ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 11. Surface Mining and Reclamation Division Subchapter D. Coal Mining 16 TAC sec.11.221 The Railroad Commission of Texas adopts an amendment to sec.11.221, concerning the criteria for acceptance of self-bonds to ensure reclamation performance, with changes to the proposed text as published in the August 15, 1995, issue of the Texas Register (20 TexReg 6186). The proposal adds an additional alternative method of self-bonding in sec.806.309(j)(2)(c) to enable financially strong firms to bond their reclamation obligations by a self-bond. The applicant for a self-bond under this alternative method must have an investment grade rating for its most recent bond issuance and additional indicators of financial strength. The alternative provides the indicator ratio of total liabilities to net worth of 2.5 or less as an alternative to the current indicator ratio of total liabilities to net worth that is equal to or less than the industry median as determined from the applicant's primary standard industry classification code. The alternative includes specific requirements for net worth, fixed assets, issued and outstanding securities pursuant to the Securities Act of 1933 subject to the periodic financial reporting requirements of the Securities and Exchange Act of 1934, and a requirement that the total amount of the applicant's outstanding and proposed self-bonds for surface coal mining reclamation operations shall not exceed 16 2/3% of the applicant's net worth in the United States. No groups or associations filed comments. Comments were received from Texas Utilities Electric Company and Texas Utilities Mining Company which were in favor of the proposed amendments. The comments stated that the amendment will allow for mixing the tests among industry norms and the standard tests to provide more flexibility for financially strong firms and that the amendment is no less effective than federal regulations in that an investment grade bond rating coupled with asset size and location criteria establish compliance with the Office of Surface Mining's stringency standard, low probability of bankruptcy, reasonable liquidity, and debts not disproportionate to assets. The comments further stated that the amendment would require that information be made available regarding the permittee's financial integrity which are readily verifiable through public filings. The Railroad Commission concurs with these comments. The Office of Surface Mining commented that clarification was needed in the proposed amendment that the 25% net worth limitation applicable to other methods of self-bonding was not changing. The proposed amendment did not propose that this method change. The Commission agrees with OSM, however, and has added a sentence to subsection (iv) of sec.806.309(j)(2)(C) to provide this clarification. The text of sec.11.221 incorporates the rule on self-bonding by reference. The text of the adopted rule may be obtained from the Surface Mining and Reclamation Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711- 2967. The amendment is adopted pursuant to sec.134.013 of the Texas Surface Coal Mining and Reclamation Act, Chapter 76, sec.12.02, 1995 Texas Session Law Service 458, 792 (to be codified at Texas Natural Resources Code, Chapter 134) (Vernon), which provides the Commission with the authority to adopt rules pertaining to surface coal mining and reclamation operations. sec.11.221. State Program Regulations. (a)-(c) (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 October 17, 1995. TRD-9513358 Mary Ross McDonald Acting General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: November 8, 1995 Proposal publication date: August 15, 1995 For further information, please call: (512) 463-7008 TITLE 22. EXAMINING BOARDS Part XVI. Texas Board of Physical Therapy Examiners Chapter 321. Definitions 22 TAC sec.321.1 The Texas Board of Physical Therapy Examiners adopts an amendment to sec.321.1, concerning Definitions, without changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 5987). This section is being amended to clarify that a physical therapist assistant must have a written plan of care prepared by a physical therapist before the physical therapist assistant can treat a patient. This section requires the physical therapist to write a plan of care before authorizing a physical therapist assistant to treat a patient. No comments were received regarding adoption of the amendment. The amendment is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 16, 1995. TRD-9513287 John Maline Executive Director Texas Board of Physical Therapy Examiners Effective date: November 6, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 305-6900 Chapter 329. Licensing Procedure 22 TAC sec.329.5 The Texas Board of Physical Therapy Examiners adopts an amendment to sec.329.5, concerning Licensing Procedures for Foreign-Trained Applicants, without changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 5987). This section is being amended to clarify what is required of a foreign-trained applicant in order to take the physical therapist examination in Texas. This section identifies how laboratory hours are converted into semester hours and sets the maximum number of hours allowed in clinical education. Applicants are required to pass all courses in professional education with a grade of C or above. No comments were received regarding adoption of the amendment. The amendment is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 16, 1995. TRD-9513288 John Maline Executive Director Texas Board of Physical Therapy Examiners Effective date: November 6, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 305-6900 Chapter 341. License Renewal 22 TAC sec.341.8 The Texas Board of Physical Therapy Examiners adopts new sec.341.8, concerning Inactive Status, with changes to the proposed text as published in the August 8, 1995 issue of the Texas Register 20 TexReg 5988. This section is being amended to establish an inactive status for physical therapists and physical therapist assistants. This section informs licensees what is required to convert a license to inactive status and how to reactivate it. No comments were received regarding adoption of the amendment. The rule is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.341.8. Inactive Status. Inactive status shall mean the voluntary termination of the right or privilege to practice physical therapy in Texas. The licensee retains the right or privilege to represent himself/herself as having an inactive license. An inactive status will be limited to three renewal periods. A licensee may petition the board to extend the inactive period to a maximum of two renewal periods. Any person who has been licensed in the state and is not actively engaged in the practice of physical therapy in the state may, at his/her request, be placed on the inactive status. The board shall keep an inactive register. A person whose license has been placed on inactive status may be reinstated by the board. An applicant must do one of the following: (1) take and pass the PES examination; (2) attend a university review course approved by the board (3) have accumulated three Continuing Education Units (CEUs) (two CEUs for physical therapist assistants) for each two year period of inactive status. These CEUs may be obtained at any time during the period of inactive status. No CEUs obtained during the period of active status will be accepted; or (4) complete an internship approved by the board which is equal to 150 hours. The inactive licensee must submit to the board a notarized, completed application on a form provided by the board. The renewal fee must be included with application. The board shall act after receipt of the application for reinstatement from inactive status and shall send to the applicant written notification of its decision to reinstate the license. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 16, 1995. TRD-9513289 John Maline Executive Director Texas Board of Physical Therapy Examiners Effective date: November 6, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 305-6900 Chapter 346. Practice Setting for Physical Therapy 22 TAC sec.346.1 The Texas Board of Physical Therapy Examiners adopts an amendment to sec.346.1, concerning Educational Settings, without changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 5988). This section is being amended to clarify what role the physical therapist or physical therapist assistant performs in an educational setting. This section informs physical therapists and physical therapist assistants how to perform when providing services in an educational setting. No comments were received regarding adoption of the amendment. The amendment is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 16, 1995. TRD-9513290 John Maline Executive Director Texas Board of Physical Therapy Examiners Effective date: November 6, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 305-6900 Part XXXII. State Board of Examiners for Speech-Language Pathology and Audiology Chapter 741. Speech-Language Pathologists and Audiologists The State Board of Examiners for Speech-Language Pathology and Audiology (board) adopts amendments to sec.sec.741.65, 741.85, 741.103 and 741.181; and new sec.741.67 and sec.741.200, concerning speech-language pathology and audiology. Sections 741.65, 741.85, 741.103 and 741.200 are adopted with changes to the proposed text as published in the September 5, 1995, issue of the Texas Register (20 TexReg 6878). Section 741.67 and sec.741.181 are adopted without changes and will not be republished. Specifically, the sections cover qualifications for and job duties that an assistant may or may not perform; required application material; qualification for a limited license to practice in the public schools; and suspension and reinstatement of a license for failure to pay child support. The amendments reorganize and clarify the duties and supervision of an assistant; clarify how an applicant who did not accumulate the required clinical observation or clinical assisting experience required for an assistant's license may do so; establish a method to allow the board to approve a specific clinical observation or experience sponsor who submits such a proposal to the board; clarify and delete unnecessary language concerning required application materials; define application materials required for a limited license; and establish the fee required to reinstate a license that had been suspended for failure to pay child support. New sec.741.67 and sec.741.200 are necessary to implement legislation passed by the 74th Legislature, 1995. Section 741.67 establishes the qualifications for a limited license to practice in the public schools. Section 741.200 establishes the procedures to suspend and reinstate a license for failure to pay child support. The sections establish requirements for licensure and registration of speech- language pathologists and audiologists; application procedures; fees and processing procedures; and denial, probation, suspension, or revocation of licensure of registration. No comments were received concerning the proposed sections; however, office staff made the following minor changes for clarification purposes. Concerning sec.741.65(d)(3) and sec.741.85(d)(3), the board added language to clarify that the supervisory responsibility statement must be approved by the board. Concerning sec.741.103(d)(6), the board corrected the misspelled title of the Educational Testing Service. Concerning sec.741.103(h), the word "and" was inserted between paragraphs (1) and (2). Concerning sec.741.200(c), the correct cite under the Family Code should be Chapter 751, sec.85, (House Bill 433). Concerning sec.741.200(h), the board corrected the reference to read sec.741. 181. Subchapter E. Requirements for Licensure and Registration of Speech-Language Pathologists 22 TAC sec.741.65, sec.741.67 The amendment and new section are adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j; sec.12 relating to rules on the examination; and sec.13A relating to rules on the limited license to practice in the public schools. sec.741.65. Requirements for an Assistant in Speech-Language Pathology License. (a) An assistant is an individual who provides speech-language pathology support services to clinical programs under supervision of a licensed speech- language pathologist. (b) An applicant for an assistant in speech-language pathology license must meet the following requirements: (1) a baccalaureate degree with an emphasis in speech-language pathology or audiology; (2) no fewer than 24 semester hours in speech-language pathology and/or audiology, at least nine of which must be in the area for which license is being sought; (3) no fewer than 25 hours of clinical observation and 25 hours of clinical assisting experience obtained within an educational institution or in one of its cooperating programs; (4) the filing of original or certified copy of transcript(s) which shall be reviewed as in sec.741.61(11) of this title (relating to Requirements for a Speech-Language Pathology License); and (5) a supervisory responsibility statement submitted by the licensed speech- language pathologist responsible for services provided by the assistant. (c) If an applicant has not obtained the hours referenced in subsection (b)(3) of this section, the applicant may file a written request for an alternative method to obtain the hours. A deficiency plan for the clinical observation and/or assisting experience designed and signed by an appropriate sponsor must be submitted with the application and fee. Such a plan must be approved by the board and the license issued before any observation or clinical assisting experience clock hours may begin. The board may ask for further information or revisions before approving or disapproving the plan. If approved, an assistant license shall be issued upon payment of the initial license fee. The individual shall then complete the hours in accordance with the board approved plan within 60 days. If the board office does not receive proof of successful completion of the hours by the end of the 60 days, the individual shall be considered to have voluntarily surrendered the assistant license. (d) Direct supervision of speech-language pathology duties assigned to the assistant shall be provided by a licensed speech-language pathologist. (1) The assistant's initial client contact shall be directly supervised. Thereafter, the minimum supervision requirements for an assistant by the licensed speech-language pathologist shall be no less than two hours a week, at least half of which is direct on-site supervision at the location where the assistant is employed. If an alternative arrangement is needed, the licensed speech-language pathologist must submit a proposed plan for review by the board or the appropriate committee to determine if the plan is acceptable. Indirect methods of supervision such as audio and/or video tape recording, telephone communication, numerical data, or other means of reporting may be utilized. (2) Supervisory records shall be maintained by the licensed speech-language pathologist which verify regularly scheduled monitoring, assessment, and evaluation of the assistant's and client's performance. Such documentation may be requested by the board. (3) If a change in the supervisory responsibility occurs, a new supervisory responsibility statement must be submitted and approved by the board office before the assistant may resume practice. (e) Although the licensed speech-language pathologist may delegate specific clinical tasks to an assistant, the responsibility to the client for all services provided cannot be delegated. The licensed speech-language pathologist must ensure that all services provided are in compliance with this chapter. The assistant may execute specific components of the clinical speech, language, and/or hearing program if the licensed speech-language path ologist determines that the assistant has received the training and has the skill to accomplish that task, and the licensed speech-language pathologist provides sufficient supervision to ensure appropriate completion of the task assigned to the assistant. The licensed speech-language pathologist must keep job descriptions and performance records; these must be current and must be made available to the board within 30 days of the date of the board's request for such records. (1) Examples of duties which an assistant may be assigned, provided appropriate training has been received, are to: (A) conduct or participate in speech, language, and/or hearing screening; (B) implement the treatment program or the individual education plan (IEP) designed by the licensed speech-language pathologist; (C) provide carry-over activities which are the therapeutically designed transfer of a newly acquired communication ability to other contexts and situations; (D) maintain clinical records; (E) prepare clinical materials; and (F) participate with the licensed speech-language pathologist in research projects, staff development, public relations programs, or similar activities as designated and supervised by the licensed speech-language pathologist. (2) The assistant must not: (A) conduct independent evaluations; (B) interpret observations or data into diagnostic statements, clinical management strategies, or procedures; (C) design a treatment program or individual education plan (IEP); (D) determine case selection; (E) present written or oral reports of client information; (F) refer a client to other professionals or other agencies; (G) use any title which connotes the competency of a licensed speech-language pathologist; or (H) practice as an assistant in speech-language pathology without a valid supervisory responsibility statement on file in the board office. (3) Any references to the licensee's title shall state clearly that the license status is that of an assistant. (f) An assistant may renew a license without submitting a current supervisory responsibility statement completed by the licensed speech-language pathologist. However, if the assistant loses his or her licensed speech-language pathologist, the assistant may not practice until another licensed speech-language pathologist agrees to accept responsibility for the services provided by the assistant and a new supervisory responsibility statement is submitted and approved by the board office. To continue to practice without a current supervisory responsibility statement on file in the board office may result in revocation of the assistant's license. 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 October 18, 1995. TRD-9513377 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: November 8, 1995 Proposal publication date: September 5, 1995 For further information, please call: (512) 834-6627 Subchapter F. Requirements for Licensure and Registration of Audiologists 22 TAC sec.741.85 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j; sec.12 relating to rules on the examination; and sec.13A relating to rules on the limited license to practice in the public schools. sec.741.85. Requirements for an Assistant in Audiology License. (a) An assistant is an individual who provides audiological support services to clinical programs under supervision of a licensed audiologist. (b) An applicant for an assistant in audiology license must meet the following requirements: (1) a baccalaureate degree with an emphasis in speech-language pathology or audiology; (2) no fewer than 24 semester hours in speech-language pathology and/or audiology, at least nine of which must be in the area for which license is being sought; (3) no fewer than 25 hours of clinical observation and 25 hours of clinical assisting experience obtained within an educational institution or in one of its cooperating programs; (4) the filing of an original or certified copy of transcript(s) which shall be reviewed as in sec.741.81(11) of this title (relating to Requirements for an Audiology License); and (5) a supervisory responsibility statement submitted by the licensed audiologist responsible for services provided by the assistant. (c) If an applicant has not obtained the hours referenced in subsection (b)(3) of this section, the applicant may file a written request for an alternative method to obtain the hours. A deficiency plan for the clinical observation and/or assisting experience designed and signed by the appropriate sponsor must be submitted with the application and fee. Such a plan must be approved by the board and the license issued before any observation or clinical assisting experience clock hours may begin. The board may ask for further information or revisions before approving or disapproving the plan. If approved, an assistant license shall be issued upon payment of the initial license fee. The individual shall then complete the hours in accordance with the board approved plan within 60 days. If the board office does not receive proof of successful completion of the hours by the end of the 60 days, the individual shall be considered to have voluntarily surrendered the assistant license. (d) Direct supervision of speech-language pathology duties assigned to the assistant shall be provided by a licensed audiologist. (1) The assistant's initial client contact shall be directly supervised. Thereafter, the minimum supervision requirements for an assistant by the licensed audiologist shall be no less than two hours a week, at least half of which is direct on site supervision at the location where the assistant is employed. If an alternative arrangement is needed, the licensed audiologist must submit a proposed plan for review by the board or the appropriate committee to determine if the plan is acceptable. Indirect methods of supervision such as audio and/or video tape recording, telephone communication, numerical data, or other means of reporting may be utilized. (2) Supervisory records shall be maintained by the licensed audiologist which verify regularly scheduled monitoring, assessment, and evaluation of the assistant's and client's performance. Such documentation may be requested by the board. (3) If a change in the supervisory responsibility occurs, a new supervisory responsibility statement must be submitted and approved by the board office before the assistant may resume practice. (e) Although the licensed audiologist may delegate specific clinical tasks to an assistant, the responsibility to the client for all services provided cannot be delegated. The licensed audiologist must ensure that all services provided are in compliance with this chapter. The assistant may execute specific components of the clinical speech, language, and/or hearing program if the licensed audiologist determines that the assistant has received the training and has the skill to accomplish that task, and the licensed audiologist provides sufficient supervision to ensure appropriate completion of the task assigned to the assistant. The licensed audiologist must keep job descriptions and performance records; these must be current and must be made available to the board within 30 days of the date of the board's request for such records. (1) Examples of duties which an assistant may be assigned, provided appropriate training has been received, are to: (A) conduct or participate in speech, language, audiometric and/or hearing screening; (B) conduct aural habilitation or rehabilitation; (C) provide carry-over activities which are the therapeutically designed transfer of a newly acquired communication ability to other contexts and situations; (D) maintain clinical records; (E) prepare clinical materials; and (F) participate with the licensed audiologist in research projects, staff development, public relations programs, or similar activities as designated and supervised by the licensed audiologist. (2) The assistant must not: (A) conduct independent evaluations; (B) interpret observations or data into diagnostic statements, clinical management strategies, or procedures; (C) design a treatment program; (D) determine case selection; (E) present written or oral reports of client information; (F) refer a client to other professionals or other agencies; (G) use any title which connotes the competency of a licensed audiologist; or (H) practice as an assistant in audiology without a valid supervisory responsibility statement on file in the board office. (3) Any reference to the licensee's title shall state clearly that the license status is that of an assistant. (f) An assistant may renew a license without submitting a current supervisory responsibility statement completed by the licensed audiologist. However, if the assistant loses his or her licensed audiologist, the assistant may not practice until another licensed audiologist agrees to accept responsibility for the services provided by the assistant and a new supervisory responsibility statement is submitted and approved by the board office. To continue to practice without a current supervisory responsibility statement on file in the board office may result in revocation of the assistant's license. (g) An assistant may not engage in tasks for the fitting, dispensing or sale of a hearing instrument; however, an assistant who is licensed under Texas Civil Statutes, Article 4566-1.01, et seq, may engage in activities as allowed by that law and is not considered to be functioning under his or her assistant license when performing those activities. 