) The program may be used in conjunction with a broad-based, public and private sector funded effort which may encompass one or more employers for statewide projects to prevent industry closing and subsequent loss of jobs. (g) The department shall give preference to eligible businesses that create training programs for the following categories of individuals: (1) Texas residents receiving financial or other aid through a state or federal assistance program such as, but not limited to aid to families with dependent children, food stamps, and unemployment compensation; (2) unemployed Texas residents; and (3) all other Texas residents. (h) The department may consider the following factors in granting applications: (1) the number of new jobs created by the business; (2) the salary range of the newly created jobs, as long as this factor does not conflict with the mandatory preference for training recipients of state or federal aid; (3) the geographic location of the business in an attempt to have the entire state represented in the program; (4) the business' participation in other department programs intended to encourage job creation and induce capital investment such as the Texas Enterprise Zone Program; (5) the capital investment made by the business; (6) the business' ability to match a portion of the project training funds; (7) the business' participation in other programs such as incubator projects conducted through state sponsored entities. (i) The department will not discriminate against any contractor or eligible business based on factors such as gender, race, creed, nationality or religious affiliation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 11, 1992. TRD-9212406 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: October 2, 1992 Proposal publication date: July 24, 1992 For further information, please call: (512) 320-9401 Chapter 197. Private Donations 10 TAC sec.sec.197.1-197.7 The Texas Department of Commerce adopts new sections sec. sec.197.1-197.7, concerning the acceptance of private donations, without changes to the proposed text as published in the July 31, 1992, issue of the Texas Register (17 TexReg 5315). The new sections establish guidelines and procedures for the acceptance of donations by the Texas Department of Commerce. The agency will accept only these donations that advance the purpose of the agency in an effort to enhance the agency's success in stimulating economic development. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Government Code, sec.481.021(a) (3), which provides the Texas Department of Commerce with the authority to accept gifts; Texas Civil Statutes, Article 6252-11f, which require state agencies with statutory authority to accept donations to develop a policy governing the acceptance of such donations; and sec.481.021 which delegates general rulemaking authority to the agency. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 11, 1992. TRD-9212407 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: October 2, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 320-9401 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 5. Property and Casualty Insurance Subchapter A. Automobile Insurance Miscellaneous Interpretations 28 TAC sec.5.205 The State Board of Insurance of the Texas Department of Insurance adopts new sec.5.205, concerning the Automobile Theft Prevention Authority pass-through fee, with changes to the proposed text as published in the July 21, 1992, issue of the Texas Register (17 TexReg 5058). The new section is needed to authorize insurers to recoup from policyholders the $1.00 fee per motor vehicle year required to be paid by insurers to the Automobile Theft Prevention Authority pursuant to Texas Civil Statutes, Article 4413(37), sec.10, and to provide for consumer-oriented and uniform notice to policyholders who will be paying this fee to the insurers. The changes made to the proposed new section as published include providing insurers with an alternative notice explaining the Automobile Theft Prevention Authority pass- through fee which is to be included as a part of the policy and clarification of the types of policies that are not subject to assessment or recoupment. Section 5.205(a) authorizes insurers to recoup from policyholders the $1.00 fee per motor vehicle year required to be paid by insurers to the Automobile Theft Prevention Authority under Texas Civil Statutes, Article 4413(37), sec.10. Section 5.205(b), originally published with one policyholder fee notice format and text, provides insurers with two alternatives for the format, location, and text of the policyholder fee notice. Section 5.205(c) specifies the type of policies to be assessed the $1.00 fee and the basis on which the fee will be assessed. Section 5.205(d) exempts certain types of motor vehicle policies from fee assessment and recoupment. Written comments in opposition to the proposed new section were received from one member of the general public. Comments on the proposed new section with recommendations for changes were received from Liberty Mutual, Crum & Forster Commercial Insurance, State Farm Insurance Companies, Texas Farmers Companies, Texas Farm Bureau, and the Office of Public Insurance Counsel. No comments were received in favor of the proposed section as published. One commenter objected to the proposed section because the commenter did not think that insurers should be authorized to recoup the fee and that the fee cost should be borne by the insurance companies. The department believes that the proposed rule is consistent with the intent of the 72nd Texas Legislature when the enacting statute (Texas Civil Statutes, Article 4413(37)) was adopted. Several commenters objected to the requirement that the notice be attached to, stamped, or printed on an already crowded declarations page. These commenters indicated that it would be easier and less costly if the notice were not required to be on or attached to the declarations page. The department agrees, and in addition to the notice required in the section as published, the adopted section provides an alternative notice format, location, and text which does not have to be printed on or attached to the declarations page. One commenter suggested clarification that the fee amount is not considered premium. The department believes that the section should address only the authorization of insurers to recoup the assessment and the manner of policyholder notice of the pass-through fee. Issues relating to treatment and reporting of the fee will be addressed by the agency's Tax Division in the filing instructions for the fee assessment. Another commenter recommended clarification of the insurer's ability to recoup the fee from garage liability policies with vehicles specified if the insurer is required to pay the assessment on these policies. The commenter suggested amending subsection (d) as published to require an exception that specified vehicles may be assessed. The department believes the published rule clearly exempts from the assessment garage liability policies. The department disagrees with the recommendation that specified vehicles be assessed and believes excluding all garage liability policies is the most efficient and least burdensome means of implementing this rule. One commenter suggested deleting the statutory reference in the notice as published because a less technical explanation would be more helpful to insureds; the commenter also proposed alternative text for the notice. The department disagrees and believes that the information contained in the notice as published is necessary to fully inform policyholders. One commenter urged that subsection (d) as published be changed to specifically state that not only can an insurer not assess the fee on the specified policies but that an insurer cannot assess or recoup the fee on any motor vehicle policy not providing primary liability coverage. The department agrees and subsection (d) as adopted has been revised accordingly. The new section is proposed under Texas Civil Statutes, Article 4413(37), sec.10; the Insurance Code, Article 1.10, sec.1; Article 5.06, sec.(1); Article 5. 98; Article 5.101, sec.3; Article 1.04, sec.(b); and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. Texas Civil Statutes, Article 4413(37), sec.10, require insurers to pay to the Automobile Theft Prevention Authority a fee equal to $1.00 multiplied by the total number of motor vehicle years of insurance for insurance policies delivered, issued for delivery, or renewed by the insurer during the preceding calendar year. The Insurance Code, Article 1. 10, sec.1, requires the board to see that all laws respecting insurance and insurance companies are faithfully executed. Article 5.06, sec.(1), authorizes the board to adopt a policy form and endorsements for each type of motor vehicle insurance. Article 5.101, sec.3, authorizes the board to promulgate a benchmark rate and a flexibility band for motor vehicle insurance and authorizes the board, in promulgating the benchmark rate and the flexibility band, to give due consideration to expenses of operation other than statutorily specified disallowed expenses and to any other factor considered appropriate by the board. Article 5.98 authorizes the board to adopt reasonable rules appropriate to accomplish the purposes of Chapter 5 (Rating and Policy Forms). Article 1.04, sec.(b), authorizes the board to determine rules in accordance with the laws of this state. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5 authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and to prescribe the procedures for adoption of rules by a state administrative agency. sec.5.205. Automobile Theft Prevention Authority Pass-Through Fee. (a) Texas Civil Statutes, Article 4413(37), sec.10, require each insurer to pay a fee of $1.00 per motor vehicle year to the Automobile Theft Prevention Authority. Each insurer is authorized to recoup this fee from the policyholder. (b) Any insurer recouping the fee from the policyholder as authorized by subsection (a) of this section must include on or with each motor vehicle insurance policy providing primary liability coverage delivered, issued for delivery, or renewed in this state on or after October 1, 1992, including those policies issued through the Texas Automobile Insurance Plan, a notice conforming with either paragraph (1) or paragraph (2) of this subsection. (1) This notice shall be in no less than 10-point type and shall be attached to or stamped or printed on the declarations page and shall become part of the policy. The notice shall read as follows. [graphic] (2) This notice shall be in no less than 10-point type and shall be included as a part of the policy. The notice shall read as follows. [graphic] If this notice is provided, the following shall be printed on the declarations page, renewal certificate, or billing. [graphic] (c) All automobile policies providing primary liability coverages shall be assessed the $1.00 fee per motor vehicle year except for those policies specifically excepted in subsection (d) of this section. For purposes of this section, the term "motor vehicle year" shall mean one motor vehicle insured for one year. (d) The fee shall not be assessed or recouped on garage liability policies, non-resident policies, policies providing only non-ownership or hired auto coverages, and any motor vehicle insurance policy not providing primary liability coverage. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1992. TRD-9212462 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: October 5, 1992 Proposal publication date: July 21, 1992 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 8. Gas Marketing Program 31 TAC sec.sec.8.1-8.10 The General Land Office (GLO) adopts new sec.sec.8.1-8.10, concerning the Gas Marketing Program. Sections 8.4, 8.7, 8.9, and 8.10 are adopted with changes to the proposed text as published in the April 10, 1992, issue of the Texas Register (17 TexReg 2535). Sections 8.1-8.3, 8.5-8.6, and 8.8 are adopted without changes and will not be republished. Section 8.4(1) is amended to reflect the costs to be considered in determining whether state gas should be purchased and sold. Section 8.7 is amended to provide clarification for requesting waivers for contracts for the acquisition of non-state gas. Section 8.9 is amended to give further guidance for agencies submitting requests for proposals. Section 8.10 is amended in response to a comment that each agency receive information on the savings achieved and reported to the comptroller each month. Chapter 8 implements the Gas Marketing Program in compliance with the Act of July 30, 1991, 72nd Legislature, First Called Session, Chapter 3, 1991 Texas Session Law Service 4, 71 (to be codified at Texas Natural Resource Code, sec.31.401 and sec.31.402), sometimes referred to as Senate Bill 2 (SB 2). It sets out guidelines and procedures for state agencies with proposed or existing contracts for the acquisition of natural gas with an annual average volume of 100 mcf per day or more. Concerning sec.8.4, Review Criteria, several commenters questioned why "100 mcf per day" is the threshold used to determine which gas contracts will be reviewed. The "100 mcf per day" threshold is established by the Texas Natural Resources Code, sec.31.401. Therefore, no change is adopted. This provision does not prohibit GLO from selling to agencies that use less than 100 mcf per day, when practical to do so. One commenter suggested sec.8.4, Review Criteria, take into account the long term implications of supply diversification and the costs of treating and processing of natural gas. Supply diversification is outside the scope of these regulations and remains the decision of the state facilities. Therefore, no change is adopted. The GLO recognizes that there are several costs to be considered in determining whether state gas can be provided and proposed sec.8.4(1) is amended to reflect more accurately some of these costs. One commenter suggested clarification of the term "the greatest extent practical" in sec.8.4(2). The rules require a purchasing agency use to "the greatest extent practical" resources produced from land owned by the agency to meet its energy requirements. The commenter opined that because some agencies have numerous oil and gas leases from which royalty gas may be obtained, this would require significant resources to monitor gas production on a continuous basis. The rules impose this responsibility on the GLO staff; therefore, state agencies purchasing state gas do not need to monitor gas production on a continuous basis. No change is adopted. Concerning sec.8.4(3), one commenter suggested that the final decision on "practicality" be mutually agreed on by the agency and GLO. Although the final decision as to whether it is practical to supply gas rests with GLO, this section does not preclude an agency from submitting data on its own behalf. Therefore, no change is adopted. One commenter suggested the "waiver authority" should be broad enough and explicit enough to allow GLO to assure that agencies are in compliance with SB 2 while allowing the agencies to continue their own aggressive gas supply procurement efforts which would include spot market purchases on a month-to- month basis. The GLO encourages agencies to continue their own gas supply procurement efforts to lower their utility costs. The language of sec.8. 7 does not detract from this goal. Two commenters addressed monthly "spot gas" supply contracts. With regard to this matter, GLO provides clarification to sec.8.7(a). This section has been changed so that a list of spot prices is required to be submitted for the immediate past six months. Additional price lists are required to be submitted during the beginning and middle of the fiscal year (September and February, respectively). Further clarification is provided by adding sec.8.7(b). No one commented on sec.8.9, Requests for Proposals; however, GLO has determined a change to sec.8.9(c) is necessary to provide clarity and efficiency in implementation of the rules. Regarding sec.8.10, Reporting Contract Savings, one commenter suggested that each agency be informed of the savings achieved and reported to the comptroller each month. The GLO agrees to report monthly savings to the respective agencies as well as to the Comptroller's Office. Hence, sec.8.10(b) is amended accordingly. Several commenters suggested that agencies be allowed to keep a percentage of the savings which result from the purchase of state-owned gas. This comment is beyond the scope of the subject regulations and the statutory authority granted by SB 2. Therefore, no change is hereby adopted. Related comments centered around supply reliability. Supply reliability is a priority of GLO. The GLO continues to encourage and negotiate for 100% state- owned gas usage whenever feasible and has been very successful in its efforts. Regarding curtailments, if a pipeline has capacity restraints due to high demand or due to operational problems, then all interruptible (or best efforts) gas shippers would be curtailed on a prorated basis. Customers with firm supplies or providing "human needs," have priority over customers with interruptible contracts. State gas and non-state gas are subject to curtailment on the same basis. Curtailment priorities are established under Texas Civil Statutes, Article 6053, and the regulations of the Texas Railroad Commission. Historically, GLO has provided its customers with the confidence of a reliable supply of gas. It is customary for GLO also to secure and arrange for back-up gas service for its customers and access to stored state-owned gas. Therefore, no change is adopted. One commenter stated that the regulations should address the confidentiality of gas supply information submitted to GLO to prevent competitive disadvantages. All executed contracts that govern the sale of state royalty gas are open records under the Open Records Act (Texas Civil Statutes, Article 6252-17a). However, to the extent permitted by law, it is not the intent of GLO to provide any requested contractual or supply information until after the contract(s) are fully executed and notification of the agency involved in the requested information. No change is adopted. One commenter was concerned with how and when GLO needs to be involved in gas contract negotiations since such negotiations are complex, difficult, lengthy, and involve numerous factors. How and when GLO is involved is determined somewhat by the purchasing agency. The GLO gets involved in negotiations primarily at the request of state agencies. Otherwise, GLO limits its participation to the requirement of the rules herein. Therefore, no change is adopted. No one who commented opposed adoption of the chapter. Those who commented objected to or requested changes to specific sections or subsections. The following gave comments: Department of Criminal Justice, the law firm of Potter, Guinn, Minton, Roberts & Davis, The Texas Department of Transportation, University of Texas at Arlington, and Texas A&M University at Galveston. The new sections are adopted under the Texas Natural Resources Code, sec.31. 402, which authorizes the commissioner to adopt rules and carry out the requirements of the Texas Natural Resources Code, Subchapter H, including rules regarding review and approval of natural gas acquisition contracts. sec.8.4. Review Criteria for All Contracts. The GLO will review all new and existing contracts entered into by a state agency for the acquisition of an average volume of 100 Mcf (or the MMBtu equivalent thereof) or more per day of natural gas, calculated on an annual basis, to ensure that the agency is using natural gas produced from state lands for the production of energy to the greatest extent practical. (1) The GLO will not approve a contract using non-state gas if it determines that it can provide gas at the same, or a lower price. (A) The cost of transporting state gas from the point of production to the agency's service address (or other mutually agreed point) shall be considered part of the cost of state gas. (B) The amortized cost of constructing a pipeline or installing other equipment in order to deliver state gas shall be part of the cost of gas. (C) Where applicable, the cost of dehydrating, compressing, processing, and/or treating shall be part of the cost state gas. (D) Any applicable filing fees payable to federal regulatory agencies shall be part of the cost of state gas. (2) The GLO will not approve a contract if it determines that the purchasing agency leases land for mineral development through a board for lease authorized by the Natural Resources Code, Chapters 34, 35, or 36, and such agency is not using, to the greatest extent practical, resources produced from land owned by the agency to meet its energy requirements. (3) The final decision regarding the practicality of using gas provided by GLO to meet the agency's energy requirements will be with GLO. sec.8.7. Waivers for Contracts for the Acquisition of Non-State Gas. (a) An agency requesting a waiver of approval for a contract for the purchase of non-state gas must make a written request to GLO for such waiver and provide the following information: (1) a letter from the agency requesting the waiver and stating the grounds justifying such waiver, including, without limitation, any ground for waiver set out in this chapter; (2) copies of the existing or proposed gas purchase agreement and any related transportation agreements; (3) in the case of a state agency desiring a contract to purchase natural gas on a month-to-month basis, a list of spot-prices for at least the immediate past six-month period; (4) additional price lists during September and February; and (5) any additional information required in the other sections of this chapter or other information requested by the GLO. (b) Waivers may be obtained any time during the fiscal year (September 1- August 31). Waivers shall be effective for a period of six months. However, a waiver obtained any time during the months of September-February automatically expires on the last day of February, and a waiver obtained any time during the months of March-August automatically expires on the last day of August. Waivers will not be extended. (c) Unless determined otherwise, GLO will grant approval upon written application of the agency under the following circumstances: (1) if GLO can provide state gas at the same or a lower price, but neither the agency nor GLO can arrange transportation at a price which, when added to the cost of state gas, is the same or less than the cost of gas and transportation under the proposed contract for non-state gas; or (2) if, in its sole determination, GLO does not have sufficient state gas available to meet the agency's needs. sec.8.9. Requests for Proposals. (a) Any state agency making a request for proposals for the supply and/or transportation of natural gas, shall submit such request in writing to GLO for review and approval prior to its release or publication. (b) All such requests for proposal must state: (1) that the proposal is subject to: (A) the Act of July 30, 1991, 72nd Legislature, First Called Session, Chapter 3, 1991 Texas Session Law Service 4, 71 (to be codified at Texas Natural Resources Code, sec.31.401 and sec.31.402); and (B) review by GLO prior to acceptance or rejection; and (C) GLO evaluation based upon GLO's then current pricing mechanism; (2) that if GLO finds, under the proposal, the agency will not be using natural gas produced from state lands to the greatest extent practical, then the resulting contract will be not be approved by GLO. (c) Any request for proposal that does not contain such provisions shall be deemed to contain such provisions. (d) No such proposal shall be effective until approved by GLO. sec.8.10. Reporting Contract Savings. (a) Each month, GLO will determine the savings achieved by calculating the difference between the price that would have been paid under the agency's previous non-state gas contract and the price paid under the state gas contract. (b) Each month, GLO will report all savings achieved to the comptroller and to the state agencies receiving state-owned gas. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1992. TRD-9212275 Garry Mauro Commissioner General Land Office Effective date: September 30, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 463-5019 Part II. Texas Parks and Wildlife Department Chapter 65. Wildlife Subchapter O. Late Season Migratory Game Bird Proclamation 31 TAC sec.sec.65.331-65.335 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held August 27, 1992, adopted amendments to sec.sec.65.331-65.335, concerning Late Season Migratory Game Bird Proclamation. Sections 65.333-65. 