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 13. CULTURAL RESOURCES Part I. Texas State Library and Archives Commission Chapter 6. State Records Standards and Procedures for Management of Electronic Records 13 TAC sec.sec.6.91-6.98 The Texas State Library and Archives Commission adopts amendments to sec.sec.6.91-6.98, concerning standards and procedures for the management of electronic records of state agencies. Section 6.95 is adopted with changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3946). Sections 6.91-6.94 and 6.96-6.98 are adopted without changes and will not be republished. The amendments are being adopted to provide electronic recordkeeping requirements that are more clearly stated and that update the rules with newly published national standards. Subsection (c) of sec.6.95 is amended based on comments received from a government records management official that the requirements for records stored on rewritable media should apply to all electronic records within the scope of the rules to support the integrity and authenticity of the records. Adoption of the amendments makes the rules for electronic records easier to use by removing definitions for records of varying retention periods, as these distinctions serve no purpose in the context of the requirements of these sections; by setting out in full, rather than by reference, requirements concerning temperature and humidity requirements for the storage of optical disks and the expungement of information from a certain type of optical disk; and by removing references to local governments in order to make these sections language specific to state agencies. The opportunity for state agencies to appropriately use digital imaging systems is enhanced by adding a standard for the scanning of microforms that has become available since the rules were originally adopted. The commission received one comment regarding adoption of a change to sec.6. 95, which was incorporated into the rules. This comment was received from Laura McGee, Records Management Officer, City of Dallas. The amendments are adopted under the Government Code, sec.441.032(b)(1) and sec.441.037(5), which provide the Texas State Library and Archives Commission with the authority to manage all state records with the cooperation of the heads of the various departments and institutions in charge of the records and to issue rules, standards, and procedures for the efficient management of state records. The Government Code, sec.441.032(b)(1) and sec.441.037(5), are affected by the proposed amendments. sec.6.95. Security of Electronic Records. (a) State agencies must implement and maintain an electronic records security program for office and storage areas that: (1)-(5) (No change.) (b) (No change.) (c) For records stored on rewritable electronic media, the system must ensure that read/write privileges are controlled and that an audit trail of rewrites is maintained. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 11, 1995. TRD-9511986 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: October 10, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 463-5460 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 213. Practice and Procedure 22 TAC sec.sec.213.1-213.34 The Board of Nurse Examiners adopts the repeal of sec. sec.213.1-213.34, concerning Practice and Procedure, without changes in the proposed text as published in the July 28, 1995, issue of the Texas Register (20 TexReg 5578). During the 74th Legislative Session, the Nursing Practice Act was amended by House Bill 883 which addresses a "good professional character" qualification to practice professional nursing in a safe manner. A complete rewrite of the existing rules was felt necessary to include the recommendations of the task force and modifications based on staff experience using existing rules in contested cases. The adoption of the repeals and subsequent new sections will bring the agency into compliance with House Bill 883 in addition to clarifying language for contested cases. No comments were received regarding the proposed repeals. The repeals are adopted under the Nursing Practice Act (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. No other Articles are affected by this repeal. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1995. TRD-9512027 Kathy Thomas, MN, RN, CPNP Interim Executive Director Board of Nurse Examiners Effective date: October 11, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 835-8675 22 TAC sec.sec.213.1-213.33 The Board of Nurse Examiners adopts new sec.sec.213.1-213.33, concerning Practice and Procedure. Section 213.22 is adopted with changes to the proposed text as published in the July 28, 1995, issue of the Texas Register (20 TexReg 5579). Sections 213.1-213.21, 213.23-213.33 are adopted without changes and will not be republished. During the 74th Legislative Session, the Nursing Practice Act was amended by House Bill 883 which addresses a "good professional character" qualification to practice professional nursing in a safe manner. The Board of Nurse Examiners formed a task force which included representatives from outside nursing constituencies. This task force continues to meet in regard to addressing ADA questions and issues. However, the committee did address and recommend draft rule language defining good professional character. A complete rewrite of the existing rules was felt necessary to include the recommendations of the task force and modifications based on staff experience using existing rules in contested cases. The adopted new section will bring the agency into compliance with House Bill 883 in addition to clarifying language for contested cases. The Texas Nurses Association submitted a comment in relation to sec.213.22, Formal Hearing Procedures and Practices. Their concern addressed whether or not a final judgment should be based solely on the allegations in the formal charges. They recommended that there be a showing that there is credible evidence available to support a prima facie case against the respondent before the default judgment is granted. The board agreed with the comment and modified sec.213.22(g) to reflect that change. The new sections are adopted under the Nursing Practice Act (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. Articles 4518, 4519a, 4524A-D, 4525-4525.6, 4525e and 4527a-4527d are affected by these new sections. sec.213.22. Formal Hearing Procedures and Practices. (a) Formal administrative hearings in contested cases shall be conducted in accordance with the APA by an ALJ assigned by the SOAH. Jurisdiction over the case is acquired by the SOAH when the staff of the Board of Nurse Examiners files either a Request for Setting of Hearing or Request for Assignment of an Administrative Law Judge. (b) The respondent or the representative of the respondent shall enter an appearance with the SOAH, with a copy to the Board, within 20 days of the date on which the notice of hearing is provided to the respondent. (c) For purposes of this section, an entry of appearance shall mean the filing of a written answer or other responsive pleading. (d) For purposes of this section, notice of hearing is provided to a respondent on the date of deposit in the United States mails of a registered or certified letter, return receipt requested, containing a notice of hearing in accordance with sec.213.10 and sec.213.15(c) of this title (relating to Notice and Service and Commencement of Disciplinary Proceedings). (e) The failure of the respondent to timely enter an appearance as provided in this section shall entitle the Board of Nurse Examiners to a continuance at the time of the hearing in the contested case for such reasonable period of time as determined by the ALJ. (f) The notice of hearing provided to a respondent for a contested case shall include the following language in capital letters in 12-point boldface type: FAILURE TO ENTER AN APPEARANCE BY FILING IN WRITING AN ANSWER OR OTHER RESPONSIVE PLEADING TO THE FORMAL CHARGES CONTAINED IN THE NOTICE WITHIN 20 DAYS OF THE DATE THIS NOTICE WAS MAILED SHALL ENTITLE THE BOARD OF NURSE EXAMINERS TO A CONTINUANCE AT THE TIME OF THE HEARING FOR A TIME PERIOD SET BY THE ALJ. (g) If a respondent fails to appear in person or by legal representative on the day and at the time set for hearing in a contested case, regardless of whether an appearance has been entered, the ALJ, upon motion of the Board of Nurse Examiners, shall enter a default judgment in the matter adverse to the respondent who has failed to attend the hearing, provided that accompanying the motion will be an affidavit of counsel for the board averring that it is counsel's opinion there is legally admissible, credible evidence reasonably available to support the factual allegations against the respondent in the formal charges. (h) For purposes of this section, default judgment shall mean the issuance of a proposal for decision against the respondent in which the factual allegations against the respondent in the formal charges contained in the notice of hearing are deemed admitted as true, without any requirement for additional proof to be submitted by the Board of Nurse Examiners. (i) Any default judgment granted under this section will be entered on the basis of the factual allegations in the formal charges contained in the notice of hearing, and upon proof of proper notice to the respondent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Government Code, sec.sec.2001.051, 2001. 052, and 2001.054, as well as sec.213.10 of this title (relating to Notice and Service). Such notice of hearing also shall include the following language in capital letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING WILL RESULT IN THE ALLEGATIONS AGAINST YOU IN THE FORMAL CHARGES CONTAINED IN THIS NOTICE OF HEARING BEING ADMITTED AS TRUE. (j) After the granting of a motion for default judgment, a motion by the respondent to reopen the record shall be granted if the respondent establishes that the failure to attend the hearing was neither intentional nor the result of conscious indifference, and that the failure to attend was due to a mistake or accident. (1) A motion to reopen the record shall be filed prior to the time that the order of the Board becomes final pursuant to the provisions of the Government Code, Chapter 2001. (2) A motion to reopen the record is not a motion for rehearing and is not to be considered a substitute for a motion for rehearing. The filing of a motion to reopen has no effect on either the statutory time periods for the filing of a motion for rehearing or on the time period for ruling on a motion for rehearing, as provided in the Government Code. (k) Each hearing will be recorded by a court reporter. (1) The cost of the transcription of the record shall be borne by the party making the request for the record. (2) A party who appeals a final decision of the Board shall pay all of the costs of preparation of the original and any certified copy of the record of the agency proceeding that is required to be transmitted to the reviewing court. (l) Because of the often voluminous nature of the records (including medical records and personnel records) properly received into evidence by the ALJ under the Business Records Accompanied by Affidavit exemption to the Hearsay Rule (see Rule 803(6) and (7) and Rule 902(10) of the Texas Rules of Civil Evidence), the party introducing such documentary evidence may paginate each such exhibit and/or flag pertinent pages in each such exhibit in order to expedite the hearing and the decision making process. (m) The schedule of sanctions set out in the NPA is adopted by the Board, and the ALJ shall use such sanctions as well as any sanctions adopted by the Board by rule. (n) Within a reasonable time after the conclusion of the hearing, the ALJ shall prepare and serve on the parties a proposal for decision and a proposed order. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1995. TRD-9512028 Kathy Thomas, MN, RN, CPNP Interim Executive Director Board of Nurse Examiners Effective date: October 11, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 835-8675 Part XXV. Structural Pest Control Board Chapter 591. General Provisions 22 TAC sec.591.7 The Structural Pest Control Board adopts an amendment to sec.591.7, concerning Board Records, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5003). The justification for the rule is that the adoption of the rule will provide greater clarity with respect to charges made for copies by the agency. The rule sets all copying costs according to General Services Commission guidelines. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511948 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.591.8 The Structural Pest Control Board adopts an amendment to sec.591.8, concerning Board acceptance of Documents, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5004). The justification of the rule will be to provide better records of when documents were received by the Board. The rule clarifies that a date stamp is used on documents. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511949 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.591.9 The Structural Pest Control Board adopts an amendment to sec.591.9, concerning Board hearings, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5004). The justification for the rule anticipated as a result of enforcing the rule will be a greater consistency among judges in how administrative hearings for the Structural Pest Control Board are conducted. The rule will function in that the amendment establishes procedures for contested case hearings before the State Office of Administrative Hearings. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511950 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 Chapter 593. Licenses 22 TAC sec.593.5 The Structural Pest Control Board adopts an amendment to sec.593.5, without changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5130). The justification for the rule will be better verification of experience for those testing to become licensed and enhanced licensing and enforcement of the law in non-English speaking communities. The amendment clarifies the previous experience requirement and allows the Board the ability to test in languages other than English. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Texas Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511951 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 835-4066 22 TAC sec.593.6 The Texas Structural Pest Control Board adopts an amendment to sec.593.6, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5005). The justification for the rule will be reduced cost to licensees in changing locations and reduced effort in making any licensing changes. The amendment deletes the requirement for a fee for address changes and also removes the requirement that old licenses are returned. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Texas Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511952 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: January 1, 1996 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.593.7 The Structural Pest Control Board adopts an amendment to sec.593.7, without changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5130). The justification for the rule will be an easier understanding and increased compliance with technician licensing requirements and increased quality of information on the location of licensees. The amendment deletes the requirement for fees for change of address and technician-apprentice licenses. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Texas Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511953 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: January 1, 1996 Proposal publication date: July 18, 1995 For further information, please call: (512) 835-4066 22 TAC sec.593.8 The Structural Pest Control Board adopts an amendment to sec.593.8, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5006). The justification for the rule will be equal access to hardship decisions for the licensed noncommercial community. The amendment allows noncommercial entities to obtain hardships. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Texas Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511954 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.593.21, sec.593.22 The Structural Pest Control Board adopts the repeal of sec.593.21 and sec.593.22, regarding technician and technician-apprentice licensing requirements, without changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5130). The justification for the rule will be increased understanding and compliance with technician licensing requirements. The rule allows the adoption of entirely new technician licensing requirements. No comments were received regarding adoption of the repeals. The repeals are adopted under Article 35b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511956 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: January 1, 1996 Proposal publication date: July 18, 1995 For further information, please call: (512) 835-4066 22 TAC sec.593.21 The Structural Pest Control Board adopts new sec.593.21, with changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5131). The justification for the rule will be increased understanding and compliance with technician licensing requirements. The new rule streamlines the technician licensing process by eliminating the technician-apprentice license and placing all training record keeping at the place of employment. No comments were received regarding adoption of the new section. The new section is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. sec.593.21. Technician-License Requirements. (a) Definition. An apprentice is a beginning pest control industry employee, who works under the supervision of trained and licensed personnel. (b) Must be at least 16 years of age. (c) Must be able to demonstrate proficiency in reading labels and warnings. (d) Must have an application on file to be an apprentice within ten days of beginning employment. (e) The application shall include the following information: (1) full name; (2) home address; (3) date employment began in licensed activity; (4) social security number; (5) driver's license number; and (6) date of birth. (f) A $36 fee must be included with the application. (g) An apprentice license good for one year from the date employment began will be issued by the Structural Pest Control Board when all of the above requirements are met and processed. (h) Apprentices shall not perform any pest control work without the physical presence of a licensed technician or a certified applicator. Upon completion of the following study and on-the-job training, the apprentice may work alone with at least contact with a certified applicator three days per week. The studies and job training required are as follows: (1) complete at least two hours of classroom training in each of the following subjects: (A) federal and state laws that regulate the industry; (B) recognition of pests and pest damage; (C) pesticide labels and label comprehension; (D) pesticide safety; (E) environmental protection; (F) application equipment and techniques; (G) pesticide formulations and actions; (H) emergency procedures and pesticide cleanup; (I) procedures for immediate reporting of spills and misapplication; (J) basic principles of mathematics, chemistry, toxicology and entomology; (K) non-chemical pest control techniques, including biological, mechanical and prevention techniques; (2) complete 60 hours of verifiable on-the-job training and ten hours of classroom training in each category in which the apprentice is to provide pest control services. The business license holder, certified commercial applicator or the certified noncommercial applicator must certify in the training records of each employee that the apprentice has completed the required training and has demonstrated competency in each category in which he is to provide service; (3) an apprentice shall maintain an apprentice license for a maximum of 12 months. If he has not passed the requirements to become a licensed technician, he may re-apply as an apprentice and complete all training requirements for an apprentice. (i) Apprentice Records. (1) The business licensee or certified noncommercial applicator shall maintain the training records and certification for each apprentice in their files. These are to be kept at least one year after termination of employment. (2) The above records are to be kept on a form prescribed by the Board and shall include, but not limited to the following: (A) date training is received; (B) number of hours of training; (C) subject of training; (D) name of trainer and his/her license number; (E) designation of on-the-job training or classroom training; (F) competency evaluation by the certified applicator. (j) When an apprentice changes employers, the employer who provided the verifiable training shall make the training records available to the apprentice or the new employer upon written request. (k) It is a violation of this section for a business licensee or certified noncommercial applicator to allow an apprentice to perform work in a category in which he has not been properly trained. An apprentice and a technician must have personal contact with certified applicator at least three days per week. (l) An apprentice becomes a licensed technician by: (1) completing an approved technician training course in the General Category at least one time prior to taking the examination; (2) making a passing grade on the technician examination. (A) The examination may be taken as may times as necessary in the 12-month period the employee is holding an apprentice license. (B) The fee for this examination is $30 per category. (C) The Technician Training Manual may be obtained from the Texas Agricultural Extension Service. (D) An individual must pass each category of the examination in which he wishes to become licensed. Re-examination is not necessary if the license is renewed annually. (E) Examination dates and locations are at the discretion of the board. (3) Technicians who were licensed on or before September 1, 1991 must verify that they have completed the Board approved technician training course before September 1, 1996. Failure of a licensed technician to complete the technician training course shall be a violation of this section. (4) Persons making a passing grade and who qualify for a technician license will be issued a license upon issuance of their grades. (m) All testing procedures shall be governed by sec.593.5(c), (3)-(11), (13), and (14) of this title (relating to Examinations) except that an apprentice may retake the examination at any time and will not be tested in the general category. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511955 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: January 1, 1996 Proposal publication date: July 18, 1995 For further information, please call: (512) 835-4066 Chapter 595. Compliance and Enforcement 22 TAC sec.595.2 The Structural Pest Control Board adopts an amendment to sec.595.2, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5006). The justification for the rule will be increased compliance with employee registration standards. The amendment allows the employer ten days to notify the Agency of a new employee and removes the requirement to return old licenses. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511957 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: January 1, 1996 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.595.3 The Structural Pest Control Board adopts an amendment to sec.595.3, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5006). The justification for the rule will be greater understanding and compliance with the technician licensing requirements. The amendment changes terminology to reflect the new technician licensing requirements. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511958 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: January 1, 1996 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.595.7 The Structural Pest Control Board adopts an amendment to sec.595.7, with changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5007). The justification for the rule is the greater understanding of the pest control services provided by the lawn care companies. The amendment creates a new consumer information sheet for use by licenses in the lawn and ornamental and weed categories. A comment was received that the sheet should emphasize non-chemical management techniques. The Chemical Connection submitted comments in favor of the amendment. The Reduced Impact Pest Control service sheets provide more emphasis in this area. The intent of the general information sheet is to provide more generic information. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. sec.595.7. Consumer Information Sheet. (a)-(d) (No change.) (e) Licensees holding the lawn and ornamental or weed categories may use the following text in place of that required in sec.595.7(c): CONSUMER INFORMATION SHEET (REQUIRED BY THE TEXAS STRUCTURAL PEST CONTROL BOARD) Pesticides must be registered with the United States Environmental Protection Agency and the Texas Department of Agriculture before they may be used in Texas. EPA registration is not a finding of product safety. Pesticides are designed to control or repel pests. Your risk of harm depends upon the degree of your exposure to a particular pesticide and your individual susceptibility. Specific health and safety information varies between pesticides and types of exposures and is available on the label information or MSDS sheet (usually only refers to the undiluted products) which can be supplied to you upon request from the licensed applicator. Take normal precautions when a treatment has been performed. Pesticides may be harmful if swallowed, inhaled, or absorbed through the skin. Avoid breathing dust or spray mist and any unnecessary contact with treated surfaces. If you desire specific information on precautions, refer to the pesticide label. The law requires that the application procedures specified on the label be followed. In order to minimize the reliance on pesticides and reduce pest populations, you may wish to consider Integrated Pest Management (IPM). IPM methods to control pests (including weeds) take advantage of all pest management options, including but not limited to the judicious use of pesticides and non-chemical methods. An IPM program is one designed to create a healthy lawn and/or landscape with sufficient plant strength and density to survive weed, insect, and disease attacks with minimum pesticide use. An IPM program must consider your lawn or landscape's specific needs and overall condition. An IPM program requires the support of proper cultural practices. IPM uses the best mix of techniques, which can include cultural methods, the use of beneficial insects, biological and discreet use of control products. Your lawn and landscape operator may offer these services upon request. A proper inspection should provide the necessary information to choose the method of pest control which best suits your situation. If you have questions about the applications, contact the certified applicator. If you suspect a violation of the law regarding structural pest control, contact the Structural Pest Control Board. The structural pest control industry is regulated by the Structural Pest Control Board located at 9101 FM 1325, Suite 201, Austin, Texas 78758. The Board licenses the businesses, certified applicator and technicians who perform structural pest control work, including lawn and landscape. If a commercial service is used, all work is supervised by a licensed certified commercial applicator. Otherwise a certified noncommercial applicator must perform the service. Certified applicators and technicians must pass a written examination in order to receive their licenses. If you are contracting for pest control services due to a home solicitation, you have the right to cancel the contract within 72 hours. You may exercise this right by notifying the pest control company, prior to receiving service, that you do not wish to receive their service. For general information on the chemical or health properties of pesticides, you may contact the National Pesticide Telecommunications Network at 1 (800) 858-7378. This hotline is a national service supported by funding from the U.S. Environmental Protection Agency. For information concerning structural pest control laws, contact the Structural Pest Control Board at (512) 835-4066. For information concerning the formulation and registration of pesticides, contact the Texas Department of Agriculture at (512) 463-7476. For non-emergency health information relating to pesticides, contact the Texas Department of Health at (512) 458-7111. In case of a health emergency, seek immediate medical attention. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511959 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.595.14 The Structural Pest Control Board adopts an amendment to sec.595.14, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5007). The justification for the rule will be a greater understanding of the services provided by a reduced impact lawn care service. The amendment will allow licensees in the lawn and ornamental categories to use a specialized Reduced Impact Pest Control Service Consumer Information Sheet. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511960 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 Chapter 599. Treatment Standards 22 TAC sec.599.2 The Structural Pest Control Board adopts an amendment to sec.599.2, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5008). The justification for the rule will be the ability to use termiticide baits in Texas as this technology does not conform to conventional treatment standards. The amendment exempts termiticide baits from the termite treatment standards. A comment was received that the termite treatment standards should not be relaxed. The Chemical Connection submitted comments against the rule. The termite treatment standards were intended to address the application of liquid termiticides. They do not apply to the new bait technology as they are written. Based upon practical experience, standards may eventually need to be written for baits. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511961 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.599.3 The Structural Pest Control Board adopts an amendment to sec.599.3, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5009). The justification for the rule will be the ability to use termiticide baits in Texas as this technology does not conform to conventional treatment standards. The amendment exempts termiticide baits from the termite treatment standards. A comment was received that the termite treatment standards should not be relaxed. The Chemical Connection submitted comments against the rule. The termite treatment standards were intended to address the application of liquid termiticides. They do not apply to the new bait technology as they are written. Based upon practical experience, standards may eventually need to be written for baits. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511962 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 835-4066 22 TAC sec.599.4 The Structural Pest Control Board adopts an amendment to sec.599.4, without changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5132). The justification for the rule will be greater compliance with the disclosure requirements and consistency with the Texas Official Wood Destroying Insect Report. The amendment removes references to damage to be consistent with the new wood destroying insect report and reflects when treatment definitions should begin. A comment opposed removing the reference to damage because it is a conducive condition. The Chemical Connection submitted comments against the rule. The regulations already require that all conducive conditions and evidence of infestation are to be identified. