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 III. Office of the Attorney General
CHAPTER 62.Sexual Assault Prevention and Crisis Services
1 TAC sec.sec.62.11-62.19
The Office of the Attorney General adopts new sec.sec.62.11-62.19,
concerning sexual assault prevention and crisis services. Sections 62.11 -
62.13, and 62.15 - 62.18 are adopted with changes to the proposed text as
published in the April 24, 1998, issue of the Texas
Register (23 TexReg 3969). Section 62.14 and sec.62.19 are adopted
without changes and will not be republished. 

The justification for the sections is to implement new state legislation
regarding the adoption of rules necessary to establish minimum standards for
the certification of a sexual assault training program. 

The sections will function by defining a process for certification application. 
No comments were received regarding sec.sec.62.16 and 62.18 - 62.19.
There were two general comments supporting the certification process for
volunteer training programs. Comments on sec.62.11 included a request to
add a definition for an apprentice volunteer for persons under 18 years of
age, permit the repeating of the initial volunteer training for continuing
education credits and allow executive directors the option of determining
the number of hours for self-study and on-the-job training. Comments on 
sec.62.12
proposed additional time for the delivery of volunteer training, suggested
adjusting the hours for topics and permitting the executive directors to 
individually
determine the number of role-play hours incorporated into the training. Comments
also requested more trainer flexibility for the criminal justice section and
the addition of a local issues topic. A comment on sec.62.13 requested more
than one re-test for volunteers. A comment on sec.62.14 requested more 
flexibility
with the qualifications for trainers. Comments on sec.62.15 requested that
additional sources of acceptable continuing education be added and expressed
concern over the exclusion of trainers not recommended by the Office of the
Attorney General. An additional comment requested the number of required 
continuing
education hours be reduced. While there were no comments to sec.62.16, staff
made several changes for clarity. Comments to sec.62.17 opposed the Office
of the Attorney General appointing all members of the certification appeals
committee and supported an increased role for the Texas Association Against
Sexual Assault on the certification appeals committee. An additional comment
requested programs be given more than 10 working days advance notice of the
appeals hearing. While there were no comments to sec.62.18, staff reorganized
and edited this section for clarity. The following association and groups
submitted comments regarding the rules: Texas Association Against Sexual 
Assault,
Family Crisis Center, Family Crisis Center of the Big Bend, Sexual Trauma
and Assault Response Services, Cooke County Friends of the Family, The Bridge,
Panhandle Crisis Center, Montgomery County Women's Center, Advocacy Center
for Crime Victims and Children and Bay Area Turning Point. 

The agency disagrees with the request to establish an apprentice volunteer
definition for persons under 18 years of age within sec.62.11. Volunteers
providing services for sexual assault survivors and working within an agency
addressing sexual assault must be mature and equipped to deal with difficult
and highly sensitive subject matter. The agency also disagrees with the request
to permit the repeating of the initial volunteer training for continuing 
education
credits. The intent of continuing education is to go beyond and in greater
detail with the topics covered during the initial volunteer training. The
agency disagrees with the request to allow executive directors the option
of determining the number of hours for self-study and on-the-job training.
The intent of this section is to standardize volunteer training across the
state. The agency disagrees with the comments on sec.62.12 proposing additional
time for the delivery of volunteer training and permitting the executive 
director
the option of establishing the number of hours for role play. To maintain
the cohesiveness and standardization of volunteer training, the three month
window for training and a standardized agenda must remain fixed. The agency
agreed with the comments on sec.62.12 to modify the hours for Sexual Assault
and Types of Special Populations, Medical, Criminal Justice, and to add a
section on Local Program Specific Issues. The agency agreed with the comment
on sec.62.13 requesting more than one re-test for volunteers. This requirement
was omitted. The agency disagreed with the comments on sec.62.14 requesting
more flexibility with the qualifications for trainers and clarification of
expert in the field. Section 62.14(b) clearly provides for the flexibility
of trainer qualifications by permitting a waiver from sec.62.14(a). The
agency disagreed with the comment on sec.62.15 to add other sources of 
acceptable
continuing education. The section, as written, is broad and the listing of
all potential entities is lengthy. The agency agreed that the exclusion of
trainers not recommended by the Office of the Attorney General is too 
restrictive
and this requirement was omitted. The agency agreed to reduce the number of
continuing education hours required from eight to six. The agency agreed with
the comments on sec.62.17 and modified the process for appointing members
to the certification appeals committee and increased the representation from
the Texas Association Against Sexual Assault on the certification appeals
committee. Notice of the appeals hearing was increased from 10 working days
to 20 calendar days. 

The new rules are adopted under Government Code, sec. 420.004(b),
which provides the Office of the Attorney General with the authority to 
promulgate
these rules. 

No other statute, code, or article is affected by these proposed new sections. 
sec. 62.11. Definitions. 
The following words and terms when used in this chapter shall have
the following meaning unless the content clearly indicates otherwise: 

(1) Executive Director - the chief staff person responsible
for the overall fiscal management, program development, staff supervision,
and board liaison for a non- profit agency. 

(2) Direct Services Coordinator - a person designated
by the Executive Director of the program who is responsible for supervising
volunteers and coordination of their direct services delivery. A new position
does not need to be created for this role. The position can be filled by
someone who has completed: 

(A) Forty hours of training for direct service volunteers
approved by the local program Executive Director; and 

(B) Fifty documented hours of direct client services. 

(3) Direct services - services provided to victims
of sexual assault and their family members and/or friends to assist in their
recovery process. Services include: 

(A) Crisis intervention (face-to-face, hotline); 

(B) Accompaniment; 

(C) Explanation of the criminal justice system; 

(D) Explanation of the medical process; 

(E) Explanation of the Victims' Bill of Rights; 

(F) Explanation of the Victim Impact Statement; and 

(G) Referral services. 

(4) Continuing education - education acquired by
volunteers who have completed the initial 40-hours of required training.
Continuing education topics must enhance the skills of the volunteer or benefit
the healing process of a survivor. Continuing education is above and beyond
the initial 40-hour training. 

(5) Training certification requirements - a formal process
documenting that a training program approved by the Office of the Attorney
General (OAG) meets the training standards established by the OAG. 

(6) On-the-job training - learning completed outside
the traditional classroom environment and occurring within the program's
established service area. On-the-job training is approved by the direct services
coordinator. 

(7) Self-study - learning that occurs outside the traditional
classroom environment that involves reading assigned materials, viewing assigned
videos/films, or listening to assigned audio tapes. Reading 15 pages of standard
letter-size pages, viewing one hour of video/film or listening to one hour
of cassette tape meets one hour of classroom training. 

(8) Direct Services Volunteer Advocate - a volunteer,
at least 18 years of age, who has completed the initial 40-hour certified
training and has been approved by the direct services coordinator to provide
direct services to victims of sexual assault and their family members and/or
friends. 

(9) Hotline Advocate - a volunteer, at least 18 years
of age, who has completed the initial 30- hour certified training and has
been approved by the direct services coordinator to provide hotline services
to victims of sexual assault and their family members and/or friends. 

(10) Values Clarification - a process to assist in the
identification of personal beliefs and behaviors. 

sec.62.12. Program Requirements For Training Certification.
(a) Programs must have written volunteer advocate policies
that include: 

(1) Application process with references and interview process; 
(2) Right of program to remove volunteer before or after
initial training is completed and reasons to remove; 

(3) Volunteer confidentiality statement; 

(4) Ethical standards; 

(5) Continuing education requirements; 

(6) Volunteer grievance procedure; and 

(7) Volunteer job descriptions 

(b) Hotline Volunteer Advocates must receive 30 hours of training
within a three month period. Hours must be delivered in either: 

(1) All classroom hours ("CH"); or 

(2) A combination of hours ("COM"): 

(A) classroom (minimum of 18 hours); and 

(B) self-study and on-the-job training (minimum of 12 hours
to be divided at the discretion of the Executive Director). The content
of training must be taken from the 40 hours listed below and at the discretion
of the Direct Services Coordinator. 

(c) Forty hours of training for Direct Services Volunteer
Advocates must be delivered within a three month period. Forty hours of training
must be delivered in either: 

(1) All classroom hours ("CH"); or 

(2) A combination ("COM") of: 

(A) classroom (minimum of 28 hours); 

(B) self-study (maximum of four hours); and 

(C) on-the-job training hours (maximum of eight hours). 

(d) Training must include the following: 

(1) Orientation. The orientation can be delivered in either
"CH" or "COM". If "CH", a minimum of two hours must be delivered. If COM,
a minimum of one hour must be classroom and a maximum of one hour must be
on-the-job. Self-study hours are not allowed. Orientation to the program
must include: 

(A) Volunteer job description; 

(B) Role of volunteer in the program; 

(C) Structure and history of the program; and 

(D) Historical perspectives of rape. 

(2) Definitions/Facts. Definition/Facts, for not
less than two hours in the classroom, must include the following topics: 
(A) Myths vs facts; 

(B) Socialization issues; 

(C) Confidentiality; 

(D) Values clarification; 

(E) Ethics; and 

(F) Definition of sexual assault. 

(3) Orientation to Sexual Assault Issues. The orientation
to sexual assault issues can be delivered in either "CH" or "COM". If "CH",
a minimum of five hours must be delivered. If "COM", a minimum of three 
classroom
and a maximum of two hours self-study. Orientation to sexual assault issues
must include: 

(A) Survivor Profile - Child, Teen, and Adult; 

(B) Offender Profile - Adult offender/adult victim, adult
offender/child victim, and teen offender/adult or child victim. 

(4) Advocacy. Advocacy instruction may be delivered
in either "CH" or "COM". If "CH", a minimum of four hours must be delivered.
If "COM", a minimum of two classroom hours and a maximum of two self-study
hours. On-the-job hours are not allowed. Advocacy must include: 

(A) Rape Trauma Syndrome; 

(B) Identifying potential suicides; and 

(C) Working with significant others. 

(5) Crisis intervention. Crisis intervention instruction
must be delivered through a minimum of four classroom hours. "COM" hours
are not allowed. Crisis intervention instruction must include: 

(A) Orientation to a crisis; 

(B) Communication skills/active listening skills; 

(C) Telephone counseling skills; 

(D) Problem solving skills; and 

(E) Appropriate and inappropriate responses. 

(6) Types of Sexual Assault and Types of Special
Populations. Types of Sexual Assault and Types of Special Populations 
instruction
may be delivered in either "CH" or "COM". If "CH", a minimum of five hours.
If "COM", a minimum of four classroom hours and a maximum of one self-study
hour. On-the-job hours are not allowed. 

(7) Medical. Medical information may be delivered in
either "CH" or "COM". If "CH", a minimum of three hours. If "COM", a minimum
of two classroom hours and a maximum of one on-the-job hour. Self-study hours
are not allowed. Medical information must include: 

(A) Hospital tour; 

(B) Local program procedures; 

(C) Emergency room protocol; 

(D) Pregnancy; 

(E) Sexually transmitted diseases; 

(F) Date rape drugs; 

(G) Birth control; 

(H) Abortion; 

(I) Basic anatomy; 

(J) Medical exam and collection of forensic evidence; 

(K) Medical resources; and 

(L) Role of a sexual assault nurse examiner (when applicable). 
(8) Criminal Justice. Criminal justice information
may be delivered in either "CH" or "COM". If "CH", a minimum of five hours
divided between the topics listed below. If "COM", a minimum of three classroom
hours, a maximum of one hour for self-study (law enforcement), and a maximum
of one hour for on-the-job. Criminal justice information must include: 

(A) Law enforcement procedures; 

(B) Applicable laws; 

(C) Victims' Bill of Rights; 

(D) Impact statements; 

(E) Overview of the criminal justice system; 

(F) Legal resources and remedies; and 

(G) Overview of Crime Victims' Compensation 

(9) Volunteer Information. Volunteer information
may be delivered in either "CH" or "COM". If "CH", a minimum of three classroom
hours. If "COM", a minimum of two classroom hours and a maximum of one self-
study
hour. Volunteer information must include: 

(A) Secondary victimization; 

(B) Stress and burnout; 

(C) Self protection; 

(D) Survivor's/victim's spirituality; 

(E) Community resources for the volunteer; 

(F) Responsibility and limitations; 

(G) Local community attitudes; and 

(H) Client's needs vs own needs. 

(10) Reporting and Documentation. Reporting and
Documentation information may be delivered in either "CH" or "COM". If "CH",
a minimum of two classroom hours. If "COM", a minimum of one classroom hour
and a maximum of one self-study hour. Reporting and Documentation must include: 
(A) Program forms; 

(B) Program procedures; 

(C) Reporting child/elder abuse; 

(D) Use of program equipment; 

(E) Program specific information for survivors; and 

(F) Resources for sexual assault survivors. 

(11) Role-playing. Role-playing instruction may
be delivered throughout the training for a minimum of four classroom hours.
At least two role-plays must be hot-line situations, with one being a crank
caller. "COM" is not allowed. Role-playing instruction must include at least
one case example of each type of sexual assault listed below, and trainees
must participate in each of the case examples: 

(A) Recent assault; 

(B) Past sexual assault on an adult or child; 

(C) Adult sexually assaulted as a child; 

(D) Crank call; 

(E) Stranger assault; 

(F) Acquaintance assault; and 

(G) Family member/friend of survivor. 

(12) Local Program Specific Issues. Issues, special
problems, and/or topics unique to your local program's established service
area must be delivered through a minimum of one classroom hour. "COM" is
not allowed.

sec.62.13. Test
Requirements.
(a) Direct services volunteer
advocates and hotline advocates must take a final examination whether training
was "CH" or "COM". 

(b) The final examination must
be approved by the local program Director. 

(c) The final examination must
track the designed training. 

(d) Volunteers delivering direct
services and hotline advocates must pass the final examination with a score
of 70. 

(e) Final examinations must
be retained in individual, confidential volunteer files. 

sec.62.15. Continuing Education.
(a) After a program is certified and a volunteer completes
training, the volunteer is required to complete a minimum of six hours of
continuing education per year. 

(b) A copy of the volunteer sign-in sheet for any continuing
education training delivered by a local program must be kept on file with
the local program and retained for a period of three years. 

(c) Accepted continuing education training is training that
enhances the skills of the volunteer or benefits the recovery process of
the survivor and/or is training sponsored by the OAG, Texas Association Against
Sexual Assault (TAASA), National Coalition Against Sexual Assault (NCASA),
institutions of higher education, or a local sexual assault program. (d)
A certificate of attendance that includes dates of attendance, hours accrued,
name of sponsor and name of volunteer/staff must be kept in the volunteer's
file. 

sec.62.16. Program Application Process
For Training Certification.
(a) Applications must be obtained from the Sexual Assault
Prevention and Crisis Services Division of the OAG. Information to be submitted
must include: 

(1) Completed checklist; 

(2) Application cover sheet; 

(3) Direct services supervisor form; 

(4) Direct services supervisor job description; 

(5) Direct services supervisor current resume; 

(6) Training agenda w/topics, trainers, and times; 

(7) Training hours chart; 

(8) Trainer qualification form; 

(9) Copy of test; 

(10) Table of contents from volunteer training manual; 
(11) Volunteer policies; 

(12) Volunteer application form example; 

(13) Job description for hotline volunteers (if applicable); 
(14) Job description for accompaniment volunteers (if
applicable); and 

(15) Job description for peer counseling volunteers (if
applicable). 

(b) Applications will be reviewed by the OAG for compliance
to certification guidelines and rules. Site visits and/or phone interviews
will be utilized to clarify application information. The OAG will notify,
in writing, approval or disapproval of request for certification within 120
calendar days of receipt. A program approved for certification will receive
a written notice of their two-year certification (LAW). 

(c) A program denied certification will receive written instructions
or corrections and/or request for additional information to meet the 
certification
guidelines. The amended certification packet and/or additional information
must be received within 45 calendar days of notice for corrections. A program
may resubmit the corrections one time annually. 

sec.62.17. Appeals Process.
(a) The certification appeals committee is made up of: 

(1) Two SAPCS Division staff members appointed by the Division
Director; 

(2) The TAASA Regional Representative from the applicant's
region; 

(3) Two individuals from local programs who are not TAASA
Board Members. The individuals are appointed by the TAASA Board; and 

(4) Two TAASA representatives appointed by the TAASA
Board. The SAPCS Division's Director of Certification will facilitate the
appeals committee. The committee will meet as needed. 

(b) In order to appeal denial of certification, a program
must, submit in writing, to the SAPCS Division Director: 

(1) Reasons for requesting an appeal; 

(2) Unusual circumstances surrounding the application;
and 

(3) Justification for appeal. 

(c) The certification appeals committee must: 

(1) Notify the program 20 calendar days in advance, in writing,
with return guarantee, denied certification of the certification appeal hearing; 
(2) Review the original application; 

(3) Review the appeal letter; 

(4) Request additional information as needed; 

(5) Hold a certification appeal hearing in Travis County,
Texas; and 

(6) Meet as a group to finalize the decision and inform
the applicant, in writing, within 30 calendar days of the hearing. 

sec.62.18. Revocation and Appeals Process
For Revocation of Certification. 
(a) The OAG must receive written complaints and/or site visit
reports documenting training certification policy violations. The OAG may
revoke training certification for: 

(1) Changes in the training program content; 

(2) Falsification of volunteer training and continuing
education records; 

(3) Falsification of trainer records; 

(4) Use of unqualified trainers; and 

(5) Non-compliance with volunteer policy requirements. 
(b) In order to appeal revocation of certification, a program
must put in writing and submit to the SAPCS Division Director: 

(1) Reasons an appeal is requested; 

(2) Extenuating circumstances; and 

(3) Justification for appeal; 

(c) The revocation appeals committee and the certification
appeals committee are the same committee. The revocation appeals committee
must: 

(1) Notify the program 20 calendar days in advance, in writing,
with return guarantee, denied certification of the certification appeal hearing; 
(2) Review information supporting the allegations against
the program; 

(3) Review the revocation appeal letter; 

(4) Request additional information as needed; 

(5) Hold a certification appeal hearing in Travis County,
Texas; and 

(6) Meet as a group to finalize the decision and inform
the program, in writing, within 30 calendar days of the hearing. 

(d) The revocation appeals committee shall determine appeals
and shall render decisions disposing of appeals by ordering one of the following
in each appeal process: 

(1) Probation, consisting of a minimum period of 30 days or
until all conditions are satisfied; 

(2) Revocation of certification; or 

(3) Granting the appeal. 

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.

Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809777
Sarah Shirley

Assistant Attorney General

Office of the Attorney General

Effective date: July 8, 1998

Proposal publication date: April 24, 1998

For further information, please call: (512) 475-4499

PART V. General Services Commission
CHAPTER 113.Central Purchasing Division
SUBCHAPTER A.Purchasing
1 TAC sec.113.1
The General Services Commission adopts amendments to sec.113.1,
concerning Central Procurement Services. The amendments are adopted without
changes to the proposed text as published in the May 15, 1998, issue of the 
Texas Register (23 TexReg 4721). 

The amendments to Title 1, TAC, Section 113.1 are being adopted to delegate
authority to the Director of Central Procurement to establish and administer
a program for the training, continuing education, and certification of state
agency, political subdivision or other public entity purchasing personnel
in accordance with the Texas Government Code, Title 10, Subtitle D, Section
2155.078. 

The amendments to Title 1, TAC, Section 113.1 will require local governments
who choose to participate in the state agency purchasing personnel training
program to pay a cost recovery fee that presently has not been determined. 
No comments were received regarding adoption of the amendment.

The amendment is adopted under the Texas Government Code, Title
10, Subtitle D, Chapter 2155, Section 2155.078. which provided the General
Services Commission with the authority to promulgate rules consistent with
the Code. C

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809769
Judy Ponder

General Counsel

General Services Commission 

Effective date: July 8, 1998

Proposal publication date: May 15, 1998

For further information, please call: (512) 463-3960

TITLE 7. BANKING AND SECURITIES
PART I. Office of Consumer Credit Commissioner
CHAPTER 1.Consumer Credit Commissioner
SUBCHAPTER A.Regulated Loan Licenses
7 TAC sec.1.102
The Finance Commission of Texas (the commission) adopts an
amendment to sec.1.102, concerning the definitions to be used in Chapter
3A. (Texas Civil Statutes, Article 5069-3A.101 
et seq.). The amendment is adopted with nonsubstantive changes to the
proposed text as published in the May 8, 1998, issue of the 
Texas Register (23 TexReg 4435). 

The adopted amendment adds a new definition for the term "amount financed"
as it is used in Subchapter A. The definition is essential for applying the
calculation methods of Article 5069-3A.002 for determining the maximum amount
of interest authorized to be charged in a consumer loan. 