335 are adopted with changes to the proposed text as published in the June 12, 1992, issue of the Texas Register (17 TexReg 4233). Section 65.331 and sec.65.332, are adopted without changes and will not be republished. The proposed changes as adopted are based upon studies which track trends in the relative abundance of various waterfowl species and regulates the taking of migratory game birds consistent with their populations. Appropriate restrictions imposed on seasons and bag limits maintain viable populations of waterfowl for the future. The changes made to the proposed text are summarized as follows. Section 65.333(b)(1) adds seven days to the first portion of the duck season in the eastern part of the state and removes seven days from the second portion. Section 65.333(b)(2)(B) modifies the light goose season by opening the season seven days earlier east of U.S. Highway 81 and opens the dark geese/canada only goose season seven days earlier and closes both seven days earlier than proposed. Section 65.334(b)(1)(A) deletes the proposed bag limit for canvasback ducks. Section 65.334(b)(2)(B) increases the light goose bag limit from five to 10 per day. Section 65.335(b)(1)(B) modifies the extended falconry season length to conform with the changes made to regular season length for ducks. The rules as adopted provide optimum hunter opportunities without adverse hunting pressure being applied to the resource. The rules as adopted are based upon scientific studies and investigations and permit the taking of migratory game birds consistent with their populations. A total of 14 comments were received concerning the rules as proposed. Specifically, two of the comments opposed the increase in the goose bag limit; four requested that goose season open on October 31; four requested that snow goose season open early as possible; and two favored the daily snow goose bag limit of 10. Several persons made comments opposing the required use of steel shot to take waterfowl during the regulatory county public hearings relating to the Statewide Hunting and Fishing Proclamation. Freeport Beach Bait and Tackle, spoke at the commission's Regulations Committee meeting held August 26, 1992, requesting a 10-bird bag limit for geese, as this will bring in more out-of-state hunters. The commission adopted changes recommended by the public relating to opening the seasons for ducks and geese earlier and adopted the 10-bird daily bag limit for snow geese. The commission adopted no changes relative to a proposed bag limit for canvasback ducks. The canvasback duck season will remain closed due to federal ruling. The commission disagreed with several of the comments received because they were judged not to be compatible with management of the resource. Other comments such as those on steel shot are not a permitted alternative within the United States Fish and Wildlife Service's framework for Texas. The amendments are adopted under the Texas Parks and Wildlife Code, Chapter 64, Subchapter C, which provides the Texas Parks and Wildlife Commission with authority to regulate seasons, means, methods, and devices for taking and possessing migratory game bird wildlife resources. sec.65.333. Open Seasons. (a) (No change.) (b) The season is closed on migratory game birds on public roads and highways, or rights-of-way of public roads and highways; the state-owned riverbeds in Dimmit, Uvalde, and Zavala Counties, including, but not limited to, the Nueces and Frio Rivers; and state wildlife preserves and sanctuaries, unless an open season is otherwise provided. The open seasons for the taking of migratory game birds on any federal wildlife refuge shall be in accordance with the special hunting regulations duly adopted and published by the United States Fish and Wildlife Service. (1) Ducks, coots, and mergansers: open seasons. (A) High Plains Mallard Management Unit: November 21, 1992-January 10, 1993 from 1/2 hour before sunrise to sunset in that portion of Texas lying west of a line from the international toll bridge at Del Rio, thence northward following U.S. Highway 277 through San Angelo to Abilene, thence along State Highway 351 from Abilene to Albany and U.S. Highway 283 from Albany to Vernon, thence easterly along U.S. Highway 183 to the point of intersection with the Texas- Oklahoma state line in Wilbarger County. (B) Remainder of the state: November 14-November 29, 1992 and December 26, 1992-January 17, 1993, from 1/2 hour before sunrise to sunset. (C) Special provision: The season is closed on canvasbacks. (2) Geese. (A) West of U.S. Highway 81: October 17, 1992-January 31, 1993. (B) East of U.S. Highway 81: Light goose species (snow, blue, and Ross'), October 31, 1992-February 14, 1993. Dark goose species (Canada, black-brant and white-fronted) October 31, 1992-January 10, 1993. Canada Geese only, January 11- 17, 1993. During the period January 11-17, 1993, the Canada goose bag limit is two per day. Possession limit is twice the daily bag limit. (C)-(D) (No change.) (3)-(5) (No change.) sec.65.334. Bag and Possession Limits. (a) (No change.) (b) The bag and possession limits are as follows. (1) Ducks, coots, and mergansers. (A) Ducks. The daily bag limit is three ducks which may include no more than two mallards (no more than one of which may be a female mallard), one mottled duck, one pintail, one redhead, or two wood ducks. Possession limit shall be twice the daily bag limit. (B)-(C) (No change.) (2) Geese. (A) (No change.) (B) East of U.S. Highway 81: daily bag limit for light geese (Snow, blue, and Ross') is 10, and daily bag limit for dark geese is one Canada or black brant, and one white-fronted goose. Possession limit is twice the daily bag limit. (3)-(5) (No change.) (c)-(f) (No change.) sec.65.335. Extended Falconry Season. (a) (No change.) (b) It is lawful to take migratory game birds by means of falconry during the open seasons prescribed in sec.65.333 of this title (relating to Open Seasons) and during the following extended falconry seasons. (1) Ducks, coots, and mergansers. (A) High Plains Mallard Management Unit. (See description sec.65.333(b)(1)(A)) of this title. January 11, 1993-February 26, 1993 from 1/2 hour before sunrise to sunset. (B) Remainder of the state. November 30, 1992-December 25, 1992 and January 18, 1993-February 26, 1993 from 1/2 hour before sunrise to sunset. (2) Woodcock. February 1, 1993-February 26, 1993 from 1/2 hour before sunrise to sunset. (c)-(d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1992. TRD-9212267 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: September 30, 1992 Proposal publication date: June 12, 1992 For further information, please call: (512) 389-4578 Part III. Texas Air Control Board Chapter 101. General Rules 31 TAC sec.101.10 The Texas Air Control Board (TACB) adopts the repeal of sec.101.10, concerning filing of emissions data. The section is being replaced, in concurrent rulemaking, by a new sec.101.10 to identify emissions inventory requirements. The new emissions inventory statements are mandated in the 1990 amendments to the Federal Clean Air Act. A public hearing was held in Austin on April 29, 1992, to consider the proposed repeal. Testimony was received from 23 commenters during the comment period, which ended May 1, 1992. No one testified against the repeal. TACB is an equal opportunity employer and does not discriminate on the basis of race, color, religion, sex, national origin, age, or disability in employment or in the provision of services, programs, or activities. In compliance with the Americans With Disabilities Act, this document may be requested in alternate formats by contacting the Air Quality Planning Program staff at (512) 908-1457, (512) 908-1500 FAX or 1-800-RELAY-TX (TDD), or by writing or visiting at 12124 Park 35 Circle, Austin, Texas 78753. The repeal is adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 10, 1992. TRD-9212316 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: October 1, 1992 Proposal publication date: April 3, 1992 For further information, please call: (512) 908-1451 The Texas Air Control Board (TACB) adopts new sec.101.10, concerning emissions inventory requirements, with changes to the proposed text as published in the April 3, 1992, issue of the Texas Register (17 TexReg 2385) to replace the existing sec.101.10 which is repealed in concurrent rulemaking. The new sec.101.10 identifies emissions inventory requirements as mandated in the 1990 amendments to the Federal Clean Air Act (FCAA). A public hearing was held in Austin on April 29, 1992, to consider the proposed new section. Testimony was received from 23 commenters, all of which stated some opposition to the proposed rule during the comment period which ended May 1, 1992. The following discussion initially addresses the more general comments and, then, responds to the comments which deal with specific parts of the regulation. Two commenters, Marathon Oil Company (Marathon) and Universal Foods Corporation (Universal), disagreed with the section of the preamble which stated there is no anticipated cost to individuals. The staff agrees that there will be a cost to the regulated community associated with implementation of the rule. However, after developing the initial inventory, the cost of preparing annual updates should be relatively modest, unless substantial changes have occurred at the facility. Southern Union Gas requested that TACB not go forward with the proposed rules until across-the-board emission levels are established and an emissions credits trading program is in place. The requirement to promulgate this rule is federally mandated in 40 Code of Federal Regulation, sec.51.321, and Title I of the FCAA. It also must be submitted to the United States Environmental Protection Agency (EPA) by November 15, 1992. A proposal for an emissions banking program is currently being developed and will be considered under separate rulemaking in the near future. Southern Union Gas stated that these rules concentrate more on nitrogen oxide (NO]) reductions than on volatile organic compound (VOC) reductions and this discriminates against some technologies. The emissions statement requirement is not a control measure designed to regulate pollutants, it is merely an information gathering device so that more informed decisions concerning future regulations can be made. Information regarding VOC as well as NO point=4.02p set=4.42p sources is required so that control measures for both VOC and NO sources can be developed. Houston Lighting and Power (HL&P) requested that sec.101.10(a) specifically state that electric utilities are exempt from these requirements because the FCAA exempts electric utilities from all hazardous air pollutant requirements. The staff disagrees with this interpretation and believes that the FCAA exemption does not refer to emissions inventories. The results of the emissions inventory efforts will be used to address the criteria pollutants as well as the hazardous air pollutants. Commenters, Marathon, Texas Chemical Council (TCC), and Texas Utilities Services, Inc. (TU Services) requested that the subsection state that other formats are allowed, specifically the Comprehensive Emissions Inventory System (CEIS) which is already in place. The staff agrees with this request and has added wording to allow other types of media approved by TACB. The City of Dallas (Dallas) requested that additional requirements be added to subsection (a). Specifically, the city requested that any source of hazardous air pollutants with emissions equal to or greater than one ton per year (tpy) of a compound with a TACB effects screening level of 20 micrograms per cubic meter or less, or emissions greater than 250 pounds per year of a compound with a TACB effects screening level of 2.5 micrograms per cubic meter or less, be required to submit an emissions statement. The intent of the staff was to be consistent with federal requirements for tracking sources of hazardous air pollutants as set forth in Title III of the FCAA amendments. The staff carefully considered the additional requirements suggested by Dallas, but believes that they are beyond the scope of this rulemaking. Requirements such as these may be considered later if it is deemed necessary to monitor more sources. Universal, ARCO Transportation Company (ARCO), the Society of the Plastics Industry (SPI), and Mobil Oil Corporation (Mobil) stated that the requirement to report VOCs at 10 tpy is too restrictive and that the TACB requirement should be consistent with the 25 tpy requirement of the FCAA amendments. Titles I and V of the FCAA amendments include definitions with a classification of VOC based on 10 tpy. Therefore, data will be collected from sources producing 10 tpy of VOC. The resulting improvements in the accuracy of the inventory will also help produce more beneficial control strategies. TU services requested clarification and consistency with the terms "facility," "stationary source," and "major source," stating that they were used interchangeably throughout the proposal. The terms "facility" and "stationary source" are used interchangeably by the EPA and refer to any building, structure, or installation which emits, or may emit, any pollutant subject to regulation. The staff concurs that the use of these terms within the proposed rule might be confusing and, therefore, has changed the term "facility" to "stationary source." In this rule, the term "major source" is specifically used only with reference to the FCAA, sec.112(a)(1), in which major sources of hazardous air pollutants are defined. Eastman Kodak Company (Kodak) requested justification as to why TACB requires emissions inventories for attainment areas when the FCAA does not. 40 Code of Federal Regulation, sec.51.321 requires the state to submit annual statewide inventories to EPA. In addition, TACB needs this information from all regions within the state so that it can more effectively monitor the status of the state's air quality and perform dispersion modeling to more accurately address problems that may arise. A private citizen asked if the regulation applied to all sources within state territorial waters. Facilities in the State of Texas or on waters that extend 25 miles from the shoreline are included under rule requirements. Chemical Waste Management, Inc. (CWMI) expressed confusion as to whether the proposed sec.101.10(b) required allowable or actual emissions to be reported. The rule states that actual levels must be reported. Additionally, allowable levels must be included in the emissions inventory report in instances where an enforceable document, such as a board order or a permit, establishes allowable levels. Texas Industries, Inc. (TI) requested clarification as to who is required to submit an initial emissions inventory (IEI), and Kodak requested that sources in attainment areas be allowed to use the most recent emissions inventory as the IEI. The regulation states that an IEI is required by stationary sources, as identified in sec.101.10(a)(1), for any criteria pollutant or hazardous air pollutant that has not been identified in a previous inventory. If the stationary source has already identified all required pollutants in a previous inventory, then an additional IEI will not be required. A private citizen expressed concern over how TACB would determine the accuracy of the reports. The TACB Emissions Inventory staff periodically audits inventory reports for accuracy. The permits program and regional field investigators also assist in ensuring accuracy. In addition, the regulation requires a signed certification statement attesting to the accuracy of the report, which is subject to enforcement. TI asked what documentation is required to demonstrate that an annual emissions inventory update (AEIU) is not required of a source. Language has been added to subsection (b)(2) to require a certifying statement from a source when no AEIU is required. Kodak requested that the format of the section be arranged differently for consistency and clarification of intent, specifically moving sec.101.10(b)(1) and (2) and placing them after sec.101.10(b)(3) and (4), which address ozone and carbon monoxide nonattainment areas, since they already require annual reports. The staff believes that these paragraphs need to be evaluated independently to determine whether or not an inventory needs to be submitted. The more generalized inventories are identified first followed by the more specific nonattainment area inventories. Kodak requested that the word annual be deleted from the AEIUs since they are only required in response to a triggering event. The staff agrees that not all sources need to submit an AEIU; however, the United States Environmental Protection Agency (EPA) requires an annual report from TACB for all sources covering the previous year's data. Additionally, the report, when required, is an annual report in that it contains one year of data. The staff believes the title, Annual Emissions Inventory Update, is an accurate description of the document. Kodak requested clarification of the phrase "achieves compliance with any regulation of the SIP," to specifically address which regulations of the SIP apply to sources in attainment areas. This requirement and language is taken from 40 Code of Federal Regulation, sec.51.323(c)(1) and refers to those sources which come into compliance with any TACB regulation that is applicable to their facility during the inventory reporting period. The TACB regulations are considered part of the SIP and apply to attainment areas as well as nonattainment areas as identified in individual regulations. Trident NGL, Inc. (Trident) and Kodak stated that the 5.0% figure used to trigger an annual update was too small and that a more reasonable size was needed. Two commenters, CWMI and SPI, asked that the 5.0% figure be attached to a more quantifiable term. The 5.0% figure was taken directly from 40 Code of Federal Regulation, sec.51.323(c)(4), which states that a source whose emissions have changed more than 5.0% from the most recently submitted emissions data is required to submit an annual update. Language has been added to the rule to clarify this requirement. Trident requested that the word "permanent" be added to the requirement for a cessation of all production processes to prevent a requirement for temporary shutdowns. The use of the term permanent is not used in 40 Code of Federal Regulation, sec.51.323(c)(3); therefore, the staff disagrees with the request to add the word to the rule language. An inventory update is required for any shutdown whether or not it is permanent. TU services requested that the pollutants required in the inventory be specified. The pollutants required for an emissions inventory are specified in the packet sent out by the TACB staff. This allows for a more comprehensive inventory when necessary and allows flexibility for future additions or deletions to the list of pollutants required to be inventoried. If such language were added to the regulation, the inventoried pollutants would be fixed and inflexible. There were many comments about sec.101.10(c), concerning the sentence, "Actual measurement with continuous emissions monitoring systems (CEMS) is the desired method of calculating emissions from a source." Trident, Valero, ARCO, CWMI, Kodak, Universal, TCC, TI, Waukesha Engine Division of Dresser Industries, Inc. (Waukesha), Gas Compressor Association, SPI, LTV Aerospace and Defense Company (LTV), and Southern Union Gas, all expressed some confusion or comment regarding the requirement or the cost to use a CEMS. The rule language only states that a CEMS is the desired method and is not a requirement. The word "desired" has been changed to "preferred" to clarify the intent. Other methods of determining emissions can be used where CEMS are not available. Since CEMS are not required by this section, the staff believes the concerns of use and cost of CEMS for individual cases were not warranted. Valero, CWMI, and Waukesha requested detailed instructions for determining emissions inventory data when a CEMS is not available or stated in the rule language. It is difficult and unnecessary to include all of the instructions within the regulation itself, particularly where special circumstances may be involved. The forms, which will be sent out to the sources, will provide these detailed instructions, and special cases will be dealt with on a case-by-case basis. TI and Waukesha requested that the approved alternative methods for calculating emissions data be specified in the regulation. A private citizen objected to TACB having blanket authority in determining an alternative method. There are numerous methods which may be applicable to one situation and not to another. Therefore, the staff needs the flexibility to analyze specific cases and approve alternative methods as submitted by companies. A concerned citizen requested that some method of verifying the emission factors submitted to TACB be specified in the section and that there also be some penalty for a company which operates a malfunctioning CEMS. The section has a provision for a certifying statement, and TACB has an effective inspection program which would verify emission reports. A malfunctioning CEMS must be dealt with on a case-by-case basis because there must be some allowance for normal mechanical problems. Routine review and inspections will reveal any abnormal operation which would result in enforcement action. TU services asked that the term "certifying official" in sec.101.10(d) be changed to "individual certifying," because the term "official" generally refers to a corporation president, secretary, treasurer, or vice president. The regulation states that the certifying official must be the owner(s) or operator(s). The staff intent is for the official to be an individual with legal responsibility for the operations which occur at the site. This wording is also consistent with EPA guidance. Delhi Gas Pipeline Corporation and TI, objected to the requirement in 101. 10(e) for reporting inventories annually. Annual reporting of inventories is a federal requirement under 40 Code of Federal Regulation, sec.51.321 and Title I of the FCAA amendments. Marathon, TCC, LTV, and HL&P commented that the March 31 report due date was unreasonable. One commentater asked for the ability to extend it 30 days, and the others asked that it coincide with the July 1 due date for Superfund Amendments and Reauthorization Act (SARA), sec.313 and Texas Water Commission reports. TACB is required to submit a complete annual emissions inventory report to EPA by July 1 of each year. EPA has been unable to offer TACB any flexibility on the July 1 due date. In order to have adequate time to process this information, the TACB must receive it by March 31. A private citizen requested that subsection (f) specify the applicable enforcement actions for people who do not submit an emissions inventory or who knowingly submit an incorrect one. The subsection references the applicable sections of the Texas Health and Safety Code, including the Texas Clean Air Act, which address enforcement actions and penalties. The staff believes that the language, as proposed, is adequate. Enforcement actions depend upon the specific circumstances associated with each case. Enforcement language utilized in this subsection is consistent with the wording of other TACB rules. TACB is an equal opportunity employer and does not discriminate on the basis of race, color, religion, sex, national origin, age or disability in employment or in the provision of services, programs, or activities. In compliance with the Americans With Disabilities Act, this document may be requested in alternate formats by contacting the Air Quality Planning Program staff at (512) 908-1457, (512) 908-1500 FAX or 1-800-RELAY-TX (TDD), or by writing or visiting at 12124 Park 35 Circle, Austin, Texas 78753. The new section is adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.101.10. Emissions Inventory Requirements. (a) Applicability. The owner or operator of the following stationary sources in the State of Texas or on waters that extend 25 miles from the shoreline shall submit emissions inventories to the Texas Air Control Board (TACB) on forms or other media approved by TACB: (1) a major facility/stationary source, as defined in sec.101.1 of this title (relating to Definitions), and any stationary source in an ozone nonattainment area emitting a minimum of 10 tons per year (tpy) volatile organic compounds (VOC), 25 tpy nitrogen oxides (NO), or 100 tpy carbon monoxide (CO); (2) any stationary source in an attainment area or unclassified area that emits 100 tpy or more of any contaminant (including VOC) for which a national ambient air quality standard has been issued; (3) any major source of hazardous air pollutants as defined in the Federal Clean Air Act (FCAA), sec.112(a)(1). (b) Types of inventories. (1) Initial emissions inventory. Stationary sources, as identified in subsection (a) of this section, shall submit an initial emissions inventory (IEI) for any criteria pollutant or hazardous air pollutant that has not been identified in a previous inventory. The IEI shall consist of actual emissions of VOC, NO, CO, sulfur dioxide (SO), lead (Pb), and particulate matter of less than 10 microns in diameter (PM) from stationary sources and emissions of all hazardous air pollutants identified in the FCAA, sec.112(b) . For purposes of this section, the term "actual emission" is the actual rate of emissions of a pollutant from an emissions unit for the calendar year or seasonal period. Actual emission estimates must also include excess emissions occurring during maintenance, start-ups, shutdowns, upsets, and downtime to parallel the documentation of these events in the emissions inventory and must follow emission calculations as identified in subsection (c) of this section. Where there is an enforceable document, such as a permit or board order establishing allowable levels, the IEI shall include the allowable emission level as identified in the permit maximum allowable emission rate table or board order. (2) Statewide annual emissions inventory update. Sources as identified in subsection (a) of this section that have submitted an IEI shall submit an annual emissions inventory update (AEIU) which consists of actual and allowable emissions as identified in subsection (a)(1) of this section, if any of the following criteria are met. If none of the following criteria are met, a letter certifying such shall be submitted instead: (A) any source that achieves compliance with any regulation of the state implementation plan at any time within the inventory reporting period; (B) any change in operating conditions, including start-ups, shutdowns, or process changes at the source that results in a 5.0% or greater increase or reduction in total annual emissions of VOC, NO, CO, SO, Pb, or PM point=4.52p set=4.92p from the most recently submitted emissions data; (C) a cessation of all production processes and termination of operations at the source. (3) Ozone nonattainment area inventory. Stationary sources emitting a minimum of 10 tpy of VOC, 25 tpy of NO point=4.52p set=4.92p , or 100 tpy of CO shall submit an annual inventory. The inventory shall consist of annual emissions and typical weekday emissions that occur during the summer months. (4) CO nonattainment area inventory. Stationary sources emitting 100 tpy or more of CO shall submit an inventory every three years. The inventory shall consist of annual emissions and typical weekday emissions that occur during the winter months. The first inventory is required for the 1989-1990 winter season. (5) Special inventories. Upon request by the executive director or a designated representative of TACB, any person affected by any rule or regulation of TACB shall file additional emissions data with TACB. (c) Calculations. Actual measurement with continuous emission monitoring systems (CEMS) is the preferred method of calculating emission from a source. Other means for determining actual emissions may be utilized if CEMS data is not available in accordance with detailed instructions of the Emissions Inventory Division of TACB. (d) Certifying statement. A certifying statement, required by the FCAA, sec.182(a)(3)(B), is to be signed by the owner(s) or operator(s) and shall accompany each emissions inventory to attest that the information contained in the inventory is true and accurate to the best knowledge of the certifying official. (e) Reporting requirements. The IEI or initial AEIU and the 1992 ozone nonattainment area inventory shall be submitted to TACB no later than March 31, 1993. Subsequent AEIUs and ozone nonattainment area inventories shall contain emissions data from the previous calendar year and shall be due on March 31 of each year. The 1992-1993 CO nonattainment area inventory shall be submitted no later than June 30, 1993, and every three years thereafter. (f) Enforcement. Failure to submit emissions inventory data as required in this section shall result in formal enforcement action under the TCAA, sec.382.082 and sec.382.088. In addition, the TCAA, sec.361.2225 provides for criminal penalties for failure to comply with this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 10, 1992. TRD-9212317 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: October 1, 1992 Proposal publication date: April 3, 1992 For further information, please call: (512) 908-1451 Part IX. Texas Water Commission Chapter 290. Water Hygiene Rules and Regulations for Public Water Systems 31 TAC sec.sec.290.38-290.49 The Texas Water Commission (TWC) adopts the repeal of sec. sec.290.38-290.49 and new sec.sec.290.38-290.49, concerning rules and regulations for public water systems. New sec. sec.290.38-290.49 replace emergency sec.sec.290.38-290.49, which were published on an emergency basis in the April 10, 1992, issue of the Texas Register (17 TexReg 2541). The TWC adopts sec.sec.290.38, 290.39, and 290. 