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511963 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 835-4066 22 TAC sec.599.5 The Structural Pest Control Board adopts an amendment to sec.599.5, without changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5133). The justification for the rule will be consistency in all inspection procedures. The amendment eliminates references to damage. A comment opposed removing the reference to damage because it is a conducive condition. The Chemical Connection submitted comments against the rule. The regulations already require that all conducive conditions and evidence of infestation are to be identified. The amendment is adopted under Article 135b-6, which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511964 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: October 10, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 835-4066 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 5. Grants and Contracts The Texas Department of Health (department) adopts the repeal of existing sec.5.51 and adopts new sec.5.51, concerning the Poison Control Coordinating Committee (committee) in Texas, without changes to the proposed text as published in the June 23, 1995, issue of the Texas Register (20 TexReg 4533). The new section will result in better information and advice provided to the department, the Texas Board of Health, and the Advisory Commission of State Emergency Communications (commission) on the issues relating to the operation of poison control centers in Texas. The role of the committee is specifically outlined in the new section which was necessary to implement Texas Civil Statutes, Article 6252-33, relating to state agency advisory committees. The following comment was received regarding the proposed sections. The department responded accordingly. COMMENT: Concerning sec.5.51(g), the review of the committee should begin before November, 1999 and there should be annual reviews of the committee to be conducted by November 1 in 1996, 1997, and 1998. RESPONSE: The department disagrees and feels that the review of the committee by November 1, 1999, will adequately serve the needs of the department and commission. No changes were made as a result of the comment. The commenter was the Advisory Commission on State Emergency Communications who was generally in favor of the section, but requested a change to a subsection of the section as described in the preceding comment. Contracts for Regional Poison Control Centers 25 TAC sec.5.51 The repeal is adopted under the Health and Safety Code, sec.777.008, which provides for the creation of the Poison Control Coordinating Committee; and Health and Safety Code, sec.11.016, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon 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 legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511926 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 9, 1995 Proposal publication date: June 23, 1995 For further information, please call: (512) 458-7236 The new section is adopted under the Health and Safety Code, sec.777.008, which provides for the creation of the Poison Control Coordinating Committee; and Health and Safety Code, sec.11.016, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon 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 legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511927 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 9, 1995 Proposal publication date: June 23, 1995 For further information, please call: (512) 458-7236 Chapter 241. Shellfish Sanitation Molluscan Shellfish 25 TAC sec.sec.241.50, 241.51, 241.53, 241.55-241.57, 241.59, 241. 63, 241.65- 241.67, 241.69, 241.73-241.77, 241.79-241.88, 241.99, 241.100 The Texas Department of Health (department) adopts amendments to the existing sec.sec.241.50, 241.51, 241.53, 241.55-241.57, 241.59, 241.63, 241.65-241. 67, 241.69, 241.73-241.77, 241.79-241.88, 241.99, and 241.100, concerning Texas molluscan shellfish. Sections 241.50, 241.51, 241.53, 241.55-241.57, 241. 63, 241.67, 241.73-241.75, 241.79, and 241.82 are adopted with changes to the proposed text as published in the May 9, 1995, issue of the Texas Register (20 TexReg 3429). Sections 241.59, 241.65, 241.66, 241.69, 241.76, 241.77, 241.80, 241.81, 241.83-241.88, 241.99, and 241.100 are adopted without changes and will not be republished. The amendments update and clarify the existing rules and implement the requirements and guidelines established in the 1993 National Shellfish Sanitation Program Manual of Operations, Parts I and II, published by the Interstate Shellfish Sanitation Conference and the United States Food and Drug Administration. The amendments establish definitions and standards for the classification of molluscan shellfish growing areas and the harvesting, processing, and distribution of molluscan shellfish, as well as, new certification and enforcement procedures. The amendments also clarify retail and food service establishment requirements of record keeping related to molluscan shellfish. These amendments will assure that molluscan shellfish processed in or imported into Texas will be free of disease or other health hazards transmissible by these products. Ten individuals made comments concerning the proposed amendments. A summary of comments and the department's responses to the comments follows. COMMENT: Concerning sec.241.50, one commenter observed that the definition for wet storage operator uses the term "shipper" which is not defined and should be clarified. RESPONSE: The department agrees and has changed the wording to "certified dealer" which is defined. COMMENT: Concerning sec.241.53(e), one commenter stated that each applicant should have to submit an example of their proposed record keeping system to insure that adequate records will exist in the event of an illness investigation or audit of fee submissions. RESPONSE: The department agrees and appropriate changes have been made to this section. COMMENT: Concerning sec.241.53(f), one commenter stated that the SELL BY date is strictly consumer information. No regulatory action is taken based on this date. Therefore, the department has no reason to establish a specific procedure for determining the date. However, the department does have a need to know the procedure used by each certified dealer to assure identification of the correct harvest date during illness investigations. Allowance should be made to each shucker-packer or repacker to establish his/her own procedure, but require a copy of the procedure to be submitted prior to certification. RESPONSE: The department agrees and appropriate changes have been made to this section. COMMENT: Concerning sec.241.55(a)(15), one commenter stated that the proposed language allowing shipments of shellstock to be placed directly on the channelized floor bed of transport trailers does not provide sufficient clearance from contamination and that pallets should be required as presently stated in the sections. RESPONSE: The department agrees and has deleted the proposed language from this section. COMMENT: Concerning sec.241.55(b)(2), one commenter stated that "safe sources" is not defined and therefore unclear what sources would be allowed. RESPONSE: Although this section was not initially opened for comment, the department in its review discovered that this section must be changed to be consistent with sec.241.63. Therefore, the appropriate changes have been made to this section, including the use of the term "potable water" which is defined. COMMENT: Concerning sec.241.55(c)(2), one commenter stated that a standard measure should be adopted and required for use by harvesters and certified dealers for shellstock sacks to insure that appropriate fees are paid. RESPONSE: The department agrees and appropriate changes have been made to this section. COMMENT: Concerning sec.241.55(c)(2), one commenter stated that this new paragraph should also require each dealer who has a history of not paying the Oyster Sales Fee on time or any out-of-state resident who applies for certification to post a bond ($5,000 or $10,000 was suggested) to guarantee payment of the fee. RESPONSE: The department agrees with the intent, but does not have statutory authority to require posting of bonds. Therefore, no changes have been made to implement this comment. COMMENT: Concerning sec.241.56(a)(6), one commenter stated that shellstock identification should not be denied to an inquiring consumer. RESPONSE: The department agrees and appropriate changes have been made to this section. COMMENT: Concerning sec.241.57(g) and sec.241.73(a), one commenter stated that the term "delivery window" was not clear as to what kind of window or how it must operate. RESPONSE: The department agrees and has changed the wording to delivery "opening" in these sections since there was no public health justification for a window or any type of closure. COMMENT: Concerning sec.241.63, one commenter stated that there should be properly trained, authorized agents to inspect and approve water supplies and sewer systems. Sampling of each water supply should be required at least once per year, with private water supplies required to be sampled once each month. RESPONSE: The department disagrees with the necessity to train agents, rather, that some of the compliance requirements of this section are unnecessary and duplicative of the Texas Natural Resources Conservation Commission statutes and regulations concerning potable water supply and sewage disposal. Therefore, the existing language in subsections (a) and (d)-(q) has been deleted. Subsection (a) has new language. Existing subsections (b) and (c) had no changes. Existing subsection (r) has been renumbered to now be subsection (d). COMMENT: Concerning sec.241.67(a), during the review process, the department determined that a sentence in the definitions was more appropriate as a regulatory requirement. RESPONSE: The department moved the sentence from the definitions to the appropriate section. COMMENT: Concerning sec.241.67(d), the department determined that as a result of relettering of the appendices in the National Shellfish Sanitation Program Manual, Part II, the Shellfish Industry Equipment Construction Guide has been changed from Appendix B to Appendix A. RESPONSE: The department made the necessary change to be in compliance with the manual. COMMENT: Concerning sec.241.74(c), during review the staff observed that this section must be editorially changed to be in agreement with sec.241.53(f) of this title. RESPONSE: The department agrees and appropriate changes have been made to this section. COMMENT: Concerning sec.241.74(e), one commenter stated that the requirements for labeling of frozen shellfish were too restrictive and some problems have been observed when containers were labeled after freezing. Proposed language was submitted along with a statement that product to be frozen should be so marked prior to freezing so marking would be more likely to adhere. RESPONSE: The department agrees with both comments and believes that the regulations can be relaxed without creating any hazard to public health. Therefore, appropriate changes have been made to this section. COMMENT: Concerning sec.241.81(c), one commenter stated that the education requirements should include molluscan shellfish specific training, and specific training should be made available at the wholesale and retail level as well. RESPONSE: The department agrees and will pursue this within funding availability. No changes were made to this section at this time. Editorial changes were made for clarification or consistency purposes. All of the commenters were individuals. The commenters were generally in favor of the rules; however, they expressed concerns and questions relating to the changes. The amendments are adopted under Texas Codes Annotated, Parks and Wildlife Code, sec.76.203, which authorizes the Texas Board of Health to adopt rules concerning the regulation of Texas molluscan shellfish; and the Health and Safety Code, sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health. sec.241.50. Definitions. The following words and terms, when used in these sections, shall have the following meaning, unless the context clearly indicates otherwise. Approved-Acceptable to the commissioner of health and the Seafood Safety Division. Approved area-A molluscan shellfish growing area determined to be acceptable for harvesting of molluscan shellfish for direct marketing according to the National Shellfish Sanitation Program. Approved source -A source of molluscan shellfish acceptable to the commissioner of health. Certificate of compliance (certificate)-A numbered document issued by the Seafood Safety Division which authorizes a certified dealer to process shellfish for sale. Certification-The issuing by the Seafood Safety Division of a numbered document to operate that indicates compliance with these sections. Certification number -The number assigned by the Seafood Safety Division to each certified shellfish dealer. It consists of a one to five-digit number preceded by the two-letter state abbreviation and followed by the two-letter symbol designating the type of operation certified. Certified dealer -A certified depuration processor, repacker, shellstock shipper, or shucker/packer who has complied with all regulations established by the Seafood Safety Division and has obtained a certificate. A certified dealer may be an individual, partnership, corporation, association, or other legal entity. Certified location -A plant or place of business which has been inspected by the Seafood Safety Division and for which a Shellfish Certificate of Compliance has been issued. Classes of shippers -The classes of shippers are as follows: (A) Depuration processor (DP)-A certified dealer who receives shellstock from areas designated by the Texas Department of Health and submits such shellstock to an approved controlled purification process. A depuration processor may not conduct a shellfish purification operation in a building or facility in which shellfish are being stored or handled for other purposes, unless the purification operation, including receiving, storage, packing and distribution areas, is entirely separated from other operations by physical barriers with no connecting openings. (B) Repacker (RP)-A certified dealer other than the original certified shucker/packer who repacks shucked shellfish into other containers. A repacker may also repack and ship shellstock. A repacker shall not shuck shellfish. (C) Shellstock shipper (SS)-A certified dealer who grows, harvests, buys, or repacks and sells shellstock. A shellstock shipper is not authorized to shuck shellfish nor to repack shucked shellfish. A shellstock shipper may ship properly packed and labeled shucked shellfish. (D) Shucker/packer (SP)-A certified dealer who shucks and packs shellfish. A shucker/packer may act as a shellstock shipper or repack shellfish originating from other certified dealers. Closed area-A shellfish growing area where the harvesting of shellfish is temporarily or permanently not permitted. A closed area status is or may be placed on any of the five classified area designations as established in the National Shellfish Sanitation Program Manual of Operations as follows: approved; conditionally approved; restricted; conditionally restricted; or prohibited. Conditionally approved area-The classification of a shellfish growing area determined by the Seafood Safety Division to meet approved area criteria for a predictable period. The period is conditional upon established performance standards specified in a management plan. A conditionally approved area is a closed area when the area does not meet the approved growing area criteria. Conditionally restricted area-The classification of a shellfish growing area determined by the Seafood Safety Division to meet restricted area criteria for a predictable period. The period is conditional upon established performance standards specified in a management plan. The conditionally restricted area shall be open for transplanting or gathering for depuration only during the times it meets restricted area criteria and is so specified by the Texas Department of Health. A conditionally restricted area is a closed area at all times for harvesting of molluscan shellfish for direct marketing. Critical violation -A condition or practice which creates an imminent hazard to public health. Depuration plant -A place where depuration of molluscan shellfish occurs. Durable material -Material with the ability to exist for several years without significant deterioration and able to withstand normal daily use associated with molluscan shellfish operations. Food contact surfaces-Those surfaces with which shucked shellfish come in contact and those surfaces from which drainage onto surfaces that come in contact with shucked shellfish ordinarily occurs during the normal course of operations. Food contact surfaces includes utensils and food contact surfaces of equipment. Food service establishment-Any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off the premises and regardless of whether there is a charge for the food. The term includes delicatessens that offer prepared food in individual service portions. The term does not include private homes where food is prepared or served for individual family consumption, retail food stores, the location of vending machines, and supply vehicles. Harvest-The removal of shellstock from growing waters and placement on or in a manmade conveyance or other means of transport. Key violation-A violation as defined in sec.241.53(p) of this title (relating to Certification and Enforcement Procedures) as Severity Level III and IV. Label-Written, printed, or graphic matter appearing on a container of molluscan shellfish including any written, printed, or graphic matter on any wrappers or accompanying any molluscan shellfish. Open area-A molluscan shellfish growing area where harvesting for sale, harvesting for transplant, or gathering for depuration of molluscan shellfish is permitted. An open area status may be placed on any one of the classified area designations established by the National Shellfish Sanitation Program except for a prohibited area. Other violation -A condition or practice that is not in accordance with NSSP Manual requirements, but is not a key or critical violation. Potable water-A public or private water source which is safe and suitable for drinking by humans. Processor-A certified dealer who depurates, shucks, packs, or repacks shellfish. Prohibited area -The classification of a shellfish growing area determined by the Seafood Safety Division to be unacceptable for the transplanting, gathering for depuration, or harvesting of shellfish. The only shellfish removal permitted from a prohibited area is for the purpose of depletion, as defined in the Control of Harvesting Section of Part I of the NSSP. Restricted area -The classification of a shellfish growing area determined by the Seafood Safety Division to be unacceptable for harvesting of shellfish for direct marketing, but which is acceptable for transplanting or gathering for depuration. A restricted area may be closed for transplanting or gathering for depuration when the Seafood Safety Division determines that the area does not meet the restricted area criteria established in the NSSP. Retail food store-Any establishment or section of an establishment where food and food products are offered to the consumer and intended for off-premises consumption. The term includes delicatessens that offer prepared food in bulk quantities only. The term does not include establishments which handle only prepackaged, nonpotentially hazardous foods; roadside markets that offer only fresh fruits and fresh vegetables for sale; food service establishments; farmers markets; or food and beverage vending machines as defined in the Vending of Food and Beverages, 1978, Department of Health, Education, and Welfare Publication Number (FDA) 78-2091. Retail Foods Division (RFD)-The division of the Texas Department of Health to which responsibility to regulate foods which are sold, offered for sale, or held for sale in food service establishments and retail food stores is delegated. Seafood Safety Division (SSD)-The division of the Texas Department of Health to which responsibility to classify shellfish growing waters, to issue certificates for the interstate shipment of shellfish, and to regulate harvesting, processing, and shipping of shellfish is delegated, in accordance with the National Shellfish Sanitation Program Manual of Operations, Part I and II. Sewage-Refuse liquids or waste matter carried off by sewers. Sewer-An artificial, usually subterranean, conduit to carry off sewage and sometimes surface water. Sewerage-The removal and disposal of sewage and surface water by sewers. Shellfish-All edible species of molluscan shellfish, such as oysters, clams, and mussels either shucked, in the shell, fresh or fresh frozen, whole or in part, as defined in the NSSP. Shellstock-Molluscan shellfish in the shell. Take-To catch, hook, net, snare, trap, kill, or capture by any means, including the attempt to take. Water closet-A toilet bowl and its accessories surrounded by walls or partitions. Wet storage operator-A certified dealer who purchases or harvests shellstock from areas meeting approved growing area criteria and holds such shellfish in water from an approved water supply. sec.241.51. Growing Area Classification. (a) Shellfish growing areas shall be classified in compliance with the guidelines established in the National Shellfish Sanitation Program (NSSP) Manual of Operations, Part I. Copies of the NSSP Manuals may be obtained from the Seafood Safety Division of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78701, or from the United States Food and Drug Administration, Office of Seafood, 200 'C' Street SW, Washington, D.C. 20204. (b) Approved harvesting areas are those areas specifically approved by the Texas Department of Health (TDH) as meeting the growing area criteria established in the NSSP for approved areas under all conditions except unusual situations. Approved area classifications shall be established as the result of a sanitary survey. Shellfish may be taken from such areas for direct marketing. An approved classified growing area may be temporarily made a closed area when a public health emergency such as a hurricane or flooding is declared. (c) Conditionally approved areas are those areas meeting the criteria for an approved area except when certain conditions occur. These conditions must be predictable and must occur with a frequency which will result in the area being acceptable for harvesting for a period of time which will justify the additional monitoring required. The conditions must be outlined in a management plan which provides for monitoring and establishes the specific trigger points that result in closing the area to harvesting. When the conditions occur that result in the need for closing the area it shall be closed until verification by TDH that conditions have returned to normal and the shellfish from the area are again safe for direct market harvesting. The time the area is closed shall include a cleansing time for the shellfish after conditions have returned to normal and, in the judgement of the Seafood Safety Division (SSD), shellfish feeding activity has resumed. Shellfish may be harvested for direct marketing only during the time the area is not closed. Shellfish may be transplanted or gathered for depuration only in accordance with these sections and the permitting requirements of the Texas Parks and Wildlife Department (TPWD) established in 31 TAC sec.57.231 (concerning Transplant Permits) and 31 TAC sec.57.232 (concerning Harvest Permits). Shellfish may not be harvested or gathered from these areas when they are closed without subjecting them to transplanting or controlled purification. (d) Restricted areas are those areas that a sanitary survey indicate a limited degree of pollution. Shellfish in these areas may not be harvested for direct marketing. Shellfish may be transplanted or gathered for depuration only in accordance with these sections and the permitting requirements of the Texas Parks and Wildlife Department (TPWD) established in 31 TAC sec.57.231 and 31 TAC sec.57.232. Shellfish may not be harvested or gathered from these areas when they are closed. Shellfish from these areas must be subjected to additional cleansing prior to marketing. (e) Prohibited areas are growing areas where there is no current sanitary survey or where the sanitary survey or other monitoring program data indicate that fecal material, pathogenic microorganisms, poisonous or deleterious substances, marine toxins, or radionuclides may reach this area in excessive concentrations. Areas that have not been surveyed shall be classified as prohibited. The taking of shellfish for any human food purposes from such areas is prohibited. (f) The authority provided to the commissioner of health by the Health and Safety Code, sec.436.101 has been delegated to the bureau chief of the Bureau of Food and Drug Safety under the provisions of the Health and Safety Code, sec.436.003(a). The bureau chief shall: (1) designate coastal water as defined in the rules of the Texas Parks and Wildlife Commission and according to the classification categories in the current National Shellfish Sanitation Program Manual of Operations or its successor, as: (A) an approved area; (B) a conditionally approved area; (C) a restricted area; (D) a conditionally restricted area; or (E) a prohibited area; and (2) designate growing areas as closed areas or open areas. sec.241.53. Certification and Enforcement Procedures. (a) (No change.) (b) Prior to beginning construction of a new shellfish plant, or major remodeling of an existing shellfish plant (which includes, but is not limited to: any process new to that particular plant; any change of product flow; or any enlarging of the plant structure) complete, legible plans showing the floor plan of the building, with dimensions drawn to scale, location of equipment, doors, floor drains, etc., and written, complete operational procedures for all phases of the activity, including flow of the product, shall be submitted to the TDH's Seafood Safety Division (SSD) for review and approval. Additional plans of the entire premises may be required showing all structures, as well as, all water wells and septic systems with related distances and a statement of specifications as to type, sizes, design, date installed, etc. Plans shall be submitted no less than 30 days prior to initiating a new process or beginning construction. No operations shall be conducted while any inside plant construction or any other construction which has the potential to contaminate the product is occurring. A legibly written or typed application on forms provided by the TDH must be filed with the SSD before gathering, harvesting for market, or operation of the plant begins each fiscal year. (c) The application for all types of certificates must be accompanied by a letter from the appropriate state agency or authorized agent or designated representative, which states that the water supply is potable and the sewage disposal system is properly working. (1) For new construction, where the letter cannot be submitted with the application, it must be submitted after the water supply connection is made and the sewage system is installed or the connection to an existing sewage system is made, the water supply and sewage system are inspected, and before the certificate will be issued. (2) For certified locations where the shellfish activities are of a continuing nature, a letter concerning a public water supply and/or public sewage system shall be acceptable for a period not to exceed five years from the date of the letter. (3) For certified locations where the shellfish activities are of a continuing nature, a letter concerning a private water supply and/or private sewage system shall be acceptable for a period not to exceed three years from the date of the letter. (4) A copy of the original letter may be submitted with the new application required each year. (5) If changes in activities increase the demand for water supply or the loading on the sewage system, if any construction or maintenance is required on the water supply or the sewage system, or if any problems are observed or detected with the water supply or the sewage system, a new letter will be required. (d) The application for all types of certificates must be accompanied by acceptable sample results from at least one water sample from the water supply collected during the thirty day period immediately prior to the date on the application. (e) The application for all types of certificates must be accompanied by an example of the record keeping system to be used by the applicant at the location listed in the application. (f) The application for a Shucker-Packer or Repacker certificate must be accompanied by a written statement of the procedure the applicant will use to determine the SELL BY date for shellfish packed and shipped from the location listed in the application. (g) A certificate of compliance and unique number shall be issued by the commissioner only after an inspection of the plant by an authorized agent has revealed that the plant and practices are in compliance with these sections. A certificate of compliance and unique number shall be issued to a certified dealer for each location at which shellfish operations are to be conducted and a certificate is required. (h) The inspection of a previously certified plant which has exhibited operational problems or violations of operational requirements of these sections or had a certificate of compliance revoked shall not be conducted until written, complete operational procedures for all phases of the activity, including flow of the product, are submitted to the SSD for review and approval. An application may be rejected and a certificate of compliance denied based on a history of failure to comply with the requirements of these sections. (i) Shellfish operations by the certified dealer shall not begin until the commissioner has issued the Shellfish Certificate of Compliance for that location. Each certificate of compliance shall expire automatically at 11:59 p. m. the 31st day of August following the date of issue. Certificates of compliance shall not be transferable. (j) After a certificate of compliance is issued, unannounced inspections shall be conducted at any time the SSD has reason to believe the business may be in operation or that shellfish may be stored on the premises and at such frequency as may be necessary to assure that adequate operational and sanitary conditions are maintained. All shellfish at a certified location shall be considered the responsibility of the certified dealer at that location, for the purposes of this undesignated head. A copy of the completed inspection form listing written descriptions of the violations observed along with any necessary explanation shall be provided by an authorized agent of TDH to the most responsible individual present at the firm at the conclusion of the inspection. Any violations of the same requirement found on a consecutive inspection may result in certificate suspension in accordance with subsection (k) of this section. Shellfish inspections and the SSD forms shall comply with the requirements established in the current National Shellfish Sanitation Program (NSSP) Manual of Operations. (1) When a routine inspection detects a critical violation, the violation shall be corrected during that inspection or the plant must cease production affected by the violation. If production affected by the violation does not voluntarily cease, all product produced while the violation exists shall be detained. If the critical violation is not corrected within the specified time, the SSD shall immediately begin actions to suspend dealer certification. (2) When a routine inspection detects four or more key item violations, a follow-up inspection shall be conducted as soon as possible, but within 30 days. The follow-up inspection shall determine if the violations have been corrected or are being corrected in accordance with the scheduled correction dates noted on the previous inspection report. When the follow-up inspection of the key item violations indicates a failure to comply with the correction schedule, the SSD shall immediately begin actions to suspend dealer certification. (3) When a routine inspection detects other item violations or three or less key item violations, the deficiencies shall be corrected prior to the next routine inspection. When the next routine inspection