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 October 18, 1995. TRD-9513378 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: November 8, 1995 Proposal publication date: September 5, 1995 For further information, please call: (512) 834-6627 Subchapter H. Application Procedures 22 TAC sec.741.103 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j; sec.12 relating to rules on the examination; and sec.13A relating to rules on the limited license to practice in the public schools. sec.741.103. Required Application Materials. (a) An applicant applying for a speech-language pathology or audiology license under sec.741.61 of this title (relating to Requirements for a Speech-Language Pathology License) or sec.741.81 of this title (relating to Requirements for an Audiology License) must submit the following: (1) a current, original application form obtained from the board office that requires the disclosure of the applicant's social security number and has been completed, signed, dated, and notarized by the applicant; (2) (No change.) (3) an original or certified copy of transcript(s) of all relevant course work which also verifies that the applicant possesses a minimum of a master's degree with a major in one of the areas of communicative sciences or disorders; (4) an original coursework and clinical experience form obtained from the board office completed by the director or designee of the college or university attended which verifies the applicant has met the requirements established in sec.741.61(2)-(9) of this title or sec.741.81(2)-(9) of this title; (5) an original report of completed internship form obtained from the board office completed by the applicant's supervisor and signed by both the applicant and the supervisor; and (6) an original or certified statement from the Educational Testing Service showing the applicant passed the examination described in sec.741.122 of this title (relating to Administration) within the past ten years. (b) An applicant applying for an intern in speech-language pathology license under sec.741.62 of this title (relating to Requirements for an Intern in Speech-Language Pathology License) or an intern in audiology license under sec.741.82 of this title (relating to Requirements for an Intern in Audiology License) must submit the following: (1) a current, original application form obtained from the board office that requires the disclosure of the applicant's social security number and has been completed, signed, dated and notarized by the applicant; (2) (No change.) (3) an original or certified copy of transcript(s) of all relevant course work which also verifies that the applicant possesses a minimum of a master's degree with a major in one of the areas of communicative sciences or disorders; (4) if the master's degree has not been officially conferred, an original or certified copy of transcript(s) and a letter signed by the program director at the university attended verifying the applicant successfully completed all requirements for the master's degree, and is only awaiting the date of next graduation for the degree to be conferred; (5) an original coursework and clinical experience form obtained from the board office completed by the director or designee of the college or university attended which verifies the applicant met the requirements established in sec.741.61(2)-(9) of this title or sec.741. 81(2)-(9) of this title; and (6) a current, original intern plan and agreement of supervision form obtained from the board office completed by the supervisor and signed by both the applicant and the supervisor. (c) An applicant who holds the American Speech-Language-Hearing Association certificate of clinical competence applying for licensure under sec.741.63 of this title (relating to Special Conditions for Licensure of Speech-Language Pathologists) or sec.741.83 of this title (relating to Special Conditions for Licensure of Audiologists) must submit the following: (1) a current, original application form obtained from the board office that requires the disclosure of the applicant's social security number and has been completed, signed, dated and notarized by the applicant; (2) (No change.) (3) an original or certified copy of a letter from the American Speech- Language-Hearing Association which verifies the applicant currently holds the certificate of clinical competence in the area in which the applicant has applied for license; however, an applicant who holds the American Speech- Language-Hearing Association certificate of clinical competence in audiology and in speech-language pathology applying for dual licensure as a speech-language pathologist and audiologist must submit an original or certified copy of a letter from the American Speech-Language-Hearing Association which verifies the applicant currently holds the certificate of clinical competence in speech- language pathology and in audiology; and (4) (No change.) (d) An applicant applying for a speech-language pathology or audiology provisional license under sec.741. 64 of this title (relating to Requirements for a Provisional Speech-Language Pathology License) or sec.741.84 of this title (relating to Requirements for a Provisional Audiology License) must submit the following: (1) a current, original application form obtained from the board office that requires the disclosure of the applicant's social security number and has been completed, signed, dated, and notarized by the applicant; (2)-(4) (No change.) (5) an original letter or form completed by that state's licensing board with board seal affixed which verifies the applicant holds a current valid license and which contains: (A)-(H) (No change.) (6) an original or certified statement from the Educational Testing Service which verifies the applicant passed the examination described in sec.741.122 of this title within the past ten years if no examination is listed under paragraph (5)(F) of this subsection; (7)-(8) (No change.) (e) An applicant applying for an assistant in speech-language pathology license under sec.741.65 of this title (relating to Requirements for an Assistant in Speech-Language Pathology License) or an assistant in audiology license under sec.741.85 of this title (relating to Requirements for an Assistant in Audiology License) must submit the following: (1) a current, original application form obtained from the board office that requires the disclosure of the applicant's social security number and has been completed, signed, dated, and notarized by the applicant; (2) (No change.) (3) a current, original supervisory responsibility statement form obtained from the board office completed by the licensed speech-language pathologist or licensed audiologist who agrees to accept responsibility for the services provided by the assistant; (4) an original or certified copy of transcript(s) of relevant course work which also verifies that the applicant possesses a baccalaureate degree with an emphasis in speech-language pathology and/or audiology; (5) an original clinical observation and experience form obtain from the board office and completed by the director or designee of the college or university training program verifying the applicant completed the requirements set out in sec.741.65(b)(3) of this title or sec.741. 85(b)(3) of this title; and (6) for an applicant who did not obtain the hours referenced in paragraph (5) of this subsection, a written request for board review for an alternative method to obtain the hours. (f) An applicant applying for a speech-language pathology temporary certificate of registration under sec.741.66 of this title (relating to Requirements for a Temporary Certificate of Registration in Speech-Language Pathology) or an audiology temporary certificate of registration under sec.741. 86 of this title (relating to Requirements for a Temporary Certificate of Registration in Audiology) must submit the following: (1) a current, original application form obtained from the board office that requires the disclosure of the applicant's social security number and has been completed, signed, dated and notarized by the applicant; (2) (No change.) (3) an original or certified copy of transcript(s) of all relevant course work which also verifies that the applicant possesses a minimum of a master's degree with a major in one of the areas of communicative sciences or disorders; (4) an original coursework and clinical experience form obtained from the board office completed by the director or designee of the college or university attended which verifies the applicant met the requirements established in sec.741.61(2)-(9) of this title or sec.741.81(2)-(9) of this title; and (5) an original report of completed internship form obtained from the board office completed by the applicant's supervisor and signed by both the applicant and the supervisor. (g) An applicant applying for a limited license to practice speech-language pathology in the public schools under sec.741.67 of this title (relating to Requirements for a Limited License to Practice Speech-Language Pathology in the Public Schools) must submit the following: (1) current, original application form obtained from the board office that requires the disclosure of the applicant's social security number and has been completed, signed, dated, and notarized by the applicant; (2) the nonrefundable application fee; (3) an original or certified copy of transcript(s) of all relevant course work which also verifies that the applicant holds a baccalaureate degree in communication disorders; (4) a current, original statement signed by the superintendent of the school district stating the district has been unable to employ a licensed speech- language pathologist; (5) an original form or letter from a school district showing the applicant has been employed as a speech-language pathologist from January 1, 1994 through December 31, 1995; (6) an original form or letter from Central Education Agency stating the applicant is certified in speech and hearing therapy; (7) an original or certified statement from the Educational Testing Service showing the applicant passed the examination described in sec.741.122 of this title within the past ten years; (8) for an applicant applying under sec.741. 67(d)(1) of this title, no fewer than two notarized statements from employers, administrators, professional colleagues, or members of related professions verifying that the applicant was engaged in the practice of speech-language pathology with two years prior to September 1, 1983; and (9) for an applicant applying under sec.741.67(d)(2) of this title, an original letter from the program director of the college or university verifying the applicant is enrolled in a program of study towards a master's degree with a major in one of the areas of communicative sciences or disorders. (h) A licensed audiologist or licensed intern in audiology who wishes to fit and dispense hearing instruments under sec.741.87 of this title (relating to Requirements for Registration of Audiologists and Interns in Audiology who Fit and Dispense Hearing Instruments) must submit the following: (1) a current, original registration form obtained from the board office that requires the disclosure of the applicant's social security number and has been completed, signed, dated, and notarized by the applicant; and (2) the nonrefundable registration fee. 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 October 18, 1995. TRD-9513379 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: November 8, 1995 Proposal publication date: September 5, 1995 For further information, please call: (512) 834-6627 Subchapter L. Fees and Processing Procedures 22 TAC sec.741.181 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5 which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j; sec.12 relating to rules on the examination; and sec.13A relating to rules on the limited license to practice in the public schools. 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 October 18, 1995. TRD-9513380 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: November 8, 1995 Proposal publication date: September 5, 1995 For further information, please call: (512) 834-6627 Subchapter M. Denial, Probation, Suspension, or Revocation of Licensure or Registration 22 TAC sec.741.200 The new section is adopted under Texas Civil Statutes, Article 4512j, sec.5, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j; sec.12 relating to rules on the examination; and sec.13A relating to rules on the limited license to practice in the public schools. sec.741.200. Suspension of License for Failure to Pay Child Support. (a) On receipt of a final court or attorney general's order suspending a license due to failure to pay child support, the executive secretary shall immediately determine if the board has issued a license to the obligor named on the order, and, if a license has been issued: (1) record the suspension of the license in the board's records; (2) report the suspension as appropriate; and (3) demand surrender of the suspended license. (b) The board shall implement the terms of a final court or attorney general's order suspending a license without additional review or hearing. The board will provide notice as appropriate to the licensee or to others concerned with the license. (c) The board may not modify, remand, reverse, vacate, or stay a court or attorney general's order suspending a license issued under the Family Code, Chapter 232 as added by Acts 1995, 74th Legislature, Chapter 751, sec.85 (House Bill 433) and may not review, vacate, or reconsider the terms of an order. (d) A licensee who is the subject of a final court or attorney general's order suspending his or her license is not entitled to a refund for any fee paid to the board. (e) If a suspension overlaps a license renewal period, an individual with a license suspended under this section shall comply with the normal renewal procedures in the Act and this chapter; however, the license will not be renewed until subsections (g) and (h) of this section are met. (f) An individual who continues to practice or represent himself or herself as a speech-language pathologist or audiologist after the issuance of a court or attorney general's order suspending the license is liable for the same civil and criminal penalties provided for engaging in the prohibited activity without a license or while a license is suspended as any other license holder of the board. (g) On receipt of a court or attorney general's order vacating or staying an order suspending a license, the executive secretary shall promptly issue the affected license to the individual if the individual is otherwise qualified for the license. (h) The individual must pay a reinstatement fee set out at sec.741.181 (relating to Schedule of Fees) prior to issuance of the license under subsection (g) of this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 18, 1995. TRD-9513381 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: November 8, 1995 Proposal publication date: September 5, 1995 For further information, please call: (512) 834-6627 Part VI. Statewide Health Coordinating Council Chapter 571. Health Planning and Resource Development The Statewide Health Coordinating Council (SHCC) adopts the repeal of sec.571.1 and sec.sec.571.41-571.51, and new sec.sec.571.1-571.7, concerning the Texas Statewide Health Coordinating Council and the State Health Plan. Sections 571.3 and 571.4 are adopted with changes to the proposed text as published in the August 4, 1995, issue of the Texas Register (20 TexReg 5851). New sections 571.1-571.2, 571.5-571.7 and the repeals are adopted without changes and will not be republished. Specifically, the repealed sections cover the State Health Plan, introduction, purpose and functions, organization and structure, officers, meetings, committees, ad hoc advisory groups, conflict of interest, general considerations, amendments, and dissolution of the Statewide Health Coordinating Council. The new sections cover purpose, general provisions, officers, meetings, committees, the State Health Plan, and plan implementation. The repeals were necessary to revise and restructure the rules in this chapter. The SHCC is a 15-member advisory council appointed by the governor which is charged with developing and revising the Texas State Health Plan. The new rules incorporate changes in federal and state law, including the repeal of the National Health Planning and Resources Development Act and amendments to Chapter 104 of the Texas Health and Safety Code enacted by the 73rd Texas Legislature. The new rules define the purpose and functions of the SHCC and establish procedures for public participation in the development and implementation of the State Health Plan. No comments on the proposed repeals or new sections were received, however, editorial changes were made for clarification purposes. State Health Plan 25 TAC sec.571.1 The repeal is adopted under Health and Safety Code, sec.104.012, which requires the SHCC to adopt rules governing the development and implementation of the state health plan. 