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 1. ADMINISTRATION PART XV. Health and Human Services CHAPTER 355.Cost Determination Process (Editors Note: In order comply with the House Bill Number 2913, sec.1, the 75th Legislature amended the Government Code, sec.531.021, which designates the Health and Human Services Commission (HHSC) as the agency responsible for administration of the Medicaid program. On September 1, 1997, HHSC also became responsible for adopting reasonable rules and standards to govern the setting of Medicaid rates, fees, and charges. Prior to this date, these functions were performed by three agencies — the Texas Department of Health (TDH), the Texas Department of Human Services (TDHS), and the Texas Department of Mental Health and Mental Retardation (TDMHMR). Certain sections of Titles 25 and 40 of the Texas Administrative Code that were originally promulgated by TDH, TDHS, and TDMHMR will be redesignated as rules of HHSC in Chapter 355 of Title 1 of the administrative code. The transfer will occur in two phases. The first phase consists of an immediate transfer of rules codified in Title 40 and originally promulgated by TDHS. This transfer permits HHSC to adjust rates paid to certain Medicaid providers whose cost of providing services has been affected by the recent increase in the federal minimum wage. However, several of these rules, as originally promulgated by TDHS, are also essential to the determination of payment rates for non- Medicaid funded services. TDHS is delegated statutory authority to determine these rates. Accordingly, these rules will not be deleted from Title 40. The rules remaining with TDHS that are rendered obsolete will be revised or repealed as appropriate in the future in accordance with 1 TAC sec.91.23(d). A table of the first phase of the rules transfer appears in the Tables and Graphic section of this issue. It identifies the rules that should be transferred in toto from Title 40 to Title 1 and those rules which, for the reason stated previously, should appear in both titles. The rules transfer should be retroactive to September 1, 1997. The Texas Register is administratively transferring or duplicating the following rules listed in the conversion chart published in this issue under the Tables and Graphics Section. The table lists the old rule numbers and the new rule numbers that correspond to them.) Figure: 1 TAC Chapter 355 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 3.Oil Gas Division Conservation Rules and Regulations 16 TAC sec.3.31 The Railroad Commission of Texas adopts amendments to sec.3.31 regarding gas reservoirs and gas well allowable without changes to the proposed text published in the August 1, 1997, issue of the Texas Register (22 TexReg 7115). The adopted amendments relieve an unnecessary regulatory burden on marginal gas wells by exempting them from proration if they are in prorated fields with no special field rules. No comments were received regarding the adopted amendment. The amendment is adopted under the Texas Natural Resources Code sec.sec.81.051, 81.052, 85.055, 85.201-85.202, 86.011, 86.012, 86.041, 86.042, 86.081, 86.083- 86.090, 111.083, 111.090 and 111.133 which provide the Railroad Commission of Texas with the authority to adopt rules for the following purposes: to govern and regulate persons and their operations under the jurisdiction of the Railroad Commission; to determine the status of gas production from all gas reservoirs; to distribute, prorate and apportion allowable production; to determine the lawful market demand for gas to be produced from each reservoir; to adjust correlative rights and opportunities; to determine the daily allowable production for each gas well; to effectuate the provisions and purposes of Chapter 86 of the Natural Resources Code; and to conserve and prevent waste of gas. The Texas Natural Resources Code, sec.86.084 and sec.86.091, are affected by the adopted amendments. 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 September 30, 1997. TRD-9712945 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: October 20, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 463-7008 CHAPTER 7.Gas Utilities Division Substantive Rules 16 TAC sec.7.70, sec.7.81 The Railroad Commission of Texas adopts amendments to sec.7.70, relating to general and definitions (with respect to minimum safety standards and regulations applicable to natural gas pipeline facilities and natural gas transportation within the state of Texas), and sec.7.81, relating to safety regulations adopted (concerning the transportation of hazardous liquids within the state), without changes to the proposed versions published in the August 1, 1997, issue of the Texas Register (22 TexReg 7115). By these changes, the commission adopts by reference the new amendments issued by the United States Department of Transportation (DOT) in 49 Code of Federal Regulations (CFR), Parts 192, 193, 195, and 199, concerning natural gas, liquefied natural gas, hazardous liquids pipelines, and drug testing requirements. As adopted, the rules change the date stated in sec.7.70 and sec.7.81 to reflect the new date - June 2, 1997, - on which the commission adopts by reference the federal regulations in 49 CFR Parts 192, 193, 195, and 199 in order to adopt 15 recent amendments to those regulations. Amendment 192-74, published at 60 Federal Register (FR) 41821, prescribes requirements for written notice to customers regarding the natural gas piping downstream of the company meter in a new section, 49 CFR 192.16. The notice must include information relating to the maintenance of the piping by the customer and some of the potential hazards associated with piping not maintained by the gas company. This amendment applies to both natural gas distribution, transmission, and master metered systems that operate service lines. Based on a petition for modification submitted by the American Gas Association in response to the original customer notification amendment, a subsequent amendment, 192- 74A, was adopted. Amendment 192-74A concerns the requirements for notification by natural gas suppliers to their customers regarding the maintenance of their "customer-owned" lines downstream of the customer meter. The rule requires all natural gas operators who do not currently maintain customer-owned lines to provide notification to their customers regarding the need for maintenance on their facilities. The gas operator can either shut off the gas, advise the customer to make repairs, or repair the leak. Amendments 192-75, 193-10, 195-55, and 199-13, found at 61 FR 18512, were adopted in response to the President's directive to federal agencies on regulatory reform. Changes were made to the natural gas, liquefied natural gas, hazardous liquids, and drug testing regulations to correct nomenclature, addresses, typographical errors, and penalty amounts. The changes involved updating industry standards and dealt mostly with reporting and record-keeping requirements; they imposed no new procedural requirements. In May 1996, the Research and Special Projects Administration of DOT (RSPA) adopted amendments 192-76, 193-11, and 195-56 (61 FR 26121), which provided for periodic updates to the pipeline safety regulations and removed the requirement for odorization of hydrogen pipelines. The amendments adopted the most recently published editions of each of the documents incorporated by reference by removing the specific edition or date of a standard publication. This amendment was also a part of the regulatory reform initiative. A third set of amendments, 190-7, 191-11, 192-77, and 193-12, was adopted in June 1996 as a further step in the regulatory reform initiative. These amendments, found at 61 FR 27789, modified various administrative practices in the pipeline safety program and changes to the requirements for gas detection, construction within enclosed structures, and pipeline testing temperatures. These changes were made to reduce costs without compromising safety. Amendment 190-7 made changes to the procedures used in safety inspections and assessments of penalties for violations. Amendment 191-11 removed the production (or flow) lines from DOT's jurisdiction; 192-77 changed the pressure testing temperature requirement for plastic pipe; and 193-12 addressed liquefied natural gas (LNG) detection equipment and building specifications for enclosed structures. The last amendment included in the regulatory reform initiative was adopted in August 1996. Found at 61 FR 28770, amendment 192-78 is the most comprehensive change made to the gas pipeline safety regulations. The changes were made to provide clarity, eliminate unnecessary burdens, and reduce costs without compromising safety. The amendment also included some revisions suggested by the National Association of Pipeline Safety Representatives, of which the Railroad Commission is a member. Federal Amendments 192-79 and 192-80 concern performance standards for the use of excess flow valves. Both the National Transportation Safety Board and Congress (in 49 United States Code 60110) directed RSPA to adopt regulations prescribing the conditions for using excess flow valves in natural gas operations. Because the cost greatly exceeds the benefit, RSPA determined that there are no circumstances under which excess flow valves should be required. Amendment 192-79 (61 FR 31449) establishes performance standards for excess flow valves that are installed in natural gas distribution systems, as directed by Congress; Amendment 192-80 (62 FR 2618), issued in response to a petition for reconsideration, deleted certain language concerning the sizing of excess flow valves and the location of their installation. Federal Amendment 199-14, Reporting of Drug and Alcohol Testing Results, was adopted in December 1996 (61 FR 65364). The amendment allows for submission of drug testing results to RSPA by computer disks, along with a signature page for verification. Amendment 193-13, published at 62 FR 8402, allows for mobile and temporary LNG facilities within natural gas distribution systems to be installed in compliance with NFPA 59A. No comments were received regarding the adoption of the amendments. The commission adopts the amendments under Texas Civil Statutes, Article 6053-1, which authorizes the commission to adopt safety standards and practices applicable to the transportation of gas and all gas pipeline facilities within Texas to the maximum degree permissible under, and to take any other requisite action in accordance with, the Pipeline Safety Act, 49 United States Code Annotated, sec.60101; and under the Texas Natural Resources Code, sec.117.001, which authorizes the commission to regulate the pipeline transportation of hazardous liquids and carbon dioxide and facilities related thereto under, and to take any other requisite action in accordance with, the Pipeline Safety Act, 49 United States Code Annotated, sec.60101. Texas Civil Statutes, Article 6053-1, and Texas Natural Resources Code, sec.117.001, are affected by the adopted rules. 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 September 30, 1997. TRD-9713013 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: October 21, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 463-7008 PART II. Public Utility Commission CHAPTER 23.Substantive Rules Telephone 16 TAC sec.23.107 The Public Utility Commission of Texas adopts new sec.23.107, relating to Educational Percentage Discount Rates (E-Rates) with changes to the proposed text published in the July 29, 1997 issue of the Texas Register (22 TexReg 7003). The rule is responsive to the Federal Communication Commission's Report and Order in the Matter of Federal-State Joint Board on Universal Service in CC Docket Number, FCC 97-157 (May 7, 1997) which implemented key portions of sec.254 of the federal Telecommunications Act of 1996 and adopted a federal universal service support mechanism to fund discounts on interstate and intrastate telecommunications services, Internet access, and internal connections for schools and libraries. A state's setting intrastate discounts at least equal to the discounts on interstate services is a condition of federal universal service support for schools and libraries in that state. This section establishes, for Texas, intrastate discount rates for telecommunications services, Internet access, and internal connections that are equivalent to the interstate discounts offered on these services. Adoption of the intrastate discount rates will allow Texas schools and libraries to be eligible for federal universal service support for both interstate and intrastate services. The commission received written comments on the proposed rule from AT&T Communications of the Southwest, Inc. (AT&T), GTE Southwest, Inc. (GTE-SW), the Texas Telephone Association (TTA), the Texas Association of School Boards (TASB), Central Texas Library System (CTLS), Forest Trail Library Consortium, Inc. (FTLC), Marble Falls Library (MFL), Texas Association of Community of Schools (TACS), and Mr. Alvin R. Bailey. The commission also received written reply comments from Southwestern Bell Telephone Company (SWBT). Several interested parties as listed below filed letters with the commission. A public hearing on the rule was held at commission offices on August 7, 1997 at 9:00 a.m. Representatives from AT&T, the New Schools Project (NSP), Texas Library Association, and the Community Resource Center Project attended the hearing and provided comment. To the extent that these comments differ from the submitted written comments, such comments are summarized herein. GTE recommended no changes to the proposed rule. TTA and AT&T stated in their comments that they generally support the rule as proposed, although each suggested certain changes to the rule. TASB, CTLS, FTLC, MFL, TACS, Mr. Alvin R. Bailey, the New Schools Project, the Texas Library Association, and the Community Resource Center Project also generally supported the rule, but objected to subsection (b)(3) relating to the exclusion of use of the discounts. The following interested parties sent letters urging the commission to allow schools and libraries to aggregate the state and federal discounts: Montgomery County Memorial Library System; Driscoll Public Library; Hico Independent School District; Eugene Stockton; Rosenberg Library; Jeffrey B. Scott, General Library Consultant, North Texas Regional Library System; Reagan County Library; Rhoads Memorial Library; Falls City Public Library; Christy L. Milliot, Assistant Director, North Texas Regional Library System; Texas State Library and Archives Commission; Richard Lavine, Cedar Park Public Library; Dimmit County Public Library; Lynne Handy, Executive Director, North Texas Regional Library System; Houston Public Library; Rhoda L. Goldberg, Harris County Public Library, Texas Library Association; Poteet Public Library; Colonel Charles W. Brown, USAF, Retired; Comfort Public Library; Forest Trail Library Consortium; Texas Association of Community Schools; Taylor Public Library; Runge Public Library; Converse Area Public Library, Inc.; Mark Smith, Director of Communications, Texas Library Association; Alexander Memorial Library; Sterling Municipal Library. TASB, CTLS, FTLC, MFL, TACS, and Mr. Alvin R. Bailey voiced concern that the exclusion of use provision in subsection (b)(3) of the rule would prohibit the aggregation of House Bill 2128 (75th Legislature, R.S., 1997) discounts with the E-Rate discounts proposed in the rule. TASB, CTLS, and TACS argued that aggregation of the discount rates is necessary to ensure that all schools and libraries in Texas have access to the enhanced educational opportunities made possible by telecommunications technology. FTLC commented that aggregation of the discount rates is essential to enabling economically disadvantaged and/or rural schools and libraries to cover the costs associated with connecting to the Internet. Mr. Bailey commented that federal and state laws have provided the telecommunications industry with ample opportunities to increase revenue through new service