ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATIONS Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.8, sec.3.94 The Railroad Commission of Texas adopts an amendment to sec.3.8 (relating to water protection) and new sec.3.94 (relating to disposal of oil and gas NORM waste). Section 3.94 is adopted with changes to the proposed text as published in the October 18, 1994, issue of the Texas Register (19 TexReg 8273). Section sec.3.8 is adopted without changes and will not be republished. The amendment to sec.3.8 (relating to water protection) clarifies that oil and gas waste disposal methods authorized in new sec.3.94 (relating to disposal of oil and gas NORM waste) are also authorized under sec.3.8. New sec.3.94 sets forth requirements for the safe disposal of naturally occurring radioactive material (NORM) that constitutes, is contained in, or has contaminated oil and gas waste. New sec.3.94 meets the requirements of Texas Health and Safety Code, sec.401.415, in that it establishes regulations for disposal of oil and gas NORM waste and was developed in consultation with the Texas Department of Health (TDH) and the Texas Natural Resource Conservation Commission regarding protection of public health and the environment. New sec.3.94 applies to activities involving the disposal of NORM that constitutes, is contained in, or has contaminated oil and gas waste and that exceeds exemption criteria for NORM established by TDH. This material is called "oil and gas NORM waste." Oil and gas waste with radiation at levels that meet TDH exemption criteria for NORM prior to any treatment or processing to reduce radiation levels is excluded from the definition of oil and gas NORM waste and is not subject to the provisions of sec.3.94. Oil and gas waste that meets TDH exemption criteria for NORM due to processing or treatment to reduce radiation levels is, however, considered oil and gas NORM waste subject to regulation under sec.3.94. Section 3.94 prohibits disposal of oil and gas NORM waste, except in accordance with its provisions. Roadspreading of oil and gas NORM waste and surface water discharges of oil and gas NORM waste other than produced water are expressly prohibited. Disposal of produced water by injection into a disposal or injection well permitted under sec.3.9 of this title (relating to disposal wells) or sec.3.46 of this title (relating to fluid injection into productive reservoirs) is exempt from regulation under sec.3.94. Further, the discharge of produced water to surface waters pursuant to a permit issued under sec.3.8 (relating to water protection) is exempt from regulation under sec.3.94. Section 3.94 specifically authorizes certain disposal methods without a permit. These methods include disposal of oil and gas NORM waste in a well that is being plugged and abandoned, provided that all specified requirements are met. Section 3.94 also authorizes, in limited circumstances, on-site disposal of oil and gas NORM waste by burial or by applying it to and mixing it with the land surface. Specifically, rule-authorized on-site burial or land application is limited to instances where, after disposal, the total radioactivity concentration of Radium-226 and 228 does not exceed the background concentration by more than five picocuries per gram (pCi/g). As discussed further below, this five pCi/g limitation on post-disposal radioactivity concentration is intended only as an interim measure pending further study of the relationship between TDH NORM exemption criteria and exposure levels associated with surface disposal. The commission anticipates amending sec.3.94 in the future to provide a broader range of surface/near-surface disposal options. In addition, sec.3.94 allows disposal of oil and gas NORM waste at a facility licensed by the United States Nuclear Regulatory Commission, the State of Texas, or another state if such facility is authorized under its license to receive such waste. Section 3.94 also allows injection of oil and gas NORM waste that meets TDH NORM exemption criteria due to processing or treatment at a facility licensed by TDH, provided that the operator notifies the commission that it plans to inject such material and verifies that the material meets exemption criteria by obtaining documentation from the treatment/processing facility regarding the post-treatment/processing NORM levels. Certain disposal methods covered under sec.3.94 require a permit. A permit issued under sec.3.9 of this title (relating to disposal wells) that specifically allows injection of NORM waste is required to dispose of oil and gas NORM waste by injection, except for injection of produced water or the injection of oil and gas NORM waste that has been treated or processed at a facility specifically licensed by TDH to reduce the radioactivity concentration to meet TDH NORM exemption criteria. Similarly, a permit issued under sec.3.8 is required to dispose of oil and gas NORM waste off-site by burial or by applying it to and mixing it with the land surface. As in the case of on-site disposal by such methods and pending further study by the commission, post-disposal radioactivity concentrations of Radium- 226 and 228 must not exceed five pCi/g above background concentrations. Section 3.94 adopts TDH worker protection standards by reference. Employers of persons engaged in oil and gas NORM waste disposal activities covered by sec.3.94 must ensure that applicable TDH standards are met for their employees. Section 3.94 also requires that records regarding generation and disposal of oil and gas NORM waste be retained for at least three years. The record retention period is extended during any commission investigation of alleged violations. As noted previously, sec.3.94 is adopted pending further study of three specific issues. First, the commission is studying whether NORM survey devices and/or methods that are suitable for use in the field can be used in lieu of laboratory analyses to measure NORM in oil and gas waste. At present, TDH exemption criteria for soil and other contaminated media are tied to radioactivity concentrations (pCi/g) which can be directly measured only through laboratory analyses. Indirect measurement devices and/or methods may be more appropriate for use in the field. Additional NORM identification requirements may be adopted in the event such survey devices and/or methods can be identified. Second, the commission finds that further study of the relationship between TDH exemption criteria and exposures associated with surface and near-surface disposal methods is necessary before a broader range of surface/near-surface disposal options can be authorized. TDH exemption criteria for Radium-226 and 228 (the principal radionuclides found in oil and gas NORM waste) in soil were developed using specific modeling parameters to evaluate doses to persons exposed to those radionuclides in soil. The TDH model is very sensitive to changes in the depth or surface area of affected soils to which persons are exposed. Increases in the surface area or depth of the affected soils may result in increased modeled doses. Therefore, the commission has taken a conservative approach to surface disposal options until the relationship between TDH exemption criteria and potential human exposures associated with surface disposal can be more fully evaluated. Five pCi/g above background concentrations of Radium-226 and 228 is widely viewed as an acceptable concentration, without regard to the depth or surface area of the affected soil. Pending further study, the commission has elected to use this conservative level as the surface disposal limit. Finally, the commission intends to further examine the issue of what, if any, regulatory restrictions should be imposed on disposal of NORM-contaminated buried pipes (such as flowlines). In the case of buried pipes, the commission interprets TDH exemption criteria as applying at the ground surface-the closest accessible point. Therefore, if the measurement of radioactivity from a buried pipe did not exceed 50 microroentgens per hour ( 365>R/hr) at the ground surface immediately above the pipe, the pipe would be exempt from regulation under sec.3.94. If the surface measurement above a buried pipe exceeded 50 365>R/hr, however, the pipe would not fall within exemption criteria. Retrieving and disposing of buried pipes that do not meet NORM exemption criteria might result in greater exposures than simply leaving the pipes in place. The issue of whether, and how, to regulate buried pipes, including the need for institutional controls to limit the potential for future exposure to buried pipes left in place, should be the subject of further evaluation. After these three issues-the availability of appropriate field survey devices and/or methods, the relationship between TDH exemption criteria and exposures associated with surface disposal, and regulatory restrictions appropriate for disposal of buried pipes-have been studied, the commission intends to propose amendments to sec.3.94 that reflect the outcome of such studies. No comments were received regarding the proposed amendment to sec.3.8. One commenter on proposed sec.3.94 suggested that the definition of disposal in proposed subsection (a)(2) (now subsection (1)(3)) be revised to exclude accidental releases. The commission disagrees and has not revised sec.3.94 as recommended by this commenter. The definition of disposal is consistent with current rule definitions. Releases may be acts of disposal whether or not they are intentional. Two commenters on proposed sec.3.94 suggested revising the term "in situ decontamination" in the definition of "disposal" in proposed subsection (a)(2) (now subsection (a)(3)) to clarify that it refers to in-place mixing of oil and gas NORM waste to remedy historical contamination. The commission agrees and has amended this definition by deleting the phrase "in situ decontamination" and substituting the phrase "in-place mixing of oil and gas NORM waste to remedy historical contamination of the land surface." One commenter on proposed sec.3.94 suggested revising the definition of "disposal" to clarify the meaning of "incidental to disposal." The commission agrees and has made this clarification in subsection (a)(3) (proposed subsection (a)(2)) and has included similar clarifying language in the provisions of subsection (b)(2) relating to TDH jurisdiction. Another commenter requested further clarification of the specific point at which NORM management activities become disposal activities subject to commission jurisdiction. The commission anticipates that the revised definition of "disposal" discussed in the foregoing paragraph will address this commenter's concern. One commenter suggested that a definition of "produced water" be included in this section. The commission disagrees. The term "produced water" is understood within the industry. Produced water is the water, whether fresh or saline, that is native to oil and gas producing formations and that is produced with oil and gas. Produced water may include trace amounts of chemicals used in the ordinary course of well treatment and production operations. One commenter on proposed sec.3.94 recommended that discharges of produced water to surface waters be exempt from regulation under sec.3.94. The commission agrees because information obtained to date does not indicate that NORM at levels that exceed TDH exemption levels will be present in produced water. Therefore, subsection (b)(3) of this section has been amended to provide that a discharge of produced water to surface waters conducted in accordance with a permit issued under sec.3.8 (relating to water protection) is exempt from the requirements of sec.3.94. Section 3.94 has also been revised by amending the provisions of proposed subsection (d) to reflect that the discharge of produced water to surface waters is not prohibited. In the event the commission obtains additional information indicating that NORM is a concern in produced water discharges, additional requirements on such discharges may be imposed. One commenter on proposed sec.3.94 suggested revising subsection (b)(3) to clarify that disposal of equipment that has been decontaminated pursuant to a specific license issued by TDH and that meets exemption criteria of TRCR Part 46 is exempt from regulation under sec.3.94. The commission agrees and has made the requested clarification. One commenter on proposed sec.3.94 suggested that the worker protection