indicates a failure to correct the violations, the SSD may begin actions to suspend the dealer certification. (k) The SSD may initiate procedures to suspend or revoke a certificate of compliance as follows. (1) The procedures shall be in accordance with the Texas Health and Safety Code, sec.436.114 and the provisions of the Administrative Procedure Act, Chapter 2001, Government Code, and TDH formal hearing procedures in Chapter 1 of this title (relating to the Board of Health). (2) The grounds for suspension or revocation shall be either one of the following: (A) inspection results indicate unsatisfactory conditions in the plant or the existence of a public health hazard; or (B) the certificate holder or representative refuses to allow an inspection or otherwise interferes with the authorized TDH agent in the performance of his or her duties. (l) A certified dealer whose certificate has been suspended may not process any molluscan shellfish for a period determined by the commissioner, not to exceed 60 days after the date of signing of the final order of suspension. (m) A certified dealer whose certificate has been suspended may not process any shellfish until the SSD is satisfied that all necessary corrections have been made. A suspension will not be rescinded until an inspection establishes that the firm has corrected all violations which resulted in the suspension and is in full compliance with all applicable criteria of these sections. (n) A certificate may be revoked for any of the reasons outlined in subsection (k) of this section or for either of the following: if the violations initiating a suspension fail to be corrected within the time frame established, or if a history of repeated suspensions exists. A certified dealer whose certificate has been revoked shall not apply for a new certificate for 180 days or before the next certification period, whichever is longer, after the date of signing of the final order of revocation. When the TDH contemplates suspension or revocation, the certificate holder shall be afforded the opportunity for a hearing. Notice of the contemplated action shall be given to the certificate holder by personal service or certified mail, return receipt requested. If no request for a hearing is received by the director, within 14 days of personal service or the date of receipt, the TDH may proceed to take the action set out in the notice. (o) When the TDH determines that monetary penalties are appropriate, proposals for assessment of and hearings on administrative penalties shall be made in accordance with the Texas Health and Safety Code, sec.436.034; the Administrative Procedure Act; Government Code, Chapter 2001; and the TDH formal hearing procedures in Chapter 1 of this title. (p) The seriousness of violations shall be categorized by one of the following severity levels. The examples following the severity levels are neither exhaustive nor controlling. They reflect only the seriousness of the violation and not the intent of the violator, the history of the violator, the amount necessary to deter future violations, or efforts to correct the violation. (1) Severity Level I-violations that are of minor public health significance. The following are examples of severity level I violations (other) : (A) failure to keep premises clean and have adequate drainage; (B) failure to clean and maintain floors, walls, or ceilings; (C) failure to provide adequate and properly shielded lighting; (D) failure to post hand washing signs at hand washing stations; (E) failure to provide blower air intake with approved filter; (F) failure to prohibit use of "dip" buckets to rinse hands or knifes; (G) failure to use returnable containers only within the plant; and (H) failure to restrict shuckers from the packing room and all unauthorized persons from processing areas when operating. (2) Severity Level II-violations that are of more than minor significance, or if left uncorrected, could result in more serious violations. The following are examples of severity level II violations (other): (A) failure to provide or use storage for employee clothing or personal articles; (B) failure to have clean, maintained, adequately drained floor; (C) failure to provide adequate heating, cooling, and ventilation; (D) failure to provide adequate quantity of water to facility; (E) failure to provide hand washing stations with soap, sanitary towels, and/or waste receptacles with proper lids; (F) failure to properly construct, locate, maintain, and/or keep clean all non-food contact surfaces; (G) failure to provide detergents, approved sanitizers, brushes, and/or test kit to properly clean and sanitize the facility; (H) failure to properly store and/or keep clean single service containers; (I) failure to maintain frozen shellfish at 0 degrees Fahrenheit or less; (J) failure to require employees to wear clean outer garments, impermeable gloves/finger cots; to store items properly; to wear proper hair restraints, (K) failure to promptly remove spent shells or other accumulation; and (L) failure to meet code and/or install water disposal correctly or have adequate drainage where operations discharge water. (3) Severity Level III-violations that are significant and which, if not corrected, could threaten public health. The following are examples of severity level III violations (key): (A) failure to exclude insects, rodents, vermin, or any other animals; (B) failure to provide hot and cold water at each sink or lavatory; (C) failure to protect plumbing from backflow, backsiphonage, and/or cross contamination, (D) failure to have toilets clean, repaired, or have self-closing doors; (E) failure to properly use, store, separate, and/or label poisonous/toxic materials; (F) failure to properly construct, locate, clean, and/or maintain food contact surfaces; (G) failure to provide a temperature measuring device in each refrigeration unit; (H) failure to wash shellstock reasonably free of bottom sediments and detritus as soon after harvesting as feasible; (I) failure to wash/sanitize employees hands and/or exhibit good hygienic practices; (J) failure to restrict any personnel with infections from participating in shellfish operations; and (K) failure to maintain complete and accurate records. (4) Severity Level IV-violations that have a significant adverse impact on public health. The following are examples of severity level IV violations (key) : (A) failure to separate operations by partition, space, or time; (B) failure to provide adequate refrigeration units; (C) failure to clean and sanitize food contact surfaces effectively and within required time frame; (D) failure to label shellstock or properly complete label; (E) failure to protect shellstock from contamination; (F) failure to pack into containers with a valid certificate number for that location; comply with label requirements; to use proper date; (G) failure to promptly shuck, pack, and protect shellfish; and (H) failure to have responsible, effective, or designated person as supervisor. (5) Severity Level V-violations that are most significant and create an imminent hazard to public health. The following are examples of severity level V violations (critical): (A) failure to cease operations when location/plant is flooded; (B) failure to protect the water supply from contamination; (C) failure to install sewage disposal system properly; maintain it to meet code; be adequate; (D) failure to process shellfish from an approved source; (E) failure to maintain shellstock at the proper temperature; (F) failure to obtain approval for wet storage operation; (G) failure to keep product from becoming contaminated; (H) failure to cool packed product to 45 degrees Fahrenheit within two hours of delivery to the packing room; (I) failure to maintain packed product at 45 degrees Fahrenheit or less during storage, repacking, or to be covered in ice; and (J) failure to provide sanitary ice and/or properly protect it. (q) The TDH may impose differing levels of penalties for different severity level violations and different persons. (1) Administrative penalties shall be imposed for Severity Level III, IV and V violations. Administrative penalties shall be considered for Severity Level I and II violations when they are combined with those of higher severity level(s) or for repeated violations which could have been prevented by corrective action and for which the certified dealer did not take effective corrective action. (2) Tables IA and IB in this paragraph show the base administrative penalties. Figure 1: 25 TAC sec.241.53(q)(2) (3) Adjustments to the values in Tables IA and IB in paragraph (2) of this subsection may be made for the presence or absence of the following factors: (A) prompt identification and reporting; (B) corrective action to prevent recurrence; (C) compliance history; (D) prior notice of similar event; and (E) multiple occurrences. (4) The penalty may be in an amount not to exceed $25, 000 a day for each violation for a person who violates the Health and Safety Code or a rule or an order. Each day a violation continues may be considered a separate violation for purposes of penalty assessment. (r) The TDH may offer a certificate holder the opportunity to attend a settlement conference to discuss with the TDH, or a division thereof, methods and schedules for correcting the violation(s) or to show compliance with applicable provisions of the Health and Safety Code, the rules, certificate conditions, and any orders of the TDH issued thereunder, or discuss both such topics. The Office of General Counsel may conduct settlement negotiations. (s) Notices of any settlement conference shall be sent by personal service or certified mail, return receipt requested. A settlement conference is not a prerequisite for the action to be taken under subsections (o), (p), or (q) of this section. (t) By acceptance of a certificate, the holder agrees to save, hold harmless, and indemnify the State of Texas, TDH, and its employees against any and all liability, claims or losses for property damage or personal injury which result in whole or in part from the certificate holder's activities. The State of Texas shall not be held liable for financial losses incurred by the shellfish transplanters, gatherers, harvesters, plant supervisors, or plant owners due to failure of shellfish activity, condemnation of shellfish, loss of shellfish, or other reasons. sec.241.55. Harvesting and Handling Shellstock. (a) Boats and trucks. (1)-(7) (No change.) (8) Containers used for storing shellstock shall be clean and fabricated from safe materials. Storage areas shall be constructed of nontoxic durable materials. (9) (No change.) (10) Adequate coverings shall be provided on harvest boats to protect the shellstock from exposure to the sun, birds, and other adverse conditions. Shucking shellstock and packing the product into a container on any boat is illegal. (11) Portions of boats or trucks (decks, storage bins, floor beds, etc.) and all other equipment (shovels, wheelbarrows, rakes, etc.) coming in contact with shellstock during handling or transport from restricted areas to approved areas for relaying shall be thoroughly cleaned and sanitized immediately after unloading before they are used to transport or handle shellfish from approved areas. (12) Commercial harvesters shall be responsible for control of their shellstock until acceptance by a certified dealer. Commercial harvesters shall be required to deliver shellstock to a certified dealer within the day the shellstock is harvested. For this purpose a day shall be considered to be midnight to midnight. Delivery of the shellstock is considered to be the packing of the shellstock into an approved container, the transfer of the shellstock from the boat to the dock, and acceptance of the shellstock by the certified dealer. Commercial harvesters shall sell their shellstock only to a currently certified shellfish dealer. It is illegal for commercial harvesters to sell shellstock directly to the public. (13) Mechanical refrigeration facilities shall be required for purposes of dealer certification at each certified location. Mechanical refrigeration which is mobile shall be immobilized or designated, in writing to the SSD, as the shellfish storage facility. Removal of immobilized or designated refrigeration shall constitute voluntary surrender of certification by the certified dealer for that certified location. Shellstock shall be placed under mechanical refrigeration at air temperatures between 45 degrees Fahrenheit and 35 degrees Fahrenheit within two hours of unloading from the boat. Shellstock shall not be allowed to remain on a dock unrefrigerated for more than two hours. During the period April 1 through October 31, shellstock shall not be harvested before 6:00 a.m. and shall be placed under mechanical refrigeration by 8:00 p.m. each day. Mechanical refrigeration facilities shall be adequate in size and cooling capacity to refrigerate all shellstock on the premises. Each facility shall be equipped with an automatic temperature regulating control (thermostat) and an indicating thermometer installed to accurately measure, within three degrees, the temperature in the warmest location in the storage compartment. (14) (No change.) (15) Trucks used to transport shellstock shall have the storage area constructed of a nontoxic, smooth, impervious material so as to protect the shellfish from contamination and shall be kept clean. Shellstock shall be transported on land by harvesters, certified dealers, or any distributor in mechanically refrigerated trucks that can maintain an air temperature between 45 degrees Fahrenheit and 35 degrees Fahrenheit, shall be palletized and shall be arranged to allow maximum air circulation. Shellstock storage areas shall be similarly constructed. (16) (No change.) (b) Washing of shellstock. (1) (No change.) (2) Water used for washing shellstock shall be obtained from an approved growing area, or from the potable water supply. (c) Shellstock packing and identification. (1) Shellstock packing containers shall be clean and fabricated from safe material. (2) The Oyster Sales Fee is assessed by the Health and Safety Code, sec.436.103, at $1.00 per barrel of oyster shellstock. One barrel shall be equal to three containers (sacks, bushels, or boxes) of oyster shellstock. One container of oyster shellstock shall not weigh more than 100 pounds. Containers in excess of 100 pounds shall be assessed as two containers. (3) A shellfish harvester shall containerize all shellstock and securely affix an approved, durable, waterproof, harvester's tag or label to each container of shellstock prior to delivery to a certified dealer. This tag or label shall remain on the container during transport and storage until the shellstock is processed, retagged, or reaches the consumer. (4) The harvester's tags or labels shall contain the following information: (A) the Commercial Oyster Boat Captain's License number (issued by the Texas Parks and Wildlife Department), the captain's name, and any one of the following: (i) the Oyster Boat License number; (ii) the boat State Registration number; or (iii) the documented boat name; (B) the date of harvesting (in compliance with the current NSSP Manual of Operations, Part II); (C) the most precise identification of the harvest location as is practicable including the two letter state abbreviation; (D) the type and quantity of shellstock; and (E) the following statement in bold capitalized type "THIS TAG IS REQUIRED TO BE ATTACHED UNTIL CONTAINER IS EMPTY OR RETAGGED AND THEREAFTER KEPT ON FILE FOR 90 DAYS." (5) The certified dealer shall accept responsibility for all shellstock immediately upon its delivery to a certified location. All shellstock at a certified location shall have either a properly completed harvester's tag or certified dealer's tag or label attached to each container. A tag or label shall remain on the container during transport and storage until the shellstock is processed, retagged, or reaches the consumer. Each certified dealer shall assure that a properly completed dealer tag or label is attached to all containers of shellstock prior to the shellstock leaving the certified location. (6) The certified dealer's tags or labels shall be securely affixed to each container, approved, durable, waterproof, and properly completed by containing the following information: (A) the name of the certified business as it appears on the certificate issued by the Seafood Safety Division (SSD); (B) the address of the business, including at least the city and state; (C) the complete certification number assigned by the SSD; (D) the original shipper's certification number including the state abbreviation; (E) the date of harvesting (in compliance with the current NSSP Manual of Operations, Part II); (F) the most precise identification of the harvest location as is practicable including the two letter state abbreviation; (G) the type and quantity of shellstock; (H) the name of the harvester or the harvest boat; and (I) the following statement in bold capitalized type "THIS TAG IS REQUIRED TO BE ATTACHED UNTIL CONTAINER IS EMPTY AND THERAFTER KEPT ON FILE FOR 90 DAYS." (7) Each dealer tag or label shall contain the consumer information language adopted by the Interstate Shellfish Sanitation Conference, or an equivalent approved in writing by the SSD prior to use. A tag or label bearing all information necessary to track the shellstock to its harvest location shall remain attached to each container until the shellstock is delivered to the consumer. (8) During the period April 1 through October 31, each dealer tag or label shall contain the following statement in bold type: "THIS PRODUCT SHOULD NOT BE CONSUMED RAW AFTER 14 DAYS FROM THE DATE OF HARVEST." (9) All information shall be printed on the tags or labels in permanent type ink. Information shall not be altered or changed after being entered on the tag or label. The certification number shall only be complete and valid if it has a proper state two-letter abbreviation, followed by a one to five-digit number followed by a two-letter abbreviation for the type of operation the dealer is certified to perform, (SP for shucker/packer, RP for repacker, SS for shellstock shipper, or DP for depuration plant). These tags or labels shall be no smaller than the minimum size allowed as stated in the NSSP Manual, Part II. All information shall be legible and indelible. Paragraph (6)(E)-(G) of this subsection do not need to be completed, if a properly completed harvester tag or label is also attached to the container. sec.241.56. Shellstock Shipping. (a) Source, identification, and records. (1)-(2) (No change.) (3) Complete, accurate, and legible records in a form approved by the Seafood Safety Division (SSD) shall be maintained by each certified dealer. These records shall be sufficient to document that the shellstock are from an approved source and to permit a container to be traced back to the harvest area, date of harvest, and the name of the harvester or harvest boat. Purchases and sales shall be recorded in a permanently bound ledger book and maintained for a minimum of one year. Transaction records indicating origin, date, and time of receipt of the product shall be maintained in a legible, orderly file. If computer records are maintained, they shall be approved by the SSD. (4) Each food service establishment or retail food store which delivers shellstock to a consumer shall maintain the identity of the source of the shellstock by retaining shellstock tags or labels for 90 calendar days from the date the container is emptied by using a record keeping system that keeps the tags or labels in chronological order correlated to the date when, or the dates during which, the shellstock are sold or served and which marks the tags or labels with the date and time when shellstock are first removed from the container and the date and time the container is emptied. Complete, accurate, and legible records shall be maintained which indicate the source, date, and time of receipt of shellstock. Shellstock shall not be removed from the container in which they were received other than immediately before sale or preparation for service. (5) Each food service establishment or retail food store which delivers shellfish to a consumer for raw consumption shall inform consumers by brochures, deli case or menu advisories, label statements, table tents, placards, or other effective written means of the significantly increased risk associated with certain vulnerable consumers eating such shellfish in raw or undercooked form. The language in the information shall be as follows, unless otherwise approved by the SSD or the Retail Foods Division in response to a written request from the food service establishment or the retail food store: THERE IS A RISK ASSOCIATED WITH CONSUMING RAW OYSTERS OR ANY RAW ANIMAL PROTEIN. IF YOU HAVE CHRONIC ILLNESS OF THE LIVER, STOMACH, OR BLOOD, OR HAVE IMMUNE DISORDERS, YOU ARE AT GREATEST RISK OF ILLNESS FROM RAW OYSTERS AND SHOULD EAT OYSTERS FULLY COOKED, IF UNSURE OF YOUR RISK, CONSULT YOUR PHYSICIAN. (6) Each food service establishment or retail food store which delivers shellfish to a consumer for raw consumption shall, upon request of the customer, provide the tag from the shellfish being delivered for review by the customer. The tag must be returned and maintained by the establishment or food store as otherwise provided in this section. (b) Shellstock storage and shipping. (1) (No change.) (2) Buildings in which shellstock are held shall comply with the construction requirements of the sections of this undesignated head. Shellstock shippers shall have sanitary toilet facilities acceptable to the SSD and an approved water supply providing at least warm water suitable for hand washing. (3) -(6) (No change.) (c) Repacking and relabeling shellstock. (1)-(4) (No change.) (5) Shellstock packing containers shall be clean, fabricated from safe materials, and protected from contamination. (6) (No change.) (7) A durable, waterproof tag or label shall be securely affixed to each container. This tag or label shall remain on the container during transport and storage until the shellstock is processed or reaches the consumer. The tag or label shall contain the following information in a legible and indelible form: (A)-(C) (No change.) (D) the name of harvester or harvest boat, or the source from which the shellstock was purchased; and (E) the date of harvest (in compliance with the current NSSP Manual of Operations, Part II); (F) the most precise description of the harvest area as is practicable including the two letter state abbreviation; (G) the type and quantity of shellstock; and (H) the following statement in bold capitalized type: "THIS TAG IS REQUIRED TO BE ATTACHED UNTIL CONTAINER IS EMPTY AND THEREAFTER KEPT ON FILE FOR 90 DAYS." (8) Each dealer tag or label shall contain the consumer information language adopted by the Interstate Shellfish Sanitation Conference, or an equivalent approved in writing by the SSD prior to use. A tag or label bearing all information necessary to track the shellstock to its harvest location shall remain attached to each container until the shellstock is delivered to the consumer. (9) During the period April 1 through October 31, each dealer tag or label shall contain the following statement in bold type: "THIS PRODUCT SHOULD NOT BE CONSUMED RAW AFTER 14 DAYS FROM THE DATE OF HARVEST." (10) Records shall be maintained which will permit a container of shellstock to be traced back to the harvest area. Records shall also include the date of harvest and the name of the harvester or harvest boat, or the source from which the shellstock was purchased. Records shall be maintained for a period of at least one year. sec.241.57. Plant Location, Grounds, and Arrangements. (a) Processing and shipping facilities shall be so located that they will not be subjected to flooding by ordinary high tides. If plant floors are flooded, all operations shall be discontinued and the Seafood Safety Division (SSD) shall immediately be notified of the flooding. No operations may occur until waters have receded, the building is thoroughly cleaned and sanitized, and the facilities have been inspected by an authorized agent of Texas Department of Health (TDH). (b)-(f) (No change.) (g) Because shucking and packing operations occur in separate rooms, a delivery opening shall be provided so that shuckers do not enter the packing area. The delivery opening shall be equipped with a corrosion resistant shelf constructed of smooth, easily cleanable, durable materials which can be effectively sanitized. The shelf shall drain toward the shucking room and, if necessary, be curbed on the packing room side. (h) (No change.) sec.241.63. Water Supply. (a) Water used in any activity at a certified location shall be from a potable supply. (b)-(c) (No change. ) (d) At least one sample of water taken from a distribution system which includes a private well shall be submitted to an approved laboratory each month for bacteriological analysis. Any coliform positive or confluent (TNTC) sample shall necessitate resampling the water within 24 hours of receiving the result. All shellfish operations associated with the well shall immediately cease upon notification of a coliform positive result. The SSD shall be notified upon receipt of a coliform positive sample result. If the resample result is coliform positive, the SSD shall be notified upon receipt of the result and the SSD shall determine the appropriate steps for disinfection and/or resampling. Shellfish operations shall not resume until a coliform negative result is obtained and the SSD is properly notified. sec.241.67. Construction of Utensils and Equipment. (a) All utensils and equipment shall be designed and fabricated from smooth, corrosion resistant, safe materials, durable under conditions of normal use, and resistant to denting, buckling, pitting, chipping, and crazing. Unfinished and unpainted wood shall not be approved for use as food contact surfaces. (b)-(c) (No change.) (d) Blower tanks, skimmers, reusable in plant storage containers, shucking buckets, and pans shall conform to the Shellfish Industry Equipment Construction Guides, National Shellfish Sanitation Program (NSSP) Manual of Operations, Part II, Appendix A. Equipment in use prior to January 1, 1989 having seams soldered with safe materials which are corrosion resistant, smooth, and easily cleanable may continue to be used by the processor using them on that date so long as the processor obtains certification each consecutive year at that location and the equipment remains in good repair. (e) All utensils and equipment shall be subject to inspection for compliance by an agent of the Seafood Safety Division (SSD) prior to certification and shall be kept in good repair. (f)-(g) (No change.) sec.241.73. Packing of Shucked Shellfish. (a) Skimmer tables and other packing equipment shall be located so they will not receive drainage from the delivery opening or contamination from shucking room equipment and utensils. (b)-(f) (No change.) (g) Reusable containers shall be used only for in-plant storage of shucked shellfish and shall be sealed during storage. Reusable containers allowed by the Seafood Safety Division (SSD) shall be constructed of corrosion proof, impervious material with an exceptionally smooth interior making them easily cleanable. Covers of reusable containers shall be designed so as to protect the pouring lip of the container from contamination. These containers shall not be larger than five gallons in volume and no more than three gallons of shucked shellfish shall be stored in them at any one time. The shellfish shall be chilled to 45 degrees Fahrenheit prior to being put into these containers. sec.241.74. Labeling Shucked Shellfish. (a)-(b) (No change.) (c) For unfrozen product, if the date is a sell by date, the method of determining that date shall be based on the date the shellfish are harvested. The sell by date shall be preceded by the words "SELL BY". A sell by date shall be required on containers of 63 ounces or less containing unfrozen product. For containers of 63 ounces or less containing frozen product, the words "BEST IF USED BY" shall precede the date. (d) (No change.) (e) Frozen shellfish shall be labeled as FROZEN, Individually Quick Frozen, or IQF in print of similar prominence adjacent to the name of the shellfish. The word FROZEN, Individually Quick Frozen, or IQF shall be impressed, embossed, lithographed, or otherwise permanently recorded on the container. Stamping shall not be allowed. Containers shall be marked as frozen prior to freezing. (f)-(g) (No change.) (h) All required information shall be provided in a legible and indelible form. All information, except the date and lot identification, shall be impressed, embossed, lithographed, or otherwise permanently recorded on the container by the container printing company, unless, an adhesive label which has been approved by the SSD is used. Adhesive labels shall be durable and waterproof and shall not be used unless prior approval from the SSD is obtained. The request must be submitted in writing. All labeling is subject to review and approval by the SSD. sec.241.75. Refrigeration and Shipping of Shucked Shellfish. (a) Shucked shellfish shall be held and transported under mechanical refrigeration at air temperatures of 45 degrees Fahrenheit or less. Storage and shipping of containers of shucked shellfish completely covered in wet ice is also required. Containers of shucked shellfish shall not be stored upside down unless they are constructed of flexible material and the lids are sealed to prevent liquid flow in or out. (b)-(e) (No change.) (f) Trucks used to transport shucked shellfish shall have the storage area constructed of a nontoxic, smooth, impervious material so as to protect the shellfish from contamination and shall be kept clean. Shucked shellfish shall be transported in mechanically refrigerated units that can maintain an air temperature between 45 degrees fahrenheit and 35 degrees fahrenheit, shall be palletized, and shall be arranged to allow maximum air circulation. (g) (No change.) sec.241.79. Supervision. (a)-(b) (No change.) (c) Supervisors, whether appointed or the plant owner, shall be required to successfully complete a state-accredited Food Protection Management Program as prescribed in sec.241.81(c) of this title (relating to Education and Training). (d) Unauthorized persons shall not be permitted in the processing areas during periods of operations. sec.241.82. Repacking Shucked Shellfish. (a)-(b) (No change.) (c) Complete, accurate, and legible records, in a form approved by the Seafood Safety Division (SSD), shall be maintained by the repacker. These records will permit a container of repacked shellfish to be traced back to the original shucker/packer. The records shall include date of pack and source of the shellfish. Purchases and shipments shall be recorded in a permanently bound ledger book. If computer records are maintained, they shall be approved by the SSD. Records shall be maintained for a minimum of one year for shucked shellfish and two years for frozen shellfish. (d)-(j) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511913 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 1, 1995 Proposal publication date: May 9, 1995 For further information, please call: (512) 458-7236 Chapter 289. Radiation Control Texas Regulations for Control of Radiation 25 TAC sec.289.130 The Texas Department of Health (department) adopts new sec.289.130, concerning the Radiation Advisory Board (board), without changes to the proposed text as published in the June 16, 1995, issue of the Texas Register (20 TexReg 4397), and therefore the section will not be republished. 