offerings. Mr. Bailey explained that such opportunities will offset any increase in costs that may be associated with allowing schools and libraries to aggregate federal and state discount structures. Mr. Bailey also noted that other states have allowed aggregated discounts from local and federal laws and urged the commission to follow the same course. At the public hearing, representatives of the New Schools Project, the Texas Library Association, and the Community Resource Center voiced concern that the exclusion of use provision in subsection (b)(3) of the rule will prevent schools and libraries from aggregating the tariffed discount rates provided under the Public Utility Regulatory Act (PURA) with the Educational Percentage Discount Rates (E-Rates) proposed in the rule. These parties believe that the aggregation of discounts is essential to enabling the poor and remote areas of the state to bring networked information to their schools and libraries. The NSP representative also voiced concern that the exclusion of use provision in subsection (b)(3) of the rule will prevent school districts from applying for E- Rate discounts because PURA discounts will be preferable. NSP argued that this will result in Texas not receiving its appropriate share of federal universal service funds for schools and libraries. GTE, TTA, and SWBT supported subsection (b)(3) of the rule as proposed. As proposed, subsection (b)(3) would allow schools and libraries to apply only one discount structure to any order for telecommunications services or facilities that is submitted to a telecommunications carrier. GTE argued that allowing schools and libraries to "stack" discount structures would only add to the support burden of the federal universal service fund. GTE also expressed concern that the annual savings that schools and libraries realized as a result of the E-Rate discounts would in all likelihood be paid by consumers through higher telephone bills. TTA and SWBT argued that it would be inconsistent with the intent of the Texas Legislature and the federal government to apply more than one discount for the same intrastate service. SWBT cited PURA sec.58.257 to support its position that the Legislature did not intend for the HB 2128 discounts to be aggregated with other programs, but rather intended HB 2128 discounts to act as an alternative educational discount program. SWBT also stated its belief that aggregation of the HB 2128 and E-Rate discounts would skyrocket the demand for services and result in unanticipated and uncompensated costs for construction and installation that electing local exchange companies (LECs) experience. It should be noted that an incumbent company which has elected to be regulated under Chapters 58 or 59 of the Texas Utilities Code may avoid offering a combined discount if it does not bid in the federal universal service program. The federal program has been designed to require competitive bidding between telecommunications service providers for the services to be acquired under the discounted rate. No carrier is obligated under state or federal law to participate in the competitive bidding process under the federal program. Of course, if an electing company decides not to participate in the federal program, it must still, under its electing company obligations, offer the tariffed state discounted rate to a school or library. An analysis of the comments submitted by interested parties regarding subsection (b)(3) of the rule convinces the commission that the issue of discount aggregation is most appropriately addressed by the Federal Communication Commission (FCC). The E-Rate discount is a federal program. Therefore, the FCC is responsible for defining eligible services, identifying economically disadvantaged schools and libraries, establishing a discount methodology, imposing restrictions on schools and libraries receiving services at discounts funded under federal universal service support mechanisms, and distributing support. To carry out these responsibilities, the FCC has adopted rules that prescribe the manner in which federal funding for discounts on both interstate and intrastate services will be administered. States have no obligations or responsibilities under the federal E- Rate discount program other than to establish intrastate discounts at least equal to the discounts on interstate services. The commission will fulfill this responsibility upon adoption of this section. The exclusivity of the FCC's role in distributing support under the federal discount program coupled with the absence of state involvement in the implementation and administration of the program convinces the commission that the FCC is the appropriate forum in which to address whether HB 2128 discount rates or other PURA discount rates are the pre-discount price to which the E- Rate discount structure may be applied. Accordingly, the commission deletes subsection (b)(3) as published in the Texas Register. TTA, AT&T, and SWBT objected to the requirement in subsection (c) of the rule that each telecommunications carrier file a tariff to implement the E-Rate discount program. TTA argued that such a requirement may overly complicate the pricing structures of services that are not subject to this requirement. TTA recommended amending subsection (c) to require the E-Rate to be implemented if the discount is applicable to a tariffed service. TTA also stated that a tariff filing requirement is appropriate in those instances where the E-Rate discount was applicable to a tariffed service. AT&T recommended deleting subsection (c) of the rule on the basis that the tariff filing requirement is overly burdensome and unnecessary. AT&T argued that the filing of tariffs containing both "true" rates and "discount" rates may create confusion as to the actual applicable rate. SWBT concurred with the comments filed by TTA and AT&T and stated that no specific tariff requirement should be imposed by virtue of the federal discount program. The commission declines to delete subsection (c) of the rule which requires telecommunications carriers to file tariffs implementing the E-Rate discount for intrastate services. The commission notes that this tariff filing requirement only requires telecommunications carriers to file the commission approved E-Rate discount matrix for intrastate services in their tariffs. Thereafter, the E-Rate discount matrix would be used to calculate the discount that is applicable to a tariffed service. The commission believes that this type of tariff filing requirement is necessary in order to adequately inform schools and libraries of the availability of the E-Rate discount structure. AT&T also sought clarification within the rule to prevent the application of universal service funds to tasks already required by PURA, Chapter 58, Subchapters F-G. AT&T recommended that the commission clarify that electing LECs may not receive payment from the federal universal service fund for the provision of services or discounts which the electing LEC may already be obligated to provide under the infrastructure commitment sections of PURA, chapter 58, Subchapters F-G. The commission agrees with the concern articulated by AT&T and clarifies that electing LECs may not receive payment from the federal universal service fund for the provision of services or discounts which the electing LEC undertook as part of its PURA infrastructure commitment. No change has been made to the rule as published in the Texas Register based on this comment. All comments, including those not specifically referenced herein, were fully considered by the commission. This section is adopted under the Public Utility Regulatory Act, 75th Legislature, Regular Session, chapter 166, sec.1, 1997 Texas Session Law Service 732 (Vernon) (to be codified at Texas Utilities Code Annotated sec.14.002) (PURA) which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Cross Index to Statutes: Public Utility Regulatory Act sec.14.002. sec.23.107. Educational Percentage Discount Rates (E-Rates). (a) Purpose. The purpose of this section is to establish educational percentage discount rates (E-Rates) for intrastate telecommunications services, Internet access, and internal connections that are equivalent to those adopted for interstate services by the Federal Communications Commission (FCC) in 47 Code of Federal Regulations part 54, subpart F (relating to Universal Service Support for Schools and Libraries). (b) Provisions governing intrastate E-Rates. (1) Intrastate services eligible for E-Rates. The percentage discount rates available pursuant to 47 Code of Federal Regulations part 54, subpart F to eligible schools, libraries, and consortia as defined by 47 Code of Federal Regulations part 54, subpart F shall apply to the following intrastate services: (A) all commercially available telecommunications services provided by telecommunications carriers; (B) Internet access; and (C) installation and maintenance of internal connections. (2) Eligibility for intrastate E-Rates. Schools, libraries, and consortia eligible for E-Rates pursuant to 47 Code of Federal Regulations part 54, subpart F shall comply with the provisions of 47 Code of Federal Regulations part 54, subpart F in order to receive the intrastate E-Rates. (c) Tariff requirement. Each telecommunications carrier shall file a tariff to implement the requirements of this section within 15 days of the effective date of this section. No other revision, addition or deletion unrelated to the requirements of this section shall be contained in the tariff application. 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 October 1, 1997. TRD-9713042 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Effective date: October 21, 1997 Proposal publication date: July 29, 1997 For further information, please call: (512) 936-7308 TITLE 22. EXAMINING BOARDS PART III. Texas Board of Chiropractic Examiners CHAPTER 73.Licenses and Renewals 22 TAC sec.73.3 The Texas Board of Chiropractic Examiners adopts an amendment to sec.73.3, concerning Continuing Education, without changes to the proposed text as published in the July 25, 1997, issue of the Texas Register (22 TexReg 6913). The amendment adds a new subparagraph (E), to paragraph (1), relating to continuing education requirements, that provides an alternative method for complying with the requirements for licensees who are unable to travel due to illness or disability. An eligible licensee may satisfy the board's continuing education requirements by viewing video taped courses which are offered by the Foundation for Chiropractic Education and Research. Subparagraph (E) requires certification of incapacity due to illness or disability by an independent chiropractor or other doctor. Licensees must submit a new certification for each year of incapacity. Lastly, the subparagraph contains a notice that a false certification subjects the licensee to enforcement action under the Chiropractic Act. Grammatical changes are made to the description of the type of illness or disability referenced in paragraph (3)(A)(iii) relating to qualifying exemptions. Other non-substantive changes have been made to sec.73.3 for clarity and grammar. The substantive amendment seeks to provide an appropriate accommodation for persons who are ill or disabled by allowing an alternative means of complying with the board's continuing education requirements. The amendment indirectly promotes the continuing safety of patients by facilitating access to continuing education training for those licensees who may be physically unable to travel to a course. No comments were received concerning adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512b, sec.4(c), sec.4a, which authorize the board to adopt rules necessary for performance of its duties, the regulation of the practice of chiropractic, and the enforcement of the Act, and sec.8b(c), which requires the board to adopt rules relating to mandatory continuing education. 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 October 2, 1997. TRD-9713084 Joyce Kershner Director of Licensure Texas Board of Chiropratic Examiners Effective date: October 22, 1997 Proposal publication date: July 25, 1997 For further information, please call: (512) 305-6700 PART XXII. Texas Real Estate Commission CHAPTER 535.Provisions of the Real Estate License Act Definitions 22 TAC sec.535.20 The Texas Real Estate Commission (TREC) adopts an amendment to sec.535.20, concerning procuring prospects for real estate transactions, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6254). The amendment permits a person who does not hold a real estate license to refer customers to a real estate licensee under specific conditions related to what are commonly known as affinity programs. The amendment permits the unlicensed person who first sells goods or services to a real estate licensee to contact the person s own customers and refer them to the licensee, so long as the payment for the goods and services is not contingent upon the consummation of a real estate transaction by the unlicensed person s customers. Adoption of the amendment is necessary to provide guidelines to real estate licensees and the general public as to when a real estate license is required under affinity programs or other business arrangements in which the primary function of the unlicensed person is to promote the sale of the person s own goods or services. On final adoption, the text of the proposed section was modified to replace the term salesman with salesperson in compliance with House Bill 814, 75th Legislature (1997), and the word and was replaced by or in two places to clarify that a person could sell either goods or services to fall within the section. Three comments were received in support of the proposed amendment. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties sec.535.20. Procuring Prospects. (a)-(c) (No change.) (d) A person is not required to be licensed as a real estate broker or salesperson if all of the following conditions are met. (1) The person is engaged in the business of selling goods or services to the public. (2) The person sells goods or services to a real estate licensee who intends to offer the goods or services as an inducement to potential buyers, sellers, landlords or tenants. (3) After selling the goods or services to the real estate licensee, the person refers the person s customers to the real estate licensee. (4) The payment to the person for the goods or services is not contingent upon the consummation of a real estate transaction by the person s customers. 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 October 1, 1997. TRD-9713043 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: October 21, 1997 Proposal publication date: July 4, 1997 For further information, please call: (512) 465-3900 Education, Experience, Educational Programs, Time Periods, and Type of License 22 TAC sec.535.66 The Texas Real Estate Commission (TREC) adopts an amendment to sec.535.66 concerning schools accredited by the commission, without changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7461). The amendment prohibits recruiting or solicitation of prospective salespersons in the classroom during class time, but permits recruiting or solicitation of prospective salespersons elsewhere on the school premises. Adoption of the section is necessary to assist schools in complying with the section and to resolve issues relating to use of vacant classroom areas, lunchrooms, or other areas for recruiting or soliciting prospective salespersons. No written comments were received regarding the proposed amendment. At the TREC meeting at which the proposed amendment was adopted, an oral comment was presented opposing the amendment, because it permitted solicitation to occur on the premises of the school and because the school would be responsible for the conduct of students who might solicit prospective salespersons during class time. The commission did not concur with the comment , determining that TREC could not legally prohibit solicitation occurring outside of the classroom and that a school would not be responsible for solicitations by students unless the school was aware that the solicitations were occurring. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties 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 October 1, 1997. TRD-9713044 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: October 21, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 35.Pharmacy Services SUBCHAPTER B.Administration On behalf of the State Medicaid Director, the Texas Department of Health (department) submits adoption of amendments to sec.sec.35.202, 35.203, 35.607, 35.701, and 35.707 concerning the submission of claims for compounded prescriptions to the Medicaid Vendor Drug Program. Sections sec.sec.35.202, 35.203, 35.607, 35.701, and 35.707 are adopted without changes to the proposed text as published in the June 20, 1997, issue of the Texas Register (22 TexReg 5893), and therefore the sections will not be republished. These amendments address new requirements for submitting claims for reimbursement of compound prescriptions to the Vendor Drug Program's Electronic Claims Management System. These amendments also revise language pertaining to the use of the Metric Decimal Standard adopted by the National Council for Prescription Drug Programs (NCPDP). The current system requires that the claims for the reimbursement of compounded prescriptions be submitted to the system using only the National Drug Code (NDC) and number of units of the most expensive ingredient in the compound. Additional ingredients in the compound must be billed to the department through the regional pharmacist, using a paper system. Under the revised system, up to ten ingredients can be submitted to the department electronically. Additional ingredients will be submitted manually to the Vendor Drug Help Desk. Department staff have determined that the need for manual submissions under this system will be extremely limited. The following comment was received concerning the proposed sections. Following the comment is the department's response to the comment. No change was made as a result of this comment. Comment: The commenter expressed general support of the proposed changes, but recommended that the department pay an additional compounding fee over and above the dispensing fee for preparing sterile pharmaceutical products for infusion. Response: No change was made as result of this comment. The purpose of these rules is to implement a more efficient reporting method for compounded prescriptions. No additional fee for preparation of sterile compounds is currently included in the reimbursement methodology. Changes to the reimbursement methodology are outside the scope of these rules. The commenter was the Texas Society of Health-System Pharmacists. The commenter expressed general support in favor of the amendments, but expressed concerns and made recommendations. Chapter 35. Pharmacy Services Subchapter B. Administration, Amendments sec.sec.35.202, 35.203 25 TAC sec.sec.35.202, 35.203 The amendments are adopted under the Human Resources Code, sec.32.021 and Texas Government Code, Chapter 531, which provides the Health and Human Services Commission with the authority to adopt rules to administer the State's medical assistance program, and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under the Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 October 6, 1997. TRD-9713236 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 27, 1997 Proposal publication date: June 20, 1997 For further information, please call: (512) 458-7236 SUBCHAPTER F.Reimbursement 25 TAC sec.35.607 The amendment is adopted under the Human Resources Code, sec.32.021 and Texas Government Code, Chapter 531, which provides the Health and Human Services Commission with the authority to adopt rules to administer the State's medical assistance program, and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under the Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 October 6, 1997. TRD-9713237 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 27, 1997 Proposal publication date: June 20, 1997 For further information, please call: (512) 458-7236 SUBCHAPTER G.Pharmacy Claims 25 TAC sec.sec.35.701, 35.707 The amendments are adopted under the Human Resources Code, sec.32.021 and Texas Government Code, Chapter 531, which provides the Health and Human Services Commission with the authority to adopt rules to administer the State's medical assistance program, and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under the Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 October 6, 1997. TRD-9713238 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 27, 1997 Proposal publication date: June 20, 1997 For further information, please call: (512) 458-7236 TITLE 25. HEALTH SERVICES PART VII. Texas Medical Disclosure Panel CHAPTER 601.Informed Consent 25 TAC sec.601.2 The Texas Medical Disclosure Panel (panel) adopts an amendment to sec.601.2, concerning informed consent for medical treatments and surgical procedures requiring full disclosure (List A) of the possible risks and hazards involved, with changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7464). The certification information published at the end of the proposed amendment on page (22 TexReg 7465) was incorrect. A correction of error was subsequently published for the proposed amendment; however it was published under the Texas Department of Health instead of the Texas Medical Disclosure Panel in the August 26, 1997, issue of the Texas Register (22 TexReg 8564). The certifying official for the proposed amendment is Melba W.G. Swafford, M.D., Chairperson, Texas Medical Disclosure Panel. The Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i, Subchapter F, requires the panel to determine which risks and hazards related to medical care and surgical procedures must be disclosed by health care providers or physicians to their patients or persons authorized to consent for their patients and to establish the general form and substance of such disclosure. Section 601.2 establishes a list of the medical treatments and surgical procedures requiring full disclosure by a physician or health care provider to a patient or person authorized to consent for the patient. This amendment adds risks and hazards that the panel has determined must be disclosed for abdominal endoscopic/laparoscopy procedures and endoscopic surgery of the thorax. The following comment on the proposal was received by the panel. COMMENT: Concerning sec.601.2(s)(1)(F) and sec.601.2(s)(2)(D), a commenter suggested dropping the phrase "... if any risks and hazards are listed in this section." The commenter stated two reasons: "First, the panel has not made a determination of the risks and hazards of all possible surgical procedures nor would there be any reasonable expectation that it could do so given the (hopefully) continued advances in medical and surgical science. Therefore, there are and will be procedures that are not on either List A or List B. For procedures that are on neither list, the law requires the physician to disclose to the patient those risks and hazards that the "reasonable patient" would want to know in making a decision to undergo the procedure. The clause I have suggested be deleted may be construed by the patient, and even by the surgeon, as suggesting that there simply are no further risks and hazards to be contemplated. Often that conclusion could be wrong. Second, most health care institutions and publishers of medical forms adopt their language for consent forms directly from the regulation as published in the Texas Register. If they do so in this case, the ambiguous reference to "this section" at the end of the phrase I suggest be deleted will confuse both patients and care givers as it likely will be read as referring to "this section" of the consent form. I believe the reference to "this section" actually refers to sec.601.2 of the regulations or a subpart thereof, which the patient and physician doubtless will not have available to them in the clinical setting. In summary I believe the phrase is misleading and subject to multiple interpretations. If it is deleted, the patient and care giver are simply cautioned to contemplate the risks of the open style procedure, whatever those may be and whether the open procedure is on List A or not. That is a worthwhile exercise and one calculated to lead to better and more informed decisions by both physician and patient." RESPONSE: The panel agrees that the phrase may be misleading and has deleted the phrase as suggested by the commenter. The panel provided further clarification by changing the remaining language to indicate these risks and hazards associated with endoscopic surgery would be disclosed in addition to any risks or hazards required to be disclosed in conjunction with the open procedure. This language was placed in paragraphs (1) and (2) of subsection (s); and the proposed language in subsection (s)(1)(F) and subsection (s)(2)(D) was deleted. The comment was received from Hermann Hospital, Houston, Texas. The commenter was generally in favor of the section as proposed, but made a suggestion for change as previously stated. The amendment is adopted under the Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i, sec.6.04, which provides the Texas Medical Disclosure Panel with the authority to prepare lists of medical treatments and surgical procedures that do and do not require disclosure by physicians and health care providers of the possible risks and hazards and to prepare the form for the treatments and procedures which do require disclosure. sec.601.2. Procedures Requiring Full Disclosure--List A. (a)-(f) (No change.) (g) Female genital system treatments and procedures. (1)-(3) (No change.) (4) Reserved. (5)-(13) (No change.) (h)-(r) (No change.) (s) Endoscopic surgery. (1) Abdominal endoscopy/laparoscopy procedures. The following shall be in addition to risks and hazards of the same surgery when done as an open procedure. (A) Damage to intra-abdominal structures (e.g., bowel, bladder, blood vessels, or nerves). (B) Intra-abdominal abscess and infectious complications. (C) Trocar site complications (e.g., hematoma/bleeding, leakage of fluid, or hernia formation). (D) Conversion of the procedure to an open procedure. (E) Cardiac dysfunction. (2) Endoscopic surgery of the thorax. The following shall be in addition to risks and hazards of the same surgery when done as an open procedure. (A) Postoperative pneumothorax. (B) Subcutaneous emphysema. (C) Conversion of the procedure to an open procedure. 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 October 3, 1997. TRD-9713189 Susan K. Steeg General Counsel Texas Medical Disclosure Panel Effective date: October 23, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 458-7236 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 101.General Rules 30 TAC sec.sec.101.1, 101.24, 101.27 The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.101.1, concerning Definitions; sec.101.24, concerning Inspection Fees; and sec.101.27, concerning Emissions Fees; and revisions to the State Implementation Plan regarding these adoptions. The amendments are adopted with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6006). EXPLANATION OF ADOPTED RULES. The definitions of site found in 30 TAC sec.122.10, account in sec.101.1, and account in sec.101.24 and sec.101.27 were different. Prior to the advent of Title V permitting, the term "account" was the unique facility identifier for air and air related programs. The definition of site can encompass multiple accounts, which has the effect of creating a new, partially overlapping facility identifier for the affected air programs. Multiple Title V permits may be issued at a site. In addition, the situation arises that a single Title V permit could span accounts at a site, because of the difference in definitions of site and account. Under the federal operating permit program, all emission units at a site must be permitted, but nothing requires that a single permit cover all. It is clear, however, that the intent of the federal operating permit program is to put in one list all of the requirements to which a site is subject. In order to increase flexibility to the regulated community, the commission allows multiple permits at a site, but does not require that those permits cover distinct geographic areas within that site. Unfortunately, prior to the proposed rule change, the definition of site could incorporate a geographic area that could span multiple accounts. At present, the commission documents actions and emissions from those sources both internally and to the United States Environmental Protection Agency (EPA) on an account basis, because this is the highest level of accounting for air purposes. The EPA data system cannot address multi-account permits in a comprehensive manner. One solution to this problem is simply to change the definition of account to end this problem. Another solution is to require multiple permits at a multiple account site, issued along account boundary lines. This would require that the company submit multiple permit applications. The consequence of this is that the responsible official would have to verify each of those multiple permits annually, and that the agency would have to handle the multiple permit administrative overhead each time it addressed the units at the site either in a site inspection or in annual emissions inventory reporting to the EPA. This adoption amends the definition of account such that the term continues as the key identifier for a facility while retaining the necessary structure for federal permitting purposes. The commission reviewed various options prior to adopting the amendments. The compelling rationale for the selected response is the fact that once the EPA has identified a site as major and thus subject to Title V, the site is viewed, from an air regulatory perspective, as an integrated whole from that time forward. It is incorrect for the commission, the public, and the regulated community to continue to view the multiple account sites as simply an aggregation of sources with no logical connection. If the commission were to view the accounts individually in the future, then each time the commission addressed the site, whether it be for fees, inspection, or compliance purposes, the commission would be required to assemble the information for data collection purposes, and then disassemble the information for reporting to EPA. The commission also adopts administrative changes to sec.101.24 and sec.101.27 to keep them consistent with current rule citations, definitions, and designations of areas failing to meet the National Ambient Air Quality Standard for ozone contained in sec.101.1. Additionally, references to 30 TAC sec.101.6, concerning Upset Reporting and Recordkeeping Requirements and 30 TAC sec.101.7, concerning Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements are amended to reflect changes in the title designations of those sections, which were effective August 5, 1997. TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact assessment for these amendments under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of these amendments is to modify the definition of account so that it may serve as the key identifier for facilities under air pollution control programs of the commission and to adopt administrative changes to sec.101.24 and sec.101.27 to keep them consistent with current rule citations and definitions. Promulgation and enforcement of these sections will not affect private real property. COASTAL MANAGEMENT PLAN. The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et. seq.), the rules of the Coastal Coordination Council (31 TAC Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and sec.505.22(a), and 30 TAC sec.281.45(a)(3), relating to actions and rules subject to the CMP, agency rules governing air pollutant emissions must be consistent with applicable CMP goals and policies. The commission has reviewed this rulemaking action for consistency, and has determined that it is consistent