The agency received one comment from J. Alton Alsup, Brown, Fowler &
Alsup, Houston, Texas indicating no opposition to the adoption of the proposal,
but expressing comments relative to the import of the definition's intended
applicability and to a potential conflict with Regulation Z 12 CFR 226 
et seq. The agency has clarified that this definition
is only used to determine the maximum amount of interest allowable under state
law (art. 5069-3A.002). The definition only applies to Subchapter A of Chapter
3A and does not affect required disclosures under Article 5069-3A.855 that,
otherwise, are consistent with disclosure requirements of Regulation Z. It
is expected that a rule expressly addressing the issues concerning Article
5069-3A.855 will be proposed in the near future. 

The amendment is adopted under Texas Civil Statutes, Article
5069-3A.901, which authorizes the Finance Commission to adopt rules to enforce
new Chapter 3A. 

sec.1.102. Definitions.
Words and terms used in this chapter that are defined in Chapter 3A
of Article 5069 have the same meanings as defined in Chapter 3A. The following
words and terms, when used in this chapter, shall have the following meanings,
unless the context clearly indicates otherwise. 

(1) Acquisition Charge -- An interest charge authorized for
making the cash advance under authority of Article 3A.402 of Article 5069. 
(2) Add-on interest -- A method for calculating precomputed
interest in which the borrower agrees to pay the total of payments, which
includes both interest and principal, as opposed to agreeing to pay the 
principal
plus interest as it accrues at a certain rate. Add-on interest is calculated
at the outset of a loan on the cash advance for the full term, as if the 
principal
did not decline over the course of the loan. For example, a $1,000 loan with
12 monthly installments and an add-on interest amount of 8 dollars per hundred
per annum would have a total charge of interest of $80.00 and monthly payments
of $90.00, yielding an annual percentage rate ("APR") of 14.45%. 

(3) Amount Financed -- the amount of money which is used,
forborne, or detained and upon which interest is charged. The cash advance
plus any other amounts that are financed by the creditor are included. Any
points or other prepaid finance charges, excluding the administrative loan
fee, that are not paid at closing and that are financed as part of the 
transaction
are included in the amount financed. This definition is only applicable for
the purposes of this subchapter for computing earnings, deferments, maximum
charges, and determining refunds of unearned interest. It is not intended
to be analogous with the similar term that is used in the Truth-in-Lending
Act (15 U.S.C. sec. 1601 et seq.). 

(4) Authorized Charge -- Any charge authorized by applicable
Texas law to be included in the credit transaction. 

(5) Authorized Lender -- A person who has obtained a
license from the commissioner, or a bank, savings bank, savings and loan 
association,
or credit union doing business under the laws of this State or the United
States. Banks chartered in other states insured by the Federal Deposit Insurance
Corporation are included in this term. Separate entities that are subsidiaries
or affiliates of licensees or authorized banks, savings banks, savings and
loan associations, or credit unions are not authorized lenders unless they
meet the required elements of the definition of an authorized lender in their
own right. 

(6) Commissioner -- Consumer Credit Commissioner of the
State of Texas. 

(7) Date of Consummation -- The date of closing or execution
of a loan contract. 

(8) Default Charge or Late Charge -- The additional interest
charge for late payment on a loan. 

(9) Deferment Charge -- The payment of an additional
interest charge to defer the payment date of a scheduled payment on a contract. 
(10) Dual Interest Coverage -- Insurance that provides
benefits to both the holder of a loan and the borrower in the event of a loss
of the security covered by the policy. The policy contains a loss payable
clause or endorsement that provides benefits that are payable at the discretion
of the holder. 

(11) Installment Account Handling Charge (IAHC) -- An
interest charge authorized for making a loan under Article 5069-3A.402. 

(12) Installment Loan -- Any type of closed-end loan
with multiple scheduled payments. 

(13) Interest-bearing Loan -- A loan in which the borrower
agrees to pay the principal and interest that accrues at a certain periodic
rate. 

(14) Interpretation Letter -- A formal interpretation
of Article 5069 and the Texas Finance Code made by the Commissioner and approved
by the Finance Commission under Texas Finance Code sec.14.408. 

(15) Licensee -- Any person who has been issued a consumer
loan license pursuant to Chapter 3A of Article 5069. Another name for a 
"consumer
loan license" is "regulated loan license." 

(16) Making a Loan -- The act of making a loan is either
the determination of the credit decision to provide the loan, or the act of
funding the loan or transferring money from the lender to the borrower. A
person whose name appears on the loan documents as the payee of the note is
considered to have "made" the loan. 

(17) Negotiating a Loan -- The process of submitting
and considering offers between a borrower and a lender with the objective
of reaching agreement on the terms of a loan. The act of passing information
between the parties can, by itself, be considered "negotiation" if it was
part of the process of reaching agreement on the terms of a loan. "Negotiation"
involves acts which take place before an agreement to lend or funding of a
loan actually occurs. 

(18) OCCC -- Office of Consumer Credit Commissioner of
the State of Texas. 

(19) Precomputed Loan -- A loan in which the borrower
agrees to pay the total of payments that includes both principal and all 
anticipated
interest through the full term of the loan. If a borrower prepays a precomputed
loan, the borrower is entitled to a rebate of all unearned interest and unearned
charges. 

(20) Prepaid Interest -- Interest paid separately in
cash or by check before or at consummation in a transaction, or withheld from
the proceeds of the credit at any time. Some common terms such as points,
discounts, and origination fees have been used to identify this charge. 

(21) Principal -- The capital sum of the debt including
any interest capitalized and added to the cash advance at the inception of
the loan. This is the amount of money which is used, forborne, or detained
and upon which interest is charged. The principal amount does not include
any interest accrued after the inception of the loan, such as default charges. 
(22) Pro Rata Method -- A formula for determining the
amount of unearned interest or other charges, such as insurance, to be refunded
following prepayment or acceleration by applying the amounts to equal unit
periods. This formula assumes that interest or other charges are earned in
direct proportion to the time that a loan has been outstanding. 

(23) Rebate -- Refund of all or part of a precomputed
charge or interest. 

(24) Regulated Loan -- Loan made under the authority
of Article 5069-3A.101. 

(25) Renewal or Refinance -- A new loan contract that
includes, in whole or in part, the net balance of one or more existing loan
contracts. 

(26) Simple Annual Rate -- The interest rate under the
loan agreement expressed as a percentage rate per year employing the U.S.
Rule method. 

(27) Sum of the Monthly Balances or Sum of the Periodic
Balances Method -- Another formula for determining the amount of unearned
interest or other charges to be refunded. This is a variant of the Rule of
78. It provides that the fraction of the contract interest to be rebated at
any given time in the loan term is the sum of the monthly loan balances for
the months remaining in the originally scheduled loan term divided by the
sum of the monthly balances for all of the months in the scheduled loan term.
For example, for a 6-month loan of $600 which is scheduled to be repaid in
$100 monthly installments, the rebate fraction after two months would be:
400 + 300 + 200 + 100 & divide; 600 + 500 + 400 + 300 + 200 + 100 = 1000/2100
= 10/21 = 0.476 (rounded). For any loan which is paid off in equal installments,
the sum of the balances method and the Rule of 78 will provide identical 
rebates.
If, however, a loan schedule contains unequal payments and especially where
the debt is retired by a final balloon payment, the rebates under the two
formulas will be different. 

(28) Term Loan -- A loan made repayable in a single payment. 
(29) Transacting a Loan -- Any of the significant events
associated with the lending process through funding, including the preparation,
negotiation and execution of loan documents and the transfer of money by the
lender to the borrower or to a third party on the borrower's behalf. This
also includes the act of arranging a loan. 

(30) United States Rule -- Ruling of United States Supreme
Court in Story v. Livingston, 38 U.S. (13
Pet.) 369, 371 (1839) that, in partial payments on a debt, each payment is
applied first to interest and any remainder reduces the principal. Under this
rule, accrued but unpaid interest cannot be added to the principal and interest
cannot be compounded. 

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.

Filed with the Office of the Secretary of State on June
16, 1998.
TRD-9809650
Leslie L. Pettijohn

Commissioner

Office of Consumer Credit Commissioner

Effective date: July 6, 1998

Proposal publication date: May 8, 1998

For further information, please call: (512) 936-7640

TITLE 19. EDUCATION
PART II. Texas Education Agency
CHAPTER 75.Curriculum
SUBCHAPTER AA.Commissioner's Rules Concerning Driver Education
19 TAC sec.sec.75.1001-75.1003, 75.1010
The Texas Education Agency (TEA) adopts amendments to sec.sec.75.1001-75.1003
and sec.75.1010, concerning driver education, without changes to the proposed
text as published in the April 24, 1998, issue of the 
Texas Register (23 TexReg 3978). The sections provide for a program
of organized instruction in driver education and traffic safety for public
school students and establish standards for certifying professional and 
paraprofessional
personnel who conduct the programs in the public schools. Section 75.1010
also establishes the fee for a driver education certificate and requirements
relating to issuing, completing, and maintaining the certificate. 

The amendment to 19 TAC sec.75.1001 establishes the requirement for driver
education teachers in public entities to annually complete a minimum of six
hours of continuing education. These amendments are consistent with requirements
for licensed schools outlined in Senate Bill 964, 74th Texas Legislature,
1995. The amendments to 19 TAC sec.75.1002 and sec.75.1003 increase the
minimum certification requirements for driver education teachers in public
entities from six semester hours to nine semester hours. These amendments
are consistent with the requirements for licensed schools as outlined in Senate
Bill 964, 74th Texas Legislature, 1995. 

The amendment to 19 TAC sec.75.1010 increases the fee for driver education
certificates from $1.00 to $2.00. The fee increase provides for costs associated
with the monitoring requirements of driver education programs and administrative
costs. Senate Bill 964, 74th Texas Legislature, 1995, allows the TEA to charge
up to $4.00 for each certificate. 

No comments were received regarding the adoption of the amendments.

The amendments are adopted under Texas Education Code, sec.29.902,
which authorizes the TEA to develop a program of organized instruction in
driver education and traffic safety for public school students and to establish
standards for certifying professional and paraprofessional personnel who conduct
the programs in public schools; and Senate Bill 964, sec.9A, 74th Texas
Legislature, 1995, which authorizes the TEA to provide by rule for the design
and distribution of the driver education certificate and to charge a fee for
each certificate.

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.
Filed with the Office of the Secretary of State on June
22, 1998.
TRD-9809963
Criss Cloudt

Associate Commissioner Policy Planning and Research

Texas Education Agency

Effective date: January 1, 1999

Proposal publication date: (512) 463-9701

For further information, please call: 

TITLE 22. EXAMINING BOARDS
PART XXIII. Texas Real Estate Commission
CHAPTER 535.Provisions of the Real Estate License Act
SUBCHAPTER R.Licensed Real Estate Inspectors
22 TAC sec.535.223
Texas Real Estate Commission Provisions of The Real Estate
License Act R. Licensed Real Estate Inspectors sec.535.223 The Texas Real
Estate Commission (TREC) adopts an amendment to sec.535.223, concerning
standard inspection report forms, with changes to the proposed text as published
in the April 10, 1998, issue of the Texas Register (23 TexReg 3647). The 
amendment
adopts by reference a standard inspection report form and provides guidelines
for the use of the form as an alternative to other report forms adopted by
the commission.

Comments on the proposed amendment were received from real estate licensees,
licensed inspectors, builders and trade associations. Many comments addressed
the reproduction of the report forms by computer, and the inspector's need
for flexibility in the preparation of the report. In response to those comments,
the commission modified the section to provide specific guidelines for the
use and reproduction of the report forms first adopted by the commission as
well as the new alternative report form, form REI 7A-0. As adopted, the section
permits the inspector a wide range of changes in the appearance of REI 7A-0,
including selection of the type and size of the font, the size of the paper,
the amount of space reserved for comments about the inspected items, and the
ability to add reference numbers for the inspected items. To ensure use of
a standard report form as required by law, however, the section requires 
verbatim reproduction of the text of the form, except
as permitted by the section. Inspectors also are permitted to add footers
and headers to their reports, to renumber the pages as necessary because of
modifying the length space for comments, and to delete from the report optional
systems which are not being inspected. Changes which are permitted to the
original report forms adopted by the commission are limited to deletion of
duplicate headings or sub-parts of an item which is not being inspected and
renumbering the pages because of such deletions. Ultimately, the commission
intends to withdraw its approval of the original forms, leaving only form
REI 7A-0 as the standard inspection report form required for use by inspector
licensees. 

Other comments addressed excepting certain transactions from the section.
The Texas Association of Builders, the Capitol Area Builders Association,
the Home Builder's Association of Southeast Texas and a number of individual
builders urged the commission to provide an exception for inspections performed
for new homes and to provide examples in the section of the kind of quality
control construction inspections which would not require use of the standard
report forms. The commission concurred with the comments and modified the
section as adopted to address specific kinds of inspections which would be
excepted, including phased construction inspections, inspections performed
solely to determine compliance with building codes, warranty or underwriting
requirements, or inspections required by a municipality. The section also
was modified to clarify that it did not apply to inspections performed for
a lender, or for a person other than the prospective buyer or seller. 

The Texas Association of Real Estate Inspectors supported adoption of the
report form as modified by the commission in response to comments. The Texas
Association of Realtors (TAR) generally supported adoption of the section,
but offered comments suggesting modification of report form REI 7A-0 to make
the formatting between sections consistent. The commission concurred with
the comment and made the suggested change. TAR also suggested that the 
commission
consider either eliminating the space on the report for the name and signature
of the sponsoring inspector or providing additional space. The commission
determined that the form as adopted contained appropriate information and
spacing and declined to make the suggested change to the form. In response
to a suggestion from the Texas Real Estate Inspector Committee, the commission
modified the section to permit, rather than require, the inspector to attach
a specified notice to any inspection report required by a relocation company
or a seller's employer. In the final version of the section, however, the
text was revised to clarify that the exception applied to the inspection for
the relocation company or seller's employer if the notice was attached. In
response to other suggestions from the Texas Real Estate Inspector Committee,
the commission also modified report form REI 7A-0 to remove the caption and
logo space on the second page as unnecessary and to change the fonts to those
consistent with other forms adopted by the commission. Technical text on the
first page of the report relating to the inspection standards was replaced
with general explanations of the purpose and scope of the inspection, and
captions and footers were provided to set off information provided by the
inspector on the first page. Items also were rearranged in the report to group
them appropriately. Nonsubstantive spacing changes also were made. 

Individuals commenters urged the commission not to adopt the new report
form, arguing that the form permits the inspector to provide a more limited
inspection report since the form is less detailed than the forms originally
adopted by the commission. Because the inspectors are still subject to the
commission's rules establishing minimum inspection standards, however, the
commission determined that the new form was adequate to protect the consumer
as adopted. 

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.535.223. Standard Inspection Reports.
(a) The Texas Real Estate Commission adopts by reference the
following forms approved by the Texas Real Estate Commission in 1997 and 1998
and published and available from the Texas Real Estate Commission, P.O. Box
12188, Austin, Texas 78711- 2188: 

(1) Property Inspection Report, REI 7-0; 

(2) Property Inspection Report (Short Form), REI No.
7A-0; 

(3) Optional Systems Property Inspection Report (Gas
Lines), REI No. 8- 0; 

(4) Optional Systems Property Inspection Report (Outbuildings),
REI No. 9-0; 

(5) Optional Systems Property Inspection Report (Outdoor
Cooking Equipment), REI No. 10-0; 

(6) Optional Systems Property Inspection Report (Lawn
and Garden Sprinkler System), REI No. 11-0; 

(7) Optional Systems Property Inspection Report (Private
Water Wells), REI No. 12-0; 

(8) Optional Systems Property Inspection Report (Individual
Private Sewage Systems), REI No. 13-0; 

(9) Optional Systems Property Inspection Report (Built-in
Security and Fire Protection Equipment), REI No. 14-0; and 

(10) Optional Systems Property Inspection Report (Swimming
Pools and Equipment), REI No. 15-0. 

(b) Except as provided by this section, inspections performed
for a prospective buyer or prospective seller of one-to-four family residential
property must be reported on forms adopted by the commission. Licensed 
inspectors
shall complete the applicable portions of inspection report forms adopted
by the commission and provide the reports to the persons for whom the inspection
has been performed. Except as provided in this section, each inspector shall
use either Property Inspection Report REI No. 7-0 or Property Inspection Report
REI No. 7A-0 when reporting an inspection. If the inspector uses Property
Inspection Report REI No. 7-0 and an inspection of an optional system is also
to be performed, the inspector shall also complete the appropriate optional
system property inspection report, REI Nos. 8-0 through 15-0, for each optional
system inspected. When the inspection is limited to one or more of the optional
systems, the inspector shall use either the appropriate optional system report
form adopted by the commission or Property Inspection Report REI No. 7A-0.
If necessary to report the inspection of a part, component or system not 
contained
in a form, or space provided on a form is inadequate for a complete reporting
of the inspection, such as when the inspector provides a higher level of 
inspection
performance than that required by sec.535.222 (relating to Standards of
Practice), the inspector may attach additional pages to the form. When providing
comments or additional pages to report on items listed on a form, the inspector
shall arrange the comments or additional pages to follow the sequence of the
items listed in the form adopted by the commission. If a part, component or
system contained in a form is present in the property and has not been inspected
under the departure provisions of sec.535.222, the inspector shall make
an appropriate notation on the form, clearly indicating the reason the part,
component, or system has not been inspected. 

(c) Inspectors may reproduce the forms adopted by the commission
from printed copies obtained from the commission and may reproduce the forms
by computer. With the exception of the changes to the forms which are permitted
by this section, the inspector shall reproduce the forms text of the forms
verbatim and the spacing, length of blanks, borders, fonts and placement of
text on the page must appear to be identical to that used by the commission
in the printed version of the forms. Inspectors may insert information in
the spaces provided for that purpose. 

(d) When using form REI 7-0 or any of the optional systems
reports, forms REI 8-0 through 15-0, the inspector may make the following
changes. 

(1) The inspector may delete duplicate headings or sub-parts
of the report form relating to an item which is not being inspected. 

(2) The inspector may delete duplicate provisions in
the optional systems reports such as the identification of the property, date,
and scope of the inspection. 

(3) The inspector may renumber the pages of the forms
to correspond with any changes made necessary due to deletions of text. 

(e) When using form REI 7A-0, the inspector may make the following
changes. 

(1) The inspector may select the type and size of the fonts,
provided the fonts are no smaller than those used in the printed version of
the form adopted by the commission. 

(2) The inspector may use legal sized (8 «" by
14") paper. 

(3) The inspector may select the information to be inserted
below the caption "Property Inspection Report" and above the text of the form
relating to TREC rules ; however, the inspector must include the name of the
inspector's client, the address or other identification of the inspected 
property,
the date the inspection was performed, and the name and license number of
any inspector participating in the inspection. If the person performing the
inspection is licensed as an apprentice inspector or real estate inspector,
the license number and name of the inspector's sponsor also must be included,
and the inspector supervising an apprentice must sign the report. 

(4) The inspector may select other information to be
inserted in the space on the first page of the report reserved for that purpose;
provided the caption "Additional Information Provided By Inspector " is not
deleted. 

(5) The inspector may delete inapplicable provisions
relating to the optional systems and re-letter the remaining provisions. 
(6) The inspector may add footers to each page of the
report except the first page and may add headers to each page of the report. 
(7) Whether the form is reproduced by computer or is
preprinted by the inspector, the inspector may allocate such space for comments
as the inspector deems necessary or may attach additional pages of comments
to the report. 

(8) The inspector may renumber the pages of the form
to correspond with any changes made necessary due to adjusting the space for
comments or deleting text. 

(9) The inspector may list other built-in appliances
and add additional captions, letters and check boxes for those items. 

(10) The inspector may add numbers or letters in parentheses
to the right of the caption for each item and may place the property 
identification
and page number either at the top or bottom of the page. 

(f) This section does not apply to the following: 

(1) inspections performed for a lender or for a person other
than the prospective buyer or prospective seller; 

(2) quality control construction inspections of new homes,
including phased construction inspections, inspections performed solely to
determine compliance with building codes, warranty or underwriting requirements,
or inspections required by a municipality; 

(3) inspections of remodeling or re-inspections; 

(4) inspections for which federal or state law requires
use of a different report; or 

(5) inspections for which a relocation company or a seller's
employer requires use of a different report, and the first page of the report
contains a notice either in bold or underlined print reading substantially
similar to the following: "This report was prepared for a relocation company
or seller's employer in accordance with the company's requirements. The report
is not intended as a substitute for an inspection of the property by an 
inspector
of the buyer's choice. Standard inspection reports required by the Texas Real
Estate Commission may contain additional information a buyer should consider
in making a decision to purchase." If the report form required by the relocation
company or seller's employer does not contain the notice, the inspector may
attach the notice to the first page of the report at the time the report is
prepared by the inspector. If the inspector attaches the notice, the inspector
is not required to use a form adopted by the commission to report the 
inspection. 
(g) Failure to comply with this section is grounds for the
suspension or revocation of an inspector's license or the imposition of an
administrative penalty by the commission. 