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 advisory board was established in 1961. The board members are appointed by the governor. Specifically, the new section covers applicable law, purpose, tasks, abolishment, terms of office, officers, meetings, attendance, staff, procedures, subcommittees, statements by members, reports to the board, reimbursement of members' expenses, and the section's effective date. The following are the comments made concerning the proposed section and the department's responses to those comments. Comment. A commenter found that the proposed section was satisfactory. The commenter also noted that nothing is stated in the section about the availability of the advisory board as a consultant to other state agencies, but assumed that this is proper, since these rules pertain to advisory board activities on behalf of the Board of Health. Response. The commenter's assumption is correct. The department made no change to the section as a result of the comment. Comment. Concerning sec.289.130(e), a commenter noted that the proposed subsection stated that the Board of Health is to review and determine if the Radiation Advisory Board should be continued, consolidated, or abolished. The commenter suggested that since the Radiation Advisory Board is appointed by the governor, the subsection should state that the Board of Health will recommend to the governor that it be changed, rather than continuing, consolidating, or abolishing it. Response. In accordance with Texas Civil Statutes, Article 6252-33, the Board of Health is to review and determine if the Radiation Advisory Board is to be continued, consolidated, or abolished. Therefore, the subsection reflects the law. It is unlikely that the Board of Health will determine the consolidation or abolishment of the Radiation Advisory Board unless the Health and Safety Code, Chapter 401, that established the governor-appointed Radiation Advisory Board is changed. The department made no change to the section as a result of the comment. Comment. Concerning sec.289.130(o), a commenter noted that the requirement for a report on the Texas Radiation Advisory Board to be completed by August of each year seems excessive. The report will take significant time to assemble and may contain material which has already been transmitted to the Board of Health and the commissioner of health. For instance, routine memos after meetings note attendance and Radiation Advisory Board recommendations are sent to the Board of Health throughout the year. Response. The report is required in order to enable the Board of Health to review the specified activities of the Radiation Advisory Board in a consolidated report form. This review by the Board of Health is required by Texas Civil Statutes, Article 6252-33. The department made no change to the section as a result of the comment. Comment. Concerning sec.289.130(l)(5), a commenter noted that the requirement for minutes of the meetings approved by the chair to be provided to the Radiation Advisory Board and each member within 30 days of each meeting differs from the way in which Radiation Advisory Board minutes are typically done and will require duplication of efforts. Normally, the secretary approves the draft minutes and they are sent to the members two weeks prior to the next meeting. At the meeting, they are accepted by vote. The proposed section would require more work for the chair and additional copying and distribution. Each member would need minutes sent just prior to the next meeting also to review for action at the meeting. Copies sent earlier would not be beneficial. Response. The requirement does not result in additional work, just a different timeframe for completing an action already being done. Instead of the secretary approving the draft, the chair will now do so. The requirement is for the draft minutes to be distributed 30 days after the meeting, but not approved at that time. The vote to approve the draft minutes may still be taken at the next quarterly meeting. There is no requirement that the draft minutes be sent again two weeks prior to a meeting in order for action to be taken on them. The department made no change to the section as a result of the comment. Comment. Concerning sec.289.130(p)(4), a commenter stated that the requirement for submitting receipts within 14 days after the meeting might be a hardship on some individuals who travel frequently immediately after meetings and do not handle paperwork until later in the month. Additional time might be beneficial. Response. The timeframe reflects departmental policy regarding reimbursement to advisory board members and is consistent among the rules of advisory boards and committees in the department. The department made no change to the section as a result of the comment. Commenters included a representative of the Texas Radiation Advisory Board from the University of Texas Southwestern Medical Center at Dallas who was in favor of the section. Another representative of the Texas Radiation Advisory Board from Austin was in favor of the section, however, the commenter presented comments and suggestions for changes to the proposed section as previously discussed. The 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, and under 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 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 legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9511912 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 1, 1995 Proposal publication date: June 16, 1995 For further information, please call: (512) 458-7236 Part II. Texas Department of Mental Health and Mental Retardation Chapter 404. Protection of Clients and Staff Subchapter A. Abuse, Neglect, and Exploitation in TDMHMR Facilities 25 TAC sec.404.10, sec.404.15 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts amendments to sec.404.10 and sec.404.15, with changes to the proposed text as published in the July 28, 1995, issue of the Texas Register (20 TexReg 5588). The amendments clarify certain provisions concerning the release of information related to the investigation of abuse, neglect, or exploitation in TDMHMR facilities. The phrase "if requested" is added to sec.404.10 upon adoption to further clarify the circumstances upon which the employee may receive a copy of the investigative report. In addition, a provision is added requiring the individual receiving the report to complete a document acknowledging that the report's content should be kept confidential. It is clarified in sec.404.15 that notice shall be given in writing. Public comment was received from the Texas Alliance for the Mentally Ill. The organization noted that the amendments were acceptable. The amendments are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers. sec.404.10. Disciplinary Action. The head of the facility shall be responsible for taking prompt and proper disciplinary action when a charge of abuse, neglect, or exploitation is confirmed by the head of the facility. (1)-(3) (No change.) (4) When disciplinary action is taken against an employee based on abuse, neglect, or exploitation, the head of a facility shall notify the disciplined employee in writing of the disciplinary action and any right to a grievance hearing the employee may have under the department's internal policies and procedures relating to employee grievances. If the employee files a complaint in response to a written reprimand resulting from an investigation of abuse, neglect, or exploitation, or if the employee files a grievance in response to disciplinary action resulting from an investigation of abuse, neglect, or exploitation, the head of the facility will, upon request, provide the employee with a copy of the investigative report. Before receiving the report, the employee will be required to complete a document acknowledging that the report's content should be kept confidential. Additional documentary evidence, if any, may be accessed by the employee in accordance with procedures outlined in sec.3.116 of the Human Resources Operating Instruction (relating to Employee Grievances). (5)-(7) (No change.) sec.404.15. Confidentiality of Investigative Process and Report. Some information may be released as follows: (1) (No change.) (2) When an allegation is determined to involve the clinical practice of a physician, registered nurse, vocational nurse, or dentist, the person served, legal guardian, or parent (if the person is a minor) shall be informed in writing that the allegation has been referred for peer review as described in sec.404.8 of this title (relating to Peer Review). (3) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1995. TRD-9512018 Ann Utley Chair Texas Department of Mental Health and Mental Retardation Effective date: October 11, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 206-4516 TITLE 30. ENVIROMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 312. Sludge Use, Disposal and Transportation The Texas Natural Resource Conservation Commission (TNRCC) adopts the repeal of sec.sec.312.1-312.13, 312.41-312.49, 312.61-312.68, and 312.81-312.83, and new sec.sec.312.1-312.13, 312.41-312.50, 312.61-312.68, 312.81-312.83, and 312.121-312.123, relating to sewage sludge use and disposal, water treatment sludge disposal, and transportation of sewage sludge, water treatment sludge, and similar waste. Sections 312.4, 312.8-312.13, 312.44, 312.50, and 312.82 are adopted with changes to the proposed text as published in the May 5, 1995 issue of the Texas Register (20 TexReg 3295). The repeals of sec.sec.312. 1-312.13, 312.41-312.49, 312.61-312.68, 312.81-312.83 and new sec.sec.312.1-312. 3, 312.5- 312.7, 312.41-312.43, 312.45-312.49, 312.61-312.68, 312.81, 312.83, and 312.121- 312.123 are adopted without changes and will not be republished. The new sections will regulate the final beneficial use or disposal of sewage sludge, domestic septage, and water treatment sludge. The rules also incorporate recommendations made in late 1994 by a rule revision committee whose membership reflected a broad range of interests, representing cities, agriculture, industry, business, water and wastewater treatment operators, and various interest groups. A public hearing on these rules was conducted on May 30, 1995 in Austin, Texas. The comment period closed on June 5, 1995. Oral and/or written testimony was provided by representatives of the following groups: City of Abilene, Dallas Water Utilities, Reeves County, Texas Municipal League, CDR Environmental, City of Amarillo, ECO Resources, Inc., Texas Beneficial Use Coalition, Brazos River Authority, City of Austin, Kaechele Ranch, TU Electric, and Ft. Worth Water Department. All comments received by the public in writing and those received during the public hearing on the proposed rules have been considered, and have been incorporated into the rules where appropriate. One commenter contended that there is no local governmental control over sewage sludge. The commenter believes sewage sludge applications could adversely affect the agricultural economy if food crops are raised close to sewage sludge sites. The commission responds that these proposals only specify state requirements and the commission in no way intends to either promote or discourage local regulation of sewage sludge to the extent a local government has such authority. One commenter was concerned that the fiscal note in the proposed regulations did not address the perceived need of the commission to undertake a stronger enforcement and monitoring program. A statement is made that regulatory programs over the U.S. have shown that regulations without enforcement are of little value. The commission agrees with the commenter that enforcement of this regulation is an essential aspect to its sewage sludge regulatory program. The agency will look at viable strategies for maintaining a competent level of compliance monitoring. Partnership with local government is one such option. Additionally, a prioritization of tasks to administer the sewage sludge program could be developed commensurate to the funding available. One commenter requested clarification on the differences between a permit and a registration, also asking what the benefits are of one over the other. The commission's proposal in sec.312.4 specifies that permits are only required for activities of disposal or processing where beneficial use of sewage sludge does not occur. Benefits of a permit versus a registration would depend upon the point of view of various interested parties. For instance, the public may view a permit as a major benefit since public notice and opportunity for an evidentiary hearing are possible for those affected by a project. A person proposing to spread sewage sludge on crop land as a soil nutrient would view the registration process as more simple and streamlined compared to the requirement of a permit. The commenter is directed to sec.sec.312.10-312.13 which details procedural differences between the two authorizations. Two commenters supported the notification requirements proposed by the commission in sec.312.4(b)(2). Another commenter disagreed with the requirement for notification and maintained that the notice would result in no consequence, thus being a useless requirement. The commission disagrees. The tiered approach to regulating sewage sludge, and related notice requirements i.e., a permit versus a registration versus a notification was carefully considered. Any facility processing sewage sludge to achieve the exceptional quality standard, such as a wastewater treatment facility or some other processor who receives bulk sewage sludge for processing, will be authorized by permit for that processing. This is identified in sec.312.4(a). However, once the processing has occurred, the commission will only require notifications by persons or entities indicating where the sewage sludge will be marketed or distributed. The commission will utilize these notifications as a tracking mechanism, as a method to collect fees, and will screen the notifications to determine which activities need detailed review. Two commenters stated that initial receivers of out-of-state sewage sludge should not be required to notify the commission but instead, the out-of-state generator of the sewage sludge should be subject to this requirement. To clarify the commission's intention, it is the agency's goal to be made aware of sewage sludge transported into Texas from out-of-state generators for purposes of EPA and TNRCC regulatory delineation. The commission agrees that it could be cumbersome to require all initial receivers to notify the commission of the receipt of exceptional quality sewage sludge. Therefore, the commission has modified sec.312.4(b) in a manner to require those persons who first convey sewage sludge into the state to notify the commission of these proposed activities, in a manner equivalent to Texas generators of this type sewage sludge. One commenter stated it was excessive to require notifications to include a listing of all proposed initial receivers of exceptional quality sewage sludge, as described in proposed sec.312.4(b)(2)(B). The commenter proposes that the agency instead require the records to be kept for agency inspection by the marketer or distributor. The commission disagrees. The agency is neither requiring that all end users nor intermediate receivers of the sludge be identified, but simply those proposed to initially receive the sludge. This should be a simple inventory of records. The records would be kept by either those transporting this material into Texas or by those permittees authorized in a wastewater permit for marketing and distribution of exceptional quality sewage sludge. The commission will use this information and the annual updates of this information as an aid in prioritizing the agency's monitoring of the distribution of the sewage sludge. The same commenter also indicated that subparagraphs (C), (D), and (F) of sec.312.4(b)(2) should be combined into one requirement specifying notification with a marketing and distribution plan. The commission agrees and has consolidated these sub-paragraphs and subparagraph (E) into (C). The commenter also views subparagraph (E) as unnecessary and having no bearing on a regulatory program. The commission disagrees, as it will use this information and the annual updates of this information as an aid in prioritizing our monitoring of the distribution of the sewage sludge. Further, it will provide a mechanism for determining what quantities of out-of-state sewage sludge will be shipped to Texas, as this information would not otherwise be available from out-of-state generators. A commenter raised a concern on sec.312.4(b)(3) that the commission will have too much discretion to determine if additional requirements are necessary. To clarify, the commission intends to utilize this provision primarily to guard against operations where disposal of sludge might occur under the guise of sewage sludge use at an agronomic rate, where mismanagement results in demonstrated pollution, or where storage is actually abandonment or some speculative accumulation of a sewage sludge without any actual recycling occurring. The commission agrees with a commenter on sec.312.4(b)(4) that it is the responsibility of Texas generators to provide an annual report of marketing and distribution activities. Also, as stated above, the commission has also modified this provision to apply to reporting by those initially conveying out-of-state sewage sludge into Texas and will not require annual reports from receivers of out-of-state sewage sludge. The annual reports would be specified as permit requirements for those entities authorized by the wastewater permit to market and distribute the sewage sludge or would be a report due from other processors, other generators, or persons conveying the exceptional quality sewage sludge into the state. One commenter stated that the term "modified" in sec.312.4(c)(2)(C) is confusing. In response, the commission has chosen to delete the provision since this requirement is more specifically addressed in sec.312.12(a)(2). Two commenters requested that the term limits in sec.312.4(d) be eliminated, that registrations be issued for the life of a project similar to landfilling, and that "full-blown renewal processes" create uncertainty to city planners. The commenter introduced a concept which is titled an "automatic renewal". The commission responds that a periodic renewal is necessary to address changed circumstances and additional or new information and will be a simple process. Accordingly, the commission is addressing this issue by revision of the registration renewal application in an attempt to eliminate unnecessary burdens on an applicant. There will be no notice to the bordering landowners and county judge during the renewal process. The commission has modified sec.312.12 in response to this comment to exempt renewal applications from submittal of certain information the agency has received in prior applications. The commission favors the renewal process for a variety of reasons including: reviews are timed to coincide with the once per five year soil pollutant sampling; the ability to update a registration, when new regulations come into effect; an opportunity for registrants to modify certain information not accurate in an existing authorization at a regularly scheduled interval; and commission review of past registrant compliance and reports at regular intervals. Essentially, the commission will be renewing registrations in a routine manner when the minimum requirements of this chapter are being met and no issues of pollution or non-compliance exist. This is similar to existing procedures and criteria for renewals of wastewater discharge permits. To address the commenter's urban planning uncertainty issue, one could argue that an even greater need for certainty exists with regard to the infrastructure investment needed for wastewater treatment. The renewal process does not interfere with this planning. For these reasons, the commission prefers the term "routine renewals" over the proposed "automatic renewals" to describe this process. Finally, the commission disagrees with the comparison to landfill permitting. As disposal is a permanent entombment of solid waste, it differs strikingly from a beneficial use of a solid waste where there should be no lasting artifact of the solid waste at a properly managed site. One commenter suggested that sec.312.4(f) is open to misinterpretation and that it incompletely addresses permits issued for sewage sludge use. The commission agrees and has deleted the provision. To address the issue, the commission has modified sec.312.10(l) and (m). One commenter has requested that the wording of sec.312.6 be modified to reduce the discretion of the commission to impose more stringent requirements. The commission disagrees with this comment. The provision is intended to allow the commission the flexibility to respond appropriately to different circumstances and additional or new information. Also, the wording proposed by the agency is identical to federal regulations specified in 40 CFR sec.503.5(a). One commenter objected to the definition of "agronomic rate" relating to the description of sludge passing below the root zone to the ground water. The commenter believes the definition gives a false impression that the agricultural use of sewage sludge is a potentially unsafe activity. It is not the intention of the commission to give this impression. Rather, the agency's policy is to promote the beneficial use of sludge in a safe and proper manner by prescribing appropriate agronomic rates which will protect water quality. Additionally, the definition is similar to the federal definition in 40 CFR sec.503.11. A determination of an application rate, based upon this definition, is a primary consideration in authorizing sites both under federal and state requirements. Three comments were received on the definition in sec.312.8 for "contaminate an aquifer". One person asserted it should be deleted because it is not utilized anywhere in the regulations and could be used by a judge to kill a sludge project. Another commenter indicated it triggered an inappropriate impression on the reader of the regulations, giving beneficial use a negative connotation to the lay public. Finally, a commenter representing a large city suggested the definition was too narrowly focused on nitrate pollution and should encompass pollutants other than nitrate which can contaminate an aquifer. In response, the proposed regulations does utilize the term elsewhere, specifically in sec.312.64(n) to refer to a management standard for sewage sludge disposal. The definition is identical to that found in the federal regulations in 40 CFR sec.503.21. As such, the commission disagrees with the commenters on changing or deleting the term, for the sake of state and federal consistency. The commission also points out that the agency has the statutory responsibility to protect ground water from pollution. Stating all constituents which could possibly contaminate an aquifer is unnecessary to the exercise of this authority. One commenter requested that the definition of "staging" in sec.312.8 be modified to allow the activity for seven days instead of five, to afford easier management of biosolids. The commission has no objection to this minor change and has revised the definition as well as the definition of "store and storage" and sec.312.50(c) to address this comment. One commenter asserted the commission has no authority to collect fees under the Texas Solid Waste Disposal Act because fees are already collected on sludge pursuant to the Texas Water Code in Chapter 26. The commission disagrees with this comment. Fees under the Texas Water Code are assessed without regard to solid waste generation or amounts of solid waste produced and relates specifically to the amount of wastewater authorized for discharge and the pollutant potential of the wastewater. The fees proposed in sec.312.9 are based on the authority specified in Chapter 361 of the Texas Health and Safety Code (THSC) relating to solid waste disposal, beneficial use of sewage sludge, and the transportation of sludge and similar wastes. One commenter suggested there should not be a fee on Class A sludge in order to encourage treatment of wastewater residuals beyond the Class B criteria. A similar comment suggested the fee should be eliminated to rid the fee structure of the preference for composting, where no fee will be assessed. The commission responds that the legislature only eliminated a fee when sewage sludge is composted with source separated yard waste, thereby setting up this preference. This preference is based upon the policy of the minimization of toxins, the reduction of pathogens, and for the marketing of sludge. These preferences are all desired over land application for beneficial use. Accordingly, the commission has set up a preference for beneficial use of Class A sewage sludge over Class B ($0.50/dry ton versus $0.75/dry ton). Therefore, the commission will establish the fee at $0.20 per dry ton for Class A sewage sludge. One commenter on sec.312.9(b)(2) suggests the commission specify the use of sewage sludge as an artificial soil (for use in a landfill as a cover material) as a beneficial use, thereby allowing a lower fee. The commission disagrees for two reasons: the practice of placing sludge in a landfill as cover is not land application, as defined in federal regulations specified in 40 CFR sec.503. 11 and secondly; sec.312.5 of this title provides that no sewage sludge is subject to the fees of this chapter when disposed of in a municipal solid waste landfill unit. Numerous commenters objected to the fee structure proposed in sec.312.9(b)(4) and (5) which sets the fee for disposal of sewage and water treatment sludge on a total weight basis instead of the current dry weight basis. One commenter suggested the fee for disposal in a municipal solid waste co-disposal landfill is cheaper than what is proposed here. One commenter requested the fee be uniform for all processing, use, or disposal of sludge. One commenter noted that the large Texas city he represents has invested enormous capital into sludge landfills and at this time prefers landfilling over beneficial use because it is safer, avoids addressing the regulatory uncertainty surrounding beneficial use, and results in less liability to the city. The proposed fee structure would result in a high cost to rate payers if adopted. The commenter proposed three options for the commission to consider: utilize a dry weight basis; put a $50,000 annual cap on any given disposal activity; or "grandfather" existing disposal practices with a dry-weight derived rate while subjecting new disposal authorizations to the total weight fee. Two other commenters also suggested that existing disposal practices be "grandfathered" at the dry weight fee. Two commenters specified that water treatment continues to result in greater amounts of sludge per amount of drinking water produced, due to advances in treatment, thus cities are facing larger disposal issues at the same time that the commission is proposing higher fees. These commenters also point out that water treatment sludge is relatively inert compared to other solid wastes. One commenter suggested that the commission stated in the fiscal note that it has no need for the higher amount of revenue which would be collected under the proposed fee, alleging the total weight fee structure is a deliberate attempt to penalize a certain large utility. The commission responds to these fee structure issues and concerns as follows. The fee structure was based upon the legislature's direction and law in sec.361.022 of the Texas Health and Safety Code. There it specifies that options for management of solid waste be prioritized in accordance with a specific list of preferences favoring recycling. It lists disposal as one of the last options preferred. The commission's strategic plan and legislative appropriations request approved by lawmakers also sets out challenging goals of promoting the recycling of solid waste including sludge. The proposal attempts to purposely reward municipalities with lower fees when it beneficially uses sewage sludge and disposes of water treatment sludge by methods other than landfilling. It is untrue that disposal in a municipal solid waste co-disposal landfill is cheaper than what the commission proposes. Both fees are $1.25 per ton when the solid waste is measured by weight, as specified in the Texas Health and Safety Code, sec.361.013. The commission agrees with the commenter that landfilling can present fewer challenges and more control to a city compared to beneficial use. For instance, when a solid waste is entombed into a landfill, many exposure risks are completely avoided compared to those posed when a solid waste is spread openly atop the land. Nonetheless, exposure risks associated with beneficial use, while higher than those associated with landfilling, are still very low and deemed by the U.S. Environmental Protection Agency as safe. Because of the state's preference to reuse resources, the commission will continue to promote beneficial use. The commission further agrees that regulatory uncertainty is a factor as the EPA continues to study beneficial use issues and the commission itself revises its policies significantly through this rule making. As a solution, the commission has determined that it will revise the fee structure of sec.312.9(b) to allow operations specifically authorized by the commission or predecessor agencies prior to the effective date of these regulations to be assessed the existing fee for disposal of sewage sludge, set at $1.25 per dry ton. Sewage sludge activities authorized after the effective date of these regulations will be subject to the fee structure as proposed in sec.312.9(b)(4). This fee structure will put persons on notice of the preferences of the commission and legislature and serve as a guide to planners when considering the costs and benefits of alternate methods for solid waste management. Because the commission desires not to penalize better water treatment, which is a goal in the direct interest of the public and has a direct impact upon quantities of water treatment sludge produced, the commission agrees with commenters that it is appropriate to reduce the fee specified in sec.312.9(b)(5) . The commission also understands that opportunities for the reuse of this type sludge are limited relative to the organic, nutrient rich nature of sewage sludge. Until the commission can determine that more disposal options other than landfilling are viable and cost-effective, it is not fair to consider water treatment sludge fees in the same manner as sewage sludge fees. Therefore, the commission has revised proposed sec.312.9(b) to set the fee structure for water treatment sludge at $0.20 per dry ton, when the disposal is not subject to a permit or when it is disposed of with a Class A sewage sludge. The commenter is partially correct in restating that the commission's fiscal note indicated the proposed regulations will not result in significant increases in manpower needs by the commission. Currently, the commission uses all municipal solid waste fees to fund all regulatory activities for all types of solid wastes. It does not dedicate sludge related revenue collections to specific sludge related regulatory activities. Additionally, changes in law related to the use of the municipal solid waste fund now requires the commission to utilize general revenue to fund sewage sludge activities for fiscal year 1996. One commenter on sec.312.9(b)(6) requested that the commission set a fee on incinerator ash disposal rather than based upon the amount of sludge received at an incinerator. The commission disagrees because the THSC, in Section 361. 