with the applicable CMP goals and policies because these rules comply with regulations in Code of Federal Regulations, Title 40, adopted under the Federal Clean Air Act, United States Code, sec.sec.7401 et seq., to protect and enhance air quality and promote public health, safety, and welfare in the coastal natural resources areas. Therefore, in compliance with 31 TAC sec.505.22(e), the commission affirms that these rules are consistent with CMP goals and policies. PUBLIC HEARING. A public hearing was held July 15, 1997. Five organizations submitted comments during the public comment period, which closed on July 24, 1997. Texas Mid-Continent Oil and Gas Association (TMOGA), Exxon Company, U.S.A. (Exxon), Amoco Corporation (Amoco), and Phillips 66 Company (Phillips) opposed the proposal. The EPA expressed no concerns. TMOGA, Exxon, and Amoco commented that oil and gas production accounts are often tied to individual leases, and each lease may have unique working interest percentages. Each owner with an interest in the lease is assessed a portion of the operating costs, such as air emission fees. A separate account allows companies to accurately bill out associated costs. Under this adoption, multiple leases would be combined because they are designated as a single site. Since emission fees vary among the various leases, it would be labor intensive to develop new cost accounting systems to assign fee responsibility among the leases. Amoco stated that combining existing accounts into one account is an unnecessary burden. Exxon recommended creating a unique Title V permit number that could be linked to all account numbers at a site. Exxon also requested guidance on the implementation schedule of the proposal. The three commenters questioned whether the commission will require consolidation of accounts during Title V processing, at the next emission inventory submission, or at some other time. The commission requires this amendment to allow efficient management of internal account data. The basis for the commission's position was established in this preamble under the heading of EXPLANATION OF ADOPTED RULES. The commission expects the effect on total fees from a source to be unchanged for the following reasons. The emissions used as the basis for the fees originate at the unit level, with the total fee calculated at the account level. Within an account, each emission unit is uniquely numbered. The adoption retains this requirement of unique emission unit numbering. Therefore, the ability to allocate cost to respective parties would not change, as they are on an emission unit basis now. The federal rules implementing the operating permits program use the term "site" to include all those emission units in a geographic area that are under common control and are interrelated. The commission is not requiring that entire leases be combined; rather, the commission is requiring that all sources of air pollution at a federally designated site be identified as a single location of air contaminants for regulatory purposes. Since the federal operating permit program requires that a responsible official be accountable for compliance with all air requirements at the site, it follows logically that the agency implementing that program also recognize the site as a unified whole. The commission intends to consult with those sources subject to the interim program during the fall of 1997, and spring of 1998 to work out the details of account consolidation where required, such as renumbering of emission units where that is required. This would occur in the December 1997-March 1998 period, as this is the time of the year that has the lowest emissions inventory related activity date. It would be desirable for the combination of accounts to occur prior to the issuance of a Title V permit. The commission does not anticipate that the account consolidation activities will materially affect the Title V permitting process. The commission expects affected companies with multiple account sites to consolidate their account data prior to issuance of federal operating permits. For those multiple account sites where permits have already been issued, the commission expects consolidation to occur within one year of the issuance date of their operating permits. The commission staff will assist companies in the few cases where emission unit name changes are required prior to account consolidation. Exxon stated that the commission has not done a complete economic analysis of the proposal and the expenses it would place on industries, and the proposal is not justified unless this analysis is complete. The preamble does not address the economic effect or any alternatives to the proposal. The commission recognizes that the company must uniquely identify emission units and pay fees based on emissions from those units, and this will not change under the adopted rule language; thus, ongoing costs should be unchanged. The account number to which some of those emission units are assigned will change. A review of applications received for the interim Title V program indicates that the number of emission units requiring renaming is very small. Of the 965 applications received, between 20 and 30 of those applications were for permits for multiple account sites. Those permits would be issued at 18 sites comprising a total of 49 accounts. Those 49 accounts contain approximately 432 emission units. The merger of accounts will result in a total of 149 emission points moved to other account numbers, with only 22 of those units requiring renaming. The majority of the cost of reassigning emission units to accounts will be borne by the commission, and that cost, overall, is estimated to be less than $1,000. This one-time total cost is arguably less expensive than the development and submission of even one additional Title V permit. Amoco and Exxon commented that emission units at multiple sites could be numbered similarly, requiring renumbering for inventory purposes. A review of the emission units at the multiple-account sites subject to the interim program indicates that only 22 of the 432 total emission units at those multiple-account sites will require renumbering. TMOGA and Exxon stated that the proposed change would require companies to revise their emission inventory database identifiers. The current identifier is assigned in such a way that it preserves the underlying oil and gas leases identification. If the agency were to renumber all of the emission units, it would be unable to preserve the oil and gas leases information. Renumbering will be required only in limited cases, and only for those emission unit names that are common across the accounts. A review of emission unit names indicates that many companies have identified their emission units in such a manner that renumbering any of them will not be required. In every case, the staff of the commission will work closely with the company so that renumbering, where required to assure unique names, will conform to the company naming convention to the extent that it is consistent with the emissions inventory naming conventions. TMOGA and Amoco also expressed concern that the proposal will cause increased times for permit review in that multiple sites aggregated under Title V of the Federal Clean Air Act Amendments will be treated as a single site. They asked that the commission clarify its intent. The commission has adopted the definition of site to conform to federal rules. The agency will not aggregate sites, but will aggregate only those accounts that make up a site. The commission does not anticipate that the aggregation of accounts will delay the issuance of permits. TMOGA stated that several members have reported that they have paid emission fees based on actual emissions only to have the commission come back and request additional fees based on allowable emissions. Actual emission data resulting from accepted engineering methods should be the base for emission fees, and allowables should be used only when this data is absent. TMOGA requested that the commission issue a clear policy directive that emission fees will be based on actual emissions where that data is available. Without this base, the commission creates a disincentive to operate below allowable levels. Amoco supported this comment. These commenters refer to recently completed emissions fee audits in which companies were being asked to pay fees on permit allowable levels if measured data was not available. The audits were only recently completed, but the requirement has always been in effect. The historical intent of the emissions fee rule was to base the fees on allowable levels, where present, and actual emissions, either measured or estimated, in all other cases. The Texas Air Control Board, responding to comments in a 1991 rule amendment, made a limited exception to the use of allowables. That exception was to allow the use of measured data for permitted facilities if certain additional requirements were met. These restrictions were intended to provide an incentive for companies to reduce unnecessarily high allowable levels. Comments received under later rulemaking indicated opposition to the use of estimated emissions as the basis for fee payments. The current rule language strikes a balance between these two opposing viewpoints. The commenters also stated that the requirement for measured data provides a disincentive to operate below allowable levels. The commission has not seen a general trend toward companies operating near allowable levels because of these requirements. Quite the opposite, emissions have been steadily declining over the years. TMOGA and Exxon requested that the commission provide an analysis of the revenue generated at the current emission fee rate of $26 per ton. They stated that a previous commission analysis indicates that the current fee produces more revenue than necessary to provide adequate funding to implement Title V, and that the commission should consider a rate reduction if revenues are creating a significant fund balance. Exxon also stated that any balance in this fund should not be used to partially pay settlement expenses charged against the state in the lawsuit involving Tejas Testing and MARTA Technologies and the termination of the vehicle inspection/maintenance program by the Texas Legislature in 1995. Such an action may place the commission in violation of the stated purpose of emission fees to implement the Title V federal operating permit program. Exxon also stated that it would be not be fair to use the money paid by stationary sources to fund a permitting program that applies to these stationary sources for an unrelated purpose. The commission anticipates the emissions fee rate of $26 per ton to generate approximately $37 million in fiscal year (FY) 1998. This is about $3 million less than the monies collected in FY 1997 due to emissions reductions. This fee, when combined with other sources of Clean Air Account revenue, is not expected to result in a significant excess in funds and should be sufficient to cover the estimated costs of the Title V permitting program and associated activities in the field offices and other agency divisions. A detailed breakdown of expenditures on the Title V program is not available. The commission has not, and will not, expend funds collected under this rule in violation of the Texas Clean Air Act or the Federal Clean Air Act. Comments on the settlement of the lawsuits involving Tejas Testing and MARTA Technologies are outside the scope of this proposal. Phillips stated that the term "account" is used for regulatory applicability in 30 TAC Chapter 115. In sec.115.217(a)(2), control requirements are based on throughput at an account. This proposal would change the status of a facility based on a Title V status rather than an air quality status. It is unfair to have different definitions for Title V and non-Title V sources. The commission does not intend for this rulemaking to eliminate existing exemptions. This rule will be interpreted and enforced so that all valid existing exemptions remain intact. Phillips commented that the proposal will not accomplish its stated objective to produce one reference number for sources at a site. Because air quality accounts are integral with New Source Review (NSR) permits and emission inventories (EI) which are based on ownership and management and not just control, a number of sites will have NSR permits and EIs assigned to one entity and Title V permits to another. This will cause considerable repermitting effort and could affect reporting and recordkeeping. There would be an additional burden for sources with contractual agreements for facilities affected by this proposal, for example, when a number of points are required to be transferred from one account to another. To provide a single identifier for a site, Phillips recommended using latitude and longitude coordinates or a Title V permit number. Amoco commented that the proposal is cumbersome and will place additional burdens on industries as they make the transition into the Title V program. The commission's existing data management structure was designed around the term "account." All air quality related activities at a source were managed under this designation. The term "account" is synonymous with EPA's plant identification in the aerometric information and retrieval system (AIRS). Clearly, the intent of the EPA in implementing Title V is to address all the federally enforceable air requirements at a major air pollution site. Thus, in practice, the EPA has required that the commission redefine its designation of "account" into broader terms. This means that to address the site comprehensively in all data management endeavors both internally and for EPA purposes (permitting, compliance, and emissions inventory), the commission must begin to treat the newly defined site as a single entity. The commenter raised concerns over the interaction of NSR authorizations and EI with changing account numbers. The commission will be required to transfer all information (NSR, EI, and compliance) from the multiple accounts into a single account. The decision of which account number to retain and how to address those few emission units that are not uniquely named at those combined accounts will be made in consultation with the company. Once the decisions have been made, the transfer will be made by emissions inventory staff, and should not require further action by the company. The assignment of NSR authorizations to any given party should be readily resolved during the process that will lead the company to select the responsible official for the site. This decision would necessarily require that the parties involved agree on who is in control, or who is responsible for the site as a whole. Phillips questioned how the commission will handle flexible permits if sources within it transfer to a different account number. Phillips is concerned about potential competitive disadvantages if there are two different definitions for account based on Title V status. Like other issues related to the combination of accounts, transfer of flexible permits will be handled in consultation with the company. This adoption provides an option for sources not subject to Chapter 122, concerning federal operating permits, to combine their operations under one account if management chooses. If multiple accounts at a site are operating as one site, it would appear that this is because the entities involved decided that there was a significant advantage to the arrangement. This amendment does not affect the amount of emissions fees paid by a source. Phillips stated that the proposal is not clear on the definition of account for sources not permitted under Title V and appears to give greater flexibility to some sources based on Title V status. This does not seem equitable unless there is a need for a different fee structure. Phillips requested that fees reference the type of facility in the tables rather than change a definition that affects other rules. The definition makes a clear distinction between