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 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 13. Health Planning and Resource Development Advisory Committee 25 TAC sec.13.51 The Texas Department of Health (department) adopts new sec.13.51, concerning the Hospital Data Advisory Committee, with changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9444). In accordance with Texas Civil Statutes, Article 6252-33, the department must evaluate each of its advisory committees to determine whether the committee should be continued, modified, consolidated with other committees, or abolished. The present advisory committee, the Hospital Data Advisory Committee, was established in 1985. The Board of Health has reviewed the committee and has decided that it should continue as a new committee. The new section provides rules for the Hospital Data Advisory Committee that are consistent with other department advisory committees. A summary of the comments received and the department's response to the comments follows. Comment: Regarding the insurance industry representation on the committee specified in sec.13.51(f)(3), one commenter suggested that the rule specify that one member represent indemnity insurers and one member represent the health maintenance organization industry. Response: The department notes that the composition of the committee is consistent with the law and has not changed the language. However, the comment will be taken into account when nominations are requested for Board of Health consideration for appointment to the committee. Comment: One commenter noted that the statutory reference cited in sec.13. 51(a) was incorrect and should be changed to the the Health and Safety Code, sec.11.016. Response: The department agrees and has changed the wording in sec.13.51(a). Comment: Regarding sec.13.51(f)(4), the comment was made that representation on the committee was to include six members from state agencies. However, only five agencies were identified in the proposed rules. Response: The department agrees and has added a sixth slot to include representation from one other state agency such as the Worker's Compensation Commission, Texas Rehabilitation Commission or other state agency. Comment: The comment was made regarding the election of officers in sec.13. 51(h) that the timeframe for election of officers should be established in order to have this rule conform to rules regarding other advisory bodies. Response: The department agrees and has changed the subsection to include the requirement that officers shall be elected at the first meeting after August 31st of each year. Comment: Regarding sec.13.51(h)(1), the comment was made that two-year terms of office for officers were inconsistent with rules for other advisory bodies. Response: The department agrees and has changed to wording to note that officers shall serve until the next regular election of officers. Comment: Regarding sec.13.51(i), a commenter noted that the requirement to meet at least two times each year did not conform to the rules regarding other advisory bodies. Response: The department agrees and has changed the wording to require the committee to meet only as necessary. Comment: One commenter noted that sec.13.51(i)(7) regarding public comment at meetings did not conform to the rules regarding other advisory bodies. Response: The department agrees and has changed the wording to indicate that the agenda for each meeting shall include an item entitled public comment. Comment: Regarding sec.13.51(j)(2), a commenter noted that the grounds for removal from the committee of a member did not conform to the rules regarding other advisory bodies by specifying that removal could be based on absence from more that half of the committee and subcommittee meetings during a calendar year. Response: The department agrees and has changed the wording to conform to the rules regarding other advisory committee rules. Comment: Regarding sec.13.51(l)(5), a comment was received noting that the provision of minutes to advisory committee members did not conform to the rules regarding other advisory committees. Response: The department agrees and has changed the rules to include approval of draft minutes by the presiding officer and the provision of a copy of the minutes to the board and each committee member within 30 days of each meeting. Grammatical changes have been made for clarification purposes in sec.13.51(f) . This new section is adopted under Texas Civil Statutes, Article 6252-33, which sets standards for the evaluation of advisory committees by the agencies for which they function; under the Health and Safety Code, sec.11.016, which allows the board to establish advisory committees; and under the Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and commissioner of health. sec.13.51. Hospital Data Advisory Committee. (a) The committee. The Hospital Data Advisory Committee (committee) shall be appointed under and governed by this section. The committee is established under the Health and Safety Code, sec.11.016 which allows the Board of Health (board) to establish advisory committees. (b) Applicable law. The committee is subject to Texas Civil Statutes, Article 6252-33 relating to state agency advisory committees. (c) Purpose. The purpose of the committee is to provide advice to the board on hospital reporting requirements and on interpretation and evaluation of the data received. (d) Tasks. (1) The committee shall advise the board concerning rules relating to the hospital data reporting and collection system. (2) The committee shall advise the board concerning the interpretation and evaluation of: (A) hospital financial data; (B) hospital utilization data; (C) patient discharge data; and (D) mental health and chemical dependency data. (3) The committee shall carry out any other tasks given to the committee by the board. (e) Review and duration. By May 1, 1999, the board will initiate and complete a review of the committee to determine whether the committee should be continued, consolidated with another committee, or abolished. If the committee is not continued or consolidated, the committee shall be abolished on that date. (f) Composition. The committee shall be composed of 19 members appointed by the board as follows: (1) five members from the hospital industry; (2) one member from private business; (3) two members from the insurance industry; (4) six members from state agencies as follows: (A) Texas Department of Human Services; (B) Employees Retirement System of Texas; (C) Texas Department of Mental Health and Mental Retardation; (D) Texas Commission on Alcohol and Drug Abuse; (E) Texas Department of Insurance; and (F) other state agencies, as deemed appropriate; (5) two members from consumer organizations; (6) one member from the Statewide Health Coordinating Council; and (7) two ex-officio members from the Texas state legislature. (g) Terms of office. The term of office of each member shall be six years. (1) Members shall be appointed for staggered terms so that the terms of a substantially equivalent number of members will expire on December 31 of each even-numbered year beginning in 1996. (2) If a vacancy occurs, an individual shall be appointed to serve the unexpired portion of that term. (h) Officers. The committee shall elect a presiding officer and an assistant presiding officer at its first meeting after August 31st of each year. (1) Each officer shall serve until the next regular election of officers. (2) The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as necessary, and cause proper reports to be made to the board. The presiding officer may serve as an ex-officio member of any subcommittee of the committee. (3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is elected to complete the unexpired portion of the term of the office of presiding officer. (4) A vacancy which occurs in the offices of presiding officer or assistant presiding officer may be filled at the next committee meeting. (5) A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer. (6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson. (i) Meetings. The committee shall meet only as necessary to conduct committee business. (1) A meeting may be called by agreement of Texas Department of Health (department) staff and either the presiding officer or at least three members of the committee. (2) Department staff shall make meeting arrangements and shall contact committee members to determine availability for a meeting date and place. (3) Each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551. (4) Each member of the committee shall be informed of a committee meeting at least five working days before the meeting. (5) A simple majority of the members of the committee shall constitute a quorum for the purpose of transacting official business. (6) The committee is authorized to transact official business only when in a legally constituted meeting with a quorum present. (7) The agenda for each committee meeting shall include an item entitled public comment under which any person will be allowed to address the committee on matters relating to committee business. The presiding officer may establish procedures for public comment, including a time limit on each comment. (j) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the member is assigned. (1) A member shall notify the presiding officer or appropriate department staff if he or she is unable to attend a scheduled meeting. (2) It is grounds for removal from the committee if a member cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability, is absent from more than half of the committee and subcommittee meetings during a calendar year, or is absent from at least three consecutive committee meetings. (3) The validity of an action of the committee is not affected by the fact that it is taken when a ground for removal of a member exists. (4) The attendance records of the members shall be reported to the board. The report shall include attendance at committee and subcommittee meetings. (k) Staff. Department staff shall provide administrative support for the committee. (l) Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule. (1) Any committee action must be approved with a quorum present and by a majority vote of the members present. (2) Each member shall have one vote. (3) A member may not authorize another individual to represent the member by proxy. (4) The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status. (5) Minutes of each committee meeting shall be taken by department staff. (A) A draft of the minutes approved by the presiding officer shall be provided to the board and each member of the committee within 30 days of each meeting. (B) After approval by the committee, the minutes shall be signed by the presiding officer. (m) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties. (1) The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer may also appoint nonmembers of the committee to serve on subcommittees. (2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee. (3) A subcommittee chairperson shall make regular reports to the committee at each of its meetings or in interim written reports as needed. The reports shall include an executive summary or minutes of each subcommittee meeting. (n) Statement by members. The board, the department, and the committee shall not be bound in any way by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee. (o) Reports to board. The committee shall file an annual written report with the board. (1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board, anticipated activities of the committee for the next year, and any amendments to this section requested by the committee. (2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (3) The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the board each May. It shall be signed by the presiding officer and appropriate department staff. (p) Reimbursement for expenses. In accordance with the requirements set forth in Texas Civil Statutes, Article 6252-33, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business. (1) No compensatory per diem shall be paid to committee members unless required by law. (2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department. (3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department. (4) Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting. (5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff. 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 May 1, 1995. TRD-9505245 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: May 22, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 458-7261 Chapter 38. Chronically Ill and Disabled Children's Services Program 25 TAC sec.38.3 The Texas Department of Health (department) adopts an amendment to sec.38. 3, concerning eligibility for the Chronically Ill and Disabled Children's Services Program (CIDC), with changes to the proposed text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1618). Currently, applicants who appear to be financially eligible for Medicaid and who meet all CIDC requirements are given temporary eligibility for 60 days. The amendment changes applicants' eligibility from "temporary" to "provisional" and reduces the eligibility period from 60 days to 30 days, with an additional 30 days of provisional eligibility under unusual circumstances. The amendment also allows the department to make CIDC eligibility retroactive, based on the date of the CIDC application, if a determination of eligibility by Medicaid has been submitted within the specified time period. The amendment also requires that a client must seek and provide a Medically Needy Program (MNP) eligibility determination along with the initial Medicaid determination. The amendment authorizes the department to establish criteria by which CIDC may require the family to reapply periodically for the MNP and/or the Supplemental Security Income Program (SSI) and to participate, if eligible, in those programs in order to maintain CIDC eligibility. The following staff comment was received regarding the amendment. COMMENT: Staff suggested that paragraph (3)(A)(vi) should be reworded to clarify that board approval was being sought to implement the proposed changes in eligibility criteria at the expenditure level which would yield the greatest net savings of general revenue dollars; i.e., $2,000 per case per year, and that the other five expenditure levels were presented to show the comparative scope of the changes. RESPONSE: The department agrees, and paragraph (3)(A)(vi) has been amended accordingly. The amendment is adopted under Health and Safety Code, sec.35.005(a)(1), which requires the Board of Health (board) to define medical, financial, and other criteria for eligibility to receive services; and under Health and Safety Code, sec.12.001(b), which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.38.3. Eligibility for Client Services. In order for an individual to be eligible for the Chronically Ill and Disabled Children's Services (CIDC) Program, the individual must meet the medical, financial, and other criteria in this section. (1)-(2) (No change.) (3) Financial criteria. Financial need is established on the basis of