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 October 18, 1995. TRD-9513382 John P. Howe, III, M.D. Chairman Statewide Health Coordinating Council Effective date: November 8, 1995 Proposal publication date: August 4, 1995 For further information, please call: (512) 458-7261 25 TAC sec.sec.571.1-571.7 The new sections are adopted under Health and Safety Code, sec.104.012, which requires the SHCC to adopt rules governing the development and implementation of the state health plan. sec.571.3. Officers. (a) Selection and appointment. At its first meeting on or after September 1 of each year, the council shall elect a chair, unless the chair has been appointed by the governor, a first vice chair, a second vice chair, and a secretary from among its members. The chair shall appoint a parliamentarian from among the members. (b) Duties. The chair shall preside at all meetings, and appoint such standing and ad hoc committees as are authorized by the council. The first vice chair and the second vice chair, in that order, shall assume the authority and duties of the chair when the chair is absent. The parliamentarian shall advise the chair and the council on parliamentary procedure upon the request of the chair or any member of the council. The secretary shall authenticate the minutes of all council meetings and perform such other duties as may be assigned by the chair or the council. (c) Elections. In addition to considering the slate submitted by the nominating committee, the chair shall also accept nominations from the floor. Officers so elected shall serve two-year terms, or until their successors are elected, and shall assume office immediately upon election, excluding partial terms. (d) Vacancies. Vacancies in offices shall be filled by a majority vote of members present and voting at the next regularly scheduled meeting of the council. Officers so elected shall serve the unexpired term of their predecessor. sec.571.4. Meetings. (a) Parliamentary procedure. All council, committee, and advisory group meetings shall be conducted in accordance with parliamentary procedure as described in the most recent edition of Robert's Rules of Order. (b) Minutes. Department staff shall prepare and transmit minutes of each council meeting to the members for review prior to the next meeting. (c) Attendance. Department staff shall maintain a record of each member's attendance at council meetings. If any member fails to attend two consecutive regular meetings without authorization from the chair, a motion to notify the member officially of such absences shall be voted on by the council. If approved, a copy of the notification shall also be forwarded to the governor with a request for appropriate action. (d) Quorum. A majority of the council shall be defined as more than one-half the voting members of the council. A majority of the council shall constitute a quorum for the transaction of business at any meeting. (e) Voting. The council may act only by majority vote of its members present and voting, with each member entitled to one vote unless a conflict of interest has arisen. No member may vote by proxy for another member. (f) Presiding officer. In the absence of the chair, first vice chair, and the second vice chair, a presiding officer shall be chosen by a majority of the council members present. (g) Frequency of meetings. The council shall meet not less than two times per year at times and places designated by the chair. (h) Called meetings. Meetings of the council may be called by the chair and one other officer, or at the request of any eight members. 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 October 18, 1995. TRD-9513384 John P. Howe, III, M.D. Chairman Statewide Health Coordinating Council Effective date: November 8, 1995 Proposal publication date: August 4, 1995 For further information, please call: (512) 458-7261 Procedures and Bylaws 25 TAC sec.sec.571.41-571.51 The repeals are adopted under Health and Safety Code, sec.104.012, which requires the SHCC to adopt rules governing the development and implementation of the state health plan. 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 October 18, 1995. TRD-9513383 John P. Howe, III, M.D. Chairman Statewide Health Coordinating Council Effective date: November 8, 1995 Proposal publication date: August 4, 1995 For further information, please call: (512) 458-7261 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 334. Underground and Aboveground Storage Tanks Texas Natural Resource Conservation Commission (TNRCC) adopts amendments to sec.sec.334.1, 334.2, 334.7, 334.11, 334.12, 334.21, 334.22, 334.42, 334.78, 334.80, 334.81, 334.97, 334.127, 334.128, 334.301-334.322, 334.452, 334.453, 334.455-334.457, 334.460, 334.533; and new sec.sec.334.15-334.17, 334.110, 334. 201-334.208, 334.429, and 334.467, concerning the regulation of underground and aboveground storage tanks, and concerning individuals and business entities who own and operate such tanks and who perform regulated activities related to storage tanks. Sections 334.15, 334.203, 334.205, 334.206, 334.208, 334.302, 334.310, 334.313 and 334.452 are adopted with changes to the proposed text as published in the July 18, 1995 issue of the Texas Register (20 TexReg 5142) and (20 TexReg 5266). A Correction of Error was published in the August 4, 1995 issue of the Texas Register (20 TexReg 5945) for sec.334. 203 and sec.334.205. Sections 334.1, 334.2, 334.7, 334.11, 334.12, 334.16, 334. 17, 334.21, 334.22, 334.42, 334.78, 334.80, 334.81, 334.97, 334.110, 334.127, 334.128, 334.201, 334.202, 334.204, 334.207, 334.301, 334.303-334.309, 334.311, 334.312, 334.314- 334.322, 334.429, 334.453, 334.455-334.457, 334.460, 334.467, and 334.533 are adopted without changes and will not be republished. These rules are adopted primarily for the purpose of implementing new requirements enacted by House Bill 2587, 74th Texas Legislature, 1995, which went into effect on September 1, 1995 and significantly revised the TNRCC's regulatory authority for violations of technical standards and financial assurance requirements by owners and operators, violations by contractors and supervisors of storage tank activities, and violations committed by businesses and individuals associated with corrective action activities associated with regulated storage tanks. These sections also add conditions, limitations, and performance deadlines related to reimbursements from the petroleum storage tank remediation fund, and will provide for the progressive phase-out of the fund as a financial assurance mechanism. Additionally, these proposed sections will incorporate risk-based corrective action for the remediation of leaking storage tank sites and will authorize privatization of all or part of the TNRCC's storage tank regulatory program. The amended and new rules are adopted to enhance the TNRCC's authority to enforce the storage tank regulations and make more efficient use of the petroleum storage tank remediation fund. These rules are also adopted in response to previous legislative actions that affected the assessment of penalties and interest charges on fees. Once in effect, these rules provide incentives for reporting and investigating releases from storage tanks, upgrading tanks to prevent future releases, remediating existing contamination, and providing enhanced protection of human health and safety as well as the environment. The TNRCC received comments from Browning-Ferris Industries; Exxon Company USA; Chevron USA; City of Houston; Consulting Engineers Council of Texas; Diamond Shamrock, Inc.; Independent Bankers Association of Texas; Industry Council on the Environment; Lofland Company; Major Brand Gasoline; Pennzoil Company; R & H Well Service, Inc.; Texas Board of Professional Land Surveying, Texas Land Title Association; Texas Mid-Continent Oil & Gas Association; Texas Oil Marketers Association; Texas Society of Professional Surveyors; Texas State Board of Registration for Professional Engineers; Texas Utilities Services, Inc.; U.S. Environmental Protection Agency, and other individuals. The TNRCC is grateful for the comments it received and offers the following responses. One comment received by the TNRCC addressed the disciplinary action against professional engineers who violate TNRCC rules for corrective action project managers. The commenter agreed that the TNRCC needs to retain some authority over engineers for acts committed outside the statutory authority of the Board of Registration of Professional Engineers. However, the commenter objected to the language in sec.334.11(c)(3) where the TNRCC reserves enforcement authority where the Board of Registration of Professional Engineers chooses not to pursue disciplinary action, or for any other reason. Another commenter said the Texas Board of Registration of Professional Engineers is willing to take appropriate action when an engineer practices outside their area of expertise. The TNRCC recognizes that professional engineers are subject to the Texas Engineering Practices Act which is enforced by the Texas State Board of Registration for Professional Engineers. Discussions between the TNRCC and the Texas State Board of Registration for Professional Engineers are addressing this issue, and are focused towards an agreement on how violations of 30 TAC Chapter 334 rules will be identified and processed. The TNRCC agrees that engineers who violate the Engineering Practices Act should be referred to the Texas Board of Registration for Professional Engineers. However, the TNRCC also recognizes that violations outside the jurisdiction of the engineering board are possible, and though they may be committed by engineers, it may be appropriate that such actions be reviewed through enforcement proceedings by the TNRCC. The rule will remain as proposed, but there will be careful coordination between the two state agencies on enforcement actions against engineers found in violation of the storage tank rules. A commenter stated that with respect to sec.334.11(c)(2)(B), the thirty day requirement is not reasonable if modifications to the tank require filing a 30- day construction notification. The commenter suggested that the rule be changed to allow an owner or operator 60 days to correct deficiencies relating to technical standards. In the alternative, the commenter suggested that wording be added such that the TNRCC would only take action to shut down a UST system if the owner/operator is not cooperative. The TNRCC recognizes that in some instances, if a construction notification is required, thirty days after the date the notice of violation is received may not be sufficient time to correct a technical standard deficiency. However, the TNRCC feels that sec.334.6(b)(4) already provides a remedy to this by allowing an entity the opportunity to accelerate the construction activity by requesting a waiver to the 30-day construction notification requirement. No change was made to this rule. One comment was made that the types of loans listed in sec.334.15(a)(1) should be descriptive and not exclusive, since the general case is covered in sec.334.15(a)(2). Both paragraphs are addressing types of security or lienhold interests where the lender is not liable as a storage tank owner or operator even though the lender may hold indicia of ownership. However, the TNRCC feels the type of loans included in sec.334.15(a)(1) can be applied to loans that may not be considered commercial loans, whereas sec.334.15(a)(2) only applies to commercial loans. No change was made to this rule. One commenter felt that additional language was needed in sec.334.15(e) to distinguish the difference in exemption allowed a lender foreclosing on a property without performing any corrective action from the exemption provided in sec.334.15(c) where lenders foreclose on real or personal property and do perform corrective action. The TNRCC agrees that these alternatives need to be clarified, and has added the language as suggested by the commenter to sec.334.15(e). One commenter said alternative language is needed in sec.334.15(g) since the term "marketable title" is a term of art and is not required or described by law in Texas. The TNRCC had relied on the terminology used in House Bill 2587, 74th Texas Legislature, 1995 in developing this rule, but has changed the phrase "marketable title" as suggested to "good and indefeasible title". Two comments were received in support of sec.334.15(h) which allows lenders a twelve month period, after foreclosure, to sell or dispose of a tank facility before being considered liable as a tank owner or operator. Several commenters provided input on site assessments described in sec.334. 78. The commenters stated that only a minor site assessment, or a limited subsurface investigation with minimal cost, should be conducted to determine whether a site is a leaking petroleum storage tank (LPST) case. One commenter stated that site assessments should be on a case-by-case determination and another commenter recommended that the TNRCC remain flexible in the requirements for the site assessment. One commenter felt that the regulated community is uncertain about what level of effort is needed to qualify as a site assessment; another commenter said a better definition of site assessment is needed. Four of these commenters recommended deleting 334.78(a)(5) which requires assessment of on- site contamination after a release is discovered. In response, the TNRCC agrees that site assessments conducted for the purpose of release determination should be limited in scope and cost. The TNRCC does not, and will not, require release determinations to be conducted at every facility. Release determinations are required by the TNRCC only in accordance with the provisions of sec.334.74 (relating to Release Investigation and Confirmation Steps) when a release is suspected, and sec.334.55 when a tank system is permanently removed from service. Otherwise such release determinations are conducted at the discretion of the owner or operator. Because there are no TNRCC requirements for release determinations conducted at the owner or operator's own volition, the owner or operator has complete flexibility on the methods and extent of such assessments. It appears that the commenters have misinterpreted the site assessment requirements in sec.334.78 as requirements for a release determination. The site assessment prescribed in sec.334.78 is the initial assessment conducted after a release has been confirmed. The amount of work, and associated costs, of this site assessment will be based on the extent and degree of contamination and other site-specific conditions, thereby providing for the most effective use of the available funds and resources. The purpose of this assessment, which has been further defined in these rules, is to determine the extent and degree of contamination in the source area and other site-specific conditions in order to provide sufficient data to support the determination of the priority of the case, an initial risk evaluation, sufficient information to evaluate site closure, and an estimate of future overall cost to complete the necessary corrective actions for the site when closure is not appropriate. These estimations will provide the information needed by the agency, the regulated community, and the legislature in determining the future program costs and needs. Therefore the TNRCC disagrees that the paragraph in sec.334.78(a)(5) should be deleted because the determination of the extent of contamination is required pursuant to sec.334.351 of the Texas Water Code and because the requirements to meet the deadline specified in sec.334.312(c), relating to contributions by owners and operators, must be defined. The TNRCC does not wish to overly burden owners or operators who have completed the site assessment requirements pursuant to existing rules and guidance. Therefore, prior to the effective date of these rules, in order to meet the requirement of sec.334.312(c), the TNRCC will accept assessments conducted by the owner and operator to meet the definition of "site assessment" when that information is used to definitely establish by field data the site classification. If the risk-based site classification has not been determined, then the site assessment requirement has not been met. In many instances, additional assessment may be required to support the determination of the site classification. Generally, sampling conducted solely as part of a tank removal will not support the determination of the site classification. A principal assessment need will be the completion of a receptor survey. After the effective date of these rules, the completion of a site assessment as prescribed in sec.334.78 will be necessary to satisfy the requirements of sec.334.312(c) (relating to Owner/Operator Contribution). Additional guidance on the general procedures for conducting the site assessment will be published in the near future. This guidance will specify the goals and outputs required in the site assessment while allowing for alternatives in the methods used to obtain the necessary information, thus providing the flexibility sought by the commenters. The TNRCC also want to point out that additional assessment may be required as the site progresses through the corrective action process. Also regarding sec.334.78, one commenter stated that this approach to assessment may put the owner at risk to reimbursement eligibility due to the timing of the TNRCC issuance of an LPST identification number. The commenter requests that the TNRCC adopt policy that would allow a prompt issuance of an LPST identification number and approval for an assessment procedure that would be appropriate based on the results of the initial investigation. The TNRCC would reiterate that the requirements for a site assessment provided in sec.334.78 are conducted after a release is confirmed, and therefore after an LPST identification number is issued. The TNRCC does agree that prompt issuance of an LPST identification number is needed and to that end the agency is developing a process to expedite the reporting of release information and issuance of initial directives. Expedited approval processes have been implemented with the publication of revised proposal forms. Additional improvements in the preapproval process are being developed. Again, the scope and cost of the site assessment required in sec.334.78 will be based on the tank owner or operator and the corrective action specialist's recommendations and determination of the site-specific conditions. Several commenters suggested adding a provision to sec.334.78(b)(4) regarding site classification which requires the TNRCC to inform owners or operators of adjustments by the executive director in any site classification thirty days prior to becoming effective unless the owner or operator concurs with the TNRCC reclassification. Because it is the owner or operator who provides the information necessary for the TNRCC to establish the classification of the site, the TNRCC disagrees that notice to the owner or operator is necessary. Often additional site information is obtained by the owner or operator and communicated to the TNRCC after the initial determination of the site classification which warrants a change in the classification. The adjustment of the site classification is based on the information submitted by the owner or operator and is communicated to the owner or operator in the site-specific correspondence issued by the TNRCC and to the owner or operator and the public with data from an electronic database. Several commenters suggested changes to the paragraph in sec.334.78(d) to require the return of incomplete site assessments within 15 days of receipt with a summary of the additional data required. The commenters request changes that would allow the submitted report to qualify as a site assessment if such a notice was not received within 15 days. The TNRCC agrees in principle with these comments and will make every effort to meet the intent of the suggested changes, but disagrees that modifications to the rule are necessary. The TNRCC is in the process of developing several measures which will ensure a timely review of site assessments. The agency intends to contract with outside entities who will provide assistance to the TNRCC. The TNRCC is also developing checklists that will accompany the submitted site assessment reports and will list the information that must be included in the report. If the checklist completed by the owner or operator and the Corrective Action Specialist indicates that the report is not administratively complete, the report will be promptly returned without a technical review to the owner or operator with the deficiencies noted. By providing technical guidance materials and support, the TNRCC will assist the owner or operator in meeting their responsibilities of ensuring that the corrective action activities are conducted in accordance with applicable rules and law and to ensure that submitted reports are both administratively complete and technically accurate. In order to prevent an increase in the owner's contribution, the owner or operator should ensure that appropriate corrective action activities should be completed as soon as possible to avoid delays or problems near the time of the deadline. One commenter suggested that sec.334.78 should state that site assessments will be approved or disapproved within 30 days of receipt. The TNRCC agrees that the 30-day review period is required by section sec.26. 3572(c) of the Texas Water Code, but disagrees that this requirement should be placed in the rule. The statute is clear on its intent and requires no interpretation by rule. Additionally, the TNRCC rules are designed to help articulate the requirements of the owner or operator, not the TNRCC. The accumulation of a backlog of site assessments prior to the deadline for owner contribution changes will be determined by the action of the owner or operators. To help prevent such a backlog, the TNRCC will contract with private contractors to assist the TNRCC with the review and development of guidance and checklists to ensure that the owner or operator is aware of the requirements for a complete site assessment. Owners and operators should ensure that a backlog does not occur by aggressively pursuing corrective action on their sites so that site assessments are submitted long before the deadline. Several commenters suggested changes to the paragraph in sec.334.81(d) to require the return of incomplete corrective action plans within 15 days of receipt with a summary of the additional data required. The commenters request changes that would allow the submitted report to qualify as a corrective action plan if such a notice was not received within 15 days. The TNRCC agrees in principle with these comments and will make every effort to meet the intent of the suggested changes, but disagrees that modifications to these rules are necessary. The TNRCC is in the process of developing several measures which will ensure a timely review of corrective action plans. The agency intends to contract with outside entities who will provide assistance to the TNRCC. The TNRCC is also developing checklists that will accompany the submitted corrective action plans and will list the information that must be included in the report. If the checklist completed by the owner or operator and the Corrective Action Specialist indicates that the report is not administratively complete, the report will be promptly returned without a technical review to the owner or operator with the deficiencies noted. By providing technical guidance materials and support, the TNRCC will assist the owner or operator meet their responsibilities of ensuring that the corrective action activities are conducted in accordance with applicable rules and law and to ensure that submitted reports are both administratively complete and technically accurate. In order to prevent an increase in the owners contribution, the owner or operator should ensure that appropriate corrective action activities should be completed as soon as possible to avoid delays or problems near the time of the deadline. One commenter suggested that sec.334.81 should state that corrective action plans will be approved or disapproved within 30 days of receipt. The TNRCC agrees that the 30 day review period is required by section sec.26. 