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 19. EDUCATION Part I. Texas Higher Education Coordinating Board Chapter 21. Student Services Subchapter CC. Early High School Graduation Scholarship Program 19 TAC sec.21.953, sec.21.956 The Texas Higher Education Coordinating Board adopts amendments to sec.21. 953 and sec.21.956, concerning Early High School Graduation Scholarship Program without changes to the proposed text as published in the March 22, 1996, issue of the Texas Register (21 TexReg 2355). These and a number of other amendments were approved by the Board at its October meeting, but the staff failed to include these amendments in the filing sent to the Texas Register. The mistake was discovered and was corrected by re- proposing the amendments and the amendments are now being adopted. The amendments are to implement provisions of House Bill 1479 regarding the Early High School Graduation Scholarship Program. The rules will provide $1,000 state scholarships to students graduating high school in no more than 36 months. No comments were received regarding adoption of the proposed amendments. The amendments are adopted under House Bill 1479, which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Early High School Graduation Scholarship Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 30, 1996. TRD-9606042 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: May 23, 1996 Proposal publication date: March 22, 1996 For further information, please call: (512) 483-6160 TITLE 22. EXAMINING BOARDS Part XXVIII. Executive Council of Physical Therapy and Occupational Therapy Examiners Chapter 651. Fees 22 TAC sec.651.1 The Executive Council of Physical Therapy and Occupational Therapy Examiners adopts amended sec.651.1, concerning Occupational Therapy Board Fees, without changes to the proposed text as published in the February 16, 1996 issue of the Texas Register (21 TexReg 1236), and corrected in the March 22, 1996 issue of the Texas Register (21 TexReg 2433). This rule is being amended to change the fees established by the Executive Council as requested by the Occupational Therapy Board. The amendment establishes set fees for licensure and for reinstatement of a suspended or revoked license by the Texas Board of Occupational Therapy Examiners. No comments were received regarding adoption of this amendment. The amendment is adopted under Texas Civil Statutes, Article 4512e-1, which provide the Executive Council of Physical Therapy and Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on May 1, 1996. TRD-9606029 John P. Maline Executive Director Executive Council of Physical Therapy and Occupational Therapy Examiners Effective date: May 22, 1996 Proposal publication date: February 16, 1996 For further information, please call: (512) 305-6900 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services Subchapter L. General Administration 25 TAC sec.29.1129 On behalf of the State Medicaid Director, the Texas Department of Health (department) submits adopted new sec.29.1129, concerning the accreditation of mammography facilities and providers, with changes to the proposed text as published in the February 27, 1996, issue of the Texas Register (21 TexReg 1485). Specifically, the new section defines the conditions for participation in the Texas Medical Assistance (Medicaid) Program for facilities and physicians providing screening and diagnostic mammography services. The providers of these services must meet the registration and accreditation standards of the department's Bureau of Radiation Control and Compliance, the recognized accreditation agency for the State of Texas, in accordance with the Mammography Quality Standards Act of 1992, Public Law 102-539 and the federal regulations found at 21 Code of Federal Regulations, Part 900, Subpart B. This new section will result in a higher level of accountability for medically necessary diagnostic services. The following changes were made to the rule based on comments from department staff: The word "Quality" was inserted in the rule title so that it reads "... Provider Compliance with the Mammography Quality Standards Act of 1992;" the word had been omitted. In the first sentence of the rule, the word "Medicaid" had been omitted and with its insertion the sentence reads, "Providers seeking reimbursement from the Texas Medical Assistance (Medicaid) Program...." The new section is adopted under the Human Resources Code, sec.32.021 and the Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program. The section is submitted by the Texas Department of Health under its arrangement with Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). sec.29.1129. Provider Compliance with the Mammography Quality Standards Act of 1992. Providers seeking reimbursement from the Texas Medical Assistance (Medicaid) Program for covered mammography screening and diagnostic services, must meet the registration and accreditation requirements of the department's Bureau of Radiation Control and Compliance, the recognized accrediting body for the state under the provisions of the Mammography Quality Standards Act of 1992, Public Law 102-539. 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 May 1, 1996. TRD-9606032 Susan K. Steeg General Counsel Office of General Counsel Texas Department of Health Effective date: June 10, 1996 Proposal publication date: February 27, 1996 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter A. Rules of Practice and Procedure 28 TAC sec.1.88, sec.1.89 The Commissioner of Insurance adopts repeal of sec.1.88 and sec.1.89, concerning entry of appearance, and failure to appear at a hearing on a contested case, without changes to the proposed repeal of such sections published in the March 12, 1996, issue of the Texas Register (21 TexReg 2001). Simultaneous to this adopted repeal, the Commissioner is adopting new sec.1.88 and sec.1.89, relating to the filing of a written response to the notice of hearing in a contested case, and to default provisions and remedies in the event of default, respectively; and amended sec.1.90, concerning the rules of practice and procedure for contested cases before the State Office of Administrative Hearings (SOAH) and the Commissioner of Insurance. Notice of adoption of the new sections and amendments to existing sections is published elsewhere in this issue of the Texas Register. Repeal of the sections is necessary because their provisions relate to essentially the same subject matter and regulatory procedural framework as proposed new sec.1.88 and sec.1.89, concerning the filing of a written response to the notice of a hearing in a contested case, and to default provisions and remedies in the event of default. Repeal of the sections permit them to be replaced with new sections that reorganize and streamline the disposition of certain contested matters, resulting in greater time efficiency and cost effectiveness than the repealed sections. The replacement sections permit the elimination of unnecessary administrative expense for both the department and SOAH, so that resources may be shifted to necessary and more essential functions, by providing that in certain circumstances informal disposition by default authorized by the Insurance Code, Article 1.10, may be directly pursued by department staff. No comments were received regarding adoption of the repeals. The repeal is adopted pursuant to the Insurance Code, Articles 1.10 and 1. 03A, and the Government Code, sec.2001.056 and sec.2001.004. Article 1.10, sec.7(d) provides that the commissioner may dispose of items addressed in sec.7 by consent order, agreed settlement, stipulations or default. Article 1.03A authorizes the commissioner of insurance to promulgate and adopt rules and regulations for the conduct and execution of the duties and functions by the department. The Government Code, sec.2001.056 provides that unless precluded by law, an informal disposition may be made of a contested case by stipulation, agreed settlement, consent order, or default. The Government Code, sec.2001.004 authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirements of available procedures, and prescribe the procedure for adoption of rules by a state administrative agency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 2, 1996. TRD-9606091 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: May 23, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 463-6327 28 TAC sec.sec.1.88, 1.89, 1.90 The Commissioner of Insurance adopts new sec.1.88 and sec.1.89, relating to the filing of a written response to the notice of hearing in a contested case, and to default provisions and remedies in the event of default, respectively; and amendments to sec.1.90, concerning the rules of practice and procedure for contested cases before the State Office of Administrative Hearings (SOAH) and the Commissioner of Insurance, without changes to new sections and amendments to existing sections as published in the March 19, 1996, issue of the Texas Register (21 TexReg 2121). Simultaneous to this adoption of new sec.1.88 and sec.1.89, and amended sec.1.90, the Commissioner is adopting the repeal of existing sec.1.88 and sec.1.89. Notice of adoption of that repeal is published elsewhere in this issue of the Texas Register . Provisions addressing the filing of a written response to the notice of hearing and sanctions for failure to file a written response or to appear at hearing are necessary and essential for the orderly and efficient disposition of matters before the Commissioner. The new sections will permit the elimination of unnecessary administrative expense for both the department and SOAH, so that resources may be shifted to necessary and more essential functions. New sec.1.88 provides a requirement for filing a written response to the notice of hearing in contested cases, as well as procedural details necessary to comply with the requirement. It provides a definition for contested case, addresses notice provisions, sets out in detail a required disclosure to the respondent regarding the necessity to provide a written response and the consequences for failure to provide such response, as well as setting out that certain remedies are available to the department staff in the event a written response is not timely filed. New sec.1.89 sets out provisions defining default and the remedies available in the event of default, including informal disposition by default. It also defines "informal disposition by default," and provides a procedure by which a respondent may set aside a default order and reopen the contested case. Amended sec.1.90 contains conforming changes to the memorandum of understanding between the department and the State Office of Administrative Hearings necessarily resulting from new sec.1.88 and sec.1.89. No comments were received regarding adoption of the new sections and the amendment. The new sections and the amendment are adopted pursuant to the Insurance Code, Articles 1.10 and 1.03A, and the Government Code, sec.2001.056 and sec.2001.004. Article 1.10, sec.7(d) provides that the commissioner may dispose of items addressed in sec.7 by consent order, agreed settlement, stipulations or default. Article 1.03A authorizes the commissioner of insurance to promulgate and adopt rules and regulations for the conduct and execution of the duties and functions by the department. The Government Code, sec.2001.056 provides that unless precluded by law, an informal disposition may be made of a contested case by stipulation, agreed settlement, consent order, or default. The Government Code, sec.2001.004 authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirements of available procedures, and prescribe the procedure for adoption of rules by a state administrative agency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 2, 1996. TRD-9606090 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: May 23, 1996 Proposed publication date: March 19, 1996 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 261. General Provisions Subchapter C. Expiration 30 TAC sec.261.30 The commission adopts the repeal of sec.261.30, concerning procedural rules, without changes to the proposed text as published in the February 20, 1996, issue of the Texas Register (21 TexReg 1367). The effect of this action is to continue the existing procedural rules in effect until the commission acts on the proposed new rules. This adoption is part of the second phase (Phase II) of an ongoing project to reorganize, clarify, and consolidate the procedural rules of the commission. The first phase of the project (Phase I) was intended to implement recent legislation and was completed in the summer of 1995. Phase I made limited substantive changes to the commission's rules and began limited reorganization. Phase II is a more ambitious attempt to reorganize and consolidate the commission's procedural rules, and to eliminate conflicting procedural requirements based solely on media or type of hearing. By consolidating these rules, the commission seeks to cut back on the duplication of requirements and definitions that might create unwarranted non-statutory differences in the treatment of persons working with the commission. As part of this ongoing project, the commission is continuing to examine program and media specific rules for inconsistency with the general rules of the agency. It is anticipated that any further consolidation will be proposed as amendments to specific programs or chapters and not as a further major revision to these procedural rules. Proposed numbering changes attempt to impose a more logical organization upon the most widely applicable rules of the commission by taking advantage of newly available chapters in Title 30. Chapters 1-99 will be reserved for the procedural rules and broadly applicable substantive rules of the commission. By locating generally applicable rules at the beginning of Title 30, commission rules should be organized in a more logical and user-friendly format. The proposed new format consists of the following reservation of chapters: Chapters 1-10-general rules of the commission; Chapters 11-20- miscellaneous provisions not specific to any media; Chapters 20-29-rulemaking; Chapters 30-49- application procedures; Chapters 50-69-processing of applications; Chapter 70- 79-enforcement; Chapter 80-89-hearings-contested/other. The current proposal conforms to this new format. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on May 2, 1996. TRD-9606175 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: May 27, 1996 Proposal publication date: February 20, 1996 For further information, please call: (512) 239-1966 Chapter 263. Final Approval by Executive Director, Evaluation of Request for Contested Case Hearing Subchapter C. Expiration 30 TAC sec.263.40 The commission adopts the repeal of sec.263.40, concerning procedural rules, without changes to the proposed text as published in the March 19, 1996, issue of the Texas Register (21 TexReg 2161). The effect of this action is to continue the existing procedural rules in effect until the commission acts on the proposed new rules. This adoption is part of the second phase (Phase II) of an ongoing project to reorganize, clarify, and consolidate the procedural rules of the commission. The first phase of the project (Phase I) was intended to implement recent legislation and was completed in the summer of 1995. Phase I made limited substantive changes to the commission's rules and began limited reorganization. Phase II is a more ambitious attempt to reorganize and consolidate the commission's procedural rules, and to eliminate conflicting procedural requirements based solely on media or type of hearing. By consolidating these rules, the commission seeks to cut back on the duplication of requirements and definitions that might create unwarranted non-statutory differences in the treatment of persons working with the commission. As part of this ongoing project, the commission is continuing to examine program and media specific rules for inconsistency with the general rules of the agency. It is anticipated that any further consolidation will be proposed as amendments to specific programs or chapters and not as a further major revision to these procedural rules. Proposed numbering changes attempt to impose a more logical organization upon the most widely applicable rules of the commission by taking advantage of newly available chapters in Title 30. Chapters 1-99 will be reserved for the procedural rules and broadly applicable substantive rules of the commission. By locating generally applicable rules at the beginning of Title 30, commission rules should be organized in a more logical and user-friendly format. The proposed new format consists of the following reservation of chapters: Chapters 1-10-general rules of the commission; Chapters 11-20- miscellaneous provisions not specific to any media; Chapters 20-29-rulemaking; Chapters 30-49-application procedures; Chapters 50-69-processing of applications; Chapter 70-79- enforcement; Chapter 80-89-hearings-contested/other. The current proposal conforms to this new format. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on May 2, 1996. TRD-9606176 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: May 27, 1996 Proposal publication date: March 19, 1996 For further information, please call: (512) 239-1966 Chapter 264. Alternate Dispute Resolution 30 TAC sec.264.20 The commission adopts the repeal of sec.264.20, concerning procedural rules, without changes to the proposed text as published in the March 19, 1996, issue of the Texas Register (21 TexReg 2163). The effect of this action is to continue the existing procedural rules in effect until the commission acts on the proposed new rules. This adoption is part of the second phase (Phase II) of an ongoing project to reorganize, clarify, and consolidate the procedural rules of the commission. The first phase of the project (Phase I) was intended to implement recent legislation and was completed in the summer of 1995. Phase I made limited substantive changes to the commission's rules and began limited reorganization. Phase II is a more ambitious attempt to reorganize and consolidate the commission's procedural rules, and to eliminate conflicting procedural requirements based solely on media or type of hearing. By consolidating these rules, the commission seeks to cut back on the duplication of requirements and definitions that might create unwarranted non-statutory differences in the treatment of persons working with the commission. As part of this ongoing project, the commission is continuing to examine program and media specific rules for inconsistency with the general rules of the agency. It is anticipated that any further consolidation will be proposed as amendments to specific programs or chapters and not as a further major revision to these procedural rules. Proposed numbering changes attempt to impose a more logical organization upon the most widely applicable rules of the commission by taking advantage of newly available chapters in Title 30. Chapters 1-99 will be reserved for the procedural rules and broadly applicable substantive rules of the commission. By locating generally applicable rules at the beginning of Title 30, commission rules should be organized in a more logical and user-friendly format. The proposed new format consists of the following reservation of chapters: Chapters 1-10-general rules of the commission; Chapters 11-20- miscellaneous provisions not specific to any media; Chapters 20-29-rulemaking; Chapters 30-49-application procedures; Chapters 50-69-processing of applications; Chapter 70-79- enforcement; Chapter 80-89-hearings-contested/other. The current proposal conforms to this new format. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on May 2, 1996. TRD-9606177 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: May 27, 1996 Proposal publication date: March 19, 1996 For further information, please call: (512) 239-1966 Chapter 265. Procedures Before Public Hearings Subchapter H. Expiration 30 TAC sec.265.170 The commission adopts the repeal of sec.265.170, concerning procedural rules, without changes to the proposed text as published in the March 19, 1996, issue of the Texas Register (21 TexReg 2168). The effect of this action is to continue the existing procedural rules in effect until the commission acts on the proposed new rules. This adoption is part of the second phase (Phase II) of an ongoing project to reorganize, clarify, and consolidate the procedural rules of the commission. The first phase of the project (Phase I) was intended to implement recent legislation and was completed in the summer of 1995. Phase I made limited substantive changes to the commission's rules and began limited reorganization. Phase II is a more ambitious attempt to reorganize and consolidate the commission's procedural rules, and to eliminate conflicting procedural requirements based solely on media or type of hearing. By consolidating these rules, the commission seeks to cut back on the duplication of requirements and definitions that might create unwarranted non-statutory differences in the treatment of persons working with the commission. As part of this ongoing project, the commission is continuing to examine program and media specific rules for inconsistency with the general rules of the agency. It is anticipated that any further consolidation will be proposed as amendments to specific programs or chapters and not as a further major revision to these procedural rules. Proposed numbering changes attempt to impose a more logical organization upon the most widely applicable rules of the commission by taking advantage of newly available chapters in Title 30. Chapters 1-99 will be reserved for the procedural rules and broadly applicable substantive rules of the commission. By locating generally applicable rules at the beginning of Title 30, commission rules should be organized in a more logical and user-friendly format. The proposed new format consists of the following reservation of chapters: Chapters 1-10-general rules of the commission; Chapters 11-20- miscellaneous provisions not specific to any media; Chapters 20-29-rulemaking; Chapters 30-49-application procedures; Chapters 50-69-processing of applications; Chapter 70-79- enforcement; Chapter 80-89-hearings-contested/other. The current proposal conforms to this new format. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Water Code, sec.sec.5.103, 5.105, 13.041, 26.011, 27.019, 32.009, 33.007, and 34.006 and Texas Health and Safety Code, sec.sec.341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412, which authorize the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of Texas and to establish and approve all general policy of the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on May 2, 1996. TRD-9606178 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: May 27, 1996 Proposal publication date: March 19, 1996 For further information, please call: (512) 239-1966 Chapter 327. Spill Prevention and Control Spill Reporting 30 TAC sec.sec.327.1-327.5 The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts new sec.sec.327.1-327.5, concerning reporting discharges or spills, with changes to the proposed text as published in the November 17, 1995, issue of the Texas Register (20 TexReg 9535). The commission is adopting these spill response rules (spill rules) to effectuate its powers, responsibilities, and authorities regarding discharges or spills under the Texas Water Code, Chapter 26, and the Texas Health and Safety Code, Solid Waste Disposal Act, Chapter 361. The commission accepted public comment on the proposed rules for 30 days following publication on November 17, 1995. The agency held a public hearing to accept oral and written comment on the proposed rule at commission offices in Austin, Texas on December 4, 1995. The following provided oral comment at the hearing: Houston Lighting & Power (HL&P); Texas Association of Businesses and Chambers of Commerce (TAB&CC); and Texas Utilities Services, Inc. (TU). Written comments were received from the following: Amoco Corporation (Amoco); Brazos Electric Cooperative (BEC); Brown McCarroll & Oaks Hartline (Brown McCarroll); Clark Refining & Marketing, Inc. (Clark); Colonial Pipeline Company (Colonial); Diamond Shamrock; DuPont Engineering (DuPont); Eastman Chemical Company-Texas Eastman Division (Eastman Chemical); Exxon Pipeline Company (Exxon); Formosa Plastics Corporation, (Formosa Plastics); GATX Terminals Corporation (GATX); Harris County Pollution Control Department (HCPC) ; Houston Lighting & Power (HL&P); Howell, Linfor, Bones & Moore (HLBM); Huntsman Corporation (Huntsman); Lower Colorado River Authority (LCRA); Occidental Chemical Corporation (Occidental Chemical); Red Star Yeast Products (Red Star); Shell Oil Products Company on behalf of Shell Pipe Line Corporation (Shell); SMQI Services, Inc. (SMQI); Southeast Texas Environmental Managers (STEM); Sterling Chemicals, Inc. (Sterling Chemicals); Texas Chemical Council (TCC); Texas Department of Transportation (TXDOT); Texas General Land Office (GLO); Texas Mid-Continent Oil & Gas Association (TMOGA); Texas Utilities Services, Inc. (TU); Union Pacific Railroad Company (Union Pacific); The University of Texas System (UT); UnocalCorporation (Unocal); Vinson & Elkins; and one individual citizen. The commission is currently undertaking a project to streamline and bring consistency to its rules. Toward that end, the commission has proposed new 30 Texas Administrative Code (TAC) Chapter 3, which will set forth definitions that apply to all agency rules. As a result, the commission has removed the definitions in proposed sec.327.2 for "agency," "commission," "executive director," "person," and "TNRCC," in the final rule because these terms will be defined in Chapter 3. In addition, the commission intends to avoid use of the term "TNRCC" in its rules. Instead, "commission" and "agency" will be used as appropriate. "Commission" means the three commissioners acting in their official capacity, and "agency" means the commission, executive director, and their staffs. This has resulted in several changes in the final rule. References to "Commission on- scene coordinator" in sec.327.2 and sec.327.5(b) have been changed to "Agency on-scene coordinator." A reference to "TNRCC" in the proposed definition of "Emergency Response Team" has been changed to "agency." The reference to "commission" in proposed sec.327.3(c) has been changed to "agency." Finally, the reference to "TNRCC regional manager" in proposed sec.327.5(c) has been changed to "agency regional manager." The proposed rule used the terms "must" and "shall" interchangeably to describe required action. The commission has replaced all references to "must" with "shall" in the final rule for purposes of consistency. This affects proposed sec.327.3(b)-(e), sec.327.3(g)-(h), sec.327.3(j)(1), sec.327.5(b)-(c), and sec.327.5(c)(1)-(3). The commission received a number of general comments. Diamond Shamrock submitted comments supporting adoption of the rule without further changes. Exxon commented that the Texas Water Code only provides authority to regulate spills into water, and believes the TNRCC is going beyond its jurisdiction in requiring spills onto land to be reported. The commission disagrees. The Texas Water Code, sec.26.039, defines a spill as an "act or omission through which waste or other substances are deposited where, unless controlled or removed, they will drain, seep, run, or otherwise enter water in the state." The Texas Water Code, subchapter G, affirms this policy for spills of hazardous substances. Subsection 26.039(c) further states that, "Activities which are inherently or potentially capable of causing or resulting in spillage or accidental discharge of waste or other substances and which pose serious or significant threats of pollution are subject to reasonable rules establishing safety and preventive measures which the commission may adopt or issue..." Spills to land represent a potential source of groundwater and surface water contamination, and the Texas Water Code, Subchapter G, sec.26.039, provides adequate statutory authority to regulate such spills. GLO disagrees with the assumption stated in the preamble to the proposed rule that spills onto land are less likely to present a negative impact to human health because land spills can contaminate groundwater. The commission does consider spills to land to be less likely to threaten human health and environment than spills to water because spills to water cannot be contained as easily as spills to land. Additionally, spills to water may cause ecological incidents such as fish kills, and can migrate more quickly to drinking water intakes. The commission originally proposed spill rules in the Texas Register on August 9, 1994 (19 TexReg 6204), but the commission withdrew the proposed rules based on comments received during the public comment period. During the comment period for this proposal, several commenters addressed "historical contamination," which was included in the August 1994, proposal but was not included in the November 1995, proposed rule. Clark, TCC, Vinson & Elkins, and STEM requested that the commission clarify in the preamble that these rules do not apply to historical contamination, believing that other programs adequately address corrective action. Further, they believe the definition of "Discharge or spill" could cause confusion because it is so broad that a literal reading of the definition could require reporting of historical contamination. The commission affirms that these rules do not apply to historical contamination. TCC, STEM, DuPont, and Unocal further requested the addition of a paragraph in sec.327.1(b) stating that these rules do not apply to historical contamination. The commission does not consider it necessary to add the exemption to the final rule. Unocal, Vinson & Elkins, and STEM did note that the commission could clarify that these rules do not affect a party's obligations to report newly discovered groundwater contamination under the Texas Water Code, sec.26.039. The commission agrees. GATX wanted to know which, if any, regulations other than these rules address historical contamination. In response, regulatory programs at the TNRCC such as the Voluntary Cleanup Program and the Risk Reduction Rules relate to notification of site remediation, and real estate laws require owner disclosure of known environmental problems at a site. Section 330.953 of the municipal solid waste regulations requires notification of discovery of closed municipal solid waste landfills during investigation; however, those rules only apply to municipal landfills. Currently there are no other commission rules addressing reporting of historical contamination. As noted in the previous paragraph, persons who discover historical contamination are guided by the Texas Water Code, sec.26.039, as they were before this rulemaking. LCRA commented that it was concerned with the lack of record keeping requirements, and that the rules should establish some minimum requirement in order to track repeated, non-reportable releases because the cumulative risk of repeated releases can far exceed the risk posed from reportable releases. In response, the commission is concerned that record-keeping requirements for non- reportable releases represent a cost to the regulated community without providing equivalent benefit for the public. Furthermore, responsible persons are reminded that any discharge or spill is subject to response actions even if the discharge or spill is not reportable. Although this should address LCRA's concern, the commission will closely monitor the implementation of the rule to determine if single or cumulative small releases represent a potential threat to human health and waters in the state. If this is the case, the rule could be amended in the future to require more recordkeeping. Colonial submitted a comment stating that the rules should incorporate the Unified Command System as part of the immediate response to a spill. Colonial is concerned that any spill of oil or a hazardous substance into waters in the state will require notification to all federal and state natural resource trustees in addition to the TNRCC. In response, this rule is intended to address only the RP's initial notification to the agency for reportable quantity spills and the RP's response to the spill. The agency is a member of the National Contingency Plan, Regional Response Team and, in that capacity, has the responsibility of coordinating with other state and federal response agencies. This coordination includes notifying state and federal natural resource trustees when spills occur. This notification process is as follows: 40 Code of Federal Regulations (CFR) 300.300(d) requires that the National Response Center notify the Federal On-Scene Coordinator (OSC). The OSC shall ensure notification of the appropriate state agency; 40 CFR 300.305(e) which requires the OSC to notify the natural resource trustees promptly; 40 CFR 300. 