household income and assets which are legally available to the family. (A) Household income. (i)-(iv) (No change.) (v) Applicants who appear to be financially eligible for Medicaid and meet all other CIDC Program requirements will be given provisional eligibility for 30 days. During that time the applicant must apply for Medicaid, including the Medically Needy Program, and notify the CIDC Program of Medicaid's determination, including the Medically Needy Program determination. Once a Medicaid determination has been received within the time frame specified by the CIDC Program, CIDC eligibility may be made retroactive according to criteria set by CIDC. If the applicant fails to follow through with the Medicaid application, eligibility will automatically expire at the end of the 30 days. Claims for services provided within the 30-day period will not be paid if no Medicaid determination is received in the time period specified by the program. Under unusual circumstances, the program may grant a 30-day extension of provisional eligibility. (vi) If actual or projected expenditures for a client exceed $2,000 per year, the client may be required to apply periodically for the Medically Needy Program and, if eligible, to participate in that program in order to remain eligible for further CIDC program benefits. CIDC also may require a client for whom actual or projected expenditures exceed $2,000 per year to apply for the Supplemental Security Income Program (SSI), and, if eligible, to participate in that program in order to remain eligible for further CIDC program benefits. (B) (No change.) (4)-(9) (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 authority. Issued in Austin, Texas, on May 1, 1995. TRD-9505170 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 22, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 458-7236 Chapter 289. Radiation Control Texas Regulations for Control of Radiation 25 TAC sec.289.131 The Texas Department of Health (department) adopts new sec.289.131, concerning a memorandum of understanding with the Texas Natural Resource Conservation Commission relating to jurisdiction of radiation control functions, without changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9953). The new section implements Texas Health and Safety Code, sec.401.414, which requires the department and the Texas Natural Resource Conservation Commission to adopt by rule an MOU defining their respective duties in the control of radiation under Chapter 401. The new section defines the respective duties of the agencies and provides for coordination of responsibilities, such as emergency preparedness, review of financial security instruments, relationships with the United States Nuclear Regulatory Commission and the Texas Radiation Advisory Board, implementation of a dosimetry and meter calibration program, and performance of a low-level waste health surveillance survey. The MOU also provides a consistent approach to avoid duplication and delineate areas of separate jurisdiction. The following are the comments made on the proposed section and the department responses to those comments. COMMENT. A commenter expressed concern that the language in the proposed section should be more explicit to clarify that storage facilities are excluded from the jurisdiction of the Texas Natural Resource Conservation Commission (TNRCC). The commenter recommended that language be added to the third sentence of subsection (b)(1) of the section to read, "The term does not include emissions and discharges under the rules of the Texas Department of Health (TDH) and does not include storage as defined under the rules of the TDH and TNRCC." RESPONSE. The regulation of storage facilities is under the jurisdiction of the TDH and is so stated in the first sentence of subsection (b)(2) of the section, which reads, "The TDH has jurisdiction to regulate and license the possession, receipt, use, handling, transfer, transport, and storage of all radioactive material..." The department made no change to the rule as a result of the comment. COMMENT. A commenter expressed concern about whether the radioactive material discarded under Texas Regulations for Control of Radiation (TRCR) 21. 1304(d) remained under the TDH jurisdiction. RESPONSE. TRCR 21.1304 concerns exemption of specific wastes and 21.1304(d) allows a licensee, with TDH approval, to discard certain licensed material under certain provisions. This exemption remains under the jurisdiction of the TDH. The department made no change to the rule as a result of the comment. A representative from the University of Texas System in Austin presented comments, questions, and suggestions for changes to the proposed amendment as discussed in the summary of comments. The amendment is adopted under the Health and Safety Code, Chapter 401, which provides the Texas Board of Health with the authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. 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 authority. Issued in Austin, Texas, on May 1, 1995. TRD-9505171 Susan K. Steeg General Counsel Texas Department of Health Effective date: May 22, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter A. Rules of Practice and Procedure 28 TAC sec.1.59 The Texas Department of Insurance adopts the repeal of sec.1.59, concerning the prerequisites to adoption, repealing, or amending rules, without changes to the proposed repeal of that section as published in the November 4, 1994, issue of the Texas Register (19 TexReg 8748). Repeal of sec.1.59 is necessary because the provisions set forth in sec.1.59 have been superseded and replaced with newer, more specific provisions for rulemaking in sec.sec.1.201-1.208. Provisions of sec.sec.1.201-1.208 concerning rulemaking procedures are designed to provide an orderly and efficient process for consideration and adoption of rules under the Government Code, Chapter 2001, Subchapter B, and under the Insurance Code, Articles 5.96 and 5.97. Repeal of sec.1.59 results in the elimination of provisions made obsolete by newer, more specific provisions for rulemaking in sec.sec.1.201-1.208. To that end, it eliminates redundancy, confusion and contradiction which otherwise would result with the adoption of sec.sec.1.201-1.208 concerning rulemaking procedures. No comments were received on the proposed repeal as published. The repeal is adopted pursuant to the Insurance Code, Article 1.03A and Article 1.04C. Article 1.03A authorizes the commissioner of insurance to promulgate and adopt rules and regulations for the conduct and execution of the duties and functions of the department. Article 1.04C requires the commissioner to develop and implement policies that provide the public with a reasonable opportunity to appear before the commissioner and to speak on any issue under the jurisdiction of the commissioner. The adopted repeal affects regulation pursuant to the following statutes: Government Code, Chapter 2001; Insurance Code, Articles 5.96 and 5.97. 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 May 2, 1995. TRD-9505330 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: May 24, 1995 Proposal publication date: November 4, 1994 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 330. Municipal Solid Waste The Texas Natural Resource Conservation Commission (commission or TNRCC) adopts amendments to sec.330.2 and sec.330.203, concerning requirements for municipal solid waste landfills (MSWLFs) designed below the seasonal high water table, with changes to the proposed text as published in the November 15, 1994, issue of the Texas Register (19 TexReg 8941). A public hearing was held on December 8, 1994 and written comments were received until December 16, 1994. The TNRCC assembled a special advisory panel to assist the staff in developing and finalizing the draft rule. As a result of the public comment process, 124 individual comments on the rules were received from individuals, corporations, organizations and political subdivisions. The commission received comments on the proposed rules from the Brazos Valley Solid Waste Management Agency, the City of Wichita Falls, Texas A&M University, the City of Arlington, the City of Wilmer and Groups Allied To Stop Pollution (GASP), the City of Corpus Christi, National Solid Waste Management Association- Sunbelt, Rust Environment and Infrastructure, Naismith Engineering, USA Waste Services, Inc., Sanifill, Inc., the Solid Waste Association of North America- Texas Lone Star Chapter, Gulf Coast Waste Disposal Authority, the City of Beaumont, Browning-Ferris Industries, Waste Management of Texas, Inc., Waste Reduction Systems, HDR Engineering, Inc., the City of Garland, Citizens to Save Lake Waco, City of Nacogdoches, Dannenbaum Engineering Corporation, Emcon Baker- Shiflett Inc., as well as individual citizens. The commission has carefully considered these comments and has amended the proposed rule where appropriate. The adopted rules were developed to provide technically-based performance standards for those municipal solid waste landfills designed below the seasonal high groundwater table. Following publication of the proposed rules, the commission determined that a technical guidance handbook would be an appropriate tool to assist persons designing MSWLFs below the seasonal high water table. The guidance handbook will define the various physical conditions that can be encountered in the field when designing and constructing liners below the seasonal high water table and will present design and construction details that can be employed to assure that the liner systems are constructed under stable conditions and able to maintain their integrity throughout the operation of the landfill and the post-closure maintenance period. The guidance handbook is intended to be a resource for owner/operators; as such, owner/operators will not be limited by the methods described in the handbook. With regard to sec.330.2, the commission received 25 comments. Several commenters criticized the proposed definition of "Seasonal High Water Table." Thirteen commenters requested that the commission remove "other water bearing zone" from the definition, and two commenters requested that the phrase remain in the definition. The commission agrees that the term "other water-bearing zone" is vague and has deleted it from the definition of "seasonal high water table." The commission emphasizes that "aquifer" is defined in sec.330.2 as a formation capable of yielding significant quantities of ground-water to wells or springs. For purposes of this rule, the commission considers an aquifer to be a geologic formation, group of formations, or portion of a formation capable of transmitting water and yielding a hydrostatic pressure that could impact the liner system at a landfill, and emphasizes that the term aquifer is not limited to defined minor and major aquifers in the state. A comment was also received noting that the definition for seasonal high water table should be limited to "the highest measured or calculated water level in an aquifer during investigations for permit application and/or any ground-water characterization studies at a site." The commission agrees with comment and the definition of "water-table has been changed accordingly. One commenter mentioned that Soil Conservation Service Guidelines should be followed. The Municipal Solid Waste Rules (MSWR) outline procedures to be followed to properly characterize the stratigraphy and hydrogeology at Municipal Solid Waste (MSW) landfill sites. The commission believes that a landfill design, based upon information determined by the stratigraphic and hydrogeologic characterization required within the municipal solid waste management regulations, is protective of human health and the environment. The commission received several comments suggesting a full set of seasons be observed. The commission agrees that ground-water level measurements (for the determination of the seasonal high water table) must be conducted for a sufficient period of time to account for seasonal variations. This may, however, be a period of time somewhat less than 12 calendar months. The commission received several comments regarding determination of the seasonal high water table. One commenter suggested piezometers be installed to determine elevation of the piezometric surface. The commission is in general agreement that a ground-water characterization should utilize a sufficient number of appropriately designed and installed piezometers for ground-water level determination. However, the commission does not believe that the establishment of water levels should be restricted to information obtained from the measurement of water levels within piezometers. An operator can also obtain water-level measurements from other sources during ground water characterization including monitor wells, surface water bodies, water wells, and springs. If activities have occurred or are occurring on or near the facility during investigation that would lower the water table at the facility, a sufficiently larger area than the facility may be tested or adequate calculations used to estimate the seasonal high water table without the effects of such activities. If activities are occurring or are planned that will raise the water table at a facility, adequate calculations should be used to estimate the seasonal high water table including the effects of such activities. Additionally, the seasonal high water table should be adjusted upward, if necessary, as additional data become available after the permit is issued. This issue will be further addressed in the guidance handbook. Regarding the definition of "water table," one commenter suggested the inclusion of the phrase "approximately equal to zero" within the definition of water table is unclear and difficult to enforce. The commission agrees and has deleted the word "approximately" from the definition. With regard to sec.330.203, several commenters generally expressed support for the technically-based performance standards for design below the seasonal high water table. Some commenters stated that the executive director would have too much discretion under the proposed rules and no criteria upon which to base decisions. The commission disagrees and believes that the amount of the discretion provided to the executive director is appropriate. Primary considerations for allowing waste as ballast include waste stream characteristics and the ability of the operator to properly utilize appropriate compaction equipment to achieve a compaction density of at least 1, 000 pounds per cubic yard. With regard to sec.330.203(a), one commenter suggested that pictures and videos be required to prove no uplift during construction. The commission believes that such a level of documentation is not necessary and that current regulations provide sufficient protection. With regard to sec.330.203(a)(2), one commenter mentioned that dewatering activities at a landfill may result in dewatering of area water wells. Another suggested a provision be included that would assess the impact of dewatering on surrounding landowners. The commission agrees that the owner or operator should consider both on-site and off-site effects of dewatering systems utilized to reduce upward or inward hydrostatic forces on the liner and believes that the calculations required in sec.330.203(a)(2) may be utilized to evaluate dewatering system impacts. Additionally, should dewatering activities adversely affect offsite water bodies or water wells, nothing in the rules is intended to impair the rights of adjacent landowners or their ability to pursue a cause of action for any damage they might incur. With regard to sec.330.203(a)(2) one commenter suggested that the underdrain layers and french drains required for dewatering are part of the ground-water system and should be part of the characterization and involved in ground-water monitoring. The commission believes it may be appropriate at some sites to monitor the quality of ground-water from a passive or active dewatering system during the dewatering period. The commission emphasizes that an active or passive dewatering system is separate from and not part of the ground-water monitoring well network specified within the facility's Site Development Plan. Furthermore, if monitoring of ground-water from the dewatering system is appropriate at a site, sampling parameters and frequency of sampling will be determined on a site-specific basis. Another commenter mentioned that sec.330. 