standards of subsection (c) apply only to an employer of persons engaged in activities involving the disposal of oil and gas waste that is known to be oil and gas NORM waste. The commission does not agree that such a change is necessary or appropriate. Employers whose workers are exposed to oil and gas waste that is not oil and gas NORM waste are not required to comply with the worker protection standards of sec.3.94. However, an employer whose workers are exposed to oil and gas NORM waste cannot avoid complying with the worker protection standards of this section by failing to make a determination as to whether or not a particular oil and gas waste meets NORM exemption criteria established by TDH. One commenter on proposed sec.3.94 suggested eliminating the requirement of subsection (e)(1)(A) that surface owner consent be obtained prior to disposal of oil and gas NORM waste generated on one lease in a well on another lease that is being plugged and abandoned. The commission disagrees. An oil and gas lease or unit agreement does not authorize disposal on property covered by that lease or agreement of oil and gas waste generated on another lease or unit. Therefore, the requirement for surface owner consent is merely reflective of existing law. One commenter proposed that sec.3.94(e)(1)(A) be revised to clarify that the term "unit" as used therein includes pooled units, unitized fields, and proration units. The commission does not agree that this term requires clarification. The term unit includes all unitized leases as identified on the proration schedule. One commenter on proposed sec.3.94 suggested that the references to radioactivity within the section be specifically tied to the radioactivity concentrations of Radium-226 and 228. The commission agrees and has made the requested clarification in subsections (e)(1)(G)(iii); (f)(2)(C); (g)(1); (g) (2); (C); and (h)(1)(E). This commenter also indicated that subsection (e) (2)(A) should be revised to allow disposal of NORM radionuclides other than Radium-226 and 228 by burial if the radioactivity concentration level has been reduced to the TDH exemption level of 150 pCi/g for such radionuclides. The commission disagrees. Radium-226 and 228 are the radionuclides of primary concern in waste that will be disposed of under this provision. The other radionuclides may be of concern in certain types of equipment. However, the commission did not intend to authorize burial of equipment with radioactivity concentrations above TDH exemption levels under this provision. Language has been added to subsection (e)(2)(A) to clarify that this provision does not authorize burial of contaminated equipment. The same commenter suggested that the limitations on on-site disposal in subsections (e)(2)(A) and (B) specifically refer only to the radioactivity concentration of Radium-226 or Radium-228. The commission agrees that the limitations in subsection (e)(2)(A) and (B) should be tied to the combined radioactivity concentrations of Radium-226 and Radium-228. Subsections (e)(2) (A and (e)(2)(B) have therefore been revised to clarify that, in determining whether the requirements of these provisions have been met, only the concentrations of Radium-226 and Radium-228 must be determined. One commenter on proposed sec.3.94 recommended that subsection (e)(2)(A) and (B) be revised to ensure that the term background radioactivity concentration be interpreted as referring to the background radiation prior to surface or near- surface disposal of oil and gas NORM waste. This commenter's concern was that background radiation not be considered to have been raised to a higher level by prior disposal of oil and gas NORM waste. To address this commenter's concern, the commission has added a definition of background radiation in subsection (a)(1). Two commenters on proposed sec.3.94 suggested that treatment and processing be defined to include application to and mixing with the land surface. These commenters later indicated that revising the definition of "disposal" to clarify that "in situ decontamination" was intended to mean "in-place mixing of oil and gas NORM waste to remedy historical contamination of the land surface" would address their concern. Because the meaning of the phrase "in situ decontamination" has been clarified, the commission has not defined treatment or processing. One commenter on proposed sec.3.94 recommended that subsection (e)(4) be changed to clarify that it allows an operator or contractor to treat and process NORM waste at the site where it will be disposed of, if the treatment and processing is conducted by a person that has been specifically licensed by the TDH. The commission disagrees because adding such a provision would have no regulatory effect. TDH regulations would not apply to a specific licensee conducting operations at an oil and gas NORM waste disposal site for the explicit purpose of facilitating disposal because TDH jurisdiction does not extend to activities at the disposal site undertaken to facilitate disposal. One commenter on proposed sec.3.94 suggested that subsection (e)(1)(G)(v) be clarified by reorganizing the provision to refer to sources of oil and gas NORM waste, if known, rather than the location of such sources, if known. The commission agrees and has made the suggested change. One commenter on proposed sec.3.94 suggested that a copy of the specific TDH license not be provided in the case where oil and gas NORM wastes are treated and processed to meet TDH exemption levels prior to injection as provided in subsection (e)(4)(B). Because the section authorizes injection of oil and gas NORM waste without an injection permit issued in accordance with subsection (f) and because the treatment and processing of NORM under a TDH license falls outside commission jurisdiction, the commission has determined that the required additional information is necessary to assure that the exemption levels have been met. Therefore, the commission has not revised subsection (e)(4)(B) in response to this comment. One commenter on proposed sec.3.94 suggested that the term "representative or designee" in subsection (i) be defined to mean a person that is an employee of the Railroad Commission. The commission disagrees because it may desire the expertise of a representative of the Texas Department of Health or some other person acting as the agent of the commission to advise on matters of health, safety, and environmental protection. Several commenters proposed that sec.3.94 allow on-site disposal of oil and gas NORM waste at radioactivity concentrations of 30 pCi/g rather than the proposed five pCi/g above background. One of those commenters recommended that surface or near-surface disposal be allowed if, after disposal, the surface radioactivity level does not exceed four times background radiation, measured in 365>R/hr. Another commenter supported the five pCi/g above background limit on surface disposal pending further study of the relationship between surface disposal limits and TDH exemption criteria. As more specifically described previously in this preamble, the relationship between TDH exemption criteria and the exposures associated with the surface and near surface disposal of NORM waste should be studied further to determine the specific conditions under which higher post- disposal radioactivity levels are acceptable. In addition, the commission has indicated that it plans to continue to study the question of whether field survey devices and/or methods can be used in lieu of lab analyses to measure radioactivity levels. The commission intends to proceed to study these issues as promptly as possible. Pending the outcome of such studies, however, the commission does not agree that the section should be revised as recommended by these commenters. One commenter on proposed sec.3.94 suggested that no notification other than notice to and approval of the land owner be required for one-time injection of oil and gas NORM waste followed by plugging and abandonment of the well. The commission disagrees. A "one-time" injection activity may occur over several days, weeks, or months depending upon the injection volumes and injection rates. Depending on the circumstance, the potential impact on affected persons may be no less for a one-time injection activity than a continuous injection activity. One commenter on proposed sec.3.94 recommended that subsection (j)(2) state that only the offending well or lease be subject to certificate of compliance revocation. The commission does not believe that such a statement is appropriate because sec.3.68 of this title (relating to pipeline connection, cancellation of certification of compliance, and severance), subsection (b), sets out the requirements for cancellation of a certificate of compliance. Two commenters on proposed sec.3.94 suggested an alternative method of oil and gas NORM waste disposal involving pumping the waste down the annulus between the long string casing and the surface casing of a recently drilled well on the same lease or unit under limitations similar to those allowed for the one-time annular disposal of drilling fluid. The commission has not adopted this suggestion. Annular disposal of drilling fluid is permissible only under limited circumstances. At this time, the commission does not wish to extend this disposal practice to oil and gas wastes other than drilling fluid. One commenter on proposed sec.3.94 suggested that a new section be added that would provide for the establishment by the commission of a state-owned and operated oil and gas NORM waste disposal facility. The commission finds that there is no statutory basis for such a facility. Further, the commission believes that the variety of disposal options provided for under this section will effectively eliminate the need for such a disposal facility. One commenter on proposed sec.3.94 stated that guidance should be developed on a method to determine background radiation. The commission agrees that it may be advisable to develop guidance on determining background concentrations of radiation at oil and gas properties and plans to work with TDH to develop such guidance. Such guidance will be made available once it has been developed. One commenter on proposed sec.3.94 indicated that the cost-benefit analysis underestimated the cost of complying with the section. After further discussion with this commenter, we understand that the additional costs it believes will be associated with complying with this section arise primarily from the costs of surveying, sampling, and conducting lab analyses to determine radioactivity concentrations. Another commenter expressed concern about the number of lab analyses that would have to be conducted by a commercial disposal facility that was not authorized to accept oil and gas NORM waste to confirm that oil and gas NORM waste was indeed not being accepted at that facility. The requirement to sample and conduct lab analyses to determine radioactivity concentrations is a function of TDH exemption levels. The commission hopes to address the issue raised by these commenters by finding field survey methods and/or devices that can be used in lieu of laboratory analyses to determine radioactivity levels, as discussed more fully in previous portions of this preamble. One commenter on proposed sec.3.94 indicated that the section is more stringent than necessary. The commission understands that this comment is directed toward TDH NORM exemption levels. The commission has relied upon the expertise of TDH in establishing exemption criteria under this section. TDH exemption criteria are set at levels necessary to ensure that radiation doses associated with human exposure to NORM fall below specified limits. However, as discussed further in previous portions of this preamble, the commission hopes to be able amend this section in the near future to allow a wider range of surface and near-surface disposal options. In order to address the need raised in numerous comments for alternatives that are cost-effective and environmentally sound, the commission has included in Rule 94 a provision that allows approval of alternatives upon a demonstration that such alternatives are protective of public health, safety, and the environment. The commission intends this provision to be used primarily to address those issues that have been deferred pending further study. The following commenters expressed general support for sec.3.94 and all of the listed industry associations urged the commission to complete studies of the matters that have been deferred as expeditiously as possible: West Central Texas Oil & Gas Association; Texas Independent Producers & Royalty Owners Association; Permian Basin Petroleum Association; Texas Mid-Continent Oil & Gas Association; and Marathon Oil Company. The following commenter expressed the opinion that sec.3.94 is not necessary: North Texas Oil & Gas Association. The following commenters did not express support for or opposition to sec.3.94: Texas Department of Health-Bureau of Radiation Control; Hunt Oil Company; Physics, Inc; Taylor Service Company; and Selective Tools, Inc. The amendment to sec.3.8 and new sec.3.94 are adopted under Health and Safety Code, sec.401.415, which authorizes the commission to adopt regulations for disposal of oil and gas NORM waste. The amendment to sec.3.8 and new sec.3.94 are also adopted under Natural Resources Code, sec.91.101, which authorizes the commission to develop regulations for management of oil and gas waste, and Natural Resources Code, sec.85.042(b), which authorizes the commission to adopt rules for the prevention of operations in the field that are dangerous to life or property. The amendment to sec.3.8 and new sec.3.94 shall take effect on February 1, 1995. sec.3.94. Disposal of Oil and Gas NORM Waste. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise: (1) Background radiation-Radiation at the ground surface from: (A) cosmic sources; (B) non-technologically enhanced naturally occurring radioactive material, including radon, except as a decay product of source or special nuclear material; and (C) global fallout as it exists in the environment from the testing of nuclear explosive devices. "Background radiation" does not include sources of radiation from radioactive materials regulated by the Texas Department of Health. (2) Commission-The Railroad Commission of Texas. (3) Disposal-The discharge, deposit, injection, dumping, spilling, leaking, or placing of any oil and gas NORM waste into or on any land or water so that such waste, or any constituent thereof, may enter the environment or be emitted into the air or discharged into any waters, including subsurface waters. For purposes of this section, disposal of oil and gas NORM waste includes its management at the site (e.g. , lease, unit, or facility) where disposal will occur when undertaken for the explicit purpose of facilitating disposal at that site. The term does not include decontamination activities, except for in-place mixing of oil and gas NORM waste to remedy historical contamination of the land surface and decontamination of equipment and facilities that become contaminated solely through disposal operations. In addition, the term does not include activities, including processing or treatment, that occur at a location other than the disposal site. (4) Microroentgens per hour ( 365>R/hr)-A measurement of exposure from x-ray and gamma ray radiation in air. (5) NORM-Naturally occurring radioactive material. (6) Oil and gas waste-Oil and gas waste as defined in sec.3.8 of this title (relating to water protection). (7) Oil and Gas NORM waste-Any solid, liquid, or gaseous material or combination of materials (excluding source material, special nuclear material, and by-product material) that: (A) in its natural physical state spontaneously emits radiation; (B) is discarded or unwanted; (C) constitutes, is contained in, or has contaminated oil and gas waste; and (D) prior to treatment or processing that reduces the radioactivity concentration, exceeds exemption criteria specified in the Texas Department of Health's Texas Regulations for Control of Radiation (TRCR) Part 46.4(a)(1) and (2). (8) Person-A natural person, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity. (9) Picocuries per gram (pCi/g)-A measure of the radioactivity in one gram of a material. One picocurie is that quantity of radionuclide (s) that decays at the rate of 3.7 X 10 [sup]-2 disintegrations per second. (10) TRCR-Texas Regulations for the Control of Radiation, adopted by the Texas Department of Health at 25 Texas Administrative Code, Chapter 289. (b) Purpose, Exclusions, and Exemptions. (1) Purpose. This section establishes requirements for the disposal of radioactive constituents of oil and gas NORM waste for the purpose of protecting public health, safety, and the environment. The provisions of this section do not supersede other commission regulations relating to oil and gas waste management, including disposal. (2) Exclusions. This section does not apply to activities involving the recycling of oil and gas NORM waste. In addition, this section does not apply to the decontamination of equipment or facilities contaminated with oil and gas NORM waste, unless such equipment or facilities become contaminated with oil and gas NORM waste solely as a result of disposal activities. For purposes of this section, in-place mixing of oil and gas NORM waste to remedy historical contamination of the land surface is not considered decontamination of equipment or facilities and is regulated under this section. Further, this section does not apply to activities that involve the possession, use, transfer, transport, and/or storage of oil and gas NORM waste, other than such activities when they occur at the site (e.g. , lease, unit, or facility) where disposal will occur and that are undertaken for the explicit purpose of facilitating disposal at that site. Activities involving the recycling of oil and gas NORM waste; the decontamination of equipment and facilities that are contaminated with oil and gas NORM waste as a result of activities other than disposal of oil and gas NORM waste; and the possession, use, transfer, transport, and/or storage of oil and gas NORM waste are under the jurisdiction of the Texas Department of Health. (3) Exemptions. Disposal of produced water by injection into a well permitted under sec.3.9 of this title (relating to disposal wells) or sec.3.46 of this title (relating to fluid injection into productive reservoirs) is exempt from the requirements of this section. Further, disposal of produced water by discharge to surface waters and in accordance with a discharge permit issued under sec.3.8 of this title (relating to water protection) is exempt from the requirements of this section. In addition, disposal of equipment that has been decontaminated in accordance with a license issued by the Texas Department of Health and that meets the exemption criteria of TRCR Part 46 is exempt from the requirements under this section. (c) Worker Protection Standards. (1) Requirements. Any employer of persons engaged in activities involving the disposal of oil and gas NORM waste shall: (A) comply with the requirements of TRCR sec.21.101 (regarding radiation protection programs); (B) control the occupational dose to his or her employees as provided in TRCR sec.sec.21.201-21.208; (C) comply with the requirements of TRCR sec.21.501 and sec.21.502 (regarding surveys and monitoring); (D) comply with the requirements of TRCR sec.sec.21.701-21.703 (regarding respiratory protection and controls to restrict internal exposure in restricted areas); (E) comply with the requirements of TRCR sec.sec.21. 901-21.906 (regarding posting requirements and exceptions to posting requirements); (F) comply with the requirements of TRCR sec.sec.21. 1101-21.1103, 21.1105- 21.1107, and 21.1111 (regarding records of radiation protection programs and records of special exposures); and (G) comply with the requirements of TRCR sec.sec.21.1201-21.1204 and 21.1207 (regarding reports). (2) Adoption by Reference. The TRCR sections referenced in this subsection are hereby adopted by reference. Words and terms used in the TRCR sections adopted by reference shall have the meanings given in the TRCR sections adopted, except that the terms "licensee" and "registrant" shall be interpreted to mean "employer of persons engaged in activities involving the disposal of oil and gas NORM waste" and the term "agency" shall be interpreted to mean "commission." (d) Prohibited Disposal. No person may dispose of oil and gas NORM waste except as provided in this section. Further, disposal of oil and gas NORM waste other than produced water by discharge to surface or subsurface waters, as defined in sec.3.8 of this title (relating to water protection), is expressly prohibited. Disposal of oil and gas NORM waste by spreading on public or private roads is also expressly prohibited. (e) Authorized Disposal Methods. The methods for disposing of oil and gas NORM waste described in this subsection are authorized by this section. A permit is not required to dispose of oil and gas NORM waste by the methods identified in this subsection. (1) Disposal in Plugged and Abandoned Well. A person may dispose of oil and gas NORM waste by placing it between plugs in a well that is being plugged and abandoned, provided that the conditions of this paragraph are met. (A) No person may dispose of oil and gas NORM waste at a lease or unit other than the lease or unit where the oil and gas NORM waste was generated unless the surface owner of the lease or unit where the disposal occurs provides written consent for the disposal. Such written consent shall be obtained prior to commencement of disposal operations. (B) The oil and gas NORM waste shall be placed in the well at a depth at least 250 feet below the base of usable quality water as determined in accordance with sec.3.14 of this title (relating to plugging). (C) If the oil and gas NORM waste is encased in a tubing string, the tubing shall be: (i) placed, not dropped, in the well; and (ii) left with an assembly that allows ready retrieval, if the string is not secured in cement. (D) A cement plug shall be set immediately above the oil and gas NORM waste and the plug shall be either: (i) above a cement retainer; (ii) above a cast iron bridge plug; or (iii) tagged to locate its position. (E) The cement of the surface plug shall be color dyed with red iron oxide. (F) A permanent marker that shows the three-bladed radiation symbol specified in TRCR sec.21.901, without regard to color, shall be welded to the steel plate at the top of the well casing. (G) The Form W-3A, Intent to Plug and Abandon, shall indicate: (i) the physical nature (i.e. pipe scale, contaminated soil, basic sediment, pumps, or valves) of the oil and gas NORM waste; (ii) the volume of oil and gas NORM waste; (iii) the radioactivity level of the oil and gas NORM waste (in pCi/g of Radium-226 and 228, or in 365>R/hr); (iv) the operator(s) of the lease, unit, or facility at which oil and gas NORM waste was generated; and (v) the source(s), if known, of the oil and gas NORM waste by commission district; field; lease, unit, or facility; and producing formation. (H) If the oil and gas NORM waste is encased in tubing, the Form W-3A, Intent to Plug and Abandon, shall indicate; (i) the size, grade, weight per foot, and outside diameter of the tubing; (ii) the subsurface depth of both the top and bottom of the tubing; (iii) the diameter of the retrieval assembly; and (iv) whether the tubing is free in the hole or is secured by cement, a bridge plug, or a cement retainer. (I) The information required in subparagraphs (A), (B), (G), and (H) of this paragraph shall be submitted to the district office with the Form W-3A. (2) On-Site Disposal. (A) Except as otherwise provided in this subparagraph, a person may dispose of oil and gas NORM waste by burial at the same site where the oil and gas NORM waste was generated, provided that prior to burial the oil and gas NORM waste has been treated or processed such that the radioactivity concentration of both Radium-226 and 228 within the treated or processed waste does not exceed the background radioactivity concentration by more than five pCi/g. Such treatment or processing, if it occurs at the disposal site, is considered to fall within the definition of disposal because it is necessary to facilitate disposal. This subparagraph does not authorize disposal of equipment contaminated with oil and gas NORM waste. (B) A person may dispose of oil and gas NORM waste at the same site where the oil and gas NORM waste was generated by applying it to and mixing it with the land surface, provided that after such application and mixing the radioactivity concentration of Radium-226 and 228 in the area where the oil and gas NORM waste was applied and mixed does not exceed the background