410(h) requires the OSC or lead agency promptly notify the natural resource trustees so that appropriate actions and coordinations of all response activities with such affected trustees; and 40 CFR 300.615(b) requires the Trustees to designate the appropriate contacts to the Regional Response Teams, Area Committees for inclusion in the Regional Contingency Plan and the Area Contingency Plans. In addition, the three State response agencies, GLO, RRC and the TNRCC, upon adoption of these rules, will publish the State of Texas Oil and Hazardous Substances Spill Contingency Plan which describes the roles and responsibilities of the state and federal agencies in their response to spills and may be described as the regulatory agencies "Unified Incident Command System." Formosa Plastics noted that the proposed rules do not address the issue of less-than-reportable-quantity (RQ) spills which result in a waste due to cleanups. Formosa suggested that the commission clarify its intent concerning these wastes. Under the February 1992 Texas Water Commission Notification Policy for Spills, Formosa has reported these wastes. The commission emphasizes that these rules replace the notification policy which Formosa referenced. Anytime an RP wants technical assistance in spill response incidents, such as assignment of waste codes to spill-related wastes, the RP should report the spill or discharge and request the agency's assistance. That assistance may be spill waste classification, or guidance on appropriate abatement measures or cleanup methods. Nothing in these rules prohibits a party from requesting assistance for spills below the RQ. Section 327.1 addresses applicability. There were no comments on proposed sec.327.1(a). The commission received a number of comments on sec.327.1(b), which establishes those discharges or spills to which Chapter 327 does not apply. Concerning sec.327.1(b)(1), which refers to the jurisdiction of the GLO for coastal oil spills, two comments were submitted. Colonial requested clarification because there are many locations where a spill could "threaten" coastal waters in the state. The commenter is concerned because it is not clear which agency has jurisdiction in such an instance. The commission is adopting by reference the definition of "Coastal waters" that appears in 31 TAC sec.19.2 of the GLO rules. That definition specifically delineates coastal waters, which should assist persons in determining if a spill is affecting coastal waters. Ultimately this should not be a concern for RPs because the agency will contact GLO if the TNRCC receives a spill report that it believes is under GLO's jurisdiction. GLO will do the same. In addition, calls can be made to the State Emergency Response Center at 1-800-823-8224, and the Response Center will direct the spill report to the appropriate agency. Howell, Linfor suggested that the paragraph should be changed to reflect the role of the Railroad Commission of Texas in coastal oil spill response. They note that the GLO is the lead agency for spills of oil, including crude oil, into coastal waters or that pose an imminent threat to coastal waters if not abated; however, the Railroad Commission is the on-scene coordinator for coastal spills of 240 barrels or less. The commission agrees with the comment and the language is changed in the final rule. The commission received a comment from Occidental Chemical concerning sec.327.1(b)(3), which exempts from these rules air releases reported under 30 TAC sec.101.6 (relating to Major Upsets) and sec.101.7 (relating to Notification Requirements for Maintenance). It believes the paragraph should not be adopted because it is legally deficient. The comment stated that the Texas Water Code definitions of "discharge" and "spill" in sec.26.039 and sec.26.263 are expressly limited to situations affecting water. As proposed, any air release other than those reported under sec.101.6 and sec.101.7 presumably would be subject to the spill rules, and the TNRCC did not invoke its authority under the Health and Safety Code, Chapter 382 (the Texas Clean Air Act) in adopting these rules. The commenter requests the TNRCC consider proposing air release notification rules that use the approach of 40 CFR Part 302. The commission did not intend for the proposed rules to cover air releases, and has amended the proposed rule by exempting all air releases from Chapter 327 to avoid any confusion. The commission wishes to clarify that a release to air that later lands on the ground or water does not need to be reported under these rules if it is reported under another reporting requirement such as sec.101.6 or sec.101. 7. Occidental Chemical also commented on proposed sec.327.1(b)(7), which concerns reporting under permit, order, or other rule. The commenter believes that this provision appears to establish an immediate reporting requirement for noncompliant discharges regardless of whether or not the discharge exceeds the RQ during a 24-hour period. The commission understands that the term "noncompliant" may be confusing, so "noncompliant" has been replaced with "not so authrorized." The commission has made two grammatical changes in sec.327.1(b) (7). The proposed rule stated that Chapter 327 does not apply to, "discharges which are authorized by a permit, order, or rule issued pursuant to federal law..." The final rules states, "discharges that are authorized by a permit, order, or rule issued under federal law..." Proposed sec.327.1(b)(9) stated that these rules do not apply to discharges or spills occurring during the normal course of transportation about which carriers are required to give notice and report under 49 CFR sec.171.15 and sec.171.16. Union Pacific believes it is appropriate to completely exempt transportation incidents from the proposed rules since the rules effectively revise RQs for hazardous materials and redefine "hazardous materials" to include "other substances," which only the United States Department of Transportation (U.S. DOT) has the authority to revise. Howell, Linfor commented that under the Emergency Planning and Community Right-to-Know Act, 40 CFR Part 355, hazardous substance spills resulting from transportation incidents are required to be immediately reported to local first responders, the Local Emergency Planning Committee (LEPC), the State Emergency Response Commission (TNRCC in this case), and the National Response Center. The commenter further noted that if immediately is presumed to be in the same context as it is in other federal regulations such as the Oil Pollution Act of 1990, it generally means within one hour. An individual citizen submitted a comment objecting to the transportation exclusion because data show that transportation events have had much more severe impacts on human health than impacts associated from events at fixed facilities. In addition, spills occurring during transportation will represent a significant proportion of spills meeting the new RQs. Because this exemption was included in the proposed rule, the commission retains this exemption in the final rule. However, the commission is concerned about the potential impact of transportation spills. Therefore, immediately after the effective date of this rule, the commission plans to propose an amendment to these rules which will remove this exemption. Proposed sec.327.1(b)(10) exempted spills of used oil from these reporting requirements because they were addressed in proposed rules for newly adopted 30 TAC Chapter 324, which relates to the management of used oil (used oil rules). TAB&CC, Brown McCarroll, Sterling Chemicals, TCC, UT, TU, and HL&P requested deletion of this paragraph, stating that all spill reporting requirements for oil and used oil should be under Chapter 327. The commission agrees with this comment and has deleted this paragraph. Because the used oil rules were adopted before the spill rules and the used oil program is seeking federal program delegation, it was necessary to include a reporting requirement for spills of used oil in the used oil rules in addition to these rules. The used oil rules require a 25-gallon RQ for spills of used oil from do-it-yourselfer used oil collection centers and defer to these rules for RQs of used oil from other sources. Please note that requirements for reporting and response actions for spills of used oil from regulated petroleum storage tanks (PSTs) are set forth in 30 TAC Chapter 334. Eastman Chemical requested the addition of a new sec.327.1(b)(11) to exempt discharges or spills to certain waters such as noncontact cooling ponds, impoundments, and stormwater pathways, but to require reporting for spills or discharges to impoundments, reservoirs, and drainage ways which discharge to surface waters in the state. The commission is concerned that such a broad statement will confuse persons attempting to comply with the rule. As the preamble to the proposed rule stated, spills to waters listed by the commenter are not reportable as long as they fit the descriptions in sec.327.1(b) . In most cases, non-contact cooling ponds, impoundments, and stormwater pathways will be covered by exemptions in subsection (b), notably paragraph (7) , which addresses permits and orders. The commission has not added this language to the final rule. Section 327.2 establishes definitions. The commission received a large number of comments concerning the proposed definitions. The proposed rules defined "Coastal waters" as "Surface waters subject to the tide and located in or bordering counties of Texas having a shoreline, and that portion of the Gulf of Mexico subject to the jurisdiction of the State of Texas." GLO commented that it has a very specific definition of tidally influenced waters in its regulations at 31 TAC sec.19.2 and that definition should be referenced for consistency. The commission agrees with this comment and the change has been made. Several comments were submitted concerning "Discharge or spill," which was proposed as "An act or omission by which oil, hazardous substances, waste, or other substances are spilled, leaked, pumped, poured, emitted, entered, or dumped onto or into waters in the State of Texas or by which those substances are deposited where, unless controlled or removed, they may drain, seep, run, or otherwise enter water in the State of Texas." Formosa Plastics and GLO note that the definition in the rules only considers releases into water in the state and not to land. GLO recommended expanding the definition to include spills to land. Formosa suggested that the rules use the definition of discharge in 40 CFR, sec.260.10, concerning hazardous waste discharges. Further, they note that for purposes of these rules, the definition could be refined to include oil and hazardous substances. The commission responds that the definition of "Discharge or spill" is a combination of the definitions in the Texas Water Code, sec.26.039 and sec.26.263. The commission does not consider it necessary to amend the statutory definition by rule. TMOGA stated that the last part of the definition is unclear and could be interpreted as applying to previously permitted discharges or discharges in exceedance of permit levels that are reported under the permit. The comment states that permit exceedences that are subject to reporting under the permit should be exempted. In response, the commission notes that sec.327.1(b)(7) exempts from the spill rules those spills that are covered by a permit. Occidental Chemical interprets the statement in the definition that "controlling or removing" substances so that entry into waters in the state does not occur or may not occur means that undertaking these measures prevents the deposit from being a reportable discharge or spill. The commission disagrees with this comment, and regards the statement "if not controlled or removed" to mean that a spilled substance would eventually enter waters in the state if no action to control or remove the spill was taken, and these spill rules, therefore, require reporting. The commission retains "Discharge or spill" as proposed. "Emergency response team" was defined as "A unit of the TNRCC that is responsible for responding to spills and discharges under the agency's jurisdiction." In addition, the commission considers the emergency response team's duty to be coordinating the response to spills or discharges rather than responding to spills or discharges. The definition in the final rule includes this change to more accurately reflect the role of the emergency response team. "Facility" was defined as "Any structure or building, including contiguous land, equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, aircraft, or any site or area where a discharge or spill has occurred or may occur"" TCC requested clarification that the term "contiguous" describes "land" and suggested that adding the word "or" after land will alleviate any confusion. The commission agrees that this change will add clarity, and the proposed language has been modified in the final rule. TCC and GLO suggested deletion of the language at end of the definition, "or any site or area where a discharge or spill has occurred or may occur," because it is unnecessary and implies that threatened discharges are subject to this rule. The commission disagrees with the comment. Only actual spills or discharges meeting the criteria established by the rules are subject to the rules. Furthermore, the commission notes that the definition of facility in these rules is consistent with the definition of facility in the Health and Safety Code, sec.361.181, the Solid Waste Disposal Act, and with the commission's jurisdiction over "activities which are potentially capable of causing or resulting in spillage, " given in the Texas Water Code, sec.26.039(c). GLO further recommended amending the definition to include a reference to sec.327.1(b)(9) to avoid confusion created by the inclusion of "motor vehicles" and "rolling stock." The commission retains the proposed definition because spills from motor vehicles and rolling stock that are not reported under 49 CFR sec.171.15 and sec.171.16 must be reorted to the state. The definition for "Industrial waste" proposed by the commission was taken directly from the Texas Water Code, which defined it as "Waterborne liquid, gaseous, or solid substances that result from any process of industry, manufacturing, trade, or business." Eastman Chemical, Brown McCarroll, TCC, and DuPont expressed concern that all products made by a business would be considered industrial waste under the definition. They recommended changing the definition so that the materials are industrial solid wastes or to clarify that some type of discarding activity is necessary before a product becomes a waste. Eastman Chemical and TCC also recommended adding "contained" before gaseous substances or deleting the reference to gaseous substances because these rules do not cover releases to air. BEC suggested deleting the term "waterborne" from the definition because not all liquids are waterborne. The commission agrees that the definition is confusing, and is amending the definition to be consistent with the definition of industrial solid waste in 30 TAC Chapter 335. Industrial solid waste is defined in Chapter 335 as "Solid waste resulting from or incidental to any process of industry or manufacturing, or mining or agricultural operation, which may include hazardous waste as defined in sec.335.1 of this title (relating to Definitions)." Consistent with this change, sec.327.4(c) is amended to require the reporting of spills of industrial solid waste rather than simply industrial waste. Finally, Exxon and Occidental Chemical suggested limiting industrial waste to only Class 1 Industrial Waste and Municipal Hazardous Waste because those wastes have the potential to cause a toxicological effect. In response to the comment from Exxon and Occidental Chemical, the commission notes that Class 2 and Class 3 waste can cause incidents of pollution. The proposed rules contained separate definitions for used oil and oil. The commission received many comments on these definitions. Oil was defined as "Oil of any kind or in any form, except used oil, including but not limited to petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil." Used oil was defined as "oil that has been refined from crude oil, or synthetic oil, that as a result of use has been contaminated by physical or chemical impurities." Exxon believes