013(a), clearly states that the fee be based on waste received at an incinerator. One commenter on sec.312.9(d) indicated that they paid their sludge related fee prior to being billed, because they did not wish to be in violation of the provision stating fees "shall be paid" prior to a certain due date. The commission agrees this provision needs to be more clearly written, as it not our intent to receive payment of fees prior to a billing. The provision has been revised. A commenter suggested the term "source separated yard waste" be in conformity with the definition in agency composting regulations. The commission agrees and has revised sec.312.8 to specify a definition consistent with the composting regulations. Another commenter on this subsection stated it was discriminatory to exclude compost from fee assessment, as proposed. The commission responds that it is excluding compost from the fees in accordance with state law. The commission has no authority to assess a fee on sewage sludge or water treatment sludge composted with source separated yard waste. One commenter raised a concern that the application processing procedures in sec.312.10 are silent with regard to processing of registrations for water treatment sludge. This section is purposely silent because Subchapter F of Chapter 312 addresses registration processing for water treatment sludge. One commenter on sec.312.10(b) was concerned that evidence of the authority of an official to sign a registration application is not specified. The commenter suggested several conditions for inclusion in the regulations. The commission has not specifically included the conditions in sec.312.10(b)(3) because the regulation clearly references 30 TAC sec.305.44 where the language the commenter requests is already stated. One commenter expressed concern over the interpretation of modification, minor amendment, and major amendment, and requested that the commission both clarify these terms and expand what could be considered a minor amendment. The commenter also requested clarification on how permits no longer required by the revised regulations could be discarded in favor of registrations. Major and minor amendments are described in sec.312.10(l) and (m) while amendments and modifications are described in sec.312.12(a)(2). The commission has included examples of several modifications in sec.312.12(a)(2) which would generally be processed after simple written notification of the proposed change by the applicant. Upon notification, the commission will advise the notifier if the change requested must be processed as a major amendment. As an example, many waste management method changes would simply require notice of the change. But if a notification indicated the registrant desired to increase loading above the application rate limited by a registration, the commission would process the request as a major amendment. The basic rationale between what is considered a major versus a minor amendment relates to changes that bordering landowners would consider an additional or expanded authorization. These are changes to substantive terms, expansion of a limiting parameter, and expansion of the operation. Examples include increases in an application rate or enlargement of the application area. This interpretation guides the agency in these determinations and the commission therefore sees no need to try modifying the regulations in an effort to allow greater opportunity for minor amendments. Because the commission is reducing the stringency of its regulations of beneficial use sites, it desires to simplify the process of acting on the requests of an applicant who may wish to take the opportunity to modify site activities as now available after the effective date of these regulations. So, if a person holds either a permit or a registration issued prior to the effective date of these regulations, the person may do nothing and operate the site in accordance with the 1993 regulations. Or the person may request a minor amendment of the permit or registration to delete or modify any requirement not necessary. A permittee may apply for a minor amendment to replace the permit with a commission registration or may simply operate under the permit until its expiration, at which time the commission would process a request for renewal of the permit by issuance of a registration. Finally, if a person applied for a sewage sludge permit prior to the effective date of these regulations and the site no longer requires a permit, the applicant may withdraw the permit application and request the commission to process a registration application. The commission would only require that any steps in the new process which had not yet occurred, be completed prior to the final determination by the executive director, pursuant to sec.312.12(b) and (c). One commenter on sec.312.12(a)(1)(C)(ii) suggests that one spokesperson for a family-owned property could act on behalf of all family members. The commission agrees that one spokesperson could act for all family members if each individual family member landowner submits to the executive director a sworn statement allowing the spokesperson to act for the family member. Therefore, the commission has revised this provision to clarify this. Another comment on this clause was to delete the requirement for submittal of telephone numbers of the landowners. The commission disagrees since readily available basic information expedites the application review process, especially when the agency reviewer needs to discuss information with the landowner. One commenter on sec.312.12(a)(1)(C)(iv) described this as an objectionable provision and asserts the commission over-regulates sewage sludge by requiring such specifics as crop production methods and proposed waste management. The commission does not agree that requiring an applicant to demonstrate beneficial use is over regulation. The specifics such as type of crops grown and yield are important in assessing a site for beneficial use. Nutrient soil sampling, crop type and yield are important parameters used to determine nitrogen needs of a particular crop. These parameters, used in combination, allow for the determination of beneficial use with regard to nutrient requirements. One commenter on sec.312.12(a)(1)(C)(v) indicated the provision is subject to misinterpretation because of the word "detailed" and suggested the provision be eliminated. The commission does not agree to delete this but has removed the word "detailed" and has added a qualification, indicating this information will not need to be submitted with renewal applications so long as the information was provided in the past to the commission after August 19, 1993. One commenter on sec.312.12(a)(1)(D) pointed out that the requirement for notice of adjacent landowners could be misinterpreted and the commenter suggested the word "bordering" replace "adjacent". The commission agrees and has revised both this subparagraph and sec.312.11(c)(2) to reflect the commission's intent and to provide consistency with sec.305.45 and existing commission permitting practices on this issue. Three people commented on sec.312.12(a)(1)(E) and (F). It was suggested that the 80 acre spatial distribution was arbitrary and too small, that the commission has specified no basis for sampling a second strata (six to twenty- four inches) of soil for nutrients, that such sampling was unnecessary, and that there is no similar requirement for soil sampling in federal sewage sludge regulations. A commenter suggested the rule is prescriptive with a bias to the 80 acre spatial frequency over an alternate frequency. A commenter requested that sampling not be required later if sewage sludge was not applied to the site in some intervening period of time. A commenter also suggested that the soil testing was not needed since limits on pollutants and cumulative loading requirements provide adequate protection. One person requested we change the requirement to sample pollutants "in the uppermost zone" as is stated in the proposal to "the top six inches". A comment was received, asking that the commission reword "from each broadly defined soil characterization or texture" to the words "USDA Soil Conservation Service soil characterization or texture". Finally, it is requested that the commission delete the last sentence of both subparagraphs (E) and (F). The intent of the commission on allowing an alternative sampling distribution other than 80 acres is to place the burden on an applicant to devise a sensible sampling plan for a proposed site. The commission is not prescribing an 80 acre distribution. It is retained in the regulations because a great number of applicants desire a set number and do not wish to devise a custom sampling plan. Either the 80 acre plan or an applicant-devised plan represent equal options for any applicant. The commission will continue to require nutrient soil sampling from the six to twenty-four inch zone for several reasons. The impacts on ground water from nutrients are a concern to the commission. Monitoring in the six to twenty-four inch zone will determine if nutrients are being taken up by the vegetative cover as intended. A buildup of nutrients in this zone will indicate the potential for movement of contaminants deeper and effectively beyond the assimilative capabilities of the soil and vegetation. The commission has modified the two subparagraphs to indicate that the soil sampling will not be necessary at the time of renewal or amendment of a registration for those particular areas of an application site where no sewage sludge application and fertilizer application has occurred since prior soil sampling occurred. The commission acknowledges that these requirements are not stated in the federal regulations, but disagrees that soil sampling and testing requirements are more stringent than federal requirements. It is the commission's position that soil testing and analysis are necessary in order to determine compliance with 40 CFR Part 503. In responding to the concern over sampling, the commission has already greatly reduced expensive soil testing for heavy metals and the necessity for frequent re-sampling for heavy metals. The initial sampling will allow the commission to determine if soil conditions are already such that additional accumulations of heavy metals are not warranted. Further, the commission believes that the agricultural community needs to monitor soil conditions in order to safeguard against unwanted trends of pollutant accumulations. A safeguard of once per five years using actual data instead of extrapolated calculations of loadings is not considered by the commission as excessive. Both the nutrient and heavy metal information on soils is integral to the review the commission conducts on these proposed beneficial use sites and continued monitoring and evaluation of the sites after sludge has been applied. The commission has responded to suggested wording changes as follows. The words "USDA Natural Resources Conservation Service" have replaced the words "broadly defined" to describe soil types. Because some sewage sludge is incorporated into the soil to depths occasionally deeper than six inches, the commission had chosen the words "taken from the uppermost zone to be affected" instead of the language the commenter suggested; thus the commission disagrees that a change is needed. On the final comment, the commission agrees to delete the last sentence of each subparagraph. These statements are not necessary because the commission has this authority under sec.312.6 of this title. One commenter asserted that it was too great a burden to place on the commission to mail notice of the executive director's decision to all parties. The commission disagrees as the agency is readily able to handle large mailings to the public. Several comments were received on the public notice provisions proposed in sec.312.13. One person requested that notice only occur on new applications, stating that notice of major amendments can only serve to incite the public. The commission strongly disagrees. As described above in comments on sec.312.10, citizens aware of one operation should be made aware of significant changes to the site. A commenter is concerned with what the commission considers as an affected party and believes it should be specified as an aid to applicants trying to select a site. The commission responds that an applicant should rely upon the notice requirements as a guide and should also undertake informal discussions with bordering and nearby landowners prior to site selection. The commission need not determine who is affected, since on a registration only certain bordering persons and a county judge will receive notice. The commission will consider relevant written comments it receives during the notice period, regardless of source. Therefore, in response to the comment, the commission has deleted the word "affected" from subsection (d). One commenter was concerned that the public can do nothing to prevent approval of a sewage sludge site. The commenter suggested that a contested case hearing should be allowed both when a site transfers ownership and upon the request of a majority of local officials. The commission responds that the commenter did not make a very specific comment as to why the public would not wish to have a site approved. If the reasons relate to a simple desire not to have a site, the commission must respond by indicating it cannot make decisions based on emotions or preferences; we must make decisions based upon the technical merits of an application. In response to the comment on transfers, the commission disagrees that a transfer should be anything more than an administrative review where the commission verifies certain ownership information and then processes the change. One commenter has noted that the commission removed the opportunity for public meetings from the regulations, regretting that the public will now be left out of the process. The commenter went on to describe a variety of reasons why citizens should be more informed and have greater opportunities for participation. These reasons included the following. There are site restrictions on sites where Class B sewage sludge is applied and the public needs to know when sites have such a status. The commenter states that there are impacts upon persons beyond those bordering a site, such as water pollution from runoff or groundwater contamination. The commenter specified that dust emissions, odors, wear and tear on roads, disease exposure from Class B sewage sludge, and lowered property values all concern the public. The commenter is concerned with the exposure of children from lead that is contained in sewage sludge at what is considered by the commenter as an injurious level. The commission responds to these comments as follows. The agency's intent is to approve applications when the standards specified in this chapter have been met. Although some may disagree that these standards are adequate enough to protect the public, the commission has regulations which are more protective than those specified as minimum federal requirements. These state requirements are maintained as a purposeful effort to respond to questions the public continually raises. To address the specific comments, site restrictions on grazing or public access are maintained not by public notice, but by requirements for restricting access as specified in sec.312.82(b)(3). Surface water runoff is addressed by requirements which control the application of sludge at an agronomic rate and by buffer zones to waterways. The commission has a ground-water protection standard aimed at preventing migration of sewage sludge pollutants into a shallow aquifer or the casing of a water well. Dust, odors, and disease vectors are all addressed in the requirements which include vector attraction reduction alternatives, buffer zones to keep the sites segregated by distance to nearby residences, and by requirements for an operator to respond if odor or dust emissions become a problem at a site. The commission has adopted the federal regulations developed at 40 CFR Part 503, which set lead concentrations and loadings aimed at being protective of human health and the environment. To address the concerns that the public is left out of the process, the commission responds as follows. Those bordering a site and a county judge have the ability to provide the commission with their concerns. The commission is desirous of receiving these comments and specific recommendations from the public. Where the public provides the agency with technical or valuable information the agency did not have when it initiated the review process, that information will be utilized in the decision making process. Where the information is not relevant to the authority of the agency, where the public requests the site not be approved without an explanation or a basis in the regulations, or where the public simply asks for a requirement more stringent than the regulations call for, the commission will likely not respond in its decision. When the commission becomes aware of public interest in an application, it will use its discretion to hold public forums. This occurs routinely in the agency even without there being an actual rule requirement for the meeting. The commission predicts that the elimination of the public meeting requirement from the regulations will result in no fewer meetings on issues of sewage sludge sites compared to the current necessity for meetings. As an example, the commission held more public meetings on sewage sludge issues between March 1992 and August 1993, prior to the effective date of the public meeting rule requirement, than meetings held after the regulation became effective. In conclusion, the commission intends to utilize public comment and public discussion in an effort to get relevant facts, to help the public understand the potential benefits of sewage sludge, and to communicate the safeguards these regulations contain. One commenter indicated that in another unspecified state, draft sewage sludge permits undergo public notice for 30 days followed by scheduling a public meeting where comments are solicited. Then the state evaluates the comments received and possibly issues a permit. Finally, an adjudicatory hearing is held if necessary. The commenter asserted that such a process must be incorporated into the proposed regulations. The commission responds that the commenter appears to favor a very extensive public review process. The commission disagrees that such a process is needed for sites being evaluated to beneficially use sewage sludge. A process as suggested is at odds with two 1994 reports from the Texas Legislature which recommend to the commission that it maximize opportunities to streamline permit review processes when the activity proposed by an applicant does not pose high risks to human health or the environment. The commission believes that the beneficial use of sewage sludge is such an activity where notice and hearing requirements should be reduced. Nonetheless, since the publication of the proposed rules, the legislature passed and the governor approved amendment of Chapter 5 of the Texas Water Code. This law allows persons objecting to an executive director's approval of an application, including sewage sludge registrations, to file a motion for reconsideration with the commission. Therefore, the commission has added a new subsection (e) to sec.312.13 to reflect current law. Many comments were received on Chapter 312, Subchapter B, relating to Land Application for Beneficial Use and Storage at Beneficial Use Sites. One commenter suggested that the regulations include a provision for use of sewage sludge to require deed recordation for land which is used for land application of sewage sludge, as a warning to future property owners. The commission disagrees as it does not consider the use of sewage sludge at or below an agronomic rate to be a disposal activity similar to disposal where sewage sludge is applied to or landfilled onto land at rates above agronomic rates. Therefore, it is our position that beneficial use does not raise the issue of health and safety risks posed by significant projects such as landfilling. Soil testing required of each registrant gives the commission the tools to determine if pollution of the soil might be occurring. The commenter also asked whether this agency checks an applicant's financial status when processing a registration or permit. The commission does not conduct such an evaluation, as it is required that any registrant or permittee comply with the requirements or be subject to enforcement by the agency. The same commenter feared that remediation of beneficial use sites where physical damage is done is possibly a cost borne by the public. The commission responds that remediation of land might be necessary if an applicator were to fail to follow the requirements of these regulations. The agency's enforcement procedures would resolve such an issue if one were to occur. A commenter asked whether the commission has necessary funding available to monitor production, transportation, storage, application, and environmental testing of sludge, how many inspections are made, what size penalties are assessed, how many complaints of pollution have resulted in penalties, and how many applications which we have received have been rejected. The commission responds that funding is available from the state's general revenue, fee revenue associated with municipal solid waste disposal, and a waste treatment fund associated with wastewater discharges. There is necessary funding available to prioritized resources where needed to respond to problems or complaints related to sewage sludge use and disposal. Penalties can be assessed as high as $10,000 per day for violations of regulations. The amount of a penalty assessed is a case specific evaluation made by the commission and can vary greatly. Likewise, the number of registration and permit applications rejected by the agency relates to case specific facts that may have nothing to do with compliance history or our ability to monitor proposed sites. In response to the particular questions of how many are rejected or how much is collected, the commission believes these are appropriate questions but not ones which need to be addressed in response to the proposed regulations at issue in today's publication by the agency. Several persons made the general comment that beneficial use standards exceed 40 CFR Part 503, that the federal requirements were adequate, that this discourages beneficial use, and that the commission has failed to listen to these type concerns. The commission acknowledges that portions of the regulations do exceed federal requirements. Through the rule making process, the commission has carefully evaluated requests, especially those from the regulated community. In this process, the commission has removed a great many obstacles and requirements. Several commenters have also acknowledged that the commission has done a very good job of improving the regulations through less restrictive requirements. Further, the commission maintains that many of the requirements in the proposal, while not specific requirements of federal regulations, are derived from the federal rule writing process which resulted in 40 CFR Part 503 or are related to good sense agricultural management practices. As an example, the federal requirements in 40 CFR Part 503 are completely silent on the requirements of soil sampling, but federal guidance documents and the published training documents of the Water Environment Federation both specify soil sampling as being needed when a site is evaluated for land application. The Texas regulations currently are silent and do not depict soil testing requirements. Requests from the Texas Legislature and several members of the regulated community led the commission to specify its soil testing requirements in this rule. As a further comment on state stringency comments, many of the more stringent state requirements are anticipated to have little or no impact upon well managed application sites, while providing the commission with regulatory tools to improve or prevent poorly operated sites. Other requirements more stringent than federal requirements relate to certain state statutes, for instance the Texas Water Code, sec.26.401 which specifies that the commission is charged with the protection of ground water with the goal of non-degradation. Some commenters asserted that the agency needs to look at larger problems of ground-water pollution from inorganic fertilizers, instead of being overly- concerned with potential pollution of ground-water from organic soil additives like sewage sludge. The commission responds that it neither prefers to ignore nitrate pollution from inorganic fertilizer nor believes it preferable to regulate sewage sludge over inorganic fertilizer. The commission has clear jurisdiction to regulate municipal solid waste and potential pollution from such waste management, as specified in the THSC, sec.361.002 and sec.361.011. The purpose of the regulations is to focus on sewage sludge and water treatment sludge. It is not to focus on management of inorganic fertilizer over which the commission has no jurisdiction. One commenter wrote that the limitations for molybdenum, in 30 TAC sec.312. 43, Tables 2, 3, and 4, seem unnecessarily stringent and pointed to the EPA, which recently rescinded its limits for this metal. The commission disagrees with this statement, and responds that the regulation as proposed did eliminate the limitations for molybdenum and now is only requiring the monitoring of molybdenum without any specified limitations in Tables 2, 3, or 4. The commission will reevaluate the issue as soon as the EPA has resolved the issues, as the commenter urged the com-mission to do. Two commenters were concerned because the tables and figures which contain metal limits and sampling frequencies were alleged to be absent from the proposal. The commission responds that the tables and figures were published on May 5, 1995 and were shown on pages 3349-3357. One commenter suggested that dikes, berms, or other pollution prevention devices be used to prevent runoff from entering surface waters. The commission responds that it has several protections in its regulations which will reduce potential water pollution from sewage sludge beneficial use sites, without needing an outright requirement as suggested. These include requirements not to apply sewage sludge to flooded or frozen land, a buffer of 200 feet to separate application of sewage sludge from surface water if it is not incorporated into soil within 48 hours, and a separation distance to ground water of three feet. The commission may require dikes or berms when sewage sludge is applied to steep grades or to reclamation sites. See sec.312.44(b),(c) , (h)(1), and (i) for further details. One commenter asserted that the EPA's risk analysis for the 33-feet distance stated in 40 CFR sec.503.14(c), which sets a buffer between a waterway and an application area, is based on the applicator either incorporating sewage sludge within 48 hours or maintaining a vegetative strip. The commenter stated that the commission must not require both the measures, since EPA did not assume both measures in calculating 33 feet. The commission responds that in the risk assessment used by EPA in development of 40 CFR Part 503, that the 33 feet buffer zone was assumed and sewage sludge was incorporated into the top 15 cm (6 inches) of the soil. The exposure pathway evaluated by EPA took into account erosion and the metal content of a sewage sludge/soil mixture. However, the EPA evaluation did not consider the pathogen content of a Class B sewage sludge. Because EPA assumed incorporation and EPA could not evaluate pathogen content in relation to runoff, TNRCC maintains that a 200 foot buffer zone is needed when the twin conditions of a vegetative strip and incorporation of sewage sludge are not a part of site management. One comment was received on sec.312.44(d) and (e) relating to buffer zones adjacent to beneficial use sites. The commenter asked if certain buffer zones were being relaxed and also suggested tenants instead of landowners should consent to smaller buffer zones. In response, the commission acknowledges that certain buffer zones are being relaxed, in an effort to better promote and encourage the beneficial use of sewage sludge. The commission disagrees that a tenant's consent is necessary, since it would prove cumbersome for an adjacent land applicator to determine if tenants change. The commission also believes a landowner who has a tenant is in the position of determining if a reduced buffer is warranted for a tenant on a property. One commenter suggested that soil pH must be adjusted above 6.5 standard units prior to sewage sludge application, to assist in reducing migration of heavy metals. The commission responds that soil pH of 5.5 standard units has been modeled by EPA to be safe for the beneficial use of sewage sludge so long as metals are below the table values and ground water is greater than three feet in depth. If seasonal ground water is shallower or soils are more acidic, the commission may require special conditions in a registration, but would not necessarily mandate a requirement for pH adjustment of the soil. Several commenters had suggestions that sec.312.44(h) be either deleted as unnecessary or modified in a manner to clarify certain terms. Several asked the commission to clarify what constitutes ground water, what constitutes an aquifer, and what constitutes seasonal when referring to the occurrence of a high water table. One commenter indicated that the commission reference to soil surveys as an indication of seasonal is not specific or certain enough. The commission points out that both aquifer and ground water are defined in sec.312.8 and that the commission has not used these terms interchangeably. In its proposal, the commission attempted to better define seasonal as ground water which is depicted as such on a soil survey map or other document. To further clarify what length of time or type conditions would be considered as seasonal ground water, the commission proposes a change in wording for sec.312. 44(h)(2) and (3) for clarification. The change will provide a range of percolation rates for moderately rapid and rapid permeabilities (greater than two inches per hour and less than twenty inches per hour). This change will also clarify wording in subparagraph (4) of this paragraph, more specifically identifying "soils with greater permeability" which are subject to case-by-case review. Additionally, in response to the comments, it is noted that USDA County Soil Surveys contain tables of information including hydrologic characteristics of soil associations. These tables identify and contain information on depth to the seasonal high water table (as determined by the USDA) in inches or feet below the surface. Seasonal in this context refers to the pattern of seasonal variation in precipitation observed over many years and not the result of single or unusual precipitation events. The commission considers this data along with the established percolation rate in inches per hour to be adequate information to determine the acceptability of the soil for sewage sludge application with regard to the leaching of metals and nutrients to the ground-water system. A commenter stated a belief that sec.312.44(h) as written is counterproductive and could needlessly eliminate large areas of the state from beneficial use projects. Another commenter is concerned that the three feet requirement as a distance to ground water is based on some assumed average conditions, thus restricting many application areas from consideration. One commenter requested that the agency only look at distance to drinking water aquifers or major aquifers, not simply any shallow ground water occurring beneath a site. Yet another commenter warned that the commission's groundwater protection measures would cause farmers to revert from sludge to inorganic fertilizer on a part of the land where sewage sludge was prohibited, causing a greater impact from nitrate leaching than would have been caused by the sewage sludge. The commission recognizes that significant portions of some coastal and eastern counties in Texas may be affected, however, site-specific information on such soil characteristics as pH will be considered. With regard to the minimum three feet depth requirement, it is based on average conditions which are reasonable, given general soil characteristics in Texas. As noted above, site specific information can be reviewed for further consideration. With regard to the comment suggesting the commission restrict its reviews to impacts on drinking water aquifers, the commission responds that shallow aquifers discharge to streams and are often in hydrologic communication with deeper aquifers. In addition, with the large number of abandoned and poorly completed water wells in the rural areas of the state, contamination of shallow aquifers may have significant impacts on drinking water aquifers. The intent of the provision is to minimize the potential of nonpoint source contamination of surface waters and ground waters. One commenter wanted to understand why requirements currently in sec.312. 