203(a)(3) does not contain any criteria for the executive director to evaluate and make a decision. The commission responds that the required evidence must be data obtained from field testing of site soils and calculations based upon that field data. This issue will be further addressed in the implementation document. Regarding proposed sec.330.203(b), one commenter recommended tiltmeters, asserting that the rules allow flexure of the liner after installation of the constructed clay and the FML composite liner but before construction is complete. The commission believes the proposed rules do not allow for the flexure of the liner. Section 330.203(a) specifies that the owner or operator of a Type I landfill shall demonstrate that the liner system will not undergo uplift from hydrostatic forces during its construction and sec.330.203(a)(1)-(4) specifies acceptable demonstration methods. Also with regard to sec.330.203(b) a commenter noted that the proposed rule contains no specifics to regulate methods used for verification of no liner movement. The commission responds that the rules do not allow for movement of the liner. Another commenter suggested that the methods used for ballasting and dewatering should be part of the Site Development Plan and approval should be by the commission upon issuance of a permit. Other commenters stated that it is unclear how this rule will affect existing landfills currently permitted to excavate below the seasonal high groundwater table. One commenter expressed concern that this rule would allow permit requirements to change after the permit is issued. A commenter stated they would like the commission to designate a change in the facilities Site Operating Plan to use waste as ballast as a modification and three other commenters suggested that to use waste for ballast would require a major amendment rather than a modification because of increased capacity of the landfill. One suggested that there should be opportunity for citizen involvement before granting approval for design below the water table. The commission points out that proposed MSW sites which intend to use ballast (soil or waste ballast) must provide the information required in the proposed sec.330.203 rules in the Site Development Plan. Depending upon the language in their permit, existing MSW sites proposing to ballast (soil or waste) may be required to provide the information required in this rule and request that their approved Site Development Plan be modified or amended to reflect the requested changes. Proposed changes to the Site Development Plan which will result in an increased life or disposal capacity may require a permit amendment. Public participation will be afforded in accordance with commission rules. A commenter wanted to know what the reporting requirements are and inquired about moving piezometers and whether that will be a permit requirement. Commission rules already provide for an amendment and modification process to incorporate changes into existing permits. Depending on the language in an existing permit, certain existing MSW sites will be required to modify or amend their permit and Site Development Plan accordingly. Another commenter suggested adding wording that would allow dewatering systems to be used solely to facilitate construction without executive director approval. The commission believes the rule allows sufficient flexibility as written. With regard to proposed sec.330.203(c), one commenter stated that the proposed rules encourage the combination of the leachate collection system and underdrain dewatering system and that the combination is prohibited by other rules. The dewatering system and the leachate collection system are separated by the landfill liner and are independent systems (the dewatering system is located outside of the liner system and the leachate collection system is located inside of the liner system). Section 330.203(c) requires that any leachate collection systems shall be designed to handle both the leachate generated and the ground- water inflow from materials beneath and lateral to the liner system. Section 330.203(c) ensures that ground-water in-flow be considered when the leachate collection system is designed. With regard to monitoring of the leachate collection system, the commission believes that it may be appropriate at some sites to monitor the quality of ground-water from a passive or active dewatering system during the dewatering period. The commission emphasizes that an active or passive dewatering system is separate from and not part of the ground-water monitoring well network specified within the facility's Site Development Plan. Furthermore, if monitoring of ground-water from the dewatering system is appropriate at a site, sampling parameters and frequency of sampling will be determined by the commission on a site-specific basis. Another commenter observed that the proposed sec.330.203(c) assumes that the liner is leaking (letting water in), going beyond Subtitle D which requires that liquids are restricted. One commenter stated that the proposed rules are beyond Subtitle D and encourage rather than deter waste disposal. The Subtitle D regulations do not prohibit zone-of-saturation landfills. The current regulations, which in sec.330.203 address cases where excavations extend below the water table, were included in the program package submitted to the EPA for which Texas received approval. The commission believes that adoption of proposed sec.330.203 will result in more effective utilization of landfill capacity in the state and disagrees with the commenter that adoption will encourage waste disposal. Regarding proposed sec.330.203(d), a commenter stated that the proposed rule requires that a foundation evaluation be performed prior to excavating any unit below the seasonal high water table. The commission responds that foundation evaluation information will be included in the guidance handbook. Regarding sec.330.203(f) two commenters indicated that the Ballast Evaluation Report (BER) is inadequate and that more stringent requirements are needed. The commission responds that the owner or operator must include within the BER verification that the liner did not undergo uplift during construction, and that the ballast meets the criteria established in the Soil and Liner Quality Control Plan (SLQCP). Additionally, technical details such as sidewall ballast calculations will be addressed in the implementation document. Another commenter suggested the commission eliminate the BER and require that the information be included within the Soil and Liner Evaluation Report (SLER). A SLER is required prior to waste placement per sec.330.206. A BER must be submitted after ballast placement is complete. The commission responds that to delay the approval of the SLER until waste placement is complete would be impractical and that it would be premature to approve a BER prior to completion of ballast placement. One commenter suggested that BER approval should not be granted verbally. The commission responds that executive director verbal approval of a BER shall be followed by written approval. Regarding, sec.330.203(f)(1), one commenter stated that waste will become part of the construction process instead of just disposal and that the concept of spreading waste over a large area conflicts with a small working face. The commission responds that owners and operators will still be required to comply with the operational requirements contained within Subchapter F, sec.sec.330. 111-330.139 (relating to Operational Standards for Solid Waste Disposal Sites). Regarding sec.330.203(g), two commenters noted that the proposed rules allow the executive director to bring the dewatering process to a close without any justification, and one suggested that a microgravity survey would be a good tool to utilize for this purpose. Section 330.203(g) allows the executive director to approve decommission of a dewatering system if the system is no longer necessary. The executive director's conclusion that the dewatering system is no longer necessary will be based upon information provided by the site operator that the liner system will not undergo uplift from hydrostatic forces once the dewatering system is turned off. Generally, the information supporting system decommission will be contained in the Ballast Evaluation Report and will indicate that the weight of the liner system (liner and ballast) is sufficient to offset any unbalanced upward or inward hydrostatic forces on the liner by the required (1.2 for soil ballast and 1.5 for waste ballast) factor. The commission believes sec.330.203(g) is necessary so that dewatering systems may be decommissioned once ballasting requirements have been met. Another commenter suggested that the determination of the duration of utilization of dewatering systems should be included within the Site Development Plan. The rule states the duration of dewatering system operation as the period of time required "during construction." Section 330.203(a) states that the owner or operator of a landfill must demonstrate that the liner system will not undergo uplift from hydrostatic forces "during its construction" and allows the operator to incorporate an active or passive dewatering system in the design to reduce hydrostatic forces during the construction period. One commenter suggested the commission require that dewatering systems be operated until ballast is in place, or if ballast is not used, until the executive director determines the dewatering system is no longer required. The commission does not believe a dewatering system would be necessary in the absence of ballast. Regarding proposed sec.330.203(h), one commenter expressed that the executive director has too much discretion and that the rules should not apply to Type IV landfills while another commenter suggested that the rules should apply to Type IV landfills. Another commenter stated that sec.330.203(h) contains no provisions to which the facility must comply, and contains no basis for the executive director to make a decision. The commission believes that the decision authority provided to the executive director by the proposed rules is appropriate and that if the proposed rule is approved, Type IV sites with excavations extending below the seasonal high ground water table must meet the requirements contained in proposed sec.330.203. Proposed sec.330.203 provides performance standards for sites ballasting with soil or waste and is applicable to both Type I and Type IV sites. Type IV sites proposing to use waste-as- ballast must, in addition to meeting the requirements stated within sec.330.203(a)-(g), request executive director approval for the use of waste as ballast and, provide information to the executive director that the operator will meet the requirements contained in sec.330.203(i)(1)-(4). Information provided to the executive director must indicate that waste placement will not result in damage to the liner system and that the waste to be used as ballast can be compacted to a minimum density of 1,000 pounds per cubic yard. Regarding proposed sec.330.203(i), the commission received comment that waste for ballast is inappropriate, that it is less protective of health and safety, and that the goal of dry encapsulation of waste is jeopardized. The commission believes that zone of saturation landfills which are designed, constructed and operated in accordance with commission regulations are protective of human health and the environment. Additionally, Subtitle D regulations do not prohibit zone-of-saturation landfills. Also regarding proposed sec.330.203(i), two commenters noted that soil is more uniform than waste and that non-uniformity would affect the liner. The commission believes that the requirements of proposed sec.330.203(i)(1)-(4) minimize the effects of the non-uniformity of municipal wastes. Eight commenters expressed support for the use of waste for ballast and proposed sec.330.203(i). Also, regarding sec.330.203(i), one commenter hypothesized that the term "site-specific" leads to pressure on staff to make decisions without opportunity for public input. The commission believes that it is appropriate to evaluate the use of ballast on a site-specific basis to determine that the use of waste for ballast is appropriate for the site evaluated. The same commenter noted that the proposed rules require a thickness of approximately 2.5 feet of specified waste to offset 1 foot of hydrostatic head which could require fill above natural ground surface in certain landfills which could automatically trigger a municipal waste mass for compensation. The commission responds that nothing within the proposed rule suspends or revokes any operational requirement contained within Subchapter F, sec.sec.330.111- 330.139 (relating to operational standards for solid waste disposal sites). Additionally, regarding sec.330.203(i), another commenter questioned whether in evaluating waste for ballast, decomposition would be considered and urged that industrial waste be prohibited from use as ballast. The rules do not directly consider loss of waste density due to waste decomposition as waste decomposition rates can vary widely and are difficult to quantify. Section 330. 137 addresses the disposal of industrial wastes and does not specifically prohibit disposal of industrial waste within zone of saturation landfills or the use of industrial waste for ballast. The same commenter states that the applicant should be required to inform the public on the gate sign, in contracts, and in the site development plan that waste is being used as ballast. The commission believes that it is not necessary to include ballasting information on the gate sign and that it has no authority to require the site operator to include ballasting information in contracts. MSW sites using ballast (soil or waste ballast) must provide the information required in the proposed sec.330.203 rules in the Site Development Plan. Also, regarding proposed sec.330,203(i), one commenter stated that some site owners and operators are incapable and unqualified to manage waste for ballast sites, that citizens should be able to observe which waste will be used for ballast, that five feet of soil equals 28 feet of garbage in volume and that the executive director should grant approval only after the technical staff recommend approval. The commission responds that owners and operators are still subject to the operational requirement contained in Subchapter F, sec.sec.330.111-330.139 (relating to operational standards for solid waste disposal sites), and that sec.330.203(f)(2) requires the BER to include certification that the ballast met the criteria established, and sec.330.203(f) (3) requires the signature and seal of the registered professional engineer performing the evaluation and the signature of the site operator or his authorized representative. The commission believes adequate protective measures are in place and that citizen observation is not necessary. Further, proposals to utilize ballast (soil or waste) will be reviewed by the TNRCC Municipal Solid Waste Division, Permits Section, prior to executive director approval or denial. The same commenter suggests that sites out of compliance, sites with ground- water contamination, sites near drinking water supplies and sites for which applications have been denied should not be permitted to use waste as ballast. The commission responds that to the extent any of these factors are relevant to the request to use ballast, they will be considered in the evaluation of the request. One commenter stated that the issue of waste for ballast has not been studied in the detail necessary to assume it is as protective as the current regulations. The commission believes that sufficient information regarding hydrostatic pressure offset has been considered in the development of sec.330. 203. Activities authorized under this section should be no less protective of human health and the environment than requirements contained in existing sec.330.203. Another commenter objects to the inclusion of "site-specific basis" for waste as ballast. Waste characteristics, compaction equipment, compaction methods, stratigraphy and ground-water flow velocities vary from site to site. The commission believes that it is appropriate to evaluate the use of ballast on a site-specific basis to determine that the use of waste for ballast is appropriate for the site evaluated. Regarding proposed sec.330.203(i)(1), a commenter suggested the commission avoid specifying specific wastes in the first five feet of cover as the requirement is overburdensome. The commission asserts that the purpose of sec.330.203(i)(1) is to ensure that the first five feet of ballast is free of material which cannot be compacted to the required waste density or which could damage the underlying liner system. The commission believes requirements contained within sec.330.203(i)(1) are appropriate and are not burdensome. Another commenter noted that there is no definition for "large, bulky," and that the rules, as written, would allow styrofoam to be placed on the liner. The commission interprets bulky items as items which would damage the underlying parts of the liner system or which cannot be compacted to the required density and that styrofoam would be considered a "bulky item" as it cannot be compacted to the required density. Regarding proposed sec.330.203(i)(2), one commenter believes that mere ownership of a 40,000 pound compactor allows an operator to avoid the 1,000 pound per cubic yard compaction density and that continuous compaction should be the subject of an operating and verification document that becomes part of an independent engineer's sealed document. The commission believes that the language is clear that a 40,000 pound compactor, or equivalent equipment, must be properly utilized to reach a compaction density of at least 1,000 pounds per cubic yard. An operator must provide information to the executive director that the operator will meet the requirements contained within sec.330. 203(i)(1)-(4). Information provided to the executive director must indicate that waste placement will not result in damage to the liner system and that the waste to be used as ballast can be compacted to a minimum density of 1,000 pounds per cubic yard. Proper utilization of compaction equipment and documentation of continuous compaction will be addressed in the guidance handbook. Another commenter noted that 1,000 pounds per cubic yard equals 37 pounds per cubic foot and asked if decomposition of waste had been considered by the commission. The rules do not directly consider loss of waste density due to waste decomposition as waste decomposition rates can vary widely and are difficult to quantify. The commission believes that the amount (weight) of ballast lost to waste decomposition will be less than the amount of ballast required. The same commenter asked if there is a model available to calculate consolidation and decomposition processes. The commission is not aware of a model that will calculate consolidation and decomposition processes. Another commenter requested that the commission change sec.330.203(i)(2) to read "the weight of the liner system, including any ballast, must be sufficient..." in order to make the wording consistent with sec.330.203(a)(1). The commission agrees and has revised sec.330.203(i)(2) accordingly. One commenter stated that at a density of 37 pounds per cubic foot, "material is not consolidated" and wanted to know how much inward hydrostatic load can this material take. The commission points out that demonstration that the liner system will not undergo uplift from hydrostatic forces during its construction may be made by providing calculations to the executive director that the weight of the liner systems, including any ballast, is sufficient to offset by a factor of 1.2 (1.5 when waste is used as ballast) any otherwise unbalanced upward or inward hydrostatic forces on the liner. For the purposes of determining the required ballast thickness, a density of compacted waste of 1,000 pounds per cubic yard must be used. Although the actual compacted waste density may exceed 1,000 pounds per cubic yard, the operator must use the 1, 000 pound per cubic yard figure for ballast thickness calculation. Regarding proposed sec.330.203(i)(3), one commenter suggested the commission eliminate the numeric requirement of 1,000 pounds per cubic yard compaction rate for the ballasted waste as it is impossible to monitor and is not technically based and that the commission allow the design engineer to submit justification for the unit weight of waste to be used as ballast. The commission believes that the requirement to use a 1,000 pound per cubic yard compacted waste density for purposes of determining the required ballast thickness is conservative and appropriate. One commenter asked for justification for exempting non-homogenous material from density testing. The commission believes that it is appropriate to minimize, to the greatest extent possible, effects of the non-uniformity of municipal wastes. While the commission agrees that municipal waste is non- homogenous, the requirements of sec.330.203(i)(1)-(4) provide added assurance that those effects will be minimized. Proper utilization of compaction equipment and documentation of continuous compaction will be addressed within the implementation document. Regarding proposed sec.330.203(j), one commenter suggested revision language which the commission believes would be less protective of health and the environment. Another commenter noted that after a permit is issued the agency cannot change the permit restrictions and wondered about moving piezometers and reporting requirements. Section 330.203(j) requires that the seasonal high water table shall be adjusted upward, if necessary, as additional data become available after a permit is issued. Any changes necessary as the result of the upward adjustment of the seasonal high water table will be subject to permit amendment or modification requirements. Ten commenters expressed general support of the proposed rules. Two commenters state that the proposed rules are unenforceable because the proposed rules transfer ground-water protection from the commission to the operator/consultant. The commission responds that owners and operators are still subject to the operational requirement contained within sec.sec.330.230-330.242 (relating to Ground-Water Monitoring and Corrective Action) . One commenter suggested that additional financial assurance should be added to account for design below the water table. Sections 330.280-330.286 of the current regulations do not require additional financial assurance for landfills with excavations below the water table. The commission does not believe that proposed sec.330.203 is less protective of human health and the environment than requirements contained within sec.330.203, and therefore does not believe that additional financial assurance is necessary. A commenter stated that the proposed rules are not necessary and as current rules allow for alternative liner design including "waste for ballast" and that the proposed rules put landfills that are designed above the water table at a competitive disadvantage. The commission agrees that current sec.330.203 can be interpreted to allow the use of waste for ballast. Proposed sec.330.203 is intended to clarify requirements for landfills with excavations extending below the seasonal high water table and not intended to establish competitive disadvantages. One commenter requested that the commission provide a list of states which allow construction of waste cells below the water table and encourage waste for ballast, a list of pilot studies for waste as ballast, and a list of successful waste for ballast case histories considered during rulemaking. The commission responds that it has considered all relevant and available technical data and practical applications regarding construction of waste cells below the water table and waste for ballast before and during drafting of the proposed rule. Three commenters complained that the "Blue Ribbon Panel" did not include citizens. The Blue Ribbon Panel was developed in June of 1993 to explore, in depth, all aspects of excavation below the water table. Since the formation of the panel, the proposed rules went to the Regulatory Oversight Committee of the Municipal Solid Waste and Resource Recovery Advisory Committee which includes citizen members, and were published in the Texas Register for public comment. The commission believes that appropriate solicitation of citizen input has been accomplished. One commenter stated that the amount of waste that will be reclassified and thus a part of the ballast has not been calculated and thus its effect has not been included in the consideration of fiscal impacts as required. The commission notes that only municipal solid waste and certain industrial waste is acceptable at approved landfills and will be acceptable for ballast material and that the fiscal impact note was adequately prepared. Three comments were received stating that industrial waste should not be used as ballast. The commission points out that sec.330.137 addresses the disposal of industrial wastes and does not prohibit disposal of industrial waste within zone of saturation landfills. One of the commenters suggested that industrial waste trenches should be placed on the upgradient side of MSW trenches using the proposed design standards. The commission does not believe a limitation on the location of Class I trenches is necessary. The same commenter also suggests that any combination of Class I and cells using waste for ballast should not be allowed to develop a multi-unit ground water monitoring system. The commission believes the prohibition of multi-unit ground water monitoring systems at MSW sites with any combination of Class I and waste ballasted cells is necessary. One commenter stated that the proposed rules will lead to decisions which are politically rather than technically based. The commission believes that the comment is not substantiated. executive director approval or denial of requests to use waste as ballast will be based upon compliance with proposed sec.330.203. The same commenter states that potential savings described in fiscal note will be negated by future ground-water remediation costs and that restrictions should be placed on cell sizes. The commenter did not provide, nor does the commission have technical data to support, restriction of cell size. Five comments were received that stated that excavation below the water table is a bad idea. The commission disagrees and maintains that the technical data indicates that sec.330.203 requirements are as protective of human health and the environment as requirements contained within current sec.330.203. One commenter stated that applications for MSW permits previously denied should not be allowed to resubmit if the proposed rules are adopted. The commission does not believe the commenter's suggestion to be an appropriate policy or course of action for the commission to adopt. Each application is judged on its merits and on a case by case basis. One commenter suggested that engineers who seal and sign a document for a MSWLF that later has a breached liner should be prosecuted. The commission recognizes that there are numerous factors which could contribute to liner failure. If engineer negligence is suspected or documented with regard to a situation where liner failure is suspected or documented, nothing in the proposed rule prevents a person from filing a complaint with the engineering board or from investigating other appropriate legal action. Finally, one comment was received which stated that the staff is unable to indicate how an applicant could demonstrate compliance with the requirement for structure to offset inward horizontal hydrostatic load. Ballast thickness calculation methods will be outlined in the implementation document. Subchapter A. General Information 30 TAC sec.330.2 The amendment is adopted under the Texas Water Code, sec.5.103, and Health and Safety Code, sec.361.024, which provide the TNRCC with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and the Health and Safety Code. sec.330.2. Definitions. Seasonal high water table-The highest measured or calculated water level in an aquifer during investigations for a permit application and/or any ground- water characterization studies at a site. Water table-The upper surface of the zone of saturation at which water pressure is equal to atmospheric pressure, except where that surface is formed by a confining unit. 