that it is not necessary to redefine the term "oil" because there are existing definitions for oil such as that found in sec.335.1. The commission notes that sec.335.1 does not contain a definition for oil. There is a definition for petroleum substances; however, this definition is limited to oils and refined product derived only from petroleum. TAB&CC, Brown McCarroll, TMOGA, TCC, DuPont, UT, TU, and HL&P all commented that used oil should be included in the definition of oil and the separate definition for used oil should be stricken. In addition, doing so would establish the same RQ for used oil and oil. GLO commented that it is not clear how used oil should be reported since it is excluded from the definition of oil. The commission responds that the Texas Health and Safety Code, Chapter 371, provides a clear statutory mandate for the regulation of used oil. Based on this statutory guidance, the commission considers it appropriate to differentiate between oil and used oil, including spills or discharges of used oil. The commission retains the definitions of oil and used oil, and continues to exclude used oil from the definition of oil. However, the final rules include RQs for used oil to consolidate spill reporting requirements. TMOGA further requested that no differentiation be made between automotive used oil and other used oil. In response, these rules do not differentiate between automotive used oil and other used oil, but differentiate between the sources of used oil (ie. electric generating facilities, petrochemical plants, refineries, etc.). LCRA suggested exempting oils used solely for cooling or insulation, such as transformer oil, from the definition of used oil because they do not contain additives that would make them more toxic. The commission responds that the definition of oil is intended to cover a broad range of oils, including transformer oil, and therefore has not excluded transformer oil from the definition in the final rules. GLO also commented that the definition of oil includes vegetable oils but the definition of used oil is limited to petroleum-derived oils. GLO stated that the definitions should be made consistent with each other. In response, the commission notes that the statute creating the used oil program, Senate Bill (SB) 1683, 74th Legislature, limits used oil to petroleum-derived substances or synthetic oils. The definition for oil is derived from the federal Clean Water Act (33 U.S.C. sec.1321(a)) and includes vegetable oils which can cause a sheen on water. TCC wanted the commission to clarify whether refined products such as gasoline fall under the definition of "oil." The commission responds that the intent of the proposed rule was to include refined product such as gasoline in the definition of oil. Based upon decisions made regarding the RQ for oil and refined product and for purposes of clarity, the proposed definition of oil has been changed to exclude petroleum product and oil designated as a hazardous substance in 40 CFR sec.302. 4. The definition for petroleum product in 30 TAC sec.334.122, which is limited to propulsion fuels such as gasoline, has been added to the rule . Finally, GLO requested that the rule define "contaminated" in the definition of used oil, noting that oil can be contaminated with hazardous substances or it can be contaminated with water. The commission responds that used oil is any oil that has been used for its intended purpose as such, it could be contaminated with water. The definition of "Other substances" also generated comments from several entities. Other substances was proposed as "Substances other than hazardous substances or oil that may be useful or valuable and therefore are not ordinarily considered to be waste, but that will cause pollution if discharged into water in the state." Huntsman, Eastman Chemical, TCC, DuPont, and GLO stated that the definition is overbroad and vague and should be deleted from the rule. TMOGA requested that the commission discuss the concerns that other substances present. The commission responds that the definition of other substances is taken directly from the statute. Removing "other substances"from the rule would require RPs to determine reportable spills under the general guidance of the Texas Water Code, sec.26.039. This contradicts the purpose for implementing the spill rules, which is to provide clarity and consistency. The commission emphasizes that spills or discharges of other substances are required to be reported only if they are spilled to water in amounts above the RQ. Those spills or discharges can create incidents of pollution. For example, a spill of ordinary flour lowers the oxygen level in water and blocks sunlight, and a spill of molasses results in biological oxygen demand (BOD) loading which takes oxygen away from plant and animal aquatic life. In addition, requiring the reporting of spills of other substances will catch spills of newly derived substances which could be hazardous but have not been added to the list of hazardous substances in 40 CFR sec.302.4. The commission retains the definition of other substances; however, the statement that other substances are not hazardous substances or oil has been removed so that the definition is consistent with the statutory definition. Spills to land of other substances remain subject to the general notification requirements in the Texas Water Code, sec.26.039. Eastman Chemical commented on the definition for "Pollution." The proposed definition of pollution was "The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose." Eastman Chemical asserted that the definition is vague, over broad, and will lead to over reporting of insignificant releases, and requested deletion of the definition from the rule. The commission responds that the definition of pollution is the same as found in Texas Water Code, sec.26.001; therefore, the commission retains the definition as proposed. The commission emphasizes that in order to compensate for the uncertainty caused by the statutory definition, the rule establishes reportable quantities. Although the commission did not receive any comments regarding the proposed definition for the "Regional response team," the term is not used in the spill rules, and therefore does not appear in the final rule. The proposed definition for "Responsible Person" was "A person who is: (A) the owner, operator, or demise charterer of a vessel from which a discharge or spill emanates; (B) the owner or operator of a facility or unit from which a discharge or spill emanates; or (C) any other person who causes, suffers, allows, or permits a discharge or spill." Brown McCarroll and Occidental Chemical requested the commission define the term "unit" in subparagraph (B), provide some guidance to assist persons in complying with the rules or delete it. The commission is deleting the term "unit" because the definition of facility covers all units. The commission received several comments on the definition for "Water or water in the state" which was proposed as "Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface waters, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state." BEC commented that "impounding reservoirs" does not mean anything and the rules should be changed to separate the two. In response, the term "impounding reservoirs" appears in the definition of "Water" in Texas Water Code, sec.26.001. It is intended to address impoundments and reservoirs. The commission acknowledges that the language can be confusing, but does not wish to alter the statutory definition of water solely for these rules. BEC also suggested adding "swamps" to the list of aquatic habitats because marsh and swamp are not synonymous. The commission has not made the recommended change because the comprehensive nature of the definition of "Water or water in the state" will cover swamps. GLO recommended adding "playas" to the definition. The commission does not consider it necessary to include playas in the definition. RPs should use their professional judgement to determine if a spill into a playa is a reportable spill. As general guidance, the RP should use the RQs for spills to water if there is any water in the playa before the response actions are complete, and the RQs for spills to land if there is no water in the playa through the completion of the response action. Proposed sec.327.3 sets forth notification requirements for discharges or spills required to be reported under Chapter 327. LCRA submitted a general comment concerning this section requesting that the commission clarify that responsible parties are still required to cleanup the spill by clearly stating the applicable remediation requirements in the rule. LCRA suggested using similar language found in 30 TAC sec.334.75(b) of the PST rules. Based on this comment and comments discussed later in the preamble, the commission has amended sec.327.5, Actions Required, to require the RP to immediately abate and contain the spill, and clearly sets forth additional actions that the RP may use to respond to any spill. Subsection 327.3(a) establishes what is a reportable discharge or spill. The commission received a comment from an individual citizen on this subsection. The person recommended adding performance criteria to the rules to require reporting even when the RQ has not been exceeded such as any spill that causes an injury to people or the environment such as illness, fish kills, or defoliation. The commission responds that additional reporting requirements are included in sec.327.3(g) which requires notification of a spill to local government officials if the spill creates an imminent health threat. In developing the proposed rule, the commission considered requiring reporting if certain events such as fish kills resulted from spills less than the RQ, but determined that such exceptions add uncertainty to the goal of clear reporting standards. As noted earlier, the agency will closely monitor the implementation of the new rules. If it appears that certain human health, safety and ecological impacts are occurring due to spills below the RQ, the agency could revisit the issue in the future. The commission retains sec.327. 3(a) as proposed. Based on the change from "industrial waste" to "industrial solid waste" discussed earlier in the preamble, the reference to "industrial waste" in sec.327.3(a) has been changed to "industrial solid waste." Also, petroleum product and used oil have been added because sec.327.4 now differentiates between oil, petroleum product, and used oil. Subsection 327.3(b) describes initial notification requirements. UT requested that the commission clarify that this notice provision is intended to be the same as 42 USC sec.9603(a). Section 9603(a) requires that RPs notify the National Response Center of a release of hazardous substances in quantities equal to or greater than the federal RQs. The requirement is codified in the United States Environmental Protection Agency (EPA) regulations at 40 CFR sec.302.6. The commission responds that notification under this subsection is not the same as notification to the National Response Center. Notifying the National Response Center does not relieve persons of the notification requirements under the Texas Water Code and these rules. The commission has attempted to be consistent with federal reporting requirements to the extent possible with the adoption of Comprehensive Environmental Responsibility, Compensation, and Liability Act (CERCLA) RQs for most spills of hazardous substances, and in many cases RPs will only be required to notify the State when they notify the National Response Center. Huntsman, TCC, and DuPont note that the proposed subsection required notification after a "determination" that a spill has occurred and required reporting the spill not later than 24 hours after "discovery" of the spill. Because it can take longer than 24 hours to determine if a reportable spill has occurred, Huntsman suggested adding language to allow the spill to be reported not later than 24 hours after it is discovered and/or 24 hours after it is determined that the spill is reportable, whichever is greater. TCC and DuPont commented that reporting should occur not later than 24 hours after determination that a spill or discharge had occurred. Similarly, Brown McCarroll suggested requiring initial notification no later than 24 hours after discovery of a reportable spill or discharge. GLO commented that the rule should be amended to require immediate notification rather than notice within 24 hours, because the first 24 hours after a spill or discharge are the most critical in abating and containing the spill. The commission responds that the 24-hour notice requirement is derived from the Texas Water Code, sec.26.039(b), which states that, "the individual...shall notify the commission as soon as possible and not later than 24 hours after the occurrence." The rule uses the same language to be consistent with the statute and to alleviate confusion that results from the use of "immediately." The commission retains the language in subsection (b) as proposed, and emphasizes that the purpose of spill reporting is to allow the agency the opportunity to respond to spills that present threats to human health and the environment. Determining whether a spill is reportable can take several days, during which time significant health or ecological impacts can occur. The commission acknowledges the uncertainty that often surrounds an accidental spill and the practical complexities of determining the actual amount spilled. Based on this knowledge, the commission is adopting sec.327.3(f), Correction of records, which allows an "non-reportable" spill to be corrected in the records. Further, if it takes longer than 24 hours to determine if a reportable quantity has been spilled, reporting within the 24- hour time frame exempts the RP from potential penalties. Also concerning sec.327.3(b), HCPC commented that local pollution control programs must be included in the initial notification, because the notification requirements of sec.327.3(g) are inadequate since not all local pollution control programs are affiliated with the local emergency planning committees (LEPCs). It noted that in some cases, TNRCC regional offices refer cases to these local programs through formal or informal cooperative agreements. The commission is not including notification to local pollution control programs in the initial notification in order to avoid creating additional reporting requirements for persons reporting spills. However, the commission responds that nothing in this rule prevents local governments from coordinating notification of spill events with the agency or with the regulated industries. Local programs are encouraged to work with the regional offices, as HCPC noted has occurred previously, to set up a system of communication with regard to spill reporting. Subsection 327.3(c) establishes acceptable methods of notification. The proposed rule allowed telephone contact, personal contact, and facsimile. It stated that reporting during normal business hours should be to the commission regional office and reporting after hours should be through a state-wide number. Howell, Linfor commented that faxing should not be allowed as a method of emergency notification. An individual citizen commented that faxing should not be allowed unless parties receive confirmation during the 24-hour reporting period to ensure that the TNRCC has received the communication. The commission understands the commenters' concerns, but also believes that regional managers should have the discretion to allow reporting by fax. Persons should be aware that, of the State contacts listed in subsection (c), only commission regional offices may accept faxes. To alleviate confusion, faxing has been removed from subsection (c) as an acceptable form of notification in all instances; however, sec.327.3(j), "Alternative notification plans," now allows the regional manager the discretion to accept faxes. Although no comment was received, the commission has replaced the term "may notify" in proposed sec.327.3(c) to "shall notify" to clarify that notifying the agency of reportable spills is required. Specifically concerning sec.327.3(c)(1), Clark requested the addition of language to make clear that reporting to TNRCC regional offices during normal business hours satisfies the federal requirement to notify the State Emergency Response Commission (SERC) in the State of Texas. The commission confirms this