existing minor source accounts that are not part of a major air pollution site and facilities that must be aggregated under EPA Title V requirements. The commission has been unable to identify how being classified a major source has any more flexibility associated with it than being a minor source of air pollution. The commission has no plans for a different fee structure from the existing inspection fee program for non-Title V sources. This fee structure does reference type of facility as suggested. Phillips does not see the conflict in the definitions of account and site as they are used in different programs for different purposes. The fact that a site can have several accounts does not seem to be a problem since they are for different purposes. The commission should not make substantive changes to the rules to provide information access. Phillips recommended addressing the problem in databases rather than making substantive rule changes simply to provide information access. Prior to the advent of Title V, the agency has had the key identifier "account" at the highest level of aggregation of information for all air pollution sources. This identifier has and is being used routinely by all areas of the commission affected by air issues such as permitting, enforcement, and emissions inventory. The term "account" is related directly to the EPA plant identification, the highest level of aggregation in the EPA AIRS database. The agency routinely forwards required air information such as permitting, emissions inventory, and enforcement to the EPA. It is within the responsibilities of the commission to seek better ways to simplify information exchange among interested parties. This adoption should simplify information exchange among all interested parties involved with or affected by the air program. Exxon stated that there is no reason to change the definition of account for sources not subject to the Title V program. The proposed definition makes a substantive change by referring to sources "under common ownership or control" rather than "common ownership, management, and control." The commenter suggested language that would retain the latter phrase, and also recommended adding the sentence "Each account will be assigned an individual account number" to the end of the definition. Exxon also recommended the retention of the previous format using subparagraphs, since that format was less likely to be misinterpreted. In sec.101.27, Exxon recommended that the commission use "Each account will be assessed a separate emissions fee" rather than the proposed "Accounts carried on the records of this agency under separate numbers, will be charged a separate fee for each account." The definition of account for sources not subject to Title V is changing from the definition that was in the general rule definitions (ownership and control), but is not changing from the definition used in the inspection and emissions fee programs (ownership or control). This was done for consistency of application of fee requirements. The use of the fee definition preserves existing account configurations that were requested by the regulated entities. The commission has chosen to omit the term "management," as it is implicit in the term "control." The suggested addition of the sentence "Each account will be assigned an individual account number" does not add any clarification. The proposed replacement sentence "Each account will be assessed a separate emissions fee" more accurately reflects the situation. Also, the commission considered a definition for account arranged in subparagraphs and believes that the adopted format more clearly expresses the intent of the amendment. Exxon commented that the use of the terms "commission" and "Texas Natural Resource Conservation Commission" is ambiguous in sec.101.24 and sec.101.27, as in one sentence the longer term is deleted and replaced by the shorter. In a following sentence, the longer term is added back to the rule text. Exxon is correct. The use of the terms is inconsistent and the staff has made the necessary corrections. Additionally, the abbreviation "TNRCC" was inadvertently placed in parenthesis in the published proposal for both sections when it should have been placed in brackets for deletion. The term, which is no longer officially defined, has been deleted in the adoption. The commission also identified an incorrect reference to the Federal Clean Air Act Amendments, Title III in sec.101.27(a)(4) and (5) and made the necessary corrections. The commission has also changed articles in sec.101.24 and sec.101.27 to clarify meaning and applicability of the sections. STATUTORY AUTHORITY. The amendments are adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.011, 382.012, 382.016, and 382.017 and Texas Water Code, sec.5.102 and sec.5.103. These sections provide the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA and rules necessary to carry out its powers and duties, and require the commission to administer the act and develop a general comprehensive plan for proper control of the state's air. They also provide the authority to control air contaminants by all practical and economically feasible methods. The commission has the authority to assess fees for emissions of air pollutants and require reasonable data management methods of owners and operators of sources of air pollution. sec.101.1.Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Account-For those sources required to be permitted under Chapter 122 of this title (relating to Federal Operating Permits), all sources which are aggregated as a site. For all other sources, any combination of sources under common ownership or control and located on one or more contiguous properties, or properties contiguous except for intervening roads, railroads, rights-of-way, waterways, or similar divisions. sec.101.24.Inspection Fees. (a) Applicability. The owner or operator of each account to which this rule applies shall remit to the commission an inspection fee each fiscal year. A fiscal year is defined as the period from September 1 through August 31. A fiscal year, having the same number as the next calendar year, begins on the September 1 prior to that calendar year. An account subject to both an inspection fee and an emissions fee, under sec.101.27 of this title (relating to Emissions Fees), is required to pay only the greater of the two fees. Each account will be assessed a separate inspection fee. The inspection fee shall apply to each account which contains one or more of the types of plants, facilities, and/or processes described in subsection (d) of this section, including permitted and non-permitted facilities. References for the industrial categories used are provided in the Standard Industrial Classification (SIC) Manual (Executive Office of the President, Office of Management and Budget, 1987). If more than one SIC category can apply to an account, the fee assessed shall be the highest fee listed for the applicable classifications in the fee schedule. Provisions of this section apply to all accounts, including accounts which have not been assigned specific commission account numbers. The owner or operator of an account subject to an inspection fee requirement is responsible for contacting the appropriate commission regional office to obtain an account number. The commission will not initiate the combination or separation of accounts solely for fee assessment purposes. If an account is operated at any time during the fiscal year for which the fee is assessed, a full inspection fee is due. If the commission is notified in writing that the plant is not and will not be in operation during that fiscal year, a fee will not be due. (b)-(f) (No change.) sec.101.27.Emissions Fees. (a) Applicability. The owner or operator of each account to which this rule applies shall remit to the commission an emissions fee each fiscal year. A fiscal year is defined as the period from September 1 through August 31. A fiscal year, having the same number as the next calendar year, begins on the September 1 prior to that calendar year. An account subject to both an emissions fee and an inspection fee, under sec.101.24 of this title (relating to Inspection Fees), is required to pay only the greater of the two fees. Each account will be assessed a separate emissions fee. Provisions of this section apply to all accounts, including accounts which have not been assigned specific commission account numbers. The owner or operator of an account subject to an emissions fee requirement is responsible for contacting the appropriate commission regional office to obtain an account number. The commission will not initiate the combination or separation of accounts solely for fee assessment purposes. If an account is operated at any time during the fiscal year for which the fee is assessed, a full emissions fee is due. If the commission is notified in writing that the plant is not and will not be in operation during that fiscal year, a fee will not be due. All regulated air pollutants, as defined in subsection (c)(3) of this section, including, but not limited to, those emissions from point and fugitive sources during normal operations with the exception of (for applicability purposes only) hydrogen, oxygen, carbon dioxide, water, nitrogen, methane, and ethane, are used to determine applicability of this section. In accordance with rules proposed by the United States Environmental Protection Agency (EPA) at 40 Code of Federal Regulations (CFR) 70, concerning the use of fugitive emissions in major source determinations, fugitive emissions shall be considered toward applicability of this section only for those source categories listed at 40 CFR 51.166(b)(1)(iii). For purposes of this section, an affected account shall have met one or more of the following conditions: (1) (No change.) (2) the account has the potential to emit, at maximum operational or design capacity, 50 tons per year or more of volatile organic compounds (VOC) or nitrogen oxides (NOX) and is located in any serious ozone nonattainment area listed in sec.101.1 of this title (relating to Definitions); (3) the account has the potential to emit, at maximum operational or design capacity, 25 tons per year or more of VOC or NOx and is located in any severe ozone nonattainment area listed in sec.101.1 of this title; (4) the account emits ten tons per year or more of a hazardous air pollutant, as defined in the FCAA, sec.112; (5) the account emits an aggregate of 25 tons per year or more of hazardous air pollutants, as defined in the FCAA, sec.112; (6)-(9) (No change.) (b) (No change.) (c) Basis for fees. (1) The emissions fee shall be based on allowable levels and/or actual emissions at the account during the last full calendar year preceding the beginning of the fiscal year for which the fee is assessed. For purposes of this section, the term "allowable levels" are those limits as specified in an enforceable document such as a permit or Commission Order which are in effect on the date the fee is due. The fee applies to the tonnage of regulated pollutants at the account, including those emissions from point and fugitive sources during normal operations. Although certain fugitive emissions are excluded for applicability determination purposes under subsection (a) of this section, all fugitive emissions must be considered for fee calculations after applicability of the fee has been established. A maximum of 4,000 tons of each regulated pollutant will be used for fee calculations. The fee for each fiscal year is set at the following rates. Figure: 30 TAC sec.101.27(c)(1) (2) (No change.) (3) For purposes of this section, the term "regulated pollutant" shall include any volatile organic compound, any pollutant subject to the FCAA, sec.111, any pollutant listed as a hazardous air pollutant under the FCAA, sec.112, each pollutant for which a national primary ambient air quality standard has been promulgated (including carbon monoxide), and any other air pollutant subject to requirements under commission rules, regulations, permits, orders of the commission, or court orders. The term "normal operations" shall mean all operations other than those documented under sec.101.6 of this title (relating to Upset Reporting and Recordkeeping Requirements) or sec.101.7 of this title (relating to Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements). (d)-(f) (No change.) 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 October 2, 1997. TRD-9713104 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 22, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 239-1966 CHAPTER 334.Underground and Aboveground Storage Tanks The Texas Natural Resource Conservation Commission (commission) adopts amendments to Subchapter H, sec.sec.334.309, 334.310, and 334.322, concerning the Reimbursement Program; the repeal of Subchapter M, sec.334.560, concerning Reimbursable Cost Guidelines for the Petroleum Storage Tank Reimbursement Program; and new Subchapter M, sec.334.560, concerning Reimbursable Cost Guidelines for the Petroleum Storage Tank Reimbursement Program. New sec.334.560 is adopted with changes to the proposed text as published in the May 27, 1997, issue of the Texas Register (22 TexReg 4559). Sections 334.309, 334.310, and 334.322 and the repeal of sec.334.560 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES. The primary purpose of the adopted amendments, repeal, and new section is to update the Reimbursable Cost Guidelines to reflect current market costs for corrective action activities and make minor amendments to clarify and streamline the rules regarding the reimbursement of corrective action activities in the petroleum storage tank program. The adopted amendments, repeal, and new section should assure fair reimbursement of costs for corrective action activities due to leaking storage tanks. The commission adopts sec.334.560, concerning Reimbursable Cost Guidelines for the Petroleum Storage Tank Reimbursement Program, with the following changes to the guideline. The Table of Contents page numbers are readjusted after incorporation of the following changes. Table of Contents, Section 1: Activities: The title of Activity 02 in the Table of Contents is changed from "PHASE-SEPARATED HYDROCARBON (PSH) REMOVAL" to "PHASE-SEPARATED HYDROCARBON (PSH) RECOVERY" to match the title for this activity in the guideline. The title of Activity 03 in the Table of Contents is changed from "EXCAVATION/SOILS MANAGEMENT" to "EXCAVATION/WASTE MANAGEMENT" to match the title for this activity in the guideline. The title of Activity 08 in the Table of Contents is changed from "CAP PREPARATION" to "CORRECTIVE ACTION PLAN (CAP) PREPARATION" to match the title for this activity in the guideline. Table of Contents, Section 2: Appendices: The title of APPENDIX A, PART 2 in the Table of Contents is changed from "LABORATORY ANALYSES" to "LABORATORY ANALYSIS COSTS" to match the title for this part in the guideline. The title of APPENDIX A, PART 3 in the Table of Contents is changed from "DRILLING AND WELL INSTALLATION" to "DRILLING, WELL INSTALLATION, AND DIRECT PUSH TECHNOLOGY COSTS" to match the title of this part in the guideline. The title of APPENDIX A, PART 4 in the Table of Contents is changed from "TRAVEL" to "TRAVEL COSTS" to match the title of this part in the guideline. The title of APPENDIX A, PART 5 in the Table of Contents is changed from "EQUIPMENT AND SUPPLIES" to "EQUIPMENT AND SUPPLY COSTS" to match the title of this part in the guideline. The title of APPENDIX A, PART 6 in the Table of Contents is changed from "EXCAVATION/BACKFILLING/ RESURFACING" to "EXCAVATION, BACKFILLING, AND RESURFACING COSTS" to match the title of this part in the guideline. The title of APPENDIX A, PART 7 in the Table of Contents is changed from "SOIL AND WASTEWATER MANAGEMENT" to "SOILS AND WASTEWATER MANAGEMENT COSTS" to match the title for this part in the guideline. Activity 00: Tank Removal: The last sentence in the second paragraph is changed from "This activity is covered in Activity 03: Excavation/Soils Management." to "This activity is