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 May 3, 1995. TRD-9505327 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: May 24, 1995 Proposal publication date: November 15, 1994 For further information, please call: (512) 239-6087 Subchapter H. Groundwater Protection Design and Operation 30 TAC sec.330.203 The amendment is adopted under the Texas Water Code, sec.5.103, and Health and Safety Code, sec.361.024, which provide the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and the Health and Safety Code. sec.330.203. Special Conditions (Liner Design Constraints). (a) The owner or operator of a Type I landfill shall demonstrate that the liner system will not undergo uplift from hydrostatic forces during its construction by using one or more of the following methods: (1) providing calculations satisfactory to the executive director that the weight of the liner systems, including any ballast, is sufficient to offset by a factor of 1.2 any otherwise unbalanced upward or inward hydrostatic forces on the liner; or (2) incorporating an active or passive dewatering system in the design to reduce upward or inward hydrostatic forces on the liner by a factor of 1.2 and by providing calculations satisfactory to the executive director that the dewatering system will perform to adequately reduce those forces; or (3) providing evidence satisfactory to the executive director that the soil surrounding the landfill is so poorly permeable that ground water can not move sufficiently to exert force that would damage the liner; or (4) providing evidence that the seasonal high water table is below the deepest planned excavation. (b) The owner or operator shall ensure that the liner is stable during the filling and operation of the landfill through a suitable combination of dewatering and/or ballast, if determined to be required in subsection (a)(1)-(3) of this section. These methods shall not be used without prior approval of the executive director. (c) Any required leachate collection system shall be designed to handle both the leachate generated and the groundwater inflow from materials beneath and lateral to the liner system. The maximum volume of groundwater inflow shall be calculated based on determination of the permeability and potentiometric conditions of the liner system and of the materials surrounding the liner system. (d) Prior to excavating any unit below the seasonal high water table, the owner or operator shall perform a preliminary foundation evaluation satisfactory to the executive director. The foundation evaluation shall consider stability, settlement, and constructability. (e) The Soil and Liner Quality Control Plan (SLQCP) as required in sec.330.205(a)(3)(B) of this title (relating to Soils and Liner Quality Control Plan) shall include the following information for landfills to which subsection (a)(1)-(3) of this section are applicable: (1) the methods and tests to be used to verify that the liner will not undergo uplift during construction and until ballast placement, if required, is complete; and (2) the measures and tests that will be used to verify that any required ballast meets the criteria established, including but not limited to inspections, compaction, weight and density of material, thickness, and top elevations. (f) If ballast is used, a Ballast Evaluation Report (BER) in a format specified by the executive director shall be submitted in triplicate to the Municipal Solid Waste Division for review and approval. Verbal approval may be obtained from the executive director, which will be followed by written confirmation. If no response is provided within 14 days of the date on which the BER document is date-stamped by the Municipal Solid Waste Division, the BER may be considered approved. If the executive director determines that the BER is incomplete or that the test data provided are insufficient to support the evaluation conclusions, additional test data or other information may be required. The BER shall include: (1) verification that the liner did not undergo uplift during construction, using the method identified in the SLQCP; (2) certification that ballast met the criteria established in this section and in the SLQCP; and (3) signature and seal of the registered professional engineer performing the evaluation and signature of the site operator or his authorized representative. (g) Any dewatering systems used to ensure liner stability during construction and filling shall be operated until the executive director determines that such systems are no longer required. (h) At the discretion of the executive director, owners or operators of Type IV landfill excavations that extend below the seasonal high water table may be required to meet one or more provisions in this subsection. (i) The executive director may determine on a site-specific basis that waste can be used as ballast. If so, the site operating plan for the landfill shall contain the following requirements. (1) The first five feet or the total thickness of the ballast, whichever is less, placed on the liner system shall be free of brush and large bulky items, which would damage the underlying parts of the liner system or which cannot be compacted to the required density. (2) If waste is used for ballast, a wheeled trash compactor having a minimum weight of 40,000 pounds, or equivalent equipment, shall be properly utilized to reach a compaction density of at least 1,000 pounds per cubic yard. For purposes of determining the required ballast thickness, a density of compacted waste of 1,000 pounds per cubic yard shall be used. The weight of the liner system, including any ballast, must be sufficient to offset any unbalanced upward or inward hydrostatic forces on the liner by a factor of 1.5 when waste is used for ballast. (3) The SLQCP shall also include the method(s) to be used to verify that compaction of waste used for ballast is to a density of not less than 1,000 pounds per cubic yard. If a trash compactor having a minimum weight of 40,000 pounds is used, no compaction density verification will be required. (4) If waste is used for ballast, the BER shall also include verification that a trash compactor having a minimum weight of 40,000 pounds was used or, if not, that compaction was at least 1,000 pounds per cubic yard. (j) The seasonal high water table shall be adjusted upward, if necessary, as additional data become available after a permit is issued. 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 May 3, 1995. TRD-9505326 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: May 24, 1995 Proposal publication date: November 15, 1994 For further information, please call: (512) 239-6087 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 5. Funds Management (Fiscal Affairs) Claims Processing-Payroll 34 TAC sec.5.47 The Comptroller of Public Accounts adopts new sec.5.47, concerning deductions for payments to credit unions, with changes to the proposed text as published in the November 4, 1994, issue of the Texas Register (19 TexReg 8748). The new section is necessary to implement and operate the payroll deduction for state employees to make payments to their share or deposit accounts at participating credit unions. The following is a summary of the changes made to the proposed text. Subsection (e) was changed by adding paragraphs (3) and (4)(D). The new paragraphs authorize a credit union to use an authorization form that the comptroller has previously approved for use by another credit union if the form has the first credit union's name at the top of the form. Subsections (f)(4)(A), (j)(4), and (k)(5) were changed to extend the deadlines in those subsections by one workday if the deadlines would otherwise fall on a day that is not a workday. Subsection (f)(5)(B) was changed so that the first deductions to credit unions may occur from the salary or wages paid June 1, 1995. Subsection (i)(1)(A) was changed so that administrative fees may not be charged to state employees whose salary or wages are paid through the comptroller. Other provisions were changed to conform with the change to subsection (i)(1)(A). Subsection (j) was rewritten for three reasons. First, the subsection needs to more clearly state that a refund of a state employee's deduction to the employee's employer is required instead of being optional in certain circumstances. Second, the subsection needs to more clearly state that a credit union is not required to refund a state employee's deduction to the employee's employer when the credit union has distributed the deduction to the employee's credit union account and has not subsequently withdrawn the deduction from that account. Third, a credit union that receives proper notice that a state agency has canceled a payment of salary or wages to a state employee must notify the agency about whether the employee's deductions have been distributed to the employee's credit union account. If the distribution has occurred, the credit union must inform the agency about whether the credit union has subsequently withdrawn the deductions from the account. Subsections (k)(4) and (l)(2)(G) were deleted because they are no longer necessary given the changes made to subsection (j). Finally, subsection (l)(4) was changed to give a state agency only 30 calendar days to notify a credit union about how to resolve a discrepancy between the deduction records of the agency and the credit union. Comments from eight sources were received about the proposed text. Proposed subsection (a)(15) defines the term "state credit union." This definition is derived from the definition of "credit union" in the Texas Credit Union Act (the Act). The Texas Credit Union League (TCUL) requested a change to the definition because TCUL believes the proposed definition is unnecessarily lengthy and makes the new rule cumbersome. TCUL requested that "state credit union" be more simply defined to mean a credit union chartered under the Act. The comptroller disagrees with this request because TCUL's requested definition does not reflect the definition of "credit union" in the Act. Therefore, subsection (a)(15) has not been changed. Proposed subsection (b)(6) says that a state employee may cancel a deduction by completing an authorization form and submitting the form to the employee's employer or the credit union to which the employee's deductions are being paid. The San Antonio Federal Credit Union (SAFCU) has requested a change of this subsection so that the form may be submitted only to the employer. The comptroller disagrees with this request. Under proposed subsection (b)(2)(B)(ii), a state employee may authorize a deduction only by submitting an authorization form to the credit union that will be receiving the employee's deductions. The procedure for authorizing and canceling deductions should be similar. Therefore, subsection (b)(6) has not been changed. Proposed subsection (c) provides the effective dates for new deductions, changes in deductions, and cancellations of deductions. TCUL requested the consolidation of paragraphs (1)-(3) of that subsection because the effective dates are the same. The comptroller believes the paragraphs should remain separate. Although the effective dates are the same, the language needed in each paragraph is sufficiently different to justify separate treatment. Therefore, subsection (c) has not been changed. Proposed subsection (d)(1) requires a state agency to return an incomplete, erroneous, or otherwise insufficient authorization form to the credit union or state employee that submitted the form. SAFCU has requested that the form always be returned to the state employee because credit unions should not be involved. The comptroller disagrees with this request because a state agency should have the discretion to return the form to either party, based on what the agency considers to be the most efficient method. Therefore, subsection (d) (1) has not been changed. Proposed subsection (e)(4) requires a credit union to revise a deduction authorization form upon request from the comptroller. TCUL has requested that a credit union be required to revise an authorization form with "reasonable advance notice." TCUL's request would allow a credit union to continue using a defective or obsolete authorization form until the "reasonable advance notice" period has expired. The comptroller disagrees with this request because it is possible that an authorization form would need to be changed immediately. Continued use of a defective or obsolete authorization form could harm the deduction program, state employees, and credit unions. Therefore, subsection (e)(4) has not been changed. Proposed subsection (e) requires each credit union that participates in the deduction program to produce an authorization form that complies with certain requirements. The Brazos Valley Schools Credit Union (BVSCU) and the Beaumont Region Credit Union (BRCU) said that this subsection should be changed to allow a credit union to purchase and use a standard authorization form developed by TCUL. Similarly, the District 2 T.E.C. Credit Union (D2CU), the Texas Transportation Federal Credit Union (TTFCU), and TCUL said that subsection (e) should be changed to allow a credit union to purchase a pre-approved standardized form instead of each credit union developing its own form. The comptroller agrees that a credit union should be allowed to purchase and use an authorization form that the comptroller has already approved instead of each credit union developing and using its own form. However, the comptroller believes that the authorization form used by a credit union should have the name of the credit union pre-printed on the form. Subsection (e) has been changed accordingly. Proposed subsection (g)(3)(B) requires an institution of higher education to pay deductions to a credit union by electronic funds transfer if feasible. If not feasible, proposed subsection (g)(3)(D) requires the institution to pay the deductions by check. Proposed subsection (g)(3)(E) requires the institution to hand deliver the check or use an overnight delivery service to deliver the check to the credit union. The Texas A&M University System has requested that an institution of higher education be allowed to use regular mail if the check is mailed on the last workday of a month. The comptroller disagrees with this request because the timely receipt of checks by credit unions is critical to the deduction program's success. Using an overnight delivery service is the best way to ensure timely receipt. Therefore, subsection (g)(3)(E) has not been changed. Proposed subsection (i)(3)(B) requires an institution of higher education to periodically recalculate its administrative fees to ensure that the amount of the fees equals the cost of making a deduction. The subsection requires the institution to notify each participating credit union about the recalculation of the fees except for credit unions to which no employee of the institution has authorized a currently-effective deduction. TCUL, TTFCU, BVSCU, BRCU, and D2CU have requested the deletion of this exception because if a credit union receives a deduction authorization form from a state employee to start a deduction, the credit union must know the amount of the fees. The comptroller disagrees with this request because the administrative burdens of an institution of higher education would increase if the institution were required to notify every credit union. Therefore, subsection (i)(3)(B) has not been changed. Proposed subsection (j)(1) authorizes the refund of a state employee's deduction from a credit union to the employee's employer in two situations. Subsection (j)(1)(A) authorizes a refund if the amount deducted exceeds