3572(c) of the Texas Water Code, but disagrees that this requirement should be placed in the rule. The statute is clear on its intent and requires no interpretation by rule. Additionally, the rules are designed to help articulate the requirements of the owner or operator. The accumulation of a backlog of corrective action plans prior to the deadline for owner contribution changes will be determined in large part by the action of the owners or operators. To help prevent such a backlog, the TNRCC will contract with private contractors to assist the TNRCC with review and develop of guidance and checklists to ensure that the owner or operator is aware of the requirements for a complete corrective action plan. Owners and operators should ensure that a backlog does not occur by aggressively pursuing corrective action on their sites so that site assessments are submitted long before the deadline. One commenter requested that the documentation of the completion of corrective action specified in sec.334.81(h) require certification by the Corrective Action Project Manager in addition to the owner or operator that the procedures in the corrective action plan have been met. The TNRCC agrees with this commenter as it is the TNRCC's intent to require such a certification on closure requests. Section 334.453(a)(4) already requires the signature of the Project Manager and the Corrective Action Specialist's representative on all submitted documents relating to corrective action activities, and sec.334.453(a)(3) requires the Project Manager and Corrective Action Specialist to conduct all corrective action activities in accordance with all applicable rules and accepted industry practices. The TNRCC feels that the existing rules in Subchapter J encompass the requirements requested by the commenter. Several commenters suggested a modification to sec.334.81(i) (stated as sec.334.80(i) by the commenters) that requires TNRCC to issue a closure letter within thirty days of receipt of certification of closure from owners and operators. At this time, the TNRCC processes closure requests in the order received as quickly as possible (approximately 1,000 sites were closed in fiscal year 1996) . A backlog of closure requests has developed due to the significant percentage of requests that are filed prior to the completion of corrective action activities. The TNRCC is developing measures, including additional guidance, report forms, and privatization of duties, that will alleviate the problem of prematurely-submitted closure requests and accelerate the review of legitimate requests. For this reason, the TNRCC does not believe a rule change is necessary. One commenter requests a revision to sec.334.81(i) to state that the current or future owner "will have no future liability for any cleanup activity required at such site" once a closure letter is issued. The issuance of a closure letter, and therefore the scope of the closure letter, is based upon the corrective action activities conducted at an LPST site and the corresponding information submitted to the TNRCC regarding these activities. In accordance with sec.26.363 of the Texas Water Code, the owner or operator may not be held liable for the owner's or operator's conduct taken in reliance on and within the scope of the closure letter. However, should additional information on previously-unknown site conditions become available that indicates that further corrective action (assessment or cleanup) is needed to protect public health and safety, the owner or operator is responsible for taking necessary actions pursuant to sec.26.351 of the Texas Water Code. The TNRCC disagrees that the current and future owners and operators can be relieved of liability for any cleanup activity required at such site, particularly in situations when a new release has occurred or where other sources of contamination other than underground or aboveground storage tanks may be present. No change was made to this regulatory requirement. One commenter said TNRCC will be more stringent than the U.S. Environmental Protection Agency if insurers or risk retention groups are required to be licensed in Texas or be eligible to provide insurance as an excess or surplus lines insurer in Texas before their policies are accepted as financial assurance mechanisms. The commenter felt the requirement in sec.334.97(c), as amended, precludes companies from out of state from issuing policies in Texas, and should be deleted. The TNRCC disagrees with this comment, and has determined that this amendment is necessary to provide a mechanism which insures that resources will be available to pay third party claims through guidelines established by the state of Texas. In addition, a discussion with staff from the Surplus Lines Stamping Office has determined that "eligibility" is available to an applicant that meets the Texas requirements. This rule remains as proposed. Several commenters indicated an apparent conflict between the language in House Bill 2587, 74th Texas Legislature, 1995, sec.26.3512 of the Texas Water Code, and the proposed sec.334.110(b) with regard to deductibles. The TNRCC rule specifically prevents a tank owner or operator from receiving a "deductible refund" by requiring them to remain at a higher deductible if they miss a deadline, but subsequently meet the next deadline. The authorizing statute indicates that if a deadline is missed, the deductible increases; however, if the next or a subsequent deadline is met, the deductible will revert back to the original deductible amount. In a letter to the TNRCC, a sponsor of House Bill 2587 indicates that this was not the original intent of the Legislature. The TNRCC responds that if deductibles revert to lower amounts when the criteria is met at one deadline after failing to meet the criteria at an earlier deadline, there is little motivation for owners and operators to proceed now with corrective action. The rationale for increased deductibles is to encourage owners and operators to address known and existing contamination and remediate these sites promptly. Comments received from the legislature as to the intent of House Bill 2587 was to "encourage tank owners to clean up sites through the use of incentives and disincentives. If tank owners delay testing or cleaning a site, they will do so with the knowledge that they may face increased deductible amounts." To meet this objective, the deductibles will increase once a deadline is missed, and will not be reduced even if subsequent milestones are met. The rule will remain unchanged. Similar comments were received that sec.334.110(b) and sec.334.312(a) may conflict with House Bill 2587 with regard to requiring the higher of two or more deductible amounts. Both of these sections use criteria for the deductible based on both the number of storage tanks owned or operated and the corrective action milestones reached at the prescribed dates. These sections also refer to a set deductible of $50,000 for new occurrences on sites where previous releases have been remediated and a closure letter has been issued previously. In these sections, the TNRCC is attempting to clarify which deductible will apply in situations where more than one provision may apply, specifically on sites with subsequent releases. No change was made in response to these comments. Three commenters felt the penalty provision in sec.334.128(c)(3) needed clarification. They suggested that the rule refer to an additional 5.0% penalty after the first penalty due date. The TNRCC has relied on the terminology used in House Bill 2605, 73rd Texas Legislature, 1993. For consistency sake, the TNRCC agrees the wording is awkward, but should remain unchanged because the term "penalty due date" is not defined and tank owners are accustomed to the term "due date" which is specified on their fee statements. Many commenters expressed support for the proposed risk-based corrective action rule. Most notably, the U.S. Environmental Protection Agency (EPA) specifically provided support stating the proposed rule is consistent with EPA policies and regulations. One commenter supported the proposed rule stating that they support the use of risk-based corrective action standards as a practical and rational approach. Another commenter stated that the use of risk-based corrective action maximizes the efficiency of available resources (i.e. time, money, qualified professionals). We agree with these statements and are fully dedicated to creating a competent and well implemented risk-based corrective action program. One commenter criticized the proposed rules on risk-based corrective action stating that "...its implementation may be inconsistent and confusing, in large part because of the unclear nature of proposed subchapter G.", and suggests instead that "the (TNRCC) should...propose and promulgate all models, equations, etc. upon which it will rely." To the contrary, another commenter praised the rule stating "the proposed rules are clear, complete, and provide a workable framework for reasonable corrective actions." The TNRCC views the risk based corrective action program as a work in progress. The models, equations, and other details are provided in the January 1994 guidance document Risk Based Corrective Action for Leaking Storage Tank Sites (RG-36). The TNRCC is working to refine the risk-based program to facilitate implementation. Because this is a new approach and much innovative development is taking place on the national level, the TNRCC prefers to not lock down the detail in rule at this time, so as to have better flexibility to enhance the program and facilitate implementation. One commenter offered support for risk-based corrective action, but went on to state "we must, however, point out to the TNRCC that implementation of these standards puts the owner/operator at greater risk to third party claims from affected landowners that, for whatever reason, will challenge a site specific standard. For this reason, we would appreciate the TNRCC's consideration of this in future rule making, specifically as it relates to the reimbursement eligibility of remediation of offsite contamination." The TNRCC must make three points here. The first is that sec.26.3573(o) of the Texas Water Code specifically states the Petroleum Storage Tank Remediation Fund may not be used to compensate third parties for bodily injury or property damage. The devaluation of property is viewed by the TNRCC as a third party property damage issue. Secondly, reimbursement is provided for the cleanup of both on-site as well as off-site properties to the extent necessary to protect the public and environment. Thirdly, the TNRCC does not preclude owners and operators from cleaning sites beyond risk-based levels. However, the TNRCC views the Petroleum Storage Tank Remediation Fund as a finite resource which must be efficiently utilized so as to underwrite corrective actions needed at high risk sites, and so must terminate reimbursement eligibility once risk-based target concentrations are met. No change to the rule was made. In the proposed rule sec.334.203, it was not clear that owners and operators had the option of following either Plan A (sec.334.203(1)) or Plan B (sec.334. 203(1)). This error was corrected in the Texas Register on August 4, 1995, where the conjunctive "or" is added after sec.334.203(1)(O) to indicate the alternative between the two plans. One comment received suggested that the term "cumulative" carcinogenic risk be dropped for the Plan A alternative in sec.334.203(1)(I)(iv) and sec.334.203(1) (J)(vii). Additionally, sec.334.203(1)(I)(v) and sec.334.203(1)(J)(viii) should be amended to replace the term hazard index with hazard quotient. The Plan A target concentrations are meant to derive target concentrations for individual compounds. This is the basis of the development of the Plan A Lookup as published in the PST RBCA guideline. The TNRCC agrees, and has made these changes as suggested. Three commenters noted the typographical error in 334.203(1)(J)(vii) regarding the exponential for the target risk range. The typographical error was noted and corrected in the August 4, 1995, edition of the Texas Register. The rule now includes a target risk range from 1 x 10-6 to 1 x 10-5. Additionally, three commenters also recommended that the proposed risk range for the target soil concentrations be expanded from 10-6 to 10-4. Providing a true risk range was not the original intent. Rather, the 10-6 to 10-5 represents the target risk goals for Class A and B, and Class C carcinogens, respectively. This has been clarified in the final rule. The proposed Plan A evaluation process is designed with specific risk goals so as to provide a pathway for relatively quick determination of target con- centrations. Plan A is designed to require minimal site investigation, relying on conservative risk goals and assumptions to ensure protectiveness. To broaden the risk range would be inconsistent with the tiered approach inherent to the risk based corrective action process. The flexibility recommended by the commenters is provided under Plan B in sec.334.203(2)(F) where the target risk range spans from 10-6 to 10-4. The owner and operator have the discretion to pursue determination of target concentrations under Plan A or Plan B. Therefore, the TNRCC has not incorporated this recommendation into the final rule as the desired flexibility is already provided within the rule. Typographical errors were found in sec.334.205(1)(A) and (B). In the proposed rule, the minimum carcinogenic risk levels cited were 1 x 105 instead of 1 x 10- 5. This correction was made in the Texas Register on August 4, 1995. Another comment received stated that the carcinogenic risk levels specified in sec.334.205(1)(A)(B) and (D) should specify if they are cumulative or individual risk levels. The TNRCC has changed the rule to specify that cumulative risk levels will be used to determine when institutional controls may be required. Four commenters expressed concern over the statement "institutional controls may also be required to provide notice to future land owners that residual regulated substances are present at the site" as included in sec.334. 205. The commenters stated that this could be taken to literally mean that institutional controls would be required at all LPST sites as some level of residual always remains after the completion of site cleanup. They suggested this requirement be deleted. Another commenter said the TNRCC should not place undue financial burdens on tank owners by placing restrictions on the use of real property. The TNRCC acknowledges this interpretation and did not intend to imply that institutional controls would be required at all sites. The TNRCC likewise believes that institutional controls will not be warranted on the majority of LPST sites. This particular language has been elaborated in the final rule to indicate that institutional controls may be warranted when the residual concentrations would not be protective if substantial changes in site conditions or land use were to occur. For example, an institutional control would be required when there are subsurface contaminants which are at such depth that they pose no risk so long as a direct exposure pathway is not created by some future activity like construction work which would bring those soils to ground surface. In those instances, the institutional control provides a reasonable level of protection by providing a mechanism to forewarn others of the potential for such a situation. The TNRCC would also like to make clear that the use of institutional controls is not a defacto requirement of the risk based corrective action program. The TNRCC acknowledges that the language just discussed and language contained in sec.334.205(1) which states "institutional controls are required as part of a corrective action plan when..." and sec.334.205(1)(E) which states institutional controls are required "when requested by the executive director" is worrisome for the owner and operator. The TNRCC has modified the language in sec.334.205(1) to read "institutional controls may be required..." to reinforce the concept that institutional controls are not a defacto requirement. Institutional controls shall only be requested when the owner and operator is insistent on the implementation of a corrective action plan that in the opinion of the executive director does not alone provide for adequate site cleanup so as to meet the established risk goals. The owner and operator can negotiate an alternative corrective action plan that may obviate the executive director request for institutional controls. Institutional controls are an option that the owner and operator may employ to provide the necessary level of current and future protection, and simultaneously reduce the level of site cleanup that would otherwise be necessitated. The concept of risk based corrective action is that the owner and operator is provided the flexibility to determine the method by which site specific health protective target concentrations are appropriately established and met. The risk goals can be achieved by either reducing actual contaminant concentrations at a site, or by controlling or eliminating current and future exposure to the contaminants through the use of institutional controls. In fact, one commenter stated support for the allowance of institutional controls specifically for the reason they provide more corrective action options. Additionally, institutional controls are warranted when target concentrations are based on the assumption of a future land use that is less protective than residential use, and there is not a reasonable level of assurance that the future land use would not change to residential. To eliminate the institutional control option in the opinion of the TNRCC would unnecessarily restrict the corrective action options available to the owner and operator, and force stringent residential-based levels of cleanup at all sites across the state. One commenter stated that the institutional controls are not warranted because the concentrations will naturally reduce over time. The TNRCC takes exception to this statement for two reasons. First of all, not all substances regulated under this chapter are subject to natural decay in any reasonable timeframe. Second, the rate of degradation is a function not only of the chemical properties, but also site conditions. Natural attenuation is effective in limiting the potential spread of the contaminant plume in many instances, but it does not guarantee that source area concentrations will naturally decline to below health protective levels in a timely manner. Historically, natural attenuation evaluations have not been conducted as a matter of practice in the petroleum storage tank program. We anticipate that such evaluations will become common place as part of the risk-based program. Many sites will be closed under a natural attenuation-based corrective action plan. But in some instances, institutional controls may be warranted to control or eliminate future exposure conditions so as to provide a level of assurance that natural attenuation-based corrective action plans are a prudent course of action. The TNRCC acknowledges that in those instances where the contaminant concentrations have decreased to meet the target risk goals, that the need for an institutional control is an unnecessary and burdensome obligation to maintain. When a party can document this situation, then sec.334.206(d) can be enacted which allows for the filing of a subsequent record in the County Deed Records to nullify the need for the institutional control with the TNRCC providing written concurrence for the action. In summary with regard to institutional controls, the TNRCC has chosen to maintain the institutional control provisions in the final rule as a tool the owner and operator can exercise to provide additional flexibility in the development of corrective action plans. Three commenters provided recommended language for sec.334.206(a)(1)(3) regarding the requirement for the county clerk to notarize a copy of the filed institutional control, including the name and address of the owner and operator of the land in the filed institutional control, and the use of registered professional land surveyors to certify the accuracy of the land description. County clerks certify rather than notarize such documents. The names of owners and operators facilitate title searches. By law, only registered professional land surveyors may certify such descriptions. The recommended language has been incorporated into the final rule. One commenter recommended language be added to sec.334.206(c) regarding the person who is out of compliance with sec.334.81(h), which requires a statement certifying that all corrective action is complete, when the terms of the filed institutional control are not met. For consistency and clarification of intent, the rule is now changed and the TNRCC incorporated language very similar to that recommended. One commenter pointed out that the model institutional control language presented in sec.334.208(a) and (b) left out a space for the city of interest to be listed. This oversight has been corrected in the final rule. Another commenter suggested additional language be included in the model institutional control, sec.334.208(a) and (b), to provide some language which "advises property owners and lenders with positive statements that risk has been reduced." After review of this comment, the TNRCC reworked the model institutional controls. In order to simplify the process for owners, operators, and the TNRCC alike, the two versions were combined into one combined, universal model. The new institutional control requires no additional regulatory burden, but does create a more workable model. Language has been added to address this commenter's concern. Section 334.206(a)(4) has been modified to delete the (a) and (b) reference of sec.334.208 to support this change. One commenter felt the validity of risk assessment will be undermined by the use of poor receptor surveys. The TNRCC guidelines only allow $500 for a receptor survey, which is insufficient for quality work. This commenter stated that receptor surveys are a critical element of any risk assessment and that the reasonable cost for this work element should be reevaluated. The TNRCC agrees that receptor surveys are critical, but reimbursable costs for receptor surveys were not part of the rules which were proposed on July 18, 1995, and are now being adopted. However, the TNRCC is currently doing a survey on reimbursable costs, and input on appropriate costs for receptor surveys would be beneficial. Surveys can be obtained by contacting the PST Reimbursement Section at the TNRCC. Three commenters suggested that the reference to the Petroleum Storage Tank Remediation Fund be deleted from sec.334.302(c)(5). The TNRCC agrees this change will clarify the requirement, and has reworded the paragraph as suggested by the commenters. One commenter pointed out that the section titles for the rules referenced in sec.334.310(a)(2)-(4) were inaccurate. The TNRCC has revised these referenced sections and titles to correspond with the existing sections and the respective titles of sec.sec.334.7, 334.21, 334.127, and 334.128 related to annual facility fees and registration requirements. A commenter requested clarification of an apparent conflict between sec.334. 