covered in Activity 03: Excavation/Waste Management." to reflect the appropriate title. Additionally, the citation in Note 2 "sec.334.308 (b) and (c)14" is changed to "sec.334.308 (b) and (c)(14)" to add the missing parentheses around "14." Activity 01: Initial Abatement: In the third paragraph, last sentence, the last words "Reimbursable Costs Guidelines" are changed to "Reimbursable Cost Guidelines" to remove the "s" from "Costs." Activity 02: PSH Recovery: The title is changed from "PSH Recovery" to "Phase- Separated Hydrocarbon (PSH) Recovery" to spell out the acronym "PSH." In the first paragraph, second line, the reference "See Note" is changed to "See Note below" for greater clarity. In the second paragraph, last line, "Remedial" is changed to "Remediation" to match the Activity 09 title. Activity 02, Part A: Section 3: In response to a commenter, the first item "Technician I (T1)" is changed from "Measure PSH, Remove PSH-< 100' deep" to "Measure PSH, Remove PSH-< 75' deep"; and on the second item "Technician I (T1)," "Measure PSH, Remove PSH-> 100' deep" is changed to "Measure PSH, Remove PSH-76 to 110' deep"; and just below this, "Technician I (T1)" and "Measure PSH, Remove PSH->110' deep, $80.00/well" is added. Just below this area, opposite "Total, Section 3," in the far right column, "Subtotal X Visits" is deleted; its presence was a typographical error. Activity 02, Part B: In response to a commenter, the unit cost for "Drums" is raised from $40.00/drum to $45.00/drum. Also, the cost for "Small Items" is changed from "$20.00/Site Day" to "$20.00/Site/Day" in response to a commenter, to correct a typographical error, and for consistency with other entries. Activity 02, Part D: The rate for "Equipment Truck" is changed from "$140.00//Day" to "$140.00/Day" to delete the extra slash. Activity 03: Excavation/Waste Management, Part A, Section 1: The total is changed from "$790.00" to "$955.00" to correct an addition error. Activity 03, in Part C: In response to a commenter, a line item is added for "Subchapter H Discharge or Alternate Disposal Method." The cost for this item is variable and should be included within the work plan and cost proposal. Activity 03, in Part D: Analytical Costs: In response to a commenter, the cost for "BTEX- Soil" is changed from $62.00/unit to $62.50/unit; the cost for "BTEX (Rush)- Soil" is changed from $93.00/unit to $93.75/unit; the cost for "PAH (8100)-Soil" is changed from $145.00/unit to $148.00/unit; the cost for "PAH(8270)-Soil" will be changed from $225.00/unit to $222.00/unit; the cost for "Total Lead-Soil" is changed from $25.00/unit to $31.00/unit; the cost for "BTEX-Water" is changed from $62.00/unit to $62.50/unit; the cost for "BTEX (Rush)-Water" is changed from $93.00/unit to $93.75/unit; the cost for "Total Lead-Water" is changed from $25.00/unit to $31.00/unit; the cost for "Total Lead (Rush)-Soil" is changed from $35.00/unit to $46.50/unit; the cost for "TOX-Soil" is changed from $90.00/unit to $98.00/unit; and the cost for "Total Lead (Rush)-Water" is changed from $35.00/unit to $46.50/unit to agree with the costs for the same tests as shown in Part 2: Laboratory Analysis Costs. Activity 04: Site Assessment, Part A: In Section 1, in response to a commenter, the cost associated with the item "Water Well/Other Facility Search" is increased from $250.00 to $300.00. In Section 2, in response to a commenter, the item "RA Update" cost is increased from $310.00 to $485.00. Activity 04, in Part C: In response to a commenter, a line item for "Subchapter H Discharge or Alternate Disposal Method" is added. The cost for this activity is variable and should be included within the work plan and cost proposal. Activity 04, in Part D: In response to a commenter, the cost for "Total Lead- Soil" is changed from $25.00/unit to $31.00/unit; the cost for "PAH(8100)-Soil" is changed from $145.00/unit to $148.00/unit; the cost for "PAH(8270)-Soil" is changed from $225.00/unit to $222.00/unit; the cost for "VOC-Soil" is changed from $220.00/unit to $295.00/unit; and the cost for "VOC-Water" is changed from $220.00/unit to $295.00/unit to agree with the costs for the same tests on page 42, Part 2: Laboratory Analysis Costs. Activity 04, in Part E: In response to a commenter, the cost for "Drums" is raised from $40.00/drum to $45.00/drum. Activity 05: Risk Assessment: In the first paragraph, line 5, a reference to "Activity 4" is changed to "Activity 04" to correct a typographical error. Activity 06: Corrective Action Plan (CAP) Feasibility Testing: In the first paragraph, last line, a reference to "Activity 8" is changed to "Activity 08" and "(CAP)" is added to the title to correct typographical errors. Activity 06, in Part A, Sections 1, 2, 3 and 4: In response to a commenter, the rate for a "Draftsperson II (D2)" is increased from $45.00/hour to $50.00/hour to agree with Part 1: Professional Personnel/Labor Rates. Activity 06, Part B: The first appearance of line item "Carbon Canister" is deleted because it is a duplicate entry. On the second entry of the line item "Carbon Canister," in response to a commenter, the cost is raised from $500.00 to $750.00 to include installation time, recycling, and/or disposal. Additionally, the cost for "Small Items" is changed from "$20.00/Site Day" to "$20.00/Site/Day" in response to a commenter, to correct a typographical error, and for consistency. Activity 06, in Part C: In response to a commenter, a line item "Subchapter H Discharge or Alternate Disposal Method" is added. The cost for this activity is variable and should be included within the work plan and cost proposal. Activity 06, in Part D: In response to a commenter, the line item for "BTEX (Water, Air)" at $62.50/unit is separated into two line items, "BTEX-Water" and "BTEX-Air" each at $62.50/unit. Activity 07: Groundwater Testing and Monitoring: The title of this section is changed to "Activity 07: Groundwater Monitoring" to agree with the title listed in the Table of Contents. In the first paragraph, last line, in the reference to "Activity 10: Operation, Monitoring, and Performance," the word "and" is changed to "&" to agree with the actual activity title. Activity 07, Part B: The cost for "Small Items" is changed from "$20.00/Site Day" to "$20.00/Site/Day" in response to a commenter, to correct a typographical error, and for consistency. Additionally, in response to a commenter, the cost for drums is increased from $40.00/drum to $45.00/drum. Activity 08: Corrective Action Plan (CAP) Preparation: In response to a commenter, in the "Corrective Action Plan-No Remediation System" section, additional time and cost is allowed for the development of an Operation, Monitoring, & Performance Plan (OM&P) part of the CAP. Line items are added to this section as follows: "Project Manager-OM&P Plan," 2 hours at $80.00/hour, "Staff Engineer/Geologist-OM&P Plan," 4 hours at $70.00/hour, and "Word Processor-OM&P Plan," 2 hours at $35.00/hour. This made the new total for the "Corrective Action Plan-No Remediation" section change from $640.00 to $1,150.00. Also, at the end of Activity 08 in note 2, the semicolon after "i.e." was changed to a comma to correct the punctuation. Activity 09: Remediation System Installation: In response to a commenter, the number of oversight hours for a professional/licensed engineer is increased, and the project manager hours are shifted to an associate engineer for greater engineer oversight. Under cost guidelines Activity 08: Corrective Action Plan (CAP) Preparation, the primary professional engineer responsible for development of the "Corrective Action Plan-With Remediation System" was an Associate Engineer. Therefore, the individual with the primary on-site remediation system installation oversight should be an Associate Engineer. Activity 09, Part A1, Section 1: The item "Project Manager (PM)" at $80.00/hour is replaced with "Associate Engineer" at $85.00/hour; the number of hours for this Associate Engineer is also increased from 4 hours to 7 hours. Activity 09, Part A1, Section 2: The item "Project Manager (PM)" at $80.00/hour is replaced with "Associate Engineer" at $85.00; this results in a raise in the Subtotal for Section 2 from $835.00 to $840.00. Activity 09, in Part A2, Section 1: The two "Project Manager (PM)," items at $80.00/hour are replaced with "Associate Engineer" at $85.00/hour; and the number of hours for Field Oversight is increased from 4 hours to 9 hours. Also in Part A2, Section 1, on the item "FAR-System Installation," the total cost is increased from $2,270.00 to $2,300.00 to agree with the new total cost for "FAR- Remediation System Installation (Except PSH Recovery System)" in Part 8, Report Generation Costs. Activity 09, in Part A2, Section 2: The two "Project Manager (PM)" items at $80.00/hour are replaced with "Associate Engineer" at $85.00/hour; as a result, the total for Section 2 is increased from $1,925.00 to $1,945.00. Activity 09, in Part A2, Section 3: The item "Project Manager (PM)" at $80.00/hour is replaced with "Associate Engineer" at $85.00/hour; the total for Section 3 is then also increased from $1,235.00 to $1,245.00. Activity 09, in Part A2, Section 4: The item "Project Manager (PM)" at $80.00/hour is replaced with "Associate Engineer" at $85.00/hour; the total for Section 4 is then also increased from $835.00 to $840.00. Activity 09, in Part A3, Section 1: The two "Project Manager (PM)" items at $80.00/hour are replaced with "Associate Engineer" at $85.00/hour. The "Field Oversight" activity hours for the second Associate Engineer item are then increased from 2 hours to 9 hours. The allowed cost for the item "FAR-System Installation" is increased from $2,270.00 to $2,300.00 to agree with the new total cost for "FAR-Remediation System Installation (Except PSH Recovery System)" in Part 8, Report Generation Costs. Activity 09, in Part A3, Section 2: The item "Project Manager (PM)" at $80.00/hour is replaced with "Associate Engineer" at $85.00/hour; the total for Section 2 is then increased from $1,235.00 to $1,245.00. Activity 09, in Part A3, Section 3: The item "Project Manager (PM)" at $80.00/hour is replaced with the item "Associate Engineer" at $85.00/hour; the total for Section 2 is then increased from $835.00 to $840.00. Activity 09, in Part A4, Section 1: The two "Project Manager (PM)" items at $80.00/hour are replaced in two places with the item "Associate Engineer" at $85.00/hour. The number of hours for Field Oversight activity for the second Associate Engineer item is then increased from 6 hours to 13 hours. The allowed cost for item "FAR-System Installation" is increased from $2,270.00 to $2,300.00 to agree with the new total cost for "FAR-System Installation (Except PSH Recovery System)" in Part 8, Report Generation Costs. Activity 09, in Part A4, Section 2: The item "Project Manager (PM)" at $80.00/hour is replaced with Associate Engineer at $85.00/hour; the total for Section 2 is then increased from $1,235.00 to $1,245.00. Activity 09, in Section 3: The item "Project Manager (PM)" at $80.00/hour is also replaced with Associate Engineer at $85.00/hour; the total for Section 2 is then increased from $835.00 to $840.00. Activity 09, in Part C: The cost for the item "Small Items" is changed from "$20.00/Site Day" to "$20.00/Site/Day" in response to a commenter, to correct a typographical error, and for consistency. Activity 09, Part D: In response to a commenter, an item "Subchapter H Discharge or Alternate Disposal Method" is added. The cost for this activity is variable and should be included within the work plan and cost proposal. Activity 09, Part E: In response to a commenter, the item "BTEX (Water, Air)" at $62.50/unit will be separated into two lines: "BTEX-Water" and "BTEX-Air" each at $62.50/unit. At the end of Activity 09 in Notes, a period was added at the end of note 5 to complete the punctuation. Activity 10: Operation, Monitoring, & Performance, Part A, Section 1: In response to a commenter, the "OM&P Report" item total cost is changed from $1,215.00 to $1,295.00 to correct a typographical error. Activity 10, Part A, Section 3: In response to a commenter, the item "Staff Engineer (SF)" to perform activity "Field Prep, Data Formatting, each additional 3 system wells" is added with 0.5 hours per site visit. Activity 10, Part B: In response to a commenter, the cost for item "Carbon Canisters" is changed from $500.00 to $750.00 to include installation time, recycling and/or disposal. Activity 10, Part D: In response to a commenter, an item "Subchapter H Discharge or Alternate Disposal Method" is added to this part. The cost for this activity is variable and should be included within the work plan and cost proposal. Activity 11: Site Closure, Part A, Section 1: The total for Section 1 is changed from $630.00 to $745.00 to correct an addition error. Activity 11, Part C: On item "Small Items," the cost is changed from "$20.00/Site Day" to "$20.00/Site/Day" in response to a commenter, to correct a typographical error, and for consistency. Appendix A, Part 1, Professional Personnel Labor Rates, Personnel Qualifications and Task Descriptions: The acronyms are changed following the title "Senior Engineer/Geologist/ Hydrogeologist II" from "S2" to "P2" and the acronym following the title "Associate Engineer/Geologist/Hydrogeologist I" from "A1" to "P1" to agree with the acronyms used elsewhere within the cost guidelines. Under the title "Senior Engineer/Geologist/Hydrogeologist II," in the first line of narrative, the apostrophe is removed from "8 years'" to correct a typographical error. Under the title "Project Manager (PM)," in the second line, the apostrophe is removed from "3 years'" to correct a typographical error. Appendix A, Part 2: Laboratory Analysis Costs: In the table, method 8021B replaced method 8020 in two places and method 8260B replaced method 8240. At the end of Part 2, an additional note is added to indicate that method 8021B has replaced method 8020, and method 8260B has replaced method 8240. Part 5, Equipment and Supply Costs: In response to a commenter, in about the middle of the first page, the "Carbon Absorbers" purchase cost is increased from $500.00 to $750.00 to include installation time, recycling, and/or disposal. Part 5, Equipment and Supply Costs: In response to a commenter, under "Holding Tanks," the item "55 Gallon Barrel or Drum" cost is increased from $40.00 to $45.00. Part 8, Report Generation Costs: Under Report Form Type "FAR-PSH Recovery System Installation," the personnel type "D1" is changed to a "D2" to correct a typographical error. Part 8, Report Generation Costs: Under "FAR-Remediation System Installation (Except PSH Recovery System)," the total for "Senior Engineer (P2)" is increased from $180.00 to $190.00 to correct a multiplication error. Also, in response to a commenter, personnel type "PM" at $80.00/hour is changed to "P1," referring to an Associate Engineer, at $85.00/hour. The grand total cost for the FAR- Remediation System Installation (Except PSH Recovery System) is then increased from $2,270.00 to $2,300.00. Part 10, Change Orders: In the first paragraph, the "s" has been taken off of the verb "represents" to correct a grammatical error. In the third, fourth, and fifth paragraphs, in the second line, the "s" has been taken off the verb "causes" to correct grammatical errors. TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact assessment for these rules under Texas Government Code, sec.2007.043. The following is a summary of that assessment. The specific purpose of the adopted amendments, repeal, and new section is to update the Reimbursable Cost Guidelines to reflect current market costs for corrective action activities and to make minor additional changes to clarify and streamline the rule language. The rule amendments, repeal, and new section will substantially advance this specific purpose by allowing the commission to provide reasonable reimbursement of leaking petroleum storage tank corrective action costs. Promulgation and enforcement of these rules will not create a burden on private real property which is the subject of the rule