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority.
Filed with the Office of the Secretary of State on June
22, 1999.
TRD-9809766
Mark A. Moseley

General Counsel

Texas Real Estate Commission

Effective date: July 8, 1998

Proposal publication date: April 10, 1998

For further information, please call: (512) 465-3900

CHAPTER 537.Professional Agreements and Standard Contracts
22 TAC sec.sec.537.11, 537.22, 537.42, 537.45, 537.46
Professional Agreements and Standard Contracts sec.sec.537.11,
537.22, 537.42, 537.45, 535.46. The Texas Real Estate Commission (TREC) adopts
amendments to sec.537.11, concerning use of standard contract forms, sec.537.22,
concerning a revised "back-up" contract addendum and sec.537.42, concerning
a revised agreement for mediation, and new sec.537.45, concerning a notice
of termination and sec.537.46, concerning an amendment form, without changes
to the proposed text as published in the May 15, 1998, issue of the 
Texas Register (23 TexReg 4774).

These actions adopt by reference four forms to be used by Texas real estate
licensees in connection with the negotiation of a contract to buy or sell
real estate. Adoption of the amendments and new sections is necessary to 
continue
the process of standardizing real estate contract forms and thereby reduce
disputes in transactions negotiated by real estate licensees. 

The amendment to sec.537.22 adopts by reference a revised Addendum for
"Back-Up" Contract, TREC Form 11-3, which is used when a contract between
the seller and a second buyer is to be contingent upon the termination of
an existing contract between the seller and a first buyer. The addendum was
revised to clarify the obligations of the parties to the second contract during
the period of time the "back-up" contract is contingent upon the first contract
and to establish when any option to terminate under the "back-up" contract
may be exercised. 

The amendment to sec.537.42 adopts by reference a revised Agreement for
Mediation, TREC Form 35-1, which was changed to clarify that the agreement
survives the closing of the real estate transaction, enabling the parties
to rely upon the agreement before resorting to litigation. The agreement for
mediation also was rewritten to reflect nonsubstantive changes in voice and
style used in more recently promulgated contract forms. 

New sec.537.45 adopts by reference Notice of Termination of Contract,
TREC Form No. 38-0, which a buyer would use to terminate a contract if the
buyer chose to exercise an option to terminate the contract. 

New sec.537.46 adopts by reference Amendment, TREC Form No. 39-0, which
parties to the contract would use to adjust a sales price, allocate 
responsibility
for repairs and expenses, agree whether to apply an option fee to the sales
price, change the date of closing, extend the time for exercising an option
to terminate or waive the right of termination. 

Several comments were received regarding the content of the four forms.
One commenter suggested that a blank space be added to the Amendment form
to assist the brokers in modifying provisions of the contract other than those
specified in the form. The commission determined that the space for special
provisions in the underlying contract was sufficient for that purpose and
declined to make the suggested change. Two commenters asked the commission
to add language to the Notice of Termination of Contract to address return
of the earnest money. The commission determined that the form was intended
to serve only as a notice of termination since the underlying contract addressed
return of the earnest money and declined to make the suggested change. In
response to a comment on the Addendum for "Back-Up" Contract, however, the
commission determined that it would clarify the rights of the buyer to add
a provision entitling the buyer to the refund of the earnest money if the
back-up contract terminated. The Texas Association of Realtors (TAR) generally
supported adoption of the forms and suggested nonsubstantive changes regarding
date lines and captions with which the commission agreed. TAR also suggested
that more space be provided on the Amendment form for agreed repairs; the
commission determined that the space was sufficient and declined to make the
suggested change.

The amendments and new sections are 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.
Filed with the Office of the Secretary of State on June
18, 1999.
TRD-9809765
Mark A. Moseley

General Counsel

Texas Real Estate Commission

Effective date: September 1, 1998

Proposal publication date: May 15, 1998

For further information, please call: (512) 465-3900

PART XXIV. Texas Board of Medical Veterinary Examiners
CHAPTER 575.Practice and Procedure
22 TAC sec.575.30
The Texas Board of Veterinary Medical Examiners adopts the
new sec.575.30, concerning Criminal Convictions without changes to the proposed
text published in the March 27, 1998, issue of the 
Texas Register (23 TexReg 3177). 

The agency is adopting this new section so that all consumers seeking veterinary
medical care will not be exposed to veterinarians who have been convicted
of a crime related to the practice of veterinary medicine, unless the 
veterinarian
has demonstrated adequate rehabilitation. The new section sets out the types
of criminal convictions that initiate disciplinary action by the Board, as
well as the procedures for taking that action. It also defines those crimes
related to the practice of veterinary medicine and defines the factors the
Board will consider to determine the present fitness of a person previously
convicted of a crime. 

No written comments were received.

The section is adopted under the authority of the Veterinary
Licensing Act, Texas Civil Statutes, Article 8890, sec.7(a) which provides
that the Board may enact or amend rules which are necessary to carry into
effect the provisions of the Veterinary Licensing Act and Article 6252-13d,
which requires guidelines on the procedures relating to criminal convictions.
The amendments affect the Veterinary Licensing Act, Article 8890, sec.14(a)(4)
of the Act which provides the Board with the authority to take disciplinary
action is a applicant or licensee has bee convicted of a felony under the
laws of this or any other state of the United States or of the United States.
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.
Filed with the Office of the Secretary of State on June
17, 1999.
TRD-9809668
Ron Allen

Executive Director

Texas Board of Medical Veterinary Examiners

Effective date: July 17, 1998

Proposal publication date: March 27, 1998

For further information, please call: (512) 305-7555

TITLE 25. HEALTH SERVICES
PART I. Texas Department of Health
CHAPTER 229.Food and Drug
SUBCHAPTER W.Minimum Standards for Licensure of Tattoo Studios
25 TAC sec.sec.229.402-229.411
The Texas Department of Health (department) adopts amendments
to sec.sec.229.402-229.411, concerning the minimum standards for licensure
of tattoo studios. Sections 229.404, 229.405, 229.407, 229.409, and 229.411
are adopted with changes to the proposed text as published in the February
27, 1998, issue of the Texas Register (23
TexReg 1888). Sections 229.402, 229.403, 229.406, 229.408, and 229.410 are
adopted without changes to the proposed text, and therefore, the sections
will not be republished. 

The amendments establish new licensure fees to allow the department to
recover costs associated with inspecting all tattoo studios and administering
the licensure program, as well as require the tattoo studio licensure fee
to be non-refundable due to the time and resources involved in processing
the applications. In addition, the rules will provide for consistent record-
keeping
requirements throughout the industry, will require unobstructed access to
the hand-washing facilities within all tattoo studios, and will prohibit the
reuse of razors. Finally, the rules will update and clarify the existing rules
to improve the tattoo industry's understanding of the requirements, as well
as allow the department to effectively regulate the tattoo studios. 

The department is making the following minor changes due to staff comments
to clarify the intent and improve the accuracy of this section: 

Change: Concerning adopted sec.229.404(f), the word "covered" will be
deleted from "covered refuse container" because the department has determined
that the proposed requirement is insignificant and will create an unnecessary
financial burden on the tattoo studios. 

Change: Concerning adopted sec.229.407(h)(1)(A), the words "the required"
have been added for clarity. 

Change: Concerning adopted sec.229.409(g), the phrase "as often as needed"
is replaced with "more often if needed" to clarify the intent of the 
requirement.
The following comments were received concerning the proposed sections.
Following each comment is the department's response and any resulting change(s).
Comment: Concerning sec.229.403(a), all of the commentors stated that
the increase in licensure fees from $130 to $450 would cause a financial 
hardship
on the industry and would possibly cause an increase in "underground" tattooing.
Response: The department disagrees with the commentors because the $130
fee was not adequate to cover the department's cost of administering the 
program.
Costs associated with the regulation of tattoo studios include but are not
limited to conducting inspections of licensed tattoo studios, investigating
complaints of injury and underage tattooing, and identifying and bringing
unlicensed tattoo studios into compliance. As statutorily required, the new
fee was established to recover operating costs for the tattoo program. No
change was made as a result of this comment. 

Comment: Concerning sec.229.404(c), several commentors stated that imposing
a "light colored" restriction to tattooing surfaces would result in a financial
burden for studios to replace dark colored floors and/or surfaces. 

Response: The department agrees with the commentors and modifies final
sec.229.404(c) to indicate that existing tattoo studios with dark-colored
surfaces will not need to convert to light- colored surfaces until the studio
is extensively remodeled. However, new tattoo studios that come into existence
after the day these rules become final will need to comply with the requirement
for light-colored surfaces. 

Comment: Concerning sec.229.404(f), one commentor questioned the requirement
of having a sink in the tattoo area. 

Response: The department agrees with the commentor. The rules do not require
a sink to be in the tattoo area. The rules do require unobstructed access
to the hand-washing facilities. No change was made as a result of this comment.
Comment: Concerning sec.229.404(h), several commentors stated that the
consumption of food and nonalcoholic beverages should be allowed in the tattoo
area in order to assist clients who become faint or light-headed. 

Response: The department agrees with the commentor and has deleted the
requirement prohibiting eating and drinking in the tattoo area. 

Comment: Concerning sec.229.404(k), one commentor suggested keeping the
provision for privacy rooms or screens. This subsection was proposed and 
published
as being deleted. 

Response: The department disagrees with the commentor because the availability
of privacy rooms or screens is not a public health issue. No change was made
as a result of this comment. 

Comment: Concerning sec.229.405(c), one commentor thinks that it is a
waste of product to wear gloves when performing weekly cleaning and adjustments
of the tattoo machines. 

Response: The department disagrees with the commentor because the wearing
of single-service examination gloves while assembling, using, and cleaning
the tattoo equipment minimizes the health risks associated with handling all
contaminated tattoo equipment. 

However, the department has replaced the word "handling" with "assembling"
in sec.229.405(c) to clarify the intent that gloves are to be worn when
assembling, using, and cleaning all tattoo equipment. 

Comment: Concerning sec.229.405(g), one commentor, who uses a straight
razor to shave clients, feels that it should be acceptable to reuse the razor
if it is thoroughly washed with soap and water and a hospital grade disinfectant
prior to reuse. 

Response: The department disagrees with the commentor because straight-edge
razors washed with soap and water and hospital grade disinfectant continue
to pose a risk of contamination with body fluids, pathogens, or blood. The
best method to protect against the risk of such contamination is to limit
the use of razors to single-service. No change was made as a result of this
comment. 

Comment: Concerning sec.229.406(a), one commentor questioned the requirement
for the tattooist to document the client's age, date of birth, and type of
identification since the client completes this information on the client record.
Response: The department disagrees with the commentor because the existing
rules already require the tattooist to document verification of the client's
age and type of positive identification provided. Failure of the tattooist
to document this information is a violation of this section. No change was
made as a result of this comment. 

Comment: Concerning sec.229.406(i), one commentor feels that it is not
necessary to keep client records for two years because problems associated
with a tattoo will appear shortly after the application of the tattoo. 

Response: The department disagrees with the commentor because complaints
concerning underage tattooing have been received more than one year after
the tattoo has been applied. Maintaining client records for a two-year period
will allow the department to thoroughly investigate a complaint. No change
was made as a result of this comment. 

Comment: Concerning sec.229.406(i)(5), one commentor questions the health
concern associated with recording the location of the tattoo. 

Response: The department disagrees with the commentor because recording
the location of the tattoo would assist the department with investigating
complaints associated with a specific tattoo, particularly in the case of
a client with multiple tattoos. No change was made as a result of this comment.
Comment: Concerning proposed sec.229.407(a), several commentors oppose
the requirement of single-service needles due to unnecessary economic hardship,
the time required in building needle groupings, and inconvenience. One commentor
suggests that using frequent spore tests would be more efficient than using
single-service needles. 

Response: The department agrees with the commentors because the proper
sterilization of reusable needles will minimize the risk of infectious disease
transmission. In addition, spore tests should be performed if recommended
by the manufacturer of the sterilizer, and should be performed in accordance
with the manufacturer's instructions. Section 229.407(a) was deleted and the
rest of the section was renumbered. Also, 229.409(a) was modified by
adding the word "needles" as a result of this comment. 

Comment: Concerning proposed sec.229.407(f), one commentor stated that
multiple pieces of equipment which are intended to be used together at the
same time should be allowed to be packaged together for sterilization. 

Response: The department agrees with the commentor and modifies renumbered
sec.229.407(e) to indicate that equipment can be packaged individually,
or can be packaged as a set provided such a set is intended to be used together
for a single tattoo procedure. 

Comment: Concerning sec.229.408(b)(6), one commentor objected to the
wording of this portion of this section but did not indicate the rationale
for the objection. 

Response: The department disagrees with the commentor because the language
has not changed, but two subsections were combined to clarify the requirements
for tattoo care instructions. No change was made as a result of this comment.
Comment: Concerning sec.229.409(e), one commentor feels that a new stencil
for each client will result in lost revenue. 

Response: The department disagrees with the commentor because the use of
single-service stencils will minimize the risk of cross-contamination between
clients. The use of single-service acetate stencils is an existing requirement,
and the change is intended to require all stencils to be single-service 
regardless
of whether they are acetate. No change was made as a result of this comment.
Comment: Concerning sec.229.409(e), one commentor feels that using aseptic
technique will prevent contamination when using petroleum jellies, soaps,
and other products used in the application of stencils. The commentor feels
it is costly to discard a container of deodorant after one-time use. 

Response: The department agrees with the commentor, if deodorant is used
to apply a stencil, it shall be dispensed and applied using aseptic technique
and in a manner to prevent contamination of the original container and its
contents. No change was made as a result of this comment. 

Comment: Concerning sec.229.409(h)(2), one commentor recommended that
the manufacturer's manual for the ultrasonic cleaner not be required. 

Response: The department disagrees with the commentor. The existing rules
already require that if an ultrasonic cleaner is used to clean equipment,
that it be used according to manufacturer's instructions. In order for the
department to determine compliance with the manufacturer's instructions, the
manual must be present. Furthermore, the manual is part of the labeling, and
the absence of the manual misbrands the device. No change was made as a result
of this comment. 

Comment: Concerning sec.229.411(b), one commentor feels that copies of
the referenced rules should be available for future reference. 

Response: The department agrees with the commentor and has amended 
sec.229.411(b)
to indicate the manner in which these rules will be available to the public.
The commentors were: B & B Fineline Tattoo, Inc., Tri Star Tattoo,
Tattoos by Laura, Tattoos by Ice, A Different Drummer Tattoo Studio, Custom
Tattoos, The Skin Art Gallery, Intradermal Designs, Over the Edge, Big Fish
Tattoos, The Hair Odyssey, Crimson Dragon Tattoo, and the Alliance of 
Professional
Tattooists. All commentors were not against the rules in their entirety, however
they expressed concerns, asked questions, and suggested recommendations for
change as discussed in the summary of comments. 

The amendments are adopted under the Health and Safety Code,
sec.146.010(a) and sec.146.015(a), which provides the department with
the authority to adopt necessary regulations pursuant to the enforcement of
this Chapter; and sec.12.001, which provides the Texas Board of Health (board)
with the authority to adopt rules for the performance of every duty imposed
by law on the board, the department, and the commissioner of health.

sec.229.404. Physical Facilities.
(a) A tattoo studio must be in a permanent, nondwelling building
or portion of a building which is in compliance with applicable building codes
and must be in a location which is permissible under local zoning codes, if
any. The tattoo studio shall be separated from living quarters by complete
floor to ceiling partitioning and shall contain no access to living quarters.
(b) The tattoo studio or temporary location shall be maintained
in a sanitary condition. 

(1) Work surfaces shall be cleaned and sanitized with hospital
(grade) United States Environmental Protection Agency registered disinfectants
or a 1:100 dilution of household bleach and water (1/4 cup bleach and 1 gallon
of water). 

(2) (No change.) 

(c) The walls, ceilings, and floors shall be kept in good
repair. Tattooing areas shall be constructed of smooth, hard, surfaces that
are non-porous, free of open holes or cracks, light colored, and easily cleaned.
New tattoo studios shall not include dark-colored surfaces in the tattooing
area. Existing tattoo studios with dark-colored surfaces in the tattooing
area shall replace the dark-colored surfaces with light-colored surfaces 
whenever
the facilities are extensively remodeled. 

(d)-(e) (No change.) 

(f) Each tattoo studio or temporary location shall be equipped
with hand-washing facilities for its personnel with unobstructed access to
the tattoo area such that tattooists can return to the tattoo area without
having to touch anything with their hands. Hand-washing facilities shall be
equipped with hot and cold or tempered running water, liquid germicidal soap,
single-service towels or other approved hand-drying devices, and a refuse
container. Such facilities shall be kept clean and in good repair. 

(g) (No change.) 

(h) Smoking shall be prohibited in the tattoo area. Consumption
of alcoholic beverages shall be prohibited in tattoo studios or temporary
locations. 

(i)-(j) (No change.)

sec.229.405. Personnel Responsibilities.
(a) (No change.) 

(b) All tattooists shall wash their hands thoroughly using
hot or tempered water with a liquid germicidal soap before and after applying
a tattoo and as often as necessary to remove contaminants. 

(c) All tattooists must wear single-service examination gloves
while assembling tattoo equipment and while applying tattoos and intradermal
cosmetics. 

(d)-(e) (No change.) 

(f) The area of the client's skin to be tattooed shall be
cleaned with a germicidal skin preparation and the tattooist shall treat the
skin with 70% isopropyl alcohol, iodophor, or other United States Food and
Drug Administration approved antiseptic products. 

(g) If shaving is required, razors shall be single-service.
(h) (No change.) 

sec.229.407. Sterilization.
(a) A tattoo studio or temporary location is required to utilize
tools and equipment for tattooing that have been properly sterilized and kept
in a sterile condition. The tattoo studio or temporary location shall use
sterilization equipment that is approved by the United States Food and Drug
Administration for the purpose of sterilization, and adequate in size to 
accommodate
needles, tubes, tips, and other necessary utensils and equipment. A copy of
the manufacturer's recommended procedures for operation of the sterilization
unit(s) must be available for inspection by an authorized agent. 

(b) Each person responsible for the sterilization of equipment
shall be able to demonstrate to the department's authorized agent the correct
sterilization procedures and the proper operation of autoclave and/or dry
heat sterilization equipment. 

(c) After each use, the reusable tattooing equipment shall
be cleansed to remove blood and tissue residue before sterilization as described
in sec.229.409(h) of this title (relating to Tattooing Equipment). 

(d) Each package of equipment sterilized shall be monitored
for sterilization by the use of chemical/heat sensitive indicators. 

(e) Equipment requiring sterilization shall be packed in packages
approved for the sterilization unit. Equipment shall be packed individually,
or as a set provided such set is intended to be used for a single tattoo 
procedure.
Each package shall be labeled with the date of sterilization and the initials
of the person sterilizing. Packaged sterilized equipment shall be stored in
a clean dust-tight container when not in use. 

(f) Each tattoo studio or temporary location shall maintain
sterilization records. The information shall be permanently recorded and made
available for examination by an authorized agent in the tattoo studio for
at least two years from the date of the last entry. These permanent records
shall be maintained at the studio and shall include the following: 

(1) date of sterilization; 

(2) quantity and type of equipment to be sterilized;
and 

(3) name of individual sterilizing the equipment. 

(g) Sterilized equipment stored in an approved manner and
not used within 30 days after sterilization shall no longer be considered
sterile and shall be resterilized before use, unless the studio or temporary
location utilizes presterilized equipment sterilized by the manufacturer.
If presterilized equipment is used, the tattooist shall obtain documentation
from the manufacturer that describes the method of sterilization utilized
by the manufacturer and the manufacturer's recommendations for storage and
maintenance of sterility. This documentation shall be available for inspection
by an authorized agent. The tattooist shall follow the manufacturer's 
instructions
for storage and maintenance of sterility. 

(h) One of the following methods of sterilization shall be
used. 

(1) Autoclave - steam under pressure: 

(A) 121 degrees Celsius (250 degrees Fahrenheit) and a pressure
of at least 15 pounds per square inch for not less than 30 minutes after the
chamber of the autoclave has been evacuated of air and has reached the required
temperature; or 

(B) as specified in the manufacturer's operator's manual.
(2) Dry heat sterilization: 

(A) 160 degrees Celsius (320 degrees Fahrenheit) for not less
than one hour under atmospheric pressure after the sterilizer has reached
the required temperature; or 

(B) as specified in the manufacturer's operator's manual.
sec.229.409.Tattooing Equipment.
(a) Reusable needles, bars, and tubes shall be constructed
in a manner that permits easy cleaning and sterilization. 

(b)-(d) (No change.) 

(e) All tattoo stencils shall be single-service. Petroleum
jellies, soaps, and other products used in the application of stencils shall
be dispensed and applied using aseptic technique and in a manner to prevent
contamination of the original container and its contents. The applicator shall
be single-service. 