radioactivity concentration by more than five pCi/g. (3) Disposal at a Licensed Facility. A person may dispose of oil and gas NORM waste at a facility that has been licensed by the United States Nuclear Regulatory Commission, the Texas Natural Resource Conservation Commission, or another state if such facility is authorized under its license to receive and dispose of such waste. (4) Injection. Injection of oil and gas NORM waste that meets exemption criteria of TRCR Part 46 as a result of treatment or processing at a facility licensed by the Texas Department of Health (hereinafter referred to as a "specifically licensed facility") into a well permitted under sec.3.9 of this title (relating to disposal wells) is authorized under this section, provided that the requirements of this paragraph are met. (A) Prior to injecting treated or processed oil and gas NORM waste, the commission must be notified, in writing, by the operator of the injection well that it plans to inject oil and gas NORM waste that meets exemption criteria of TRCR Part 46 as a result of treatment or processing at a specifically licensed facility. Such notification shall include a copy of the Texas Health Department license for each facility where oil and gas NORM waste that will be injected is treated or processed in order to meet exemption criteria of TRCR Part 46. (B) Prior to injecting oil and gas NORM waste that has been treated or processed to meet exemption criteria of TRCR Part 46, the injection well operator must verify that the waste meets the exemption criteria of TRCR Part 46 by obtaining from the specifically licensed facility documentation regarding NORM surveys or other analyses conducted to ensure that the treated or processed oil and gas NORM waste meets the exemption criteria of TRCR Part 46. (f) Permit Required for Injection. With the exceptions of produced water and oil and gas NORM waste that meets exemption criteria of TRCR Part 46 as a result of treatment or processing at a facility licensed by the Texas Department of Health, no person may dispose of oil and gas NORM waste by injection into a well without a permit issued under sec.3.9 of this title (relating to disposal wells) that specifically allows disposal of oil and gas NORM waste. The provisions of this subsection apply in the case of oil and gas NORM waste disposal permits issued under sec.3.9 of this title (relating to disposal wells) . (1) Standards for Permit Issuance. A permit to dispose of oil and gas NORM waste under sec.3.9 of this title (relating to disposal wells) may be issued only if the commission, or its designee, determines that the subject oil and gas NORM waste will be disposed of in a manner that protects public health, safety, and the environment. Any permit to dispose of oil and gas NORM waste issued pursuant to sec.3.9 of this title (relating to disposal wells) shall contain construction and operating requirements that are reasonably necessary to protect public health, safety, and the environment. (2) NORM Information. In addition to the application requirements of sec.3.9 of this title (relating to disposal wells), an application for injection of oil and gas NORM waste shall include the information specified in this paragraph. The commission or its designee may require the applicant to provide any such additional information as may be necessary to show that the proposed disposal is protective of public health, safety, and the environment. (A) The application shall describe the physical nature (i.e. pipe scale, contaminated soil, basic sediment, pumps, or valves) of the oil and gas NORM waste to be disposed of. (B) The application shall state the total volume of oil and gas NORM waste to be disposed of or the proposed rate of oil and gas NORM waste disposal. (C) The application shall state the maximum measured radioactivity level of the oil and gas NORM waste (in pCi/g of Radium-226 and 228, or in 365>R/hr) that will be disposed of. (3) Notice Requirements. An applicant for a permit to inject oil and gas NORM waste under sec.3.9 of this title (relating to disposal wells) shall provide notice as required in sec.3.9 of this title (relating to disposal wells) and shall include in such notice the information required in paragraph (2) of this subsection. (g) Permit Required for Surface Disposal. Except in the case of on-site disposal that meets the requirements of subsection (e)(2) of this section, no person may dispose of oil and gas NORM waste by burying it or by applying it to and mixing it with the land surface without first obtaining a permit under sec.3.8 of this title (relating to water protection). The provisions of this subsection apply in the case of permits for such surface or near-surface disposal methods. (1) Standards for Permit Issuance. A permit to dispose of oil and gas NORM waste under sec.3.8 of this title (relating to water protection) may be issued only if the commission, or its designee, determines that the subject oil and gas NORM waste will be disposed of in a manner that is protective of public health, safety, and the environment. Any permit to dispose of oil and gas NORM waste issued pursuant to sec.3.8 of this title (relating to water protection) shall contain construction and operating requirements that are reasonably necessary to protect public health, safety, and the environment. In addition, a permit for burial of oil and gas NORM waste may be issued only if, prior to burial, the oil and gas NORM waste has been treated or processed so that the radioactivity concentration of Radium-226 and 228 does not exceed the background radioactivity concentration by more than five pCi/g. A permit to dispose of oil and gas NORM waste by applying it to and mixing it with the land surface may be issued only if, after such application and mixing, the radioactivity concentration of Radium-226 and 228 over the area where the oil and gas NORM waste was applied and mixed will not exceed the background radioactivity concentration by more than five pCi/g. (2) NORM Information. In addition to the application requirements of sec.3.8 of this title (relating to water protection), an application for surface or near-surface disposal of oil and gas NORM waste shall include the information specified in this paragraph. The commission or its designee may require the applicant to provide any such additional information as may be necessary to show that the proposed disposal will protect public health, safety, and the environment. (A) The application shall describe the physical nature (i.e. pipe scale, contaminated soil, basic sediment, pumps, or valves) of the oil and gas NORM waste to be disposed of. (B) The application shall state the total volume of oil and gas NORM waste to be disposed of or the proposed rate of oil and gas NORM waste disposal. (C) If the oil and gas NORM waste has been treated or processed to reduce the radioactivity concentration under a specific license issued by the Texas Department of Health, the application shall state the maximum measured radioactivity level (in pCi/g of Radium-226 and 228, or in 365>R/hr) of the treated or processed waste. If the oil and gas NORM waste will be treated or processed at the disposal site to reduce the radioactivity concentration, the application must state the maximum measured radioactivity level (in pCi/g of Radium-226 and 228, or in 365>R/hr) of the waste prior to treatment or processing. (D) The application shall include the background radioactivity concentration (in pCi/g of Radium-226 and 228) of the disposal area. (E) The application shall describe the method(s) to be used to control dust from the oil and gas NORM waste during disposal. (F) The application shall include written authorization from the surface owner, if different from the applicant, for disposal of oil and gas NORM waste on his or her property. (3) Notice Requirements. Notice of an application for a permit to dispose of oil and gas NORM waste under this subsection shall be provided as required in sec.3.8 of this title (relating to water protection) and such notice shall include the information required in paragraph (2)(A)-(E) of this subsection. (h) Record Keeping. Records relating to the disposal of oil and gas NORM waste shall be retained for at least three years after the date of disposal. Such records shall include the information specified in this subsection. (1) Generation. The operator of the lease, unit, or facility at which oil and gas NORM waste was generated shall maintain records that include: (A) the identity of the property where the oil and gas NORM waste was generated, including the commission district; field; lease, unit, or facility; and producing formation, if known; (B) the identity of the facility, site, or well where the oil and gas NORM waste was disposed of; (C) the physical nature (i.e., pipe scale, contaminated soil, basic sediment, pumps, or valves) of the oil and gas NORM waste; (D) the volume of oil and gas NORM waste the person disposed of at that facility, site, or well; and (E) the radioactivity level(s) of the oil and gas NORM waste (in pCi/g of Radium-226 and 228, or in 365>R/hr). (2) Disposal. Each person who disposes of oil and gas NORM waste shall maintain records that include the identity of the operator of the lease, unit, or facility at which the oil and gas NORM was generated as well as the information required under paragraph (1) of this subsection. (3) Extension During Investigation. Any documents or records that contain information pertinent to the resolution of any pending regulatory enforcement proceeding shall be retained beyond any three year period specified in this subsection until the resolution of the proceeding. (4) Examination and Reporting. Any person who keeps records required by this subsection shall make the records available for examination and copying by the commission, or its designee, during reasonable working hours. Upon request of the commission, or its designee, the person who keeps the records shall file such records with the commission. (i) Inspection. The commission or its representatives shall have access to properties subject to the requirements of this section as provided in Texas Natural Resources Code, Title 3. (j) Penalties. (1) Penalties. Violations of this section may subject the person to penalties and remedies specified in the Texas Natural Resources Code, Title 3. (2) Certificate of Compliance. The certificate of compliance for any well may be revoked in the manner provided in sec.3.68 of this title (relating to pipeline connection; cancellation of certificate of compliance; severance). (k) Alternatives. On a case-by-case basis, alternatives to the provisions of this section may be approved by the commission for good cause if it is demonstrated to the commission's satisfaction that the alternatives are protective of public health, safety, and the environment. A proposed alternative must be submitted in writing and approved by the commission. 