statement. During normal office hours, the TNRCC and the Texas Emergency Response Center are the SERC and after normal business hours the Texas Emergency Response Center is the SERC. The final rule incorporates this change. Regarding sec.327.3(c)(2), Eastman Chemical, Colonial, UT, Exxon, Red Star, Howell, Linfor, DuPont and GLO requested the state toll free number be included in the rules. Exxon and GLO commented that the state should pursue one hot line for reporting of spills so that one state agency could then report the spill to other state agencies. Reporting a spill or discharge to the 1-800 number at any time will meet the reporting requirements under these rules. The toll-free number, 1-(800) 832-8224, has been included in the final rule and is a multi- agency state-wide reporting system. The system is operated by the Department of Public Safety and reports spills to the TNRCC, GLO, and the Texas Railroad Commission. The commission acknowledges that the proposed language was not clear in this regard; therefore, subsection (c) has been amended in the final rule to clarify where and when spills can be reported. Subsection 327.3(d) sets forth the information required in the initial notification. The commission first wishes to clarify the provision allowing copies of spill reports prepared for other agencies to be used to meet the requirements of this subsection. Those reports can only be used if they contain the information required by subsection (d). If they do not, the RP must supplement the reports to ensure that all information required by subsection (d) is presented to the commission. Concerning sec.327.3(d)(2), BEC suggested amending the paragraph by stating, "the date, time, and location of the spill ." The commission agrees with this comment and has amended the rule. BEC also commented on sec.327.3(d)(3) recommending enclosing the "s" in hazardous substances and other substances in parentheses. The commission is not making the suggested changes in the final rule because proposed 30 TAC sec.1.2 of commission general rules makes clear that the plural includes the singular. The commission is adding "petroleum product" to the list of substances in sec.327.3(d)(3) to be consistent with other changes in the final rule. In sec.327.3(d)(5), BEC believes the proposed language should be amended to state, "the duration of the incident if known." The commission responds that all requirements in sec.327.3(d) apply only "to the extent known." Concerning sec.327.3(d)(6), Occidental Chemical wanted the commission to clarify that the requirement to describe the soil affected or threatened by the discharge or spill is only necessary if substances spilled have not been "controlled or removed." The commission considers the inclusion of "or the soil" in the paragraph to be confusing, and has removed this phrase in the final rule. The name of the surface water or description of waters in the state affected should be sufficient. Regarding sec.327.3(d)(8), GLO commented that the paragraph should include a provision that the RP identify any environmentally sensitive areas or natural resources at risk. The commission agrees with the commenter that this information should be reported, and has added this requirement to the paragraph. Based upon comments received on sec.327.5, the commission has replaced "cleanup" with "response action" (see response to comments on sec.327.5). Consistent with this change, "respond to" replaces the reference to ""cleanup the site" in sec.327.3(d)(10). GLO commented on sec.327.3(d)(11), recommending that the paragraph be amended to require the RP identify any known or anticipated risks to the environment. The commission does not agree with the comment. These rules focus on the initial reporting and response to the spill. Potential and actual risk and injury to the environment are best addressed on an incident by incident basis by the lead response agency and the current provisions for coordination with State and Federal Natural Resource Trustees as provided in 30 TAC sec.327.31 and 40 CFR Part 300. Furthermore, the change to sec.327.3(d)(8) should provide a general identification of ecological receptors at risk. GLO recommended deletion of sec.327.3(d)(12), which requires the identification of any government representatives, because it believes the requirement is unduly burdensome. The commission responds that this information is readily available, and the final rule keeps this requirement. Subsection 327.3(e) requires immediate notification to the agency whenever necessary to provide information that would trigger a change in the response to the spill or discharge. Eastman Chemical, TCC, and DuPont commented that the subsection should be amended to say that the RP will notify the agency "as soon as possible" rather than "immediately" to correspond with the requirement for initial notification in sec.327.3(b). Occidental Chemical also recommended against the use of "immediately." In addition, Occidental Chemical and DuPont commented that notification should only be required for significant changes in the response action rather than for any change in the response. The commission agrees with the first comment and the final rule is changed to incorporate the comment; however, the final rule does not incorporate notification for only "significant changes." Subsection 327.3(f) discusses correction of records. The proposed rule allowed the executive director to remove from agency records all supporting documentation concerning a spill or discharge if it was determined by the reporting party and the executive director that the spill or discharge was not a reportable spill or discharge. UT and DuPont commented that they strongly support this section. Howell, Linfor and an individual citizen disagreed with the proposed language, stating that the records should be maintained in the agency files along with supporting documentation that the release did not result in a reportable discharge or spill. The commission agrees that documentation of spills or discharges should not be removed from the agency records. The final rule continues to allow for correction of records, and all documentation including any documentation that a reportable spill or discharge did not occur will be retained in the record. Subsection (f) is amended in the final rule. The commission points out that this rule is consistent with the National Response Center's procedure for addressing spills that have been reported in error. Subsection 327.3(g) establishes requirements for notification of local government authorities. The commission received several comments on this subsection. Shell and Brown McCarroll requested that the commission define "imminent health threat" or add more specificity and parameters to avoid subjective interpretations. Occidental Chemical further noted that many responders are not technically qualified to determine if a spill presents an imminent health threat. The commission acknowledges "imminent health threats" is a subjective term; however, it is a generally recognized term used to describe environmental threats that have the potential to cause injury to humans through exposure. Professional judgement should be used to determine if a spill creates an imminent health threat. Characteristics to consider include toxicity, ignitability, corrosiveness and mobility of the substance spilled in addition to proximity of human receptors to the spill incident. Shell commented that language requiring the responsible party to cooperate with local emergency authorities should be deleted or amended to say that the RP should provide support to the local emergency authority rather than "will cooperate with the local emergency authority." The commission considers "cooperate" to be an appropriate term, and the final rule retains this requirement. Union Pacific requested that the commission delete the last sentence in the proposed subsection which states, "In the absence of a local emergency authority, the RP must take reasonable measures to notify potentially affected persons of the imminent health threat." Union Pacific argues that the Superfund Amendments and Reauthorization Act (SARA), 303, delegates responsibility and authority to notify potentially affected parties to the LEPCs. They further state that even in an instance where an LEPC does not exist, responsible parties should not be held liable for penalties associated with an arbitrary determination of "reasonable measure" which is a local responsibility by statute. The commission disagrees. An RP should have some responsibility for attempting to notify potentially affected persons of an imminent health threat. The commission also notes that the entire state of Texas is covered by LEPCs; however, the individual LEPC's organizational development to respond to emergency incidents can vary significantly. Section 327.3(h) sets forth requirements for notification to property owner and residents. Red Star wanted the commission to clarify that notification is only for releases to land or water. The commission responds that these rules address only spills to land and water. Persons should be aware that a spill to land or water could also include an air release resulting from the spill which could be reportable under the commission's air rules. Shell stated that notice should be limited to property owners because all residents may not be identified within the two week time period. The commission understand's Shell's concern, but has determined that the rule provides adequate flexibility by stating "... the responsible person must reasonably attempt to notify..." BEC commented that the requirements of sec.327.3(h) should only be required when property not owned or controlled by the RP is affected. In response, it is possible that a spill could occur on land controlled by a responsible party through a lease agreement with the property occupied by a third party. The commission considers notification to the occupant of the property in such a case to be appropriate. TXDOT suggested that notification to property owners should be via certified mail to ensure documentation of notification. The commission disagrees with this suggestion because it would not be timely. Residents may be more quickly notified through personal contact or a local warning system. Brown McCarroll requested the commission provide a definition or guidance for the term "adversely affected" as it is used in this subsection. Without clarification, Brown McCarroll argues that the regulated community's determination of adversely affect could be inconsistent with TNRCC's interpretation. In response, professional judgement should be used here. Potential for contamination or human/ecological exposure should be the initial determining factor. GLO commented that the RP should be required to immediately notify adjacent or potentially impacted property owners believing that such a requirement will minimize claims for damage. The commission responds that requiring immediate notification is sometimes impossible. It can take several days of searching through property records to determine landowners. Requiring notice as soon as possible but not later than two weeks provides adequate safeguards to landowners, occupants, and potentially affected persons. The commission retains the proposed language in sec.327.3(h). Proposed sec.327.3(i) stated that notification under Chapter 327 does not relieve other notification requirements imposed by permit, or local, state, or federal law. Clark commented that language should be added to make clear that reporting to TNRCC regional offices during normal business hours satisfies the federal requirement to notify the SERC in the State of Texas. The commission concurs with this comment and the language has been added to the final rule. The format of subsection (i) is amended by creating paragraphs (1) and (2) to accommodate this change. TCC commented that the State should continue efforts to create a system where one call satisfies all state reporting requirements. As noted earlier, persons reporting spills may use the 1-800 number to satisfy the spill reporting requirements of this chapter. Subsection 327.3(j) allows for alternative notification plans for purposes of flexibility. TCC and DuPont submitted comments strongly supporting the concept of alternative notification plans. Occidental Chemical suggested replacing ""alternate" where it appears with "alternative." The commission agrees with the suggestion and change has been made in the final rule in the title and the rule language. Section 327.4 establishes RQs for substances to be reported under Chapter 327. Proposed sec.327.4(a) presented the RQs for reporting of hazardous substances. For spills to land, the rules proposed the RQs set forth in 40 CFR sec.302.4, commonly referred to as CERCLA RQs . For spills of hazardous substances to water, the rules proposed the CERCLA RQs up to 100 pounds, and for hazardous substances with CERCLA RQs over 100 pounds (either 1000 or 5000 pounds), the rules proposed a state RQ of 100 pounds. The proposed RQ for spills of oil to land was 210 gallons and the RQ for spills of oil to water was a quantity sufficient to create a sheen. The proposed RQ for spills of industrial waste and other substances into water was 100 pounds. The rules do not address spills of industrial waste and other substances onto land. For spills of these substances to land, the Texas Water Code, sec.26.039, and professional judgement are appropriate to apply. The commission received many comments on proposed sec.327.4. Brown McCarroll and GLO noted the section number should be sec.327.4 instead of sec.327.47. The commission intended this section to be sec.327.4, but it was mistakenly published as sec.327.47. The section number is changed to sec.327.4 in the final rule. TXDOT commented that the maximum RQs for all substances should be lowered to 50 gallons because many RPs will not clean up a spill if it is not required to be reported. Additionally, increased truck traffic resulting from North American Free Trade Agreement (NAFTA) may increase the number of spills. TXDOT also requested that the TNRCC clarify that it will provide support and enforcement when an RP is unwilling to clean up a spill on a highway right-of- way. The commission disagrees with TXDOT's first comment because the data does not support a 50 gallon RQ for every substance. In addition, this would undermine the goal of continuity between state and federal requirements. In response to the second comment, if a threat to public safety exists and the RP will not clean up the spill, as property owner, TXDOT may contact the TNRCC for assistance to respond to the incident and to seek compliance with the Texas Water Code and the spill rules. Union Pacific recommended that for purposes of this section only, the rules should reference "surface waters in the state" rather than "waters in the state," to enable clear distinction of notification thresholds in the vast majority of spill scenarios. The commission responds that water in the state includes groundwater; therefore, referencing only surface water would be inappropriate. An individual citizen requested clarification on how and when RPs will report spills or discharges of unknown quantities. The commission responds that the determination is left to the RP. The commission recommends reporting spills of unknown quantities, and notes that reporting spills is an admission of an accidental discharge or spill which exempts them from penalties under the Texas Water Code. Specifically regarding the RQs for hazardous substances, UT and an individual citizen generally support the section as proposed because it adds consistency between the state and federal rules. Red Star, GLO, and an individual citizen wanted the commission to clarify how the TNRCC will implement the RQs for mixtures. The commission responds that it intends to be consistent with EPA's implementation of it RQs. EPA has established a mixture rule in 40 CFR sec.302.6(b) which states that if the quantity of all hazardous substances is known, then notification is required where an RQ or more of any hazardous constituent is released. In cases where the quantities are known and the quantity of each hazardous substance spilled is below its RQ, the reporting of a spill or discharge is not required even if the total amount of hazardous substances spilled exceeds the highest RQ for any one hazardous substance. Therefore, reporting is based upon a single substance exceeding the RQ when known. Where the quantity of one or more hazardous constituents in a mixture is not known, notification is required when the total amount of the mixture released equals or exceeds the RQ for the hazardous constituent with the lowest RQ. In addition, the quantity of the entire mixture that is unknown is considered to be the spilled amount for each hazardous substance. For spills to water, it is important to note that under the RQs established in this rule, any spill over 100 pounds is reportable, including spills where the hazardous substances in the mixture are below the RQs. Above 100 pounds, the mixture is considered an "other substance." Two examples illustrate EPA's procedures. An example provided by Red Star uses ammonia which has an RQ of 100 pounds. The commenter wanted to know if a 30wt% aqueous solution of ammonia weighing 333 pounds would be a 100 lb ammonia substance for purposes of these rules. In Red Star's example, the percentage of ammonia is known. If a spill of less than 333 pounds of the ammonia mixture is spilled, a spill to land is not required to be reported. In the second example, a 6,000 lb mixture contains 2,000 pounds of chromium (5,000 lb RQ), an unknown amount of cadmium (10 lb RQ), and unknown quantities of two nonhazardous substances. If the entire mixture is spilled, the spill of the mixture is reportable because the total quantity exceeds the 10 lb RQ for cadmium. Because the quantity of cadmium and each of the nonhazardous substances is unknown, the spill report should show the amount spilled to be 6, 000 pounds (2,000 pounds of chromium plus 4,000 pounds combined other three substances). The report will show the amount of cadmium spilled to be 4,000 pounds. This is consistent with EPA's implementation of the RQs on the federal level. Concerning sec.327.4(a)(1), which addresses spills or discharges to land, an individual citizen believes the state RQ for chemicals and solvents with federal RQs of 5,000 pounds should be 1,000 pounds because they have volatile, flammable, and toxic characteristics. The citizen further believes that the commission should establish a 100 lb RQ for 1,3 butadiene even though there is not a federal RQ for this substance. The commenter contends that research has shown it is one of the most frequently spilled substances in Texas, and it is flammable, toxic, and volatile. The commission notes that the RQ for 1,3 butadiene is 100 lbs for a spill into water if it is another substance. Like any flammable material, it would be tested to determine if it is a characteristically hazardous substance. Those substances have a 100 lb RQ for spills to land and water. For purposes of clarity and consistency, the rules do not amend the table of federal RQs for hazardous substances, except as previously noted for spills to water. As with any technical standard though, the commission will review the effectiveness of the RQs and will strive to ensure that they are protective of human health and the environment. This could result in future amendments to the RQs as they appear in this version of the spill rules. The proposed rule spelled out "Code of Federal Regulations." Although no comment was received on this issue, the commission notes that "Code of Federal Regulations" has already been referenced previously in the rule; therefore, only the initials""CFR" are required in sec.327.4(a)(1). Regarding sec.327.4(a)(2), Eastman Chemical, Amoco, TCC, DuPont, SMQI, Exxon, Red Star, and Occidental Chemical stated that RQs for spills to water should be the same as the federal RQs. They note that EPA performed a risk study with all possible exposure pathways to determine the RQs for each hazardous substance, and believe that the commission has not provided technical data to support its position. The commission considers the 100 lb. RQ for spills to water to be appropriate because discharges directly to waters of the state present a greater likelihood for negative impacts to human health. The 100 pound RQ is believed to strike an appropriate balance between the competing concerns of avoiding unnecessary over reporting of spills, and allowing the commission the opportunity to know about, and therefore track cleanup of, larger discharges that are more likely to impact human health and the environment. The commission also considers the 100 lb. RQ to be in compliance with the Texas Water Code, Chapter 26. The commission retains the sec.327.4(a) (2) as proposed. The commission received several comments concerning sec.327.4(b) which addresses spills or discharges of oil. GLO requested the inclusion of the RQ for used oil. The commission agrees with this comment and has changed subsection (b) in the final rule to include the RQ for used oil. Specifically regarding proposed sec.327.4(b)(1), RQs for spills of oil to land, Amoco commented that the five-barrel spill reporting requirement for oil is beyond federal requirements, and requested that it be deleted from the rule. Howell, Linfor commented that the five-barrel reporting requirement should be limited to crude oil to be consistent with the Texas Railroad Commission. In order to maintain interagency consistency, Howell, Linfor recommends the RQ for oil and refined petroleum product should have a 25-gallon RQ. They note the 25- gallon RQ is well established in the state program for underground storage tanks and aboveground storage tanks (ASTs). GLO submitted a comment that the RQ for oil should be lowered to one barrel (42 gallons) for oil spills onto land. The commission responds to these comments by amending the proposed rule. First, the final rule differentiates between crude oil, petroleum product, oil other than that defined as petroleum product, and used oil. The definition of petroleum product has been added to the final rule as it is defined in 30 TAC sec.334.122, "Definitions for ASTs," and is limited to propulsion fuels. Concerning the specific RQs, the commission retains a 210-gallon (five-barrel) reporting requirement for crude oil and oil other than that defined as petroleum product. The commission considers this to be consistent with the 210 gallon reporting requirement for crude oil under the Texas Railroad Commission rule and protective of human health and the environment. The commission has clarified that five barrels is intended to be 210 gallons, by specifically stating in the final rule that the RQ is 210 gallons. Regarding spills of petroleum product, the commission agrees that consistency within the agency is important and recognizes that a lower RQ is necessary in some cases because petroleum product is more toxic and flammable. However, the commission also recognizes that certain facilities are equipped to handle spills and discharges of petroleum product in quantities greater than 25 gallons. In the final rule, the 210-gallon RQ for petroleum product and used oil applies to those facilities that are exempted from the AST rules under sec.sec.334.123(a)(9), 334.123(b), and 334.124(a)(4). Specifically those facilities are electric service facilities including generation, transmission, distribution equipment and transformers; petrochemical plants; petroleum refineries; bulk loading facilities; and certain pipeline facilities, which are collectively referred to as PST exempted facilities in the rule. The commission acknowledges that operators of these facilities have trained staff on hand to respond to spills of petroleum product. The RQ for discharges or spills of used oil and petroleum product from other facilities shall be 25 gallons. Definitions have been added for "PST exempted facilities" and "Pipelines." Concerning proposed sec.327.4(b)(2), relating to the RQ for spills of oil to water, UT and BEC oppose the "sheen" test and requested a specific RQ. UT also suggested utilization of the approach adopted by the State of Massachusetts. Under that approach, a spill of oil is not reportable to the state if it is reported to federal officials, a response occurs, the sheen does not persist for more than 24 hours, and the sheen does not recur at the same location within a 30-day period. The commission responds that the sheen test is a recognized national reporting standard that is required under 40 CFR Part 110. With regard to UT's suggestion, the commission is concerned that the Massachusetts approach, which allows 30 days to elapse before the spill has to be reported, is not consistent with the "as soon as possible, but not later than 24 hours" reporting requirement in the Texas Water Code. The final rule retains the sheen test. Due to the changes discussed in sec.327.4(b), the structure of the paragraph has been changed. The subsection has been divided into paragraphs (1) and (2). Paragraph (1) lists the RQs for spills of crude oil and oil other than petroleum product or used oil onto land and into water. Paragraph (2) lists the RQs for spills of petroleum product and used oil onto land and into water. The commission received many comments concerning the proposed RQs for industrial waste and other substances in sec.327.4(c). Eastman Chemical, Amoco, TCC, DuPont, and Exxon commented that there are no federal RQs for industrial wastes or other substances and promulgating RQs for these substances is going beyond federal requirements. Amoco, TCC, DuPont, and Exxon recommended deleting subsection (c) from the rule. In response, the commission notes that the Texas Water Code, sec.26.039, includes wastes and other substances in the definition of "Accidental discharge" and "Spill." GLO recommended deleting the reporting requirement only for other substances due to its general and subjective nature. As stated earlier in the preamble, spills or discharges of other substances and industrial waste are required to be reported under the Texas Water Code. Eastman Chemical suggested changing the RQ to 10,000 pounds if the TNRCC insisted on an RQ for these substances. The commission considers 10,000 pounds to be extremely large for spills into water, which is the only media for which it is necessary to report a spill of industrial wastes or other substances. One hundred pounds strikes a reasonable balance between substances that are not likely to cause a pollution incident and substances that could cause serious incidents. Exxon and Occidental Chemical commented that RQs for other substances should be determined on an item-specific basis utilizing a risk assessment. The commission responds that a risk assessment to specify certain "other substances" would be extremely time-consuming and resource intensive. While retaining the general categories of industrial solid waste and other substances, the commission may propose RQs for specific substances in these categories if they present continual or acute health affects or environmental concerns. Exxon requested that the TNRCC clarify that it is not the intent of the agency to regulate spills of industrial waste or other substances onto land. The commission responds that although the spill rules do not address spills of these substances onto land, the Texas Water Code does address these spills if they cause or may cause pollution. In other words, a spill of industrial waste to land could threaten groundwater and thus be reportable under the Texas Water Code. Occidental Chemical requested that industrial waste be defined as Class 1 industrial waste or municipal hazardous waste and be subject to the RQs set forth in 40 CFR Part 302 to be consistent. The commission notes that any material that appears on Table 302.4 in 40 CFR sec.302.4 is a hazardous substance and must be reported under sec.327.4(a). BEC requested the use a volumetric measure rather than a weight measure because it is generally easier for a person to estimate a volumetric measure. In response, the federal RQs for hazardous substances are set forth in pounds, and the commission is attempting to be consistent in establishing units of measure for reporting quantities. However, the agency intends to prepare a guidance document to assist persons in complying with the rules. Toward that end, the guidance document will provide volumetric measurements to the extent practicable. The final rule retains the 100 pound RQ for spills of other substances and industrial waste. As noted earlier, the term "industrial waste" has been changed to "industrial solid waste" in the final rule. Section 327.5 details the actions required to respond to a spill or discharge. Subsections 327.5(a) and (b) apply to all discharges or spills regardless of whether or not they were reported under sec.327.3. TXDOT requested confirmation that it has the authority to require a spill cleanup to background levels. The commission responds that as a property owner, TXDOT can request cleanup to background levels. If the RP refuses, TXDOT may use whatever legal means are available to attempt to force the RP to clean up to background. TXDOT also stated that in the case of an extended cleanup where the RP is subject to the Risk Reduction Rules, TXDOT is unwilling to give a responsible party the ability to require deed recordation of state property. In response, this is matter that must be determined between the RP and TXDOT. Under the existing Risk Reduction Rules, the only option to avoid deed recordation is Standard 1, which is background. Occidental Chemical recommended using the terms "response" and "response actions" in place of "cleanup" and "remediation" except when referring to the Risk Reduction Rules. The commission agrees and the final rule reflects these changes. Concerning sec.327.5(a), GLO commented that the section is entitled "Response Actions," but the language in this subsection states that "Response actions may include.. ." GLO is concerned that the language does not impose any meaningful response requirements, and believes at a minimum, the RP should be required to initiate actions to abate and contain the spill immediately. GLO also believes the rule should require the RP to ensure the arrival on scene of sufficient resources to contain and remove the pollution in a cascading time sequence as required by regulations promulgated under the Oil Pollution Act of 1990. The commission does agree that abating and containing the spill should be the first course of action in every case; therefore, the commission has amended the proposed rule to state that the RP must immediately abate and contain the spill. The remaining six actions are retained as additional measures which shall be undertaken during the response action as appropriate. Subsection (a) also requires that RPs cooperate with the executive director and the local incident command system. The commission notes that the agency may become involved in a spill response even if the spill is not a reportable spill. The agency may find out about such spills through means other than RP notification (ie, non-RP notice, media, etc.). In subsection (a), Shell recommended adding language that allows the responsible party to refuse to follow a directive of the executive director or the local incident command system if the RP believes such actions could adversely impact the response action. The commission understands Shell's concern but has not amended the rule to incorporate the commenter's recommendation. Such a statement could undermine the agency's authority to conduct oversight of spill responses. Historically, the agency and its predecessors have always worked with RPs, and disagreements over response actions have been settled without problem. It should be noted that under Texas Water Code, sec.26.266, the agency can take over response to the spill if response actions are deemed inadequate. Concerning sec.327.5(a), GLO also wanted clarification of the terms "immediately" and "reasonable response activities" in this subsection. GLO believes immediately should be defined as within one hour. Without definitions, GLO contended that the RP does not have sufficient notice of what actions are expected and the TNRCC has too much discretion in deciding when a person is in compliance with the regulations. In response, the commission points to the statutory basis for the Texas Water Code, sec.327.5(a) and sec.26.266(a), which addresses removal of spills or discharges. The statute uses the terms "immediately" and "reasonable actions." Although there is no specific time frame associated with "immediately," the response action should begin upon discovery of the spill. RPs are reminded of the policy stated in the Texas Water Code, sec.26.262, which states, "It is the policy of this state to prevent the spill or discharge