(f) Contaminated reusable tattoo equipment shall be placed
in a covered container of disinfectant solution such as 2.0% alkaline 
glutaraldehyde
(not to be construed as all-inclusive), until it can be cleaned and sterilized.
(g) All containers holding contaminated tattoo equipment and
container lids shall be emptied of contaminated solution and cleaned and 
sanitized
daily or more often if needed. 

(h) Reusable tattoo equipment shall be cleaned by gloved personnel
prior to sterilization by one of the following methods: 

(1) (No change.) 

(2) clean the items in an ultrasonic cleaning unit used
according to manufacturer's instruction. A copy of the manufacturer's 
recommended
procedures for operation of the ultrasonic cleaning unit must be available
for inspection by an authorized agent; and 

(3) (No change.)

sec.229.411. Disposal of Infectious Waste.
(a) (No change.) 

(b) Other studio waste generated during the tattoo process,
i.e., cotton balls, cotton tip applicators, tissues, paper towels, gloves,
and pigment containers (not to be construed as all-inclusive) shall be disposed
of in accordance with sec.1.136(a)(2) of this title (relating to Approved
Methods of Treatment and Disposition) or Title 30, Texas Administrative Code,
Chapter 330. Copies of these provisions are indexed and filed in the office
of the Drugs and Medical Devices Division, Texas Department of Health, 1100
West 49th Street, Austin, Texas 78756, and are available for inspection between
the hours of 8:00 a.m. and 5:00 p.m. 

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.
Filed with the Office of the Secretary of State on June
22, 1999.
TRD-9809975
Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: July 12, 1998

Proposal publication date: February 27, 1998

For further information, please call: (512) 458-7236

CHAPTER 289.Radiation Control
SUBCHAPTER D.General
25 TAC sec.289.202
The Texas Department of Health (department) adopts an amendment
to sec.289.202 concerning exemption of cesium-137 contaminated emission
control dust and other incident-related material from certain disposal 
requirements,
with changes to the proposed text as published in the April 3, 1998, issue
of the Texas Register (23 TexReg 3414), as
a result of comments received during the 30-day comment period. 

The amendment to sec.289.202 allows exemption of cesium-137 contaminated
emission control dust and other incident-related material from certain disposal
requirements under specific handling, treatment, transport, and radiation
dose conditions. The amendment provides an additional method of disposal for
certain materials that have been incidentally contaminated by the inadvertent
melting of a radioactive source. When the requirements of the proposed amendment
are met, the contaminated material is required to be managed as a hazardous
waste rather than a mixed waste. The amendment is consistent with the final
staff technical position of the United States Nuclear Regulatory Commission
regarding disposition of cesium-137 contaminated emission control dust and
other incident-related material, which was published in the Wednesday, March
19, 1997 issue of the Federal Register, page 13176. 

The department is making the following minor changes due to staff comments
to clarify the intent and improve the accuracy of the section. 

Change: Concerning sec.289.202(ff)(2)(I), "cesium 137" was changed to
"cesium-137". 

Change: Concerning sec.289.202(ff)(5), the word "the" was added before
"Commission". 

The following comment was received concerning the proposed section. Following
the comment is the department's response. 

Comment: Concerning sec.289.202(ff)(5), one commenter suggested that
the words, "...unless the hazardous waste disposal facility can demonstrate
that exceeding the 1 curie limit will not result in any significant increase
in health and safety risk" be added to the end of the last sentence. The 
commenter
stated that the one curie limit for cesium-137 may be unnecessarily restrictive
for hazardous waste disposal facilities that also have a license for the 
management
of radioactive waste. The analysis conducted by the United States Nuclear
Regulatory Commission states that the one curie limit was proposed as a 
conservative
estimate of the maximum dose to a hazardous waste disposal site worker assumed
to be an un-badged non-radiation worker. If the receiving facility is a licensed
facility with an approved radiation protection program and all workers at
the facility are badged and trained as radiation workers, the commenter stated
that this limit may be far too conservative. The commenter also noted that
facilities that have other unique design features, such as separate, isolated
disposal cells, may be able to demonstrate that higher total cesium-137 disposal
limits are still protective of the health of the workers and are therefore
acceptable. 

Response: The department acknowledged the commenter's statements. The rule
revision is based on the analysis performed as a part of the United States
Nuclear Regulatory Commission's staff technical position. Without additional
analysis that includes the parameters noted by the commenter, the department
has no technical basis on which to justify allowing a change in the curie
limit. No change was made as a result of the comment. 

The commenter was a representative from Waste Control Specialists, LLC.
The commenter was generally in support of the rule; however, the individual
presented comments and a suggestion for a change to the proposal as previously
discussed. 

The amendment is adopted under the Health and Safety Code, Chapter
401, which provides the Texas Board of Health (board) with authority to adopt
rules and guidelines relating to the control of radiation; and sec.12.001,
which authorizes the board rules for the performance of every duty imposed
by law on the board, the department, and the commissioner of health. 

sec.289.202. Standards for Protection Against Radiation.
(a)-(ee) (No change.) 

(ff) General requirements for waste management. 

(1) Unless otherwise exempted, a licensee shall discharge,
treat, or decay licensed material or transfer waste for disposal only: 

(A)-(C) (No change.) 

(D) as authorized in accordance with paragraph (2) of this
subsection, and subsections (gg) and (hh) of this section. 

(2) Upon agency approval, emission control dust
and other material from electric arc furnaces or foundries, such as K061 listed
hazardous waste or other listed hazardous waste, contaminated as a result
of inadvertent melting of a cesium-137 source may be transferred for disposal
to a hazardous waste disposal facility authorized by the Texas Natural Resource
Conservation Commission (Commission) or its successor, another state's 
regulatory
agency with jurisdiction to regulate hazardous waste as classified under 
Subtitle
C of the Resource Conservation and Recovery Act (RCRA), or the EPA. The material
may be transferred for disposal without regard to its radioactivity if the
following conditions are met. 

(A) Contaminated material described in paragraph (2) of this
subsection, whether packaged or unpackaged (i.e., bulk), must be treated through
stabilization to comply with all waste treatment requirements of the appropriate
state or federal regulatory agency as listed in this paragraph. The treatment
operations must be undertaken by either of the following: 

(i) the owner/operator of the electric arc furnace or foundry
licensed to possess, treat or transfer cesium-137 contaminated incident-related
material; or 

(ii) a service contractor licensed by the agency, NRC, or
an agreement state. 

(B) The emission control dust and other incident-related materials
have been stored (if applicable) and transferred in accordance with operating
and emergency procedures approved by the agency. 

(C) The total cesium-137 activity contained in emission control
dust and other incident-related materials to be transferred to a hazardous
waste disposal facility has been specifically approved by NRC or the appropriate
agreement state(s) and does not exceed the total activity associated with
the inadvertent melting incident. 

(D) The hazardous waste disposal facility operator has been
notified in writing of the impending transfer of the incident-related materials
and has agreed in writing to receive and dispose of the packaged or unpackaged
materials. Copies of the notification and agreement shall be submitted to
the agency. 

(E) The licensee, as listed in subparagraph (A)(i) or (ii)
of this paragraph, notifies the NRC or agreement state(s) in which the 
transferor
and transferee are located, in writing, of the impending transfer, at least
30 days before the transfer. 

(F) The packaged stabilized material has been packaged for
transportation and disposal in non-bulk steel packaging as defined in DOT
regulations at 49 CFR 173.213. 

(G) The emission control dust and other incident-related materials
that have been stabilized and packaged as described in subparagraph (F) of
this paragraph shall contain pretreatment average concentrations of cesium-137
that do not exceed 130 pCi/g of material, above background. 

(H) The dose rate at 3.28 feet (1 m) from the surface of any
package containing stabilized waste shall not exceed 20 µrem per hour
or 0.20 µSv per hour, above background. 

(I) The unpackaged stabilized material shall contain pretreatment
average concentrations of cesium-137 that do not exceed 100 pCi/g of material,
above background. 

(3) The licensee transferring the cesium-137 contaminated
incident-related material must consult with the agency, the Commission or
its successor, another state's regulatory agency with jurisdiction to regulate
hazardous waste as classified under RCRA, or the EPA and other authorized
parties, including state and local governments, and obtain all necessary 
approvals,
in addition to those of NRC and/or appropriate agreement states, for the 
transfers
described in paragraph (2) of this subsection. 

(4) Nothing in this subsection shall be or is intended
to be construed as a waiver of any RCRA permit condition or term, of any state
or local statute or regulation, or of any federal RCRA regulation. 

(5) The total incident-related cesium-137 activity received
by a facility over its operating life shall not exceed 1 Ci (37 GBq). The
agency will maintain a record of the total incident-related cesium-137 activity
shipped by a person licensed by the agency. Upon consultation with the 
Commission,
the agency will determine if the total incident-related cesium-137 activity
received by a hazardous waste disposal facility over its operating life has
reached 1 Ci (37 GBq). The agency will not approve shipments of cesium-137
contaminated incident-related material that will cause this limit to be 
exceeded.
(6) A person shall be specifically licensed to receive
waste containing licensed material from other persons for: 

(A) treatment prior to disposal; 

(B) treatment by incineration; 

(C) decay in storage; 

(D) disposal at an authorized land disposal facility; or 
(E) storage until transferred to a storage or disposal facility
authorized to receive the waste. 

(gg)-(ggg) (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.
Filed with the Office of the Secretary of State on June
22, 1999.
TRD-9809940
Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: July 12, 1998

Proposal publication date: April 3, 1998

For further information, please call: (512) 458-7236

TITLE 28. INSURANCE
PART I. Texas Department of Insurance
CHAPTER 5.Property and Casualty Insurance
SUBCHAPTER A.Automobile Insurance
Division 6. Notice Requirements to Claimants Regarding Motor Vehicle Repairs
28 TAC sec.5.501
The Texas Department of Insurance adopts new sec.5.501,
concerning the procedures that an insurer (including a person acting on behalf
of an insurer) must follow in order to give the required notice to beneficiaries
or third-party claimants regarding their motor vehicle repair rights under
the Insurance Code, Article 5.07-1, with changes to the proposed text as 
published
in the February 13, 1998, issue of the Texas Register
(23 TexReg 1263). 

Article 5.07-1 was amended by House Bill 423, 75th Texas Legislature, 1997,
to mandate that the commissioner adopt a rule establishing the method or methods
insurers shall use to comply with the notice provisions contained in section
(e) of Article 5.07-1. The section requires the insurer to provide the 
prescribed
notice to a beneficiary or third-party claimant. The section sets out the
requirements for providing the prescribed notice by classifying three methods
by which an insured or third party claimant may make a claim regarding damage
to a vehicle. First, if a claimant presents the vehicle to the insurer or
otherwise makes the claim in person, written notice must be given to the 
claimant
at that time. Second, if the claim is made in writing (including e-mail or
FAX), the insurer must mail the written notice to the claimant within three
business days unless the written notice is otherwise delivered within those
three business days. Third, if the claim is made by telephone the insurer
has two options for giving the required notice: 1) mail the written notice
to the insured within three business days, or 2) give a prescribed verbal
notice to the claimant at the time of the claimant's telephone call and mail
the written notice to the claimant within 15 business days of receiving notice
of the claim. House Bill 423, enacted by the 75th Texas Legislature, 1997,
amended Article 5.07-1 entitled Disclosure of Consumer Information. Newly
added section (e) of Article 5.07-1 provides, "At the time the vehicle is
presented to an insurer or an insurance adjuster or other person in connection
with a claim for damage repair, the insurer or insurance adjuster or other
person shall provide to the beneficiary or third-party claimant notice of
the provisions of this article." Section (e) also provides that the commissioner
shall adopt a rule establishing the method or methods insurers shall use to
comply with the notice provisions in this section. The adopted section is
necessary to implement the provisions of section (e) of Article 5.07-1. The
section establishes the methods to be used to provide notice to a beneficiary
or third-party claimant and prescribes the actual notice that must be provided
by an insurer. The section defines the term "insurer" to include any person
acting on behalf of an insurer, regardless of whether employed by the insurer.
This definition is in accord with the statutory language which requires the
notice to be given by the insurer, insurance adjuster or "other person" in
connection with a claim for damage repair. The requirement of the section
that an insurer provide the notice to a beneficiary or third-party claimant
is necessary to comply with the terms of Article 5.07-1. Under the section,
when the vehicle is presented to the insurer, the prescribed notice must be
given to the claimant at that time. This method of notification complies with
the specific requirement of section (e) of Article 5.07-1 which specifies
that the notice must be given when the vehicle is presented to an insurer.
When the claim is made by means other than the presentation of the vehicle
to an insurer, such as in writing, notice must be mailed within three business
days. However, if the claim is made by telephone the insurer has the option
of either mailing the notice within three business days or giving a prescribed
verbal notice followed by the mailing of the written notice within 15 business
days. These additional methods for providing notice to a beneficiary or third-
party
claimant are necessary to ensure that all beneficiaries and third-party 
claimants
who submit a claim to an insurer receive notification of the provisions of
Article 5.07-1. In many cases, an insurer's claims handling procedure will
not require the claimant to present the vehicle to the insurer. Without these
additional methods for providing notice, many claimants may not obtain 
information
about their rights in connection with a motor vehicle repair. The section
ensures complete disclosure of the contents of Article 5.07-1 to each claimant.
The section also allows an insurer to send, along with the notice, a letter
that addresses the issue of liability. The section further allows the insurer
to include in the notice an optional provision which explains that providing
the notice does not constitute an admission of liability by the insurance
company. This optional provision, concerning the insurer's liability, is 
intended
to alleviate the potential for misconceptions concerning the purpose and meaning
of the notice. The section requires that the notice be printed in at least
10 point type on a separate page from any other material, and must be attached
to, or printed on the reverse side of a copy of Article 5.07-1. The type-size
requirement is intended to make the notice conspicuous. Similarly, the adopted
section requires that the notice and statute be provided together, but separate
from any letter or other material, to help draw the claimant's attention to
the information and to provide all of the pertinent information to the claimant
in a compact manner. 

In response to written comments and testimony heard at the public hearing,
several changes were made to the section. In subsection (a), the definition
of "insurer" was amended to replace the language "through actual or apparent
authority" with the language "authorized to act." This change was necessary
to clarify that insurers are not to be held responsible for the actions of
persons over whom they have no control. A definition of "business day" has
been added to subsection (a) to clarify that if an insurer receives notice
of a claim on a holiday or weekend the time period for delivery of the notice
will not begin to run until the next business day as the term is defined in
this section. In subsection (b), the word "beneficiary" was replaced with
the word "insured" for purposes of clarification. Subsection (b) has been
amended to only prescribe the notice requirements for insurers when the insured
or third-party claimant makes a claim by presenting the vehicle or otherwise
makes the claim in person. A new subsection (c) has been added to prescribe
the notice requirements for insurers when the insured or third-party claimant
makes a claim in writing. A new subsection (d) has been added to delineate
the insurers' alternatives for giving the required notice when the insured
or third-party claimant makes the claim by telephone. New subsection (e) has
been added for the purpose of setting out the requirements for inclusion of
the Optional Provision in the notice if the insurer chooses to address the
issue of liability. New subsection (f) has been added to clarify that an insurer
is not required to furnish more than one written notice to the insured or
third-party claimant in regard to a single claim. This change was necessary
because during the claims process many persons could be said to act on behalf
of the insurer and the section as proposed would require each of these persons
to provide the prescribed notice. New subsection (g) was added to clarify
that the notice requirements do not apply to a claim for towing and labor
costs. New subsection (h) is basically subsection (c) as proposed with the
following amendments. In the second sentence of the "Required Notice To 
Insurance
Claimants For Motor Vehicle Repairs" the phrase "regarding motor vehicle 
repairs"
has been added and the phrase "in more detail in insurance policy provisions"
has been deleted. A new third sentence has been added to the notice explaining
that if you are insured by the insurance company for the damage, your rights
are explained in your insurance policy. A new subsection (i) has been added
to prescribe the content of the verbal notice that may be given when the claim
is made by telephone. 

Subsection (a) defines the terms used in the new section. Subsection (b)
addresses the notice requirements when the claim is made by presenting the
vehicle or the claim is made in person. Subsection (c) specifies the notice
requirements for the insurer when the claim is made in writing. Subsection
(d) specifies the alternatives that insurers may elect to provide the required
notice when the claim is made by telephone. Subsection (e) addresses the 
insurers'
options for including the Optional Provision and the requirements for providing
the written notice. Subsection (f) provides clarification that no insurer
is required to furnish more than one written notice in regard to a claim.
Subsection (g) clarifies that the notice requirements do not apply to claims
for towing and labor costs. Subsection (h) specifies the type-size and the
printing requirements for copies of Article 5.07-1 and prescribes the content
of the Optional Provision and the Required Notice To Insurance Claimants For
Motor Vehicle Repairs. Subsection (i) prescribes the content of the verbal
notice that may be given to consumers when the claims are made by telephone.
No position with changes: Texas Insurance Organization, State Farm Insurance
Companies, Allstate Insurance Company, Republic Group of Insurance Companies,
Farmers Insurance Group, National Association of Independent Insurers, 
Government
Employees Insurance Company, Texas Farm Bureau, and Office of Public Insurance
Counsel. 

Comment: Several commenters recommended amending subsection (a) to delete
the language "through actual or apparent authority" from the definition of
insurer and replacing it with the phrase "authorized to act." The commenters
were concerned that the definition would include persons over whom the insurer
has no control such as the body shops that make the repairs. 

Response: Staff agrees that "authorized to act" is clearer than the published
language and has amended the section to incorporate the language suggested
by the commenters. 

Comment: Two commenters recommended amending subsection (b) by changing
the word "beneficiary" to "insured." The commenters believe that beneficiary
would be confusing because this would refer to anybody to whom money would
be paid under the policy. 

Response: Staff agrees that the term 'insured" is clearer than the published
language and has amended the section to incorporate the language suggested
by the commenters. 

Comment: One commenter recommended including a specific exclusion from
the requirements of the section for towing and labor costs claims. 

Response: Staff agrees that the section should not apply to towing and
labor claims and for this reason staff has incorporated the suggested exclusion
into the section. 

Comment: Several commenters recommended that the time period in which insurers
must give the required notice be increased from the proposed 3 days to 15
days. The commenters believe that the notice should work in conjunction with
Article 21.55 which allows the insurer to acknowledge receipt of the claim
not later than 15 days after receipt of notice of the claim. 

Response: Staff disagrees. Staff believes that it is important for insureds
and beneficiaries to receive the notice as soon as possible to assist them
in making an informed decision of where to take the vehicle for repairs. The
section has been changed from the proposed language to classify three methods
by which an insured or third party claimant may make a claim regarding damage
to a vehicle. First, if a claimant presents the vehicle to the insurer or
otherwise makes the claim in person, written notice must be given to the 
claimant
at that time. Second, if the claim is made in writing (including e-mail or
FAX), the insurer must mail the written notice to the claimant within three
business days unless the written notice is otherwise delivered within those
three business days. Third, if the claim is made by telephone the insurer
has two options for giving the required notice: 1) mail the written notice
to the insured within three business days, or 2) give a prescribed verbal
notice to the claimant at the time of the claimant's telephone call and mail
the written notice to the claimant within 15 business days of receiving notice
of the claim. These options are intended to give insurers more flexibility
in providing the required notice; however, some form of notice is still required
within three business days. 

Comment: Several commenters suggested eliminating the language in the required
notice referring the claimant to the insurance policy provisions because the
insured should be in possession of his insurance policy and the third-party
claimant is not entitled to obtain the insured's insurance policy outside
of legal proceedings. 

Response: Staff agrees and has amended the required notice to clarify that
the insurer is under no obligation to provide a third-party claimant with
a copy of the insured's policy under the requirements of this section. 

Comment Two commenters noted that during the claim process many persons
could be said to act on behalf of an insurer and that the section as proposed
would require each of these persons to provide the prescribed notice. The
commenters recommended that the section be amended to state specifically that
the notice must be given only once to any claimant. 

Response: The section was not intended to require multiple notices to an
individual claimant for a single claim. The section has been amended to specify
that an insurer is not required to furnish more than one notice to the insured
or third-party claimant in regard to a claim. 

Comment: Several commenters believe that the Optional Provision is confusing
and could lead a third-party claimant to believe that it was an authorization
to have repairs done. 

Response: Staff disagrees. Staff believes the published language is preferable
to the language suggested by the commenters because the commenters' language
implies that the insurer's authorization is needed to begin repairs and such
authorization is not required. 

Comment: One commenter expressed concern about the focus of the required
notice and its language and format. The commenter believes the disclosure
should be a summary of the statutory provisions. 

Response: Staff disagrees. A summary of the statutory provisions as suggested
by the commenter introduces the possibility of misconstruing the terms of
the statute. 