310(f) and sec.334.301(k)(2) and sec.334.313(f) regarding preapproval of corrective action activities. The TNRCC will interpret sec.334.310(f) as the section that requires a tank owner or operator to obtain preapproval for corrective action activities and sec.334.301(k)(2) and sec.334.313(f) as the sections that describe the consequences of not obtaining the prescribed preapproval. Sections sec.334.301(k)(2) and sec.334.313(f) provide for the processing of claims with non-preapproved activities only after all claims for preapproved activities have been processed and paid. Accordingly, the TNRCC intends to process claims in the following order of priority: claims for preapproved activities, in order of receipt; and claims for non-preapproved activities, in order of receipt. Several commenters were interpreting sec.334.310 as subjecting owners of multiple tank facilities to increased deductibles for all sites if they missed an eligibility deadline on any particular site. These commenters were also concerned they might lose eligibility for reimbursement if the rule was not site specific in its requirements. The only substantive change proposed to sec.334.310 entails the December 1, 1995 and December 31, 1995, registration deadlines. The December 22, 1998 release discovery and reporting deadline has also been added to this section. The TNRCC agrees that the rule as proposed can be interpreted to mean that failure to meet the registration deadline for one site could result in the determination that all other sites owned or operated by that applicant are ineligible for reimbursement. This interpretation was not intended; the TNRCC's intent was that failure to meet the registration deadline on any given site would result in that site being ineligible for reimbursement. The TNRCC has revised the wording in this section to help clarify the agency's intended requirement on eligibility. A commenter suggested that the TNRCC allow for minor omission or faults contained within the site assessment reports or corrective action plans rather than penalize a tank owner with a higher deductible if the assessment reports and corrective action plans were submitted prior to the deadline but reviewed by the TNRCC after the deadline. The TNRCC responds by stating that the intent of the change in deductibles was to provide an incentive for tank owners and operators to quickly assess and initiate cleanup activities at their sites. Section 334.312(c) requires that a site assessment be performed and the report submitted prior to December 23, 1996. Section 334.312(d) requires that a corrective action plan be submitted and approved prior to December 23, 1997. Section 334.312(e) requires that the goals specified in the approved corrective action plan be met by December 23, 1998. The TNRCC recommends that tank owners not wait until the deadline to commence site activities. Those tank owners who do wait risk non-approval and/or a higher deductible. The TNRCC has determined that no change in the rule is required. Several commenters have indicated that delays in testing or cleaning a site will make owners and operators subject to higher deductibles. This will encourage owners and operators to pursue corrective action immediately. This was the intent of the Legislature when is passed House Bill 2587. It is also TNRCC's intended result. Several commenters were concerned that sec.334.312(e) could be interpreted to mean that reimbursement is disallowed until December 23, 1998 at which time the appropriate deductible will be determined based on the progress of cleanup activities up to that date. The commenters offered alternative language that allows the lower deductible as long as the owner or operator is actively or progressively implementing corrective action. The TNRCC responds by agreeing with the commenters that the intent is for the tank owner and operator to be actively implementing their corrective action plan. However, for the tank owner or operator and the TNRCC to evaluate the effectiveness of the corrective action activities, specific performance based goals or milestones need to be specified within the corrective action plan. The performance can be evaluated by reaching those agreed goals or milestones. House Bill 2587 specifies that goals within the corrective action plan must be met by December 23, 1998; therefore, the TNRCC does not agree that a change in the rule is warranted. Two commenters stated that the Texas State Board of Registration for Professional Engineers does not license engineers by specific discipline; therefore, it would not be appropriate for them to issue a statement certifying that an engineer is qualified to perform corrective action, as that requirement was proposed in sec.334.452(i). Another commenter said that engineers should be registered as corrective action project managers upon request and that the qualification statement from the Texas State Board of Registration for Professional Engineers should be deleted. The TNRCC has reviewed this rule, and has determined that a certification statement is needed to confirm the minimum qualification for registration of engineers as corrective action project managers; however, the TNRCC has revised the rule to incorporate alternative language similar to that offered by one commenter. One commenter supported these rules but felt even more rules and guidance were needed to help owners and consultants understand what is required of them. A comment was offered in particular on the need for rule amendment to subchapter L, the subchapter on overpayment prevention of reimbursement claims. It was stated that these rules should be considered a continuing work in progress, and not a final state of affairs. The TNRCC agrees that these rules are important in that they are needed to address the new legislation offered by the Texas Legislature by passage of House Bill 2587, but the TNRCC also recognizes that there is a need for additional guidance to help owners, operators, storage tank contractors, and consultants to make a smooth transition to the new corrective action and reimbursement requirements. The TNRCC is currently working on new and revised guidance documents on the general procedures for site assessments and corrective action plans. New checklists will also be developed to help both the TNRCC and owners and operators evaluate whether the data and information submitted in site assessments and corrective action plans are considered complete. Guidance is also being developed on corrective action plans. The TNRCC is revising the Site Closure Request Form and its current guidance on risk-based corrective action. The reimbursement application is being revised as well as the guidance document for reimbursement from the Petroleum Storage Tank Remediation Fund. A revised tank registration form has also been developed. The TNRCC concurs that additional rule revisions are needed to correct deficiencies and problematic areas of the existing rules, and anticipates further rule amendments for other existing rules in the near future. The TNRCC recognizes that there is still room for improvement in the storage tank program, but this rule package was reserved almost exclusively for addressing the new requirements established by recent legislation. Subchapter A. General Provisions 30 TAC sec.sec.334.1, 334.2, 334.7, 334.11, 334.12, 334.15-334. 17 The amendments and new sections are adopted under the Texas Water Code, sec.sec.26.341-26.363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. These sections are also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding with other state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. sec.334.15. Limits on Liability of Lender. (a) A lender, as defined in sec.334.2 of this title (relating to Definitions), is not liable as an owner or operator under this chapter solely because the lender holds indicia of ownership to protect a security or lienhold interest in property. A lender is not liable under this subsection if: (1) such lender has a security interest in a personal property or in a fixture that is not attached to the real estate or a lienhold interest on the real estate or fixture that is attached to the real estate as security for a loan to finance the acquisition or development of property, to finance the removal, repair, replacement, or upgrading of a regulated tank, or to finance the performance of corrective action in response to a release of a regulated substance from a tank, and the security or lienhold interest is in: (A) an underground or aboveground storage tank; (B) real property on which an underground or aboveground storage tank is located; or (C) in any other personal property attached to or located on property on which an underground or aboveground storage tank is located; or, (2) the real or personal property described in paragraphs (1)(A)-(C) of this subsection constitutes collateral for a commercial loan. (b) A lender that exercises control over property described under subsection (a) of this section before foreclosure to preserve the collateral or to retain revenues from the property for the payment of debt, or that otherwise exercises the control of a mortgagee in possession, is not liable as an owner or operator under this chapter unless that control leads to action that the executive director finds is causing or exacerbating contamination associated with the release of a regulated substance from a tank located on the property. (c) A lender that has a bona fide security or lienhold interest in any real or personal property as described under subsection (a) of this section and that forecloses on or receives an assignment or deed in lieu of foreclosure and becomes the owner of that real or personal property is not liable as an owner or operator under this chapter if the lender: (1) removes from service any underground or aboveground storage tanks on the property. A tank is removed from service when the actions defined in sec.334.55(b) of this title (relating to Permanent Removal from Service) have been properly completed; (2) undertakes, and with due diligence in a timely and persistent manner completes, corrective action in response to any release from those tanks. A lender acts with due diligence when the lender executes the corrective action in conformance with Subchapter D of this title (relating to Release Reporting and Corrective Action), or as otherwise directed by the executive director; and (3) performs the removal and corrective action in accordance with all applicable commission rules. (d) A lender acting under subsection (c) of this section must begin removal of the tank from service or corrective action within 90 days after the date on which the lender becomes the owner of the property. (e) A lender described by subsection (a) of this section which forecloses on or receives an assignment or deed in lieu of foreclosure on real or personal property described in subsection (a) of this section is not liable as an owner or operator under this chapter because the lender sells, releases, liquidates, or winds up operations and takes measures to preserve, protect, or prepare a secured aboveground or underground storage tank before sale or other disposition of the storage tank or the property if the lender: (1) did not participate in the management of an aboveground or underground storage tank or real or personal property described by subsection (a) of this section before foreclosure or its equivalent on the storage tank or the property; and (2) establishes, as provided by subsection (f) of this section, that the ownership indicia maintained after foreclosure continue to be held primarily to protect a security interest. (f) A lender may establish that the ownership indicia maintained after foreclosure continues to be held primarily to protect a security interest if, within 12 months after foreclosure, the lender: (1) lists the aboveground or underground storage tank, or the facility or property on which the tank is located, with a broker, dealer, or agent who deals in that type of property; or (2) advertises the aboveground or underground storage tank for sale or other disposition, at least monthly, in: (A) a real estate publication; (B) a trade or other publication appropriate for the aboveground or underground storage tank being advertised; or (C) a newspaper of general circulation in the area in which the aboveground or underground storage tank is located. (g) For purposes of subsections (f) and (h) of this section the 12-month period begins: (1) when the lender acquires good and indefeasible title, if the lender, after the expiration of any redemption period or other waiting period required by law, was acting diligently to acquire such title; or (2) on the date of foreclosure or its equivalent, if the lender does not act diligently to acquire good and indefeasible title. (h) A lender that meets the conditions of subsection (f) nonetheless becomes liable as owner and/or operator at the end of the 12-month period, or when the lender no longer holds ownership indicia primarily to protect its security interest, whichever occurs first. If a lender outbids, rejects, or does not act on an offer of fair consideration for the aboveground or underground storage tank or the facility or property on which the storage tank is located, it is presumed that the lender is not holding the ownership indicia primarily to protect the security interest unless the lender is required, in order to avoid liability under federal or state law, to make the higher bid, obtain the higher offer, or seek or obtain an offer in a different manner. 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 October 18, 1995. TRD-9513362 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter B. Underground Storage Tanks Fees 30 TAC sec.334.21, sec.334.22 The amendments are adopted under the Texas Water Code, sec.sec.26.341-26. 363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provide the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. These sections are also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. 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 October 18, 1995. TRD-9513363 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter C. Technical Standards 30 TAC sec.334.42 The amendment is adopted under the Texas Water Code, sec. sec.26.341-26.363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. This section is also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. 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 October 18, 1995. TRD-9513371 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter D. Release Reporting and Corrective Action 30 TAC sec.sec.334.78, 334.80, 334.81 The amendments are adopted under the Texas Water Code, sec.sec.26.341-26. 363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. These sections are also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. 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 October 18, 1995. TRD-9513364 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter E. Financial Responsibility 30 TAC sec.334.97, sec.334.110 The amendment and new section are adopted under the Texas Water Code, sec.sec.26.341-26.363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. These sections are also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. 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 October 18, 1995. TRD-9513391 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter F. Aboveground Storage Tanks 30 TAC sec.334.127, sec.334.128 The amendments are adopted under the Texas Water Code, sec.sec.26.341-26. 363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. These sections are also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. 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 October 18, 1995. TRD-9513365 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter G. Target Concentration Criteria 30 TAC sec.sec.334.201-334.208 The new sections are adopted under the Texas Water Code, sec.sec.26.341-26. 363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. These sections are also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. sec.334.203. Risk-Based Criteria for Establishing Target Concentrations. Owners and operators shall apply the following risk-based criteria to evaluate sites and determine target concentrations: (1) Plan A site evaluation criteria. The owner and operator should use Plan A established target concentrations to screen sites for closure, or use the Plan A criteria to establish target concentrations for the purposes of establishing a corrective action plan in accordance with sec.334.81 of this title (relating to Corrective Action Plans), or to evaluate the potential benefit of further site evaluation under paragraph (2) of this section. (A) The owner and operator shall consider potential exposure to receptors through direct and indirect exposure pathways as required by the executive director and determine whether or not such pathways are complete or not. A pathway is considered complete if there is a source area, a transport mechanism and an existing or potential receptor; (B) For complete pathways, target concentrations shall be calculated using equations and models, target risk goals, and exposure factors as established by the executive director; (C) Target concentrations shall be based upon chemical property information defined by the executive director when such information is provided by the executive director; (D) Target concentrations for indirect or cross-media pathways shall be based upon default media property assumptions defined by the executive director when site-specific media property information is not available. (E) Target concentrations shall be based upon residential land use unless the owner and operator satisfies the requirements of sec.334.204 of this title (relating to Criteria for Selection of Land Use) to demonstrate commercial/industrial land use is more appropriate; (F) The owner and operator shall use equations and models as required by the executive director to calculate target concentrations; (G) Target air concentrations shall be evaluated when there is concern of a potential vapor hazard, or known or suspected indoor air exposure to regulated substances. Regulated substance concentrations in soils and groundwater are not to generate vapors in soil, air, utilities, or in the atmosphere which could cause an explosive atmosphere at any surface or subsurface structure. The presence of free product and associated level of vapors and the presence of conduits or pathways such as utility conduits, foundation piers, foundation cracks that may act as a transport pathway should be considered in this determination; (H) Target surface water concentrations shall be as provided in the Texas Surface Water Quality Standards of Chapter 307 of this title (relating to Supplemental Surface Water Quality Standards) and Chapter 319 of this title (relating to General Regulations Incorporated Into Permits). If those values are not available or appropriate, then federal maximum contaminant levels (MCLs) promulgated under the federal Safe Drinking Water Act (42 United Code of Federal Regulations sec.300f, et seq) shall apply. If MCLs are not available or appropriate, then the target surface water concentrations are to be based on reasonable maximum exposure expected to occur through human ingestion of the water; (I) Target groundwater concentration criteria: (i) the actual beneficial use or reasonable potential beneficial use of the affected groundwater shall be considered; (ii) groundwater with a natural total dissolved solids content of less than 10,000 mg/l and which is capable of yielding useable quantities of water to a well or spring shall be considered to have a potential beneficial use. When no site-specific data is available, the affected groundwater shall be considered to be potentially useable; (iii) residential groundwater ingestion shall be the default exposure pathway unless the owner and operator can show to the satisfaction of the executive director that the documented actual beneficial use of the affected groundwater is for a use other than drinking water purposes; (iv) the individual carcinogenic risk must not exceed a range of 1 X 10-6 to 1 X 10-4 as required by the executive director for beneficial use groundwaters. For any carcinogen, if the federally promulgated MCL is a higher value (less stringent), then the MCL may