the amount that should have been paid to the credit union. Subsection (j)(1)(B) authorizes a refund if the deduction has been withdrawn from the employee's credit union account under proposed subsection (k)(4)(C). Subsection (k)(4)(C) generally requires a credit union to withdraw an employee's deduction from the employee's credit union account if the employee's employer notifies the credit union that the employer has canceled a payment of salary or wages to the employee. The purpose is to protect the state because the cancellation of an employee's salary or wage payment means that the employee is not entitled to any of that payment, including the amount deducted and paid to the credit union. TCUL has requested changes to subsection (j)(1)(B) so that a refund of an employee's deducted amounts would be authorized if those amounts have not been withdrawn by the employee or the credit union from the employee's credit union account. The comptroller disagrees with these requested changes for the following reasons. First, the changes would make it impossible for a state agency to receive a refund of the deductions withdrawn from a state employee's credit union account under subsection (k)(4)(C). Subsection (j)(1)(B) would no longer authorize refunds of those deductions. Second, the changes would eliminate the limits on a state agency's ability to obtain a refund of deductions if those deductions are still in the employee's credit union account. As proposed, subsection (j)(1)(B) allows the refund only if the deductions have been withdrawn from the employee's account under subsection (k) (4)(C). Subsection (k)(4)(C) allows a withdrawal only if a cancellation of a wage or salary payment has occurred. TCUL's requested changes would eliminate these limits. Therefore, the comptroller has not made these changes. Proposed subsection (j)(2) provides the method for accomplishing the refunds authorized by subsection (j)(1). Proposed subsection (j)(2)(A) authorizes the employer of a state employee whose deducted amounts are being refunded to subtract the amount of the refund from a subsequent payment by the employer of deducted amounts. TCUL, TTFCU, BVSCU, BRCU, and D2CU requested the deletion of subsection (j)(2)(A). TCUL, BVSCU, BRCU, and TTFCU requested the change of proposed subsection (k)(4)(B) to reflect this deletion. TCUL, BRCU, and BVSCU said that subsection (j)(2)(A) would create record keeping problems for credit unions. TCUL and BVSCU also said that it is more efficient for each refund request to be made in writing and for all transactions relating to a payroll to be handled during that payroll cycle. TCUL and BVSCU said that subsection (j)(2)(A) would create "a serious issue that the funds may already be withdrawn by the next payroll leaving the credit union with a shortage to disburse to the proper accounts." D2CU said that a refund request should be in writing and that a refund should not be accomplished by deducting the amount of the refund from subsequent payment of deductions. D2CU said this would assist credit unions in documenting changes to payrolls and limiting their liability. BRCU said that subsection (j)(2)(A) would make auditing payroll deduction transactions more complicated than necessary. The comptroller believes that deducting the amount of a refund from a subsequent payment is the most efficient method for state agencies to accomplish the refund. This method is currently used in other payroll deduction programs without causing record keeping problems. The comptroller also believes that TCUL, TTFCU, BVSCU, and D2CU have misinterpreted subsection (j)(2)(A). A state agency would document a refund request by sending a facsimile to the credit union under proposed subsection (l)(2)(G) or (l)(3)(H). The facsimile would serve the same purpose as the written notifications requested by TCUL, BVSCU, and D2CU. Also, the comptroller's intent is that subsection (j)(2)(A) apply only if the amounts being refunded were never distributed to or have been deducted from the employee's account under proposed subsection (k)(4)(C). Subsections (j)-(l) have been changed to make this intent more obvious. Proposed subsection (k)(3)(A) requires a credit union to reconcile a detail report provided by a state agency with the deductions paid to the credit union on behalf of or by the agency. Proposed subsection (k)(3)(B) requires the credit union to report any discrepancies to the agency. Proposed subsection (l) (4)(B) requires a state agency that receives a report of discrepancies from a credit union to notify the credit union about the action to be taken to eliminate the discrepancies. TCUL, BVSCU, BRCU, and TTFCU have requested that the agency be given 30 days to provide the notification. The comptroller agrees with this request and has changed subsection (l)(4)(B) accordingly. The Highway Employees Credit Union concurred with all the comments made by TCUL. The new section is adopted under the Texas Civil Statutes, Article 6813g, which authorize the comptroller to adopt rules relating to the implementation and operation of the credit union payroll deduction. The new section implements Texas Civil Statutes, Article 6813g. sec.5.47. Deductions for Payments to Credit Unions. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Comptroller-The comptroller of public accounts for the State of Texas. (2) Credit union-A state credit union, an out-of-state credit union, or a federal credit union. (3) Electronic funds transfer-A payment made electronically instead of by warrant or check. The term includes a payment made through an automated clearinghouse, by bank wire, or by federal wire. (4) Employer-A state agency that employs one or more state employees. (5) Federal credit union-A credit union organized under the Federal Credit Union Act. (6) Holiday-A state or national holiday as specified by the General Appropriations Act or Texas Government Code, sec.sec.662.001-662.010. (7) Include-A term of enlargement and not of limitation or exclusive enumeration. The use of the term does not create a presumption that components not expressed are excluded. (8) Institution of higher education-Has the meaning assigned by the Education Code, sec.61.003. (9) May not-A prohibition. The term does not mean "might not" or its equivalents. (10) Out-of-state credit union-A credit union organized under the laws of a state other than Texas if the credit union is authorized under the Texas Credit Union Act to do business in this state. (11) Participating credit union-A credit union that the comptroller has certified according to this section. (12) Payee identification number-The 14-digit number that the comptroller assigns to each direct recipient of a payment made by the comptroller for the State of Texas. (13) Salary or wages-Base salary or wages, longevity pay, or hazardous duty pay. (14) State agency-A department, commission, council, board, office, agency, or other entity of Texas state government, including an institution of higher education. (15) State credit union-A voluntary, cooperative, nonprofit financial institution that is authorized under the Texas Credit Union Act to do business in this state for the purposes of: (A) encouraging thrift among its members; (B) creating a source of credit at fair and reasonable rates of interest; (C) providing an opportunity for its members to use and control their own money to improve their economic and social condition; and (D) conducting any other business, engaging in any other activity, and providing any other service that may be of benefit to its members subject to the Texas Credit Union Act and rules adopted under that law. (16) State employee-An employee of a Texas state agency. The term includes an elected or appointed official, a part-time employee, an hourly employee, a temporary employee, an employee who is not covered by the Position Classification Act, and a combination of the preceding. The term excludes an independent contractor and an employee of an independent contractor. (17) USPS-The uniform statewide payroll/personnel system. (18) Workday-A calendar day other than Saturday, Sunday, or a holiday. (b) Deductions. (1) References in this section. A reference in this section to a deduction without further qualification or explanation is a reference only to a deduction from a state employee's salary or wages to make a payment to a participating credit union. (2) Authorization of deductions. (A) A state employee may authorize not more than three monthly deductions from the employee's salary or wages. However, a state employee may not authorize more than one monthly deduction to any particular participating credit union. (B) A state employee may authorize a deduction only if the employee: (i) properly completes an authorization form; and (ii) submits the form to the participating credit union to which the deducted amounts will be paid. (C) Neither the comptroller nor a state agency is liable or responsible for any damages or other consequences resulting from a state employee authorizing an incorrect amount of a deduction. (D) An authorization form is not properly completed for purposes of subparagraph (B) (i) of this paragraph unless the form states the amount of administrative fees the employee completing the form must pay under this section. The amount must be stated on the form before the employee signs it. (3) Change in the amount of a deduction. (A) At any time, a state employee may authorize a change in the amount to be deducted from the employee's salary or wages. (B) A state employee may authorize a change in the amount of a deduction only if the employee: (i) properly completes an authorization form; and (ii) submits the form to the affected participating credit union. (C) Neither the comptroller nor a state agency is liable or responsible for any damages or other consequences resulting from a state employee changing the amount of a deduction. (D) An authorization form is not properly completed for purposes of subparagraph (B)(i) of this paragraph unless the form states the amount of administrative fees the employee completing the form must pay under this section. The amount must be stated on the form before the employee signs it. (4) Sufficiency of salary or wages to support a deduction. (A) A state employee is solely responsible for ensuring that the employee's salary or wages are sufficient to support a deduction. (B) If a state employee's salary or wages are sufficient to support only part of a deduction, then no part of the deduction may be made. If a state employee has authorized more than one deduction and the employee's salary or wages are insufficient to support all the deductions, then none of the deductions may be made. (C) The amount that could not be deducted from a state employee's salary or wages because of subparagraph (B) of this paragraph may not be made up by deducting the amount from subsequent payments of salary or wages to the employee. (5) Timing of deductions. (A) Except as provided in subparagraph (B) of this paragraph, a deduction must be made from the salary or wages that are paid on the first working day of a month. (B) If a state employee does not receive a payment of salary or wages on the first working day of a month, then the employer of the employee may designate the payment of salary or wages from which a deduction will be made. A deduction may be made only once each month. (6) Cancellation of deductions. (A) A state employee may cancel a deduction at any time. A cancellation is effective only if the employee properly completes an authorization form and submits the form to the affected participating credit union or the employee's employer. (B) This subparagraph applies only if a state employee cancels a deduction by submitting an authorization form to the employee's employer and if the employer submits monthly detail reports directly to participating credit unions. (i) Except as provided in clause (ii) of this subparagraph, the employer shall include a copy of the form with the next monthly detail report that the employer sends to the affected participating credit union. (ii) If the next monthly detail report will not be sent before the tenth workday after the day on which the form becomes effective, then the employer shall mail or hand deliver the copy of the form to the credit union not later than that workday. (C) This subparagraph applies only if a state employee cancels a deduction by submitting an authorization form to the employee's employer and if the comptroller submits monthly detail reports to participating credit unions on the employer's behalf. The employer shall mail or hand deliver a copy of the form to the credit union not later than the tenth workday after the day on which the form becomes effective. (D) Neither the comptroller nor a state agency is liable or responsible for any damages or other consequences resulting from a state employee canceling a deduction. (7) Interagency transfers of state employees. A state employee who transfers from one state agency to a second state agency may be treated by the second state agency as if the employee has not yet authorized any deductions. (c) Effective dates of authorization forms. (1) Effective date of authorization forms that request new deductions. This paragraph applies only to a state employee's authorization form that requests a new deduction. The employer of the employee may decide when the first deduction from the employee's salary or wages will occur. However, the deduction must begin not later than with the employee's salary or wages that are paid on the first workday of the second month following the month in which the employer receives the form. (2) Effective date of authorization forms that request changes in deductions. This paragraph applies only to a state employee's authorization form that requests a change to a deduction. The employer of the employee may decide when the change will take effect. However, the change must take effect not later than with the employee's salary or wages that are paid on the first workday of the second month following the month in which the employer receives the form. (3) Effective date of authorization forms that request cancellations of deductions. This paragraph applies only to a state employee's authorization form that requests the cancellation of a deduction. The employer of the employee may decide when the cancellation will take effect. However, the cancellation must take effect not later than with the employee's salary or wages that are paid on the first workday of the second month following the month in which the employer receives the form. (4) Copies of authorization forms. (A) A participating credit union is solely responsible for making a copy of an authorization form before the credit union submits the form to a state agency. (B) A state employee is solely responsible for making a copy of an authorization form before the employee submits the form to a participating credit union or state agency. (d) Return of authorization forms. (1) Mandatory return. A state agency shall return an authorization form to the participating credit union or state employee that submitted the form if it: (A) is incomplete, contains erroneous data, or is otherwise insufficient and