41-290.46 with changes to the proposed text as published in the July 31, 1992, issue of the Texas Register (17 TexReg 5317). Section 290.40 and sec. sec.290.47-290.49 are adopted without changes and will not be republished. The replacement of these sections is the result of Senate Bill 2, First Called Session, 72nd Legislature, which transferred all the powers, duties, rights and obligations of the Texas Department of Health (TDH) pertaining to sanitary standards for drinking water and the protection of public water supplies and bodies of water to the TWC effective March 1, 1992. The TDH rules and regulations concerning public water systems, codified as Title 25 Texas Administrative Code (TAC) sec.sec.337.201-337.212, were transferred to the TWC through recodification in 31 TAC sec.sec.290.38-290.49. The TWC subsequently determined that these rules were deficient in that they did not adequately address particular areas of system design, water treatment, water storage, and water distribution. More importantly, the provisions on water distribution expressly allowed returning water to the public water supply after it left the control of the utility with little or no regard for the impacts to human health or the environment. The changes included in new sec.sec.290.38-290.49 are intended to correct these deficiencies. Comments on the proposed rules were received from a variety of individuals, associations, and governmental subdivisions. In addition, three requests for public hearing were submitted, one from an association having more than 25 members and two from governmental subdivisions. As a result of these timely requests for hearing, and in accordance with the provisions of sec.5(b) of the Administrative Procedure and Texas Register Act, the commission held a public comment hearing concerning these rules on September 3, 1992. All three requests for public hearing were in response to proposed sec.290. 44(h)(2), in particular the commission's proposal to allow pilot studies on heat exchanger units, and the September 3rd hearing centered around this subsection. The comments received at the hearing were largely repetitive of those filed during the 30 day comment period following publication of the rules. All comments received were fully considered by the commission. The comments received and the commission's responses to them are summarized below. Comments in favor of the language in sec.290.44(h)(2) concerning heat exchanger pilot studies were received from Brookesmith Special Utility District and approximately 20 water supply corporations. Several hundred comments in favor of heat exchanger pilot studies were received from residents of the following cities: Bedford, Cedar Hill, Fort Worth, Granbury, Garland, Cleburne, Arlington, San Antonio, Cedar Park, Austin, Pflugerville, Di Villa, Dallas, and Duncanville. Favorable comments were also received from various state officials and legislators including Senators John Whitmire, Bill Sims, and Eddie Bernice Johnson and State Representatives Fred Blair and Robert Junnell. We received numerous comments against the heat exchanger proposal in sec.290. 44(h)(2) from several organizations including the Association of Water Board Directors-Texas, American Water Works Association, League of Women Voters, Texas Water Utilities Association, Texas Rural Water Association, Texas Alliance of Groundwater Districts, Southwest Texas Regional Short School, North East Texas Water Utilities Association, Green Forest-Texas Water Utilities Association, Fort Concho Utilities Association, Gulf Coast Water Authority, Texas Municipal Utilities Association, Texas Society of Professional Engineers Environmental Council, Texas Water Utilities Association-Southeast Region, and Texas Water Utilities Association-Citrus District. The United States Environmental Protection Agency-Region 6 and the Texas State Board of Plumbing Examiners submitted comment in opposition to the provision on heat exchanger installation. Numerous municipalities and other political subdivisions submitted comments opposing the heat exchanger proposal, including the cities of Austin, Fort Worth, Odessa, Lubbock, Wichita Falls, Hurst, Weatherford, Grapevine, Live Oak, Corpus Christi, Everman, Longview, Garland, Wichita Falls, Richardson, Arlington, Irving, Boerne, Amarillo, San Antonio, Dallas, Houston, Galveston, Beaumont, Flatonia, Kerrville, Kilgore, La Marque, League City , Marshall, Mesquite, Midland, Mineola, Nassau Bay, Pearland, San Marcos, Texas City, Victoria, Waco, San Patricio Municipal Utility District, Cypresswood Utility District, Lake Forest Utility District, North Austin Municipal Utility District Number 1, Lost Creek Municipal Utility District, Harris County Municipal Utility District Number 119, Galveston County Water Control and Improvement District Number 1, Baycliff Municipal Utility District, Bayview Municipal Utility District, Galveston County Water Control and Improvement District Number 12, and Weatherford Municipal Utility Board. We received several comments from individuals, county officials, water supply corporations, private water utilities and several corporations including Motorola-Austin, Texas Instruments- Austin, IBM-Austin, and Lockheed-Austin also in opposition to the sec.290.44(h)(2) language related to heat exchanger installation. The commission has carefully considered all comments received concerning proposed sec.290.44(h)(2) and has decided to delete the language in that section allowing pilot studies on heat exchanger units. The commission has determined that the evidence currently available concerning the effects of return flows from heat exchanger units on the public water supply is insufficient to insure that human health would be protected if pilot studies on public water systems were allowed. Therefore, the last six sentences of sec.290.44(h)(2) as proposed have been deleted. A number of comments were received concerning sec.290.45. Several commenters suggested that the minimum capacity requirement of 0.6 gallons per minute per connection included in sec.290.45(f) is unreasonable and should be lowered or eliminated. Among the commenters were Caddo Basin Utility District and the City of Sweetwater. The commission disagrees with this proposal as historical use of 0.6 gallons per minute per connection has been found to be representative of the typical utility demands for planning purposes. It was also suggested that language be included in sec.290.45 to clearly define how exceptions to minimum capacity requirements apply to purchased water systems and to define the term "contract" as used in the section. In response to these comments, the commission has added new sec.290.45(f)(1) to define "contract" for the purposes of this section and new sec.290.45(g) to specify the criteria necessary for requesting an exception to the minimum water system capacity requirements contained in the section. Existing sec.sec.290. 45(f)(1)- 290.45(f)(5) have been renumbered to accommodate new sec.290.45(f)(1). In addition, a sentence was inadvertently omitted from sec.290.46(g) regarding disinfection of new or repaired facilities. This sentence allows rapid return of repaired water mains to service. In regards to sec.290.38, one commenter suggested that Elevated Storage Capacity be defined as that portion of water which can be stored at least 46 feet above the highest service connection in the pressure plane served by the storage tank, instead of 80 feet as the rule reads now. The commission disagrees with this suggestion because the minimum acceptable distribution pressure has remained at 35 psi, whereas, 20 psi would result if only 46 feet of static head were available. It was also suggested that the requirement in sec.290.39(i)(1) that engineering data be submitted along with all requests for exceptions could be misinterpreted as a requirement that an engineer be employed to document the exception request. The commission agrees with this comment and has deleted the word "engineering" from sec.290.39(i)(1). Several commenters expressed confusion over the meaning of sec.290.43(c)(7) and expressed opposition to the section if that regulation is intended to require mechanical removal facilities for existing facilities. This section does not specify the mechanism for removal of debris. Existing facilities will be evaluated for the sanitary condition of any drains and any mechanical devices present. Another commenter expressed opposition to proposed sec.290.46(e)(2) which requires surface water plants to have at least a Grade C surface water operator on duty. The commenter requested that the existing regulation, requiring only certified operators, be maintained instead. The commission disagrees with this proposal. Under current rules for certified water operators, a lower grade operator is not qualified to operate a surface water treatment plant. Several comments were also received regarding sec.290.44. Concern was expressed as to whether or not individual service lines are subject to the minimum line size requirements set out in sec.290.44(c) or to the minimum separation distances set out in sec.290.44(e)(1). As a result, language has been added to sec.290.44(c) and to sec.290.44(e)(1), respectively, to clarify that the minimum line size requirements and the minimum separation distances do not apply to individual customer lines. Also, in response to comment, a new sec.290.44(d)(3) has been added to require that booster pumps taking suction from public water supply distribution lines must be equipped with automatic cut-off devices so that the pumping units become inoperative at a suction pressure of less than 20 pounds per square inch. In regards to sec.290.39(g), it was suggested that elimination of the wording which allowed up to 10% expansion in storage or distribution capacity without written notification to the TWC would result in unnecessary delays. The commission agrees and sec.290.39(g) was revised to allow minor water distribution system extensions without TWC notification. One commenter suggested that sec.290.43(b)(2) should be amended so as not to discourage the below ground storage of finished water. Below grade storage has been prohibited by the rules since 1941 and was not revised with these rules. This commenter also objected to the requirement in sec.290.46(f)(2)(A) that distribution systems sample daily, suggesting that collection of distribution system samples on weekdays would be sufficient. The commission disagrees with the suggestion that daily sampling is excessive. A water plant requires daily operator maintenance and necessary personnel should be available to carry out this maintenance. One commenter also suggested that the language in sec.290.46 is overly broad and can be read to require that all meters be disinfected before they are installed. The commission believes that disinfection of all repaired or replaced distribution facilities represents good public health practice. In regards to sec.290.41(c)(1)(A) a commenter requested that the TWC maintain the language identifying situations in which a variance may be obtained. The opportunity to request exceptions to the rules is addressed earlier in the rules in sec.290.39(i) and states that all requests shall be considered on an individual basis. This commenter also requested that the phrase "all known" be added to the beginning of sec.290.41(c)(1)(E) to specify that a system is only responsible for reporting abandoned or inoperative wells of which it is aware. The commission is of the opinion that making this change as requested would weaken the rules to the extent that there will not be any assurance that adequate searches for abandoned wells have been conducted. It was suggested that sec.290.41(c)(3)(A) be amended to allow systems to provide the exact latitude and longitude in their submittal in lieu of a USGS map. The commission believes this change should not be made because USGS maps are what are used by commission field staff in identifying the location of all existing wells during sanitary surveys. The commenter also suggested that the commission delete the second sentence of sec.290.41(e)(1)(B) because residential use of pesticides and herbicides is beyond the control of noncommunity and nontransient noncommunity systems. The commission disagrees with this suggestion and believes that this section is a good public health guideline and should apply to all public water systems within their scope of influence. In regard to sec.290.42(d)(9), it was suggested that clarification facility design be governed by conventional parameters such as surface overflow rate and weir loading rates in addition to the two hour minimum detention time, and that all references to detention time less than two hours should be omitted. Submittals for such facilities could be handled under the mechanism already established in sec.290.39(i). The commission disagrees and believes that these general guidelines are acceptable for the design of a properly engineered clarification unit. The conditions under which an exception will be evaluated are provided to assist an engineer who wishes to propose an alternate process. One commenter requested that sec.290.41(c)(1) be amended to include underground storage tanks, above ground storage tanks, graveyards, and the five year floodplain for surface streams. It is already specified that underground fuel storage tanks are prohibited within 150 feet of a well and that the well shall be so located as to be in no danger from flooding. It is also specified later in the regulations that pump room floors shall be at least two feet above the highest known watermark or 100 year flood elevation or protected from flood damage by levees. The commission has been assured in the past by Texas Department of Health personnel that cemeteries do not pose a public health risk to water wells. It was also suggested that language identical to that used in sec.290.42(c) (2) be added to sec.290.42(b)(2) for the sake of consistency. Section 290.42(b) (2) has been amended to include the requested language. Several commenters, including Upper Leon River Municipal Water District, offered comments on the requirements for auxiliary power as set out in sec.290.45. One commenter suggested that the requirement for auxiliary power without any conditions for exception in sec.290.45(e)(2) is unrealistic and should be amended. Another commenter urged the commission to delete the requirement that auxiliary power for water wholesalers equal at least 20% of the total service pump capacity, or at a minimum, to provide a variance mechanism based on historical operations. The commission agrees with many of the comments and has revised existing sec.290.45(e)(2) and sec.290.45 (e)(3) to expand and clarify auxiliary power requirements for water wholesalers, including relative provisions for allowable alternatives and to be consistent with the requirements for similar conventional systems. It was also suggested that sec.290.46(p) be modified so as not to require the emptying of the interior storage tanks on an annual basis. The commission does not require that routine inspections be conducted by draining large storage reservoirs and therefore did not change this section. In regards to sec.290.45, several commenters objected to the proposed 2.0 gallons per minute per connection requirement and encouraged the commission to amend the rule to allow historical data to determine the peak demand used for purchase agreements. The commission feels that the requirement of 2.0 gallons per minute per connection has historically proven to be a good minimum requirement for the majority of public water systems. As with any of the rules, exceptions can be requested. New sec.290.45(g) spells out the criteria for requesting exceptions to minimum quantity requirements. A commenter also expressed concern that sec.290.43(c)(8) could be interpreted as requiring NSF 61 certified paint materials for both water contact and non- contact surfaces. The commenter requested that the rule be clarified to require NSF 61 materials on water contact surfaces only. The commission agrees and this concern has been addressed in the rules. One commenter suggested that the definition of Peak Hourly Demand in sec.290. 38 is confusing. The commenter also requested that all reference to peak hourly demand in sec.290.45 should be eliminated. The commission disagrees with this suggestion. The definition of Peak Hourly Demand, as well as the use of the term in sec.290.45, is unchanged from previous rules and has never been shown to be a problem. Another commenter suggested that the phrase "all-weather access road" in sec.290.41(p) should be defined in greater detail. The commission is of the opinion that the phrase "all-weather access road" has not presented a problem over the many years that this rule has been in existence and that a more detailed definition is therefore unnecessary. It was also suggested that sec.290.42(e) be amended to allow utilities to have negative pressure ventilation as long as the facilities also have a gas containment and treatment system. The commission agrees with this suggestion and has amended sec.290.42(e)(7) to allow for negative pressure ventilation in accordance with the requirements of the Uniform Fire Code. A definition of "Uniform Fire Code" has also been added to sec.290.38 to clarify this reference. It was recommended that sec.290.41(e)(1) be clarified as to whether the pollution evaluation plan required under the section is required for existing systems. An evaluation plan is required at the time of source development. This requirement may also apply to existing sources where necessary to address the increase in monitoring requirements under the Safe Drinking Water Act. Provision of such a plan will afford the utility an opportunity to seek waivers for some chemical monitoring parameters. In regard to sec.290.41(e)(1)(C), it was suggested that the scope of the facilities restricted to be within 75 feet of the lake surface be limited to septic tanks and soil absorption fields only, eliminating manholes and concrete sanitary sewers. The commission believes that the restrictions currently listed under this section are necessary to adequately protect the immediate watershed. Underground sewers are subject to failure and surcharge and therefore remain restricted. A couple of commenters suggested that the requirement in sec.290.42(d)(5)(C) that dry chemical feeders be in a separate room with dust control is overly restrictive and costly. One commenter also suggested that the commission define "dust control" as used in the context of this section. The commission believes that sec.290.42(d)(5)(C) as written is in line with good public health engineering practices and provides an added level of safety to the water system operations personnel. The commission does not believe that further definition of "dust control" is necessary. In regard to sec.290.42(d)(9)(A), it was suggested that language was needed to clarify that facilities to measure sludge need not be a part of the clarifier. One commenter also suggested that the section is too onerous on noncommunity and nontransient noncommunity systems and should be amended to read "Clarifiers for community systems shall be provided with facilities for determining the depth of sludge in the unit." The commission disagrees. The commission believes that continued effective operation of a surface water treatment plant is dependent upon accurate and up-to-date information on the status of equipment in each segment of the treatment process. Comment was also received concerning sec.290.42(h). One commenter requested that the section be amended to address only those cases in which wastes are proposed to be discharged into public waters. The commission disagrees with this suggestion. Runoff from land application of wastes can still influence surface water quality. One commenter expressed concern that the term "continuous" in sec.290.42(d) (5)(F) eliminates treatment options such as slug application, and asked that the language be changed to allow coagulants to be applied "at sufficient intervals with adequate mixing." The commission believes that amending this section as requested would then create a problem as to the definition of "sufficient intervals." The commission believes that deviations should be considered on an individual basis under sec.290.39(i). Concerning sec.290.42(d)(13), one commenter asked for clarification of the term "settled water" as used in that section. Clarification was also requested regarding the term "clearwell" as used in sec.290.45(d)(3)(D). The commission does not believe that further definition of these terms should be included in the rules. Definitions that are not a part of the rules but are common in the water utility industry can be found in the "Glossary, Water and Wastewater Control Engineering," which is referenced in sec.290.38 relating to Definitions. In regard to sec.290.43(b)(1), a commenter expressed concern that many existing noncommunity and nontransient noncommunity systems may not be able to reach a 500 foot criteria. The commenter asked that the section be modified to require these systems to meet the criteria "insofar as possible." The commission disagrees. Should significant justification exist to warrant an exception to this section, one can be requested under sec.290.39(i). It should be noted that this requirement has been in existence for many years. It was also suggested that sec.290.43(c)(2) should be amended to allow those facilities having controlled access, security fencing, and 24 hour security monitoring an exemption from the lockable cover requirement. The commission believes that although these facilities provide an additional measure of safety against contamination and sabotage, a blanket exemption for these facilities is unwarranted. A commenter also suggested that noncommunity and nontransient noncommunity systems should be exempted from the requirement of "no new waterline under two inches in diameter" set out in sec.290.44(c). The commission disagrees. This section has been amended to state that individual customer service lines do not come under the minimum service line requirements and this should address some of the commenter's concerns. For special circumstances, exceptions are available under sec.290.39(i). In regard to sec.290.46(d)(1), one commenter asked for some flexibility concerning the date on which the monthly report is due to the TWC for those entities who operate several facilities. The commenter suggested that the reports be due by the 15th day of the following month, "or another date as approved by the department." The commission believes that 15 days is not unreasonable and is in line with other reporting requirements of the commission. Concerning sec.290.46(f)(2)(B), a commenter expressed concern that a seven day restriction could create situations where a sample could be missed due to holidays, illness, or other unscheduled situations. The commenter suggested that the language be changed to "every operational week" to remedy this situation. The commission disagrees. One disinfectant residual at least once every seven days is not unreasonable. The repealed sections are adopted under the Texas Water Code, sec.5.103, which authorizes the commission to adopt any rules necessary to carry out its powers, duties and policies and Texas Health and Safety Code, Chapter 341, Subchapter C, which governs sanitary standards of drinking water, protection of public water supplies and bodies of water. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 10, 1992. TRD-9212362 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: October 1, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 463-8069 Rules and Regulations for Public Water Systems 31 TAC sec.sec.290.38-290.49 The new sections are adopted under the Texas Water Code, sec.5.103, which authorizes the commission to adopt any rules necessary to carry out its powers, duties and policies and Texas Health and Safety Code, Chapter 341, Subchapter C, which governs sanitary standards of drinking water, protection of public water supplies and bodies of water. sec.290.38. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. If a word or term used in this title is not contained in the following list, its definition shall be as shown in Title 40 Code of Federal Regulations, sec.141.2. Other technical terms used shall have the meanings or definitions listed in the latest edition of "Glossary, Water, and Wastewater Control Engineering," prepared by a joint editorial board representing the American Public Health Association, American Society of Civil Engineers, American Water Works Association, and the Water Pollution Control Foundation. ANSI standards -The standards of the American National Standards Institute, Inc., 1430 Broadway, New York, New York 10018. ASME standards -The standards of the American Society of Mechanical Engineers, 346 East 47th Street, New York, New York 10017. ASTM standards -The standards of the American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19102. Auxiliary power -Either mechanical power or electric generators which can enable the system to provide water under pressure to the distribution system in the event of a local power failure. With the approval of the Executive Director, dual primary electric service may be considered as auxiliary power in areas which are not subject to large scale power outages due to natural disasters. AWWA standards -The latest edition of the applicable standards as approved and published by the American Water Works Association, 6666 West Quincy Avenue, Denver, Colorado 80235. Commission-The Texas Water Commission. Community water system-A public water system which has a potential to serve at least 15 residential service connections on a year-round basis or serves at least 25 residents on a year-round basis. Connection-A single family residential unit or each commercial or industrial establishment to which drinking water is supplied from the system. As an example, the number of service connections in an apartment complex would be equal to the number of individual apartment units. When enough data is not available to accurately determine the number of connections to be served or being served, the population served divided by three will be used as the number of connections for calculating system capacity requirements. Conversely, if only the number of connections is known, the connection total multiplied by three will be the number used for population served. Contamination-The presence of any foreign substance (organic, inorganic, radiological or biological) in water which tends to degrade its quality so as to constitute a hazard or impair the usefulness of the water. Cross-connection-A physical connection between a public water system and either another supply of unknown or questionable quality, any source which may contain contaminating or polluting substances, or any source of water treated to a lesser degree in the treatment process. Drinking water -All water distributed by any agency or individual, public or private, for the purpose of human consumption or which may be used in the preparation of foods or beverages or for the cleaning of any utensil or article used in the course of preparation or consumption of food or beverages for human beings. The term "Drinking Water" shall also include all water supplied for human consumption or used by any institution catering to the public. Drinking water standards-The commission rules covering drinking water standards in sec.sec.290.1-290.19 of this title (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems). Elevated storage capacity-That portion of water which can be stored at least 80 feet above the highest service connection in the pressure plane served by the storage tank. Executive director -The executive director of the Texas Water Commission. Health hazard-Any conditions, devices or practices in the water supply system and/or its operation which create, or may create, a danger to the public health and well-being of the water consumer. An example of a health hazard is a structural defect in the water supply system, whether of location, design, or construction, which may regularly or occasionally prevent satisfactory purification of the water supply or cause it to be contaminated from extraneous sources. Human consumption -Uses by humans in which water can be ingested into or absorbed by the human body. Examples of these uses include, but are not limited to drinking, cooking, brushing teeth, bathing, washing hands, washing dishes, and preparing foods. Interconnection-A physical connection between two public water supply systems. Intruder-resistant fence -A fence six feet or more in height, constructed of wood, concrete, masonry, or metal with three strands of barbed wire extending outward from the top of the fence at a 45 degree angle. In lieu of the barbed wire, the fence must be eight feet in height. The fence must be in good repair and close enough to surface grade to prevent intruder passage. Maximum daily demand-In the absence of verified historical data, maximum daily demand means 2.4 times the average daily demand of the system. mg/l-Milligrams per liter, a measure of concentration, equivalent to and replacing parts per million (ppm) in the case of dilute solutions. NSF-The National Sanitation Foundation and refers to the listings developed by the Foundation, P.O. Box 1468, Ann Arbor, Michigan 48106. Noncommunity water system-Any public water system which is not a community system. Nontransient noncommunity water system-A public water system that is not a community water system and regularly serves at least 25 of the same persons at least six months out of the year. psi-Pounds per square inch. Peak hourly demand-In the absence of verified historical data, peak hourly demand means 1.25 times the maximum daily demand (prorated to an hourly rate) if a public water supply meets the Commission's minimum requirements for elevated storage capacity and 1.85 times the maximum daily demand (prorated to an hourly rate) if the system uses pressure tanks or fails to meet the Commission's minimum elevated storage capacity requirement. Public health engineering practices-Requirements in these sections or guidelines promulgated by the Commission. Public water system-A system for the provision to the public of piped water for human consumption, which includes all uses described under the definition for drinking water. Such a system must have a potential for at least 15 service connections or serve at least 25 individuals at least 60 days out of the year. This term includes any collection, treatment, storage, and distribution facilities under the control of the operator of such system and used primarily in connection with such system; and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. Two or more systems with each having a potential to serve less than 15 connections or less than 25 individuals but owned by the same person, firm, or corporation and located on adjacent land will be considered a public water system when the total potential service connections in the combined systems are 15 or greater or if the total number of individuals served by the combined systems total 25 or more at least 60 days out of the year. Without excluding other meanings of the terms "individual" or "served," an individual shall be deemed to be served by a water system if he lives in, uses as his place of employment, or works in a place to which drinking water is supplied from the system. Sanitary control easement-A legally binding document securing all land, within 150 feet of a public water supply well location, from pollution hazards. This document must fully describe the location of the well and surrounding lands and must be filed in the county records to be legally binding. Service pump-Any pump that takes treated water from storage and discharges to the distribution system. Transfer pump-Any pump which conveys water within the treatment process or which conveys water to storage facilities prior to distribution. Uniform Fire Code-The standards of the International Conference Building Officials, 5360 Workman Mill Road, Wittier, California 90601-2298. sec.290.39. General Provisions. (a) Authority for requirements. The Texas Health and Safety Code, Chapter 341, Subchapter C, prescribes the duties of the Texas Water Commission relating to the regulation and control of public drinking water systems in the State. These statutes require that the commission review completed plans and specifications for all contemplated public water systems, and that the commission be notified of any subsequent material changes, improvements, additions, or alterations in existing systems. In order to properly discharge these duties, the Texas Water Commission is authorized to develop rules governing the design of system facilities, as well as minimum acceptable operating practices necessary to protect the public health. (b) Reason for these sections and minimum criteria. These sections have been adopted to insure the inclusion of all data essential for comprehensive consideration of the contemplated project, or improvements, additions, alterations, or changes thereto and to establish minimum standardized public health design criteria in compliance with existing state statutes and in accordance with good public health engineering practices. In addition, minimum acceptable operating practices must be specified to insure that facilities are properly operated to produce and distribute a safe, potable water. (c) Authorization for examination of plans. (1) Plans, specifications, and related documents will not be considered unless they have been prepared under the direction of a registered professional engineer. All engineering documents must have engineering seals, signatures and dates affixed in accordance with the rules of the Texas State Board of Registration for Professional Engineers. (2) Detailed plans must be submitted for examination at least 30 days prior to the time that approval, comments or recommendations are desired. From this, it is not to be inferred that final action will be forthcoming within the time mentioned. (3) The limits of approval are as follows. (A) The commission's Water Utilities Division furnishes consultation services as a reviewing body only, and its registered engineers may neither act as design engineers nor furnish detailed estimates. (B) The commission's Water Utilities Division does not examine plans and specifications in regard to the structural features of design, such as strength of concrete or adequacy of reinforcing. Only the features covered by these sections will be reviewed. (C) The consulting engineer and/or owner must provide surveillance adequate to assure that facilities will be constructed according to approved plans and must notify the Commission's Water Utilities Division in writing upon completion of all work. (d) Submission of planning material. In general, the planning material submitted shall conform to the following requirements. (1) Engineering reports are required for new water systems and all surface water treatment plants. Engineering reports are also required when design deficiencies are identified in an existing system. The engineering report shall include, at least, coverage of the following items: (A) statement of the problem or problems; (B) present and future areas to be served, with population data; (C) the source, with quantity and quality of water available; (D) present and estimated future maximum and minimum water quantity demands; (E) description of proposed site and surroundings for the water works facilities; (F) type of treatment, equipment, and capacity of facilities; (G) basic design data, including pumping capacities, water storage and flexibility of system operation under normal and emergency conditions; and (H) the adequacy of the facilities with regard to delivery capacity and pressure throughout the system. (2) All plans and drawings submitted may be printed on any of the various papers which give distinct lines. All prints must be clear, legible, and assembled to facilitate review. (A) The relative location of all facilities which are pertinent to the specific project shall be shown. (B) The location of all abandoned or inactive wells within 1/4 mile of a proposed wellsite shall be shown or reported. (C) If staged construction is anticipated, the overall plan shall be presented, even though a portion of the construction may be deferred. (D) A general map or plan of the municipality, water district, or area to be served shall accompany each proposal for a new water supply system. (3) Specifications for construction of facilities shall accompany all plans. If a process or equipment which may be subject to probationary acceptance because of limited application or use in Texas is proposed, the commission, at its discretion, may give limited approval. In such case, the owner must be given a bonded guarantee from the manufacturer covering acceptable performance. The specifications shall include a statement that such a bonded guarantee will be provided the owner and shall also specify those conditions under which the bond will be forfeited. (4) Copies of each sanitary control easement shall accompany plans for all wells. See sec.290.49 of this title (relating to Appendix C-Sample Sanitary Control Easement Document for a Public Water Well) for a suggested form. (e) Beginning and completion of work. (1) The commission's Water Utilities Division, shall be notified in writing by the design engineer or the owner when construction is started. (2) Upon completion of the water works project, the engineer or owner will notify the commission's Water Utilities Division, in writing, as to its completion and attest to the fact that the completed work is substantially in accordance with the plans and change orders on file with the commission. (f) Changes in plans and specifications. Any addenda or change orders which may involve a health hazard or relocation of facilities, such as wells, treatment units and storage tanks, shall be submitted to the executive director for review and approval. (g) Changes in existing systems or supplies. Changes or additions to existing systems which result in an increase in production, treatment, or storage capacity shall require written notification to the executive director. Changes or additions in existing distribution systems shall require written notification to the executive director when the change or addition is greater than 10% of the existing distribution capacity or 250 connections, whichever is smaller. The executive director shall determine whether engineering plans and specifications will be required after initial notification of the extent of the modifications. The owner shall submit plans and specifications as determined by the executive director in accordance with subsection (c) of this section. (h) Planning material acceptance. Planning material for improvements to an existing system which does not meet the requirements of all sections of these regulations will not be considered unless the necessary modifications for correcting the deficiencies are included in the proposed improvements, or unless the executive director determines that reasonable progress is being made toward correcting the deficiencies and no immediate health hazard will be caused by the delay. (i) Exceptions. Requests for exceptions to one or more of these sections shall be considered on an individual basis. Any water system which requests an exception must demonstrate to the satisfaction of the executive director that the exception will not compromise the public health or result in a degradation of service or water quality. (1) The exception must be requested in writing and must be substantiated by carefully documented data. The request for an exception should precede the submission of engineering plans and specifications for a proposed project. (2) Any exception granted by the commission is subject to revocation. (3) Any request for an exception which is not approved by the commission in writing is denied. sec.290.41. Water Sources. (a) Water quality. The quality of water to be supplied must meet the quality criteria prescribed by the commission's drinking water standards. (b) Water quantity. Sources of supply, both ground and surface, shall have a safe yield capable of supplying the maximum daily demands of the distribution system during extended periods of peak usage and critical hydrologic conditions. The pipe lines and pumping capacities to treatment plants or distribution systems shall be adequate for such water delivery. Minimum capacities required are specified in sec.290.45 of this title (relating to Minimum Water System Capacity Requirements). (c) Ground water sources and development. (1) Ground water sources shall be located so that there will be no danger of pollution from flooding or from insanitary surroundings, such as privies, sewage, sewage treatment plants, livestock and animal pens, solid waste disposal sites or underground fuel storage tanks, or abandoned and improperly sealed wells. (A) No well site which is within 50 feet of a tile or concrete sanitary sewer, sewerage appurtenance, septic tank, or storm sewer; or which is within 150 feet of a septic tank perforated drainfield, absorption bed, evapotranspiration bed or underground fuel storage tank will be acceptable for use as a public drinking water supply well. Sanitary or storm sewers constructed of ductile iron or PVC pipe meeting AWWA standards, having a minimum working pressure of 150 psi or greater, and equipped with pressure type joints may be located at distances of less than 50 feet from a proposed well site but in no case shall the distance be less than 10 feet. (B) No well site shall be located within 500 feet of a sewage treatment plant or within 300 feet of a sewage wet well, sewage pumping station or a drainage ditch which contains industrial waste discharges or the wastes from sewage treatment systems. (C) No water wells shall be located within 500 feet of animal feed lots, solid waste disposal sites, lands on which sewage plant or septic tank sludge is applied, or lands irrigated by sewage plant effluent. (D) Livestock in pastures shall not be allowed within 50 feet of water supply wells. (E) Abandoned or inoperative wells within 1/4 mile of a proposed wellsite shall be reported to the commission along with existing or potential pollution hazards which may affect ground water quality. This information must be submitted prior to construction or as required by the executive director. (F) A sanitary control easement covering that portion of the lands within 150 feet of the well location shall be secured from all such property owners and recorded in the deed records at the county courthouse. The easement shall provide that none of the pollution hazards covered in subparagraphs (A) -(E) of this paragraph, or any facilities that might create a danger of pollution to the water to be produced from the well will be located thereon. Copies of the recorded easements shall be included with plans and specifications submitted for review. (2) The premises, materials, tools, and drilling equipment shall be maintained so as to minimize contamination of the underground water during drilling operation. (A) Water used in any drilling operation shall be of safe sanitary quality. Water used in the mixing of drilling fluids or mud shall contain a chlorine residual of at least 0.5 mg/l. (B) The slush pit shall be constructed and maintained so as to minimize contamination of the drilling mud. (C) No temporary toilet facilities shall be maintained within 150 feet of the well being constructed unless they are of a sealed, leakproof type. (3) Special attention must be given to the construction, disinfection, protection, and testing of a well to be used as a public water supply source. (A) Before placing the well into service, the commission's Water Utilities Division shall be furnished a copy of the well completion data, which includes the following items: the Driller's Log (geological log and material setting report); a cementing certificate; the results of a 36-hour pump test; the results of the microbiological and chemical analyses required by subparagraphs (F) and (G) of this paragraph; a copy of the Sanitary Control Easement; and an original or legible copy of a United States Geological Survey 7.5-minute topographic quadrangle showing the accurate well location. (B) The casing material used in the construction of wells for public use shall be new carbon steel, high-strength low-alloy steel, stainless steel or plastic. The material shall conform to AWWA standards. The casing shall extend a minimum of 18 inches above the elevation of the finished floor of the pump room or natural ground surface and a minimum of one inch above the sealing block or pump motor foundation block when provided. The casing shall extend at least to the depth of the shallowest water formation to be developed and deeper, if necessary, in order to eliminate all undesirable water-bearing strata. Well construction materials containing more than 8.0% lead are prohibited. (C) The space between the casing and drill hole shall be sealed by using enough cement under pressure to completely fill and seal the annular space between the casing and the drill hole. The well casing shall be cemented in this manner from the top of the shallowest formation to be developed to the earth's surface. (D) When a gravel packed well is constructed, all gravel shall be of selected and graded quality and shall be thoroughly disinfected with a 50 mg/l chlorine solution as it is added to the well cavity. (E) Safeguards shall be taken to prevent possible contamination of the water or damage by trespassers following the completion of the well and prior to installation of permanent pumping equipment. (F) Upon well completion, or after an existing well has been reworked, the well shall be disinfected in accordance with current AWWA standards for well disinfection except that the disinfectant shall remain in the well for at least six hours. (i) Before placing the well in service, the water containing the disinfectant shall be flushed from the well and then samples of water shall be collected and submitted for microbiological analysis until three successive daily raw water samples are free of coliform organisms. The analysis of these samples must be conducted by a laboratory approved by the Texas Department of Health. (ii) Appropriate facilities for treatment of the water shall be provided where a satisfactory microbiological record cannot be established after repeated disinfection. The extent of water treatment required will be determined on the basis of geological data, well construction features, nearby sources of contamination and, perhaps, on the basis of quantitative microbiological analyses. (G) A complete physical and chemical analysis of the water produced from a new well shall be made after 36 hours of continuous pumping at the design withdrawal rate. Shorter pump test periods can be accepted for large capacity wells producing from areas of known groundwater production and quality so as to prevent wasting of water. Samples must be submitted to the Texas Department of Health laboratory for chemical analyses. Tentative approval may be given on the basis of tests performed by in-plant or private laboratories but final acceptance by the commission shall be on the basis of results from the Texas Department of Health laboratory. Appropriate treatment shall be provided if the analyses reveal that the water from the well fails to meet the water quality criteria as prescribed by the drinking water standards. These criteria include turbidity, color and threshold odor limitations, and excessive hydrogen sulfide, carbon dioxide, or other constituents or minerals which make the water undesirable or unsuited for domestic use. (H) Below ground-level pump rooms and pump pits will not be allowed in connection with water supply installations. The pump room floor shall be at least two feet above the highest known watermark or 100-year flood elevation, if available, or adequately protected from possible flood damage by levees. (I) The well site shall be fine graded so that the site is free from depressions, reverse grades or areas too rough for proper ground maintenance so as to ensure that surface water will drain away from the well. In all cases, arrangements shall be made to convey well pump drainage, packing gland leakage, and floor drainage away from the wellhead. Suitable drain pipes located at the outer edge of the concrete floor shall be provided to collect this water and prevent its ponding or collecting around the wellhead. This waste water shall be disposed of in a manner that will not cause any nuisance from mosquito breeding or stagnation. Drains shall not be directly connected to storm or sanitary sewers. (J) In all cases, a concrete sealing block extending at least three feet from the well casing in all directions, with a minimum thickness of six inches and sloped to drain away at not less than 0.25 inches per foot shall be provided around the wellhead. (K) Wellheads and pump bases shall be sealed by a gasket or sealing compound and properly vented to prevent the possibility of contaminating the well water. A well casing vent shall be provided with an opening that is covered with 16- mesh or finer corrosion-resistant screen, faced downward, elevated and located so as to minimize the drawing of contaminants into the well. (L) If a well blow-off line is provided, its discharge shall terminate in a downward direction and at a point which will not be submerged by flood waters. (M) A suitable sampling cock shall be provided on the discharge pipe of each well pump prior to any treatment. (N) Flow measuring devices shall be provided for each well to measure production yields and provide for the accumulation of water production data. These devices shall be located to facilitate daily reading. (O) All completed well units shall be protected by intruder-resistant fences, the gates of which are provided with locks or shall be enclosed in locked, ventilated well houses to exclude possible contamination or damage to the facilities by trespassers. The gates or wellhouses shall be locked during periods of darkness and when the plant is unattended. (P) An all-weather access road shall be provided to each well site. (4) Pitless well units may be desirable in areas subject to vandalism or extended periods of subfreezing weather. (A) Pitless units shall be shop fabricated from the point of connection with the well casing to the unit cap or cover, be threaded or welded to the well casing, be of watertight construction throughout and be of materials and weight at least equivalent and compatible to the casing. The units must have a field connection to the lateral discharge from the pitless unit of threaded, flanged, or mechanical joint connection. Each unit must terminate at least 18 inches above the concrete sealing block and at least two feet above the highest known water mark or 100 year flood elevation, whichever is higher. (B) The design of the pitless unit shall make provisions for an access to disinfect the well, a properly designed casing vent, a cover at the upper terminal of the well that will prevent the entrance of contamination, a sealed entrance connection for electrical cable, and at least one check valve within the well casing. The unit shall have an inside diameter as great as that of the well casing up to and including casing diameters of 12 inches. (C) If the connection to the casing is by field weld, the shop-assembled unit must be designed specifically for field welding to the casing. The only field welding permitted will be that needed to connect a pitless unit to the well casing. (D) Completed pitless well unit installations must be provided with above ground level raw water sampling cocks, concrete sealing blocks, and flow measuring devices. (E) The well casing and pitless unit must be properly sealed and cemented in accordance with paragraph (3)(C) of this subsection. (d) Springs and other water sources. (1) Springs and other similar sources of flowing artesian water shall be protected from potential contaminant sources in accordance with the requirements of subsection (c)(1) of this section. (2) Before placing the spring or similar source into service, completion data similar to that required by subsection (c)(3)(A) of this section must be submitted to the commission's Water Utilities Division for review and approval. (3) Springs and similar sources shall be constructed in a manner which will preclude the entrance of surface water and debris. (A) The site shall be fine graded so that it is free from depressions, reverse grades, or areas too rough for proper ground maintenance in order to ensure that surface water will drain away from the source. (B) The spring or similar source shall be encased in an open-bottomed, watertight basin which intercepts the flowing water below the surface of the ground. The basin shall extend at least 18 inches above ground level. The top of the basin shall also be at least two feet above the highest known watermark or 100-year flood elevation, if available, or adequately protected from possible flood damage by levees. (C) In all cases, a concrete sealing block shall be provided which extends at least three feet from the encasement in all directions. The sealing block shall be at least six inches thick and be sloped to drain away from the encasement at not less than 0.25 inches per foot. (D) The top of the encasement shall be provided with a sloped, watertight roof which prevents the ponding of water and precludes the entrance of animals, insects, and other sources of contamination. (E) The roof of the encasement shall be provided with a hatch that is not less than 30 inches in diameter. The hatch shall have a raised curbing at least four inches in height with a lockable cover that overlaps the curbing at least two inches in a downward direction. Where necessary, a gasket shall be used to make a positive seal when the hatch is closed. All hatches shall remain locked except during inspections and maintenance. (F) The encasement shall be provided with a gooseneck vent or roof ventilator which is equipped with approved screens to prevent entry of animals, birds, insects, and heavy air contaminants. Screens shall be fabricated of corrosion- resistant material and shall be 16-mesh or finer. Screens shall be securely clamped in place with stainless or galvanized bands or wires. (G) The encasement shall be provided with an overflow which is designed to prevent the entry of animals, birds, insects, and debris. The discharge opening of the overflow shall be above the surface of the ground and shall not be subject to submergence. (4) Springs and similar sources must be provided with the appurtenances required by subsections (c)(3)(M)-(P) of this section. (e) Surface water sources and development. (1) To determine the degree of pollution from all sources within the watershed, an evaluation shall be made of the proposed surface water impoundment or flowing supply in the area of diversion and its tributary streams. (A) Where surface water sources which are subject to continuous contamination by municipal, agricultural, or industrial wastes and/or treated effluent are contemplated for development for public water systems, the adverse effects of the contamination on the