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 December 12, 1994. TRD-9452654 Mary Ross McDonald Assistant Director, Legal Division Railroad Commission of Texas Effective date: February 1, 1995 Proposal publication date: October 18, 1994 For further information, please call: (512) 463-7008 16 TAC sec.3.101 The Railroad Commission of Texas adopts new sec.3.101, concerning certification of natural gas from particular gas wells as high cost natural gas under the Texas Tax Code, Chapter 201, with changes to the proposed text as published in the August 9, 1994, issue of the Texas Register (19 TexReg 6191). The section specifies the requirements for certification of natural gas from particular gas wells as high cost natural gas for the purpose of a tax exemption provided for in Texas Tax Code Chapter 201. The new rule will allow for more efficient processing of state severance tax exemptions. One comment suggested that the definition of gas should be expanded to mean all hydrocarbons which are produced from a qualified well. The commission does not agree. The definition of gas is contained in the underlying legislation and cannot be expanded in the rule. One comment suggested that a sentence should be added to subsection (c)(1). The suggested language reads: "If a well is spudded between May 24, 1989, and September 1, 1996, the entire wellbore becomes qualified for the tax exemption for all completions within any qualified formation." The commission disagrees. Each completion within a wellbore is the subject of a separate application. If a completion is within a qualified field or formation both geographically and by depth, and satisfies all other criteria, it may be qualified for the tax exemption after proper application. Thus the present language allows for all completions within a qualified formation to qualify for the tax exemption without a blanket exemption across the entire formation being granted in the rule. Another comment suggested adding language that recognizes the availability of commingling non-qualified gas with qualified gas. The commission disagrees. Commingled gas is covered under sec.3.10 (relating to restriction of production of oil and gas from different strata). Qualification of exempt gas which is commingled with non-exempt gas is available to operators and does not need to be addressed in this rule. One comment suggested that gas produced from horizontal wells with a measured depth of greater than 12,000 feet be specifically enumerated as a category under subsection (b)(6). The commission does not agree. Unless the gas otherwise qualifies under subsections (b)(6)(A)-(D) or qualifies under the production enhancement or tight-sand criteria, the Tax Code does not allow the gas to be qualified as high-cost gas. Several comments suggested adding a subsection which would list the data required to be filed with the commission when applying to have a type of gas qualified under subsection (b)(6)(E), which is the final category of high-cost gas listed in the definition subsection. The commission disagrees. Subsection (e)(5)-(6) already lists the requirements for applications involving tight formations and production enhancement. Another comment suggested expanding the applicant pool for a severance tax exemption for a specific well from the operator to "any other seller or working interest owner" in the well. The commission disagrees. The restriction allowing only the operator of a well to make application is contained in the underlying legislation and cannot be expanded in the rule. One comment suggested that requirements in subsection (e)(6)(D), (F), (G), and (H) be deleted because they are too onerous and inappropriate. The commission does not agree. Deleting these items, which are the primary requirements to prove production enhancement gas, would change the intent of this category. It would allow gas production from any well which had one of the ten production enhancement techniques established by the Federal Energy Regulatory Commission (FERC) in 1980 to qualify for the 7.5% state tax exemption. These techniques include, but are not limited to, acidizing, reentering a plugged and abandoned well, or installing compressor equipment. The pricing category under section 107 of the Natural Gas Policy Act was not established by the F.E.R.C. for an operator to just perform one of the ten techniques on a well. To delete the provisions would be to open up the "production enhancement option" to the majority of wells in the state. There would be no limitation on the production enhancement choice. One comment suggested that the criteria for Devonian shale gas presently stated as an "environmentally corrected, calibrated gamma ray log with values greater than 100 API units" contained in subsection (e)(4)(C) be changed to an absolute value of gamma ray amplitude and expressed as "environmentally corrected gamma ray values greater than 100 API units" because of problems establishing a shale base line in certain formations with natural radioactivity. The commission disagrees. The problem of establishing a shale base line in naturally radioactive formations has been addressed in subsection (e)(4)(C) which allows a "gamma ray log with a superimposed indication of the shale base line" or even a "driller's log or similar report". This allows for corrections to be made for formations with natural radioactivity. A comment suggested that the definition of "affected persons" in subsection (f)(2) be changed from "and all operators in the same field or fields involved" to "and all operators in the same field or fields producing from the named formation." The commission does not agree because this may cause an operator in an affected field not to be notified of an application for tight sands designation if the particular operator's wells happen to be shut in or temporarily off production. Another comment concerning the definition of "affected persons" in subsection (f)(2) suggested that it should be amended to delete first purchasers and other operators not participating in the actual well which is part of the application as not being truly affected persons. The commission disagrees. In many instances first purchasers are the entities which pay the severance tax to the comptroller and thus they are affected persons. Operators of wells within the field are affected persons in that they are potential beneficiaries of the designation of the formation as a tight formation. One comment suggested that the application requirements for tight formation designation are too onerous and that an applicant should be required to supply geologic information for only a three mile radius surrounding the subject well. The commission does not agree because the regional nature and characteristics of tight formations cannot be evaluated on a three mile radius. Another comment suggested that the requirement in subsection (f)(3)(B)(i) that "in situ" permeability throughout the pay zone be 0.1 millidarcy or less can be very difficult to obtain absent a core of the formation under consideration; cores are seldom run on wells drilled by independent operators so sufficient data may not be available to independent operators. The commission disagrees. A core is not required to determine the "in situ" permeability of a formation. Other accepted engineering methods are available to operators attempting to show proof of the "in situ" permeability of a formation. Another comment suggested that subsection (f)(3)(B)(ii) requiring that a stabilized production rate prior to stimulation is not expected to exceed certain tabular values published with the rule should be changed to read "a 24 hour production rate," because a stabilized production rate may not be established prior to stimulation. The commission disagrees. A complete reading of the subsection reveals that the stabilized rate "is not expected to exceed the production rate determined" from the table. This necessarily implies that a stabilized production rate would not always have to be established prior to stimulation but could be estimated from flow rates and other engineering estimates. The following groups or associations commented and supported adoption of the proposed rule and also suggested changes to the rule: Permian Basin Petroleum Association, Texas Mid-Continent Oil and Gas Association, and Tana Oil and Gas Corporation. There were no comments opposing the proposed rule. The commission adopts the rule pursuant to Texas Natural Resources Code, sec.81.052, which authorizes the commission to adopt rules to regulate persons and their operations under the jurisdiction of the commission, and Texas Tax Code, sec.202.057, which provides the commission with authority to adopt all necessary rules to administer this section. The rule implements Texas Tax Code sec.202.057, which provides for a severance tax exemption for qualifying high- cost natural gas. sec.3.101. Certification for Severance Tax Exception for Gas Produced from High-Cost Gas Wells. (a) Purpose. To provide a procedure by which an operator can obtain Railroad Commission certification that natural gas from a particular gas well qualifies as high-cost natural gas under the Texas Tax Code, Chapter 201, Subchapter B, sec.201.057, and that such gas is therefore exempt from the severance tax imposed by the Texas Tax Code, Chapter 201. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commission-The Railroad Commission of Texas. (2) Completion-The act of making a well capable of producing gas from a particular commission designated or new field. (3) Completion date-The date on which a well is first made capable of producing oil or gas from a particular commission-designated or new field, as shown on the completion report filed by the operator with the commission. (4) Comptroller-The Comptroller of Public Accounts of the State of Texas. (5) Director-The director of the Oil and Gas Division or the director's delegate. Any authority given to the director in this section is also retained by the commission. Any action taken by the director pursuant to this section is subject to review by the commission. (6) High-cost gas-Natural gas which the commission finds to be: (A) produced from any gas well, if production is from a completion which is located at a depth of more than 15,000 feet; (B) produced from geopressured brine; (C) occluded natural gas produced from coal seams; (D) produced from Devonian shale; or (E) produced from designated tight formations or produced as a result of production enhancement work. (7) Operator-The person responsible for the actual physical operation of a gas well. (8) Spud date-The date of commencement of drilling, as shown on commission records. (c) Applicability. (1) This section applies to high-cost gas produced from a well that is spudded or completed between May 24, 1989, and September 1, 1996. (2) The plug back or deepening of an existing wellbore qualifies as a completion under this section (A) if it is the initial completion in a commission-designated or new field that has not been previously produced from that wellbore, or (B) the operator can demonstrate that the strata between the completion locations contain a minimum of 20 vertical feet of impermeable strata, or (C) the operator submits the results of bottom hole pressure surveys, gas analyses or other methods or calculations comparing the completion locations which are the subject of the application and any completion locations in the wellbore which were completed for production prior to May 24, 1989, with an explanation of the engineering principles, calculations, and reasoning used in making the judgment that these comparisons demonstrate that the gas to be produced from the subject completion locations could not have been produced from any completion locations in existence prior to May 24, 1989. (3) Eligible high-cost gas will be exempt from the tax imposed by the Texas Tax Code, Chapter 201, during the period beginning September 1, 1991, and ending August 31, 2001. (4) If the operator determines that a gas well previously certified as producing high-cost gas no longer produces high-cost gas or if the operator takes any action or discovers any information that affects the eligibility of gas for an exemption under Texas Tax Code, sec.201.057, the operator must notify the commission in writing within 30 days after such an event occurs. (5) If the commission determines that a gas well previously certified as producing high-cost gas no longer produces high-cost gas or if the commission takes any action or discovers any information that affects the eligibility of gas for an exemption under Texas Tax Code, sec.201.057, the commission will notify the comptroller, all first purchasers (if known), and the operator in writing immediately. (d) Application procedure. (1) An application for a state severance tax exemption may be made only by the operator of a well. The operator shall file only one copy of any required document. Submission of a legible copy of a required document originally submitted to the commission will comply if the application includes a statement signed by the operator that copies of commission documents attached to the application are true and correct copies of the documents originally filed with the commission. The commission may require an operator to file certified copies of documents from commission files or of other documents necessary for a determination. (2) Filings and correspondence on high-cost gas state severance tax applications should be addressed to the Railroad Commission of Texas, P. O. Box 12967, Austin, Texas 78711-2967, Attention: High-Cost Gas Severance Tax Section. No filings may be made at the district offices. (e) Individual well filing requirements. To qualify for the severance tax exemption, the operator must prove that the gas produced is high-cost gas by providing the following information: (1) Applications for wells producing deep high-cost gas shall include: (A) the completed applicable commission form; and (B) copies of all G-1s ever filed on the subject well. (2) Applications for wells producing geopressured brine shall include: (A) the completed applicable commission form; (B) copies of all G-1s ever filed on the subject well; (C) a bottom-hole pressure test report and other information establishing the initial reservoir pressure gradient; and (D) evidence to establish that, before production, the gas from the well was in solution in a brine aquifer with at least 10,000 parts of dissolved solids per million parts of water. (3) Applications for wells producing coal seam gas shall include: (A) the completed applicable commission form; (B) copies of all G-1s ever filed on the subject well if the gas is produced through a wellbore, or a detailed description of the production process if the gas is not produced through a wellbore; (C) a radioactivity, electric or other log which will define the coal seams or, if such logs are not reasonably available, a detailed lithologic description of the gas-producing interval; and (D) evidence to establish that the natural gas was produced from coal seam. (4) Applications for wells producing Devonian shale gas shall include: (A) the completed applicable commission form; (B) copies of all G-1s ever filed on the subject well; (C) an environmentally corrected, calibrated gamma ray log with values greater than 100 API units over the Devonian age stratigraphic section, or a gamma ray log with superimposed indications of the shale base line and the gamma ray index of 0.7 over this section or, if the gamma ray log is not reasonably available, a driller's log or similar report indicating the general characteristics of the strata penetrated and the corresponding depths at which they are encountered throughout the Devonian age stratigraphic section; (D) information which calculates the percentage of footage of the producing interval which is not Devonian shale as indicated by the gamma ray log, driller's log, or similar report; (E) information which demonstrates that the percentage of potentially disqualifying nonshale footage for the stratigraphic section selected is equal to or less than 5.0% of the Devonian stratigraphic age interval; and (F) reference to a standard stratigraphic chart or text establishing that the producing interval is a shale of Devonian age. (5) Applications for wells producing designated tight formation gas shall include: (A) the completed applicable commission form; (B) copies of all G-1s ever filed on the subject well; and (C) specific reference to the commission docket number assigned to the tight sands area designation along with a copy of the map outlining the designated tight formation as approved by the commission with the location of the subject well shown. (6) Applications for wells producing production enhancement gas shall include: (A) the completed applicable commission form, (B) copies of all G-1s ever filed on the subject well; (C) a description of the production enhancement work that has been performed on the well, including the dates the work was commenced and completed, or that will be performed on the well; (D) an itemized statement of costs incurred in performing the production enhancement work, including copies of invoices and bills for such work, or, if the work has not yet been completed, estimates of such costs; (E) a statement estimating, for a five-year test period beginning from the month in which the application is filed, the increase in gas production resulting from the application of production enhancement work; (F) calculations showing that the projected increase in revenue does not exceed 200% of the sec.103 price; (G) the renegotiated price; (H) a copy of that portion of the sales contract that authorizes collection of the renegotiated price; and (I) the properly executed statement under oath made by the purchaser of natural gas which states that there is a reasonable basis for the statements and estimates made by the applicant. (f) Tight sands area designation filing requirements. (1) If the application for a "tight sands" approval is on a well that is not within an area previously designated as a tight formation by the Federal Energy Regulatory Commission under the Natural Gas Policy Act or by the Railroad Commission of Texas, the operator must first apply for a new tight formation area designation. (2) An applicant requesting a tight formation designation must submit a written request to the High-Cost Gas Severance Tax Section of the Oil and Gas Division for a determination that a named formation or a specific portion thereof is a tight formation. The applicant must supply a list of the names and addresses of all affected persons. For purposes of this subsection, "affected persons" means all first purchasers, as indicated in current commission records, from all wells (regardless of operator) within the specific portion of the named formation and all operators in the same field or fields involved. The staff shall mail notice of the tight sands application to all affected persons. If the technical staff finds that the data submitted with the application are complete and comply with the requirements set out in paragraph (3) of this subsection, and if no protest is filed within 21 days of the notice, the application will be presented to the commission for approval. If the technical staff finds the data submitted are incomplete, or if a protest is filed within the 21-day notice period, the applicant may request a hearing to consider the application. If the applicant does not request such a hearing, the application shall be dismissed. Any such hearing shall be held only after at least ten days notice to all affected persons. If no protestant appears at the hearing, the application shall be presented to the commission for approval if the application and any evidence presented at the hearing establishes that the subject formation meets the requirements for a tight formation determination. (3) In addition to the written request and list of affected persons, the applicant must submit the following information in duplicate: (A) a geographical and geological description of the formation, including: (i) a map outlining the geographic limits of the formation, counties involved, boundaries, abstract numbers, survey names, and field name(s); (ii) a list of the counties involved, abstract numbers, survey names, geologic formation markers, and any other descriptive information that will aid in identifying the subject formation; and (iii) a structure map contoured on the top of the formation, a regional cross- section to depict upper and lower limits of the formation, and depositional history. (B) engineering and geological data, including a written explanation of each exhibit, establishing the following: (i) that in situ permeability throughout the pay zone is 0.1 millidarcy or less, as determined by geometric mean or median methodology; (ii) that a stabilized production rate, without stimulation, against atmospheric pressure, of wells completed for production in the formation is not expected to exceed the production rate determined in accordance with the following table: Figure 1: 16 TAC 3.101(f)(3)(B)(ii) and (iii) that no well drilled into the formation is expected to produce, without stimulation, more than five barrels of crude oil per day. (C) a map or list of the wells that are currently producing in the formation. (g) Commission action on well applications. (1) Each application will be assigned a docket number identifying it as a severance tax application. A notice of receipt will be sent to the applicant, indicating the assigned docket number and receipt date. All further correspondence shall include this number. (2) The director may administratively approve the application if the forms and information submitted by the operator establish that the gas qualifies as high- cost gas eligible for the severance tax exemption. If the director denies administrative approval, the applicant shall have the right to a hearing. (3) A notice of hearing will be issued only for complete applications and will be furnished to the applicant, to any other person the commission deems necessary, and to the commission secretary. Persons claiming a justiciable or administratively cognizable interest may intervene to support or oppose the application. (4) The hearings in dockets in which an intervention in opposition is entered prior to or at the scheduled hearing will be recessed to a time designated by the examiner. If the applicant did not appear at the hearing initially, the examiner will give notice of the opposition and recess. Failure of the intervenor to appear at the subsequent hearing will be deemed a withdrawal. (5) If the parties do not waive issuance of a proposal for decision and the examiner's recommendation is adverse to a party in the docket, the examiner will issue a proposal for decision. The parties shall file any exceptions to the proposal within 20 days after service of the proposal, and any replies to exceptions within 30 days after service of the proposal. The parties shall serve copies of exceptions and replies to exceptions on all other participants and must be received by the commission within these times in order to be considered. (6) If a person alleging a justiciable or administratively cognizable interest was not given notice, the person may file a written motion in intervention any time prior to the date of commission consideration in open meeting. The motion shall set forth facts showing good cause for the commission to grant the intervention or take other appropriate action. (h) Reporting. To qualify for the exemption provided by Texas Tax Code, sec.201.057, the person responsible for paying the tax must apply to the comptroller. The application shall contain the certification of the commission that the well produces or will produce high-cost gas, and may be filed with the Comptroller between January 1, 1990, and December 31, 1998, for exemption from the natural gas severance tax provided in the Texas Tax Code Chapter 201. 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 December 21, 1994. TRD-9452691 Mary Ross McDonald Assistant Director Legal Division-Gas Utilities Railroad Commission of Texas Effective date: January 11, 1995 Proposal publication date: August 9, 1994 For further information, please call: (512) 463-6923 Part VIII. Texas Racing Commission Chapter 303. General Provisions Subchapter D. Texas Bred Incentive Programs General Provisions 16 TAC sec.303.83 The Texas Racing Commission adopts an amendment to sec.303.83, concerning audits and financial reports by official breed registries without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8334). The amendment is adopted to enable the commission to better evaluate and regulate the Texas Bred Incentive Programs, which are funded by a portion of the wagering dollar. The amendment changes the requirements for official breed registries to submit financial statements by requiring the financial statements to be audited and requires the statements to be submitted on or before June 15 of each year. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks; sec.6.08, which authorizes the commission to adopt rules relating to the accounting, audit, and distribution of all amounts set aside for the Texas-bred program for horses; and sec.6.09, which authorizes the commission to adopt rules relating to the Texas-bred program for greyhounds. Sec. 303.83. 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 December 13, 1994. TRD-9452603 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 Chapter 309. Operation of Racetracks Subchapter A. General Provisions Operations 16 TAC sec.309.53 The Texas Racing Commission adopts an amendment to sec.309.53, concerning records maintained by licensed pari-mutuel racetracks without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8335). The amendment is adopted to ensure pari-mutuel racetracks will be accountable to the public for their operations. The amendment changes the date by which a racetrack must submit audited financial statements each year. The amendment also deletes references to records of management, concession, and totalisator companies which are subject to another commission rule. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. 