Comment: One commenter objects to the wording of the notice which states
that an insurance company is not required to pay more than a reasonable amount
for repair and parts because this restriction is not contained in the statute. 
Response: Staff agrees that this language is not in the statute; however,
the language accurately states the insurance company's obligation to a claimant
by clarifying that an insurer is not required to pay excessive costs of repair.
Staff believes this language is necessary to make the notice informative and
effective. 

Comment: One commenter supported the three day time period for delivery
of the notice. 

Response: Staff agrees and has retained this requirement unless the claim
is presented in person or by telephone. 

Comment: One commenter suggested changing the heading to "Required Disclosure
of Consumer Information" to indicate better the content of the notice. 

Response: Staff disagrees. Staff believes that the commenter's suggested
wording is less informative on the subject matter of the notice. 

Comment: One commenter objects to use of the phrase "reasonable amount"
because it is not a defined phrase and there are no guidelines to determine
what constitutes a reasonable amount. 

Response: Staff disagrees. Staff believes this phrase is necessary to make
the notice informative and effective. The language clarifies that an insurer
is not required to pay excessive costs of repair. 

Comment: One commenter suggested adding a statement to the section defining
when a claim is considered "made" or defining "notice of a claim." The commenter
recommended considering a claim to be made when all pertinent identification
and communication of information for the person making the claim is received
by the insurance company. 

Response: Staff disagrees. Staff believes that the adopted section does
not require any special language or procedures defining when a claim is made.
Staff believes the language suggested by the commenter may cause more confusion
and argument over what constitutes "all pertinent information" and who makes
this determination. 

Comment: One commenter would like to have the option of enclosing the required
copy of the notice and statute with all new policies and renewals as a means
of ensuring that the customer receives the notice in a timely manner. 

Response: Staff believes that an insurer may choose to give the required
notice more often than is required by this section; however, staff believes
allowing an insurer to provide the required notice only when the policy is
issued or renewed would not be consistent with the statute. The statute requires
that notice be given when the vehicle is presented to an insurer in connection
with a claim. 

Comment: One commenter expresses concerns about requiring the notice when
the vehicle is not "presented" to an insurer or adjuster for repair. The 
commenter
asserts that this will be an expensive undertaking and that there are better
ways to assure that consumers receive the notice when the vehicle is not 
"presented."
The commenter suggests putting the notice language in the policy or the Consumer
Bill of Rights. 

Response: Staff disagrees. Staff notes that the statute requires the notice
to be given not only when the vehicle is presented to an insurer or adjuster
but also when presented to any other person in connection with a claim. Staff
also believes that giving the notice to the insured at the time of a claim
is the most effective means of ensuring that claimants have the information
regarding their repair rights when they need it most. 

Comment: One commenter asserts that the cost estimate in the Public Benefit/Cost
Note of the rule proposal is inadequate because it does not take into account
that in many transactions, two notices will need to be sent. 

Response: Staff disagrees. The cost estimates were based on information
regarding the total number of claims and a per transaction cost. This 
methodology
is not dependent on whether the claim is a first-party or third-party claim
because all claims were included in the estimate of costs. 

Comment: One commenter notes that an insurance company or agent may receive
notice of a claim in the evenings after 5 p.m. and on weekends. For this reason
the commenter believes the three business day requirement for mailing of the
notice will often be too short and suggested defining the term "business day"
in the section. 

Response: Staff has no objection to defining the term business day and
recommends using the definition contained in the Insurance Code, Article 21.55,
which defines business day as " day other than a Saturday, Sunday or holiday
recognized by the State of Texas." Staff does not believe that the three 
business
day requirement is unreasonable because an individual seeking repair of his
auto needs information regarding his repair rights immediately in order to
make an informed decision about repairs. 

Comment: One commenter asserts that there is a standard of "like kind and
quality" for all claims paid under the Texas auto policies and that it is
very important to permit an insurance company to limit its claim payment to
this single standard. The commenter suggests adding language to the notice
to include the "like kind and quality" standard set forth in the Texas auto
policies. 

Response: Staff believes it would be confusing to add the "like kind and
quality" standard to the notice because this language only applies to first-
party
claims involving damage to the insured's auto. The "like kind and quality"
standard does not apply to third-party claims. 

Comments: One commenter suggests that the notice should consist of a statement
referring the insured or claimant to Article 5.07-1 rather than requiring
that a copy be given to the insured or claimant. 

Response: Staff disagrees. Staff believes that the value of the notice
is greatly enhanced by providing the insured or claimant with a copy of the
statute and that it would be unduly burdensome to require consumers to perform
the legal research necessary to obtain a copy of Article 5.07-1. 

Comment: One commenter asserts that the mailing requirement is not mandated
by the new law and there is no justification for this requirement. 

Response: Staff disagrees. In many instances a claimant may not present
the vehicle to the insurer; therefore, the mailing requirement is necessary
to ensure that all claimants receive notification of the provisions of Article
5.07-1. 

The new section is adopted under the Insurance Code, Articles
5.07-1, 5.10, 5.98, and 1.03A; and the Government Code sec.sec.2001.004-
2001.038.
Article 5.07-1 requires the commissioner to adopt a rule establishing the
method that insurers must use to provide claimants with notice of their repair
rights as specified in Article 5.07-1. Article 5.10 authorizes the commissioner
to adopt and enforce all reasonable rules and regulations that are consistent
with subchapter A of Chapter 5. Article 5.98 authorizes the commissioner to
adopt reasonable rules and rates that are appropriate to accomplish the purposes
of Chapter 5. Article 1.03A authorizes the commissioner to adopt rules and
regulations, which must be for general and uniform regulation, for the conduct
and execution of the duties and functions of the department only as authorized
by a statute. The Government Code, sec.sec.2001.004-2001.038 (Administrative
Procedure Act) authorize and require each state agency to adopt rules of 
practice
stating the nature and requirements of available formal and informal procedures
and prescribe the procedures for adoption of rules by a state administrative
agency. 

sec.5.501. Notice Requirements to Claimants Regarding
Motor Vehicle Repairs.
(a) The following words and terms, when used in this section,
shall have the following meanings, unless the context clearly indicates 
otherwise.
Business day-a day other than a Saturday, Sunday, or holiday recognized by
the State of Texas. Insurer-an insurer or any person authorized to act on
behalf of an insurer regarding damage to a vehicle, regardless of whether
employed by the insurer. 

(b) An insurer must give the notice prescribed by subsection
(h) of this section (hereinafter referred to as the written notice) to any
insured or third-party claimant who makes a claim regarding damage to a vehicle.
If a claimant presents the vehicle to the insurer in connection with a claim
for damage repair, or otherwise makes the claim in person, the written notice
must be given to the claimant at that time. 

(c) If the claim is made instead in writing (including e-mail
or FAX), an insurer must mail the written notice to the claimant within three
business days of receiving notice of the claim, unless the insurer otherwise
delivers the claimant the written notice within those three business days. 
(d) If the claim is made by telephone, an insurer must: 

(1) mail the written notice to the claimant within three business
days; or 

(2) give the verbal notice prescribed by subsection (i)
of this section (hereinafter referred to as the verbal notice) to the claimant
at the time of the claimant's telephone call and mail the written notice to
the claimant within 15 business days of receiving notice of the claim. 

(e) An insurer, if it chooses to address the liability issue
initially, may send or deliver its own letter along with the written notice.
The written and verbal notice may include the Optional Provision. The written
notice must be on a separate page from any letter or other material, except
as otherwise provided in this section. 

(f) Notwithstanding any other subsection of this section,
no insurer is required to furnish more than one written notice to the insured
or third party claimant in regard to the claim. 

(g) These notice requirements do not apply to towing and labor
costs coverage. 

(h) The written notice must be printed in at least ten point
type, must be attached to, or printed on the reverse side of, a copy of the
Insurance Code, Article 5.07-1, and must read as follows: 

FIGURE: 28 TAC sec.5.501(h)

(i) the verbal notice at a minimum must consist of the following:
BY LAW, YOU HAVE THE RIGHT TO SELECT WHERE YOUR MOTOR VEHICLE IS REPAIRED
AND THE PARTS USED FOR REPAIRS. HOWEVER, AN INSURANCE COMPANY IS NOT REQUIRED
TO PAY MORE THAN A REASONABLE AMOUNT FOR SUCH REPAIRS AND PARTS. YOUR RIGHTS
CONCERNING MOTOR VEHICLE REPAIRS ARE EXPLAINED IN THE INSURANCE CODE, ARTICLE
5.07-1, A COPY OF WHICH WILL BE MAILED TO YOU WITHIN 15 BUSINESS DAYS. IF
YOU HAVE ANY QUESTIONS ABOUT YOUR MOTOR VEHICLE REPAIR RIGHTS, CONTACT THE
TEXAS DEPARTMENT OF INSURANCE AT 1-800-252-3439. 

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.
Filed with the Office of the Secretary of State on June
22, 1999.
TRD-9809934
Lynda H. Nesenholtz

General Counsel and Chief Clerk

Texas Department of Insurance

Effective date: July 12, 1998

Proposal publication date: February 13, 1998

For further information, please call: (512) 463-6327

CHAPTER 34.State Fire Marshal
SUBCHAPTER H.Storage and Sale of Fireworks
28 TAC sec.34.831
The Commissioner of Insurance adopts new section sec. 34.831,
concerning the establishment of an advisory committee for fireworks regulation,
without changes to the new section as published in the May 1, 1998 issue of
the Texas Register (23 TexReg 4204).

New sec. 34.831 is necessary to implement the Insurance Code, Article
5.43-4, Sec. 5B, amended by the 75th Legislature in 1997. The advisory committee
provided for in the new section is appointed pursuant to Article 5.43-4, to
periodically review rules relating to the program of fireworks regulation
under the article, to recommend changes in the rules to the commissioner,
and to develop rules based on proposed changes received from the commissioner.
The new section is required by Article 5.43-4, Sec. 5B, which provides for
appointment of the advisory committee, and by the Government Code, sec.sec.
2110.005 and 2110.008, which govern state agency advisory committees and require
a state agency that is advised by an advisory committee to specify by rule
the advisory committee's purpose, duties, reporting requirements and duration.
New sec. 34.831 sets out the composition and requirements of the advisory
committee to periodically review rules relating to the program of fireworks
regulation and recommend changes in the rules to the commissioner. It provides
for a committee consisting of representatives from the pyrotechnic industry.
The section also sets out the purpose, duties and duration of the advisory
committee. It provides for the submission of a report to the commissioner
containing suggestions and necessary changes to Chapter 34, Subchapter H,
of this title, regulating the sales, storage and use of fireworks.

No comments were received concerning adoption of new sec.34.831. 

The new section is adopted pursuant to the Government Code, sec.sec.
2001.004, 2110.005 and 2110.008, and the Insurance Code, Articles 5.43-4 and
1.03A. The Government Code, sec. 2110.005 requires a state agency that is
advised by an advisory committee to adopt rules that state the purpose of
the committee, and describe the committee's task and the manner in which the
committee will report to the agency. Section 2110.008 requires a state agency
that is advised by an advisory committee to establish by rule a date on which
the committee will automatically be abolished. The Insurance Code, Article
5.43-4, directs the commissioner to establish an advisory committee to assist
in the administration of Article 5.43-4. Article 1.03A provides that the 
commissioner
may adopt rules and regulations to execute the duties and functions of the
Texas Department of Insurance only as authorized by a statute. The Government
Code, sec.2001.004, authorizes and requires each state agency to adopt rules
of practice setting forth the nature and requirements of available procedures
and to prescribe the procedures for adoption of rules by a state agency. 
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority.
Filed with the Office of the Secretary of State on June
16, 1999.
TRD-9809652
Lynda H. Nesenholtz

General Counsel and Chief Clerk

Texas Department of Insurance

Effective date: July 6, 1998

Proposal publication date: May 1, 1998

For further information, please call: (512) 463-6327

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission
CHAPTER 37.Financial Assurance
The Texas Natural Resource Conservation Commission (commission) adopts
new sec.37.271, relating to Local Government Financial Test for Closure;
sec.37.281, relating to Local Government Guarantee for Closure; sec.37.371,
relating to Local Government Financial Test for Closure; sec.37.381, relating
to Local Government Guarantee for Closure; sec.37.3001, relating to 
Applicability;
and sec.37.3011, relating to Financial Assurance Requirements for Scrap
Tire Storage Facilities without changes to the proposed text as published
in the January 2, 1998 issue of the Texas Register 
(23 TexReg 54) and will not be republished. 

EXPLANATION OF ADOPTED RULES The purpose of the new sections is to provide
the options of satisfying financial assurance requirements for closure through
the use of local government financial tests and local government guarantees,
and to provide financial assurance requirements for owners and operators of
certain scrap tire sites. 

New sec.37.271 contains provisions relating to the local government financial
test which consists of financial, public notice, recordkeeping, and reporting
components. This section states a local government must satisfy each of the
components to pass the test and in order to continue using the test, it must
be passed on an annual basis. 

New sec.37.281 contains the allowance for an owner or operator to satisfy
the requirements of financial assurance for closure by obtaining a local 
government
guarantee provided by a local government. The local government guarantee must
meet the requirements of this section, in addition to the requirements of
Subchapters A and B of Chapter 37. Also, the local government guarantor must
meet the requirements of the local government financial test as specified
in sec.37.271 and must comply with certain terms to the local government
guarantee in accordance with sec.37.281(1)-(6). 

New sec.37.371 contains the wording for the letter from the chief financial
officer which, among other things, requires a listing of the current cost
estimates covered by a financial test, along with a ratio and bond rating
indicator of financial strength and certification statements. 

New sec.37.381 contains the wording for the local government guarantee
for closure with specific provisions of the guarantee. 

New sec.37.3001 is the applicability statement for new Subchapter M,
relating to Financial Assurance requirements for Scrap Tire Sites, and states
that Subchapter M applies to owners and operators of scrap tire sites required
to provide evidence of financial assurance under Chapter 330, Subchapter R,
relating to Management of Used or Scrap Tires. In concurrent rulemaking, new
sec.330.810(b), relating to Scrap Tire Storage Site Registration, requires
applicants seeking registration or amended registration for a scrap tire storage
site to submit evidence of financial responsibility. 

New sec.37.3011 contains the financial assurance requirements for scrap
tire storage sites, and states that an owner or operator of a scrap tire site
subject to this subchapter shall establish financial assurance for the closure
of the facility that meets the requirements of this section, in addition to
the requirements specified under Subchapters A, B, C and D of this chapter.
This section also specifies that the financial assurance for scrap tire sites
shall be in the amount required under sec.330.821, relating to Closure Cost
Estimate for Financial Assurance, and lists the various mechanisms that may
be utilized along with conditions that apply to certain mechanisms. 

FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the rulemaking
in light of the regulatory analysis requirements of the Texas Government Code
sec.2001.0225 and has determined that the rulemaking is not subject to 
sec.2001.0225
because it does not meet the definition of a "major environmental rule" as
defined in the act, and it does not meet any of the four applicability 
requirements
listed in sec.2001.0225(a). No comments on the proposed regulatory impact
analysis were received. 

TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact
Assessment for these rules pursuant to Texas Government Code Annotated 
sec.2007.043.
The following is a summary of that assessment. The specific purpose of the
rules is to adopt a set of regulations for the sound and proper management
of used or scrap tires or tire pieces that are classified as municipal solid
waste. The rules will substantially advance this specific purpose by adopting
a set of standards controlling the storage, transportation, treatment, and
disposal of used tires, scrap tires, and tire pieces. Promulgation and 
enforcement
of these rules will not burden private real property which is the subject
of the rules because the changes provide for a streamlined set of regulatory
management standards and do not limit or restrict a person's rights in private
real property. 

COASTAL MANAGEMENT PROGRAM The commission has reviewed the rulemaking and
found that the rulemaking is identified in Coastal Coordination Act 
Implementation
Rules, 31 TAC sec.505.11, relating to Actions and Rules Subject to the Coastal
Management Program (CMP), or will affect an action/authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11, and
therefore requires that applicable goals and policies of the CMP be considered
during the rulemaking process.

The commission has prepared a consistency determination for the adopted
rules pursuant to 31 TAC sec.505.22 and has found the rulemaking to be 
consistent
with the applicable CMP goals and policies. The following is a summary of
that determination. The CMP goal applicable to the rules is the goal to protect,
preserve, restore, and enhance the diversity, quality, quantity, functions,
and values of coastal natural resource areas. CMP policies applicable to the
rules include the administrative policies and the policies for specific 
activities
related to construction and operation of solid waste treatment, storage, and
disposal facilities. 

Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because the rules will encourage safe and appropriate
storage, transportation, treatment, and disposal of used tires, scrap tires,
and tire pieces that are classified as municipal solid wastes, which will
result in an overall environmental benefit across the state, including in
coastal areas. In addition, the rules do not violate any applicable provisions
of the CMP's stated goals and policies. No comments were received on the 
proposed
CMP consistency determination. 

PUBLIC HEARING AND COMMENTS A public hearing was held on January 27, 1998
in Austin, Texas. There were no oral or written comments presented at the
hearing. In addition, there were no written comments received subsequent to
the public hearing prior to the filing deadline of 5:00 p.m. February 17,
1998. 

SUBCHAPTER C.Financial Assurance Mechanisms for Closure
30 TAC sec.37.271, sec.37.281
STATUTORY AUTHORITY

The new sections are adopted under the Texas Water Code, sec.5.103, which
provides the commission with the authority to adopt any rules necessary to
carry out its powers and duties under the Code and other laws of the State
of Texas, and to establish and approve all general policy of the commission;
under Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code,
Chapter 361, sec.361.112, relating to the Storage, Transportation, and Disposal
of Used or Scrap Tires, and under the Texas Solid Waste Disposal Act (the
Act), Texas Health and Safety Code, Chapter 361, sec.361.011 and sec.361.024
which provide the commission with the authority to regulate municipal solid
waste and adopt rules consistent with the general intent and purposes of the
Act.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority.
Filed with the Office of the Secretary of State on June
17, 1998.
TRD-9809723
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 7, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1970

SUBCHAPTER D.Wording of the Mechanisms for Closure
30 TAC sec.37.371, sec.37.381
STATUTORY AUTHORITY

The new sections are adopted under the Texas Water Code, sec.5.103, which
provides the commission with the authority to adopt any rules necessary to
carry out its powers and duties under the Code and other laws of the State
of Texas, and to establish and approve all general policy of the commission;
under Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code,
Chapter 361, sec.361.112, relating to the Storage, Transportation, and Disposal
of Used or Scrap Tires, and under the Texas Solid Waste Disposal Act (the
Act), Texas Health and Safety Code, Chapter 361, sec.361.011 and sec.361.024
which provide the commission with the authority to regulate municipal solid
waste and adopt rules consistent with the general intent and purposes of the
Act.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority.
Filed with the Office of the Secretary of State on June
17, 1998.
TRD-9809724
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 7, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1970

SUBCHAPTER M.Financial Assurance Requirements for Scrap Tire
Sites
30 TAC sec.37.3001, sec.37.3011
STATUTORY AUTHORITY 

The new sections are adopted under the Texas Water Code, sec.5.103, which
provides the commission with the authority to adopt any rules necessary to
carry out its powers and duties under the Code and other laws of the State
of Texas, and to establish and approve all general policy of the commission;
under Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code,
Chapter 361, sec.361.112, relating to the Storage, Transportation, and Disposal
of Used or Scrap Tires, and under the Texas Solid Waste Disposal Act (the
Act), Texas Health and Safety Code, Chapter 361, sec.361.011 and sec.361.024
which provide the commission with the authority to regulate municipal solid
waste and adopt rules consistent with the general intent and purposes of the
Act.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority.
Filed with the Office of the Secretary of State on June
17, 1998.
TRD-9809725
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 7, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1970

CHAPTER 106.Exemptions from Permitting
The Texas Natural Resource Conservation Commission (TNRCC or commission)
adopts amendments to sec.106.2, concerning Applicability, sec.106.224,
concerning Aerospace Equipment and Parts Manufacturing, sec.106.321, concerning
Metal Melting and Holding Furnaces, sec.106.373, concerning Refrigeration
Systems, sec.106.418, concerning Printing Presses, and sec.106.454, concerning
Degreasing Units. The commission also adopts the repeal of sec.106.222,
concerning Woodworking Shops. Section 106.373 is adopted with changes to the
proposed text as published in the January 2, 1998, issue of the 
Texas Register (23 TexReg 60). The remaining sections are adopted without
changes and will not be republished. 

EXPLANATION OF ADOPTED RULES 

The last two sentences in sec.106.2 have been deleted, as they contained
references to sec.116.211, a section that was repealed in November 1996. 
Section 106.231, concerning Manufacturing, Refinishing, and Restoring Wood
Products, was adopted by the commission in July 1997. This section is more
comprehensive, and applies to the same facilities as sec.106.222, which
is no longer needed. 