be used; (v) the hazard quotient for non-carcinogens shall not exceed unity (one) for beneficial use groundwater; (vi) only the removal of free product as required pursuant to sec.334.79 of this title (relating to Free Product Removal) and any subsequent monitoring as required by the executive director shall be necessary when the affected groundwater is of no potential beneficial use provided the owner and operator can document to the satisfaction of the executive director that the dissolved regulated substance concentrations for such groundwater that is less than 15 feet deep, is protective of potential direct contact by construction workers; that any explosive vapors, adverse affects to subsurface utilities, nuisance conditions, discharge of regulated substances to surface waters at unprotective levels, and plume expansion have been abated and should not occur in the future. When any of these conditions are not met with only free product removal, then target groundwater concentrations shall be established by the owner and operator so as to meet these conditions; (vii) target groundwater concentrations shall apply throughout the groundwater plume; and (viii) if remaining groundwater concentrations will discharge to a surface water body or other potentially usable aquifer at an unprotective level, then an additional of discharge. The target groundwater concentration to be applied at the additional based on the applicable target concentration for the receiving water. (J) Target soil concentration criteria: (i) ingestion of soils from ground surface to a depth of 15 feet for residential and commercial/industrial land uses unless the owner and operator can provide documentation to the satisfaction of the executive director that an alternate depth is more appropriate. Fifteen feet in the opinion of the commission represents a reasonable depth above which soil could be excavated and brought to the ground surface during construction activities; (ii) inhalation of volatile and particulate emissions for residential and commercial/industrial land uses, when the soil from ground surface to a depth of two feet is affected, but not covered with an impermeable surface. If the owner and operator can provide sufficient evidence that the impermeable surface will be maintained and will prevent inhalation exposure, then inhalation from soil contaminants may be dropped from further analysis; (iii) cross-media affects (e.g. soil leachate to groundwater); (iv) the target soil concentration shall be the lower concentration of clauses (i), (ii) or (iii) of this subparagraph; (v) reasonable maximum exposure expected to occur under both current and future land use for either residential or commercial/industrial as appropriate for the site; (vi) maximum detected concentrations of regulated substances remaining in place; (vii) the individual carcinogenic risk shall not exceed 1 X 10-6 for Class A and B carcinogens and 1 X 10-5 for Class C carcinogens; and (viii) the hazard quotient must not exceed unity (one) for non-carcinogens; (K) Target concentrations for soil, air and water shall also take into account other factors such as vegetation effects, sensitive environmental receptors, and aesthetic considerations (e.g., stained surface soils) as appropriate in the final analysis; (L) The maximum levels of regulated substances remaining in all affected media shall meet the established target concentrations throughout the entire extent of affected area unless the owner and operator can demonstrate to the satisfaction of the executive director that such action is technically infeasible and that public health and the environment are otherwise adequately protected; (M) The owner and operator shall submit reports in accordance with a schedule and in a format established by the executive director; (N) The owner and operator or executive director may recommend institutional controls in accordance with sec.334.205 of this title (relating to Institutional Control Requirements) to reinforce exposure assumptions; and (O) Any necessary requirements as established by the executive director to protect public health, safety, and the environment, or (2) Plan B site-evaluation criteria. The owner and operator may elect to further evaluate a site under Plan B to determine more appropriate target concentrations for affected media which may be used to justify a closure recommendation, or for the purposes of establishing a corrective action plan in accordance with sec.334.81 of this title (relating to Corrective Action Plans). (A) The owner and operator shall consider potential exposure to receptors through direct and indirect exposure pathways as required by the executive director and determine whether or not such pathways are complete or not. A pathway determined to be incomplete in the Plan A evaluation does not need to be reevaluated under this subsection. (B) For complete pathways, target concentrations shall be calculated using equations, target risk goals, and exposure factors as established by the executive director; (C) Target concentrations shall be based upon chemical property information defined by the executive director when such information is provided by the executive director; (D) Target concentrations for indirect or cross-media pathways shall be based upon default media property assumptions and models defined by the executive director when site-specific media property information is not available. Use of site-specific media property information is encouraged as part of this evaluation. If the owner and operator wish to use alternative models, prior concurrence from the executive director shall be obtained. (E) The executive director may require owners and operators to collect additional site information prior to or after the evaluation of the site under this section to substantiate the conclusions of the evaluation. (F) For known or suspected carcinogens, the individual and cumulative carcinogenic risk of 1 X 10-6 to 1 X 10-4 as required by the executive director. (G) Target concentrations are to be established at concentrations which do not exceed a hazard index of unity (one) for non-carcinogens. (H) The owner and operator may apply target concentrations for direct exposure pathways calculated under paragraph (1) of this section at reasonable exposure points instead of the source area unless the source area is a reasonable exposure point. All exposure points assumptions are subject to approval by the executive director. (I) The executive director may allow use of compliance points to serve as the basis for meeting target concentrations for indirect exposure pathways provided: (i) the proposed compliance with the results of the exposure assessment; (ii) the proposed compliance of actual receptors; (iii) the proposed compliance allow unaffected receptors to become affected; (iv) the proposed compliance for monitoring/sampling; (v) karst, fracture controlled, or otherwise highly complex hydrogeologic system is not involved; (vi) estimates or predictions and degree and rate of transport of regulated substances are verified with site monitoring data. Where site monitoring data and contaminant fate and transport modelling results yield conflicting information, the executive director shall place more value on the monitoring data; (vii) the executive director may require the use of specific contaminant fate and transport models; and (viii) target concentrations shall be met at all the compliance point(s). (J) When the criteria for the use of compliance points as required in subparagraph (I) of this paragraph cannot be met, then the target concentrations for indirect exposure pathways shall be met throughout the plume. (K) Target concentrations for soil, air and water shall also take into account other factors such as vegetation effects, sensitive environmental receptors, and aesthetic considerations (e.g., stained surface soils) as appropriate in the final analysis. (L) The owner and operator or executive director may recommend the use of specific institutional controls to control or eliminate potentially viable exposure pathways, and to reinforce exposure assumptions and future land use assumptions. (M) The owner and operator shall submit reports in accordance with a schedule and in a format established by the executive director. (N) The owner and operator shall meet all requirements imposed by the executive director. (3) Health-based target concentrations established pursuant to paragraphs (1) or (2) of this section shall be based upon toxicological information current at the time the report is submitted to the commission. Toxicological information shall be from the following sources in order of listing: (A) United States Environmental Protection Agency Integrated Risk Information System (IRIS); (B) Health Effects Assessment Summary Table (HEAST); (C) United States Environmental Protection Agency Criteria Documents; (D) Agency for Toxic Substances and Disease Registry (ATSDR) Toxicological Profiles; and (E) other scientifically valid published sources that are widely accepted. (4) Target concentrations shall be based on the particular land use (residential or commercial/industrial) as defined in sec.334.202 of this title (relating to Definitions) of each affected property. (5) The exposure assessment and determination of target concentrations conducted pursuant to paragraphs (1) or (2) of this section shall consider: (A) the physical and chemical characteristics of the regulated substance, including its toxicity, persistence, and potential for migration; (B) the hydrogeologic characteristics of the facility and the surrounding area; (C) the proximity, quality, and current and future uses of nearby surface water and groundwater; (D) the potential effects of residual contamination on nearby surface water and groundwater; (E) an exposure assessment considering exposure pathways as requested by the executive director; (F) any information assembled in compliance with this subchapter; and (G) any additional considerations as established by the executive director; (6) After receipt of a written statement by the executive director that all corrective action regulations have been met and that no further corrective actions are warranted, then the case shall be considered closed unless a substantial change in circumstances results in an unacceptable risk to human health or the environment. A substantial change in circumstance shall include, but is not limited to: (A) a failure to maintain the obligations of an institutional control as set out in sec.334.206 of this title (relating to Criteria for Institutional Control Use); (B) a change in land use from a less sensitive land use to a more sensitive land use, such as commercial/industrial to residential; (C) an actual exposure condition is determined to be occurring at levels not protective of human health and safety, or the environment. For purposes of this subchapter, changes in toxicity values or general procedures utilized to determine target concentrations shall not be considered a substantial change in circumstances, unless these changes are of such magnitude to present an unacceptable threat to human health and safety, or the environment when evaluated for future exposure conditions based on site-specific considerations; or (D) new information indicates that the regulated substances at the facility or affected area were not sufficiently characterized such that an unacceptable threat to human health and safety, or the environment continues to exist. sec.334.205. Institutional Control Requirements. When institutional controls are assumed in determining target concentrations, the owner and operator shall file institutional control requirements in the county deed records of the county or counties in which the property affected by the institutional control is located. Institutional controls shall be required when such action is needed to demonstrate control or elimination of exposure pathways in a manner consistent with sec.334.203(1) or (2) of this title (relating to Risk-Based Criteria for Establishing Target Concentrations). Institutional controls may also be required to provide notice to future land owners that residual regulated substances are present at the site when the site is considered protective so long as there is no substantial change in site conditions or use of the property which would change the exposure conditions. All institutional control information filed in the county deed records must be written such that a layperson can easily understand it. (1) Institutional controls may be required as part of the corrective action plan when: (A) the residential cumulative carcinogenic risk level exceeds 1 X 10-5 for Class A and B carcinogens for residential use properties (child or adult); (B) the commercial/industrial cumulative carcinogenic risk level exceeds 1 X 10-5 level for Class A and B carcinogens for commercial/industrial use properties; (C) an engineering or legal control is needed to eliminate an otherwise viable exposure pathway; (D) sites not zoned commercial/industrial that are to close under commercial/industrial land use assumption and adjoin residential property when the same site under a residential land use assumption would exceed a cumulative carcinogenic risk of 1 x 10-4 or a hazard index of unity (one); and (E) when requested by the executive director. (2) The owner and operator or the executive director may recommend the specific conditions of the institutional control. In the event the executive director and the owner and operator are unable to agree upon a suitable institutional control, then the executive director will require target concentrations to be established so as to eliminate a need for an institutional control. (3) Institutional controls may only be employed on sites when the owner(s) of the affected property(ies) is/are in agreement with the placement and the conditions of the institutional control. A written statement signed by the owner, or their designated agent, of each property directly affected by the placement of the institutional control must be provided to the executive director by the owner and operator which indicates that the owner of the affected property understands the requirements set forth in sec.334.206 of this title (relating to Criteria for Institutional Control Use) and agrees with the placement and terms of the institutional control. sec.334.206. Criteria for Institutional Control Use. (a) Within 90 days of the date the executive director requests the filing of an institutional control, the owner and operator must provide a certified copy of the filed institutional control stamped by the County Clerk(s), listing the page and volume of the record notice to the executive director. The filed institutional control must contain: (1) the name and address of the owner and operator of the tract of land to which the institutional controls are applicable, and a metes and bounds description of the portion(s) of the tract of land affected by the institutional control as agreed to by the executive director; (2) a plat map clearly demarcating the portion(s) of the tract of land to which the institutional control applies. The map must contain a north arrow, a correlating map scale, and a legend identifying any used symbols or abbreviations; (3) a certification by a registered professional land surveyor so registered by the Texas Board of Professional Surveying attesting to the accuracy of the descriptions provided in paragraphs (1) and (2) of this subsection; (4) the terms of the institutional control as presented in sec.334.208 of this title (relating to Model Institutional Control); (5) a statement that the executive director must be notified in writing at least 120 days prior to changes in site use or site conditions which violate the terms of the institutional control, when the terms of the institutional control place use conditions on the affected area; (6) a statement that information and documents concerning the corrective action effort and contaminant conditions are available for inspection upon request at the Texas Natural Resource Conservation Commission or subsequent agency; (7) a statement that residual levels of regulated substances are present at the site and that generation of the affected soils or water may require special handling and disposal and/or treatment in accordance with applicable state and federal regulations; and (8) other information as requested by the executive director. (b) The current or future owner of the property affected by the institutional control shall notify the executive director in writing at least 120 days prior to changing the use or altering the condition of the site such that the conditions specified in the institutional control would no longer be met. The owner and operator will then provide a re-evaluation of the site to the executive director within 30 days of the date of notification such that the property owner is able to demonstrate: (1) that levels of regulated substances have degraded such that human health and safety, and the environment are protected under the planned land use or site condition change; (2) the site will be adequately cleaned to meet human health and environmental protective levels for the planned land use or site condition change; or (3) application of a revised institutional control will ensure adequate protection of public health and safety and the environment. The revised institutional control shall conform with all requirements of this section relating to institutional controls. (c) When the implementation of institutional controls by the owner and operator is a condition of site closure, and such condition was stipulated in a final concurrence letter issued by the executive director, the closure status is valid only so long as the conditions set forth in the institutional control agreed to by the executive director and filed in the county deed records are met. When the conditions of the institutional control are not met, then the conditions for closure are no longer met, and site closure status is nullified. The current or future owner and operator affected by the institutional control shall notify the executive director within 24 hours of the discovery that the conditions of the institutional control are not met. When the conditions of the institutional control are not met and the change in site use or condition was not coordinated as defined in subsection (a)(5) of this section, then the future or current owner and operator is out of compliance pursuant to sec.334.81(h) of this title (relating to Corrective Action Plan) and may be subjected to formal enforcement proceedings. (d) When appropriate analytical evidence demonstrates to the reasonable satisfaction of the executive director that concentrations of residual substances at the site no longer exceed the target risk goals by process of natural degradation or other active site cleanup, then the executive director shall agree by written concurrence to the placement of a statement in the county deed records by the current or future owner of the land which nullifies the need for the institutional control and indicates that residual substance concentrations meet health protective levels. Under this condition, the final concurrence letter shall remain in effect. 334.207. Waste Management.The future removal of any soil or water affected by the residual regulated substances must be properly handled and disposed and/or treated in accordance with all applicable state and federal regulations, and in such a way so as to protect public health and safety, and the environment. sec.334.208. Model Institutional Controls. Model Institutional Control for Properties. Figure 1: 30 TAC sec.334.208. 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 October 18, 1995. TRD-9513366 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter H. Reimbursement Program 30 TAC sec.sec.334.301-334.322 The new section is adopted under the Texas Water Code, sec.sec.26.341-26. 