the insufficiency makes it impossible for the agency to cancel, establish, or change the deduction according to the form; or (B) is for an individual who is not employed by the agency. (2) Discretionary return. A state agency may return an authorization form to the participating credit union or state employee that submitted the form if the form is a copy or facsimile. (e) Requirements for the content and format of authorization forms. (1) Prohibition against distributing or providing authorization forms. A participating credit union may not distribute or provide an authorization form to a state employee until the credit union has received the comptroller's written approval of the form. (2) Requirement to produce authorization forms. As a condition for retaining its certification, a participating credit union must produce an authorization form that complies with the comptroller's requirements and this section. The credit union must produce the form within a reasonable time after receiving its certification from the comptroller. (3) Using previously approved authorization forms. A participating credit union may use an authorization form that the comptroller has approved for use by another participating credit union if the form is modified so that the first credit union's name appears at the top of the form. (4) Restrictions on approval of authorization forms by the comptroller. The comptroller may not approve the authorization form of a participating credit union unless: (A) the form is at least 8 1/2 inches wide; (B) the form is at least 11 inches long; (C) the form has a blank space for insertion of the amount of administrative fees the employee completing the form must pay under this section; (D) the name of the credit union appears at the top of the form; and (E) the form complies with the comptroller's other requirements for format and substance. (5) Revisions of authorization forms. A participating credit union shall revise an authorization form upon request from the comptroller. The credit union may not distribute or otherwise make available a revised form to a state employee until the credit union has received the comptroller's written approval of the form. (f) Requirements for certifying and decertifying credit unions. (1) Request for certification. The comptroller may not certify a credit union unless the comptroller receives a written request for certification from an individual who is authorized by the credit union to make the request. (2) Requirements for requests for certification. The comptroller may not certify a credit union unless its request for certification includes: (A) the credit union's complete name; (B) the street address of the credit union's main branch; (C) the mailing address of the credit union's main branch, if different from the street address; (D) the full name, title, telephone number, facsimile telephone number, and mailing address of the credit union's primary contact; (E) the credit union's payee identification number; and (F) the other information that the comptroller deems necessary. (3) Electronic funds transfers. The comptroller may not certify a credit union unless: (A) it submits to the comptroller a request for deducted amounts to be paid by the comptroller through electronic funds transfers under rules and procedures adopted by the comptroller; (B) it submits to each institution of higher education that will be paying deducted amounts directly to the credit union a request for those amounts to be paid through electronic funds transfers; and (C) all those requests are approved. (4) Notifications. (A) The comptroller shall mail a notice to a credit union about the comptroller's approval or disapproval of the credit union's request for certification. The notice must be mailed not later than the 30th calendar day after the comptroller receives the request if the request is complete in all respects. If the 30th calendar day is not a workday, then the first workday following the 30th calendar day is the deadline. (B) The comptroller shall maintain a list of participating credit unions. The comptroller shall periodically circulate the list to all state agencies and furnish a copy of the list to a state agency upon request. (5) Effective date of certification. (A) General effective date. Except as provided in subparagraph (B) of this paragraph, the first deduction to a participating credit union may be made from salary or wages paid on the first workday of the second month following the month in which the comptroller certifies the credit union. (B) Exception. No deduction to a participating credit union may be made from salary or wages paid before June 1, 1995. (6) Termination of certification. (A) A participating credit union may terminate its participation in the deduction program authorized by this section only by terminating its certification. (B) A participating credit union may terminate its certification by providing written notice of termination to the comptroller. However, the credit union may not provide that notice before the credit union has provided written notice of termination to each state employee from whose salary or wages a deduction to the credit union is occurring. (C) A participating credit union's termination of its certification is effective beginning with the salary or wages paid on the first workday of the third month following the month in which the comptroller receives the credit union's proper notice of termination. (g) Payments of deducted amounts. (1) Payments by the comptroller through electronic funds transfers. (A) If feasible, the comptroller shall pay deducted amounts to a participating credit union by electronic funds transfer. (B) If the comptroller pays deducted amounts to a participating credit union by electronic funds transfer, then the comptroller may: (i) make one transfer to the credit union and require it to distribute the transferred funds to state employees' accounts according to subsection (h) of this section; or (ii) make one transfer to the credit union account of each state employee. (2) Payments through warrants issued by the comptroller. (A) If it is infeasible for the comptroller to pay deducted amounts to a participating credit union by electronic funds transfer, then the comptroller shall: (i) pay the amounts by warrant; (ii) make the warrant payable to the credit union; (iii) require the credit union to distribute the deducted amounts to state employees' accounts according to subsection (h) of this section; and (iv) make the warrant available for pick up by the state agency whose employees' deducted amounts are being paid by the warrant. (B) A state agency shall hand deliver or use an overnight delivery service to deliver a warrant picked up under subparagraph (A) of this paragraph to the payee of the warrant. (i) If the warrant relates to salary or wages that are paid on the first workday of a month, then the agency shall: (I) release the warrant to an overnight delivery service not later than the second workday of the month for delivery to the payee of the warrant; or (II) hand deliver the warrant to the payee of the warrant not later than the third workday of the month. (ii) If the warrant relates to salary or wages that are paid on a day other than the first workday of a month, then the agency shall: (I) release the warrant to an overnight delivery service not later than the second workday after the agency receives the warrant for delivery to the payee of the warrant; or (II) hand deliver the warrant to the payee of the warrant not later than the third workday after the agency receives the warrant. (3) Payments by institutions of higher education. (A) This paragraph applies only to deductions from salaries or wages that the comptroller does not pay directly to state employees of institutions of higher education. (B) If feasible, an institution of higher education shall pay deducted amounts to a participating credit union by electronic funds transfer. (C) If an institution of higher education pays deducted amounts to a participating credit union by electronic funds transfer, then the institution may: (i) make one transfer to the credit union and require it to distribute the transferred funds to state employees' accounts according to subsection (h) of this section; or (ii) make one transfer to the credit union account of each state employee. (D) If it is infeasible for an institution of higher education to pay deducted amounts to a participating credit union by electronic funds transfer, then the institution shall: (i) pay the amounts by check; (ii) make the check payable to the credit union; and (iii) require the credit union to distribute the deducted amounts to state employees' accounts according to subsection (h) of this section. (E) An institution of higher education shall hand deliver or use an overnight delivery service to deliver a check issued under subparagraph (D) of this paragraph to the payee of the check. (i) If the check relates to salary or wages that are paid on the first workday of a month, then the institution shall: (I) release the check to an overnight delivery service not later than the second workday of the month for delivery to the payee of the check; or (II) hand deliver the check to the payee of the check not later than the third workday of the month. (ii) If the check relates to salary or wages that are paid on a day other than the first workday of a month, then the institution shall: (I) release the check to an overnight delivery service not later than the second workday after the date printed on the check for delivery to the payee of the check; or (II) hand deliver the check to the payee of the check not later than the third workday after the date printed on the check. (h) Distributions of deducted amounts. (1) Applicability of this subsection. This subsection applies to deducted amounts only if they are paid to a participating credit union under subsection (g)(1)(B)(i), (g)(2), (g)(3)(C)(i), or (g)(3)(D) of this section. (2) Requirement. A participating credit union shall distribute the amount deducted from a state employee's salary or wages to the proper account of the employee at the credit union. (3) Deadline for distributions. (A) This subparagraph applies only if a participating credit union receives a payment of deducted amounts through an electronic funds transfer. The credit union shall distribute them according to paragraph (2) of this subsection not later than the first workday after the credit union receives the detail report for the deducted amounts. (B) This subparagraph applies only if a participating credit union receives a payment of deducted amounts through a warrant or check. The credit union shall distribute them according to paragraph (2) of this subsection not later than the first workday after the credit union receives the warrant or check. (4) Distribution of interest earned. This paragraph applies only to the interest that accrues while an employee's deducted amounts are in a credit union account awaiting distribution to the employee's account at the credit union. The interest shall be paid to the employee's account unless the credit union determines the payment would violate federal or state law or an agreement between the credit union and the employee. (i) Charging administrative fees to cover costs incurred to make deductions. (1) Requirement. (A) This subparagraph applies to a state employee whose salary or wages are paid through a warrant issued or an electronic funds transfer initiated by the comptroller. The comptroller may not charge the employee an administrative fee to cover the cost of making the deduction. (B) If a state employee's salary or wages are paid through a check issued or an electronic funds transfer initiated by an institution of higher education and the institution's payroll costs are reimbursed from the state treasury, then the institution may determine whether the employee must pay an administrative fee to cover the cost of making the deduction. The fee, if charged, shall be paid through payroll deduction. (2) Determination by an institution of higher education of the amount of the fee. (A) An institution of higher education shall determine the amount of the administrative fee, if any, to be paid by a state employee covered by paragraph (1)(B) of this subsection. (B) The institution shall periodically recalculate the fee to ensure that the amount of the fee equals the cost of making the deduction. Except as otherwise provided in this subparagraph, the institution shall notify each participating credit union and employee of the institution whenever the institution calculates or recalculates the fee. The institution is not required to notify an employee who has not authorized a deduction or a participating credit union to which no employee of the institution has authorized a currently-effective deduction. (3) Payment of the administrative fees. The total amount of administrative fees that an institution of higher education deducts from its state employees' salary and wages shall be paid to the institution. (j) Canceled payments of salary or wages; refunding deducted amounts to employers. (1) Canceled payments of salary or wages. (A) A state agency shall notify a participating credit union about the agency's cancellation of a payment of salary or wages to a state employee. The notification must be by facsimile and must be provided not later than the day the agency processes the cancellation. This subparagraph applies only if: (i) the payment is canceled after the agency has hand delivered to the credit union or released to an overnight delivery service a monthly detail report; and (ii) the deductions covered by the report include deductions from the canceled payment of salary or wages. (B) If a state agency notifies a credit union that the agency has canceled a payment of salary or wages to a state employee and if the credit union receives the notice before it distributes deducted amounts to the employee's account, then the credit union may not make the distribution. (C) If a credit union's distribution of deducted amounts is prohibited by subparagraph (B) of this paragraph, then the state agency that paid them to the credit union shall obtain a refund of them according to paragraph (3)(A) or (B) of this subsection. (D) If a state agency notifies a credit union that the agency has canceled a payment of salary or wages to a state employee and if the credit union receives the notice after it distributes deducted amounts to the employee's account, then the credit union shall withdraw the amounts from the account unless: (i) the credit union determines the withdrawal would violate federal or state law; or (ii) the amount of funds in the account is insufficient for withdrawal of the full amount. (E) A credit union that receives notification under subparagraph (A) of this paragraph that a state agency has canceled a payment of salary or wages to a state employee shall promptly notify the agency about whether the employee's deducted amounts have been distributed to the employee's account. If the distribution has occurred, the credit union shall also notify the agency about whether the amounts have been withdrawn from the employee's account under subparagraph (D) of