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 December 13, 1994. TRD-9452604 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 16 TAC sec.309.61 The Texas Racing Commission adopts an amendment to sec.309.61, concerning vendors at licensed pari-mutuel racetracks without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8335). The amendment is adopted to ensure the commission's licensing program operates efficiently and effectively. The amendment eliminates the requirement that vendors provide proof of liability insurance at the time of licensure. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks; and sec.7.02, which authorizes the commission to adopt rules specifying the qualifications and experience required for licensing. 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 December 13, 1994. TRD-9452605 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 16 TAC sec.309.63 The Texas Racing Commission adopts an amendment to sec.309.63, concerning approval of management, totalisator companies, and concessionaires for licensed pari-mutuel racetracks without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8336). The amendment is adopted to ensure that companies involved in the operations of pari-mutuel racetracks will be accountable to the public. The amendment adds totalisator companies to the list of entities who must provide audited financial statements to the commission regarding their operations at pari-mutuel racetracks. The amendment also changes the date on which the statements are due. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. 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 December 13, 1994. TRD-9452606 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 Subchapter B. Horse Racetracks Operations 16 TAC sec.309.193 The Texas Racing Commission adopts an amendment to sec.309.193, concerning head numbers used for horses racing at licensed pari-mutuel racetracks without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8336). The amendment is adopted to ensure that pari- mutuel racing will be of the highest integrity. The amendment requires a licensed racetrack association to provide a head number to each horse running in a race at the racetrack, rather than giving the association the option to provide the head number. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. 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 December 13, 1994. TRD-9452607 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 Chapter 311. Conduct and Duties of Individuals Subchapter B. Specific Licensees Licensees for Greyhound Racing 16 TAC sec.311.174 The Texas Racing Commission adopts new sec.311.174, concerning restrictions on placement in kennels without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8336). The new section is adopted to ensure that pari-mutuel racing will be of the highest integrity. The new section prohibits a person who owns an interest in a kennel booked at a Texas racetrack from owning an interest in a kennel booked at another Texas racetrack or owning an interest in a greyhound racing out of another kennel at the racetrack. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. 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 December 13, 1994. TRD-9452608 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 Chapter 313. Officials and Rules of Horse Racing Subchapter B. Entries, Declarations, and Allowances Allowances and Penalties 16 TAC sec.313.161 The Texas Racing Commission adopts an amendment to sec.313.161, concerning weight allowances in thoroughbred races without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8337). The amendment is adopted to ensure that pari-mutuel racing will be of the highest integrity. The amendment clarifies that the sex allowance in a thoroughbred race is mandatory. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. 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 December 13, 1994. TRD-9452609 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 Subchapter C. Claiming Races 16 TAC sec.313.312 The Texas Racing Commission adopts an amendment to sec.313.312, concerning protests to claims without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8337). The amendment is adopted to ensure that pari-mutuel racing will be of the highest integrity. The amendment shortens the length of time after a claiming race during which a person may file a protest to a claim. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. 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 December 13, 1994. TRD-9452610 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 Chapter 319. Veterinary Practices and Drug Testing Subchapter D. Drug Testing Testing Procedures 16 TAC sec.319.332 The Texas Racing Commission adopts an amendment to sec.319.332, concerning the procedure for obtaining specimens for testing without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8338). The amendment is adopted to ensure that pari-mutuel racing will be of the highest integrity. The amendment clarifies that a trainer or kennel owner may not designate another trainer or kennel owner to witness the collection of a specimen unless a trainer responsibility form has been executed. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks; and sec.14.03, which authorizes the commission to adopt rules relating to post-race testing of race animals to detect the presence of prohibited medication. 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 December 13, 1994. TRD-9452611 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 Provisions for Horses 16 TAC sec.319.362 The Texas Racing Commission adopts an amendment to sec.319.362, concerning the procedure for testing split specimens without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8338). The amendment is adopted to ensure that pari-mutuel racing will be of the highest integrity. The amendment deletes the reference to the stewards in the split specimen testing process. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks; and sec.14.03, which authorizes the commission to adopt rules relating to post-race testing of race animals to detect the presence of prohibited medication. 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 December 13, 1994. TRD-9452612 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 Chapter 321. Pari-mutuel Wagering Subchapter B. Distribution of Pari-mutuel Pools 16 TAC sec.321.111 The Texas Racing Commission adopts an amendment to sec.321.111, concerning the twin trifecta without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8339). The amendment is adopted to ensure that pari-mutuel wagering will be conducted with the highest integrity. The amendment clarifies the procedure for paying out the twin trifecta pool if an animal in the second race is prevented from starting. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks; and sec.11.01, which authorizes the commission to adopt rules regulating pari-mutuel wagering. 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 December 13, 1994. TRD-9452613 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 16 TAC sec.321.117 The Texas Racing Commission adopts an amendment to sec.321.117, concerning the tri-superfecta without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8339). The amendment is adopted to ensure that pari-mutuel wagering will be conducted with the highest integrity. The amendment clarifies the procedure for paying out the tri-superfecta pool if an animal in the second race is prevented from starting. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks; and sec.11.01, which authorizes the commission to adopt rules regulating pari-mutuel wagering. 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 December 13, 1994. TRD-9452614 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 794-8461 TITLE 22. EXAMINING BOARDS Part VIII. Texas Appraiser Licensing and Certification Board Chapter 153. Provisions of the Texas Appraiser Licensing and Certification Act 22 TAC sec.153.5, sec.153.9 The Texas Appraiser Licensing and Certification Board adopts amendments to 22 TAC sec.153.5, relating to fees, and to sec.153.9, relating to applications, with changes to the proposed text as published in the November 1, 1994, issue of the Texas Register (19 TexReg 8664). The adopted amendments to sec.153.5 change the fees which the board charges and collects for applications and renewals in order to assure the financial stability of the agency. The adopted amendments to sec.153.9 modifies application forms to reflect the amended fees. Proposed changes in the fee for state licensed appraisers were not adopted, and there was not a need to amend the application for appraiser trainees. The effective date of the amendments was set at March 1, 1995, in order to provide ample notice. The adopted amendments to sec.153.5 set the application fees for general certified appraisers at $200, residential certified appraisers at $150, and non- resident appraiser temporary registration at $50. Application fees for state licensed appraisers continue at $125. The renewal fees for general certified appraisers were set at $200, residential certified appraisers at $150, and appraiser trainees at $50. Adopted amendments to sec.153.9 modify two forms to provide for the fees set in sec.153.5: Application for Appraiser Certification or Licensing, and Temporary Non-Resident Appraiser Registration. One written comment was received: The Foundation Appraisers Coalition of Texas (FACT) supported the need to increase the fees in order to keep the agency financially viable and to adequately enforce the regulations, but wanted the same fee for each of the three classifications of appraisers. At a Public Hearing on December 16, 1994, FACT orally presented its written comments. No other comments were presented at the Public Hearing. A majority of the board disagreed with FACT's comments regarding establishing the same fee for each of the three classifications and felt that there should be a differentiation between the fees for general certified, residential certified and state licensed appraisers which reflects differences in typical earnings of practitioners in the three categories. The amendments are adopted under sec.5(6) of the Texas Appraiser Licensing and Certification Act (Texas Civil Statutes, Article 65734a.2), which provides the Texas Appraiser Licensing and Certification Board with the authority to establish various fees. sec.153.5. Fees. (a) The board shall charge and the commissioner shall collect the following fees: (1) an application fee for general certification of $200, for residential certification of $150, or for licensing of $125; (2) a renewal fee for a general certification of $200, for residential certification of $150, or for licensing of $100; (3) (No change.) (4) a renewal fee for appraiser trainee approval of $50; (5) (No change.) (6) a fee for nonresident appraiser registration of $50; (7)-(12) (No change.) (b)-(c) (No change.) sec.153.9. Applications. (a) (No change.) (b) The Texas Appraiser Licensing and Certification Board adopts by reference the following forms approved by the board and published and available from the board, P.O. Box 12188, Austin, Texas 78711-2188: (1) TALCB Form 1.4, Application for Appraiser Certification or Licensing; (2)-(3) (No change.) (4) TALCB Form 4.4, Application for Approval as an Appraiser Trainee; (5) (No change.) (6) TALCB Form 6.2, Temporary Non-Resident Appraiser Registration; (7)-(9) (No change.) (c)-(g) (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 December 20, 1994. TRD-9452665 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: March 1, 1995 Proposal publication date: November 1, 1994 For further information, please call: (512) 465-3950 Part XXV. Structural Pest Control Board Chapter 599. Treatment Standards 22 TAC sec.599.4 (Editor's Note: The following adopted amendment was inadvertently published in the December 16, 1994, issue of the Texas Register (19 TexReg 9999). The format of this amendment was incorrect. In this issue of the Texas Register, the amendment is being republished with the corrected format. The effective date of this amendment is December 29, 1994.) The Texas Structural Pest Control Board adopts an amendment to sec.599.4, concerning termite treatment standards, with changes to the proposed text as published in the issue of the Texas Register (19 TexReg 6414). The amendment creates a better understanding for the consumer, prior to treatment, as to what will be treated and how various types of treatments differ. The amendment changes the name of the consumer disclosure statement to termite treatment disclosure and definitions