363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. This section is also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. sec.334.302. General Conditions and Limitations Regarding Reimbursement. (a) In order to be considered for reimbursement under this subchapter, corrective action must be performed either as provided in subsection (b) of this section or in response to a release which: (1) results in contamination which penetrates beyond the excavation zone of the tank system and which is above action levels determined by the executive director; (2) is ultimately confirmed by the executive director, either before or after corrective action commences, provided that it shall be the burden of the person claiming monies under this subchapter to show both that a release which is eligible for reimbursement occurred and the expenses claimed are allowable and reimbursable; and, (3) the confirmed release was initially discovered and reported to the commission on or before December 22, 1998. (b) Subsection (a) of this section does not apply if the corrective action is specifically required by an order of the commission, or a written request or confirmation by the executive director, and the release was initially discovered and reported to the commission on or before December 22, 1998. (c) No payments shall be made by the commission under this subchapter for: (1) the owner/operator contribution described in sec.334.312 of this title (relating to Owner/Operator Contribution), which the executive director may apportion in the case of multiple claimants as provided in sec.334.314(f) of this title (relating to Executive Director's Fund Payment Report); (2) any expenses for corrective action which exceed one million dollars per occurrence; (3) any expenses relating to compensation for bodily injury or property damage; (4) any expenses for corrective action incurred for confirmed releases initially discovered and reported to the commission after December 22, 1998; or, (5) any expenses of corrective action on or after September 1, 2001. (d)-(l) (No change.) sec.334.310. Requirements for Eligibility. (a) In order for a person to be an eligible owner or operator under this subchapter each of the following requirements must be met. (1) Such person must meet the other requirements of this chapter and must be: (A) (No change.) (B) any past owner or operator of a tank described in subparagraph (A) of this paragraph who performed corrective action on or after September 1, 1987 and on or before September 1, 2001 in response to a release of petroleum products from such tank; (C) -(F) (No change.) (2) An underground and aboveground storage tank installed prior to December 1, 1995, which is required to be registered pursuant sec.334.7 of this title (relating to Registration) or sec.334.127 of this title (relating to Registration for ASTs) must be registered with the executive director on or before December 31, 1995, or the owner or operator is not eligible to receive reimbursement for that tank, except for: (A) an owner or operator of a registered facility who discovers an unregistered tank while removing, upgrading, or replacing a tank or while performing a site assessment; (B) a state or local governmental agency that discovers an unregistered storage tank in a right-of-way during construction; or (C) a property owner who reasonably could not have known that a tank was located on the property because a title search or the previous use of the property does not indicate a tank on the property. (3) The owner or operator of an underground and aboveground storage tank installed on or after December 1, 1995 must be registered with the executive director pursuant sec.334.7 of this title (relating to Registration) or sec.334.127 of this title (relating to Registration of ASTs) no later than the 30th day after the date the installation is completed to be eligible for reimbursement for such tank. (4) All annual facility fees due since September 1, 1987, pursuant to sec.334.21 of this title (relating to Fee Assessment), and since September 1, 1989, pursuant to sec.334.128 of this title (relating to Annual Facility Fees) for all underground and aboveground storage tanks which they own or operate must be paid to the executive director, except for those tanks which the owner or operator, upon reasonable inquiry, could not have known existed. All fees which come due up until the time that reimbursement funds are released to the claimant must be paid. (5) Any release on which a claim under this subchapter is based must be discovered and reported to the executive director on or before December 22, 1998, and must subsequently be confirmed by the executive director. (b)-(f) (No change.) sec.334.313. Review of Application by Executive Director. (a) -(e) (No change.) (f) The executive director may not consider, process, or pay a claim for reimbursement for corrective action work begun after September 1, 1993, and without prior commission approval until all claims for reimbursement for corrective action work preapproved by the commission have been considered, processed, and paid. 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 October 18, 1995. TRD-9513367 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter I. Underground Storage Tank Contractor Registration and Installer Licensing 30 TAC sec.334.429 The new section is adopted under the Texas Water Code, sec.sec.26.341-26.363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. This section is also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. 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 October 18, 1995. TRD-9513368 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter J. Registration of Corrective Action Specialists and Project Managers for Product Storage Tank Remediation Projects 30 TAC sec.sec.334.452, 334.453, 334.455-334.457, 334.460, 334. 467 The amendments and new sections are adopted under the Texas Water Code, sec.sec.26.341-26.363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. These sections are also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. sec.334.452. Exemptions from Subchapter J. (a) (No change.) (b) The requirements of this subchapter do not apply to Corrective Action Specialists when the party claiming the exemption can show that corrective action services were completed on or prior to October 1, 1994. Any corrective action service commenced by a Corrective Action Specialist on or after October 1, 1994, is subject to the requirements of this subchapter. Any corrective action service commenced by a Corrective Action Specialist prior to October 1, 1994, which is still being performed on or after October 1, 1994, is subject to the requirements of this subchapter. (c) The requirements of this subchapter do not apply to Corrective Action Project Managers when the party claiming the exemption can show that corrective action services were completed on or before January 1, 1995. Any corrective action service commenced by a Corrective Action Project Manager on or after January 1, 1995, is subject to the requirements of this subchapter. Any corrective action service commenced by a Corrective Action Project Manager prior to January 1, 1995, which is still being performed on or after January 1, 1995, is subject to the requirements of this subchapter. (d)-(h) (No change. ) (i) On or after September 1, 1995, a qualified professional engineer, registered as an engineer in the State of Texas, may become registered as a Corrective Action Project Manager by submitting a signed and sealed written request to that effect to the commission. With said written request, said engineer shall also provide a copy of his or her certificate of registration as a professional engineer, and a written statement from the Texas State Board of Registration for Professional Engineers to the effect that the applicant is duly registered and currently licensed to practice engineering in the State of Texas and that there is no indication that the applicant is not qualified to perform corrective action. An engineer who obtains registration as a Corrective Action Project Manager in this manner is subject only to the examination requirements, continuing education requirements, fees, and disciplinary procedures adopted by the Texas State Board of Registration for Professional Engineers, except as provided by sec.334. 11(c)(3)(A) of this title (relating to Enforcement), and as such is generally exempt from the requirements in this subchapter which apply to Corrective Action Project Managers in the areas of examination, continuing education, fees and disciplinary procedures, except as provided by sec.334.11(c)(3)(A) of this title (relating to Enforcement). 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 October 18, 1995. TRD-9513369 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 Subchapter L. Overpayment Prevention 30 TAC sec.334.533 The amendment is adopted under the Texas Water Code, sec. sec.26.341-26.363 and sec.sec.26.451-26.460 (as amended by House Bill 2587, 74th Texas Legislature, 1995, effective September 1, 1995), which provides the TNRCC with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to assess and collect fees for deposit to the storage tank fund, and to reimburse eligible owners and operators from the petroleum storage tank remediation fund. This section is also adopted under the Texas Water Code, sec.sec.5.103, 5.104, 5.105, and 5.235, which authorize the TNRCC to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas; to establish and approve all general policy of the commission; to enter into memoranda of understanding between state agencies when the responsibilities addressed are not otherwise specified by the Texas Water Code; and to assess fees as well as penalties and interest for the late payment of such fees. 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 October 18, 1995. TRD-9513370 Kevin McCalla Director, legal Division Texas Natural Resource Conservation Commission Effective date: November 8, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 239-6087 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 81. Administrative Provisions 37 TAC sec.sec.81.4, 81.13, 81.14, 81.20 The Texas Youth Commission (TYC) adopts amendments to sec. sec.81.4, 81.13, and 81.20, concerning prevailing wage rates for construction projects, selection process of an architect/engineer, and public information request; and new sec.81.14, concerning construction contract award procedures, without changes to the proposed text as published in the September 15, 1995, issue of the Texas Register (20 TexReg 7264). The justification for amending sec.sec.81.4, 81.13, and 81.20 and new sec.81.14 is compliance by TYC to changes mandated by the 74th Legislature. The amendments and new rule will provide procedures developed as a result of complying with new legislation addressing the TYC construction process. Section 81.20 is changed to comply with House Bill 1718 regarding public information passed by the 74th Legislature. No comments were received regarding adoption of the amendments and new rule. The amendments and new rule are 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. The proposed rule implements the Human Resource Code, sec.61.034. 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 October 17, 1995. TRD-9513325 Steve Robinson Executive Director Texas Youth Commission Effective date: November 7, 1995 Proposal publication date: September 15, 1995 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part III. Texas Commission on Alcohol and Drug Abuse Chapter 145. Treatment Alternatives to Incarceration Programs General Provisions 40 TAC sec.sec.145.1-145.7 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.145.1-145.7, concerning treatment alternatives to incarceration programs (TAIP), without changes to the proposed text as published in the September 1, 1995, issue of the Texas Register (20 TexReg 6814). These rules are being repealed because the TAIP program has been eliminated and transferred to the Texas Department of Criminal Justice effective September 1, 1995. The repeal of these rules eliminates commission rules for the TAIP program. No comments were received regarding adoption of the repeals. The repeals are adopted under Acts, 1991, 72nd Legislature, Chapter 490, sec.2, effective December 31, 1991, amending the Texas Health and Safety Code, Chapter 461 by adding sec.461.017, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to promulgate written rules and regulations setting forth minimum standards for the operation of treatment alternatives to incarceration programs which are designed to provide substance abuse offenders with screening, assessment, referral and placement into licensed and approved chemical dependency programs if appropriate. The code affected by the repeals is the Acts, 1991, 72nd Legislature, Chapter 490, sec.2, effective December 31, 1991, amending the Texas Health and Safety Code, Chapter 461 by adding sec.461.017. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 16, 1995. TRD-9513269 Conrad Alexander Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: November 6, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 867-8720 Performance Standards 40 TAC sec.sec.145.20-145.30 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.145.20-145.30, concerning treatment alternatives to incarceration programs (TAIP), without changes to the proposed text as published in the September 1, 1995, issue of the Texas Register (20 TexReg 6815). These rules are being repealed because the TAIP program has been eliminated and transferred to the Texas Department of Criminal Justice effective September 1, 1995. The repeal of these rules eliminates commission rules for the TAIP program. No comments were received regarding adoption of the repeals. The repeals are adopted under Acts, 1991, 72nd Legislature, Chapter 490, sec.2, effective December 31, 1991, amending the Texas Health and Safety Code, Chapter 461 by adding sec.461.017, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to promulgate written rules and regulations setting forth minimum standards for the operation of treatment alternatives to incarceration programs which are designed to provide substance abuse offenders with screening, assessment, referral and placement into licensed and approved chemical dependency programs if appropriate. The code affected by the repeals is the Acts, 1991, 72nd Legislature, Chapter 490, sec.2, effective December 31, 1991, amending the Texas Health and Safety Code, Chapter 461 by adding sec.461.017. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 16, 1995. TRD-9513270 Conrad Alexander Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: November 6, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 867-8720 Part IX. Texas Department on Aging Chapter 260. Area Agency on Aging Administrative Requirements 40 TAC sec.260.1 The Texas Department on Aging adopts an amendment to sec.260.1(a) relating to definitions and a new subparagraph (n) relating to conflict of interest with changes to the proposed text as published in the September 1, 1995, issue of the Texas Register (20 TexReg 6815). The action was necessary to add definitions that relate directly to the new conflict of interest policy established in the Texas Administrative Code for compliance by area agencies on aging and service providers. A number of comments relating to these amendments were received from Heart of Texas Area Agency on Aging (HOTCOG), Texas Association of Regional Councils (TARC) and South Plains Association of Governments (SPAG). HOTCOG area agency noted that "Black" is defined as a minority racial/ethnic group, consequently Hispanic, Asian/Pacific Islanders, and Native American ethnic groups should be defined separately. Staff concurred. We have added new definitions using the definition from the Administration on Aging information system (NAPIS). Based on Staff comments, section (14), has been deleted from definitions and incorporated into the rules under (n)(1) to become (B); (B) then becomes (C). Definitions were then renumbered to reflect the addition of the definition for indirect and the relocation of the previous definitions. South Plains Association of Government recommended in sec.260.1(a)(26) a change to the language regarding Former Employee of an area agency. Staff concurred. Text was amended (26) to reflect suggested language. TARC suggested that "elderly" be added behind the word frail in this definition. Staff concurred and amended the text accordingly. Heart of Texas suggested that the definition of frail, currently both physical and mental frailty is necessary. Staff concurred and amended the text accordingly. Heart of Texas area agency suggested that "contractors" as well as grantees be defined. Staff concurred and amended the text accordingly. TARC suggested a minor rewording of the language regarding Homemaker services. Staff concurred. See amended text. TARC suggested adding a definition for "indirect" so all are clear regarding the exact meaning of this word as it is used in the context of this rule regarding conflicts of interest. Staff concurred and have amended the text accordingly. HOTCOG indicated that there was no subsection (m). Subsection (m) Identification of Area Agency on Aging facilities, is under Area Agency on Aging Administrative Requirements, published previously. Heart of Texas area agency recommended that a change be inserted which indicates what percent of funding is provided by an area agency. Staff concurred and has amended the text accordingly. TARC noted that in the definition for "substantial involvement" that "or" should be "of." Staff concurred and has amended the text accordingly. Heart of Texas area agency recommended a change to include aging division directors and aging contract specialists to definition. Staff concurred and amended the text accordingly. South Plains Association of Governments recommended all references to conflict of interests should read conflicts-of- interest in those subparagraphs where used. Staff concurred and has amended the text accordingly. SPAG recommend in sec.260.1(n)(1)(A)(ii) that "financial" be added to this sentence to indicate the specific interest in question. Staff concurred and has amended the language. SPAG, HOTCOG and TARC recommended wording to these paragraphs which would incorporate clarify language. The Staff developed wording incorporating these suggestions into the text and amended the text accordingly. SPAG noted that sec.260.1(n)(1)(B) should specify that the grantee will not award a contract to a private entity in certain situations and suggested a wording change. The staff concurred and altered the text accordingly. The amendment is adopted under , Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operations of the Department. sec.260.1. Area Agency on Aging Administrative Requirements. (a) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Definitions relating to targeted populations are as outlined in the Older Americans Act, as amended, and the Americans with Disabilities Act of 1990, as amended, or as defined below. (1) Access-All methods used to make information and assistance available to potential inquirers and accessible to specialized populations. (2) Accessible-Without physical, cultural, language, geographical, financial, or psychological barriers. (3) Activities of Daily Living (ADLs)-Tasks that are essential to independent living such as bathing, dressing/un-dressing, eating, toileting, continence, transfer in/out of bed or chair, and indoor mobility. (4) Advocacy-Actions by or on the behalf of individuals and/or groups to ensure that they receive the benefits and services to which they may be entitled, and to ensure that their rights guaranteed by law are protected and enforced. (5) American Indian or Alaskan Native-A person having origins in any of the original peoples of North America, and who maintain cultural identification through tribal affiliation or community recognition. (6) Asian American/Pacific Islander-A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands, Samoa and the Hawaiian Islands. (7) Alzheimer's Disease-A progressive, degenerative disease that attacks the brain and results in impaired memory, thinking, and behavior. (8) Benefits Counseling-Legal awareness or legal assistance services that assist seniors in claiming the various kinds of benefits to which they may be entitled. Activities may include legal or other assistance in completion of insurance or application documents, and assistance with problems with Social Security, medicaid, pensions or other benefits. (9) Black-A person of African-American, not of Hispanic origin. (10) Broker-Arranger of services. (11) Case Management-An ongoing process (also known as service management), which includes assessment, service plan development, arranging of comprehensive and unified services, follow-up, ongoing monitoring of an individual's or family's status and the services delivered, and periodic review, with any necessary revision of the service plan. (12) Case management unit of service-One unit of service equals one hour. A unit is defined as that time which is spent by the caseworker, or qualified designee, engaged in working on an eligible client case. A unit does not include travel time, staff training, program publicity, or direct client services other than case management. Travel time, staff training and program publicity are allowable and reimbursable expenses. (13) Certified volunteer-An individual who has been selected by a regional program to serve as an advocate for long-term care facility residents and participate in the ombudsman program. Certified volunteers shall successfully complete an internship, or equivalent experience, as determined by the office, and complete required training prior to being certified and prior to engaging in independent complaint resolution. A certified volunteer shall be a representative of the office. (14) Classification system-A system which is used to categorize available human services in a standard manner to simplify retrieval of service information, increase the reliability of planning data, make evaluation processes consistent, and facilitate comparisons of data. (15) Clients or recipients of services-Persons who reside in settings defined as a long-term care facility in this subsection, and their families. (16) Current board member-A person presently a member of the governing board of a grantee agency sponsoring an area agency on aging. (17) Current aging advisory committee member-A person presently a member of the advisory committee for an area agency on aging. (18) Current employee-A person presently employed by a grantee agency sponsoring an area agency on aging. (19) Department-The Texas Department on Aging, the single state agency for Older Americans Act programs. (20) Developmental disability-A severe, chronic disability attributable to a mental or physical impairment, or combination of both that: (A) is manifested before age 22; (B) is likely to continue indefinitely; (C) results in substantial limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self- sufficiency; and (D) results in the need for individually planned and coordinated services lifelong or over an extended period of time. (21) Education and training-Providing the experience and/or knowledge for clients to acquire skills, in a formal or informal, individual or group, setting. In the Options program, this service is directed to older persons and their caregivers to help them improve their abilities in responding to their health care needs and limitations in overall functioning capacity. ccc (22) Emergency Response System (ERS)-Services provided to the homebound, frail elderly using an automatic monitoring system to link them to emergency medical services when life and/or safety are in jeopardy. These ERS services include the installation of the individual monitoring unit, training associated with the use of the system, periodic checking to assure that the unit is functioning properly, equipment maintenance calls, response to an emergency call by a medical professional, para-professional or volunteer, and follow-up with the client. (23) Follow up-contacting by telephone, correspondence or in person the inquirers and/or the agency to which referred, to verify that