this paragraph. The credit union's notification to the agency must be by facsimile. (2) Authorization of refunds. The payment of a state employee's deducted amounts to a participating credit union shall be refunded to the employee's employer only if: (A) they exceed the amount that should have been paid to the credit union, and they have not been distributed to the employee's account at the credit union; or (B) they have been withdrawn from the employee's account at the credit union according to paragraph (1)(D) of this subsection . (3) Method for accomplishing refunds. If a refund from a participating credit union is required by paragraph (1)(C) or (2) of this subsection, then the refund shall be accomplished by: (A) the employer of the state employee whose deducted amounts are being refunded subtracting the amount of the refund from a subsequent payment of deducted amounts to the credit union; or (B) the credit union issuing a check to the employer in the amount of the refund, if authorized by paragraph (4) of this subsection. (4) Paying refunds by check. A participating credit union may issue a check to an employer only if it submits to the credit union a written request for the refund to be made by check. (5) Deadline for paying refunds by check. If a participating credit union is authorized by paragraph (4) of this subsection to make a refund to an employer by check, then the credit union shall ensure that the employer receives the check not later than the 30th calendar day after the date on which the credit union receives the agency's written request for the refund. If the 30th calendar day is not a workday, then the first workday following the 30th calendar day is the deadline. (k) Responsibilities of participating credit unions. (1) Notification to the comptroller. A participating credit union shall notify the comptroller in writing immediately after a change occurs to: (A) the credit union's name; (B) the street address of the credit union's main branch; (C) the mailing address of the credit union's main branch, if different from the street address; (D) the full name, title, telephone number, facsimile telephone number, or mailing address of the credit union's primary contact; or (E) the credit union's routing number or bank account number. (2) Primary contact. The individual that a credit union designates as its primary contact must represent the credit union for the purposes of: (A) communicating with the comptroller, including receiving and responding to correspondence from the comptroller; (B) disseminating information, including information about the requirements of this section, to representatives of the credit union; and (C) communicating with state agencies about payment reconciliation and refunds. (3) Payment reconciliation and discrepancies. (A) A participating credit union shall reconcile the detail report provided by a state agency under subsection (l) of this section with the deducted amounts paid to the credit union on behalf of or by the agency under subsection (g) of this section. (B) A participating credit union shall report all discrepancies between a detail report provided by a state agency and the actual amount of deductions received from or on behalf of the agency. The credit union shall provide its report to the state agency that submitted or on whose behalf the comptroller submitted the detail report. The credit union must ensure that its report is received not later than the 60th calendar day after the day on which the detail report was mailed, hand delivered, or released, whichever applies. If the 60th calendar day is not a workday, then the first workday following the 60th calendar day is the deadline. (4) Return of magnetic tapes and cartridges. A participating credit union shall return a magnetic tape or cartridge to a state agency not later than the 30th calendar day after the credit union received the tape or cartridge from the agency. If the 30th calendar day is not a workday, then the first workday following the 30th calendar day is the deadline. (5) Submission of detail reports. A participating credit union that wants a monthly or additional detail report to be submitted to an entity other than the credit union must notify the comptroller in writing. A state agency is not required to submit the report to the entity before the agency has received notification from the comptroller that the report must be submitted to the entity. (l) Responsibilities of state agencies. (1) Authorization forms. A state agency: (A) may accept an authorization form only if it complies with this section; and (B) is not required to accept an authorization form that contains an obvious alteration without the state employee's written consent to the alteration. (2) Monthly detail reports to participating credit unions. (A) A state agency shall submit a monthly detail report to each participating credit union that received or should have received a payment of amounts deducted from the salary or wages of at least one of the agency's state employees. If the participating credit union has notified the comptroller in writing that the monthly detail reports should be submitted to an entity other than the credit union, then the reports shall be submitted to that entity. (B) If a state agency uses USPS and submits its monthly detail reports electronically, then the comptroller shall submit those reports on behalf of the agency. The requirements of this subsection that apply to the submission of those reports by state agencies also apply to the comptroller's submission of the reports. (C) A monthly detail report may cover only the deductions from salary or wages that are paid on the first workday of the month. Deducted amounts that were paid by electronic funds transfer directly to the credit union accounts of state employees may not be included in the report. (D) A state agency shall hand deliver or use an overnight delivery service to deliver a monthly detail report. (i) If the agency hand delivers the report, then the agency shall ensure that the report is received not later than the third workday of the month. (ii) If the agency uses an overnight delivery service, then the agency shall release the report to the service not later than the second workday of the month. (E) A monthly detail report to a participating credit union for a particular month must include: (i) the name and social security number of each state employee from whose salary or wages deducted amounts were paid to the credit union for the month; and (ii) the amount of deductions from each state employee's salary or wages that were paid to the credit union for the month. (F) A state agency shall submit its monthly detail reports in the format required by the comptroller. (3) Additional detail reports to participating credit unions. (A) A state agency shall submit an additional detail report to each participating credit union that received or should have received a payment of amounts deducted from the salary or wages of at least one of the agency's state employees. If the participating credit union has notified the comptroller in writing that the additional detail reports should be submitted to an entity other than the credit union, then the reports shall be submitted to that entity. (B) If a state agency uses USPS and submits its additional detail reports electronically, then the comptroller shall submit those reports on behalf of the agency. The requirements of this subsection that apply to the submission of those reports by state agencies also apply to the comptroller's submission of the reports. (C) An additional detail report may cover only the deductions from salary or wages that are paid on a day other than the first workday of the month. Deducted amounts that were paid by electronic funds transfer directly to the credit union accounts of state employees may not be included in the report. (D) This subparagraph applies only to an additional detail report that covers deducted amounts which are paid by electronic funds transfer to a participating credit union. A state agency shall hand deliver or use an overnight delivery service to deliver the report. (i) If the agency hand delivers the report, then the agency shall ensure that the report is received not later than the third workday after the deducted amounts are paid to the credit union. (ii) If the agency uses an overnight delivery service, then the agency shall release the report to the service not later than the second workday after the deducted amounts are paid to the credit union. (E) This subparagraph applies only to an additional detail report that covers deducted amounts which are paid by warrant or check to a participating credit union. The report shall accompany the warrant or check when it is mailed or otherwise delivered to the credit union. (F) An additional detail report to a participating credit union for a particular month must include: (i) the name and social security number of each state employee from whose salary or wages deducted amounts were paid to the credit union for the month; and (ii) the amount of deductions from each state employee's salary or wages that were paid to the credit union for the month. (G) A state agency shall submit its additional detail reports in the format required by the comptroller. (H) A state agency shall notify a participating credit union about the agency's cancellation of a payment of salary or wages to a state employee. The notification must be by facsimile and must be provided not later than the day the agency processes the cancellation. This subparagraph applies only if: (i) the payment is canceled after the agency has hand delivered to the credit union or released to an overnight delivery service an additional detail report; and (ii) the deductions covered by the report include deductions from the canceled payment of salary or wages. (4) Payment discrepancies. A state agency that receives a report of discrepancies from a participating credit union shall investigate them and notify the credit union of the action to be taken to eliminate them. The agency shall provide the notification not later than the 30th calendar day after the agency receives the report. If the 30th calendar day is not a workday, then the first workday following the 30th calendar day is the deadline. (m) Responsibilities of the comptroller. The comptroller shall notify all state agencies whenever the comptroller receives written notification from a participating credit union that monthly or additional detail reports should be submitted to an entity other than the credit union. 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 authority. Issued in Austin, Texas, on May 1, 1995. TRD-9505228 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: May 22, 1995 Proposal publication date: November 4, 1994 For further information, please call: (512) 463-4028 Claims Processing-Purchase Vouchers 34 TAC sec.5.55 The Comptroller of Public Accounts adopts the repeal of sec.5.55, concerning prompt payment act requirements for state agencies, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1511). The section is being repealed so that a substantially revised section may be adopted. No comments were received regarding adoption of the repeal. The repeal is adopted under the Government Code, sec.2101.035, which authorizes the comptroller to adopt rules for the effective operation of the uniform statewide accounting system. The repeal implements the Government Code, sec.2101.035. 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 authority. Issued in Austin, Texas, on May 1, 1995. TRD-9505230 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: May 22, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 463-4028 The Comptroller of Public Accounts adopts new sec.5.55, concerning prompt payment law requirements for state agencies, without changes to the proposed text as published in the March 3, 1995, issue of the Texas Register (20 TexReg 1512). The new section is being adopted to replace sec.5.55 that is being repealed. The new section covers the prompt payment law's requirements for state agencies to pay interest to vendors on overdue payments. The section also specifies the procedures that state agencies must follow to pay the interest. The new section is necessary because of action during the 73rd Legislature, 1993. Senate Bill 248 transferred the prompt payment law from the Texas Civil Statutes to the Government Code. The bill also made numerous nonsubstantive changes to the law. Senate Bill 83 and House Bill 1815 made a few substantive changes in the law that are not reflected in the current version of sec.5.55. The senate bill added a definition of "services" to the prompt payment law. The bill also amended the law so that it applies to gas or water utility services regardless of any contractual provisions to the contrary. The house bill added a provision that makes the prompt payment law apply regardless of any contractual provisions about times and methods of payment, methods of resolving disputes, or ways to calculate interest due on overdue payments. The new section is also necessary because of the implementation of the uniform statewide accounting system (USAS) on September 1, 1993. The USAS implementation resulted in a state agency being able to submit payment requests electronically to the comptroller. The implementation also resulted in the use of new terms that are not reflected in the current version of sec.5. 55. No comments were received regarding adoption of the new section. The new section is adopted under the Government Code, sec.2101.035, which authorizes the comptroller to adopt rules for the effective operation of the uniform statewide accounting system. The new section implements the Government Code, sec.sec.2251.001-2251.043. 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 authority. Issued in Austin, Texas, on May 1, 1995. TRD-9505229 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: May 22, 1995 Proposal publication date: March 3, 1995 For further information, please call: (512) 463-4028 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 79. Legal Services Subchapter Z. Reimbursement Rates for Prosecution of Intentional Program Violations 40 TAC sec.79.2501 The Texas Department of Human Services (DHS) adopts an amendment to sec.79. 2501 without changes to the proposed text as published in the March 31, 1995, issue of the Texas Register (20 TexReg 2380). The amendment is justified to reduce the prosecution rates for contested and uncontested fraud cases involving Aid to Families with Dependent Children (AFDC) program and Food Stamp program benefits. The amendment will function by ensuring that appropriate reimbursement of county and district attorneys for the costs involved in prosecuting public assistance fraud cases is made. The department received no comments regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment implements the Human Resources Code sec. sec.22.001-22.024 and sec.sec.33.001-33.025. 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 May 3, 1995. TRD-9505323 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: July 1, 1995 Proposal publication date: March 31, 1995 For further information, please call: (512) 450-3765