44(h) are no longer requirements under the proposed regulations in sec.312.44(i) , specifically a requirement for preventing runoff from a storm event, berming a beneficial use site, and incorporating sewage sludge into unvegetated soil. The commission responds that it removed these management method provisions because they were too prescriptive. The commission may still require berming, but only under situations such as a reclamation site or where a slope is steep. It will not require the incorporation of sewage sludge because an applicator now has options for managing a site, either to incorporate and buffer the site 33 feet with a vegetative strip or to not incorporate the sludge and maintain a 200 foot buffer. One commenter suggested striking sec.312.44(i)(2) since the commission maintains the ability under the rules to restrict such applications on a case by case basis if soil is thinner than two feet. The commission responds that it revised this provision in its proposal, to allow opportunities for sludge application on thin soils, whereas the existing regulations prohibit such application. The commission does not agree to remove the provision, because the agency's authority to restrict applications on inappropriate land is not stated elsewhere. One commenter requested the commission clarify whether sewage sludge could ever be applied in a flood plain, since sec.312.44(i) does not describe the management practice of incorporation of sewage sludge, found in the existing regulations at sec.312.44(h)(8). The commission responds that applications can occur in flood plains under the proposed regulations. The commission will only prohibit applications in a designated floodway. Floodway is defined in sec.312. 8 of the regulations. One commenter suggested a strongly written provision in the regulations for the control of dust and noise at a beneficial use site, citing a need to control exposure of the public from pollutants found in the dust and interference from the noise of machinery. The commission responds to the commenter that the commission has no authority to regulate noise levels at a beneficial use site. In regard to dust, the commission has a nuisance control provision at sec.312.44(k) to deal with the occasion where a dust problem needs to be addressed by the site operator. In addition, the buffer zones specified at sec.312.44(d) will act as a protective measure to limit the effects of dust. One commenter made a general statement pertaining to the disposal of sewage sludge and water treatment sludge, presumably commenting on the requirements in Chapter 312, Subchapter C and Subchapter F, relating to Surface Disposal and Disposal of Water Treatment Sludge, respectively. The commenter suggested that abandoned gravel mines are suitable locations for sludge disposal and offer an opportunity for redeveloping land. The commission responds that it specifies no prohibitions on the future use of such areas for disposal of solid waste. In evaluating a proposed disposal site, the commission would evaluate the permit application for compliance with sec.sec.312.62-312.65 if the proposed disposal was for a sewage sludge. The commission would evaluate a water treatment sludge landfilling proposal for compliance with federal regulations specified in 40 CFR Part 257. The commission received four comments on its proposal of Chapter 312, Subchapter D, relating to Pathogen and Vector Attraction Reduction. One commenter indicated that sec.312.82(a)(1)(B) is incorrectly written because there is no paragraph (3) in this subsection. The commission agrees and has modified the language to reference only paragraph (2). One commenter indicated that sec.312.82(a)(1)(C) be modified to allow for both a fermentation tube test as well as the membrane filter test. The commission disagrees because EPA determined the membrane filter method is not appropriate at the low fecal coliform densities expected. Also, the filter would have too high a loading of sludge solids to permit a reliable count of the number of fecal coliform colonies. (See also EPA Publication 625/R-92/013, Dec. 1992.) One commenter on sec.312.82(b)(2)(C) suggested that others besides a chief certified operator be allowed to certify that sewage sludge met the PSRP requirement. For instance, the commenter indicated a contractor hired by a city might be in charge of PSRP operations, and not the wastewater operator. The commission agrees and has modified the requirement to allow either the chief operator or other responsible official who manages the process at a wastewater treatment facility for the permittee to make the certification. One person commented on sec.312.82(b)(3)(D) and correctly noted that the commission added the term "food crops" to the existing terms "feed crops and fiber crops". The commission added the term to correct an omission found in the existing regulations. The addition also makes the requirement identical to federal requirements specified in 40 CFR sec.503.32(b)(5)(iv). This subparagraph sets up minimum site restrictions for any food crop where a site restriction is not already specified in subparagraphs (A)-(C). Hay is an example of a crop falling under this restriction. Three comments were received by the commission concerning its proposal of Chapter 312, Subchapter F, relating to Disposal of Water Treatment Sludge. One person objected to water treatment sludge regulations being in the same chapter as sewage sludge, since the two wastes are different. The commission agrees that the materials are different and has specified entirely different requirements in Subchapter F for water treatment sludge, separate from wastewater treatment sludge. The commission further explains that the two types of sludge are in this chapter for three reasons. One, the two types of sludge are sometimes land applied together; two, the transportation of both is specified in Chapter 312, Subchapter G; and three, one division of the commission has been put in charge of regulating both these sludges when the sludges are managed outside of a co-disposal municipal solid waste landfill. One commenter asked that the commission clarify sec.312.122(b), asking what guidelines apply to receiving registrations for disposal of water treatment sludge. The commission responds that it will largely be deregulating disposal of water treatment sludge, except when disposal is by landfilling. Thus, subsection (b) specifies the process for authorizations of non-landfilled water treatment sludge. The commission will be preparing a registration form. It may not complete a technical review of the application, but simply acknowledge receipt of the form by issuing a registration that specifies the requirements of disposal. These requirements are only the prohibitions found in the federal regulations, 40 CFR Part 257, and the requirement for an annual report and fee assessment. One commenter stated that water treatment sludge permits for certain disposal activities represents over-regulation of these materials. The commission responds that it is only requiring a permit for landfill type disposal of water treatment sludge. If the land application disposal activity occurs within five feet of the land surface, the commission will only register the site through a simple process, as described in the preceding paragraph. The commission believes a water treatment sludge could be disposed of in numerous ways, close to or atop the surface of land, without necessitating a permit. A permit is reserved for significant disposal activities. These various activities would include shallow trenches, land spreading, highway construction, storage in waste piles, or combination into compost or sewage sludge. The practice of requiring a landfill permit for these type activities is not a new agency requirement. Subchapter A. General Provisions 30 TAC sec.sec.312.1-312.13 The new sections are adopted under the Texas Water Code, (Vernon 1992), sec.5.103, which provides the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, these sections are promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. sec.312.4. Sewage Sludge Permit, Registration, or Notification Required. (a) Permits. Except where in conflict with other chapters in this title, a permit shall be required before any storage, processing, incineration, or disposal of sewage sludge, except for storage allowed pursuant to this section, sec.312.50 of this title (relating to the Storage and Staging of Sludge at Beneficial Use Sites), sec.312.61(c) of this title (relating to Applicability), and sec.312.147 of this title (relating to Temporary Storage). Any permit authorizing disposal of sewage sludge shall be in accordance with any applicable standards of Subchapter C of this chapter (relating to Surface Disposal) or sec.312.101 of this title. No permit will be required under this chapter if issued pursuant to other requirements of the commission, as specified in sec.312.5 of this title (relating to Relationship to Other Requirements). (b) Notification of Certain Class A Land Application Activities. (1) If a sewage sludge meets the metal concentration limits in sec.312.43(b)(3) (Table 3) of this title (relating to Metal Limits), the Class A pathogen reduction requirements in sec.312.82(a) of this title (relating to Pathogen Reduction), and one of the requirements in sec.312.83(b)(1)-(8) of this title (relating to Vector Attraction Reduction), it will not be subject to the requirements of sec.312.10 of this title (relating to Permit and Registration Applications Processing), sec.312.12 of this title (relating to Registration of Land Application Activities), and sec.312.13 (relating to Actions and Notices), except as provided in this subsection. (2) At least 30 days prior to engaging in such activity for the first time, any generator in Texas or any person who first conveys sewage sludge from out of state into the State of Texas who proposes to store, land apply, or market and dis-tribute sewage sludge meeting the standards of this subsection shall submit a notification form approved by the TNRCC. A completed notification shall be submitted to the TNRCC's Permitting Section of the Watershed Management Division. The notification shall contain information detailing: (A) sewage sludge composition, all points of generation, and wastewater treatment facility identification; (B) name, address, and telephone number of all persons who are being proposed to receive the sewage sludge directly from the generator; (C) a description in a marketing and distribution plan which describes any activities: (i) to sell or give away sewage sludge directly to the public, including a general description of the types of end uses proposed by persons who will be receiving the sewage sludge; (ii) methods of distribution, marketing, handling, and transportation of the sewage sludge; (iii) a reasonable estimate of the expected quantity of sewage sludge to be generated or handled by the person making the notification; and (iv) a description of any proposed storage and the methods which will be employed to prevent surface water runoff of the sewage sludge or contamination of ground water. (3) Thirty days after the notification has occurred, the activities applicable to this subsection may commence. After receiving a notification, the executive director may review a generator's activities or the activities of the person conveying the sewage sludge into Texas to determine whether any or all of the requirements of this chapter are necessary. In making this determination, the executive director will consider specific circumstances related to handling procedures, site conditions, or the application rate of the sewage sludge. The executive director may review a proposal for storage of sewage sludge, considering the amount of time and the amount of material described on the notification. Also, in accordance with sec.312.41 of this title (relating to Applicability), any reasonably an-ticipated adverse effect that may occur due to a metal pollutant in the sewage sludge may also be considered. (4) Annually, on September 1, each person subject to notification of certain Class A activities required by this subsection shall provide a report to the commission, on forms furnished by the commission, which describes all activities described in paragraph (2) of this subsection. The report shall include an update of new information since the prior report or notification was submitted and all newly proposed activities. The report shall also include a description of the annual amounts of sewage sludge provided to each initial receiver from the in-state generator and for persons who convey out of state sewage sludge into Texas, the amounts provided from this person directly to any initial receivers. (c) Registration of Land Application Sites. (1) If the requirements in Subchapter B of this chapter (relating to Land Application for Beneficial Use) are met and a sewage sludge does not meet the requirements of subsection (b) of this section, a site shall be registered for the land application of sewage sludge for beneficial use, in accordance with the requirements of sec.312.12 of this title (relating to Registration of Land Application Activities) and the requirements of sec.312.13 of this title (relating to Actions and Notice). (2) The effective date for the registration of a site at which sewage sludge is applied to the land for beneficial use is the date that the executive director by letter, approves the application, in accordance with sec.312.12(c) of this title. Site registration information on file with the commission shall be confirmed or updated, in writing, whenever: (A) the mailing address and/or telephone number of the owner or operator is changed; or (B) requested by the commission or executive director. (d) Term limits for registration or permits shall not exceed five years. All existing registrations, not to include transportation registrations, and permits approved before August 10, 1993, shall be due for renewal five years from the date of the registration or permit approval. Registrations or permits which had been in existence for greater than five years as of March 1, 1994, and for which a renewal application was not filed prior to March 1, 1994, are expired. (e) Except as provided under subsection (b) of this section, no person may cause, suffer, allow, or permit any activity of land application for beneficial use of sewage sludge unless such activity has received the prior written authorization of the executive director. sec.312.8. General Definitions. The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise. 25-year, 24-hour rainfall event-The rainfall event with a recurrence interval of once in twenty-five years, with a duration of 24 hours as defined by the National Weather Service in Technical Paper Number 40, Rainfall Frequency Atlas of the United States, May 1961, and subsequent amendments, or equivalent regional or state rainfall information developed therefrom. Active sludge unit-A sludge unit that has not closed and/or is still receiving sewage sludge. Aerobic digestion -The biochemical decomposition of organic matter in sewage sludge into carbon dioxide, water and other by-products by microorganisms in the presence of free oxygen. Agricultural land -Land on which a food crop, a feed crop, or a fiber crop is grown. This includes range land and land used as pasture. Agricultural Management Unit (AMU)-A portion of a land application area contained within an identifiable boundary, such as a river, fence, or road, where the area has a known crop or land use history. Agronomic rate -The whole sludge application rate (dry weight basis) designed: (A) to provide the amount of nitrogen needed by the crop or vegetation grown on the land; and (B) to minimize the amount of nitrogen in the sewage sludge that passes below the root zone of the crop or vegetation grown on the land to the groundwater. Anaerobic digestion -The biochemical decomposition of organic matter in sewage sludge into methane gas, carbon dioxide and other by-products by microorganisms in the absence of free oxygen. Annual metal loading rate-The maximum amount of a pollutant (dry weight basis) that can be applied to a unit area of land during a 365-day period. Annual whole sludge application rate-The maximum amount of sewage sludge that can be applied to a unit area of land during a 365-day period. Apply sewage sludge or sewage sludge applied to the land-Land application or the spraying/spreading of sewage sludge onto the land surface; the injection of sewage sludge below the land surface; or the incorporation of sewage sludge into the soil. Aquifer-A geologic formation, group of geologic formations, or a portion of a geologic formation capable of yielding groundwater to wells or springs. Base flood-A flood that has a one percent chance of occurring in any given year. Beneficial Use -Placement of sewage sludge onto land in a manner which complies with the requirements of Subchapter B of this chapter (relating to Land Application for Beneficial Use), and does not exceed the agronomic need or rate for a cover crop, or any metal or toxic constituent limitations which the cover crop may have. Placement of sewage sludge on the land at a rate below the optimal agronomic rate will be considered a beneficial use. Bulk sewage sludge-Sewage sludge that is not sold or given away in a bag or other container for application to the land. CFR-Code of Federal Regulations. CWA-The Clean Water Act (formerly referred to as either the Federal Water Pollution Act or the Federal Water Pollution Control Act Amendments of 1972), Public Law 92-500, as amended by Public Law 95-217, Public Law 95-576, Pub L. 96-483, Public Law 97-117, and Public Law 100.4. Class A Sewage sludge-Sewage sludge meeting one of the pathogen reduction requirement in sec.312.82(a) of this title (relating to Pathogen Reduction). Class B Sewage sludge-Sewage sludge meeting one of the pathogen reduction requirements in sec.312.82(b) of this title. Commission-The Texas Natural Resource Conservation Commission. Contaminate an aquifer-To introduce a substance that causes the maximum contaminant level for nitrate in 40 CFR sec.141.11 to be exceeded in ground water or that causes the existing concentration of nitrate in ground water to increase when the existing concentration of nitrate in the ground water already exceeds the maximum contaminate level for nitrate in 40 CFR sec.141.11. Cover-Soil or other material used to cover sewage sludge placed on an active sludge unit. Cover crop-Grasses or small grain crop, such as oats, wheat, or barley, not grown for harvest. Cumulative metal loading rate-The maximum amount of an inorganic pollutant (dry weight basis) that may be applied to a unit area of land. Density of microorganisms -The number of microorganisms per unit mass of total solids (dry weight basis) in the sewage sludge. Displacement-The relative movement of any two sides of a fault measured in any direction. Disposal-The placement of sewage sludge on the land for any purpose other than beneficial use. Disposal shall not include placement onto the land where the activity has been approved by the executive director or commission as storage or temporary storage and it occurs only for the period of time expressly approved. Domestic septage -Either liquid or solid material removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage. Domestic septage does not include liquid or solid material removed from a septic tank, cesspool, or similar treatment works that receives either commercial wastewater or industrial wastewater and does not include grease removed from a grease trap. Domestic sewage -Waste and wastewater from humans or household operations that is discharged to a wastewater collection system or otherwise enters a treatment works. Dry weight basis -Calculated on the basis of having been dried at 105 degrees Celsius until reaching a constant mass (i.e., essentially 100% solids content). EPA-The United States Environmental Protection Agency. Executive director -The executive director of the Texas Natural Resource Conservation Commission or his/her designee. Experimental Use -Non-routine beneficial use land application or reclamation projects where sewage sludge is added to the soil for research purposes, in pilot projects, feasibility studies, or similar projects. Facility-Includes all contiguous land, structures, other appurtenances, and improvements on the land used for the surface disposal, land application for beneficial use, or incineration of sewage sludge. Fault-A fracture or zone of fractures in any materials along which strata, rocks, or soils on one side are displaced with respect to strata, rocks, or soil on the other side. Feed crops-Crops produced primarily for consumption by domestic livestock, such as swine, goats, cattle, or poultry. Fiber crops-Crops such as flax and cotton. Final cover-The last layer of soil or other material placed on a sludge unit at closure. Floodway-A channel of a river or watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the surface elevation more than one foot. Food crops-Crops consumed by humans. These include, but are not limited to, fruits, vegetables, and tobacco. Forest-Land densely vegetated with trees and/or underbrush. Grit trap waste -Grit trap waste includes waste from interceptors placed in the drains prior to entering the sewer system at maintenance and repair shops, automobile service stations, car washes, laundries, and other similar establishments. Ground water-Water below the land surface in the saturated zone. Holocene time-The most recent epoch of the Quaternary period, extending from the end of the Pleistocene Epoch to the present. Holocene time began approximately 10,000 years ago. Industrial wastewater -Wastewater generated in a commercial or industrial process. Institution-An established organization or corporation, especially of a public nature or where the public has access, such as child care facilities, public buildings, or health care facilities. Land application -The spraying or spreading of sewage sludge onto the land surface; the injection of sewage sludge below the land surface; or the incorporation of sewage sludge into the soil so that the sewage sludge can either condition the soil or fertilize crops or vegetation grown in the soil. Land with a high potential for public exposure-Land that the public uses frequently and/or is not provided with a means of restricting public access. Land with a low potential for public exposure-Land that the public uses infrequently and/or is provided with a means of restricting public access. Leachate collection system-A system or device installed immediately above a liner that is designed, constructed, maintained, and operated to collect and remove leachate from a sludge unit. Liner-Soil or synthetic material that has a hydraulic conductivity of 1 x 10-7 centimeters per second or less. Soil liners shall be of suitable material with more than 30% passing a number 200 sieve, have a liquid limit greater than 30%, a plasticity index greater than 15, compaction of greater than 95% Standard Proctor at optimum moisture content, and will be at least two feet thick placed in six inch lifts. Synthetic liners shall be a membrane with a minimum thickness of 20 mils and include an underdrain leak detection system. Lower explosive limit for methane gas-The lowest percentage of methane in air, by volume, that propagates a flame at 25 degrees Celsius and atmospheric pressure. Metal limit-A numerical value that describes the amount of a metal allowed per unit amount of sewage sludge (e.g., milligrams per kilogram of total solids); the amount of a pollutant that can be applied to a unit area of land (e.g. kilograms per hectare); or the volume of a material that can be applied to a unit area of land (e.g., gallons per acre). Monofill-A landfill or landfill trench in which sewage sludge is the only type of solid waste placed. Municipality-A city, town, county, district, association, or other public body (including an intermunicipal agency of two or more of the foregoing entities) created by or under State law; an Indian tribe or an authorized Indian tribal organization having jurisdiction over sewage sludge management; or a designated and approved management Agency under sec.208 of the CWA, as amended. The definition includes a special district created under State law, such as a water district, sewer district, sanitary district, or an integrated waste management facility as defined in sec.201(e) of the CWA, as amended, that has as one of its principal responsibilities the treatment, transport, use, or disposal of sewage sludge. Off-site-Property which cannot be characterized as "on-site." On-site-The same or contiguous property owned, controlled, or supervised by the same person. If the property is divided by public or private right-of-way, the access shall be by crossing the right-of-way or the right-of-way shall be under the control of the person. Operator-The person responsible for the overall operation of a facility or beneficial use site. Other container -Either an open or closed receptacle, including but not limited to, a bucket, box, or a vehicle or trailer with a load capacity of one metric ton (2200 pounds) or less. Owner-The person who owns a facility or part of a facility. Pasture-Land on which animals feed directly on feed crops such as legumes, grasses, grain stubble, forbs, or stover. Pathogenic organisms -Disease causing organisms including, but not limited to, certain bacteria, protozoa, viruses, and viable helminth ova. Person-An individual, association, partnership, corporation, municipality, state or federal agency, or an agent or employee thereof. Person who prepares sewage sludge-Either the person who generates sewage sludge during the treatment of domestic sewage in a treatment works or the person who derives a material from sewage sludge. Place sewage sludge or sewage sludge placed-Disposal of sewage sludge on a surface disposal site. Pollutant-An organic or inorganic substance, or a pathogenic organism that, after discharge and upon exposure, ingestion, inhalation, or assimilation into an organism either directly from the environment or indirectly by ingestion through the food chain, could, on the basis of information available to the executive director, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunction in reproduction), or physical deformations in either organisms or offspring of the organisms. Process or Processing -For the purposes of this chapter, these terms shall have the same meaning as "treat" or "treatment". Public contact site-Land with a high potential for contact by the public. This includes, but is not limited to, public parks, ball fields, cemeteries, plant nurseries, turf farms, and/or golf courses. Qualified groundwater scientist-An individual with a baccalaureate or post graduate degree in the natural sciences or engineering who has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by State registration, professional certification, or completion of accredited university programs that enable the individual to make sound professional judgments regarding groundwater mon-itoring, pollutant fate and transport, and corrective action. Range land-Open land with indigenous vegetation. Reclamation site -Drastically disturbed land that is reclaimed using sewage sludge. This includes, but is not limited to, strip mines and\or construction sites. Runoff-Rainwater, leachate, or other liquid that drains overland on any part of a land surface and runs off of the land surface. Seismic impact zone-An area that has a 10% or greater probability that the horizontal ground level acceleration of the rock in the area exceeds 0.10 gravity once in 250 years. Sewage Sludge-Solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in treatment works. Sewage sludge includes, but is not limited to, domestic septage, scum, or solids removed in primary, secondary, or advanced wastewater treatment processes; and material derived from sewage sludge. Sewage sludge does not include ash generated during the firing of sewage sludge in a sludge incinerator or grit and screenings generated during preliminary treatment of domestic sewage in a treatment works. Sewage Sludge Debris-Solid material such as rubber, plastic, glass, or other trash which may pass through a wastewater treatment process or sludge process or may be collected with septage. This solid material is visibly distinguishable from sewage sludge. This material does not include grit or screenings removed during the preliminary treatment of domestic sewage at a treatment works, nor does it include grit trap waste. Sludge lagoon-An existing surface impoundment located on-site at a wastewater treatment plant for the storage of sewage sludge. Any other type impoundment shall be considered an active sludge unit, as defined in this section. Sludge unit-Land on which only sewage sludge is placed for disposal. A sludge unit shall be used for sewage sludge. This does not include land on which sewage sludge is either stored or treated. Sludge unit boundary-The outermost perimeter of a surface disposal site. Source Separated Yard Waste-For purposes of this chapter, shall have the same definition as found in Chapter 332 of this title (relating to Composting). Specific oxygen uptake rate (SOUR)-The mass of oxygen consumed per unit time per unit mass of total solids (dry weight basis) in the sewage sludge. Staging-Temporary holding of sewage sludge at a beneficial use site, for up to a maximum of seven calendar days, prior to the land application of the sewage sludge. Store or storage -The placement of sewage sludge on land for longer than seven days. Temporary Storage -Storage of waste regulated under this chapter by a transporter, which has been approved in writing by the executive director, in accordance with sec.312.147 of this title, (relating to Temporary Storage). Three-hundred-sixty-five (365) day period-A running total which covers the period between sludge application to a site and the nutrient uptake of the cover crop. Total solids-The materials in sewage sludge that remain as residue if the sewage sludge is dried at 103 degrees Celsius to 105 degrees Celsius. Transporter-Any person who collects, conveys, or transports sewage sludge, water treatment plant sludges, grit trap waste, grease trap waste, chemical toilet waste and/or septage by roadway, ship, rail, or other means. Treat or treatment of sewage sludge-The preparation of sewage sludge for final use or disposal. This includes, but is not limited to, thickening, stabilization, and dewatering of sewage sludge. This does not include storage of sewage sludge. Treatment works -Either a Federally owned, publicly owned, or privately owned device or system used to treat (including recycle and reclaim) either domestic sewage or a combination of domestic sewage and industrial waste of a liquid nature. Unstabilized solids -Organic materials in sewage sludge that have not been treated in either an aerobic or anaerobic treatment process. Unstable area-Land subject to natural or human induced forces that may damage the structural components of an active sewage sludge unit. This includes, but is not limited to, land on which the soils are subject to mass movement. Vector attraction -The characteristic of sewage sludge that attracts rodents, flies, mosquitos, or other organisms capable of transporting infectious agents. Volatile solids -The amount of the total solids in sewage sludge lost when the sewage sludge is combusted at 550 degrees Celsius in the presence of excess oxygen. Water Treatment Sludge-Sludge generated during the treatment of either surface water or ground water for potable use, which is not an industrial solid waste as defined in sec.335.1 of this title (relating to Definitions). Wetlands-Those areas that are inundated or saturated by surface water or ground water at a frequency and duration to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. sec.312.9. Sludge Fee Program. (a) The following words and terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise: (1) Annual fee. A fee charged to each person holding a registration or permit pursuant to the commission's authority in the Texas Health and Safety Code, Chapter 361 or a permit issued pursuant to the commission's authority in the Texas Water Code, Chapter 26, except that a fee will not be assessed under this chapter as specified in sec.312.5 of this title (relating to Relationship to Other Requirements). (2) Reported. Information compiled and submitted to the commission that tracks the amount of waste being