quality of the raw water reaching the treatment plant shall be determined by sanitary surveys and laboratory procedures. These findings shall be submitted with the planning material and will be used to determine whether or not the proposed raw water intake is adequately protected from all sources of contamination. (B) The disposal of all liquid or solid wastes from any source on the watershed must be in conformity with applicable regulations and state statutes. Additionally, pesticides or herbicides which are used within the watershed shall be applied in strict accordance with the product label restrictions. (C) Shore installations, marinas, boats, and all habitations on the watershed shall be provided with satisfactory sewage disposal facilities. Septic tanks and soil absorption fields, tile or concrete sanitary sewers, sewer manholes, or other approved toilet facilities shall not be located in an area within 75 feet horizontally from the lake water surface at the uncontrolled spillway elevation of the lake or 75 feet horizontally from the 50-year flood elevation, whichever is lower. (D) Disposal of wastes from boats or any other watercraft shall be in accordance with the Texas Water Code, sec.sec.321.1-321.18. (2) Intakes shall be located and constructed in a manner which will allow raw water to be taken from a variety of depths and which will permit withdrawal of water when reservoir levels are very low. Fixed level intakes are acceptable if water quality data is available to establish that the effect on raw water quality will be minimal. (A) Insofar as possible, intakes shall be located in areas not subject to excessive siltation and areas not subject to receiving immediate runoff from wooded sloughs and swamps. (B) Water intake works shall be provided with screens or grates to minimize the amount of debris entering the plant. (C) No public boat launching ramps, marinas, docks or floating fishing piers shall be located within 1000 feet of the raw water intake. (D) A restricted zone of 200 feet radius from the raw water intake works shall be established and all recreational activities and trespassing shall be prohibited in this area. Regulations governing this zone shall be in the city ordinances or the rules and regulations promulgated by a water district or similar regulatory agency. Provisions shall be made for the strict enforcement of such ordinances or regulations. The restricted zone shall be designated with signs recounting these restrictions. The signs shall be maintained in plain view of the public and shall be visible from all parts of the restricted area. In addition, special buoys may be required as deemed necessary by the executive director. (E) Commission staff shall make an on-site evaluation of any proposed raw water intake location. The evaluation must be requested prior to final design and must be supported by preliminary design drawings. Once the final intake location has been selected, the commission's Water Utilities Division shall be furnished with an original or legible copy of a United States Geological Survey 7.5-minute topographic quadrangle showing the accurate intake location. (3) The water treatment plant and all pumping units shall be located in well- drained areas not subject to flooding and away from seepage areas or where the underground water table is near the surface. (A) Water treatment plants shall not be located within 500 feet of a sewage treatment plant or lands irrigated with sewage effluent. A minimum distance of 150 feet must be maintained between any septic tank drainfield line and any underground treatment or storage unit. Any sanitary sewers located within 50 feet of any underground treatment or storage units shall be constructed of ductile iron or PVC pipe with a minimum pressure rating of 150 psi and have watertight joints. (B) Plant site selection shall also take into consideration the need for disposition of all plant wastes in accordance with all applicable regulations and state statutes including both liquid and solid waste or by-product material from operation and/or maintenance. (C) The water treatment plant and all appurtenances thereof shall be enclosed by an intruder resistant fence. The gates shall be locked during periods of darkness and when the plant is unattended. A locked building in the fence line may satisfy this requirement or serve as a gate. (D) An all weather road shall be provided to the treatment plant and to the raw water pump station. (E) Flow measuring devices shall be provided to measure the raw water supplied to the plant and to measure the treated water discharged from the plant. These devices shall be located to facilitate use and to assist in the determination of chemical dosages, the accumulation of water production data, and the operation of plant facilities. sec.290.42. Water Treatment. (a) Capacity. Based on current acceptable design standards, the total capacity of the public water system's production and treatment facilities must always be greater than its anticipated maximum daily demand. (b) Ground waters. (1) Disinfection facilities shall be provided for all ground water supplies for the purpose of microbiological control and distribution protection and shall be in conformity with applicable disinfection requirements in subsection (e) of this section. (2) Treatment facilities shall be provided for ground water if the water does not meet the drinking water standards. The facilities provided shall be in conformance with established and proven methods. (A) Filters provided for turbidity and microbiological quality control shall be preceded by coagulant addition and shall conform to the requirements of subsection (c)(10) of this section. Filtration rates for iron and manganese removal, regardless of the media or type of filter, shall be based on a maximum rate of five gallons per square foot per minute. (B) The removal of iron and manganese may not be required if it can be demonstrated that these metals can be sequestered so that the discoloration problems they cause do not exist in the distribution system. (C) All processes involving exposure of the water to atmospheric contamination shall provide for subsequent disinfection of the water ahead of ground storage tanks. Likewise, all exposure of water to atmospheric contamination shall be accomplished in a manner such that insects, birds, and other foreign materials will be excluded from the water. Aerators and all other such openings shall be screened with 16-mesh or finer corrosion resistant screen. (3) Any proposed change in the extent of water treatment required will be determined on the basis of geological data, well construction features, nearby sources of contamination, and on qualitative and quantitative microbiological and chemical analysis. (4) Appropriate laboratory facilities shall be provided for controls as well as to check the effectiveness of disinfection or any other treatment processes employed. (c) Springs and other water sources. (1) Water obtained from springs, infiltration galleries, wells in fissured areas, wells in carbonate rock formations, or wells that do not penetrate an impermeable strata and/or any other source subject to surface or near surface contamination of recent origin shall be evaluated for the provision of treatment facilities. Minimum treatment shall consist of coagulation with direct filtration and adequate disinfection. In all cases, the treatment process must achieve at least a three-log removal or inactivation of Giardia cysts and a four-log removal or inactivation of viruses before the water is supplied to any consumer. (A) Filters provided for turbidity and microbiological quality control shall conform to the requirements of subsection (d)(10) of this section. (B) All processes involving exposure of the water to atmospheric contamination shall provide for subsequent disinfection of the water ahead of ground storage tanks. Likewise, all exposure of water to atmospheric contamination shall be accomplished in a manner such that insects, birds and other foreign materials will be excluded from the water. Aerators and all other such openings shall be screened with 16-mesh or finer corrosion resistant screen. (2) Any proposed change in the extent of water treatment required will be determined on the basis of geological data, well construction features, nearby sources of contamination, and on qualitative and quantitative microbiological and chemical analyses. (3) Appropriate laboratory facilities shall be provided for controls as well as to check the effectiveness of disinfection or any other treatment processes employed. (d) Surface water. (1) All water secured from surface sources shall be given complete treatment at a plant which provides facilities for pretreatment disinfection, taste and odor control, continuous coagulation, sedimentation, filtration, covered clearwell storage, and terminal disinfection of the water with chlorine or suitable chlorine compounds. In all cases, the treatment process must achieve at least a three-log removal or inactivation of Giardia cysts and a four-log removal or inactivation of viruses before the water is supplied to any consumer. (2) No cross-connection or interconnection shall be permitted to exist in a filtration plant between a conduit carrying filtered or post- chlorinated water and another conduit carrying raw water or water in any prior stage of treatment. Vacuum breakers must be provided on each hose bibb within the plant facility. No conduit or basin containing raw water or any water in a prior stage of treatment shall be located directly above, or be permitted to have a single common partition wall with another conduit or basin containing finished water. (3) All drainage conduits shall be constructed so as to be thoroughly tight against leakage. Return of the decanted water and/or sludge to the raw water should be adequately controlled so that there will be a minimum of interference with the treatment process. Any discharge of wastewater shall be in accordance with the appropriate statutes and regulations. (4) Reservoirs for pretreatment and/or selective quality control shall be provided where complete treatment facilities fail to operate satisfactorily at times of maximum turbidities or other abnormal raw water quality conditions exist. Recreational activities at such reservoirs shall be prohibited. (5) Treatment plants shall be provided with efficient devices for measuring and applying chemicals to the water being treated. (A) Each chemical feeder shall have a standby or reserve unit. Common standby feeders are permissible, but, generally, more than one standby feeder must be provided due to the incompatibility of chemicals or the state in which they are being fed (solid, liquid, or gas). (B) Accurate flow meters shall be provided for determining rate of treatment and total amount of water treated. All chemical feed equipment shall be capable of easily adjusting to variations in the flow of water being treated. (C) Dry chemical feeders shall be in a separate room and be provided with facilities for dust control. (D) Chemical feeders shall be provided with dissolving tanks when applicable. (E) Where practical, the transport of chemical solutions between the feeder and the application point should be accomplished through open channels. If enclosed feed lines must be used, they shall be designed and installed so as to prevent clogging and facilitate cleaning. (F) Coagulants shall be applied to the water in the mixing basins or chambers so as to permit their complete mixing with the water. Coagulants shall be applied continuously during treatment plant operation. (G) Chlorine feed units, ammonia feed units, and storage facilities shall be separated by solid, sealed walls. (H) Make-up water supply lines to chemical feeder solution mixing chambers shall be provided with an air gap or other acceptable backflow prevention device. (6) Chemical application points at the raw water source and beyond the mixing basin or chamber shall be provided for quality control, taste and odor control, stabilization, and disinfection for quality control. (7) Chemicals shall be stored off the floor in a separate, dry, above ground level room and protected against flooding or wetting from floors, walls, and ceilings. (A) Storage facilities at the plant shall be adequate to store at least one month's supply of chemicals. However, local resupply ability may dictate the requirements for plant inventories. (B) Chemical storage facilities shall be located so as to help in the handling of bulk chemicals by operators and the transfer of chemicals to the feeders. Also, the movement of chemicals from storage to feed machines shall be done in a manner that facilitates good housekeeping. (C) When liquid chemicals are to be used, special precautions must be taken. The following concerns must be addressed both during the plan review and approval process for new facilities and during the operation of existing plants: (i) issues involving bulk storage tank design such as the materials of construction, capacity, overflow, and containment; (ii) issues involving transfer pump design including the bulk storage tank design, day tank capacity, type, materials of construction, and controls; (iii) issues involving the day tanks such as the materials of construction, overflow, containment, capacity, and controls; (iv) issues involving metering pump design such as the materials of construction, calibration, controls, capacity, and anti-siphon protection; and (v) issues involving piping and valves including their compatibility with solutions. (8) Flash mixing and flocculation equipment shall be provided which is capable of adequate flexibility or adjustment to provide optimum flocculation under varying raw water characteristics and rates of raw water treatment. (A) Where special types of equipment for rapid mechanical mixing, softening, or sedimentation are proposed, the manufacturer must meet the design criteria in paragraph (9) of this subsection. (B) Facilities for coagulation and sedimentation must be provided to clarify the water so that the settled water turbidity is low enough to produce a finished water which meets the turbidity limits established by the commission's drinking water standards. (i) Settled water turbidity of less than five turbidity units is generally required to produce a filtered water turbidity which meets the requirements of the drinking water standards. (ii) All turbidity measurements must be made in accordance with the method specified in the drinking water standards. (C) Plants with a design capacity greater than 3.0 million gallons per day must provide at least two sets of flash mixing and flocculation equipment which are designed to operate in parallel. (9) Basins for straight-flow sedimentation of coagulated waters shall provide a theoretical detention time of at least six hours for clarification plants and 4.5 hours for softening plants. The settling chamber of a solids contact clarification unit shall provide a theoretical detention time of at least two hours. Where shorter detention times are desired; engineering data, pilot plant test data, full scale installation data and other information as required by the commission shall be submitted to the executive director for review and approval of the alternate process. (A) Facilities for sludge removal shall be provided by mechanical means or by the provision of hopper-bottomed basins with valves capable of complete draining of the units. Clarifiers shall be provided with facilities for determining the depth of sludge in the unit. (B) Basins shall be designed to prevent the short-circuiting of flow or the destruction of floc. Coagulated water or water from flocculators shall be transported to sedimentation basins in such a manner as to prevent destruction of floc. Piping, flumes, and troughs shall be designed to provide a flow velocity of 0.5 to 1.5 feet per second. Gates, ports, and valves shall be designed at a maximum flow velocity of four feet per second in the transfer of water between units. (C) Sedimentation basins may be square, rectangular, round or other shapes approved by the executive director. The length of rectangular settling basins shall preferably be at least twice their width with a side water depth of 10 feet to 12 feet in nonsoftening water treatment. Square and round sedimentation basins may also be used for clarification and softening plants; however, the detention time must comply with the requirements of this paragraph. (D) Sedimentation basins shall be provided with facilities for draining the basin within six hours. In the event that the plant site topography is such that gravity draining cannot be realized, a permanently installed electric powered pump station shall be provided to dewater the basin. (E) Plants with a design capacity greater than 3.0 million gallons per day must provide at least two sedimentation basins or clarification units which are designed to operate in parallel. (10) Filters shall be gravity or pressure type. (A) The design of gravity rapid sand filters shall be based on a maximum design filtration rate of two gallons per square foot per minute. At the beginning of filter runs for declining rate filters, a maximum filtration rate of three gallons per square foot per minute is allowed. The filter discharge piping shall be designed with an orifice or other permanently installed flow limiting device to ensure that the maximum filter rate cannot be exceeded. (B) Where high-rate dual or multiple media gravity filters are used, a maximum design filtration rate of five gallons per square foot per minute must be used. At the beginning of filter runs for declining rate filters, a maximum filtration rate of 6.5 gallons per square foot per minute is allowed. The filter discharge piping shall be designed with an orifice or other permanently installed limiting device to ensure that the maximum filter rate cannot be exceeded. (C) Pressure sand filters shall be subject to the loading provisions in subparagraph (A) of this paragraph for gravity sand filters. When used, the pressure filters shall be installed such that duplicate capacity is available to furnish the design capacity with one filter out of service. The use of pressure filters shall be limited to installations with less than 0.50 million gallons per day capacity. (D) The depth of filter sand, anthracite or other filtering materials shall be 24 inches or greater. This filtering material shall be free from clay, dirt, organic matter, and other impurities. Its effective size shall range from 0.35 to 0.45 mm for fine sand, 0.45 to 0.55 mm for medium sand and 0.55 to 0.65 mm for coarse sand. Its uniformity coefficient shall not exceed 1.7. The grain size distribution shall also be as prescribed by AWWA standards. Material for dual or mixed media filters shall conform to AWWA standards. (E) Under the filtering material, at least 12 inches of gravel shall be placed varying in size from 1/16 inch to 2.5 inches. The gravel may be arranged in three to five layers such that each layer contains material about twice the size of the material above it. Other support material may be approved on an individual basis. (F) The rate of flow of backwash water shall not be less than 20 inches vertical rise per minute (12.5 gpm/sq. ft.) and usually not more than 30 inches vertical rise per minute (18.7 gpm/sq. ft.). This shall expand the filtering bed 30 to 50%. The free board in inches shall exceed the wash rate in inches of vertical rise per minute. (i) Only fully treated water shall be used to backwash the filters. This water may be supplied by elevated wash water tanks or by pumps which take suction from the clearwell and are provided for backwashing filters only. For installations having a treatment capacity no greater than 150,000 gallons per day, water for backwashing may be secured directly from the distribution system if proper controls and rate-of-flow limiters are provided. (ii) The rate of filter backwashing shall be regulated by rate-of-flow controllers. (G) When used, surface filter wash systems shall be installed with an atmospheric vacuum breaker or a reduced pressure principle backflow preventer in the supply line. If an atmospheric vacuum breaker is used it shall be installed in a section of the supply line through which all the water passes and which is located above the overflow level of the filter. (H) With the exception of declining rate filters, each filter unit shall be equipped with a manually adjustable rate-of-flow controller with rate-of-flow indication or control valves with indicators. (I) Each filter unit shall be equipped with a device to indicate loss of head through the filter. In lieu of loss-of-head indicators, declining rate filter units may be equipped with rate-of-flow indicators to monitor filter condition. (J) Filter-to-waste connections, if included, shall be provided with an air gap connection to waste. (K) Filters shall be located so that common walls will not exist between them and aerators, mixing, and sedimentation basins or clear wells. This rule is not strictly applicable, however, to partitions open to view and readily accessible for inspection and repair. (11) Pipe galleries shall be incorporated into the plant design with ample working room, good lighting, and good drainage provided by sloping floors, gutters, and sumps. Adequate ventilation to prevent condensation and to provide humidity control is also required. (12) The identification of influent, effluent, waste backwash, and chemical feed lines shall be accomplished by use of labels or various colors of paint. Where labels are used, they shall be placed along the pipe at no greater than five foot intervals. Where colors are used they shall follow the color code prescribed below. Color coding must be by solid color or banding. If bands are used, they shall be placed along the pipe at no greater than five foot intervals. The color code is as follows: [graphic] (13) An adequately equipped laboratory must be available locally where daily microbiological and chemical tests can be made on water supplied by all plants serving 25,000 persons or more. For plants serving populations of less than 25,000, the facilities for making microbiological tests may be omitted and the required microbiological samples submitted to one of the Texas Department of Health's approved laboratories. All surface water treatment plants shall be provided with equipment for making at least the following determinations: pH, disinfectant residual, alkalinity, turbidity, "Jar" tests and other tests deemed necessary to monitor specific water quality problems or to evaluate specific water treatment processes. All surface water treatment plants shall provide sampling taps for raw, settled, and filtered water. (e) Disinfection. (1) All waters obtained from surface sources must be disinfected prior to storage at a dosage sufficient to produce an adequate residual in the water leaving the plant. (2) All ground water must be disinfected prior to distribution. The point of application must be ahead of the water storage tank(s) if storage is provided prior to distribution. Permission to use alternate disinfectant application points must be obtained in writing from the commission. (3) All water stored in treated water storage tanks must contain a disinfectant residual. Disinfection facilities must be provided for all such locations where an adequate disinfectant residual is not maintained from prior treatment. (4) Disinfection equipment shall be selected and installed so that continuous and effective disinfection can be secured under all conditions. (A) Disinfection equipment shall have a capacity at least 50% greater than the highest expected dosage to be applied at any time. It shall be capable of satisfactory operation under every prevailing hydraulic condition. (B) Automatic proportioning of the disinfectant dosage to the flow rate of the water being treated shall be provided at larger plants and at all plants where the rate of flow varies more than 50% above or below the average flow. Manual control shall be permissible only when the rate of flow is relatively constant or an attendant is always on hand to promptly make adjustments. (C) All disinfecting equipment on surface water treatment plants shall include at least one standby unit of each capacity for ensuring uninterrupted operation. (D) Facilities shall be provided for determining the amount of disinfectant used daily as well as the amount of disinfectant remaining for use. (E) When used, solutions of calcium hypochlorite shall be prepared in a separate mixing tank and allowed to settle so that only a clear supernatant liquid is transferred to the hypochlorinator container. (F) Provisions shall be made for both pretreatment disinfection and post- disinfection in all surface water treatment plants. Additional application points shall be installed if they are required to adequately control the quality of the treated water. (G) The use of disinfectants other than chlorine will be considered on a case- by-case basis under the exception guidelines of sec.290.39 (h)(2) of this title (relating to General Provisions). (5) A full-face self-contained breathing apparatus or supplied air respirator that meets Occupational Safety and Health Administration (OSHA) standards for construction and operation, and a small bottle of fresh ammonia solution (or approved equal) for testing for chlorine leakage shall be provided and accessible outside the chlorinator room when chlorine gas is used. (6) Housing for gas chlorination equipment and cylinders of chlorine shall be in separate buildings or separate rooms with impervious walls or partitions separating all mechanical and electrical equipment from the chlorine facilities. Housing shall be located above ground level as a measure of safety. Equipment and cylinders may be installed on the outside of the buildings when protected from adverse weather conditions and vandals. (7) Adequate ventilation which includes both high level and floor level screened vents shall be provided for all enclosures in which gas chlorine is being stored or fed. Enclosures containing more than one open 150 pound cylinder of chlorine shall also provide forced air ventilation which includes screened and louvered floor level and high level vents, a fan which is located at and draws air in through the top vent and discharges through the floor vent, and a fan switch located outside the enclosure. Systems may install negative pressure ventilation in lieu of the above as long as the facilities also have gas containment and treatment as prescribed by the current Uniform Fire Code (UFC). (8) Hypochlorination solution containers and pumps must be housed and locked to protect them from adverse weather conditions and vandalism. The solution container top must be completely covered to prevent the entrance of dust, insects, and other contaminants. (9) Safety equipment and training programs for all chemicals used in water treatment shall meet applicable standards established by the Occupational Safety and Health Administration (OSHA) or the Texas Hazard Communications Act, Health and Safety Code, Chapter 502. (f) Other treatment processes. The adjustment of fluoride ion content, special treatment for iron and manganese reduction, special methods for taste and odor control, demineralization, and other proposals covering other treatment processes will be considered on an individual basis, pursuant to sec.290.39 (g) of this title (relating to General Provisions). (g) Sanitary facilities for water works