of hazardous substances into the waters in the state and to cause the removal of such spills and discharges without undue delay." Concerning clarification of "reasonable response actions," subsection (a) sets forth a menu of reasonable response actions. Subsection 327.5(c) addresses the requirements for the 30-day follow-up letter or report. Shell wanted the commission to specify the details of the discharge or spill that a TNRCC regional manager will expect to be included in the 30-day letter. The commission responds that the rule requires that the contents of the letter describe the details of the discharge or spill and support the adequacy of the response action. Additional material to be included in the letter or report will depend on the circumstances of each spill and response action. The planned guidance document will contain more detailed guidance for the follow-up letter or report. For interim guidance, reports should provide background information such as the date and time of the spill, the type of material discharged, amount spilled to each media, a map showing the extent of the spill, sites affected by the spill, documentation of TNRCC notification, and details of the response actions and their effectiveness. Other items that could be included are a chronology of the response actions, a list of other agencies notified, weather conditions during the response actions, injuries, amount of waste resulting from the spill, and a report of the EPA and TNRCC waste classification and waste code numbers. If the RP has any doubt about what to include, the RP should request clarification from the State on-scene coordinator or the appropriate regional office. Concerning proposed sec.327.5(c), Shell also requested deletion of the requirement in the 30-day follow-up letter that addresses the adequacy of the response action. The commission responds that the 30-day follow-up is necessary to document the actions taken at the site, and it also ensures that appropriate response actions have occurred or are occurring. Vinson & Elkins requested clarification that the 30-day follow-up is required only when the spill was required to be reported under sec.327.3. It suggested the following language be added in the final rule , "...30 working days of the discovery of a discharge or spill meeting the notification requirements in sec.327.3 of this title (relating to Notification Requirements) ." The commission agrees with the intent of the comment, and has amended the proposed language to state that the 30-day follow- up is due within 30 working days of the discovery of a reportable spill or discharge. GLO submitted a comment recommending the subsection be changed to require the report within 30 days after the response action is complete because many response actions are not complete within 30 days. The commission disagrees and retains the 30-day follow-up for the reasons stated earlier. Furthermore, if the response action is not complete, the RP may request an extension as set forth in sec.327.5(c)(2). Brown McCarroll commented that cleanups meeting the substantive requirements of Risk Reduction Rule Standard 1 (cleanup to background or clean closure) or Standard 2 (closure to default health-based levels) closure or cleanups approved by the TNRCC regional manager should satisfy remediation requirements under these rules for cleanups that take place within 180 days after the release or discharge. In response, the RP may use either the Risk Reduction Rules or determine the appropriate response action during the first 180 days after the spill. Based upon Brown McCarroll's comment, the commission understands that this was not clear in the proposed rule, the commission has added language to sec.327.5(c)(1) in the final rule which states that appropriate response actions at any time following the discharge or spill include use of the Risk Reduction Rules or other appropriate agency risk-based corrective action programs. Under proposed sec.327.5(c)(1)-(3) of the rule, the 30-day follow-up letter describes the status of the response action: paragraph (c)(1) requires a statement that the response action is complete; paragraph (c)(2) requires a statement that the response action is not complete and allows the RP to request a 180 day extension; paragraph (c)(3) requires a statement that the response action cannot be completed within the 180-day time frame. Concerning sec.327.5(c)(1), BEC commented that the requirement to include the initial report information should be removed because it is unnecessary and counter-productive. The commission disagrees and will retain this requirement because it aids quick review of the follow-up letter, documents the RP's actions, and is not a burdensome requirement. With regard to proposed sec.327.5(c)(2), TCC, DuPont, and Occidental Chemical commented that the agency should seriously consider the oversight and control powers and duties it would vest in the executive director and assign the greater authority to the regional managers including the authority to grant the 180-day extension. The commission disagrees and asserts that the authority granted to the executive director is appropriate. The term "executive director" includes agency staff; as such, the regional manager may serve as the executive director's duly appointed representative. The commission has specifically identified the regional manager in specific provisions of the rule because in those instances the commission agrees with the executive director that actions such as this can best be served by delegating these duties to the regional manager. Also regarding sec.327.5(c)(2), Occidental Chemical stated that there is nothing in the proposed rule which that sets a deadline for a response action to be completed, and it is not clear to what the 180 days is added. Furthermore, the commenter believes the 180-day limit is arbitrary and without basis. The commission responds that each response action is site specific and the time required to adequately complete the response action is dependent upon numerous factors. The commission contends that setting a specific deadline serves no useful purpose. In response to Occidental Chemical's other comments, the 180-day extension is from the date the spill or discharge is reported. The commission agrees that this was not clear in the proposed rule and has clarified this in the final rule. In addition, the final rule replaces "180 days" with "6 months." Concerning the claim that the 180-day limit is arbitrary, the commission responds that the majority of spills or discharges can be cleaned up in six months. Concerning proposed sec.327.5(c)(3), TCC and DuPont were concerned that the rules only allow remediation under the Risk Reduction Rules. They requested that the rules also allow remediation under any other risk-based remediation program approved by the commission such as the PST program. The commission agrees with this comment and has changed the rule to allow cleanup under other risk-based programs. In addition, the proposed rules stated that the notice will serve as notification of remediation under the Risk Reduction Rules and "will trigger applicability with those rules." In amending sec.327.5(c)(3), the commission has determined that it is redundant and, therefore, not necessary to state that the notice will trigger applicability with the risk-based rules. TCC also wanted to know if the Voluntary Cleanup Program is an available option. The Voluntary Cleanup Program is an option; however, RPs should be aware that the release of liability afforded by the program is only for non-RPs. Occidental Chemical requested that the commission strike the term "complete cleanup" used in the proposed rule because it could be interpreted to mean remediating to background. Consistent with its response to an similar comment, the commission agrees and has replace the term with "response action. " The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The purpose of the spill rules is to clarify the reporting requirements in the Texas Water Code, sec.26.039, and achieve the policy stated in the Texas Water Code, Texas Hazardous Substances Spill Prevention and Control Act, sec.26.262, which is to prevent the discharge or spill of hazardous substances into the waters in the state and to cause the removal of discharges or spills without undue delay. The new rule substantially advances this purpose by establishing clear reporting and response action guidelines, which should improve the timeliness, adequacy, coordination, efficiency, and effectiveness of responses to discharges or spills subject to the commission's regulatory jurisdiction. Promulgation and enforcement of these rules could affect private real property that is the subject of the rules. However, the following exceptions to the application of the Texas Government Code, Chapter 2007, listed in Texas Government Code, sec.2007.003(b) apply to these rules: The action is taken in response to a real and substantial threat to public health and safety. Spills or discharges of hazardous substances, oil including petroleum product, used oil, industrial solid waste, and other substances can present a real and substantial threat to public health and safety if not adequately responded to in a timely manner. On land such spills can be injurious to humans, animals, plant life, and other ecological receptors. Depending on the substance spilled, this can occur through short-term and long- term exposure. Spills to water can adversely affect humans, animals, aquatic plant and animal life, and other ecological receptors. The action significantly advances the health and safety purpose. The rule significantly advances the health and safety purpose by requiring a responsible person to notify appropriate parties of a discharge or spill. These parties include the agency, owners and residents, and if a spill or discharge creates an imminent health threat, local emergency authorities. The rules also require a responsible party to immediately begin response actions and to cooperate with the agency and the local incident command system. The action imposes no greater burden than is necessary to achieve the health and safety purpose. The new rule establishes very reasonable reporting standards which adequately balance the competing concerns of avoiding unnecessary over reporting with protection of human health and the environment. The rule also provides important flexibility because appropriate response actions at any time following the discharge or spill include use of the Risk Reduction Rules or other appropriate agency risk-based corrective action programs. The new sections are adopted under the Texas Water Code, sec.5.103, which provides the TNRCC with the authority to adopt any regulation necessary to carry out its powers and duties under the Texas Water Code and other laws of this state, and the Texas Water Code, sec.26.264, which provides the commission with the authority to issue rules necessary and convenient to carry out the purposes of the Texas Water Code, Chapter 26, Subchapter G. These sections are also adopted under the Texas Water Code, sec.26.039, which authorizes the commission to issue reasonable rules establishing safety and preventive measures concerning activities that are inherently or potentially capable of causing or resulting in the accidental discharge or spillage of waste or other substances and which pose serious or significant threats of pollution, and under the Texas Health and Safety Code, Solid Waste Disposal Act, sec.361.024, which authorizes the commission to adopt and promulgate rules consistent with the general intent and purposes of the Act and to establish minimum standards of operation for all aspects of the management and control of municipal hazardous waste and industrial solid waste. sec.327.1. Applicability. (a) This chapter applies to discharges or spills that result in a release to the environment within the territorial limits of the State of Texas, including the coastal waters of this state. (b) This chapter does not apply to: (1) discharges or spills of oil that enter or threaten to enter coastal waters of the State. Except for spills of oil of 240 barrels or less for which the Railroad Commission of Texas is the on-scene coordinator, such discharges or spills are regulated by the Texas General Land Office under the Oil Spill Prevention and Response Act of 1991, the Texas Natural Resources Code, Chapter 40, Subchapters C,D,E,F, and G; (2) spills or discharges from activities subject to the jurisdiction of the Railroad Commission of Texas under the Texas Water Code, sec.26.131. (3) releases only to air; (4) the lawful placement of waste or accidental discharge of material into a solid waste management unit registered or permitted under Chapter 335, Subchapter A of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste in General); (5) units and activities regulated under the authority of the Texas Water Code, Chapter 26, Subchapter I (relating to Underground and Aboveground Storage Tanks); (6) the lawful application of materials, including but not limited to fertilizers and pesticides, to land or water; (7) discharges that are authorized by a permit, order, or rule issued under federal law or any other law of the State of Texas; provided, however, that discharges not so authorized shall be reported under this chapter unless the permit, order, or another commission rule provides an applicable reporting requirement; (8) discharges or spills that are continuous and stable in nature, and are reported to the United States Environmental Protection Agency (EPA) under 40 Code of Federal Regulations (CFR) sec.302.8; and (9) discharges or spills occurring during the normal course of transportation about which carriers are required to give notice and report in accordance with 49 CFR sec.171.15 and sec.171.16. sec.327.2. Definitions. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. Agency on-scene coordinator-The official designated by the executive director to coordinate and direct agency responses, or to oversee private responses to discharges or spills. Coastal waters -The definition of Coastal waters as it appears in Title 31, Texas Administrative Code, sec.19.2 (relating to Definitions) of the Texas General Land Office rules. Discharge or spill-An act or omission by which oil, hazardous substances, waste, or other substances are spilled, leaked, pumped, poured, emitted, entered, or dumped onto or into waters in the State of Texas or by which those substances are deposited where, unless controlled or removed, they may drain, seep, run, or otherwise enter water in the State of Texas. Emergency response team-A unit of the agency that is responsible for the coordination of response to spills and discharges under the agency's jurisdiction. Environment-Waters in the state, land surface or subsurface strata, for purposes of this chapter only. Facility-Any structure or building, including contiguous land, or equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, aircraft, or any site or area where a discharge or spill has occurred or may occur. Hazardous substance -Any substance designated as such by the administrator of the United States Environmental Protection Agency under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675, regulated under the Clean Water Act, sec.311, 33 U.S.C. 1321, or designated by the commission. Industrial solid waste-Solid waste, as defined in sec.335. 