linkage has been established between the inquirer and the agency to which referred. (24) Former board member-A former member of the governing board of a grantee agency sponsoring an area agency on aging whose last date of service was within the immediately preceding two years. (25) Former aging advisory committee member-A former member of an aging advisory committee whose last date of service was within the immediately preceding two years. (26) Former employee-A former grantee or area agency on aging employee whose last date of service was within the immediately preceding two years. (27) Frail elderly-an older person who: (A) is unable to perform at least two activities of daily living without substantial human assistance, including verbal reminding, physical cuing, or supervision; and/or (B) requires substantial supervision due to a cognitive or other mental impairment and behaves in a manner that poses a serious health or safety hazard to himself or others. (28) Friendly visitor-a volunteer who does not participate in complaint resolution. Friendly visitors receive orientation and may receive local training but do not receive certification. (29) Grantee/Contractor-an eligible entity awarded funds by the Texas Board on Aging to provide services funded by the Department. (30) Hispanic Origin-a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race. (31) Home delivered meals-hot, cold, frozen, dried, canned or supplemental food (with a satisfactory storage life) which provides a minimum of one-third of the daily recommended dietary allowances (RDAs) as established by the Food and Nutrition Board of the National Academy of Sciences-National Research Council, and which is delivered to an eligible person in his/her place of residence. (32) Homemaker services-those tasks provided by trained and supervised homemakers involving the performance of housekeeping/home management, meal preparation and/or escort tasks, provided to individuals who need assistance with these activities in their place of residence. The objective is to help the recipient sustain independent living in a safe and healthful environment. (33) Indirect-having to do with a relative when considering conflicts-of- interest. (34) Information and assistance-services which inform, guide, direct and link individuals to appropriate human service resources. This may include individual client screening and/or assessment, which is a process of gathering and analyzing all pertinent information to identify an individual's strengths and needs for the purpose of determining a plan to assist the individual in the achievement of objectives and goals. (Used interchangeably with the term information and referral). (35) nformation giving-the process of providing basic or detailed information about resources to an inquirer by a staff person. (36) Information and referral service-See information and assistance. (37) Instrumental activities of daily living (IADLs) -tasks which may not need to be done every day (like ADLs), but which are never-the-less important for living independently: meal preparation, housework, laundry, shopping, taking medicines, getting around outside, transportation, money management, and telephone use. (38) Inquirer-any person or organization seeking assistance from the system. (39) In service-a planned educational effort conducted or coordinated by professional staff or certified volunteers. (40) Legal assistance-advice and representation by an attorney (including assistance by a paralegal or law student under the supervision of an attorney), or counseling or representation by a non-lawyer where permitted by law, to older individuals with economic and social needs. Legal assistance activities include the following: (A) Advice/Counseling-a recommendation made to a client regarding a course of conduct, or how to proceed in a matter, given either on a brief or one-time basis, or on an ongoing basis, and given either in person or by telephone. (B) Document preparation-personal assistance given to a client which helps him in the preparation of necessary documents relating to public entitlements, health care/long-term care, individual rights, planning/protection options, and housing and consumer issues. (C) Representation-advocacy on behalf of a client in protesting or complaining against a procedure, or seeking special considerations, appealing an administrative decision, or representation by an attorney of a client or class of clients in either the state or federal court systems. (41) Legal awareness-the dissemination of accurate, timely and relevant information, eligibility criteria, requirements and procedures, to older Texans about public entitlements, health/long-term care, individual rights, planning/protection options, and housing and consumer issues. (42) Long-term care facility-a facility that is licensed or regulated or that is required to be licensed or regulated by the Texas Department of Human Services. (43) Low income-a level of income (as defined by the federal Office of Management and Budget), below which a person or persons is considered to be living in poverty. (44) Major life activities-functions such as: (A) Self care-daily activities which enable a person to meet basic life needs for food, hygiene and appearance; (B) Receptive and expressive language-communication involving verbal and/or non-verbal behavior enabling the individual to both understand others and to express ideas/information to others; (C) Learning-ability to acquire new behaviors, perceptions and information, and to apply experiences in new situations; (D) Mobility-ability to use fine and gross motor skills. Ability to move one's person from one place to another with or without mechanical aids; (E) Self direction-management and taking control over one's social and personal life. Ability to make decisions affecting and protecting one's own interests; (F) Capacity for independent living-ability to live without extraordinary assistance from other persons, especially to maintain normal societal roles; (G) Economic self sufficiency-absence of dependence on family or public assistance for financial support; (H) Cognitive functioning-general cognitive competence; and (I) Emotional adjustment-self-esteem, self-confidence, and emotional stability. (45) Minority-a person in one or more of the following four racial/ethnic groups: Black (African American, not of Hispanic origin), Hispanic, Asian American/Pacific Islander, and Native American. (46) Office-the Office of the State Long-Term Care Ombudsman, a division of the Texas Department on Aging. (47) Ombudsman intern-a volunteer who has been admitted to the regional training program as a potential certified volunteer ombudsman. (48) Outreach-methods that seek to increase the availability and utilization of services by ensuring that a particular individual or group is aware of available services and encouraged to participate. (49) Personal assistance-assisting another person with tasks which that individual would typically do if they were able. This covers hands-on assistance in all activities of daily living. (50) rofessional-refers to an individual who has obtained a four year bachelors degree in aging related areas or human services, but may include an individual who does not have a four year degree, but who has qualifying experience as a substitute for a degree. Such substitution shall be consistent with the employing entity's personnel policies. (51) Referral giving-active participation in linking the inquirer with needed services after assessing the inquirer's needs and suggesting appropriate resources. (52) Regional program-a provider and its implementation of these standards on a sub-state level. Regional programs are area agencies on aging or other entities, as defined by the Board on Aging, Texas Department on Aging. (53) Related disorders (dementia)-the loss of intellectual functions (such as thinking, remembering, and reasoning), not caused by Alzheimer's Disease, of sufficient severity to interfere with an older person's daily functioning,including as listed in definition for [(36)] Major life activities. (54) Relative-A current or former board member's or current or former advisory committee member's or current or former employee's spouse, father, mother, sister, brother, son or stepson, daughter or stepdaughter, mother-in-law, father-in-law, sister-in-law, brother-in-law, son-in-law, or daughter-in-law. (55) Residential repair-services consist of repairs or modifications of client occupied dwellings which are essential for the health and safety of the occupants. This also includes providing limited housing counseling and moving expenses where repairs or modifications will not attain reasonable standards of health and safety. (56) Resource file-an organized, cross-indexed file of information on services and programs in the area covered by the information and assistance service. (57) Respite care- (A) In home respite care-an array of services provided to dependent older persons who need supervision. Services are provided in the client's home environment on a short-term, temporary basis while the primary caregiver is unavailable or needs relief. In addition to supervision, services may include meal preparation, housekeeping, assistance with personal care and/or social and recreational activities. (B) Institutional/facility based respite care-an array of services provided in a congregate or residential setting (hospital, nursing home, adult day care center) to dependent older persons who need supervision. Services are offered on a short-term, temporary basis while the primary care giver is unavailable or needs relief. In addition to supervision, services may include, when appropriate, meals, social/recreational activities, personal care, monitoring of health status, medical procedures, and/or transportation. (58) Rural-any county outside an identified metropolitan statistical area (MSA). (59) Service authorization-a process which includes determining eligibility for service(s), and using direct purchase of service (DPS) procedures to obtain and initiate one or more services. (60) Staff ombudsman-the professional staff person at the regional level who directs ombudsman program activities. The staff ombudsman shall be appointed by the regional program and so designated by the Executive Director, Texas Department on Aging, and under state law shall be granted access to long term care facility resident records. The staff ombudsman shall be a representative of the office. (61) State ombudsman-the person designated by the Executive Director, Texas Department on Aging, as Chief Administrator of the Office of the State Long-Term Care Ombudsman. The state ombudsman is accountable to the Executive Director, Texas Department on Aging, for program and personnel matters. (62) Substantial financial interest-Ownership or control by a former employee (or relative) or a former board member (or relative) or former advisory committee member (or relative) of 10% or more of the contracting firm or its stock or an investment of $2,500 or more in the organization, whichever is less; or receipt of a 25% or more increase in overall annual benefits, including salary or wages, upon employment by a contractor who receives 25% of its funds from aging contracts of a former employee who held one of the positions listed under the definition of "substantial involvement in the development of the contract," as compared to the employee's grantee salary and benefits. (63) Substantial involvement in the development of the contract-Direct or indirect participation by a former employee or a former board member or former advisory committee member in the development of program policy which influenced the type of services provided by the contracting organization. The following positions are assumed to have had such participation: board member, executive director, aging division director, and aging contract specialists. (64) Targeting-the focusing of service provision efforts on those populations identified in the Older Americans Act of 1965, Section 306(a)(5)(B) (i), as amended. (65) Units of service for legal assistance and legal awareness-one unit of legal assistance shall equal one hour. One unit of legal awareness shall equal one contact. (b)-(l) (No changes.) (n) Conflicts-of-interest Requirements. Area agencies on aging (AAA) and their governing boards shall seek to avoid conflicts-of-interest, in fact and perception, and provide proper notification when potential conflicts-of-interest do occur. (1) An area agency on aging grantee/contractor shall ensure that neither a current employee, nor any current board member, nor any aging advisory committee member, nor any representative of the office of the state long-term care ombudsman, paid or volunteer, holds a substantial financial interest, directly or indirectly, in the profits of any entity from which services or goods are contracted or otherwise procured by the area agency, or any long-term care facility, nor any long-term care facility, nor derives personal profit, directly or indirectly, from any entity which would conflict in any manner or degree with the performance of responsibilities of the employee, board member, or advisory committee member,or any representative of the office of state long-term care ombudsman, paid or volunteer. (A) No current employee, current board member, or advisory committee member who exercises any functions or responsibilities in the review or award of any contract for the procurement of services or goods on behalf of the area agency, shall: (i) participate in any decision relating to the contract or procurement of services or goods in which he has a direct or indirect substantial personal financial interest; (ii) have a substantial financial interest, directly or indirectly, in the contract or procurement of services or goods or the proceeds thereof. Nothing in sec.260.1(n) (relating to conflicts-of-interest) shall prohibit public officials of units of local government from serving on a grantee's board or aging advisory committee, not withstanding the fact that such unit of local government is receiving or may receive funds for the provision of services or goods under the terms of the contract or procurement. (B) No representative of the office of the state long-term care ombudsman, paid or volunteer, directly or indirectly, shall: (i) have direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service; (ii) have a family member residing in a long-term care facility in which the representative is assigned or provider advocacy; (iii) ownership or direct investment interest in a long-term care service; (iv) employed by or participates in the management of a long-term care facility; (v) receives or has the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long term care facility. (C) For a period of two years from the date a person ceases his employment, board member duties, or committee member duties with an area agency on aging or its grantee, the grantee will not award a contract to a private entity in which any former board member's, former committee member's or former employee's relative is an officer, director, employee, or owner, in part or whole, if the former employee, former board or committee member, or former board or committee member's or former employee's relative has a substantial financial interest in the contract or had a substantial involvement in the development of the contract. (2) Board members and area agency on aging advisory committee members who may have conflicts-of-interest, in fact or perception, on any agenda item of a meeting shall refrain from comment on the item. (A) The member shall announce the potential conflicts-of-interest and shall abstain from voting on any such agenda item. (B) The actions of conflicts-of-interest notice and voting abstention shall be recorded in the minutes of the meeting. (3) Area agencies on aging shall include a requirement in all Requests for Proposal (RFP) for services to the elderly and requests for vendor enrollment that any potential conflicts-of-interest be identified in the RFP response. (A) The notification of potential conflicts-of-interest shall include: (i) The person for which a potential conflicts-of-interest exists, (ii) the relationship to any current or former board member, current or former aging advisory committee member, or current or former employee, and (iii) the nature of the potential conflicts-of-interest. (B) The person for which the potential conflicts-of-interest exists shall certify that he will abide by all rules established in sec.260.19(n) (relating to direct purchase of 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 October 17, 1995. TRD-9513298 Mary Sapp Executive Director Texas Department on Aging Effective date: November 6, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 444-2727 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Department of Insurance, 333 Guadalupe, Austin.) The Commissioner of Insurance, at a public hearing held on October 6, 1995, at 9:00 a.m., under Docket Number 2170, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted amendments to the Homeowners and Farm and Ranch Owners sections of the Texas Personal Lines Manual (Manual) to provide additional optional large deductibles for coverage afforded under a homeowners policy and a farm and ranch owners policy. The amendments were proposed by Department staff in a petition filed on August 8, 1995. Notice was published in the August 18, 1995 issue of the Texas Register (20 TexReg 6318 and 20 TexReg 6363). The hearing was initially scheduled for October 6, 1995 and was re-scheduled to September 22, 1995 (20 TexReg 6693, August 25, 1995). The September 22 hearing, which was held at 9:00 a.m. in Room 102, Special Master's Hearing Room of the Texas Department of Insurance, was recessed until October 6 to allow additional comments to be filed. The Commissioner adopted, without any changes to the proposal as published, a new rule (Rule 7 under the General Requirements Section V, Deductibles Subsection D) in both the Homeowners and Farm and Ranch Owners sections of the Manual to provide for optional large deductibles of 1 1/2%, 2.0%, 2 1/2%, 3.0%, 4.0% or 5.0% of the limit of liability of Coverage A (Dwelling) under Texas Homeowners Policy Forms HO-A, HO-B and HO-C and Texas Farm and Ranch Owners Policy Forms FRO-A and FRO-B. The adopted rule provides that the large deductible may be selected at the option of the insured to apply to the policyholder's coverage for windstorm, hurricane and hail or to the policyholder's coverage for all other perils covered under the policy or for both of these types of coverages. The rule requires the actual deductible amount in dollars and the premium credit for the optional large deductible selected to be shown on the declaration pages of the homeowners policy forms and the farm and ranch owners policy forms. In the past, insureds covered under homeowners and farm and ranch owners policies have had the option of selecting deductibles of zero, $250, $500, $1, 000, of 1.0% or 1.0% of the limit of liability of Coverage A (Dwelling). Under the adopted rule, these insureds will be able to select additional deductible options of 1 1/2%, 2.0%, 2 1/2%, 3.0%, 4.0% or 5.0% of the limit of liability of Coverage A (Dwelling). The Commissioner has determined that the adopted rules are necessary to provide those insureds who are in a financial position to do so to assume a greater portion of the risk in return for lower premiums and, secondly, to encourage insurers to expand their writings in an otherwise restrictive market. The Commissioner has determined that the applicable premium credits for the optional large deductibles shall be determined at the next residential property insurance benchmark rate hearing held pursuant to Articles 5.101 and 1.33B of the Insurance Code. The Commissioner has determined that the effective date of the new rules shall be the effective date of the residential property insurance benchmark rates determined at such hearing. The Commissioner has further determined that the Department will closely monitor implementation of the rule and that if the rule is being abused to the extent that homeowners with low value dwellings are being forced to accept the 5% deductible, then the Department will quickly take steps to repeal the rule. The Commissioner has jurisdiction of this matter pursuant to the Insurance Code, Articles 5.35, 5.101, 5.96, and 5.98. The rules as adopted by the Commissioner of Insurance are on file in the Chief Clerk's Office of the Texas Department of Insurance under Reference Number P- 0895-24-I and are incorporated by reference by Commissioner Order Number 95- 1084. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts action taken under Article 5.96 from the requirements of the Administrative Procedure Act (73rd Legislature Regular Session, Chapter 268, sec.1, 1993 Texas General Laws 737 (codified at Government Code, Title 10, Chapter 2001)). Consistent with the Insurance Code, Article 5.96(h), prior to the effective date of this action, the Texas Department of Insurance will notify all insurers affected by this action. IT IS THEREFORE THE ORDER of the Commissioner of Insurance that a new Rule 7 (under the General Requirements Section V, Deductibles Subsection D) in both the Homeowners Section and the Farm and Ranch Owners Section of the Texas Personal Lines Manual, as specified herein and which is attached to this Order and incorporated into this Order by reference, is adopted. IT IS FURTHER ORDERED that the applicable premium credits for the optional large deductibles shall be determined at the next residential property insurance benchmark rate hearing held pursuant to Articles 5.101 and 1.33B of the Insurance Code and that the new rules shall be effective for all applicable policies issued on and after the effective date of the residential property insurance benchmark rates determined at such hearing. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 18, 1995. TRD-9513374 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: November 8, 1995 For further information, please call: (512) 463-6328