amendments because corrective action would be required on these sites and should be reimbursed at actual cost with or without an update of the Reimbursable Cost Guidelines. These amendments repeal, and new section are excepted from the Private Real Property Preservation Act under Texas Government Code, sec.2007.3(b)(4), because the rulemaking is reasonably taken to fulfill an obligation mandated by federal law in 40 Code of Federal Regulations, Part 280, Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks (UST). COASTAL MANAGEMENT PROGRAM. The commission has reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council, and has determined that the rulemaking will not have a direct or significant effect on any Coastal Natural Resource Areas, nor will the rulemaking have a substantive effect on Commission actions subject to the CMP. PUBLIC HEARING AND COMMENTS. No public hearing was held. The comment period closed June 26, 1997. The commission received four comment letters on the proposal. They were from Applied Earth Sciences, Inc. (AES), Compliance Services Group, Inc. (CSG), Daniel B. Stephens & Associates, Inc. (DBSA), and Exxon Company, U.S.A. (Exxon). GENERAL COMMENTS. CSG commented: "Regional differences should not be regarded as 'extraordinary cases' as they have in the past. How are regional differences going to be accommodated in these new guidelines"? The commission agrees with the commenter that some costs do vary across the state. In addition to accounting for regional differences in unit costs, such as drilling costs, the commission did account for regional differences in personnel time by increasing the number of personnel hours allowed for the installation and sampling of boring/monitor wells due to varying depths to groundwater, local geological conditions, and drilling technologies. The commission has made no change in response to these comments. CSG commented regarding Section 1: Activities. The commenter asked how a consultant can be expected to prepare accurate work plans and cost proposals in less than 2 hours. The commenter indicated the it is unrealistic and potentially negligent for a consultant to spend less than 2 hours ($115.00 worth of effort) on a costly proposal that will be used as the technical and funding basis for a corrective action activity. The commission agrees with the commenter that not all work plans and cost proposals can be completed in less than 2 hours ($115.00). For the initial assessment of the site, additional time has been included within the proposed cost guidelines to allowed for preliminary planning, specifically to allow the consultant time to become familiar with the site prior to developing the work plan and cost proposal. Additionally, in the case of the Remedial or CAP, the work plan and cost proposal is for approval to develop the CAP. The CAP itself contains the needed personnel time for the consultant to develop the comprehensive work plan and cost proposal known as the CAP. However, most work plans and cost proposals are for continuing work such as additional assessment activities, risk assessment activities, groundwater monitoring, operation, and maintenance, where the work plan and cost proposal are developed based upon information from the previous activity. The commission has made no change in response to this comment. CSG commented regarding the inclusion of additional costs within the proposed cost guideline associated with familiarizing the commission reviewer with the specifics of the site, as well as costs associated with commission modifications to the work plan and cost proposal. The commission does not agree with the comments. The commission hires appropriately educated staff, and all new and existing staff are trained regarding commission rules, procedures, and policies. The consultant does not need to familiarize the commission reviewer with the specifics of a site. The consultant, however, should submit complete site reports with sufficient detail to justify conclusions, supported by appropriate data. Further inquiries by commission staff are normally an indication of missing or incomplete information. Additionally, if the commission modifies a work plan, the approved cost proposal is adjusted accordingly to support the work necessary to complete the approved scope of work. The commission has made no change in response to these comments. CSG commented about Activity 01: Initial Abatement. The commenter inquired about the reversal of the exception to preapproval for continuous phase-separated product recovery. The commission responds by stating that the original intent for the exception was to allow for the removal of phase-separated product only to continue beyond initial abatement activities without the need for preapproval until a corrective action plan was developed and approved for total site remediation. Any total fluids remediation systems (phase-separated product plus groundwater extraction) required preapproval. However, the commission encountered numerous situations where groundwater extraction and treatment systems have been installed and operated without preapproval, based on a justification that the system is a phase-separated product recovery system. Many of these groundwater extraction and treatment systems have been continued well beyond the point at which they remain practically effective, resulting in unnecessary costs for continued ineffective operation. The commission has made no change in response to this comment. CSG commented regarding Activity 02: PSH Recovery. The commenter stated that if a deep well (greater than 100 feet) contains several feet of phase-separated hydrocarbon (PSH), additional time should be allowed to account for the additional time needed to bail the well. The commission agrees with the commenter that additional time is warranted. The time allowed to do this activity is changed to 1 hour of technician time per well to measure product thickness and remove any accumulated PSH for wells less than 75 feet, 1 1/2 hours per well for a technician on wells between 76 and 110 feet, and 2 hours for a technician on wells greater than 110 feet deep. CSG commented regarding Activity 02: PSH Recovery, Part C. The commenter asked whether surface discharge costs and laboratory costs could be included in this section. The commission does not agree with the commenter. The costs under this section are primarily for manual or passive PSH recovery; therefore, very little groundwater will be recovered for treatment and discharge to surface water. Active PSH recovery systems that may also recover groundwater would be handled under Activity 10: Operation, Monitoring, & Performance. However, based upon this comment, the commission added a line item for these costs in the following activities: Activity 03, Part C; Activity 04, Part C; Activity 06, Part C; Activity 09, Part D; and Activity 10, Part D. AES commented regarding Activity 02: PSH Recovery. The commenter recommended that the reimbursable cost of drums be increased from $40.00 per drum to $45.00 per drum. The commission agreed with the commenter, and drum cost has been increased from $40.00 to $45.00 throughout the guideline. CSG commented regarding Activity 03: Excavation/Waste Management, Part C. The commenter asked whether the reuse of petroleum contaminated soils was reimbursable. The commission responds that the costs associated with the reuse of petroleum contaminated soils can be reimbursed. The costs associated with reuse for backfill and asphalt recycling were included within the proposed cost guideline. The commission made no change in response to this comment. AES commented regarding Activity 03: Excavation/Waste Management, Part D. The commenter indicated that some of the laboratory costs did not agree with the laboratory costs outlined on page 42, Appendix A, Part 2: Laboratory Analysis Cost. The commission agrees with the commenter, and appropriate changes have been made on laboratory costs throughout the guideline to be sure they agree with those on page 42. AES commented regarding Activity 04: Site Assessment, Part A. The commenter suggested that the cost associated with water well and other facility searches be increased from $250.00 to $300.00 and the cost associated with the Risk Assessment (RA) Update be increased from $310.00 to $350.00. The commission agrees with the commenter. The Water Well/Other Facility Search cost has been increased to $300.00. The RA Update cost has been increased to $485.00 (rather than the recommended $350.00) to agree with Appendix A, Part 8, Report Generation Costs. AES commented regarding Activity 04: Site Assessment Part D. The commenter indicated that some of the laboratory costs did not agree with the laboratory costs outlined in Appendix A, Part 2: Laboratory Analysis Cost, page 42. The commission agrees with the commenter, and appropriate changes have been made. AES commented regarding Activity 06: Corrective Action Plan (CAP) Feasibility Testing, Part A. The commenter stated that the cost associated with the Draftsperson II should be $50.00 per hour, not $45.00 per hour. The commission agrees with the commenter, and appropriate changes have been made. AES commented regarding Activity 06: corrective Action Plan (CAP) Feasibility Testing, Part B. The commenter stated that the small item cost should be $20.00/site/day. The commission agrees with the commenter, and the appropriate change has been made. AES commented regarding Activity 07: groundwater Testing and Monitoring, Part B. The commenter stated that the small item cost should be $20.00/site/day. The commission agrees with the commenter, and the appropriate change has been made. AES commented regarding Activity 07: Groundwater Testing and Monitoring, Part D. The commenter stated that the costs associated with TPH/BTEX and TPH/BTEXw/MTBE are not shown in Appendix A, Part 2: Laboratory Analysis Cost. The commission responds that these costs represent sums of the individual test costs found on page 42 in Appendix A, Part 2: Laboratory Analysis Cost. The commission has made no change in response to this comment. Exxon commented regarding Activity 08: Corrective Action Plan (CAP) Preparation. The commenter recommended that the proposed cost for the corrective action plan for natural attenuation should be $3,270.00 (4 hours for a senior engineer, 16 hours for a project manager, 20 hours for a staff engineer, and 6 hours for a word processor) instead of the amount proposed. The commenter stated that the analysis required to justify the use of natural attenuation may be greater rather than less than that required for active remediation systems. Alternative electron acceptors, biogenic products, and indicator parameters will need to be measured and the data analyzed. The fate and transport of contaminants from the site will need to be evaluated to demonstrate that the future extent and concentrations of contaminants will be acceptable. Some computer modeling may be needed. The commission does not fully agree with the commenter. There will be less data to be evaluated under a corrective action plan for natural attenuation than for an active remediation system. The primary information to be evaluated under the natural attenuation corrective action plan will be analytical monitoring data. In addition to the standard contaminants, the data may include dissolved oxygen, alkalinity, pH, phosphates, nitrates, methane, plus some of the parameters listed by the commenter. Conversely, under an active remediation system corrective action plan, the consultant will be reviewing analytical monitoring data, pilot test data to determine recovery well production rates and well radius of influence, and system treatment capabilities. Once this has been accomplished, the consultant will need time to design the active remediation system. Both corrective action plans will use fate and transport evaluations; however, this information will be developed and evaluated under the Risk Assessment Activity (Plan B). Additionally, target concentration levels will be established for the site under the Risk Assessment Activity. The commission did incorporate additional costs into the corrective action plan for natural attenuation for the purposes of developing the Operation, Monitoring, & Performance Plan, which is an integral part of determining the success of remediation by natural attention. DBSA commented regarding Activity 08: Corrective Action Plan (CAP) Preparation. The commenter recommended that the cost associated with the corrective action plan for an engineered remediation be increased by 50% to 100% to provide the level of detail required in the construction documents (plans and specifications) to instruct a third-party contractor how to properly install the system as designed. Alternatively, the installation costs, Activity 09: Remediation System Installation need to be increased by a similar percentage if the CAP costs are to remain as proposed, because more intensive oversight will be required if the construction documents are prepared with little detail. The commission does not agree with the commenter that the cost associated with the corrective action plan for an engineered remediation system needs to be increased. As Activity 08, Note 2 indicates, the costs outlined within the proposed cost guideline are the costs for a baseline engineered remediation system. For more complex engineered remedial system designs, which are designed to remediate contaminant plumes of greater areal extent, additional costs can be added with appropriate justification. In agreement with the commenter, the commission has added additional engineering oversight time under Activity 09: Remediation System Installation. Exxon commented regarding Activity 09: Remediation System Installation. The commenter suggested that the number of hours listed for the senior engineer for Part A1: PSH Recovery System be increased from 1 hour of project oversight to 8 hours; Part A2: Groundwater Pump-and-Treat System be increased from 3 hours to 12 hours; Part A3: SVE System be increased from 3 hours to 12 hours; and Part A4: Dual Extraction System be increased from 3 hours to 16 hours. The commenter indicated that the proposed number of hours were inadequate to meet the requirement for professional engineer supervision of the installation of the remediation system. The commission agrees with the commenter that additional hours should be added to this activity for more on-site supervision of the installation activities by a professional/licensed engineer. Under the proposed cost guidelines Activity 08: Corrective Action Plan (CAP) Preparation, the primary professional engineer responsible for the development of the CAP is the Associate Engineer. Therefore, under proposed Activity 09: Remediation System Installation, the individual with the primary on-site supervision role will be the Associate Engineer. Those hours originally designated under the Project Manager title were changed to Associate Engineer. Additionally, the total combined engineering (Senior Engineer and Associate Engineer) oversight hours were increased as recommended by the commenter to 8 hours for Part A1: PSH Recovery System; 12 hours for Part A2: Groundwater Pump-and-Treat System; 12 hours for Part A3: SVE System; and 16 hours for Part A4: Dual Extraction System. AES commented regarding pages Activity 09: Remediation System Installation. The commenter indicated that drafting time was not included in the proposed cost guidelines for as built drawings. The commission responds that the proposed cost guidelines included a lump sum cost for report preparation and submission activity titled "FAR-System Installation" or Field Activity Report-System Installation for each of the four named systems. The breakdown for the "FAR-System Installation" report can be found in Appendix A, Part 8: Report Generation Costs. The cost associated with "FAR -System Installation" includes drafting time. The commission has made no change in response to this comment. AES commented regarding Activity 09: Remediation System Installation, Part C. The commenter stated