installations. Toilet and handwashing facilities provided in accordance with established standards of good public health engineering practices shall be available at all installations requiring frequent visits by operating personnel. (h) Permits for waste discharges. Permits for discharging wastes from water treatment processes shall be obtained from the commission. (i) Treatment chemicals and media. Effective January 1, 1993, all chemicals and any additional or replacement process media used in treatment of water supplied by public water systems must conform to American National Standards Institute/National Sanitation Foundation (ANSI/NSF) Standard 60 for direct additives and ANSI/NSF Standard 61 for indirect additives. Conformance with these standards must be obtained by certification of the product by an organization accredited by ANSI. sec.290.43. Water Storage. (a) Capacity. The minimum clear well, storage tank, and pressure maintenance capacity shall be governed by the requirements in sec.290.45 of this title (relating to Minimum Water System Capacity Requirements). (b) Location of clear wells, standpipes, and ground storage and elevated tanks. (1) No public water supply elevated storage or ground storage tank shall be located within 500 feet of any municipal or industrial sewage treatment plant or any land which is spray irrigated with treated sewage effluent or sludge disposal. (2) Insofar as possible, clear wells or treated water tanks shall not be located under any part of any buildings and, when possible, shall be constructed partially or wholly above ground. (3) No storage tank or clear well located below ground level is allowed within 50 feet of a sanitary sewer or septic tank. However, if the sanitary sewers are constructed of 150 psi pressure rated pipe with pressure-tested, watertight joints as used in water main construction, the minimum separation distance is 10 feet. (4) No storage tank or clear well located below ground level is allowed within 150 feet of a septic tank soil absorption system. (c) Design and construction of clear wells, standpipes, ground storage tanks, and elevated tanks. All facilities for potable water storage shall be covered and designed, fabricated, erected, tested, and disinfected in strict accordance with current AWWA standards and shall be provided with the minimum number, size and type of roof vents, manways, drains, sample connections, access ladders, overflows, liquid level indicators, and other appurtenances as specified in these rules. Bolted tanks shall be designed, fabricated, erected, and tested in strict accordance with current AWWA Standard D103. The roof of all tanks shall be designed and erected so that no water ponds at any point on the roof and, in addition, no area of the roof shall have a slope of less than 3/4 inch in 12 inches. (1) Roof vents shall be gooseneck or roof ventilator and be designed by the engineer based on the maximum outflow from the tank. Vents shall be installed in strict accordance with current AWWA standards and shall be equipped with approved screens to prevent entry of animals, birds, insects, and heavy air contaminants. Screens shall be fabricated of corrosion-resistant material and shall be 16-mesh or finer. Screens shall be securely clamped in place with stainless or galvanized bands or wires and shall be designed to withstand winds of not less than tank design criteria (unless specified otherwise by the engineer). (2) All roof openings shall be designed in accordance with current AWWA standards. If an alternate 30 inch diameter access opening is not provided in a storage tank, the primary roof access opening shall not be less than 30 inches in diameter. Other roof openings required only for ventilating purposes during cleaning, repairing or painting operations shall be not less than 24 inches in diameter or as specified by the design engineer. Each access opening shall have a raised curbing at least four inches in height with a lockable cover that overlaps the curbing at least two inches in a downward direction. Where necessary, a gasket shall be used to make a positive seal when the hatch is closed. All hatches shall remain locked except during inspections and maintenance. (3) Overflows shall be designed in strict accordance with current AWWA standards and shall terminate with a gravity hinged and weighted cover. The cover shall fit tightly with no gap over 1/16 inch. If the overflow terminates at any point other than the ground level, it shall be located near enough and at a position accessible from a ladder or the balcony for inspection purposes. The overflow(s) shall be sized to handle the maximum possible fill rate without exceeding the capacity of the overflow(s). The discharge opening of the overflow(s) shall be above the surface of the ground and shall not be subject to submergence. (4) All clear wells and water storage tanks shall have a liquid level indicator located at the tank site. The indicator can be a float with a moving target, an ultrasonic level indicator, or a pressure gauge calibrated in feet of water. If an elevated tank or standpipe has a float with moving target indicator, it must also have a pressure indicator located at ground level. Pressure gauges must not be less than three inches in diameter and calibrated at not more than two foot intervals. Remote reading gauges at the owner's treatment plant or pumping station will not eliminate the requirement for a gauge at the tank site unless the tank is located at the plant or station. (5) Inlet and outlet connections shall be located so as to prevent short circuiting or stagnation of water. (6) Clear wells and potable water storage tanks shall be thoroughly tight against leakage, shall be located above the ground water table and shall have no walls in common with any other plant units containing water in the process of treatment. All associated appurtenances including valves, pipes and fittings shall be tight against leakage. (7) Each clearwell or potable water storage tank shall be provided with a means of removing accumulated silt and deposits at all low points in the bottom of the tank. Drains shall not be connected to any waste or sewage disposal system and shall be constructed so that they are not a potential agent in the contamination of the stored water. (8) All clear wells, ground storage tanks, standpipes, and elevated tanks shall be painted, disinfected, and maintained in strict accordance with current AWWA standards. However, no temporary coatings, wax grease coatings, or coating materials containing lead will be allowed. No other coatings will be allowed which are not approved for use (as a contact surface with potable water) by the United States Public Health Service (USPHS), the United States Environmental Protection Agency (EPA), National Sanitation Foundation (NSF), or the United States Food and Drug Administration (FDA). Effective January 1, 1993, all newly installed coatings must conform to ANSI/NSF Standard 61 and must be certified by an organization accredited by ANSI. (9) No tanks or containers shall be used to store potable water that have previously been used for any non-potable purpose. Where a used tank is proposed for use, a letter from the previous owner or owners must be submitted to the commission which states the use of the tank. (10) Access manways in the riser pipe, shell area, access tube, bowl area, or any other location opening directly into the water compartment shall be located in strict accordance with current AWWA standards. These openings shall not be less than 24 inches in diameter. However, in the case of a riser pipe or access tube of 36 inches in diameter or smaller, the access manway may be 18 inches times 24 inches with the vertical dimension not less than 24 inches. The primary access manway in the lower ring or section of a ground storage tank shall be not less than 30 inches in diameter. Where necessary, for any access manway which allows direct access to the water compartment, a gasket shall be used to make a positive seal when the access manway is closed. (d) Design and construction of pressure (hydropneumatic) tanks. All hydropneumatic tanks must be located wholly above grade and must be of steel construction with welded seams except as provided in paragraph (8) of this subsection. (1) Metal thickness for pressure tanks shall be sufficient to provide at least a minimum of 1/8 inch corrosion allowance and to withstand the highest expected working pressures with a four to one factor of safety. Tanks of 1,000 gallon capacity or larger must meet the standards of the American Society of Mechanical Engineers (ASME) Section VIII, Division 1 Codes and Construction Regulations and must have an access port for periodic inspections. An ASME name plate must be permanently attached to those tanks. Tanks installed before July 1, 1988, are exempt from the ASME coding requirement, but all new installations must meet this regulation. Exempt tanks can be relocated within a system but cannot be relocated to another system. (2) All pressure tanks shall be provided with a pressure release device and an easily readable pressure gauge. (3) Facilities shall be provided for maintaining the air-water-volume at the design water level and working pressure. Air injection lines must be equipped with filters or other devices to prevent compressor lubricants and other contaminants from entering the pressure tank. A device to readily determine air- water-volume must be provided for all tanks greater than 1,000 gallon capacity. Galvanized tanks which are not provided with the necessary fittings and which were installed before July 1, 1988, shall be exempt from this requirement. (4) Protective paint or coating shall be applied to the inside portion of any pressure tank. The coating shall be as specified in subsection (c)(8) of this section. (5) No pressure tank that has been used to store any material other than potable water may be used in a public water system. A letter from the previous owner or owners must be provided as specified in subsection (c)(9) of this section. (6) Pressure tank installations should be equipped with slow closing valves and time delay pump controls to eliminate water hammer and reduce the chance of tank failure. (7) All associated appurtenances including valves, pipes and fittings connected to pressure tanks shall be thoroughly tight against leakage. (8) For systems utilizing seamless fiberglass tanks, a maximum of 300 gallons of this type tank capacity is allowed. (9) No more than three pressure tanks can be installed at any one site without the prior approval of the executive director. (e) Facility fencing. All potable water storage tanks and pressure maintenance facilities must be enclosed by an intruder resistant fence with lockable gates. Pedestal-type elevated storage tanks with lockable doors and without external ladders are exempt from this requirement. The gates and doors must be kept locked whenever the facility is unattended. sec.290.44. Water Distribution. (a) Design and standards. All potable water distribution systems including pump stations, mains, and both ground and elevated storage tanks, shall be designed, installed and constructed in accordance with current American Water Works Association (AWWA) standards with reference to materials to be used and construction procedures to be followed. In the absence of AWWA standards, commission review may be based upon the standards of the American Society for Testing and Materials (ASTM), commercial and other recognized standards utilized by design engineers. (1) Effective January 1, 1993, all newly installed pipes and related products must conform to American National Standards Institute/National Sanitation Foundation (ANSI/NSF) Standard 61 and must be certified by an organization accredited by ANSI. (2) All plastic pipe for use in public water systems must bear the National Sanitation Foundation Seal of Approval and have an ASTM design pressure rating of at least 150 psi or a standard dimension ratio of 26. (3) No pipe which has been used for any purpose other than the conveyance of drinking water shall be accepted or relocated for use in any public drinking water supply. (4) Water transmission and distribution lines must be installed in accordance with the manufacturer's instructions. However, the top of the water line must be located below the frost line and in no case shall the top of the water line be less than 12 inches below ground surface. (5) The hydrostatic leakage rate shall not exceed the amount allowed or recommended by AWWA formulas. (b) Lead ban. The following provisions apply to the use of lead in plumbing. (1) The use of pipes and pipe fittings that contain more than 8.0% lead or solders and flux that contains more than 0.2% lead is prohibited in the following circumstances: (A) for installation or repair of any public water supply, and (B) for installation or repair of any plumbing in a residential or nonresidential facility providing water for human consumption and connected to a public drinking water supply system. (2) This requirement will be waived for lead joints that are necessary for repairs to cast iron pipe. (c) Minimum water line sizes. These are minimum requirements for domestic flows only and do not consider fire flows. These requirements should be exceeded when the design engineer deems it necessary. It should be noted that the required sizes are based strictly on the number of customers to be served and not on the distances between connections or differences in elevation or the type of pipe. No new water line under two inches in diameter will be allowed to be installed in a public water system distribution system after April 1, 1992. These minimum line sizes do not apply to individual customer service lines. [graphic] (d) Minimum pressure requirement. The system must be designed to maintain a minimum pressure of 35 psi at all points within the distribution network at flow rates of at least 1.5 gallons per minute per connection. When the system is intended to provide fire fighting capability, it must also be designed to maintain a minimum pressure of 20 psi under combined fire and drinking water flow conditions. (1) Where the topography of the area to be served is such that air locks in the lines may occur, air release devices shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants. (2) When service is to be provided to more than one pressure plane or when distribution system conditions and demands are such that low pressures develop, the method of providing increased pressure shall be by means of booster pumps taking suction from storage tanks. If an exception to this requirement is desired, the designing engineer must furnish for the executive director's review all planning material for booster pumps taking suction from other than a storage tank. The planning material must contain a full description of the supply to the point of suction, maximum demands on this part of the system, location of pressure recorders, safety controls, and other pertinent information. Where booster pumps are installed to take suction directly from the distribution system, a minimum residual pressure of 20 pounds per square inch (psi) must be maintained on the suction line at all times. Such installations must be equipped with automatic pressure cut-off devices so that the pumping units become inoperative at a suction pressure of less than 20 psi. In addition, a continuous pressure recording device may be required at a predetermined suspected critical pressure point on the suction line in order to record the hydraulic conditions in the line at all times. If such a record indicates critical minimum pressures (less than 20 psi), adequate storage facilities must be installed with the booster pumps taking suction from the storage facility. Fire pumps used to maintain pressure on automatic sprinkler systems only for fire protection purposes are not considered as in-line booster pumps. (3) Service connections which require booster pumps taking suction from the public water system distribution lines must be equipped with automatic pressure cut-off devices so that the pumping units become inoperative at a suction pressure of less than 20 psi. Where these types of installations are necessary, the preferred method of pressure maintenance consists of an air gapped connection with a storage tank and subsequent repressurization facilities. (4) Each community public water system shall provide accurate metering devices at each service connection for the accumulation of water usage data. Systems where no direct charge is made for the water shall be exempted from this requirement. (5) The system shall be provided with sufficient valves and blowoffs so that necessary repairs can be made without undue interruption of service over any considerable area and for flushing the system when required. The engineering report shall establish criteria for this design. (6) The system shall be designed to afford effective circulation of water with a minimum of dead ends. All dead-end mains shall be provided with acceptable flush valves and discharge piping. All dead-end lines less than two inches in diameter will not require flush valves if they end at a customer service. Where dead ends are necessary as a stage in the growth of the system, they shall be located and arranged with a view to ultimately connecting them to provide circulation. (e) Location of water lines. (1) When water lines and sanitary sewer lines are installed, they shall be installed no closer to each other than nine feet in all directions and parallel lines must be installed in separate trenches. Where the nine foot separation distance cannot be achieved, the guidelines in this subsection shall apply. The guidelines are also listed in tabular form in the following table. The minimum separation distances do not apply to individual customer service lines, although they are recommended. [graphic] (A) Where a sanitary sewer line parallels a water line, the sewer line shall be constructed of cast iron, ductile iron or PVC meeting ASTM specifications with a pressure rating for both the pipe and joints of 150 psi. The vertical separation shall be a minimum of two feet between outside diameters and the horizontal separation shall be a minimum of four feet between outside diameters. The sewer line shall be located below the water line. (B) Where a sanitary sewer line crosses a water line and the sewer line is constructed of cast iron, ductile iron or PVC with a minimum pressure rating of 150 psi, an absolute minimum distance of six inches between outside diameters shall be maintained. In addition, the sewer line shall be located below the water line where possible and one length of the sewer pipe must be centered on the water line. (C) Where a sewer line crosses under a water line and the sewer line is constructed of ABS truss pipe, similar semi-rigid plastic composite pipe, clay pipe, or concrete pipe with gasketed joints, a minimum two foot separation distance shall be maintained. The initial backfill shall be cement stabilized sand (two or more bags of cement per cubic yard of sand) for all sections of sewer line within nine feet of the water line. This initial backfill shall be from one quarter diameter below the centerline of the pipe to one pipe diameter (but not less than 12 inches) above the top of the pipe. (D) Where a sewer line crosses over a water line all portions of the sewer line within nine feet of the water line shall be constructed of cast iron, ductile iron or PVC pipe with a pressure rating of at least 150 psi using appropriate adapters. In lieu of this procedure, the new conveyance may be encased in a joint of 150 psi pressure class pipe at least 18 feet long and two nominal sizes larger than the new conveyance. The space around the carrier pipe shall be supported at five feet intervals with spacers or be filled to the spring line with washed sand. The encasement pipe should be centered on the crossing and both ends sealed with cement grout or manufactured seal. (E) The sewer line need not be disturbed where a new water line is to be installed parallel to an existing sewer line that shows no evidence of leakage and the water line is installed above the sewer line a minimum of two feet vertically and four feet horizontally. Should excavation for the water line produce evidence that the sewer is leaking, the sewer line must be repaired or replaced as described in subparagraphs (A) or (D) of this paragraph. (F) The sewer line need not be disturbed where a new water line is to cross over (by two feet or more) existing sewer lines showing no evidence of leakage. Should excavation for the water line produce evidence that the sewer line is leaking, then the sewer line must be repaired or replaced as described in subparagraphs (C) or (D) of this paragraph. (2) Unless sanitary sewer manholes and the connecting sewer lines can be made watertight and tested for no leakage, they must be installed so as to provide a minimum of nine feet of horizontal clearance from an existing or proposed water line. Where the nine foot separation distance cannot be achieved, an encasement pipe as described in paragraph (1)(D) of this subsection may be used for the water line. (3) Fire hydrants shall not be installed within nine feet vertically or horizontally of any sanitary sewer line regardless of construction. (4) No physical connection shall be made between a drinking water supply and a sewer line. Any appurtenance shall be designed and constructed so as to prevent any possibility of sewage entering the drinking water system. (5) No sewer line carrying domestic or industrial wastes shall cross suction mains to pumping equipment. Water lines shall not be installed closer than ten feet to septic tank drainfields. No raw water lines shall be installed within five feet of any tile or concrete sanitary sewer (f) Sanitary precautions and disinfection. Sanitary precautions, flushing, disinfection procedures and microbiological sampling as prescribed in AWWA standards for disinfecting water mains shall be followed in laying water lines. (1) Pipe shall not be laid in water or placed where it can be flooded with water or sewage during its storage or installation. (2) Special precautions must be taken when water lines are laid under any flowing or intermittent stream or semipermanent body of water such as marsh, bay or estuary. In these cases, the water main shall be installed in a separate watertight pipe encasement and valves must be provided on each side of the crossing with facilities to allow the underwater portion of the system to be isolated and tested to determine that there are no leaks in the underwater line. Alternately, and with the executive director's permission, the watertight pipe encasement may be omitted. (3) New mains shall be thoroughly disinfected in accordance with AWWA Standard C651 and then flushed and sampled before being placed in service. Samples shall be collected for microbiological analysis to check the effectiveness of the disinfection procedure which shall be repeated if contamination persists. A minimum of one sample for each 1,000 feet of completed water line will be required or at the next available sampling point beyond 1,000 feet as designated by the design engineer. (g) Interconnections. (1) Each proposal for a direct connection between public drinking water systems under separate administrative authority will be considered on an individual basis. (A) Documents covering the responsibility for sanitary control shall accompany the submitted planning material. (B) Each water supply shall be of a safe, potable quality. (2) Where an interconnection between systems is proposed to provide a second source of supply for one or both systems, the system being utilized as a second source of supply must be capable of supplying a minimum of 0.35 gallons per minute per connection for the total number of connections in the combined distribution systems. (h) Backflow, siphonage. (1) No water connection from any public drinking water supply system shall be made to any establishment where an actual or potential contamination or system hazard exists without an air gap separation between the drinking water supply and the source of potential contamination. The containment air gap is sometimes impractical and, instead, reliance must be placed on individual "internal" air gaps or mechanical backflow prevention devices. Under these conditions, additional protection shall be required at the meter in the form of a backflow prevention device (in accordance with AWWA Standards C510 and C511, and AWWA Manual M14) on those establishments handling substances deleterious or hazardous to the public health. The water purveyor need not require backflow protection at the water service entrance if an adequate cross-connection control program is in effect that includes an annual inspection and testing by a certified backflow prevention device tester. It will be the responsibility of the water purveyor to ensure that these requirements are met. (2) No water connection from any public drinking water supply system shall be made to any condensing, cooling or industrial process or any other system of nonpotable usage over which the public water supply system officials do not have sanitary control, unless the said connection is made in accordance with the requirements of paragraph (1) of this subsection. Water from such systems cannot be returned to the potable water supply. (3) Overhead bulk water dispensing stations must be provided with an air gap between the filling outlet hose and the receiving tank to protect against back siphonage and cross-contamination. (4) All backflow prevention devices shall be tested upon installation by a backflow prevention device tester as designated by the public water system. It is recommended that the designated tester be certified by the manufacturer or as specified in the public water system's regulations. It is strongly recommended that all backflow prevention devices be tested annually with their "test and maintenance" report forms retained for a minimum of three years. (5) The use of a backflow prevention device at the service connection shall be considered as additional backflow protection and shall not negate the use of backflow protection on internal hazards as outlined and enforced by local plumbing codes. (i) Water hauling. When drinking water is distributed by tank truck or trailer, it must be accomplished in the following manner. (1) Water shall be obtained from an approved source. (2) The equipment used to haul the water must be approved by the executive director and must be constructed as follows. (A) The tank truck or trailer shall be used for transporting drinking water only and shall be labeled "Drinking Water". Tanks which have been used previously for purposes other than transporting potable liquids shall not be used for hauling drinking water. (B) The tank shall be watertight and of an approved material which is impervious and easily cleaned and disinfected. Any paint or coating and any plastic or fiberglass materials used as contact surfaces must be approved by the United State Environmental Protection Agency, the United State Food and Drug Administration, the United State Public Health Service or the National Sanitation Foundation. Effective January 1, 1993, any newly installed surfaces shall conform to ANSI/NSF Standard 61 and must be certified by an organization accredited by ANSI. (C) The tank shall have a manhole and a manhole cover which overlaps the raised manhole opening by a minimum of two inches and terminates in a downward direction. The cover shall fit firmly on the manhole opening and shall be kept locked. (D) The tank shall have a vent which is faced downward and located to minimize the possibility of drawing contaminants into the stored water. The vent must be screened with 16-mesh or finer corrosion resistant material. (E) Connections for filling and emptying the tank shall be properly protected to prevent the possible entrance of contamination. These openings must be provided with caps and keeper chains. (F) A drain shall be provided which will completely empty the tank for cleaning or repairs. (G) When a pump is used to transfer the water from the tank, the pump shall be permanently mounted with a permanent connection to the tank. The discharge side of the pump shall be properly protected between uses by a protective cap and keeper chain. (H) Hoses used for the transfer of drinking water to and from the tank shall be used only for that purpose and labeled for drinking water only. The hoses shall conform to ANSI/NSF Standard 61 and must be certified by an entity recognized by the commission. Hoses and related appurtenances must be cleaned and disinfected on a regular basis during prolonged use or before start-up during intermittent use. Hoses must be properly stored between uses and must be provided with caps and keeper chains or have the ends connected together. (I) The tank shall be disinfected monthly and at any time that contamination is suspected. (J) At least one sample per month from each tank shall be collected and submitted for microbiological analysis to one of the commission's approved laboratories for each month of operation. (K) A minimum free chlorine residual of 0.5 mg/l or, if chloramines are used as the primary disinfectant, a chloramine residual of 1.0 mg/l (measured as total chlorine) shall be maintained in the water being hauled. Chlorine or chlorine containing compounds may be added on a "batch" basis to maintain the required residual. (L) Operational records detailing the amount of water hauled, purchases, and source of water shall be maintained. sec.290.45. Minimum Water System Capacity Requirements. (a) General provisions. The following requirements are to be used in evaluating both the total capacities for public water systems and the capacities at individual pump stations and pressure planes. The capacities listed below are minimum requirements only. Additional supply, storage, service pumping, and pressure maintenance facilities will be required by the commission if a normal operating pressure of 35 psi cannot be maintained throughout the system. Additional capacities will also be required if the system is unable to maintain a minimum pressure of 20 psi during fire fighting, line flushing and other unusual conditions. In all sections governing quantity requirements, total storage capacity does not include pressure tank capacity. (b) Community water systems. (1) Ground water supply requirements are as follows: (A) If fewer than 50 connections without ground storage, the system must have the following: (i) a well capacity of 1.5 gallons per minute per connection; and (ii) a pressure tank capacity of 50 gallons per connection. (B) If fewer than 50 connections with ground storage, the system must have the following: (i) a well capacity of 0.6 gallon per minute per connection; (ii) a total storage capacity of 200 gallons per connection; (iii) a service pump capacity of 2.0 gallons per minute per connection; and (iv) a pressure tank capacity of 20 gallons per connection. (C) For 50 to 250 connections, the system must meet the following requirements. (i) A well capacity of 0.6 gallon per minute per connection must be provided. (ii) A total storage capacity of 200 gallons per connection must be provided. (iii) Each pump station or pressure plane shall have two or more pumps having a total capacity of 2.0 gallons per minute per connection. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gallons per minute per connection are required at each pump station or pressure plane. If only wells and elevated storage are provided, service pumps are not required. (iv) An elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection must be provided. (D) For more than 250 connections, the system must meet the following requirements. (i) Two or more wells having a total capacity of 0.6 gallons per minute per connection must be provided. Where an interconnection is provided with another acceptable water system capable of supplying at least 0.35 gallons per minute for each connection in the combined system under emergency conditions, an additional well will not be required as long as the 0. 6 gallons per minute per connection requirement is met for each system on an individual basis. Each water system must still meet the storage and pressure maintenance requirements on an individual basis unless the interconnection is permanently open; in this case, the systems' capacities will be rated as though a single system existed. (ii) A total storage capacity of 200 gallons per connection must be provided. (iii) Each pump station or pressure plane shall have two or more pumps that have a total capacity of 2.0 gallons per minute per connection or that have a total capacity of at least 1,000 gallons per minute and the ability to meet peak hourly demands with the largest pump out of service, whichever is less. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gallons per minute per connection are required at each pump station or pressure plane. If only wells and elevated storage are provided, service pumps are not required. (iv) An elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection must be provided. If pressure tanks are used, a maximum capacity of 30,000 gallons is required. An elevated storage capacity of 100 gallons per connection is required for systems with more than 2,500 connections. Systems with more than 50,000 connections which utilize multiple production plants may, with the executive director's approval, substitute additional ground storage capacity, service pumping capacity and auxiliary power for elevated storage in excess of five million gallons. Pressure tank installations are not recommended for systems serving between 1,000 and 2,500 connections and serious consideration should be given to the provision of elevated storage. (v) Auxiliary power is required for systems which serve more than 250 connections and do not meet the elevated storage requirement. Sufficient auxiliary power must be provided to deliver a minimum of 0.35 gallons per minute per connection to the distribution system in the event of the loss of normal power supply. Alternately, an emergency interconnection can be provided with another public water system that has auxiliary power and is able to supply at least 0.35 gallons per minute for each connection in the combined system. (E) Mobile home parks with a density of 8 or more units per acre and apartment complexes which supply fewer than 100 connections without ground storage must have the following: (i) a well capacity of 1. 0 gallon per minute per connection; and (ii) a pressure tank capacity of 50 gallons per connection with a maximum of 2,500 gallons required. (F) Mobile home parks and apartment complexes which supply 100 or more connections, or fewer than 100 connections and utilize ground storage must meet the following requirements. (i) A well capacity of 0.6 gallons per minute per connection must be provided. Systems with 250 or more connections must have either two wells or an approved interconnection which is capable of supplying at least 0.35 gallons per minute for each connection in the combined system. (ii) A total storage of 200 gallons per connection must be provided. (iii) A service pump capacity of 2.0 gallons per minute per connection must be provided. Systems with 250 or more connections must have two or more service pumps with a combined capacity of at least 2.0 gallons per minute per connection. (iv) A pressure tank capacity of 20 gallons per connection must be provided. (2) All surface water supplies must provide the following: (A) a raw water pump capacity of 0.6 gallon per minute per connection with the largest pump out of service; (B) a treatment plant capacity of 0.6 gallon per minute per connection under normal rated design flow; (C) transfer pumps (where applicable) with a capacity of 0.6 gallon per minute per connection with the largest pump out of service; (D) a covered clearwell storage capacity at the treatment plant of 50 gallons per connection or, for systems serving more than 250 connections, 5.0 per cent of daily plant capacity; (E) a total storage capacity of 200 gallons per connection; (F) a service pump capacity that provides each pump station or pressure plane with two or more pumps that have a total capacity of 2.0 gallons per minute per connection or that have a total capacity of at least 1, 000 gallons per minute and the ability to meet peak hourly demands with the largest pump out of service, whichever is less. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gallons per minute per connection are required at each pump station or pressure plane; (G) an elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection must be provided. If pressure tanks are used, a maximum capacity of 30,000 gallons is required. An elevated storage capacity of 100 gallons per connection is required for systems with more than 2,500 connections. Systems with more than 50,000 connections which utilize multiple production plants may, with the executive director's approval, substitute additional ground storage capacity, service pumping capacity and auxiliary power for elevated storage in excess of five million gallons. Pressure tank installations are not recommended for systems serving between 1,000 and 2,500 connections and serious consideration should be given to the provision of elevated storage; (H) auxiliary power is required for systems which serve more than 250 connections and do not meet the elevated storage requirement. Sufficient auxiliary power must provided to deliver a minimum of 0.35 gallons per minute per connection to the distribution system in the event of the loss of normal power supply. Alternately, an emergency interconnection can be provided with another public water system that has auxiliary power and is able to supply at least 0.35 gallons per minute for each connection in the combined system. (c) Noncommunity water systems serving transient accommodation units. The following water quantity requirements apply to noncommunity water systems serving accommodation units such as hotel rooms, motel rooms, travel trailer spaces, campsites, and similar accommodations. (1) Ground water supply requirements are as follows. (A) If fewer than 100 accommodation units without ground storage, the system must have the following: (i) a well capacity of 1.0 gallon per minute per unit; and (ii) a pressure tank capacity of 10 gallons per unit with a minimum of 220 gallons. (B) For systems serving fewer than 100 accommodation units with ground storage or serving 100 or more accommodation units, the system must have the following: (i) a well capacity of 0.6 gallons per minute per unit; (ii) a ground storage capacity of 35 gallons per unit; (iii) two or more service pumps which have a total capacity of 1.0 gallon per minute per unit; and (iv) a pressure tank capacity of 10 gallons per unit. (2) All surface water supplies, regardless of size, must have the following: (A) a raw water pump capacity of 0.6 gallons per minute per unit with the largest pump out of service; (B) a treatment plant capacity of 0.6 gallons per minute per unit; (C) a transfer pump capacity (where applicable) of 0.6 gallons per minute per unit with the largest pump out of service; (D) a ground storage capacity of 35 gallons per unit with a minimum of 1,000 gallons as clearwell capacity; (E) two or more service pumps with a total capacity of 1.0 gallon per minute per unit; and (F) a pressure tank capacity of 10 gallons per unit with a minimum requirement of 220 gallons. (d) Noncommunity water systems serving other than transient accommodation units. (1) The following table is applicable to paragraphs (2) and (3) of this subsection and shall be used to determine the maximum daily demand for the various types of facilities listed: [graphic] (2) Ground water supply requirements are as follows: (A) If fewer than 300 persons per day are served, the system must have the following: (i) a well capacity which can supply the maximum daily demand of the system during the hours of operation; and (ii) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the commission. (B) If 300 or more persons per day are served, the system must have the following: (i) a well capacity which can supply the maximum daily demand; (ii) a ground storage capacity which is equal to 50% of the maximum daily demand; (iii) a service pump capacity of at least three times the maximum daily demand; and (iv) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the commission. (3) Each surface water supply, regardless of size, shall meet the following requirements: (A) a raw water pump capacity which can meet the maximum daily demand of the system with the largest pump out of service; (B) a treatment plant capacity which can meet the system's maximum daily demand; (C) a transfer pump capacity (where applicable) sufficient to meet the maximum daily demand with the largest pump out of service; (D) a clearwell capacity which is equal to 50% of the maximum daily demand; (E) two or more service pumps with a total capacity of three times the maximum daily demand; and (F) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the commission. (e) Water wholesalers. The following additional requirements apply to systems which supply wholesale treated water to other public water supplies. (1) All wholesalers must provide enough production, treatment, and service pumping capacity to meet or exceed the combined maximum daily commitments specified in their various contractual obligations. (2) For systems supplying both retail and wholesale connections, the commission's production, treatment and service pumping capacity requirements for the system's wholesale connections are in addition to the commission's requirements for the system's retail connections. (3) Auxiliary power is required for each portion of the system which supplies more than 250 connections under direct pressure and does not provide an elevated storage capacity of at least 100 gallons per connection. If auxiliary power is required, it must be sufficient to deliver 20 per cent of the minimum required service pump capacity in the event of the loss of normal power supply. When the wholesaler provides water through an air gap into the purchaser's storage facilities it will be the purchaser's responsibility to meet all minimum water system capacity requirements including auxiliary power. (f) Purchased water systems. The following requirements apply only to systems which purchase treated water to meet all or part of their production, storage, service pump, or pressure maintenance capacity requirements. (1) The water purchase contract shall be available to the commission in order that production, storage, service pump, or pressure maintenance capacity may be properly evaluated. For the purposes of this section, contract may be defined as a signed written document of specific terms agreeable to the water purchaser and the water wholesaler, or in its absence, a memorandum or letter of understanding between the water purchaser and wholesaler. (2) The contract shall authorize the purchase of enough water to meet the monthly or annual needs of the purchaser. (3) The contract shall also establish the maximum rate at which water may be drafted on a daily and hourly basis. In the absence of specific maximum daily or maximum hourly rates in the contract, a uniform purchase rate for the contract period will be used. (4) The maximum authorized daily purchase rate specified in the contract plus the actual production capacity of the system shall be at least 0.6 gallons per minute per connection. (5) For systems which purchase water under direct pressure, the maximum hourly purchase authorized by the contract plus the actual service pump capacity of the system must be at least 2.0 gallons per minute per connection or provide at least 1,000 gallons per minute and be able to meet peak hourly demands, whichever is less. (6) All other minimum capacity requirements specified in this section shall apply. (g) Exceptions. Requests for exceptions to one or more of these minimum water system capacity requirements shall be considered on an individual basis. Any water system which requests an exception must demonstrate to the satisfaction of the executive director (ED) that the exception will not compromise the public health or result in a degradation of service or water quality. (see sec.290.39(i) of this title (relating to General Provisions)). (1) Exceptions to the minimum capacity requirements for public water systems may be made based upon application and approval by the executive director. The application for an exception to the minimum capacity requirements must include: (A) provision of a detailed inventory of the major production, pressurization, and storage facilities utilized by the system; (B) provision of records kept by the water system that document the daily production of the system. The period reviewed shall not be less than three years. The applicant may not use a calculated peak daily demand; (C) the executive director may also require data acquired during the last drought period in the region; (D) the peak demand days over the study period must utilize data on the number of active connections to determine the actual demand per connection experienced; (E) description of any unusual demands on the system such as fire flows or major main breaks that will invalidate unusual peak demands experienced in the study period; (F) any other relevant data required to evaluate the exception request. (2) Any exception granted pursuant to these requirements shall be subject to review at the time of each routine sanitary survey of the system. Failure to demonstrate satisfactory survey findings may result in revocation of the exception. sec.290.46. Minimum Acceptable Operating Practices for Public Drinking Water Systems. (a) General. When a public drinking water supply system is to be established, plans shall be submitted to the executive director for review and approval prior to the construction of the system. All public water systems are to be constructed in conformance with these sections and maintained and operated in accordance with the following minimum acceptable operating practices. Owners and operators shall allow entry to members of the commission and employees and agents of the commission onto any public or private property at any reasonable time for the purpose of inspecting and investigating conditions relating to public water systems in the state. Members, employees, or agents acting under this authority shall observe the establishment's rules and regulations concerning safety, internal security, and fire protection, and if the property has management in residence, shall notify management or the person then in charge of his presence and shall exhibit proper credentials. (b) Microbiological. Submission of samples for microbiological analysis shall be as required by sec.sec.290.1-290.19 of this title (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems). Microbiological samples may be required by the Commission for monitoring purposes in addition to the routine samples required by the drinking water standards. These samples shall be submitted to the Texas Department of Health Bureau of Laboratories or one of its approved laboratories. (A list of the approved laboratories can be obtained by contacting the Texas Department of Health Bureau of Laboratories). (c) Chemical. Samples for chemical analysis shall be submitted as directed by personnel from the commission's Water Utilities Division or it district offices. (d) Monthly operation reports. A monthly report of water works operation must be compiled. The report shall show the amounts of various chemicals, daily distribution system pumpages, dates of dead-end main flushes, cleanings of storage tanks, results of microbiological and chemical tests performed, and other pertinent data. Systems using surface water sources must also report raw and treated water analyses and daily turbidity analyses. A copy must be kept on file for review and made available during inspections. (1) A copy of the monthly report must be submitted to the Texas Water Commission, Water Utilities Division, P.O. Box 13087, Austin, Texas 78711-3087 by the 15th day of the following month. The copy submitted to the commission must contain all the information required by the drinking water standards and the results of any special monitoring tests which have been required. (2) Systems serving fewer than 100 connections which utilize ground water sources or purchase treated water only are not required to compile monthly reports. (e) Operation by certified personnel. All systems which charge, either directly or indirectly, for drinking water and all systems utilizing surface water must be under the direct supervision of a certified water works operator. The operator shall ensure that the water system complies with the requirements of this section. (1) No district, municipality, firm, corporation, or individual shall furnish to the public any drinking water for which any charge is made, unless the production, processing, treatment, and distribution is at all times under the direct daily supervision of a competent water works operator holding a valid certificate of competency issued under the direction of the commission. A Grade "D" certificate is valid for systems with 250 or fewer connections. Systems serving in excess of 250 connections must employ an operator with a Grade "C" or higher certificate. Systems serving in excess of 1000 connections must employ at least two Grade "C" certified operators. (2) Each surface water treatment plant must have at least a Grade "C" surface water operator on duty when the plant is in operation or be provided with continuous turbidity and disinfectant residual monitors with automatic plant shutdown and alarms to summon operators so as to ensure that the water produced continues to meet the commission's drinking water standards during periods in which the plant is unattended. (f) Disinfectant residual and monitoring. Facilities shall be provided to maintain an adequate disinfectant residual throughout the distribution system and equipment shall be available for monitoring the concentration of the disinfectant. (1) Mechanical disinfection facilities capable of maintaining an acceptable disinfectant residual shall be provided for all public water supplies. At all times, the disinfection equipment shall be operated to maintain the following minimum disinfectant residuals in the far reaches of the distribution system: (A) a free chlorine residual of 0. 2 mg/l; or (B) a chloramine residual of 0.5 mg/l (measured as total chlorine) for those systems that feed ammonia. (2) The disinfectant residual in the distribution system must be tested periodically using a test kit which employs a diethyl-p-phenylenediamine (DPD) indicator. The record of these test results shall be maintained for at least three years. (A) Public water systems must conduct daily disinfectant residual tests at representative locations in the distribution system unless they utilize ground water or purchased water sources only or serve fewer than 250 connections or 750 persons daily. (B) Systems which utilize ground water or purchased water sources only and those which serve fewer than 250 connections or 750 persons daily must test the disinfectant residual at representative locations in the distribution system at least once every seven days. (C) Systems which utilize surface water or ground water under the influence of surface water must monitor the disinfectant residual of the water entering the distribution system in accordance with the requirements of the drinking water standards. (g) Disinfection of new or repaired facilities. Disinfection by or under the direction of water system personnel must be performed when repairs are made to existing facilities and before new facilities are placed into service. Disinfection must be performed in accordance with AWWA requirements and water samples must be submitted to a laboratory approved by the Texas Department of Health. The sample results must indicate that the facility is free of microbiological contamination before it is placed into service. When it is necessary to return repaired mains to service as rapidly as possible, doses may be increased to 500 mg/l and the contact time reduced to one-half hour. (h) Calcium hypochlorite. A supply of calcium hypochlorite disinfectant shall be kept on hand for use when making repairs, setting meters, and disinfecting new mains prior to placing them in service. (i) Plumbing ordinance. Public water systems must adopt an adequate plumbing ordinance, regulations, or service agreement with provisions for proper enforcement to insure that neither cross-connections nor other undesirable plumbing practices are permitted. See sec.290.48 of this title (relating to Appendix B-Sample Service Agreement). Should sanitary control of the distribution system not reside with the purveyor, the entity retaining sanitary control shall be responsible for establishing and enforcing adequate regulations in this regard. The use of pipes and pipe fittings that contain more than 8.0% lead or solders and flux that contain more than 0.2% lead is prohibited for installation or repair of any public water supply and for installation or repair of any plumbing in a residential or nonresidential facility providing water for human consumption and connected to a public drinking water supply system. This requirement may be waived for lead joints that are necessary for repairs to cast iron pipe. (j) Cross-connection control. Water system representatives shall inspect individual water facilities before providing service and periodically thereafter to prevent possible cross-connections between the potable (safe) water system and any nonpotable (unsafe) water. Continuous efforts shall be made by water system representatives to locate possible cross-connections between privately owned water systems and the public water system. As these undesirable cross- connections are located, they shall be eliminated to prevent possible contamination of the water supplied by the public water system. (k) Interconnection. No physical connection between the distribution system of a public drinking water supply and that of any other water supply shall be permitted unless the other water supply is of a safe, sanitary quality and the interconnection is approved by the executive director. (l) Flushing of mains. All dead-end mains must be flushed at monthly intervals or more frequently if water quality complaints are received from water customers. (m) Housekeeping and maintenance. A program shall be initiated to facilitate cleanliness and to improve the general appearance of all plant facilities. (n) Distribution system map. The map of the distribution system shall be continuously updated so that valves and mains may be easily located during emergencies. (o) Well logs. Copies of well material setting data, geological log, sealing information (pressure cementing