Section 106.224(1) has been amended to remove an incorrect reference to
a standard exemption number that was valid prior to November 1996 and should
no longer be used as a cross-reference. 

The amendment to sec.106.321 expands the ability of small foundries with
insignificant air emissions to obtain authorization for construction or 
modification
and corrects an apparent typographical error in the exemption. The revised
exemption allows the production of ductile iron, the use of a fluxing agent
for aluminum foundries, the limited melting of brass and bronze, and prohibits
the use of "manganese" bronze rather than "magnesium" bronze, which was 
previously
prohibited and does not exist as a viable alloy. Through these amendments
to sec.106.321, an estimated 40 foundries will be permitted by rule consistent
with advances in chemistry and process technology. The amount of chemicals
used in these processes is minimal, as are the air emissions. 

The commission directed that the Air New Source Review Permits (NSRP) Division
evaluate the protectiveness of a significant portion of the exemptions from
permitting (previously referred to as standard exemptions). The protectiveness
evaluation for sec.106.373, concerning Refrigeration Systems, revealed that
in general, it was protective for most compounds. However, additional 
information
was needed to assess protectiveness in all situations. Based on the technical
evaluation of the exemption and comments received from affected industry and
regional offices, the commission determined that the exemption required minor
clarifications to ensure its protectiveness through prohibitions of some 
compounds.
The compounds that this exemption prohibits are those that have a higher 
potential
for off-property environmental and health effects. The commission does not
believe that these compounds are commonly used as refrigerants, and there
will be minimal economic effect as a result of their prohibition. 

Limits on the amount of refrigerant allowed on-site and setback distances
are not being adopted. Refrigeration systems are designed to contain high-
pressure
gases and operators do not want frequent, expensive recharges, nor do they
want to lose cooling power. System leaks are infrequent, of smaller volume,
and repaired quickly. 

As proposed, these amendments contained specific requirements to prevent
accidental releases of ammonia from refrigeration systems and requirements
for leak detection and repair. There are a number of standards, building codes,
and federal regulations that affect the design, construction, installation,
and operation of systems using anhydrous ammonia (ammonia). The added 
requirements
in this exemption, which include registration and maintaining a system with
no detectable leaks off the site, are therefore intended to complement those
strategies rather than compounding them. Refrigeration systems using 10,000
pounds or more of ammonia must comply with 40 Code of Federal Regulations
(CFR) Part 68, Chemical Accident Prevention Provisions. The commission believes
that the existing industry installation codes as well as Occupational Safety
and Health Administration (OSHA) rules and 40 CFR Part 68 provide ample 
protection
against accidental releases of refrigerant, and ensure very low emissions
in normal operation without regulatory overlap. In order to gather more 
information
on the need for additional regulations for smaller systems, the commission
will require facilities with refrigeration systems using ammonia to register
using the PI-7 form. The commission staff will continue to examine the issue
and, if necessary, recommend amendment of the section in a later rulemaking. 
The incorporation of the effects screening level (ESL) limit on refrigerants
serves to prevent highly toxic materials from being used in exempted systems.
ESLs are used to evaluate the potential for effects as a result of exposure
to a particular substance. They are based on data concerning health effects,
odor, nuisance potential, vegetation effects, or corrosion effects. They are
not ambient air standards. If predicted or measured airborne levels of a 
substance
do not exceed the screening level, the commission would not expect any effects.
If concentrations of a substance exceed the ESL, it does not necessarily 
indicate
a problem, but may be a trigger for a more in-depth review. 

The adopted amendment to sec.106.373 would modify the existing standard
exemption by prohibiting the use of compounds in refrigeration systems with
an ESL less than 150 &micro; g/m<sup>3. Through dispersion
modeling, the commission has determined that the use of substances with an
ESL below that figure could result in a ground level concentration that may
not be protective of human health in all situations. Substances with an ESL
below 150 &micro; g/m<sup>3 would require a larger
area for dispersal and dilution to safe levels than is provided by the typical
users of this exemption. The health effects would vary on the type of substance
involved and length of exposure, but systems using substances with an ESL
below 150 &micro; g/m<sup>3 would require a more extensive
engineering and toxicological review to assure their protectiveness and would
not be suitable to exempt from permit. Modeling data concerning ESL and health
effects is available through the commission's Toxicology and Risk Assessment
Division. 

Section 106.418 is amended to correct a reference in the rule to 30 TAC
Chapter 115, Subchapter D. The correct reference is Subchapter E. 

Section 106.454 is amended to add a reference to the section designation
of 30 TAC sec.115.415. 

Under the Texas Clean Air Act, sec.382.057, the commission finds that
under the adopted rules, changes within any facility or types of facilities
that are exempt from the requirements of sec.382.0518 will not make a 
significant
contribution of air contaminants to the atmosphere. 

REGULATORY IMPACT ANALYSIS

The amendments to sec.sec.106.2, 106.224, 106.418, and 106.454 are
entirely administrative and have no economic effect. Section 106.222 was 
replaced,
in 1997, by a new and more comprehensive sec.106.231, concerning Manufacturing,
Refinishing, and Restoring Wood Products. Section 106.222 can consequently
be repealed with no effect on users of the exemption. The amendments to 
sec.106.321
increase the number of metallurgic operations that can be allowed under the
exemption. The commission is basing this expansion on current foundry practices
and experience which demonstrates that these additional operations may be
conducted with no significant increase in emissions. The commission also 
estimates
that 40 additional foundries will be able to use the exemption. 

The amendments to sec.106.373 should cause minimal economic effect on
users of the exemption. Current industry practice demonstrates that the 
compounds
authorized under this exemption are the most commonly used refrigerants. 
Operators
of systems that must use a compound other than those authorized in this 
exemption
would still be able to obtain a permit for the system under 30 TAC Chapter
116, Control of Air Pollution by Permits for New Construction or Modification.
The commission has determined that the rulemaking does not meet the definition
of a major environmental rule as defined in sec.2001.0225. The amendments
to sec.106.373 are intended to reduce risks to human health from environmental
exposure but do not adversely affect in a material way the economy, 
productivity,
competition, jobs, the environment, or the public health and safety of the
state. 

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact analysis for these adopted
amendments under Texas Government Code, sec.2007.043. The following is a
summary of that assessment. The amendments in this action have four purposes.
The amendments to sec.sec.106.2, 106.224, 106.418, and 106.454 are 
administrative
or corrective and have no substantial effect. Section 106.222 is repealed
because it was replaced by the more comprehensive sec.106.231 in 1997. The
repeal of sec.106.222 will have no regulatory or economic effect because
sec.106.231 applies to the same facilities as the repealed section. The
amendments to sec.106.321 expand the types of metallurgic operations that
may be conducted at foundries without an operating permit. The commission
is basing this expansion on current foundry practices and experience which
demonstrates that these additional operations may be conducted with no 
significant
increase in emissions. 

The amendments to sec.106.373 should not burden private, real property.
Current industry practice demonstrates that the compounds authorized under
this exemption are the most commonly used refrigerants. Operators of systems
that must use a compound other than those authorized in this exemption would
still be able to obtain a permit for the system under 30 TAC Chapter 116,
Control of Air Pollution by Permits for New Construction or Modification.
The compounds prohibited for use under this exemption would pose unacceptable
health risks if released in small amounts. This rule action is taken in response
to a real and substantial threat to public health and safety and meets the
conditions of Texas Government Code, sec.2007.003(b)(13). 

This action does not create a burden on private, real property. 

COASTAL MANAGEMENT PLAN

The commission has determined that this rulemaking action relates to an
action or actions 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.), 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 30 TAC 
sec.281.45(a)(3),
relating to actions and rules subject to the CMP, commission rules governing
air pollutant emissions must be consistent with the applicable goals and 
policies
of the CMP. The commission has reviewed this rulemaking action for consistency
with the CMP goals and policies in accordance with the rules of the Coastal
Coordination Council, and has determined that this rulemaking action is 
consistent
with the applicable CMP goal 31 TAC sec.501.12(1) by protecting and preserving
the quality and values of coastal natural resource areas. This action is 
consistent
with 31 TAC sec.501.14(q), which requires the commission to protect air
quality in coastal areas. The administrative corrections and repeal in this
action will have no effect on air emissions. The amendments to 30 TAC 
sec.106.321
are based on proven industry practices and will not allow new emissions. The
specific amendments to 30 TAC sec.106.373 restrict the use of refrigerants
according to their potential for off-site health effects. 

HEARING AND COMMENTERS

A public hearing regarding the proposed rules was held in Austin on January
26, 1998. The public comment period closed February 2, 1998. Eastman Chemical
Company (Eastman) and Red Star Yeast and Products (Red Star) submitted comments
on the proposal. The United States Environmental Protection Agency (EPA) 
acknowledged
the proposal but had no comments. 

Eastman commented that the proposal was not clear as to which refrigerants
would be exempted in sec.106.373(1) under the classification of "Freon."
The commenter inquired whether this classification would include all 
fluorocarbon
refrigerants, substances with a DuPont chemical trade name, or substances
on the ESL list. Eastman also requested that the rule language specify which
refrigerant blends and substitutes will be eligible for exemption. 

The commission agrees that including Freon under the classification of
asphyxiant could be confusing, as the term "Freon" can include a variety of
compounds. The commission modified the rule language to include a list of
asphyxiant gases that may be used as refrigerants under this exemption. An
asphyxiant is a non-toxic gas that deprives the body of oxygen. Instead of
a separate listing of compounds that would qualify for exemption, the commission
has elected to use the list of 30-minute ESLs. Any compound with an ESL greater
than 150 &micro; g/m<sup>3 may be authorized by this
paragraph. The commission has determined through computer modeling that releases
of refrigerant gas using compounds with ESLs lower than 150 &micro; g/m<sup>3 
may result in ground level concentrations that may
not be protective of human health in all situations. Additional discussion
of ESLs can be found under EXPLANATION OF ADOPTED RULES. 

Eastman commented that the restrictions on the use of anhydrous ammonia
address construction design safety and hazard communication. These issues
are covered in the regulations of OSHA. Additionally, warning signs as required
by sec.106.373(3)(C) would not be needed if a plant has a large buffer zone
and security fence. Eastman also stated that the rule language which requires
reports of unauthorized releases is redundant, as this subject is covered
in 30 TAC sec.101.6. 

After further study, the commission has concluded that the ammonia restrictions
in the proposed amendments may be duplicative with federal safety requirements
or system installation standards. The commission is choosing not to go forward
with the requirements concerning the accidental release of anhydrous ammonia
and will gather additional data on the number of these systems through 
registration.
The commission recognizes that facilities operating under the exemption with
ammonia refrigerant of 10,000 pounds or more must comply with 40 CFR Part
68, concerning Chemical Accident Prevention Provisions. All facilities using
ammonia as a refrigerant will be required to register with the commission,
allowing the commission to make a determination if additional restrictions
on smaller refrigeration plants are necessary. It will also prevent any 
regulatory
overlap between the rules of the commission and federal rules. The commission
agrees that the reference to 30 TAC sec.101.6, concerning Upset Reporting
and Recordkeeping Requirements, is unnecessary and has deleted that language. 
Eastman concluded its comments by stating that keeping records on leak
detection and repair is burdensome and has no benefit. This commenter also
suggested that the commission include a provision within the exemption that
would defer repair of minor leaks requiring a system shutdown when the shutdown
would cause greater emissions than the leak. Eastman requested that the repair
be made at the next scheduled shutdown. Red Star commented that locating small
leaks on large systems can be difficult, and the regulation should include
relief from repair and documentation for minor leaks. Red Star also commented
that a requirement to repair leaks within 15 days would not be compatible
for systems that cannot be shutdown in that time due to process needs. 

The commission has considered these issues and believes that the language
in the proposal on leak detection and repair is overly prescriptive. 
Installation
codes for these refrigeration systems generally provide good initial assurance
of the system integrity. The commission also believes that it is in the 
operator's
best interest to maintain a system that is vapor tight for effective and 
efficient
operation. The larger systems with 10,000 pounds of ammonia or more, which
are potentially of more concern, are regulated by EPA under 40 CFR Part 68,
as well as other federal regulations. To reduce the chances of harm or nuisance
from ammonia leaks, the commission is requiring that leaks not be detectable
from beyond the property line. The operator will need to determine the most
effective way to meet the property line requirement. Therefore, the commission
is not adopting specific leak detection and repair requirements. 

Red Star commented that a definition of effects screening level be included
in the preamble. The commenter also encouraged the commission to expand the
materials that may be used to construct protective barriers around ammonia
storage tanks and requested confirmation that storage systems located above
traffic areas are not required to be protected. 

The commission has included an explanation of ESLs which states that they
are used to evaluate the potential for effects as a result of exposure to
a particular substance. As stated earlier, the commission has reexamined the
basis for proposing additional accident prevention requirements on refrigeration
plants using anhydrous ammonia. Older facilities currently using ammonia would
not be covered under a new exemption. Therefore, the commission has decided
to delete from this adoption the accident prevention requirements for facilities
using anhydrous ammonia as a refrigerant. The commission will require 
registration
of facilities in order to allow the commission to determine if additional
accident prevention restrictions are necessary. 

Red Star expressed concerns about modifications to existing systems and
at what point the modifications would subject the system to the amendments
adopted in this action. 

If a series of exemptions has been published since a company's start of
construction, the company may select any subsequent exemption it is able to
meet. Additionally, if a company modifies its operations such that it no longer
meets a specific exemption, the company is entitled to remodify operations
to re-qualify for any exemption in effect.

SUBCHAPTER A.General Requirements
30 TAC sec.106.2
STATUTORY AUTHORITY

The amendment is adopted under the Texas Health and Safety Code, the Texas
Clean Air Act, sec.382.012, which provides the commission with the authority
to develop a comprehensive plan for the state's air, sec.382.017, which
provides the commission with the authority to adopt rules, and sec.382.057,
which provides the commission with the authority to exempt certain facilities
from permitting. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809819
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER I.Manufacturing
30 TAC sec.106.222
STATUTORY AUTHORITY

The repeal is adopted under the Texas Health and Safety Code, the Texas
Clean Air Act, sec.382.012, which provides the commission with the authority
to develop a comprehensive plan for the state's air, sec.382.017, which
provides the commission with the authority to adopt rules, and sec.382.057,
which provides the commission with the authority to exempt certain facilities
from permitting. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809820
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1966

30 TAC sec.106.224
STATUTORY AUTHORITY

The amendment is adopted under the Texas Health and Safety Code, the Texas
Clean Air Act, sec.382.012, which provides the commission with the authority
to develop a comprehensive plan for the state's air, sec.382.017, which
provides the commission with the authority to adopt rules, and sec.382.057,
which provides the commission with the authority to exempt certain facilities
from permitting. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809821
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER M.Metallurgy
30 TAC sec.106.321
STATUTORY AUTHORITY 

The amendment is adopted under the Texas Health and Safety Code, the Texas
Clean Air Act, sec.382.012, which provides the commission with the authority
to develop a comprehensive plan for the state's air, sec.382.017, which
provides the commission with the authority to adopt rules, and sec.382.057,
which provides the commission with the authority to exempt certain facilities
from permitting. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809822
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER P.Plant Operations
30 TAC sec.106.373
STATUTORY AUTHORITY

The amendment is adopted under the Texas Health and Safety Code, the Texas
Clean Air Act, sec.382.012, which provides the commission with the authority
to develop a comprehensive plan for the state's air, sec.382.017, which
provides the commission with the authority to adopt rules, and sec.382.057,
which provides the commission with the authority to exempt certain facilities
from permitting. 

sec.106.373.Refrigeration Systems (Previously SE
103).
Refrigeration systems, including storage tanks used in refrigeration
systems, that use one of the following categories of refrigerant are exempt: 
(1) simple asphyxiants limited to argon, carbon dioxide, ethane,
helium, hydrogen, methane, neon, nitrogen, propane, propylene, or liquefied
natural gas; or 

(2) any other chemical, excluding anhydrous ammonia,
with a short-term effects screening level (ESL) published in the commission's
ESL list greater than 150 &micro; g/m<sup>3 

(3) anhydrous ammonia (ammonia) provided: 

(A) the facility is registered with the commission's Office
of Air Quality in Austin using Form PI-7; and 

(B) the system is maintained in good working order and such
that ammonia leaks are not detectable beyond the operator's property line. 
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.

Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809823
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER R.Service Industries
30 TAC sec.106.418
STATUTORY AUTHORITY

The amendment is adopted under the Texas Health and Safety Code, the Texas
Clean Air Act, sec.382.012, which provides the commission with the authority
to develop a comprehensive plan for the state's air, sec.382.017, which
provides the commission with the authority to adopt rules, and sec.382.057,
which provides the commission with the authority to exempt certain facilities
from permitting. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809826
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER T.Surface Preparation
30 TAC sec.106.454
STATUTORY AUTHORITY

The amendment is adopted under the Texas Health and Safety Code, the Texas
Clean Air Act, sec.382.012, which provides the commission with the authority
to develop a comprehensive plan for the state's air, sec.382.017, which
provides the commission with the authority to adopt rules, and sec.382.057,
which provides the commission with the authority to exempt certain facilities
from permitting.

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809827
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1966

CHAPTER 116.Control of Air Pollution by Permits for New Construction
or Modification
The Texas Natural Resource Conservation Commission (commission) adopts
the repeal of sec.sec.116.10, 116.11, 116.13, 116.14, 116.110-116.112,
116.114-116.118, 116.120-116.126, and 116.310-116.314 and new sec.sec.116.10,
116.11, 116.13-116.15, 116.110-116.112, 116.114-116.118, 116.120-116.126,
116.180-116.183, and 116.310-116.314, concerning Control of Air Pollution
by Permits for New Construction or Modification.

The commission also adopts amendments to sec.sec.116.130-116.134, 116.136,
116.137, 116.140, 116.141, 116.143, 116.160, 116.161, 116.170, 116.174, 116.610,
116.611, 116.614, 116.615, 116.617, 116.620, 116.621, 116.710, 116.711, 116.714,
116.715, 116.721, 116.730, 116.740, and 116.750, concerning Control of Air
Pollution by Permits for New Construction or Modification. 

Sections 116.14, 116.15, 116.110, 116.111, 116.115-116.117, 116.121, 116.122,
116.133, 116.137, 116.141, 116.180, 116.182, 116.183, 116.311, 116.312, 116.610,
116.620, 116.621, 116.711, and 116.740 are adopted with changes to the proposed
text as published in the March 20, 1998, issue of the 
Texas Register (23 TexReg 2953). Sections 116.10, 116.11, 116.13, 116.112,
116.114, 116.118, 116.120, 116.123-116.126, 116.130-116.132, 116.134, 116.136,
116.140, 116.143, 116.160, 116.161, 116.170, 116.174, 116.181, 116.310, 116.313,
116.314, 116.611, 116.614, 116.615, 116.617, 116.710, 116.714, 116.715, 116.721,
116.730, and 116.750 and the repeals are adopted without changes and will
not be republished. 

The commission adopts the review of the rules contained in 30 TAC Chapter
116, concerning Control of Air Pollution by Permits for New Construction or
Modification. This review was adopted in accordance with Article IX, sec.167,
General Appropriations Act, 75th Legislature, 1997. 

EXPLANATION OF ADOPTED RULES. The commission adopts a new sec.116.15
and a new Subchapter C, sec.sec.116.180-116.183, for the purpose of implementing
a program to meet the requirements of Title III of the 1990 Federal Clean
Air Act (FCAA) concerning Hazardous Air Pollutants, sec.112(g), Modifications,
as set forth in 40 Code of Federal Regulations (CFR) Part 63, sec.sec.63.40-
63.44,
as amended December 27, 1996, concerning Hazardous Air Pollutants: 

Regulations Governing Constructed or Reconstructed Major Sources, Subpart
B, Requirements for Control Technology (sec.112(g)). Section 112(g) was
designed to ensure that emissions of toxic air pollutants meet the requirements
of a case-by-case maximum achievable control technology (MACT) if a major
source of hazardous air pollutants (HAPs) is constructed or reconstructed
before the United States Environmental Protection Agency (EPA) issues a MACT
standard or air toxics regulation for that particular category of sources
or facilities. 