and a disclosure of actual percentage to be used. The Texas Pest Control Association commented that some of the information was not necessary at the time of estimate and that licensed technicians should be allowed to sign off on the disclosures as they have a very high level of training. The Texas Pest Control Association commented in favor of the proposed amendment. The Structural Pest Control Board agreed with the comments and the amendment as adopted reflect those concerns. The amendment is adopted under Article 135b-6, which provides the Texas Structural Pest Control Board with the authority to license and regulate persons who provide structural pest control services. sec.599.4. Termite Treatment Disclosure Documents. (a) As a part of each estimate submitted and before conducting any termite treatment, the pest control company proposing the treatment shall present the prospective customer or designee with the disclosure documents statement. (b) Each termite treatment disclosure document shall include, but is not limited to: (1) a graph and description of the structure or structures to be treated including the following: (A) the address or location; (B) approximate measurements as accurately as possible; (C) areas of present W.D.I. activity; (D) areas to be treated. (2) a label for any pesticide recommended or used; (3) the complete details of the warranty provided if any; including: (A) if the warranty does not include the entire structure treated, the areas included must be listed; (B) the time period of the warranty; (C) the renewal options and cost; (D) the obligations of the pest control operator to retreat for termite infestations or repair damage caused by termite infestations within the warranty period; and (E) conditions that could develop as a result of the owners action or inaction that would void the warranty; (4) the signature of approval on the graph by a certified applicator or licensed technician in the termite category employed by the company making the proposal. (5) the rate of termiticide application to be used on the treatment (6) The following statements and definitions in at least 8-point type: A termite treatment may be a full treatment, partial treatment or spot treatment, these types of treatments are defined as follows: (A) Full Treatment Pier and Beam-Generally defined as the treatment of the outer perimeter including porches, patios and treatment of the attached garage. In the crawl space, treatment would include any soil to structure contacts as well as removal of any wood debris on the ground. (B) Slab Construction-Generally defined as treatment of the perimeter and all known slab penetrations as well as any known expansion joints or stress cracks. (C) Partial Treatment-Any treatment which is less than what is typically considered to be a full treatment. This technique allows a wide variety of treatment stratagies but is more involved than a spot treatment. see Ex: treatment of the perimeter and bath traps. (D) Spot Treatments-Any treatment which concerns a limited, defined area that is intended to protect a specific location or "spot". Often there are adjacent areas susceptible to termite infestation which are not treated. For all treatments there will be a graph showing exactly what will be treated. Treatment specifications and warranties for those treatments may vary widely. Review the pesticide label provided to you for minimum treatment specification. If you have any questions, contact the service provider or the Texas Structural Pest Control Board, 9101 FM 1325, Suite 201, Austin, Texas 78758, (512) 835-4066. (7) For pre-construction treatments, the following statement must be provided in at least 8-point type: Federal law requires that the final treatment barrier be placed after all soil disturbance (such as landscaping, etc.) is complete. This information should be made available to the ultimate purchaser of the structure. (c) Before conducting any termite treatment, the pest control company proposing the treatment shall present the prospective customer or designee with a graph and description of the structure(s) to be treated including the following: (1) construction details needed for clarity of the report; (2) areas of previous WDI (3) areas of WDI damage; and (4) areas of conditions conducive to infestation by WDI; (5) the type of construction; (A) foundation (i) slab; (ii) pier and beam and type of pier; (iii) basement; or (iv) other (specify) (B) siding: (i) wood Structural Pest Control Board (ii) brick or stone; or (iii) other (specify) (C) roof: (i) composition; (ii) wood shingle; (iii) metal; or (iv) other; (D) primary use: (i) residence; (ii) public building; (iii) commercial; (iv) industrial; or (v) other (specify); (E) inaccessible or obstructed areas. 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 December 8, 1994. TRD-9452135 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: July 25, 1994 For further information, please call: (512) 835-4066 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 14. County Indigent Health Care Program Subchapter B. Determining Eligibility 25 TAC sec.14.105 The Texas Department of Health (department) adopts an amendment to sec.14. 105 without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7872). The amendment complies with the Indigent Health Care and Treatment Act, Chapter 61, Health and Safety Code, which requires that the standards and procedures used to determine eligibility be consistent with the standards and procedures used to determine eligibility in the Aid to Families with Dependent Children (AFDC) program. The section is being amended to exempt income-producing property and income-producing vehicles. This amendment corresponds to a recent change to the AFDC program. Comment: Two commenters were against the proposed rule change because of a perceived cost increase for their hospital district. Response: This proposed rule change will not affect hospital districts because the Indigent Health Care and Treatment Act does not stipulate the eligibility criteria that districts must follow in determining eligibility for their services. If a district chooses to follow the rules established in Chapter 14, County Indigent Health Care Program, income and resources are both eligibility criteria. If an applicant has property or vehicles that produce income, the income is first compared to the County Indigent Health Care Program income limits. The income limits for this program are very low. If the income is above these limits, then the applicant would not be eligible based on income. If it is below these limits, the income-producing property or vehicle is then looked at as a potential resource. It would be countable as a resource if the income it produces is less than the fair market value of the property or vehicle. The comments came from individuals. The amendment is adopted under Chapter 61 of the Health and Safety Code and Chapters 32 of Human Resources Code. The authority to administer the County Indigent Health Care Program was transferred to the Texas Department of Health under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 December 20, 1994. TRD-9452676 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: January 10, 1995 Proposal publication date: October 4, 1994 For further information, please call: (512) 338-6458 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XII. Texas Board of Occupational Therapy Examiners Chapter 363. Application of Rules 40 TAC sec.363.1 The Texas Board of Occupational Therapy Examiners adopts the repeal sec.363.1, concerning Application of Rules, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8435). This rule is being repealed for the purpose of expanding and clarifying the rules. The repeal will delete vague language and allow for clarification of the rules. No comments were received regarding repeal of the rule. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the 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 December 19, 1994. TRD-9452632 Nina Hurter Interim Executive Director Texas Board of Occupational Therapy Examiners Effective date: January 9, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 443-8202 Chapter 363. Consumer/Licensee Information 40 TAC sec.363.1 The Texas Board of Occupational Therapy Examiners adopts new sec.363.1, concerning Consumer/Licensee Information, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8435). The new rule is being adopted to fulfill the requirements of state law. The new rule requires licensees to display a consumer information notice; clarifies procedures for addressing the board; requires licensees to be knowledgeable of the rules; and requires board meetings to be in accordance with the Open Meetings Act. No comments were received regarding adoption of the rule. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the 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 December 19, 1994. TRD-9452634 Nina Hurter Interim Executive Director Texas Board of Occupational Therapy Examiners Effective date: January 9, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 443-8202 Chapter 365. Functions and Organizations of the Board 40 TAC sec.365.1, sec.365.2 The Texas Board of Occupational Therapy Examiners adopts the repeal of sec.365.1, concerning Meetings, and sec.365.2, Board Officers and Elections, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8436). This rule is being repealed for the purpose of expanding and clarifying the rules. The repeal will delete vague language and allow for clarification of the rules. No comments were received regarding repeal of the rule. The rule is repealed under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to repeal rules consistent with this Act to carry out its duties in administering 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 December 19, 1994. TRD-9452631 Nina Hurter Interim Executive Director Texas Board of Occupational Therapy Examiners Effective date: January 9, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 443-8202 Chapter 365. Types of Licenses 40 TAC sec.365.1 The Texas Board of Occupational Therapy Examiners adopts new sec.365.1, concerning Types of Licenses, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8436). This new rule is being adopted to clarify requirements for licensure. This new rule sets requirements for temporary licensure, regular licensure, and provisional licensure. No comments were received regarding adoption of the rule. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the 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 December 19, 1994. TRD-9452635 Nina Hurter Interim Executive Director Texas Board of Occupational Therapy Examiners Effective date: January 9, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 443-8202 Chapter 373. Examinations 40 TAC sec.373.1 The Texas Board of Occupational Therapy Examiners adopts the repeal of sec.373.1, concerning Examinations, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8437). The rule is being repealed for the purpose of expanding and clarifying the rules. The repeal will delete vague language and allow for clarification of the rules. No comments were received regarding repeal of the rule. The rule is repealed under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the 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 December 19, 1994. TRD-9452633 Nina Hurter Interim Executive Director Texas Board of Occupational Therapy Examiners Effective date: January 9, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 443-8202 Chapter 373. Supervision 40 TAC sec.373.1 The Texas Board of Occupational Therapy Examiners adopts new sec.373.1, concerning Supervision, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8437). This new rule is being adopted to set OTR requirements of the supervision of COTAs, OTs, OTAs, OT aides and OT orderlies. This new rule delineates supervision of COTAs; OT aides and orderlies; and OTs and OTAs with temporary licenses. No comments were received regarding adoption of the rule. The rule is adopted under the Occupational Therapy Practice Act, Texas Civil Statutes, Article 8851, which provides the Texas Board of Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the 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 December 19, 1994. TRD-9452636 Nina Hurter Interim Executive Director Texas Board of Occupational Therapy Examiners Effective date: January 9, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 443-8202