and surface protection), disinfection information, microbiological sample results and a chemical analysis report of a representative sample of water from the well shall be kept on file. (p) Maintenance requirements for pressure filters and for ground storage, elevated storage, and pressure tanks. Each pressure filter and each of the system's ground, elevated and pressure tanks shall be inspected annually by water system personnel or a contracted inspection service. The results of these inspections shall be recorded and maintained for at least five years. The results must be available for review by commission staff during inspections. (1) Ground and elevated storage tank inspections must determine that the vents are in place and properly screened, the roof hatches closed and locked, flap valves and gasketing provide adequate protection against insects, rodents and other vermin, the interior and exterior coating systems are continuing to provide adequate protection to all metal surfaces, and that the tank remains in a watertight condition. (2) Pressure tank inspection must determine that the pressure release device and pressure gauge are working properly, the air-water ratio is being maintained at the proper level, the exterior coating systems are continuing to provide adequate protection to all metal surfaces, and that the tank remains in a watertight condition. Pressure tanks provided with an inspection port must have the interior surface inspected every five years. (3) When pressure filters are used, a visual inspection of the filter media and internal filter surfaces shall be conducted annually to ensure that the filter media is in good condition and the coating materials continue to provide adequate protection to internal surfaces. (q) Filter backwashing at surface water treatment plants. Filters must be backwashed when a loss of head differential of six to ten feet is experienced between the influent and effluent loss of head gauges or as often as necessary to maintain acceptable filtered water turbidity levels. (r) Data on water system ownership and management. The commission shall be provided with information regarding water system ownership and management. (1) When a water system changes ownership, a written notice of the transaction must be provided to the commission. When applicable, notification shall be in accordance with Chapter 291 of this title (relating to Water Rates and Services). Those systems not subject to Chapter 291 of this title shall notify the commission of changes in ownership by providing the name of the current and prospective owner or responsible official, the proposed date of the transaction, and the address and phone number of the new owner or responsible official. The information listed above and the system's public drinking water supply identification number, and any other information necessary to properly identify the transaction shall be provided to the commission 120 days before the date of the transaction. (2) On an annual basis, each certified operator which supervises more than one water system shall provide the executive director written notices containing their certificate number, address and telephone number, and the name and identification number of each public water system which they supervise. Each operating company shall provide this information for itself and for each of its operators. (s) Boil water notice. In the event of numerous or prolonged periods of low distribution pressures, water outages, repeated unacceptable microbiological samples or failure to maintain adequate chlorine residuals, a boil water notice or other protective measures may be required at the discretion of the executive director. Once a water system has been notified by the executive director to issue a boil water notice, the system must notify its customers within 24 hours using specific language and procedures approved by the executive director. Boil water notices shall remain in effect until lifted by the executive director. Once the notice is lifted, the customers must be notified in a manner similar to the original notice. A copy of these notices shall be provided to the executive director. (t) Water leakage. All water storage facilities, distribution system lines and related appurtenances shall be maintained in a watertight condition. (u) Minimum pressures. All public water systems shall be operated to provide a minimum pressure of 35 psi throughout the distribution system under normal operating conditions. The system shall also be operated to maintain a minimum pressure of 20 psi during emergencies such as fire fighting. (v) Testing equipment. Testing equipment or some other means of monitoring the effectiveness of any chemical treatment processes used by the system must be provided. (w) System ownership. All community water systems shall post a legible sign at each of its production, treatment, and storage facilities. The sign shall be located in plain view of the public and shall provide the name of the water supply and an emergency telephone number where a responsible official can be contacted. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 10, 1992. TRD-9212360 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: October 1, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 9. Property Tax Administration (EDITOR'S NOTE: The duties and responsibilities of the State Property Tax Board were transferred to the Comptroller of Public Accounts, effective November 26, 1991. Senate Bill 45, 72nd Legislature, 1991, Second Called Session says State Property Tax Board rules remain in effect until amended, repealed, withdrawn or otherwise superseded by the Comptroller. The following sections are recodified from Title 34, Part VII. State Property Tax Board to Title 34, Part I. Comptroller of Public Accounts. The table illustrates the new section numbers under the Comptroll of Public Accounts and the corresponding old section numbers under State Property Tax Board. The text of the sections is not changed by this recodification and will not be republished.) TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 15. Drivers License Rules Application Requirements Original, Renewal, Duplicate, Identification Certificates 37 TAC sec.sec.15.40-15.43 The Texas Department of Public Safety adopts new sec. sec.15.40-15.43, application requirements original, renewal, duplicate, and identification certificates, without changes to the proposed text as published in the July 31, 1992, issue of the Texas Register (17 TexReg 5342). The adoption of these sections is necessary to ensure the public that applicants are prepared to take the tests and pass or fees will be forfeited, applicants are given opportunity for voter registration, use of social security number will improve applicant identification, and applicants are given the opportunity to be an eye, tissue, or organ donor. Section 15.40 provides that all original applicants shall pay the required fees for the type license applied for. The fee will be forfeited after 90 days or if the applicant fails more than three tests of each type in the original office of application. Section 15.41 provides that each individual who applies in person at a driver license office for an original or renewal driver's license, a personal identification card, or a duplicate or corrected license or identification card shall be given the opportunity to complete a voter registration application form. Section 15.42 provides that a social security number shall be obtained from all applicants for a driver's license for the purpose of additional identification. Section 15.43 provides that the department shall indicate on the face of the driver's license or identification card whether a person wishes to be an eye, tissue, or organ donor. One comment was received on sec.15.42 from an individual who stated that requiring all driver's license applicants to present a social security or other acceptable social security number documentation is in violation of the Social Security Administration Act and the Federal Privacy Act. The department is adopting sec.15.42 without changes pursuant to sec.7 of the Federal Privacy Act of 1974, codified as 5 United States Code sec.552a, which provides that: it shall be unlawful for any federal, state, or local government agency to deny any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number and the provisions of sec.15.42(1) shall not apply with respect to any disclosure which is required by federal statutes. A 1976 amendment to the Social Security Act, codified as 42 United States Code, sec.405 provides that it is the policy of the United States that any state may, in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction, utilize the social security account numbers issued by the secretary for the purpose of establishing the identification of individuals affected by such law, and may require any individual who is or appears to be so affected to furnish to such state having administrative responsibility for the law included, the social security account number issued to him by the secretary. The amendment further provides that an agency of the state charged with the administration of any general public assistance, driver's license, or motor vehicle registration law which did not use the social security account number for identification under a law or regulation adopted before January 1, 1975, may require an individual to disclose his or her social security number to such agency solely for the purpose of administering the laws referred to in sec.15.41(1). The new sections are adopted under Texas Civil Statutes, Article 6687b, sec.1A and the Texas Government Code, sec.411.006(4), which provide the Texas Department of Public Safety with the authority to adopt rules that it determines are necessary to effectively administer this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 4, 1992. TRD-9212301 James R. Wilson Director Texas Department of Public Safety Effective date: October 1, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 465-2000 Part III. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.sec.85.21, 85.25, 85.27, 85.29 The Texas Youth Commission (TYC) adopts amendments to sec. sec.85.21, 85.25, 85.27, and 85.29, concerning program restriction levels, program completion and movement, the assessment and placement process, and minimum length of stay. Section 85.21 and sec.85.25 are adopted with changes to the proposed text as published in the August 7, 1992, issue of the Texas Register , (17 TexReg 5511). Sections 85.27 and 85.29 are adopted without changes and will not be republished. The amendments will provide for at least a six-month minimum length of stay for certain youth committed to the agency. Changes to sec.85.21 allow designated placement waivers to apply to youth in community placements. Changes to sec.85.25 eliminate creditable time for minimum length of stay requirements of six months. The amendments are necessary to establish a minimum length of stay of six months for certain youth classified by the agency as firearms offenders and general offenders. Amendments will provide additional safety for the general public. Amendments clarify that primary foster care is considered a minimum restriction placement. One commenter agrees with the proposed changes to sec.85.21 and sec.85.25 that would establish a minimum six-month length of stay for firearm offenders and general offenders; however, the commenter does not agree that credited time should be applied to reduce the length of any stay at TYC. For: Harris County Juvenile Probation Department. Against: Harris County Juvenile Probation Department. TYC concurs with the commenter and will eliminate creditable time for all six- month minimum length of stay requirements with adoption of this section. The amendments are adopted under the Human Resources Code, sec.61.071, which provides TYC with the authority to examine and make a study of each child and to establish rules governing the study. sec.85.21. Program Assignment System. (a) Policy. Texas Youth Commission (TYC) utilizes an objective, equitable system of program assignment for each youth in TYC care. Based on each youth's age, offense(s), and risk level, TYC has predetermined the most appropriate level of restriction and minimum length of stay requirements. Services provided by each program are matched with youth service needs to determine the most appropriate program placement. The assessment and placement process provides current information on individual youth needs. Male and female youth have equal access to agency programs and activities. (b) Rules. (1) Guiding principles. TYC's development of the system of program assignments is based on the following. (A) (No change.) (B) Among program placement alternatives of which each provides the required services and level of restriction, the placement selected is the one closest to the youth's home. (2) Placement system factors. The program placement system incorporates the following factors. (A)-(D) (No change.) (E) Placements are made according to restriction and needs. (i) The level of restriction required of the placement selected is determined by classification, age, and risk level. See GOP.47.07, sec.85.27 of this title (relating to Program Restriction Levels). (ii) Initial placements are always to residential programs or day treatment programs providing services at least eight hours per day, five days per week, except for youth classified as violators of conduct indicating a need for supervision (CINS) probation. (iii) The youth's assessed service needs are used to select a placement within the required level of restriction. (F) See paragraph (5) of this subsection for waivers and exceptions to the placement system factors. (3) System description. The determining factors and guiding principles result in the following initial placement determinations for new commitments. (A) A sentenced offender is assigned a minimum length of stay equal to the court sentence or time until transfer, or recommitment, or discharge and, regardless of age, or risk level, is assigned to a TYC perimeter secure facility. (B)-(C) (No change.) (D) A Type B violent offender classified for conspiracy to commit murder, conspiracy to commit capital murder, solicitation of murder, or solicitation of capital murder, is assigned a minimum length of stay of 12 months and if 13 years or older, with any risk level, is assigned to a program of maximum or high restriction. (E) A Type B violent offender classified for conspiracy to commit murder or capital murder, or solicitation of murder or capital murder, is assigned a minimum length of stay of 12 months and if younger than 13 years, with any risk level, is assigned to a program of high restriction. (F)-(K) (No change.) (L) A firearms offender is assigned a minimum length of stay of six months, and if 13 years or older, or risk level, is assigned to a program of high restriction. (M) A firearms offender is assigned a minimum length of stay of six months, and if younger than 13 years, with any risk level, is assigned to a program of medium restriction. (N) A general offender is assigned a minimum length of stay of six months, and if 13 years or older, with a high risk level, is assigned to a program of high restriction. (O) A general offender is assigned a minimum length of stay of six months, and if 13 years or older, with a low or medium risk level, is assigned to a program of medium restriction. (P) A general offender is assigned a minimum length of stay of six months, and if younger than 13 years, with any risk level, is assigned to a program of medium restriction. (Q) A violator of CINS probation is not assigned a minimum length of stay, and regardless of age, with high or medium risk level, is assigned to a program of medium restriction. (R) A violator of CINS probation is not assigned a minimum length of stay and regardless of age, with low risk level, is assigned to a program of minimum restriction. (4) Responsibility. The specific program placement selection for each youth is the responsibility of the statewide reception center for TYC training school placements and the centralized placement unit for all other placements, including Evins Regional Juvenile Center. Specific selection is based on: (A)-(C) (No change.) (5) Waivers and exceptions. Waivers and exceptions may be granted under special circumstances. (A)-(B) (No change.) (C) Any designated placement may be waived or the youth moved to any other placement of equal or less restriction if requested by the institutional superintendent or regional director where the youth is located and granted by the executive director or designee. (D)-(E) (No change.) (6) Parent notification. Parents/guardians are notified of all placements. sec.85.25. Minimum Length of Stay. (a) Policy. The Texas Youth Commission (TYC) establishes minimum length of stay requirements for all TYC youth on initial commitment, for youth recommitted for the commission of a felony or high-risk offense, and for youth found to have committed a felony or high-risk offense in an Administrative Level I hearing. (b) Rules. (1) Minimum length of stay. (A)-(C) (No change.) (D) Chronic serious offenders serve at least six months in a medium or high restriction program. (E) Controlled substances dealers serve at least six months in a medium or high restriction program. (F) Firearms offenders serve at least six months in a medium or high restriction program. (G) General offenders serve at least six months in a medium or high restriction program. (H) -(I) (No change.) (2) Creditable time. (A)-(B) (No change. ) (C) In no case will creditable time reduce the minimum length of stay to less than six months. (D) For a sentenced offender youth, see GOP.47.15, sec.85.35 of this title (relating to Sentenced Offender Disposition). (3) Waivers. For youth, except sentenced offenders and Type A violent offenders, the minimum length of stay requirement may be reduced by the deputy executive director in extenuating circumstances when it is documented that the minimum length of stay is not justified because of the minor nature of the youth's classifying offense and offense history. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 10, 1992. TRD-9212365 Ron Jackson Executive Director Texas Youth Commission Effective date: October 1, 1992 Proposal publication date: August 7, 1992 For further information, please call: (512) 483-5244 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin. ) The State Board of Insurance, at a board meeting scheduled on August 5, 1992, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, considered a proposal filed by the staff of the Workers' Compensation Division of the Texas Department of Insurance proposing amendments to Rule VI of the Texas Basic Manual of Rules, Classifications and Rates for Workers' Compensation and Employers' Liability Insurance and adding Texas Maintenance Tax Surcharge Recoupment Endorsement WC 42 03 06. The rule was proposed in a petition (Reference Number W-0692-33-I), filed by staff on July 3, 1992. On August 5, 1992, the State Board of Insurance adopted the amendments with changes to the proposed published summary of the rule. The amendments provide that any licensed insurance company writing workers' compensation insurance in Texas, including the Texas Workers' Compensation Insurance Facility and the Texas Workers' Compensation Insurance Fund may apply an additional charge to the standard policy premium after premium discount on each workers' compensation policy in an amount sufficient to allow the insurance company to recoup the amount of maintenance tax surcharge assessed against that insurance company. The maintenance tax surcharge will be used to pay debt service for bonds issued on behalf of the Texas Workers' Compensation Insurance Fund. The rule provides that pursuant to the Insurance Code, Article 5.76-5, sec.10(d), an insurance company may pass through the maintenance tax surcharge to each of its policyholders. Pursuant to 28 TAC sec.1.411(c)(1), the amount recouped is to be a uniform percentage of premiums for all of the company's individual workers' compensation policyholders. The rule requires that each insurance company which elects to pass through the maintenance tax surcharge to its policyholders must elect, not later than June 1 of each year, which method of recoupment the insurance company will use. One method of recoupment provides that an insurance company may recoup the surcharges by charging and collecting a separate charge, which is not considered premium for any purpose. That charge must be displayed on the information page of the policy or on an invoice for workers' compensation premium and Endorsement WC 42 03 06 must be attached to show the percentage of premium for recoupment. The charge is subject to adjustment of premium on final audit. The other method of recoupment allows the insurance company to include the surcharge paid by the insurance company as an expense in the rates to be used by the insurance company and filed with the Texas Department of Insurance. The rule states that each insurance company that elects to pass through the maintenance tax surcharge must file by June 1 of each year the following information concerning the recoupment process: the method of recoupment elected by the insurance company; the exact amount of surcharges the insurance company plans to recoup; and any percentage and/or calculations made by the insurance company to determine amounts to be recouped from each policyholder. The rule provides that the period of recoupment is for new and renewal policies with an effective date on or after June 1 to May 31 of the following year. In addition, the rule provides that the surcharge percentage shall be applied to the standard policy premium after premium discount. The rule also provides that if an insurance company fails to timely file the method of recoupment by June 1 of each year, the company shall be deemed to have elected the recoupment method of including the surcharge paid by the insurance company as an expense in the rates to be used by the company and filed with the Texas Department of Insurance. The Texas Maintenance Tax Surcharge Recoupment Endorsement WC 42 03 06 is to be attached to every policy issued by an insurance company that elects to collect the surcharge as a separate charge. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act (Reference Number W-0692- 33-I). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1992. TRD-9212463 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: October 3, 1992 Proposal publication date: July 3, 1992 For further information, please call: (512) 463-6327 The State Board of Insurance of the Texas Department of Insurance, at a Board meeting scheduled for 9 a. m. September 9, 1992, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, considered a proposal filed on behalf of the Texas Logging Council of the Texas Forestry Association. The Texas Logging Council proposed revisions to the Texas Basic Manual of Rules, Classifications and Rates for Workers' Compensation and Employers' Liability with the respect to the Workers' Compensation Classifications applicable to the logging industry. The amendment was proposed in a petition (Reference Number W-0792-46), filed by the Texas Logging Council on May 26, 1992. The State Board of Insurance adopted the proposed workers' compensation reclassifications on September 9, 1992. The adopted reclassifications are as follows: Code 2719-Logging or Lumbering & Drivers-Mechanized Felling Exclusively would be established as a new workers' compensation classification to be used upon specific assignment of the Texas Department of Insurance to employers meeting specific criteria; Code 6044-Logging or Lumbering and Drivers and Mechanized Felling and Delimbing including, Chipping Operations Exclusively would be available only upon specific assignment of the Texas Department of Insurance to employers meeting specific criteria; Code 2702-Logging or Lumbering and Drivers continue to be used for employers that perform logging operations with 100% chainsaw felling and delimbing of trees and therefore not eligible for Code 2719 and Code 6044. A copy of the full text of the adopted workers' compensation classifications is available for review in the office of the Chief Clerk of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas, 78714-9104. For further information or to request copies of the petition, please contact Angie Arizpe at (512) 322-4147, refer to (Reference Number W-0792-46). This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedures and Texas Register Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1992. TRD-9212464 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: October 3, 1992 Proposal publication date: July 28, 1992 For further information, please call: (512) 463-6327 The State Board of Insurance of the Texas Department of Insurance has adopted a new Rule 15, "Automobile Theft Prevention Authority Pass-Through Fee," for the Texas Automobile Rules and Rating Manual (the manual). The rule is needed to clarify and implement Texas Civil Statutes, Article 4413 (37), sec.10, which require each insurer to pay a fee of $1.00 per motor vehicle year to the Automobile Theft Prevention Authority. The rule will allow each insurer to recoup this fee from the policyholder. The rule provides that all automobile policies providing primary liability coverages shall be assessed the fee, except for garage liability policies, non-resident policies, and policies providing only non-ownership or hired auto coverages. The new Manual Rule 15 is adopted to be effective on and after 12:01 a.m., October 1, 1992. For further information or to request copies of the board order, please contact Angie Arizpe at (512) 322-4147, refer to (Reference Number A-0792-37I). This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1992. TRD-9212465 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: October 3, 1992 Proposal publication date: July 21, 1992 For further information, please call: (512) 463-6327 The State Board of Insurance of the Texas Department of Insurance has adopted on September 9, 1992, a filing by Progressive Casualty Insurance Company of a new bond form titled "STAMP Surety Bond" (Reference Number O-0792-44-I). In accordance with the provisions of the Insurance Code, Article 5.97, a text of the proposed filing has been filed in the Office of the Chief Clerk of the Texas Department of Insurance. The filing has been available for public inspection for 15 days and a public hearing was not requested by any party. The new STAMP Surety Bond provides coverages for financial institutions in order that they can comply with a new Securities Exchange Commission (SEC) Rule, 17 Ad-15. This rule permits stock transfer agents to accept signature guarantees only from guarantors who have posted a STAMP Surety Bond as participants in a "signature guarantee program." This bond guarantees the signature of the person transferring the stock as well as other certifications and guarantees incident to a stock transfer, payment exchange or purchase of securities. This notice is filed pursuant to the Insurance Code, Article 5.97, which exempts it from the requirements of the Administrative Procedure and Texas Register Act (Reference Number O-0792-44-I). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 14, 1992. TRD-9212466 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: October 3, 1992 Proposal publication date: July 21, 1992 For further information, please call: (512) 463-6327