Changes were made throughout the rules as the result of ongoing efforts
by the commission for regulatory reform. These changes are for purposes of
simplification and clarification only and do not involve substantive changes
in the requirements of this chapter. In order to simplify the regulatory reform
effort, the commission proposed the repeal of sec.sec.116.10, 116.11,
116.13, 116.14, 116.110-116.112, 116.114-116.118, 116.120-116.126, and 116.310-
116.314
(these sections are being adopted by the commission with the changes made
under regulatory reform and in response to comments). By repealing these 
sections,
the commission was able to revise the language without having to make extensive
use of the editing requirements of the Texas Register
. Changes proposed in the Texas Register
must be shown by using underlining and bracketing. The commission
was concerned that significant revisions to the rules would be difficult for
the regulated community and the public to read and comment on if the underlining
and bracketing editing marks were used. In general, these changes involve
using shorter sentences, limiting each citation to one main concept, reordering
requirements into a more logical sequence, and using more commonplace 
terminology.
Several suggestions of alternative language from that proposed by the commission
were received. This preamble will discuss any changes to the rule language
in the appropriate sections of the preamble. Although sections of Subchapter
F, concerning Standard Permits, and Subchapter G, concerning Flexible Permits,
were revised, these subchapters were not included in this extensive regulatory
reform effort. In addition, not all of Subchapter B was included. These 
subchapters
and remaining sections will be reviewed at a later date for purposes of 
regulatory
reform. 

The division related to nonattainment permitting and Subchapter E related
to emergency orders have not been included in this rulemaking, since they
are expected to be revised in subsequent rulemakings that are on a different
schedule. Those sections will be reviewed for regulatory reform purposes at
that time. 

The following paragraphs describe the adopted amendments to Chapter 116
by subchapter. 

SUBCHAPTER A: DEFINITIONS. Section 116.10, General Definitions, sec.116.11,
Compliance History Definitions, sec.116.13, Flexible Permit Definitions,
and sec.116.14, Standard Permit Definitions, were included in the regulatory
reform review. These sections contain definitions that are used throughout
Chapter 116 and in specific subchapters of Chapter 116. The commission is
readopting the definitions because they are necessary for the implementation
of the requirements of Chapter 116. The definitions provide information that
assists the regulated community and the public in fully understanding the
requirements of the subchapters to which they are related. 

The commission amended Subchapter A by deleting those definitions that
are identical or essentially the same as those in 30 TAC Chapter 101, concerning
General Rules. As a result, in Chapter 116, the definitions of "de minimis
impact" and "emissions unit" were deleted to eliminate redundancy. 

In addition, the commission adopted amendments to the definitions that
reference exemptions from permitting by referring to 30 TAC Chapter 106, 
concerning
Exemptions from Permitting. These references were proposed in response to
the recent revision to Chapter 116 that moved exemptions to Chapter 106. Correct
references to the new exemption chapter, or specific sections within that
chapter, have been made throughout the rules. 

The definition of "federally enforceable" is revised to include the requirements
of 30 TAC Chapter 113, Subchapter C, concerning National Emissions Standards
for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR
Part 63). These standards (commonly referred to as MACTS) are incorporated
by reference into Chapter 113, Subchapter C and this reference is being included
simply to direct the reader to the correct chapter of the commission's rules. 
The definition of "lead smelting plant" is revised to correct an internal
conflict. The former definition stated that processing may include "oxidizing
into lead oxide." This conflicts with the last sentence of the definition,
which says that a facility that remelts lead bars or ingots is not a lead
smelting plant. The conflict arises because lead oxide is only made by melting
lead ingots. 

Finally, the commission adopted new sec.116.15, concerning Section 112(g)
Definitions. The definitions contained in sec.116.15 will be used in conjunction
with Subchapter C, concerning Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part
63). The definitions in sec.116.15 are essentially the same as those contained
in 40 CFR 63, sec.63.41, concerning Definitions under Subpart B, Requirements
for Control Technology (see 61 FR 68399). 

SUBCHAPTER B: NEW SOURCE REVIEW PERMITS. The sections in Subchapter B,
New Source Review Permits, Division 1: Permit Application (sec.116.110,
Applicability, sec.116.111, General Application, sec.116.112, Distance
Limitations, sec.116.114, Application Review Schedule, sec.116.115, General
and Special Conditions, sec.116.116, Changes to Facilities, sec.116.117,
Documentation and Notification of Changes to Qualified Facilities, and 
sec.116.118,
Pre-change Qualification), were included in the regulatory reform changes.
The commission is readopting these sections because they are necessary in
order to implement the new source review permitting requirements of the Texas
Clean Air Act (TCAA). In general, these rules describe what a person must
do in order to construct a new facility or modify an existing facility. The
application and distance limitation sections contain the requirements that
must be addressed in applications and provide guidance for how applications
will be reviewed by the executive director. The executive director is authorized
to include general and special conditions in all permits and the rule contains
general conditions that apply to all holders of permits, special permits,
standard permits, and special exemptions. 

The sections in Subchapter B, New Source Review Permits, Division 2: Compliance
History, (sec.116.120, Applicability, sec.116.121, Exemptions, sec.116.122,
Contents of Compliance History, sec.116.123, Effective Dates, sec.116.124,
Public Notice of Compliance History, sec.116.125, Preservation of Existing
Rights and Procedures, and sec.116.126, Voidance of Permit Applications),
were included in the regulatory reform changes. The commission is readopting
these provisions since they are necessary to implement the TCAA requirements
in sec.382.0518(c) when reviewing applications for initial permit issuance,
amendment, or renewal. The sections describe when such a review will be required
as well as provide direction for how that review will be conducted and what
must be included in the review. 

The commission adopted amendments to sec.116.110, concerning Applicability,
to reference standard permits that currently exist in 30 TAC Chapter 321,
Subchapter K, concerning Confined Animal Feeding Operations, 30 TAC Chapter
332, concerning Composting; and 30 TAC Chapter 330, Subchapter N, concerning
Landfill Mining. This amendment provides clarification regarding all the 
standard
permits (for air emissions) that are currently available. 

The operations certification requirements contained in the existing 
sec.116.110(b)
have been deleted as a result of recommendations made by the commission's
regional offices and the Office of Compliance and Enforcement. The operations
certification requirement created unnecessary reporting and paperwork and
can be implemented more effectively through new source review (NSR) permits
on a case-by-case basis. The operations certifications were created for the
purpose of implementing Texas Health and Safety Code, sec.382.0518(f), which
gives the commission the authority to require a demonstration from owners
and operators that a facility as constructed complies with the terms of the
preconstruction permit and that the operation of the facility will not violate
any rules or regulations of the commission. The statutory language allows
the commission flexibility to determine the time and manner of such 
demonstration.
The rule change does away with the requirement to submit the two forms to
the agency which have been found to be unnecessary in practice. The permit
holder would not be relieved from the underlying requirements that are the
subject of the forms (to have constructed in compliance with their 
preconstruction
permits and to operate in compliance with commission rules and regulations.)
These requirements are established by rule in sec.116.115(b)(2)(I). 

The new sec.116.110(c), concerning Exclusion, makes it clear that affected
sources (as defined in sec.116.15(1), concerning Section 112(g) Definitions)
that are subject to Subchapter C are not authorized to use an exemption under
Chapter 106, or an authorization under sec.116.116(e), concerning changes
to qualified facilities. Affected sources subject to Subchapter C can use
standard permits under Subchapter F of this chapter if the terms and conditions
of the standard permit meet the criteria of Subchapter C. As currently written,
none of the existing standard permits meet the criteria of Subchapter C (e.g.,
there is no requirement for public notice). These changes were made to ensure
that applicants obtain the appropriate authorization under Subchapter C and
are described in more detail in the section of the preamble addressing 
Subchapter
C. 

A new sec.116.110(d), concerning change in ownership (formerly sec.116.110(c))
is adopted. This subsection was revised to specify that new owners must submit
information regarding the date of the change in ownership, the name of the
new owner, a contact person for the new owner, and the address and phone number
of the new owner. 

The commission adopts a new sec.116.110(e) to reflect the recent revisions
to the Texas Engineering Practice Act (TEPA) which now refers to "licensed"
engineers instead of "registered" engineers. The correct name of the Texas
Board of Professional Engineers is included. The rule is revised to make clear
that for projects with a capital cost above $2 million, the project must be
submitted under the seal of a Texas licensed professional engineer. 

Section 116.111(2)(E), concerning national emissions standards for hazardous
air pollutants for source categories (commonly referred to as MACTs), is revised
to reference the requirements of Chapter 113, Subchapter C. The proposed 
language
is modified by the commission to clarify that permit applications must 
demonstrate
compliance with all applicable MACTs. The language, as proposed, may be 
interpreted
as saying that applicants would not have to show compliance with all MACTs,
regardless of whether or not the MACTs are listed in Chapter 113, Subchapter
C. The proposed language was also in sec.116.311(a)(4), concerning Permit
Renewal Application, sec.116.610(a)(5), concerning Applicability (for standard
permits), sec.116.620(a)(16), concerning Installation and/or Modification
of Oil and Gas Facilities, and sec.116.711, concerning Flexible Permit 
Application.
This correction has been made in all of these sections. 

Changes are adopted to implement FCAA, sec.112(g) and 40 CFR Part 63,
Subpart B, requirements in sec.116.111(2)(K), concerning general application,
to ensure that applicants submit information in permit applications that 
demonstrates
that the requirements of Subchapter C are met. 

Section 116.112, concerning Distance Limitations, is revised to be consistent
with the statutory provisions in the Texas Solid Waste Disposal Act, 
sec.361.102,
concerning Prohibition on Permit for Hazardous Waste Management Facilities
Within a Certain Distance of Residence, Church, School, Day Care Center, Park,
or Public Drinking Water Supply. The former sec.116.112(b)(4) contained
a typographical error that would have allowed the construction of any new
commercial hazardous waste management facility or units of a facility to be
located within 2,640 feet of any specified off-site receptor. The statutory
provision prohibits the construction of a new commercial hazardous waste 
management
facility that would be within 2,640 feet of any specified off-site receptor. 
Section 116.115(c), concerning special conditions, is revised to include
a reference to the new requirements in Subchapter C. This change allows the
executive director to include a special condition in permits requiring permit
holders to obtain prior written approval before constructing a facility using
a standard permit under Subchapter F or an exemption under Chapter 106, if
the change would cause the facility to become subject to Subchapter C. During
the administrative and technical review, the executive director may determine
that the proposed change will trigger one or more of the prohibitions listed
under sec.116.115(B)(i) and (ii) and the request for authorization under
Subchapter F or Chapter 106 will be denied. 

Section 116.116(b)(3) is added to require permit amendments that concern
a change subject to Subchapter C to comply with the provisions for public
notice and comment under Subchapter B of this chapter. This change was made
because 40 CFR Part 63, sec.63.43(c)(2)(ii), requires case-by-case MACT
determinations to be subject to public notice. 

Subsection (f) was added to sec.116.116 to authorize the use of discrete
emission reduction credits (DERCs) to exceed permit allowables under certain
conditions. The commission recently adopted a revised emissions banking and
trading rule (22 TexReg 12517) to allow a source to meet emission control
requirements by purchasing and using credits generated by another source which
has reduced its emissions below the level required by rule or permit. The
revised banking rule allows for the use of DERCs to exceed permitted allowable
emission levels by a certain amount once within any 24-month period. In ozone
nonattainment areas, this exceedance must be 25 tons or less of nitrogen oxides
or five tons or less of volatile organic compounds. In other areas, the amount
may not exceed the prevention of significant deterioration significance levels
as provided in 40 CFR sec.52.21(b)(23). In addition to other requirements,
these uses must be approved by the executive director and may not cause or
contribute to a condition of air pollution. The adopted language of 
sec.116.116(f)
allows the use of credits to authorize certain exceedances of permit allowables,
and is consistent with existing authorization in Chapter 101. 

Section 116.117(a)(4), concerning Documentation and Notification of Changes
to Qualified Facilities, is revised to require persons making changes to 
qualified
facilities under sec.116.116(e) to maintain documentation which demonstrates
that the project will comply with Subchapter C. 

A minor amendment was made to sec.116.118 that added the word "or" in
sec.116.118(a)(1). This was done to correct a previous typographical error. 
The commission amended sec.116.130(a), concerning applicability of public
notification and comment procedures, by adding a reference to permit renewals.
Applications for permit renewals are already required to go through public
notice. This change merely includes a reference to renewals in this section.
Subsection (a) was revised to more closely track TCAA, sec.382.056, concerning
Notice of Intent to Obtain Permit or Permit Review; Hearing, by including
the phrase "or to be located." This revision does not change the current 
requirement
to publish notice in a newspaper of general circulation in the municipality
where the facility is located, or to be located. Section 116.130 was also
revised by adding a new subsection (c) that requires applications subject
to review under Subchapter C to go through public notice. All applications
subject to the requirements of FCAA, sec.112(g) and 40 CFR Part 63, Subpart
B, whether initial applications or amendments to existing case-by-case MACT
determinations, must go through the public notice process. This is because
40 CFR Part 63, Subpart B, sec.63.43(c)(2)(ii), requires that all such 
determinations
be subject to public notice. 

To assist in the implementation of the commission's directive to facilitate
and improve the public notice process, the phone number of the appropriate
commission office to contact for further information will now be included
as a part of the public notice required in sec.116.132(a)(11) and 
sec.116.133(a)(6)
rather than the phone number of the appropriate commission regional office. 
Section 116.136(a) was revised to correctly refer to the requirement that
the executive director make a preliminary determination to issue or deny a
permit subject to the FCAA, Title I, Parts C or D or to 40 CFR sec.51.165(b)
or the availability of the preliminary analysis that is required for other
permitting actions. This change makes sec.116.136(a) consistent with the
requirements of sec.116.132(a)(6) and (7), concerning public notice format. 
The commission amended sec.116.140, concerning Applicability of Permit
Fees, by deleting the reference to operating permits and standard exemptions,
because these types of authorizations are no longer included in Chapter 116.
The reference to operating permits was deleted because the commission no longer
issues state operating permits apart from a state construction permit. This
should not be confused with federal operating permits issued under 30 TAC
Chapter 122, concerning Federal Operating Permits. Exemptions from permitting
are now contained in Chapter 106. 

Section 116.141(b)(1) was amended to specify that any application for new
or modified facilities controlled by the federal government will be charged
a fee of $450. The former provision qualified the fee requirement for federal
government applications submitted after January 1987. Since all of the pre-1987
applications from the federal government have been acted on by the commission,
this provision is no longer necessary. 

Section 116.141(c)(1)(A) is revised to address an interpretation problem
with the current rule. As it was written, the rule confused some applicants
and staff concerning the computation of direct costs for facilities that are
no longer permitted (e.g., the permit expired and was not renewed). A historical
review of this section indicated that the original fee language was added
prior to any requirements for renewal (and expiration) of permits. The confusion
centered on whether "permitted" meant currently permitted or ever permitted
regardless of current status. With two possible interpretations, neither has
been consistently applied and the adopted language rectifies this situation.
The commission does not believe that it is appropriate to allow the direct
costs of process and control equipment of a facility to be excluded if the
facility once had a permit but no longer does. Allowing this exclusion would
promote the argument that higher renewal fees could be avoided in favor of
a minimum new permit fee. It is not expected that this change will result
in significantly higher fees and it will ensure that all applications are
reviewed consistently for fee determinations. 

The commission amended sec.116.143 by correcting the commission mailing
address where permit fees are submitted. The previous mailing address was
a street address rather than a post office box. 

SUBCHAPTER C: HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED
OR RECONSTRUCTED MAJOR SOURCES (FCAA, sec.112(g), 40 CFR Part 63). The new
Subchapter C is intended to meet the requirements of Title III of the 1990
FCAA concerning Hazardous Air Pollutants (HAPs), sec.112(g), Modifications,
as set forth in 40 CFR 63, sec.sec.63.40-63.44, as amended December 27,
1996. Section 112(g) was designed to ensure that emissions of toxic air 
pollutants
meet the requirements of case-by-case MACT if a major source is constructed
or reconstructed before EPA issues a MACT standard or air toxics regulation
for that particular category of sources or facilities.

40 CFR Part 63, Subpart B, requires the commission to make case-by-case
MACT determinations for affected sources (as defined in sec.116.15(1), 
concerning
Section 112(g) Definitions) that become subject to sec.112(g) prior to the
EPA promulgating a MACT that would apply to the affected source. 40 CFR 63,
sec.63.42, allows states to rely on existing NSR permitting programs to
implement the requirements of sec.112(g) if the NSR program meets the 
requirements
of that subpart. The commission believes that the adopted revisions to Chapter
116 concerning sec.112(g) will successfully implement the requirements of
sec.112(g) and 40 CFR Part 63, Subpart B. 

40 CFR Part 63, sec.63.40(b), Overall Requirements, says in part that
the "requirements of sec.sec.63.40 through 63.44 of this subpart apply
to any owner or operator who constructs or reconstructs a major source of
hazardous air pollutants after the effective date of the section 112(g)(2)(B)
(as defined in sec.63.41) and the effective date of a title V permit program
in the State...." The commission interpreted sec.63.40(b) as containing
a two-part test regarding the effective date of 40 CFR Part 63, Subpart B:
the sec.112(g) program would not be effective in a state until June 29,
1998, passed and a state had an approved federal operating permit program.
At the time the revisions to Chapter 116 were proposed, the commission
understood that the interim approval for the source category limited program
was no longer considered to be effective by the EPA (that program was approved
on June 25, 1996 (61 FR 32693). The EPA had informed the commission that due
to the extensive revisions to Chapter 122 in November 1997, it no longer 
considered
the operating permit program to be approved in Texas. Thus, since sec.63.40(b)
has a two-part test, the commission believed that the sec.112(g) program
would not be effective in Texas until June 29, 1998, passed and the EPA approved
the November 1997 revisions to Chapter 122. 

Based on comments submitted by the EPA in response to the proposed rules,
and in discussions with EPA Region VI staff, the commission now understands
that EPA has reconsidered its position concerning the source category limited
program and now considers it to be the approved federal operating permit program
for the state. The EPA believes that once a state has an approved program
(whether it is full, interim, or source category limited), then that is the
approval that triggers the effective date for sec.112(g). Thus, regardless
of whether a source is subject to either the full or interim program, once
the interim program was approved in June 1996, that is the approval date that
is used to trigger the effective date provisions of sec.63.40(b). 

The commission has revised sec.116.180(b) and sec.116.182 to make it
clear that the sec.112(g) program will be effective for all affected sources
in Texas on or after June 29, 1998. Thereafter, if a source makes a change
subject to Subchapter C, it must apply to the commission for a case-by-case
MACT determination under sec.116.182, concerning Application, regardless
of whether the source is subject to the interim or full operating permit 
program.
Administratively complete applications that are submitted prior to June 29,
1998, will not be subject to the requirements of Subchapter C. Section 
116.180(a)(1)(B)(vi)
was revised to include a reference to "affected source" and to correct a 
typographical
error that referred to the "executive director" twice in one sentence. 

All case-by-case MACT determinations are subject to the public notice 
requirements
of Subchapter B. Thus, affected sources will not be able to use a Chapter
106 exemption or an existing Subchapter F standard permit. Currently, none
of the existing standard permits meet the requirements of Subchapter C. Future
standard permits may be developed that meet the criteria of Subchapter C. 
Affected sources will not be able to use sec.116.116(e), concerning changes
to qualified facilities, because sec.63.43(d)(1) provides that the MACT
emission limitation "shall not be less stringent than the emission control
which is achieved in practice by the best controlled similar source, as 
determined
by the permitting authority." The commission believes that the use of best
available control technology (BACT) as required by Chapter 116 will, in most
cases, meet the level of control contemplated by sec.63.43(d)(1). Section
116.116(e) allows for the use of ten-year old BACT for qualified facilities.
In some cases, ten-year old BACT may not necessarily be equivalent to today's
BACT. If a case-by-case MACT determination is more restrictive than BACT,
the affected source will be required to meet the MACT requirements. An 
additional
prohibition on the use of sec.116.116(e) is the requirement for case-by-case
MACT determinations to go through public notice. 

Affected sources will have limited use of flexible permits under Subchapter
G. Currently, flexible permits allow for control that exceeds BACT on one
facility in lieu of installing controls on other facilities. Section 112(g)
and 40 CFR Part 63, Subpart B, require the case-by-case MACT determination
to be applied to the specific affected facilities. Therefore, sec.116.711(3)
was revised to indicate that BACT shall be applied to specific facilities
that must comply with Subchapter C. As long as a facility applies BACT and
conducts public notice, the facility would still be able to use flexible permits
in conjunction with determinations made under Subchapter C. Again, if a case-by-
case
MACT determination is more restrictive than BACT, the source will be required
to meet the MACT requirements. 

In sec.116.181, concerning Exclusions, the commission adopts the same
set of exclusions that are provided in 40 CFR 63, sec.63.40(c)-(f). The
commission has determined that in order to provide a program consistent with
the requirements of 40 CFR Part 63, sec.sec.63.40-63.44, the same set
of exclusions should be provided. 