1 of this title (relating to Definitions), resulting from or incidental to any process of industry or manufacturing, or mining, or agricultural operations, which may include hazardous waste as defined in sec.335.1 of this title. Oil-Oil of any kind or in any form including but not limited to petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil. Oil does not include used oil, petroleum product, or oil designated as a hazardous substance in 40 CFR sec.302.4. Other substances -Substances that may be useful or valuable and therefore are not ordinarily considered to be waste, but that will cause pollution if discharged into water in the state. Petroleum product -A petroleum substance obtained from distilling and processing crude oil that is liquid at standard conditions of temperature and pressure, and that is capable of being used as a fuel for the propulsion of a motor vehicle or aircraft, including but not necessarily limited to motor gasoline, gasohol, other alcohol blended fuels, aviation gasoline, kerosene, distillate fuel oil, and #1 and #2 diesel. The term does not include naphtha- type jet fuel, kerosene-type jet fuel, or a petroleum product destined for use in chemical manufacturing or feedstock of that manufacturing. Petroleum storage tank (PST) exempted facilities -Electric service facilities including generation, transmission, distribution equipment and transformers; petrochemical plants; petroleum refineries; bulk loading facilities; and pipelines that are exempted from the Aboveground Storage Tank (AST) program under sec.334.123(a)(9) and sec.334.123 (b) of this title (relating to Statutory Exemptions for ASTs), and sec.334.124 (a)(4) of this title (relating to Commission Exclusions for ASTs). Pipeline-A pipeline is: (A) an interstate pipeline facility, including gathering lines and any aboveground storage tank connected to such facility, if the pipeline facility is regulated under: (i) the Natural Gas Pipeline Safety Act of 1968 (49 United States Code sec.sec.1671, et seq); or (ii) the Hazardous Liquid Pipeline Safety Act of 1979 (49 United States Code sec.sec.2001, et seq). (B) an intrastate pipeline facility or any aboveground storage tank connected to such a facility, if the pipeline facility is regulated under one of the following state laws: (i) the Natural Resources Code, Chapter 111; (ii) the Natural Resources Code, Chapter 117; or (iii) Texas Civil Statutes, Article 6053-1 and Article 6053-2. Pollution-The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose. Responsible person -A person who is: (A) the owner, operator, or demise charterer of a vessel from which a discharge or spill emanates; or (B) the owner or operator of a facility from which a discharge or spill emanates; or (C) any other person who causes, suffers, allows, or permits a discharge or spill. Used oil-Oil that has been refined from crude oil, or synthetic oil, that as a result of use has been contaminated by physical or chemical impurities. Vessel-Every description of watercraft, used or capable of being used as a means of transportation on the water. Water or water in the state-Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface waters, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state. sec.327.3. Notification Requirements. (a) Reportable discharge or spill. A reportable discharge or spill is a discharge or spill of oil, petroleum product, used oil, hazardous substances, industrial solid waste, or other substances into the environment in a quantity equal to or greater than the reportable quantity listed in sec.327.4 of this title (relating to Reportable Quantities) in any 24-hour period. (b) Initial notification. Upon the determination that a reportable discharge or spill has occurred, the responsible person shall notify the agency as soon as possible but not later than 24 hours after the discovery of the spill or discharge. (c) Method of notification. The responsible person shall notify the agency in any reasonable manner including by telephone, in person, or by any other method approved by the agency. In all cases, the initial notification shall provide, to the extent known, the information listed in subsection (d) of this section. Notice provided under this section satisfies the federal requirement to notify the State Emergency Response Commission in the State of Texas. The responsible person shall notify one of the following: (1) the State Emergency Response Center at 1-800-832-8224; (2) during normal business hours only, the regional office for the agency region in which the discharge or spill occurred; or (3) the agency at the agency 24-hour spill reporting number (d) Information required in initial notification. The initial notification shall provide, to the extent known, the information in the following list. Copies of spill reports prepared for other governmental agencies shall satisfy this requirement if they contain, or are supplemented to contain, all the information required by this subsection. The initial notification shall contain: (1) the name, address and telephone number of the person making the telephone report; (2) the date, time, and location of the spill or discharge; (3) a specific description or identification of the oil, petroleum product, hazardous substances or other substances discharged or spilled; (4) an estimate of the quantity discharged or spilled; (5) the duration of the incident; (6) the name of the surface water or a description of the waters in the state affected or threatened by the discharge or spill; (7) the source of the discharge or spill; (8) a description of the extent of actual or potential water pollution or harmful impacts to the environment and an identification of any environmentally sensitive areas or natural resources at risk; (9) if different from paragraph (1) of this subsection, the names, addresses, and telephone numbers of the responsible person and the contact person at the location of the discharge or spill; (10) a description of any actions that have been taken, are being taken, and will be taken to contain and respond to the discharge or spill; (11) any known or anticipated health risks; (12) the identity of any governmental representatives, including local authorities or third parties, responding to the discharge or spill; and (13) any other information that may be significant to the response action. (e) Update notification. The responsible person shall notify the agency as soon as possible whenever necessary to provide information that would trigger a change in the response to the spill or discharge. (f) Correction of records. Notifying the agency that a reportable discharge or spill has occurred shall not be construed as an admission that pollution has occurred. Furthermore, if the responsible person determines, after notification, that a reportable discharge or spill did not occur, the responsible person may send a letter to the agency documenting that determination. If the executive director agrees with that determination, the executive director will note the determination in commission records. If the executive director disagrees with that determination, the executive director will notify the responsible person within 30 days. (g) Notification of local governmental authorities. If the discharge or spill creates an imminent health threat, the responsible person shall immediately notify and cooperate with local emergency authorities (fire department, fire marshall, law enforcement authority, health authority, or Local Emergency Planning Committee (LEPC), as appropriate). The responsible party will cooperate with the local emergency authority in providing support to implement appropriate notification and response actions. The local emergency authority, as necessary, will implement its emergency management plan, which may include notifying and evacuating affected persons. In the absence of a local emergency authority, the responsible person shall take reasonable measures to notify potentially affected persons of the imminent health threat. (h) Notification to property owner and residents. As soon as possible, but no later than two weeks after discovery of the spill or discharge, the responsible person shall reasonably attempt to notify the owner (if identifiable) or occupant of the property upon which the discharge or spill occurred as well as the occupants of any property that the responsible person reasonably believes is adversely affected. (i) Additional notification required. (1) Except as noted in paragraph (2) of this subsection, complying with the notification requirements set forth in this section does not relieve, satisfy, or fulfill any other notification requirements imposed by permit or other local, state, or federal law. (2) Notice provided under this section satisfies the federal requirement to notify the State Emergency Response Commission in the State of Texas. (j) Alternative notification plans. (1) Responsible persons in charge of activities and facilities may submit and implement an alternative notification plan. This alternative notification plan shall comply with the Texas Water Code, sec.26.039. Responsible persons shall obtain the agency's written approval before implementing any alternative notification plan. (2) Upon approval of the agency regional manager, responsible persons may provide the initial notification by facsimile to the regional office during normal business hours. sec.327.4. Reportable Quantities. (a) Hazardous substances. The reportable quantities for hazardous substances shall be: (1) for spills or discharges onto land-the quantity designated as the Final Reportable Quantity (RQ) in Table 302.4 in 40 CFR sec.302.4; or (2) for spills or discharges into waters in the state -the quantity designated as the Final RQ in Table 302.4 in 40 CFR sec.302.4, except where the Final RQ is greater than 100 pounds in which case the RQ shall be 100 pounds. (b) Oil, petroleum product, and used oil. (1) The RQ for crude oil and oil other than that defined as petroleum product or used oil shall be: (A) for spills or discharges onto land-210 gallons (five barrels); or (B) for spills or discharges directly into water in the state-quantity sufficient to create a sheen. (2) The RQ for petroleum product and used oil shall be: (A) except as noted in subparagraph (B) of this paragraph, for spills or discharges onto land-25 gallons; (B) for spills or discharges to land from PST exempted facilities-210 gallons (five barrels); or (C) for spills or discharges directly into water in the state-quantity sufficient to create a sheen. (c) Industrial solid waste or other substances. The RQ for spills or discharges into water in the state shall be 100 pounds. sec.327.5. Actions Required. (a) The responsible person shall immediately abate and contain the spill or discharge and cooperate fully with the executive director and the local incident command system. The responsible person shall also begin reasonable response actions which may include, but are not limited to, the following actions: (1) arrival of the responsible person or response personnel hired by the responsible person at the site of the discharge or spill; (2) initiating efforts to stop the discharge or spill; (3) minimizing the impact to the public health and the environment; (4) neutralizing the effects of the incident; (5) removing the discharged or spilled substances; and (6) managing the wastes. (b) Upon request of the local government responders or the executive director, the responsible person shall provide a verbal or written description, or both, of the planned response actions and all actions taken before the local governmental responders or the executive director arrive. When the agency on- scene coordinator requests this information, it is subject to possible additional response action requirements by the executive director. The information will serve as a basis for the executive director to determine the need for: (1) further response actions by the responsible person; (2) initiating state funded actions for which the responsible person may be held liable to the maximum extent allowed by law; and (3) subsequent reports on the response actions. (c) The responsible person shall submit written information, such as a letter, describing the details of the discharge or spill and supporting the adequacy of the response action, to the appropriate agency regional manager within 30 working days of the discovery of the reportable discharge or spill. The regional manager has the discretion to extend the deadline. The documentation shall contain one of the following items: (1) A statement that the discharge or spill response action has been completed and a description of how the response action was conducted. The statement shall include the initial report information required by sec.327.3(c) of this title (relating to Notification Requirements). The executive director may request additional information. Appropriate response actions at any time following the discharge or spill include use of the Risk Reduction Rules in sec.335.8 of this title (relating to Closure) or other appropriate agency risk-based corrective action programs. (2) A request for an extension of time to complete the response action, along with the reasons for the request. The request shall also include a projected work schedule outlining the time required to complete the response action. The executive director may grant an extension up to six months from the date the spill or discharge was reported. Unless otherwise notified by the appropriate regional manager or the Emergency Response Team, the responsible person shall proceed according to the terms of the projected work schedule. (3) A statement that the discharge or spill response action has not been completed nor is it expected to be completed within the maximum allowable six month extension. The statement shall explain why completion of the response action is not feasible and include a projected work schedule outlining the remaining tasks to complete the response action. This information will also serve as notification that the response actions to the discharge or spill will be conducted under the Risk Reduction Rules in sec.335. 8 of this title (relating to Closure) or other commission risk-based corrective action rules, and shall indicate the appropriate risk-based corrective action program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on May 2, 1996. TRD-9606089 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: May 23, 1996 Proposal publication date: November 17, 1995 For further information, please call: (512) 239-6087 TITLE 34. PUBLIC FINANCE Part XI. Fire Fighters' Pension Commission Chapter 301. Rules and Regulations of the Texas Statewide Volunteer Fire Fighters' Retirement Fund 34 TAC sec.sec.301.1-301.10 The Fire Fighters' Pension Commission adopts new sec. sec.301.1-301.10, concerning administration of the Texas Statewide Volunteer Fire Fighters' Retirement Fund, without changes to proposed text as published in the April 2, 1996, issue of the Texas Register (21 TexReg 2629). The new rules and regulations are being adopted to implement guidelines for administering the pension fund. The rules and regulations define conditions for participation by member cities based on federal government rules, attorney general's rulings, state board policy and past commissioner decisions. No comments were received regarding adoption of the new rules and regulations. The rules and regulations, are adopted under Texas Civil Statutes, Article 6243.e3, (Senate Bill 411), 65th Legislature (1977), and revised in the 72nd Legislature (1991), which provide the Fire Fighters' Pension Commission with the authority to promulgate rules necessary for the administration of the pension fund. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 2, 1996. TRD-9606104 Helen L. Campbell Commissioner Fire Fighters' Pension Commission Effective date: May 24, 1996 Proposal publication date: April 2, 1996 For further information, please call: (512) 462-0222 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part VI. Texas Commission for the Deaf and Hard of Hearing Chapter 183. Board for Evaluation of Interpreters and Interpreter Certification Subchapter E. Fees 40 TAC sec.183.573 The Texas Commission for the Deaf and Hard of Hearing adopts the amendment of sec.183.573, concerning Fees, with changes to proposed text as published in the March 12, 1996 issue of the Texas Register (21 TexReg 2033). The amendment is adopted to provide an opportunity to recover the cost involved for providing services to interpreter candidates. A comment was received regarding terminology/grammatical changes which have been incorporated. The amendment is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing the authority to adopt rules for administration and programs. sec.183.573. Fees. The commission shall charge the following fees: Certification Fee Schedule Level I Level II Level III Level IV Level V: (1) Application-$20 n/a $20 $20 $20; (2) Evaluation-$75 n/a $100 $100 $100; (3) Intermediary Evaluation-n/a n/a $30 $30 $30; (4) Annual Renewal/Maintenance-$25 $25 $25 $25 $25; (5) Late Maintenance-$50 $50 $50 $50 $50; (6) Reciprocity Application-$50 $50 $50 $50 n/a; (7) Recertification Application-$50 $50 $50 $50 $50; (8) Re-issuance-$20 $20 $20 $20 $20; (9) Inactive-$15 $15 $20 $25 $25; (10) Analysis-$50 $65 $65 $75 $75. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on May 6, 1996. TRD-9606204 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: May 27, 1996 Proposal publication date: March 12, 1996 For further information, please call: (512) 451-8494