stored, treated, processed, transported or disposed of in the state, tracks the amount of processing, transporting and disposal capacity and reserve capacity, and enables equitable assessment and collection of fees. (3) Payment. Receipt by the commission of the full amount of the annual fee(s) due. (b) Except as provided in subsection (f) of this section, the amount of the annual fee which is assessed is determined by weight of solids disposed of and reported to the commission as of September 1, of each year. Failure to report the disposal of sewage sludge or water treatment sludge does not exempt a registrant or permittee from this fee. The fees shall be as follows: (1) The minimum fee assessed against each registration or permit is $100, regardless of whether the site is active or inactive. (2) When water treatment sludge is mixed with a Class A sewage sludge or when sewage sludge that is classified as Class A is destined to be applied to the land for a beneficial use, the fee shall be $0.20 per dry ton. (3) When water treatment sludge is mixed with a Class B sewage sludge or when sewage sludge that is classified as Class B is applied to the land for beneficial use as described in Subchapter B of this chapter (relating to Land Application) the fee shall be $0.75 per dry ton. (4) When sewage sludge or water treatment sludge is applied to a site for disposal and the disposal was authorized by the commission or predecessor agency prior to the October 1, 1995, the fee shall be $1.25 per dry ton. (5) When sewage sludge is applied to a site for disposal or when water treatment sludge is applied to a site for disposal and the activity requires a permit as specified in Subchapter F of this chapter (relating to Disposal of Water Treatment Sludge), and the disposal is authorized by the commission or predecessor agency on October 1, 1995 or there-after, the fee shall be $1.25 per ton. (6) When water treatment sludge is applied to a site for disposal and the activity does not require a permit as specified in Subchapter F of this chapter (relating to Disposal of Water Treatment Sludge), the fee shall be $0.20 per dry ton. (7) When sewage sludge is fired in a sewage sludge incinerator as described in Subchapter E of this chapter (relating to Guidelines And Standards for Sludge Incineration) the fee shall be $1.25 per dry ton. (c) An annual transporter fee is assessed against each person or entity holding a registration to transport sewage sludge, water treatment sludge, domestic septage, chemical toilet waste, grease trap waste, or grit trap waste issued in accordance with in Subchapter G of this chapter (relating to Transporters and Temporary Storage Provisions). The amount of the annual fee shall be based upon the total annual volume of waste transported by the transporter under each registration and reported to the commission as of June 15, each year. Failure to report the transportation of waste does not exempt a registrant from this fee. The fees shall be as follows: (1) For a total annual volume transported of 10,000 gallons (50 cubic yards) or less the fee is $100. (2) For a total annual volume transported greater than 10,000 gallons (50 cubic yards) but equal to or less than 50,000 (250 cubic yards), the fee is $250. (3) For a total annual volume transported greater than 50,000 gallons (250 cubic yards) but equal to or less than 200,000 gallons (1,000 cubic yards), the fee is $400. (4) For a total annual volume transported of greater than 200,000 gallons (1,000 cubic yards) the fee is $500. (d) Fees assessed in subsection (b) of this section shall be paid, by the registrant or permittee after being billed by the executive director, prior to October 1, of each year. Fees assessed in subsection (c) of this section shall be paid by the registrant after billing by the executive director, prior to September 1, of each year. Fees shall be paid by check, certified check or money order payable to the Texas Natural Resource Conservation Commission (TNRCC). The permittee or registrant of a facility failing to make payment of the fees imposed under this subchapter when due shall be assessed a penalty of 5.0% of the amount due; and, if the fees are not paid within 30 days after the day on which the fees are due, an additional 5.0% penalty shall be imposed. An annual interest rate of 12%, com-pounded monthly, shall be imposed on delinquent fees beginning 60 days from the date on which the fees are due. (e) Failure of the registrant or permittee to submit the required fee payment within 30 days of billing, shall be sufficient cause for the commission to revoke the registration or permit and authorization to process or dispose of waste. Any entity to whom a registration or permit is transferred shall be liable for payment of the annual fee on the same basis as the transferor. (f) No fee will be assessed for sewage sludge or water treatment sludge composted with source separated yard waste at a composting facility, including a composting facility located at a permitted landfill site. This subsection does not apply if it is not used as compost and is deposited in a surface disposal site or landfill. sec.312.10. Permit and Registration Applications Processing. (a) Applications for permits, registrations or other types of approvals, required by this subchapter shall be reviewed by the staff for administrative completeness within 14 calendar days of receipt of the application by the executive director. (b) Permit and registration applications for sewage sludge land application, disposal, incineration, or transportation must include: (1) complete application form(s), signed and notarized, and appropriate copies provided; (2) the verified legal status of the applicant(s) as applicable; (3) the signature of the applicant(s), checked against agency requirements, in accordance with sec.305.44 of this title (relating to Signatories to Applications); (4) a notarized affidavit from the applicant(s) verifying land ownership or landowner agreement to the proposed activity; (5) the attachment of technical reports and supporting data required by the application; and (6) any other information as the executive director or the commission may reasonably require. (c) Permit and registration applications for sewage sludge land application, disposal, or incineration must additionally include maps showing land ownership in accordance with sec.312.11 (relating to Permits) or sec.312.12 of this title (relating to Registration of Class B Land Application Activities). (d) Upon receipt of an application for a permit or registration, not to include transportation registrations, described in subsections (b) and (c) of this section which contains the information required, the executive director or his designee shall assign the application a number for identification purposes, and prepare a statement of the receipt of the application and declaration of administrative completeness which is suitable for publishing or mailing and shall forward that statement to the chief clerk. The chief clerk shall notify every person entitled to notification of a particular application as described in sec.312.13 of this title (relating to Actions and Notice). (e) The notice of receipt of an application for permit or registration and declaration of administrative completeness shall contain the following information: (1) the identifying number given the application by the commission; (2) the type of permit or registration sought under the application; (3) the name and address of the applicant(s); (4) the date on which the application was submitted; and (5) a brief summary of the information included in the application. (f) Nothing in this section shall be construed so as to waive the requirement of notice of the application and draft permit in accordance with Chapter 305, Subchapter E, of this title (relating to Actions, Notice and Hearing) for applications for sewage sludge processing, disposal, or incineration permits. (g) Any person who is required to obtain a permit, or who requests an amendment, modification or renewal of a permit to dispose of or incinerate sewage sludge is subject to the application processing procedures and requirements found in sec.sec.281. 18-281.24 of this title (relating to Applications Returned; Technical Review; Extensions; Draft Permit, Technical Summary, Fact Sheet, and Compliance Summary; Referral to Commission;) Application Amendment; and Effect of Rules). (h) Any person who is required to obtain approval of a registration, or who requests an amendment, modification or renewal of a registration to land apply sewage sludge is subject to the application processing procedures and requirements found in sec.sec.281.18-281.20 of this title (relating to Applications Returned; Technical Review; and Extensions). (i) The registration shall be cancelled upon receipt of a written request for cancellation from either the site operator or landowner. The TNRCC will provide notice to the other party that cancellation has been requested and that cancellation will occur ten days from the issuance of notice. This notice is provided merely as a courtesy by the TNRCC. (j) In order to transfer a registration, both the re-gistered site operator and the landowner must sign the transfer application. An application for transfer that is not signed by both the registered site operator and the landowner will be considered a request for cancellation. (k) If a registration for a site is cancelled, a complete application for registration must be submitted in order to re-register the site. If the application is approved, the site will be re-registered under the same site registration number. (l) Major Amendment. For purposes of this chapter and except as provided in subsection (m) of this section, a major amendment is an amendment that changes a substantive term, provision, requirement, or a limiting parameter of a permit or registration or a substantive change in the information provided in an application for registration, regarding sewage sludge. Changes which are not considered major include typographical errors, changes which result in more stringent monitoring requirements, changes in site ownership, changes in site operator, or similar administrative information. (m) Upon the effective date of this chapter, the commission will process as a minor amendment a request by an existing wastewater disposal permittee, a sewage sludge registrant, or by a sewage sludge permittee to change any substantive term, provision, requirement, or a limiting parameter in a permit or registration which was due to prior regulations of the commission, when it is no longer a requirement of this chapter. Notice requirements of sec.312.13 (relating to Actions and Notice) are not applicable to minor amendments. sec.312.11. Permits. (a) The provisions of this section set the standards and requirements for permit applications to dispose of or incinerate sewage sludge. (b) Any person who is required to obtain a permit, or who requests an amendment, modification or renewal of a permit to dispose of or incinerate sewage sludge is subject to the permit application procedures of sec.305.42 (a) of this title (relating to Application Required), sec.305.43 of this title (relating to Who Applies), sec.305.44 of this title (relating to Signatories to Applications), sec.305.45 of this title (relating to Contents of Application for Permit), sec.305.46 of this title (relating to Designation of Material as Confidential), and sec.305.47 of this title (relating to Retention of Application Data). (c) The following shall be included in an application for permit to dispose of or incinerate sewage sludge: (1) The original and an appropriate number of copies of the permit application shall be submitted on forms provided by or approved by the executive director and shall be accompanied by a like number of copies of all technical supplements and attachments. (2) The application shall include a map depicting the approximate boundaries of the tract of land owned or under the control of the applicant and shall show the ownership of all the tracts of land within one-half mile of the border of any portion or tract of land where the incineration or disposal facility is to be located. The application shall show each residential or business address and occupant of all the tracts of land within 1/2-mile of the border of any portion or tract of land where the incineration or disposal facility is to be located. The applicant shall list on a map, or in a separate sheet attached to a map, the names and addresses of the owners, residents, and businesses of such tracts of land as can be determined from the current county tax rolls and other reliable sources. The application shall state the source of the information. (3) The applicant shall submit any other information reasonably required by the executive director to ascertain whether the facility will be constructed and operated in compliance with all pertinent state and federal statutes, including but not limited to the following: (A) the operator's name, address, and telephone number; (B) whether the facility is located on Indian lands; and (C) the legal owners of all tracts of land on which the proposed activity will occur. (d) Any person who is required to obtain a permit, or who requests an amendment, modification or renewal of a permit to dispose of or incinerate sewage sludge is subject to the standards and requirements for applications and actions con-cerning amendments, modifications, renewals, transfers, corrections, revocations, and suspensions of permits, as set forth in sec.305.62 of this title (relating to Amendment), sec.305.63 of this title (relating to Renewal), sec.305.64 of this title (related to Transfer of Permits), sec.305.65 of this title (relating to Corrections of Permits), sec.305.66 of this title (relating to Permit Denial, Suspension, and Revocation), sec.305.67 of this title (relating to Revocation and Suspension upon Request or Consent), and sec.305.68 of this title (relating to Action and Notice on Petition for Revocation or Suspension). (e) Any person who is issued a permit to dispose of or incinerate sewage sludge is subject to the permit characteristics and standards set forth in sec.305.122 of this title (relating to Characteristics of Permits), sec.305.123 of this title (relating to Reservation in Granting Permit), sec.305.124 of this title (relating to Acceptance of Permit, Effect), sec.305.125 of this title (relating to Standard Permit Conditions), sec.305.126(d) of this title (relating to Additional Standard Permit Conditions for Waste Discharge Permits) , sec.305.127 of this title (relating to Conditions to be Determined for Individual Permits), sec.305.128 of this title (relating to Signatories to Reports), and sec.305.129 of this title (relating to Variance Procedures). sec.312.12. Registration of Land Application Activities. (a) Except as provided in sec.312.4(b) of this title (relating to Sewage Sludge Permit, Registration, or Notification Required), any person who intends to conduct an activity of land application for beneficial use of a sewage sludge shall: (1) notify the executive director in writing that such land application for beneficial use activities are planned. Such person shall submit to the executive director such information as may reasonably be required to enable the executive director to determine whether such land application for ben-eficial use activities are compliant with the terms of this chapter. Such information may include, but is not limited to the following: (A) a description and composition of the sewage sludge; (B) a description of all processes generating the sewage sludge; (C) the disposition of the sewage sludge, including the name, address, and telephone number of any landowner or operator at the site, if subject to the registration requirements of this section, including the following information: (i) whether such material is managed on-site and/or of generation; (ii) a description of each on-site land application beneficial use unit or tract, including the name, address, and telephone number of all landowners, or the same information from a landowner acting as a spokesperson(s) for all the landowners, so long as the spokesperson submits to the executive director a sworn statement allowing the spokesperson to act for that family member; (iii) a listing of the types of sewage sludge managed in each unit or tract; and (iv) a detailed description of the beneficial use occurring at each unit or tract of land where application of sewage sludge is proposed, including proposed waste management and crop production methods. (v) information regarding soil characteristics and subsurface conditions where the operation is to be located, except that such information provided to the executive director since August 19, 1993, need not be provided with a renewal application. (D) A new application or a major amendment application shall include a map depicting the approximate boundaries of the tract of land owned or under the control of the applicant and shall show each residential or business address and owner of all the tracts of land bordering the perimeter of any portion or tract of land where the land application site is to be located. The applicant shall list on a map, or in a separate sheet attached to a map, the names and addresses of the owners of such tracts of land as can be determined from the current county tax rolls and other reliable sources. The application shall state the source of the information. (E) The application shall include analytical results showing the concentration of metals regulated by this chapter, taken from the uppermost zone of soil to be affected by the addition of sludge, from each USDA Natural Resource Con-servation Service soil characterization or texture. The soil samples should be taken at a spatial distribution of one composite sample per every 80 acres of proposed sewage sludge application. An alternate frequency may be utilized, such as use of agricultural management units, when specified in a sampling plan provided by the applicant, which sufficiently establishes background soil conditions. With renewal or amendment ap-plications, soil samples will not be required for those areas of the site where no sewage sludge land application or fertilizer application has occurred since prior samples were obtained and reported to the executive director. (F) The application shall include analytical results showing the concentration of nutrients, salinity, and soil pH taken from the 0 to 6 inch zone of soil and from the 6 to 24 inch zone of soil in the proposed sludge application area, from each USDA Natural Resource Conservation Service soil characterization or texture. The soil samples should be taken at a spatial distribution of one composite sample per every 80 acres of proposed sewage sludge application. An alternate frequency may be utilized, such as use of agricultural management units, when specified in a sampling plan provided by the applicant, which sufficiently establishes background soil conditions. With renewal or amendment applications, soil samples will not be required for those areas of the site where no sewage sludge land application or fertilizer application has occurred since prior samples were obtained and reported to the executive director. (G) Any information provided under this subsection shall be submitted to the executive director in quadruplicate form. (2) have the continuing obligation to immediately provide written notice to the executive director of any changes, requests for an amendment, modification or renewal of a registration, or any additional information concerning changes in land ownership, changes in site control, or operator, changes in waste composition, change in the source of sewage sludge, waste management methods, and information regarding soils and subsurface conditions where the operation is to be located. Any information provided under this paragraph shall be submitted to the executive director in duplicate form. (b) The executive director shall determine, after review of any application for registration of an activity to land apply sewage sludge for a beneficial use, if he will approve or deny an application in whole or in part, deny with prejudice, suspend the authority to conduct an activity for a specified period of time, or amend or modify the proposed activity requested by the applicant. The determination of the executive director shall include review and action on any new applications or changes, renewals, and requests for major amendment of any existing application. In consideration of such an application, the executive director will consider all relevant requirements of this chapter and consider all information pertaining to those requirements received by the executive director regarding the application. The written determination on any application, including any authorization granted, shall be mailed to the applicant upon the decision of the executive director. (c) At the same time the executive director's decision is mailed to the applicant, a copy or copies of this decision shall also be mailed to all parties who submitted written in-formation on the application, as described in sec.312.13(c)(2) and (3) of this title (relating to Actions and Notice). sec.312.13. Actions and Notice. (a) Applicability. This section sets forth the manner in which action will be taken on applications for either a permit or a registration to land apply, dispose of, or incinerate sewage sludge filed with the commission. (b) Permit Actions. Any application for a permit to dispose of or incinerate sewage sludge is subject to the standards and requirements for actions concerning amendments, modifications, transfers, and renewals of permits, as set forth in sec.305.92 of this title (relating to Action on Applications), sec.305.93(a) of this title (relating to Action on Applications for Permit), sec.305.95 of this title (relating to Action on Applications for Renewal), sec.305.96 of this title (relating to Action on Applications for Amendment or Modification), sec.305.97 of this title (relating to Action on Application for Transfer), sec.305.98 of this title (relating to Scope of Proceedings), sec.305.99 of this title (relating to Commission Action), sec.305.100 of this title (relating to Notice of Application), sec.305.101 of this title (relating to Notice of Hearing), sec.305.102 of this title (relating to Notice by Publication), sec.305.103 of this title (relating to Notice by Mail), sec.305.105 of this title (relating to Request for Public Hearing), and sec.305.106 of this title (relating to Response to Comments). (c) Registration Actions. (1) The public notice requirements of this subsection apply to new applications for a registration, and to applications for major amendment of a registration for land application of Class B sewage sludge. The requirements of this subsection do not apply to sites where only Class A sewage sludge is to be land applied for a beneficial use. (2) The chief clerk of the commission shall mail Notice of Receipt of Application and Declaration of Administrative Completeness, along with a copy of the registration application, to the county judge in the county where the proposed site for land application of sewage sludge is to be located. (3) The chief clerk of the commission shall mail notice of Receipt of Application and Administrative Completeness to the landowners named on the application map or supplemental map, or the sheet attached to the application map or supplemental map. (4) Each notice shall specify both the name, affiliation, address, and telephone number of the applicant and of the commission employee who may be reached to obtain more information about the application to register the site. The notices shall specify that the registration application has been provided to the county judge and that it is available for review by interested parties. (d) Public Comment on Registrations. A person may provide the commission with written comments on any new or major amendment applications to register a site for land application of sewage sludge. The executive director shall review any written comments when they are received within 30 days of mailing the notice. The written information received will be utilized by the executive director in determining what action to take on the application for registration, pursuant to sec.312.12(b) of this title (relating to Registration of Land Application Activities). (e) Motion for Reconsideration. (1) The applicant or a person affected may file with the chief clerk a motion for reconsideration of the executive director's final approval of an application. (2) A motion for reconsideration must be filed with the chief clerk not later than the 20th day after the date on which the chief clerk mailed to the applicant the signed registration or other approval. (3) A decision by the executive director, including a registration issued by the executive director, is not affected by the filing of a motion for reconsideration under this section unless expressly so ordered by the commissioners. If a motion for reconsideration is not acted on by the commissioners within 45 days after the date on which the chief clerk mailed the signed registration or approval to the applicant, the motion shall be deemed overruled. When a motion for reconsideration is overruled by commission action or pursuant to this subsection, the Texas Government Code, sec.2001.146, regarding motions for rehearing in contested cases is inapplicable and no motions for rehearing shall be filed. To the extent applicable, the commission decision may be subject to judicial review pursuant to Texas Water Code, sec.5. 351 or the Texas Health and Safety Code, sec.361.321. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512009 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 The repeals are adopted under the Texas Water Code (Vernon 1992), sec.5. 103, which provides the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, these sections are promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512013 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 Subchapter B. Land Application For Beneficial Use 30 TAC sec.sec.312.41-312.49 The repeals are adopted under the Texas Water Code (Vernon 1992), sec.5. 103, which provides the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, these sections are promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512010 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 Subchapter B. Land Application for Beneficial Use and Storage at Beneficial Use Sites 30 TAC sec.sec.312.41-312.50 The new sections are adopted under the Texas Water Code (Vernon 1992), sec.5.103, which provides 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 other laws of this state. Additionally, these sections are also promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. sec.312.44. Management Practices. (a) Bulk sewage sludge shall not cause or contribute to the harm of a threatened or endangered species of plant, fish, or wildlife or result in the destruction or adverse modification of the critical habitat of a threatened or endangered species after application to agricultural land, forest, a public contact site, or a reclamation site. (b) Bulk sewage sludge shall not be applied to agricultural land, forest, a public contact site, or a reclamation site that is flooded, frozen, or snow- covered so that the bulk sewage sludge enters a wetland or other waters in the state, except as provided in a permit issued pursuant to Chapter 305 of this title (relating to Consolidated Permits) or sec.404 of the Clean Water Act ("CWA"). (c) Distance to Surface Waters. (1) Unless the sewage sludge is incorporated into the soil within 48 hours of application and a vegetated cover is established between the application area and all adjacent surface waters, bulk sewage sludge not meeting Class A pathogen requirements and applied to agricultural land, forest, or a reclamation site shall maintain a buffer zone of at least 200 feet from surface waters. (2) In cases where sludge is both incorporated into the soil within 48 hours of application and a vegetated cover is established between the application area and all adjacent surface waters, bulk sewage sludge not meeting Class A pathogen requirements and applied to agricultural land, forest, or a reclamation site shall maintain a buffer zone of at least 33 feet from surface waters. (d) When bulk sewage sludge not meeting Class A pathogen requirements is applied to agricultural land, forest, or a reclamation site, the following buffer zones shall be established for each application area, unless otherwise specified by the commission: (1) private water supply well, 150 feet; (2) public water supply well, intake, public water supply spring or similar source, public water supply treatment plant, or public water supply elevated or ground storage tank, 500 feet; (3) Solution channel, sinkhole, or other conduit to groundwater, 200 feet; (4) Established school, institution, business, or occupied residential structure, 750 feet; (5) Public right of way, 50 feet; (6) Irrigation conveyance canal, 10 feet; (7) Property boundary, 50 feet; (e) Any of the buffers established in subsection (d)(4) and (7) of this section may be reduced or eliminated if an agreement to that effect is signed by the owners of the established school, institution, business, occupied residential structure or adjacent property and this documentation is provided to the executive director prior to issuance of a registration. Reductions or elimination of buffer zones in an existing registration by agreement of the affected landowner will be considered a minor amendment of the registration. (f) Bulk sewage sludge shall be applied to agricultural land, forest, or a public contact site at a whole sludge application rate that is equal to or less than the agronomic rate for the agricultural land, forest, or public contact site on which the bulk sewage sludge is applied. On a case-by-case basis, a whole sludge application rate may exceed the agronomic rate for a time application to a reclamation site. (g) Bulk sewage sludge shall be applied to a reclamation site at a whole application rate that is equal to or less than the agronomic rate for the reclamation site on which the bulk sewage sludge is applied, unless otherwise specified by the commission. (h) Ground Water Protection Measures. (1) Seasonal high ground water table shall be not less than three feet below the treatment zone for soils with moderate or slower permeability (less than two inches per hour). (2) Seasonal high ground water table shall be not less than four feet below the treatment zone for soils with moderately rapid or rapid permeability (greater than two inches per hour and less than twenty inches per hour). (3) Seasonal generally refers to a ground water table which may be perched on a less permeable soil or geologic unit and fluctuates with seasonal climatic variation or which occurs in a soil or geologic unit as a variation in saturation due to seasonal climatic conditions and is identified as such in a published soil survey report or similar document. (4) Application of sludge to land having soils with greater permeability and with higher ground water tables will be considered on a case-by-case basis, after consideration of soil pH, metal loadings onto the soil, soil buffering capacity, or other protective measures to prevent ground water contamination. (i) Sludge shall be applied by a method and under conditions that prevent runoff of sewage sludge beyond the active application area and protect the quality of the surface water and the soils in the unsaturated zone. (1) Sludge shall be applied uniformly over the surface of the land. (2) Sludge shall not be applied to areas where permeable surface soils are less than 2 feet thick. The executive director will consider sites with thinner permeable surface soils, on a case-by-case basis. (3) Sewage sludge shall not be applied during rainstorms or during periods in which surface soils are water-saturated. (4) Sludge shall not be applied to areas having topographical slopes in excess of 8.0%. On a case-by-case basis, the executive director will consider sites with steeper slopes when runoff controls are proposed and utilized, incorporation of sewage sludge into the soil occurs, or for certain reclamation projects. (5) Where runoff of sludge from the active application area is evident, the operator shall cease further sludge application until the condition is corrected. (6) Sewage sludge shall not be applied under provisions of this section on land within a designated floodway. (j) Either a label shall be affixed to the bag or other container in which sewage sludge is sold or given away for application to the land or an information sheet shall be provided to the person who receives sewage sludge sold or given away in a other container for application to the land. The label or information sheet shall contain the following information: (1) the name and address of the person who prepared the sewage sludge for sale or give away in a bag or other container for application to the land; (2) a statement that prohibits the application of the sewage sludge to the land except in accordance with the instructions on the label or information sheet; (3) the annual whole sludge application rate for the sewage sludge that does not cause the annual metal loading rates in sec.312. 