that the small item cost should be $20.00/site/day. The commission agrees with the commenter, and a change has been made. AES commented regarding Activity 09: Remediation System Installation, Part E. The commenter requested that the cost for BTEX for water and BTEX for air be separated onto two separate lines. The commission agrees with the commenter, and the change has been made. AES commented on Activity 10: Operation, Monitoring & Performance, Part A, Section 3. The commenter suggested that the time spent by the staff engineer for field preparation and data formatting be increased from 0.5 hours per site visit to 2 hours per site visit to review system operation and efficiency. The commission does not fully agree with the commenter. The purpose of the proposed staff engineer time was for the scheduling of the site visits and updating the table containing the remediation system monitoring data for the event. Operation and monitoring visits may be as frequent as weekly, bi-weekly, or monthly. Additionally, the proposed cost guideline included 1 hour per month for the Project Manager for management, planning, data review, and evaluation of system efficiency. However, additional time has been included within the guideline to account for increased time due to larger and more complex remediation systems. The staff engineer time was increased incrementally; an additional 0.5 hours was allowed for each additional 3 recovery wells. AES commented on Activity 10: Operation, Monitoring & Performance, Part B. The commenter suggested that the cost associated with carbon canisters be increase from $500.00 each to $750.00 each to take into account installation time, recycling, and/or disposal. The commission agrees with the commenter, and the change has been made. AES commented regarding Activity 10: Operation, Monitoring & Performance, Part C. The commenter stated that the cost associated with PAH is incorrect and the costs associated with TPH/BTEX and TPH/BTEXw/MTBE are not shown in Appendix A, Part 2: Laboratory Analysis Cost. The commission does not agree with the commenter on the cost associated with PAH water analysis; the commenter was apparently incorrectly looking at the PAH soil cost. In response to the comment on the costs associated with TPH/BTEX and TPH/BTEXw/MTBE analysis, these costs are the sum of the individual test costs found in Appendix A, Part 2: Laboratory Analysis Cost. AES commented regarding Activity 11: Site Closure, Part B. The commenter suggested that the cost associated with plugging up to 25 foot of well should be $12.50 per foot instead of $12.00 per foot as proposed. The commission does not agree with the commenter. Should any additional site closure costs be required on a specific site, they should be included in Part C as other costs. The commission made no change in response to this comment. Exxon commented regarding Activity 11: Site Closure, Part B. The commenter indicated that the proposed costs for well plugging are appropriate. However, Exxon stated that the costs associated with filling, grading, saw-cutting, pavement repair, and simple cleanup are not covered and an additional cost of $250.00 per well should be included to cover these costs. The commission does not agree with the commenter's suggestion to add a line item of $250.00 per well for filling, grading, saw cutting, pavement repair, and simple cleanup. These additional costs will not be required on all sites or have been included in other costs, such as the costs for filling and repaving over plugged wells that are included in the plugging costs. Should any additional site closure costs be required on a specific site, they should be included in Part C as other costs. The commission made no change in response to this comment. AES commented regarding Activity 11: Site Closure, Part C. The commenter stated that the small item cost should be $20.00/site/day. The commission agrees with the commenter, and the change has been made. SUBCHAPTER H.Interim Reimbursement Program 30 TAC sec.sec.334.309, 334.310, 334.332 STATUTORY AUTHORITY. The amendments are adopted under Texas Water Code, sec.sec.26.341-26.363, which provides the commission with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to reimburse eligible owners and operators from the Petroleum Storage Tank Remediation Fund, and to establish guidelines for determining the amounts that may be paid from the Petroleum Storage Tank Remediation Fund. The amendments are also adopted under Texas Water Code, sec.sec.5.103, 5.105, and 5.235, which authorize the commission to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. 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 October 2, 1997. TRD-9713090 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 22, 1997 Proposal publication date: May 27, 1997 For further information, please call: (512) 239-1966 SUBCHAPTER M.Reimbursable Cost Guidelines for the Petroleum Storage Tank Reimbursement Program 30 TAC sec.334.560 The repeal is adopted under Texas Water Code, sec.sec.26.341-26.363, which provides the commission with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to reimburse eligible owners and operators from the Petroleum Storage Tank Remediation Fund, and to establish guidelines for determining the amounts that may be paid from the Petroleum Storage Tank Remediation Fund. The repeal is also adopted under Texas Water Code, sec.sec.5.103, 5.105, and 5.235, which authorize the commission to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. 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 October 2, 1997. TRD-9713091 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 22, 1997 Proposal publication date: May 27, 1997 For further information, please call: (512) 239-1966 The new section is adopted under Texas Water Code, sec.sec.26.341-26.363, which provides the commission with the authority to establish and administer a program to regulate underground and aboveground storage tanks, to reimburse eligible owners and operators from the Petroleum Storage Tank Remediation Fund, and to establish guidelines for determining the amounts that may be paid from the Petroleum Storage Tank Remediation Fund. The new section is also adopted under Texas Water Code, sec.sec.5.103, 5.105, and 5.235, which authorize the commission to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas. sec.334.560. Reimbursable Cost Guidelines. The commission hereby adopts the following Reimbursable Cost Guidelines for the Petroleum Storage Tank Reimbursement Program which are in effect as of October 22, 1997. Figure: 30 TAC sec.334.560 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 October 2, 1997. TRD-9713092 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 22, 1997 Proposal publication date: May 27, 1997 For further information, please call: (512) 239-1966 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART IX. Commission on Jail Standards CHAPTER 273.Health Services 37 TAC sec.273.6 The Commission on Jail Standards adopts an amendment to sec.273.6, concerning Health Services without changes to the proposed text as published in the August 11, 1997, issue of the Texas Register (22 TexReg 8385). Adoption of the rule will amend the existing standard to affirm that facilities receiving inmates transferred from a facility with a capacity of at least 100 beds or housing out-of-state inmates must have a plan for tuberculosis screening tests. The rule functions to insure proper testing of inmates, employees, and volunteers for tuberculosis in jail facilities. No comments were received regarding the amendment. The amendment is proposed under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. 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 September 30, 1997. TRD-9712954 Jack E. Crump Executive Director Commission on Jail Standards Effective date: October 20, 1997 Proposal publication date: August 22, 1997 For further information, please call: (512) 463-5505 CHAPTER 291.Services and Activities 37 TAC sec.291.2 The Commission on Jail Standards adopts an amendment to sec.291.2, concerning Services and Activities without changes to the proposed text as published in the August 11, 1997, issue of the Texas Register (22 TexReg 8386). Adoption of the rule will amend the existing standard to prevent inmate abuse of county inmate correspondence plans. The rule functions to provide indigent inmates with a reasonable amount, not an unlimited supply, of writing material and allow inmates to carry a negative balance on their commissary account for the material. No comments were received regarding the amendment. The amendment is proposed under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. 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 September 30, 1997. TRD-9712955 Jack E. Crump Executive Director Commission on Jail Standards Effective date: October 20, 1997 Proposal publication date: August 11, 1997 For further information, please call: (512) 463-5505 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 20.Cost Determination Process (Editors Note: In order comply with the House Bill Number 2913, sec.1, the 75th Legislature amended the Government Code, sec.531.021, which designates the Health and Human Services Commission (HHSC) as the agency responsible for administration of the Medicaid program. On September 1, 1997, HHSC also became responsible for adopting reasonable rules and standards to govern the setting of Medicaid rates, fees, and charges. Prior to this date, these functions were performed by three agencies -- the Texas Department of Health (TDH), the Texas Department of Human Services (TDHS), and the Texas Department of Mental Health and Mental Retardation (TDMHMR). Certain sections of Titles 25 and 40 of the Texas Administrative Code that were originally promulgated by TDH, TDHS, and TDMHMR will be redesignated as rules of HHSC in Chapter 355 of Title 1 of the administrative code. The transfer will occur in two phases. The first phase consists of an immediate transfer of rules codified in Title 40 and originally promulgated by TDHS. This transfer permits HHSC to adjust rates paid to certain Medicaid providers whose cost of providing services has been affected by the recent increase in the federal minimum wage. However, several of these rules, as originally promulgated by TDHS, are also essential to the determination of payment rates for non- Medicaid funded services. TDHS is delegated statutory authority to determine these rates. Accordingly, these rules will not be deleted from Title 40. The rules remaining with TDHS that are rendered obsolete will be revised or repealed as appropriate in the future in accordance with 1 TAC sec.91.23(d). A table of the first phase of the rules transfer appears in the Tables and Graphic section of this issue. It identifies the rules that should be transferred in toto from Title 40 to Title 1 and those rules which, for the reason stated previously, should appear in both titles. The rules transfer should be retroactive to September 1, 1997. The Texas Register is administratively transferring or duplicating the following rules listed in the conversion chart published in this issue under the Tables and Graphics Section. The table lists the old rule numbers and the new rule numbers that correspond to them.) Figure: 1 TAC Chapter 355 PART VI. Texas Commission for the Deaf and Hard of Hearing CHAPTER 182.Specialized Telecommunications Devise Assistance Program SUBCHAPTER A.Definitions 40 TAC sec.182.1 The Texas Commission for the Deaf and Hard of Hearing adopts sec.182.1, concerning Purpose without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8607). This rule will clarify the operation of the program. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter A, sec.182.1. 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 October 6, 1997. TRD-9713211 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494 40 TAC sec.182.2 The Texas Commission for the Deaf and Hard of Hearing adopts new sec.182.2, concerning Statutory Authority without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8607). This rule will clarify the operation of the program. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter A, sec.182.2. 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 October 6, 1997. TRD-9713212 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494 40 TAC sec.182.20 The Texas Commission for the Deaf and Hard of Hearing adopts new sec.182.20, concerning Eligibility without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8607). This rule will explain the method used to determine the value of a voucher for the exchange of specialized devices for use with the telephone system. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter B, sec.182.20. 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 October 6, 1997. TRD-9713213 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494 40 TAC sec.182.21 The Texas Commission for the Deaf and Hard of Hearing adopts new sec.182.21, concerning Entities Authorized to Certify Disability without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8608). This rule will explain the method used to determine the value of a voucher for the exchange of specialized devices for use with the telephone system. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter B, sec.182.21. 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 October 6, 1997. TRD-9713214 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494 40 TAC sec.182.22 The Texas Commission for the Deaf and Hard of Hearing adopts a new sec.182.22, concerning Fees without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8608). This rule will explain the fees involved. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter B, sec.182.22. 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 October 6, 1997. TRD-9713215 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494 40 TAC sec.182.23 The Texas Commission for the Deaf and Hard of Hearing adopts new sec.182.23, concerning Vouchers without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8609). This rule will claify the role of the voucher. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter B, sec.182.23. 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 October 6, 1997. TRD-9713216 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494 40 TAC sec.182.24 The Texas Commission for the Deaf and Hard of Hearing adopts new sec.182.24, concerning Determination of Voucher Value without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8609). This rule will explain the method used to determine the value of a voucher for the exchange of specialized devices for use with the telephone system. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter B, sec.182.24. 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 October 6, 1997. TRD-9713217 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494 40 TAC sec.182.25 The Texas Commission for the Deaf and Hard of Hearing adopts new sec.182.25, concerning Redeeming a Voucher without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8610). This rule will explain what is involved when exchanging the voucher for specialized devices and vendor reimbursements. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter B, sec.182.25. 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 October 6, 1997. TRD-9713218 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494 40 TAC sec.182.26 The Texas Commission for the Deaf and Hard of Hearing adopts new sec.182.26, concerning Vendor Listing without changes to the text as published in the August 29, 1997, issue of the Texas Register (22 TexReg 8610). This rule will state that a list of vendors can be obtained from the Commission. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted rule affects Texas Administrative Code, Title 40, Chapter 182, Subchapter B, sec.182.26. 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 October 6, 1997. TRD-9713219 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: October 27, 1997 Proposal publication date: August 15, 1997 For further information, please call: (512) 451-8494