43(b)(4) (Table 4) of this title to be exceeded. (k) Nuisance Controls. (1) A land application site location shall be selected and the site operated in a manner to prevent public health nuisances. (2) Sewage sludge debris must be prevented from blowing or running off site boundaries or into surface waters. (3) If necessary or when significant nuisance conditions occur, the operator shall: (A) Minimize dust migration from the site and access roadways; (B) Minimize objectionable odors through incorporation of sewage sludge into the soil or by taking some other type of corrective action. (l) A registration for the beneficial use of sewage sludge shall specify the soil testing requirements for each application area. (1) The testing frequency shall be in accordance with a plan proposed by the registrant in the application, which takes into account common agricultural methods of determining cover crop nutrient needs, soil pH, phytotoxicity, and concentrations of metals regulated by this chapter. (2) No registration shall require soil testing of metals regulated by this chapter, at a frequency greater than once per five years or prior to submittal of a renewal ap-plication for a beneficial use site. Soil testing for metals regulated by this chapter shall not be required for portions of the registration site where sewage sludge has not been applied since the last soil metals testing was performed. (3) Paragraph (2) of this subsection does not apply if the executive director becomes aware of circumstances warranting increased monitoring of metals regulated by this chapter, in order to address sites where metal loading into the soil is a threat to human health or environmental quality. sec.312.50. Storage and Staging of Sludge at Beneficial Use Sites. (a) Except as provided in subsection (b) of this section, storage of sludge at a beneficial land application site shall not exceed 90 days. Storage is allowed only when the following requirements are carried out: (1) Written authorization must be obtained from the executive director prior to construction of the storage area. (2) The storage area must be operated and maintained to prevent surface water runoff and to prevent a release to ground water. Discharge of storm water or wastewater which has come into contact with sewage sludge is prohibited. The storage area shall be designed to collect such runoff. Any runoff collected during the storage of sewage sludge shall be disposed in a manner to prevent a release to ground water. (3) The storage area shall be designed, constructed, and operated in a manner which protects public health and the environment. (4) The storage area must be lined to prevent a release to ground water. Natural or artificial liners are required for leachate control. A natural liner or equivalent barrier of one foot of compacted clay with a permeability coefficient of 1 x 10-7 cm/sec or less, shall be provided. Various flexible synthetic membrane lining materials may be used in lieu of soil liners if prior written approval has been obtained from the executive director. (5) The application shall outline measures to be taken to minimize vectors and to avoid public health nuisances such as odors. (6) The storage area shall be fenced or other methods shall be used, if necessary to control access by humans or domestic animals. (7) Berms or dikes shall be constructed to contain the waste without leakage. (8) Liquid sludge must be stored in an enclosed vessel. (9) Processing of sludge is prohibited unless a permit is obtained from the commission. (b) Up to an additional 90 days of storage will be allowed with the prior approval of the appropriate TNRCC regional office, for reasons associated with application area flooding, saturated soils, or frozen soils. (c) Staging of sewage sludge on-site, prior to land application, is allowable without executive director approval. Staging of sewage sludge may only occur for a maximum of seven calendar days. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512005 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 Subchapter C. Surface Disposal 30 TAC sec.sec.312.61-312.68 The repeals are adopted under the Texas Water Code, (Vernon 1992), sec.5. 103, which provides the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, these sections are promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512011 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 The new sections are adopted under the Texas Water Code (Vernon 1992), sec.5.103, which provides 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 other laws of this state. Additionally, the sections are promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512006 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 Subchapter D. Pathogen and Vector Attraction Reduction 30 TAC sec.sec.312.81-312.83 The repeals are adopted under the Texas Water Code (Vernon 1992), sec.5. 103, which provides the TNRCC with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, these sections are promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512012 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 The new sections are adopted under the Texas Water Code (Vernon 1992), sec.5.103, which provides 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 other laws of this state Additionally, the sections are promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, Chapter 361 (Vernon 1992), sec.361.011 and sec.361.024, which provide the TNRCC with the authority to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. sec.312.82. Pathogen Reduction. (a) Sewage sludge-Class A. (1) Compliance requirements-Class A. (A) For a sewage sludge to be classified as Class A with respect to pathogens, the requirements in subparagraphs (B) and (C) of this paragraph and the requirements of one of the alternatives listed in paragraph (2) of this subsection shall be met. (B) The requirements of the chosen alternative for pathogen reduction from paragraph (2) of this subsection shall be met prior to or at the same time as the vector attraction reduction requirements, except the requirements in paragraphs sec.312.83(b)(6)-(8) of this title (relating to Vector Attraction Reduction). (C) Either the density of fecal coliform in the sewage sludge shall be less than 1,000 Most Probable Number per gram of total solids (dry weight basis) or the density of Salmonella sp. bacteria in the sewage sludge shall be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the sewage sludge is used or disposed of, at the time the sewage sludge is prepared for sale or give away in a bag or other container for application to the land, or at the time the sewage sludge or material derived from sewage sludge is prepared to meet the requirements in sec.312.41(b), (c), (e) or (f) of this title (relating to Applicability). (2) Compliance alternatives-Class A. (A) Alternative 1. The temperature of the sewage sludge that is used or disposed of shall be maintained at a specified value for a period of time. (i) When the percent solids of the sewage sludge is 7.0% or higher, the temperature of the sewage sludge shall be 50 degrees Celsius or higher; the time period shall be 20 minutes or longer; and the temperature and time period shall be determined using equation (2), except when small particles of sewage sludge are heated by either warmed gases or an immiscible liquid. (See Figure 1: sec.312.82(a)(2)(A)(i)). Figure 1: 30 TAC sec.312.82(a)(2)(A)(i) (ii) When the percent solids of the sewage sludge is 7.0% or higher and small particles of sewage sludge are heated by either warmed gases or an immiscible liquid, the temperature of the sewage sludge shall be 50 degrees Celsius or higher, the time period shall be 15 seconds or longer, and the temperature and time period shall be determined using equation (2) as found in clause (i) of this subparagraph. (iii) When the percent solids of the sewage sludge is less than 7.0% and the time period is at least 15 seconds, but less than 30 minutes, the temperature and time period shall be determined using equation (2) as found in clause (i) of this subparagraph. (iv) When the percent solids of the sewage sludge is less than 7.0%; the temperature of the sewage sludge is 50 degrees Celsius or higher; and the time period is 30 minutes or longer, the temperature and time period shall be determined using equation (3). Figure 2: 30 TAC sec.312.82(a)(2)(A)(iv) (B) Alternative 2. The temperature and pH of the sewage sludge that is used or disposed of shall be maintained at specific values for periods of time. (i) The pH of the sewage sludge shall be raised to above 12 and shall remain above 12 for 72 hours. (ii) The temperature of the sewage sludge shall be above 52 degrees Celsius for 12 hours or longer during the period that the pH of the sewage sludge is above 12. (iii) At the end of the 72 hour period during which the pH of the sewage sludge is above 12, the sewage sludge shall be air dried to achieve a percent solids in the sewage sludge greater than 50%. (C) Alternative 3. The sewage sludge that is used or disposed of shall be analyzed prior to pathogen treatment determine whether the sewage sludge contains enteric viruses and viable helminth ova. (i) When the density of enteric viruses in the sewage sludge prior to pathogen treatment is less than one Plaque-forming Unit per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to enteric viruses until the next monitoring episode for the sewage sludge. (ii) When the density of enteric viruses in the sewage sludge prior to pathogen treatment is equal to or greater than one Plaque-forming Unit per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to enteric viruses when the density of enteric viruses in the sewage sludge after pathogen treatment is less than one Plaque-forming Unit per four grams of total solids (dry weight basis) and when the values or ranges of values for the operating parameters for the pathogen treatment process that produces the sewage sludge that meets the enteric virus density requirement are documented. (iii) After the enteric virus reduction in clause (ii) of this subparagraph is demonstrated for the pathogen treatment process, the sewage sludge continues to be Class A with respect to enteric viruses when the values for the pathogen treatment process operating parameters are consistent with the values or ranges of values documented in clause (ii) of this subparagraph. (iv) When the density of viable helminth ova in the sewage sludge prior to pathogen treatment is less than one per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to viable helminth ova until the next monitoring episode for the sewage sludge. (v) When the density of viable helminth ova in the sewage sludge prior to pathogen treatment is equal to or greater than one per four grams of total solids (dry weight basis), the sewage sludge is Class A with respect to viable helminth ova when the density of viable helminth ova in the sewage sludge after pathogen treatment is less than one per four grams of total solids (dry weight basis) and when the values or ranges of values for the operating parameters for the pathogen treatment process that produces the sewage sludge that meets the viable helminth ova density requirement are documented. (vi) After the viable helminth ova reduction in clause (v) of this subparagraph is demonstrated for the pathogen treatment process, the sewage sludge continues to be Class A with respect to viable helminth ova when the values for the pathogen treatment process operating parameters are consistent with the values or ranges of values documented in clause (v) of this subparagraph. (D) Alternative 4. The sewage sludge that is used or disposed of shall be analyzed prior to pathogen treatment to determine whether the sewage sludge contains enteric viruses and viable helminth ova. (i) The density of enteric viruses in the sewage sludge shall be less than one Plaque-forming Unit per four grams of total solids (dry weight basis) at the time the sewage sludge is used or disposed of, at the time the sewage sludge is prepared for sale or give away in a bag or other container for application to the land, or at the time the sewage sludge or material derived from sewage sludge is prepared to meet the requirements in sec.312.41(b), (c), (e), or (f) of this title (relating to Applicability). (ii) The density of viable helminth ova in the sewage sludge shall be less than one per four grams of total solids (dry weight basis) at the time the sewage sludge is used or disposed of, at the time the sewage sludge is prepared for sale or given away in a bag or other container for application to the land, or at the time the sewage sludge or material derived from sewage sludge is prepared to meet the requirements in sec.312.41(b), (c), (e), or (f) of this title. (E) Alternative 5 (PFRP). Sewage sludge that is used or disposed of shall be treated in one of the Processes to Further Reduce Pathogens (PFRP) described in 40 Code of Federal Regulations, Part 503, Appendix B. (F) Alternative 6 (PFRP Equivalent). Sewage sludge that is used or disposed of shall be treated in a process that has been approved by the U.S. Environmental Protection Agency as being equivalent to those in subparagraph (E) of this paragraph. (b) Sewage sludge-Class B. (1) Compliance requirements-Class B. (A) For a sewage sludge to be classified as Class B with respect to pathogens, the requirements in subparagraphs (B) and (C) of this paragraph shall be met. As an alternative for a sewage sludge to be classified as Class B, the requirements of subparagraph (B) of this paragraph and paragraph (2) of this subsection shall be met. (B) The site restrictions in paragraph (3) of this subsection shall be met when sewage sludge that is classified as Class B with respect to pathogens is applied to the land for beneficial use. (C) A minimum of seven samples of the sewage sludge shall be collected within 48 hours of the time the sewage sludge is used or disposed of during each monitoring episode for the sewage sludge. The geometric mean of the density of fecal coliform for the samples collected shall be less than either 2,000,000 Most Probable Number per gram of total solids (dry weight basis) or 2,000,000 Colony forming Units per gram of total solids (dry weight basis). (2) PSRP compliance alternatives-Class B. Sewage sludge that is used or disposed of shall be treated in one of the Processes to Significantly Reduce Pathogens described in 40 CFR Part 503, Appendix B or shall be treated by an equivalent process approved by the U.S. Environmental Protection Agency, so long as all of the following requirements are met by the generator of the sewage sludge: (A) Prior to use or disposal, all the sewage sludge must have been generated from a single location, except as provided in subparagraph (F) of this paragraph; (B) An independent Texas registered professional engineer must make a certification to the generator of a sewage sludge that the wastewater treatment facility generating the sewage sludge is designed to achieve one of the Processes to Significantly Reduce Pathogens at the permitted design loading of the facility. The certification need only be repeated if the design loading of the facility is increased. The certification shall include a statement indicating the design meets all the applicable standards specified in Appendix B of 40 CFR Part 503; (C) Prior to any off-site transportation or on-site use or disposal of any sewage sludge generated at a wastewater treatment facility, the chief certified operator of the wastewater treatment facility or other responsible official who manages the processes to significantly reduce pathogens at the wastewater treatment facility for the permittee, shall certify that the sewage sludge underwent at least the minimum operational requirements necessary in order to meet one of the Processes to Significantly Reduce Pathogens. The acceptable processes and the minimum operational and recordkeeping re-quirements shall be in accordance with established U.S. Environmental Protection Agency final guidance; (D) All certification records and operational records describing how the requirements of this paragraph were met shall be kept by the generator for a minimum of three years and be available for inspection by commission staff for review; (E) In lieu of a generator obtaining a certification as specified in subparagraph (B) of this paragraph, the executive director will accept from the U.S. Environmental Protection Agency a finding of equivalency to the defined Processes to Significantly Reduce Pathogens; and (F) If the sewage sludge is generated from a mixture of sources, resulting from a person who prepares sewage sludge from more than one wastewater treatment facility, the resulting derived product shall meet one of the Processes to Significantly Reduce Pathogens, and shall meet the certification, operation, and record keeping requirements of this paragraph. (3) Site restrictions. (A) Food crops with harvested parts totally above the land surface that touch the sewage sludge/soil mixture shall not be harvested from the land for at least 14 months after the application of sewage sludge. (B) Food crops with harvested parts below the surface of the land shall not be harvested for at least 20 months after application of sewage sludge when the sewage sludge remains on the land surface for four months or longer prior to incorporation into the soil. (C) Food crops with harvested parts below the surface of the land shall not be harvested for at least 38 months after application of sewage sludge when the sewage sludge remains on the land surface for less than four months prior to the incorporation into the soil. (D) Food crops, feed crops and fiber crops shall not be harvested for at least 30 days after application of sewage sludge. (E) Animals shall not be allowed to graze on the land for at least 30 days after application of sewage sludge. (F) Turf grown on land where sewage sludge is applied shall not be harvested for at least one year after application of sewage sludge when the harvested turf is placed on either land with a high potential for public exposure or a lawn. (G) Public access to land with a high potential for public exposure shall be restricted for at least one year after application of sewage sludge. (H) Public access to land with a low potential for public exposure shall be restricted for at least 30 days after application of the sewage sludge. (c) Domestic septage. (1) The site restrictions in subsection (b) paragraph (3) of this section shall be met if domestic septage is applied to agricultural land, forest, or a reclamation site. (2) The pH of domestic septage applied to agricultural land, forest, or a reclamation site shall be raised to 12 or higher by alkali addition and, without the addition of more alkali, shall remain at 12 or higher for a period of 30 minutes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512008 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 Subchapter F. Disposal of Water Treatment Sludge 30 TAC sec.sec.312.121-312.123 The new sections are adopted under the Texas Water Code sec.5.103 and sec.5. 105, which authorizes the Texas Natural Resource Conservation Commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to Texas Health and Safety Code sec.sec.361.011 and 361.024 (Vernon 1992), which further authorizes the Texas Natural Resource Conservation Commission to promulgate rules necessary to regulate municipal solid waste and adopt rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1995. TRD-9512007 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 13, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 239-4640 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 55. Law Enforcement Subchapter D. Operation Game Thief Fund 31 TAC sec.55.114 The Operation Game Thief Committee, in a public hearing held September 14, 1995, adopted an amendment to sec.55.114, concerning reward payments, without changes to the proposed text as published in the May 30, 1995, issue of the Texas Register (20 TexReg 3965). Prior to the adoption of amended sec.55.114, the maximum payment for information gained through Operation Game Thief was $300. The amendment should further enhance the effectiveness of Operation Game Thief, and will function by encouraging the public to come forward with information concerning game and fish law violations, enabling the department to better protect the wildlife resources of the state. The amendment increases the maximum award limit for payments under Operation Game Thief from $300 to $1,000. The agency received no public comments regarding adoption of the amendment. The amendment is adopted under authority of Parks and Wildlife Code, Chapter 12, Subchapter C, sec.sec.12.201 et seq, which establishes the Operation Game Thief fund and provides rulemaking authority to the Operation Game Thief Committee for administration of the program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1995. TRD-9511971 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: October 10, 1995 Proposal publication date: May 30, 1995 For further information, please call: (512) 389-4642 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 81. Administrative Provisions 37 TAC sec.81.31 The Texas Youth Commission (TYC) adopts the repeal of sec.81.31, concerning TYC involvement in family in reducing recidivism advisory committee, without changes to the proposed text as published in the August 18, 1995 issue of the Texas Register (20 TexReg 6301). The justification for the repeal of the section is to eliminate a rule that is no longer necessary. The repeal will remove guidelines written for the advisory committee which was abolished by the 74th legislature. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1995. TRD-9511980 Steve Robinson Executive Director Texas Youth Commission Effective date: October 10, 1995 Proposal publication date: August 18, 1995 For further information, please call: (512) 483-5244 Part VI. Texas Department of Criminal Justice Chapter 152. Institutional Division Subchapter A. Prison Admissions 37 TAC sec.152.1 The Texas Department of Criminal Justice adopts new sec.152.1, concerning the scheduled admissions policy, without changes to the proposed text as published in August 1, 1995, issue of the Texas Register (20 TexReg 5701). The new section is a result of the repeal of the prison allocation formula and its replacement with the scheduled admissions policy, all in accordance with Texas Government Code, sec.499.071. Texas Government Code, sec.499.121(c) requires acceptance of felons from county jails within 45 days of reaching "paper-ready" status; this new section is intended to meet that requirement. No comments were received regarding adoption of the new section. The new section is adopted under the Government Code, sec.492.013, which grants general rulemaking authority to the Board, sec.499.071 (as amended by the 74th Legislature, Regular Session), and sec.499.121(c), which requires the institutional division to accept inmates from county jails within 45 days of reaching paper-ready status. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1995. TRD-9512017 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: October 11, 1995 Proposal publication date: August 1, 1995 For further information, please call: (512) 463-9693 Chapter 163. Community Justice Assistance Division Standards 37 TAC sec.163.46 The Texas Department of Criminal Justice adopts new sec.163.46, concerning percentage change limits between fiscal years for the community Corrections Program allocation formula, without changes to the proposed text as published in the August 1, 1995, issue of the Texas Register (20 TexReg 5701). This new section is permitted by Texas Code of Criminal Procedure, Article 42.13, sec.10, which gives the Texas Board of Criminal Justice discretion to adopt a policy limiting the percentage of benefit or loss that may be realized by a community supervision and corrections department as a result of the Community Corrections Program allocation formula. The new section will enhance the operations of community supervision and corrections departments by limiting funding changes between fiscal years. No comments were received regarding adoption of the new section. The new section is adopted under Texas Code of Criminal Procedure, Article 42.13, sec.10, which gives the Board of Criminal Justice the authority to adopt a policy limiting for all department the percentage of benefit or loss that may be realized as a result of the operation of the Community Corrections Program allocation formula. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1995. TRD-9512016 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: October 11, 1995 Proposal publication date: August 1, 1995 For further information, please call: (512) 463-9693 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 3. Income Assistance Services Subchapter PP. Immunization Requirements 40 TAC sec.sec.3.6001-3.6003 The Texas Department of Human Services (DHS) adopts new subchapter PP, Immunization Requirements, containing new sections sec. sec.3.6001-3.6003, with changes to the proposed text published in the July 18, 1995, issue of the Texas Register (20 TexReg 5208). The new sections are justified to introduce a policy to require immunizations as a condition for Aid to Families with Dependent Children (AFDC) eligibility. The new sections will function by ensuring that the immunization of children in Texas will increase and medical expenses associated with illness related to childhood diseases will decrease. During the public comment period, DHS received comments from three individuals regarding adoption of the new sections. A summary of the comments and DHS's responses follow: Comment: One commentor suggested that the phrase "must be current" be replaced with "proof that each child has either received or begun to receive their recommended immunizations as appropriate for their age" as stated in the Health and Human Services' (HHS's) Terms and Conditions for waiver approval and that "a child will not be considered overdue for an immunization until after the latest age in the range of acceptable age for a particular vaccination" be added. In general, the commentor requested that the language of the Terms and Conditions "be stated explicitly in the rules so that the state's responsibilities, as well as those of the AFDC recipients, are clearly and unambiguously enumerated both for the eligibility workers and for the AFDC clients." Response: DHS is adopting sec.3.6001 with changes to reflect the language of HHS's Terms and Conditions of the waiver of approval which was written after these rules were proposed. The rules are reworded as suggested. Comment: A commentor suggested in sec.3.6002, that "a $25 per child sanction departs from reason..." and that "a $2 per child sanction is at the upper limit of what would be appropriate". Response: This issue was previously addressed in the Board of Human Services meeting on March 24, 1995. Alternative options were discussed, and the board determined that a financial sanction must be significant enough to impress upon the caretakers of children the importance of obtaining immunizations for preschool children. This sanction amount was discussed with HHS and was approved as requested. Comment: A commentor took issue, in sec.3.6002, with the wording "proof of immunizations" stating that it is too vague and should be stated "proof of their child(ren) having either received or begun to receive" as it is stated in HHS's Terms and Conditions for waiver approval. Response: DHS is adopting sec.3.6002 with changes on the basis of comments to clarify proof of immunizations. Additionally, the section title is changed to clarify the intent of the section. Comment: HHS's Terms and Conditions for waiver approval includes a statement that sanctions will not be imposed until the reason for the failure to comply has been identified and any barriers to access have been addressed. One commentor wants this statement included as another reason for good cause. Additionally, the commentor stated that the Terms and Conditions language goes beyond that of the exemption provisions found in the Health and Safety Code, sec.161.004. The commentor suggested that the final rules include an exemption provision for situations in which a child is ill when the immunization is due, but the client shows a good faith effort in getting the child immunized and intends to continue with the immunization process. Thirdly, the commentor suggested that good cause also includes transportation problems, family emergency, illness or death in the family, disabilities in the family, and family travel away from home as previously set forth in testimony to the Board of Human Services at its March 24, 1995 meeting. Response: The Health and Safety Code allows medical or religious reasons as a basis for good cause. If the physician does not administer an immunization because of medical reasons, as provided in the Health and Safety Code, sec.161. 004, the client need only provide a statement from the physician to avoid a sanction. In response to comments relating to the Terms and Conditions, sec.3. 6003 is adopted with changes to allow for information to be provided before imposing sanctions. The new sections are adopted under the Human Resources Code, Title 2, Chapter 22 which provides the department with the authority to administer public assistance programs. The new sections implement the Human Resources Code, sec. sec.22.001-22.024. sec.3.6001. Immunization Requirements. The caretaker of each child under six years of age who receives Aid to Families with Dependent Children must provide proof that the child has received or begun to receive the immunization as appropriate for their age as provided on the schedule adopted by the Texas Board of Health according to the Health and Safety Code, sec.161.004. sec.3.6002. Sanction for Noncompliance with Immunization Requirements. Each household will provide proof, as specified in sec.3.6001 of this subchapter (relating to Immunization Requirements), at each periodic review. A household failing to comply with this requirement will be subject to a reduction in financial assistance in the amount of $25 per child (under age six) per month until immunizations are current or an immunization schedule is established by the medical provider. Households not currently certified will be advised of the immunization requirements at the time of application and the sanction will be applied at the first periodic review. Households currently receiving benefits will be advised of the immunization requirements at their periodic review following the effective date of the rule and be given until their next periodic review to achieve compliance. sec.3.6003. Good Cause. Sanctions are not imposed on Aid to Families with Dependent Children households who are exempt under the provisions of the Health and Safety Code, sec.161.004. If at recertification it is determined that the caretaker is not in compliance with the immunization requirement, normal timeframes for providing information will be allowed before imposing sanctions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1995. TRD-9512002 Nancy Murphy Section Manager, Media and Policy Service Texas Department of Human Services Effective date: October 10, 1995 Proposal publication date: July 18, 195 For further information, please call: (512) 438-3765