In general, if the owner or operator wants to construct or reconstruct
an affected source (as specified in sec.116.180(a)(1) and (2), concerning
Applicability), then prior to that construction or reconstruction, the owner
or operator must apply to the commission for a case-by-case MACT determination
under sec.116.182, concerning Application. The application must contain
the information required by the commission as provided in sec.116.111, 
concerning
General Application. In addition, the application must specify the emission
controls that will ensure that MACT will be met. Finally, the application
for the proposed constructed or reconstructed affected source must undergo
the public notice requirements required by sec.116.130, which includes a
30-day public comment period and opportunity for a contested case hearing.
After fully considering public comments and the results of any hearing, the
commission would then issue (or deny) a permit, or approve a permit amendment,
authorizing the construction or reconstruction of the affected source. The
case-by-case MACT determination codified in a permit issued under Chapter
116 would become an applicable requirement of Chapter 122 after satisfying
the appropriate operating permit revision process and would be included as
a condition in an operating permit. 

The executive director of the commission certifies that the rule as adopted
satisfies all applicable requirements established by 40 CFR sec.sec.63.40-63.44
for a sec.112(g) program. As outlined in the EPA preamble to the final rules
implementing sec.112(g) (see 61 FR 68390), the program proposed is not required
to have EPA approval before taking effect. 

SUBCHAPTER D: PERMIT RENEWALS. The sections in Subchapter D (sec.116.310,
Notification of Permit Holder, sec.116.311, Permit Renewal Application,
sec.116.312, Public Notification and Comment Procedures, sec.116.313,
Renewal Application Fees, sec.116.314, Review Schedule) were included in
the regulatory reform changes. The commission is readopting these sections
because they implement the TCAA requirements in sec.382.055, concerning
renewals of NSR permits. The sections include the process for notifying permit
holders that their permits are due for renewal and they contain the requirements
for renewal fees and the review schedule for a renewal. The contents of a
renewal application are described as well as the requirements for public notice
of renewals. 

Section 116.311(5) is added to include the requirement that applicants
submit information in applications for permit renewals demonstrating that
the facility meets the requirements of Subchapter C of this chapter. 

Section 116.314, concerning Review Schedule, is amended to refer to the
correct chapters of the commission's regulations concerning contested case
hearings. 

SUBCHAPTER F: STANDARD PERMITS. The commission adopts the new sec.116.610(d)
to clarify that facilities subject to Subchapter C of this chapter are not
eligible for a standard permit under Chapter 116, unless the particular standard
permit's terms and conditions meet the requirements of Subchapter C. This
is because 40 CFR Part 63, sec.63.43(c)(2)(ii), requires all case-by-case
MACT determinations to be subject to public notice. 

Section 116.614, concerning Standard Permit Fees, was amended to correct
the commission mailing address where permit fees are submitted. The previous
mailing address did not have the correct mail code or zip code. 

Section 116.620, concerning Installation and/or Modification of Oil and
Gas Facilities, was amended to reference the appropriate exemptions under
Chapter 106 rather than the former standard exemption. In addition, 
sec.116.620(a)(13)
now includes reference to case-by-case MACT review under Subchapter C. 

The commission also amended sec.116.621(2)(F), concerning municipal solid
waste landfills, to refer to the correct exemptions under Chapter 106 rather
than the former standard exemption. In addition, sec.116.621(2)(F) includes
reference to case-by-case MACT review under Subchapter C. 

SUBCHAPTER G: FLEXIBLE PERMITS. Consistent with the deletion of sec.116.110(b),
the operations certification requirements contained in sec.116.710(b) have
also been deleted. 

Section 116.710(c) is revised to be consistent with the changes proposed
to sec.116.116(e), concerning seals of Texas licensed professional engineers. 
Section 116.711(3) is revised to require applicants to demonstrate that
the proposed control technology meets the current BACT requirements for any
constructed or reconstructed facility that is required to meet Subchapter
C. 

Section 116.711(11), concerning flexible permit applications, was amended
by adding a requirement that facilities subject to review for constructed
or reconstructed major sources of hazardous air pollutants under FCAA, 
sec.112(g)
and 40 CFR Part 63 must comply with Subchapter C. 

Section 116.715(a), concerning general and special conditions, was amended
to include the case-by-case MACT review under Subchapter C when considering
whether a facility is eligible for a flexible permit under sec.116.710.
A reference to Subchapter C was added to ensure that a facility operating
under the terms of a flexible permit is in compliance with the federal 
permitting
requirements of Subchapter C. As noted in the preamble discussion concerning
Subchapter C, as long as a facility applies BACT (or MACT if it is determined
to be more restrictive that BACT) and conducts public notice, the facility
would still be able to use flexible permits in conjunction with case-by-case
MACT determinations. In addition, sec.116.715 is amended to make the correct
reference to Chapter 106. In order to properly refer to the Engineering Services
Section, sec.116.715(c)(4) was amended to delete a reference to the Source
and Mobile Monitoring Section. 

Section 116.740(b), concerning public notice and comment, is added to require
public notice for flexible permit amendments that address a case-by-case MACT
determination under Subchapter C. Flexible permit amendments that do not concern
case-by-case MACT determinations are not required to complete the public notice
process. This change was made to allow sources to continue to fully utilize
flexible permits while meeting the conditions of Subchapter C. 

Sections 116.721 and 116.750, concerning Amendments and Alterations and
Flexible Permit Fee, were amended to correctly reference Chapter 106 rather
than the former Chapter 116 for standard exemptions. Section 116.750(b) was
amended to clarify that the minimum fee for a flexible permit amendment is
$450. This is not a change to the existing fee structure; rather, it is to
correct an oversight to include the $450 minimum fee. The $450 minimum fee
has been applied, when applicable, to all applications for flexible permit
amendments. This correction makes this section consistent with Subchapter
B regarding fees for NSR permit amendments. 

REVIEW OF AGENCY RULES. The commission adopts the review of the rules contained
in Chapter 116, concerning Control of Air Pollution by Permits for New 
Construction
or Modification, as mandated by the General Appropriations Act, Article IX,
sec.167. Section 167 requires state agencies to review and consider for
readoption rules adopted under the Administrative Procedure Act (APA). The
review includes, at a minimum, an assessment that the reason for the rules
continues to exist. The commission reviewed the rules in Chapter 116 and 
determined
that the rules in Chapter 116 are still necessary since they implement critical
provisions of the Texas Health and Safety Code, Texas Clean Air Act, Chapter
382, as well as 42 United States Code Annotated, sec.sec.7401 to 7671q,
of the Federal Clean Air Act. Chapter 116 provides the procedures for action
on any application for a permit for construction or modification or renewal
of a permit for a facility that will emit air contaminants into the air of
the state. No comments were received regarding the readoption of the rules. 
FINAL REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed
rulemaking in light of the regulatory analysis requirements of Texas Government
Code (the Code), sec.2001.0225, and has determined that the rulemaking is
not subject to sec.2001.0225 because it does not meet the definition of
a "major environmental rule" as defined in the Code. The portions of the rules
implementing the FCAA, sec.112(g) do not meet the definition because the
obligations have already been established by federal law and thus are not
new requirements. The other portions of the rules correcting typos, clarifying
language, and instituting regulatory reform changes are not of a magnitude
to affect the economic factors in a material way. 

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 rule
amendments and repeals is to implement the requirements of Title III of the
FCAA, Hazardous Air Pollutants, sec.112(g), Modifications, and 40 CFR Part
63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed
Major Sources, Subpart B, Requirements for Control Technology (sec.112(g)).
The adopted amendments and repeals implement the commission's guidelines on
regulatory reform as well as provide clarifications to existing rule language,
streamline procedures, and make the rule consistent with other commission
rules. Adoption and enforcement of the rule amendments and repeal will not
create a burden on private real property. 

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. 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 Resource Conservation Commission. 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 reviewed this rulemaking action for consistency, and has 
determined
that it is consistent with the applicable CMP goals and policies. 

The revisions to Chapter 116 implement the requirements of Title III of
the FCAA, Hazardous Air Pollutants, sec.112(g), Modifications, and 40 CFR
Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or 
Reconstructed
Major Sources, Subpart B, Requirements for Control Technology. The revisions
are consistent with the goals and policies of the CMP because they implement
the new sec.112(g) program. The new sec.112(g) program requires preconstruction
review of major sources of hazardous air pollutants. This new program will
require a review of the controls proposed for these major sources and could
result in a reduction in air emissions. 

The majority of the revisions will not impact air emissions since they
are being done under the commission's guidelines on regulatory reform or for
the purpose of clarification of existing procedures. The changes concerning
fees should not impact the status quo of the NSR permitting program, since
the changes concerning direct costs provide consistency when calculating fees
for new construction permits. 

HEARING AND COMMENTERS. A public hearing was held in Austin on April 16,
1998, and the public comment period closed on April 20, 1998. No oral testimony
was received at the hearing on the proposed rules or on the rules review of
Chapter 116. The EPA, the Texas Industry Project (TIP), and TU Services (TU)
submitted written comments on the proposal. 

TU Services commented that in sec.116.15(7), for purposes of MACT, the
definition of "new source" should conform to the definition contained in the
FCAA, sec.112(g). 

The FCAA, sec.112(a)(4) defines "new source" as "a stationary source
the construction or reconstruction of which is commenced after the Administrator
first proposes regulations under this section establishing an emission standard
applicable to each source." Section 116.10(12) of the General Definitions
does define "new source"; however, that definition is not intended to modify
the sec.112(a)(4) definition of "new source." The "MACT emission limitation
for new sources" terminology and definition was taken directly from Part 63.
It is not the commission's intent to revise the definition of "new source"
or to apply it in any way that differs from the interpretation given by the
EPA. 

The TIP commented that the last sentence of sec.116.15(8), the definition
of "Process or production unit" is confusing and should be deleted. This is
because the sentence contains the federal term "facility" which is different
than the state definition. 

The commission agrees that inconsistencies exist between state and federal
terminology; however, it does not believe that the proposed deletion is 
necessary.
This definition was taken directly from Part 63 and the commission intends
to interpret the term "facility" consistent with the apparent intent of Part
63. The commission believes that the EPA's use of the term "facility" is 
intended
to clarify that a plant site may contain multiple process or production units. 
Throughout the remainder of Chapter 116, the commission has revised the
rules to refer to "affected sources." The definition of "Affected source"
is in sec.116.15(1), concerning Section 112(g) Definitions. That term is
defined as "the stationary source or group of stationary sources which, when
fabricated (on-site), erected, or installed meets the criteria in 
sec.116.180(a)(1)
and (2) of this title (relating to Applicability)." Sections 116.180(a)(1)
and (2) incorporate from 40 CFR Part 63 the definitions of "construct a major
source" and "reconstruct a major source." Since an "affected source" is actually
a source that is either constructing or reconstructing, it is appropriate
to use the term "affected source" to describe the applicability of Subchapter
C.

The TIP suggested moving the phrase "before any actual work is begun on
the facility" from the end of sec.116.110(a)(4) to the general language
of subsection (a) in order clarify whether this phrase modifies paragraph
(4) or paragraphs (1)-(4). 

The commission agrees with this suggestion and has incorporated this change
for adoption. The intent of this phrase is to modify paragraphs (1)-(4). This
change does not alter the current practice of the commission. 

The TIP commented that sec.116.110(c) should refer to constructed or
reconstructed "sources" rather than "facilities" to be consistent with the
definition of "affected source" in sec.116.15(1). 

The commission agrees with the comments and has revised sec.116.110(c)
to refer to read as follows: "Exclusion. Owners or operators of affected sources
(as defined in sec.116.15(1) of this title (relating to Section 112(g) 
Definitions)
subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants:
Regulations Governing Constructed or Reconstructed Major Sources (FCAA, 
sec.112(g),
40 CFR Part 63)) are not authorized to use:" 

TU Services commented that in sec.116.110(d)(1), the commission should
consider extending the time period for notification of ownership changes that
involve multiple sites and permits. 

The commission declines to make the change suggested by TU because the
suggestion is beyond the scope of the rule proposal. The commission believes
that it is important to maintain as current and accurate files as possible
concerning ownership of permitted facilities. The commission is not aware
of any situations where the 30-day time period did not allow a sufficient
amount of time to submit the required information. 

The TIP commented that sec.116.111(2)(K) incorrectly uses word "facility"
when describing who is subject to Subchapter C and recommended alternative
language. 

The commission agrees with the suggestion and has revised sec.116.111(2)(K).
However, to be consistent, the commission will use the term "affected source"
rather than "proposed major source" as suggested by TIP. The rule will be
revised to read as follows: "Hazardous Air Pollutants. Affected sources (as
defined in sec.116.15(1) of this title (relating to Section 112(g) Definitions)
for hazardous air pollutants shall comply with all applicable requirements
under Subchapter C of this title (relating to Hazardous Air Pollutants: 
Regulations
Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g),
40 CFR Part 63))." 

The TIP commented that the use of "records" and "paragraph" in 
sec.116.115(b)(2)(F)
is confusing and supports the original language previously listed in 
sec.116.115(b)(6). 
The commission agrees that the proposed language could be simplified and
has revised sec.116.115(b)(2)(F) to delete the phrase "by this paragraph."
To be consistent, sec.116.115(b)(2)(F)(i) is revised to read "maintain a
copy of the permit along with records containing the information and data
sufficient to demonstrate compliance with the permit, including production
records and operating hours;". 

The TIP commented that the reference to "exemptions" should be deleted
from sec.116.115(a) and sec.116.115(c). It also commented that Chapter
116 is not consistent when listing which types of permit authorizations are
applicable. Some references generically list "permits" in some references
assumed to mean all types of permit authorizations versus other references
that specify "flexible permits" or "standard permits." 

The intent of the proposed change was not to suggest that exemptions now
contained in Chapter 106 would have special conditions. Chapter 116 has 
authorized
several types of exemptions in the past; for example, special exemptions and
standard exemptions. Special exemptions, although no longer issued by the
commission, may contain special conditions that remain enforceable. The language
in sec.116.115(a) and (c) is revised to include a reference to "special
exemptions." Generic references to "permits" exist in the current rule language
and the suggestion for greater specificity will be considered in future 
regulatory
reform efforts. 

The TIP commented that deleting the words "govern and " from 
sec.116.115(b)(2)(I)(ii)
is a substantive change and recommends adding those words back as originally
listed in sec.116.115(b)(9). 

While the commission does not believe that the deletion would change the
intent of the rule, the rule has been revised to retain the original language. 
TIP commented that sec.116.115(c)(2)(B) appeared to require "increases
in a particular pollutant" to be subject to Subchapter C. TIP noted that this
would be more restrictive than 40 CFR Part 63, since the rule only implements
the sections of sec.112(g) that require new source MACT for construction
or reconstruction of major sources and not the section that requires existing
source MACT for modifications of existing facilities. TIP recommended deleting
the reference to Subchapter C to make the rule language clear. 

The commission agrees that "increases in a particulate pollutant" not associated
with construction or reconstruction of a major source of HAPs should not cause
a facility to be subject to Subchapter C. 40 CFR Part 63, Subpart A, General
Provisions, sec.63.4(b), Prohibited activities and circumvention, prohibits
the building, erection, installation, or use of any article, machine, equipment,
or process that conceals an emission that would otherwise constitute 
noncompliance
with a relevant standard. The section describes such concealment, in part,
as "the fragmentation of an operation such the operation avoids regulation
by a relevant standard." The intent of this language is to allow the commission
the opportunity to review future projects at facilities with permits that
authorize emissions of HAPs near the major source threshold. This is consistent
with the procedures used in the review of permits subject to either Prevention
of Significant Deterioration under sec.sec.116.160-116.163 or Nonattainment
Review under sec.116.150 and sec.116.151. Therefore, the commission has
not made the requested change. 

TIP commented that adding the word "include" in sec.116.116(a) inappropriately
broadened the types of representations that are in permit applications and
that become conditions upon which a permit is issued. TIP recommended deleting
the word "include." 

It was not the commission's intent to broaden the scope of representations
that become conditions upon which permits, special permits, or special 
exemptions
are issued by use of the word "include." However, the commission recognizes
that this language could result in some misinterpretation and agrees that
the word "include" should be deleted from the final rule. 

TIP commented that the language in sec.116.116(b)(3), "that concerns
a determination for constructed or reconstructed sources under Subchapter
C..." is confusing. TIP suggested rewriting that section to say "Any person
who applies for an amendment to a permit to construct or reconstruct a major
source of HAP subject to Subchapter C...." 

The commission agrees that the term "concerns" is unclear and has revised
the rule language to read "Any person who applies for an amendment to construct
or reconstruct an affected source (as defined in sec.116.15(1) of this title
(relating to Section 112(g) Definitions) under Subchapter C of this chapter
(relating to Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part 63)) shall comply
with the provisions in sec.sec.116.130-116-134, 116.136, and 116.137 of
this title (relating to Public Notification and Comment Procedures)." 

TU Services commented that the term "effects screening level" should be
defined in sec.116.116(e)(3)(C) and (E) for clarity and consistency. 

The commission does not think it is necessary to define "effects screening
level" (ESL). ESLs are used to evaluate the potential for effects as a result
of exposure to a particular substance. They are based on data concerning health
effects, odor, nuisance potential, vegetation effects, or corrosion effects.
They are not ambient air standards. If predicted or measured airborne levels
of a substance do not exceed the screening level, the commission would not
expect any effects. If concentrations of a substance exceed the ESL, it does
not necessarily indicate a problem, but may be a trigger for a more in-depth
review. 

TIP commented that the proposed changes to sec.116.116(e)(6) may create
confusion about the addition of control methods at qualified facilities. TIP
believes that the changes appear to require that all additional control measures
are subject to the requirements of Chapter 116, rather than only those 
additional
control methods that are being implemented for the purpose of making a facility
a qualified facility. 

The commission agrees with the proposed changes and revised sec.116.116(e)(6)
to read: "The implementation of any additional control methods to qualify
a facility shall be subject to the requirements of this chapter." 

TU Services commented that sec.116.117(b)(5)(B) should identify physical
location(s) at which an "effects screening level" is to be determined. 

The commission has added the following phrase "at any point off-property"
to the end of sec.116.117(b)(5)(B). Under the former rules, for the purpose
of establishing reportable limits at qualified facilities, the impact of ESLs
has always been considered at points beyond the property line. This change
merely clarifies the long standing practice of the commission. 

TIP commented that sec.116.121 should refer to "air contaminant" rather
than "substance" since "air contaminant" is a defined term in the TCAA and
it is commonly used in the area of air pollution control. 

Since "substance" is not currently defined in the rules, the commission
has added the following language to replace that term: "The compliance history
is not required if the total increased actual emissions of any specific air
contaminant (e.g., benzene, arsenic, etc.) at the site will be accompanied
by greater than a 1.1 to 1 reduction of the same specific air contaminant
at the site." 

TIP requested that the commission not adopt the changes to sec.116.122(b)
which would change the rule so that it would refer to a singular violation
rather than plural violations. TIP requested that the rule be left in its
plural form. 

It appears that TIP believes that changing "violations" from plural to
singular alters the intent of this subsection. The commission did not intend
to change the commission's procedures for compiling compliance history and
the rule has been revised to refer to "violations." 

TU Services commented that the public notice procedures in Subchapter B,
Public Notification and Comment Procedures, should be modified to match the
existing procedures in Chapter 122, concerning Federal Operating Permits. 
The current public notice procedures for Chapter 116 conform with the 
requirements
of the TCAA and the APA. The procedures for Chapter 122 were developed in
order to meet the requirements of 40 CFR Part 70, Federal Operating Permits.
In the absence of regulatory and statutory changes, public notice procedures
under Chapter 116 cannot be revised to implement the procedures under Chapter
122. The request of TU Services is beyond the scope of the rulemaking proposal. 
TIP commented that although sec.116.141(b) was not proposed for revision,
it should be revised to say "shall" rather than "may" regarding the schedule
to be used for fee payments. TIP noted that the payment of fees is not 
discretionary. 
The commission agrees that the fee schedules contained in this subsection
are not optional and that the word "shall" is more appropriate than "may."
In addition, the commission has changed "schedule" to "schedules" to be 
consistent
with the structure of this subsection. This change does not alter the current
commission practice for establishing fees for permit applications. 

EPA commented on a section of the proposal preamble that the interpretation
of sec.63.43(d) to require case-by-case MACT determination to be equivalent
to BACT determinations is incorrect. EPA noted that the FCAA contains specific
definitions for MACT and BACT and EPA does not consider the terms to be 
equivalent.
It further stated that the state's administrative procedures for preconstruction
review may be used as long as they meet sec.63.43(c)(2)(ii). 

The commission believes in most cases that BACT determinations will exceed
the requirements of case-by-case MACT determinations as required in 40 CFR
Part 63 Subpart B, Requirements for Control Technology. In cases where the
Part 63 MACT determination is more restrictive than BACT as required in Chapter
116, the commission intends to comply with 40 CFR Part 63, Subpart B, 
Requirements
for Control Technology. No changes to the rule language are necessary to make
this clarification. If a case-by-case MACT determination is more restrictive
than BACT, the affected source will be required to meet the MACT requirements. 
TIP stated that the definitions of "Construct a major source" and "Reconstruct
a major source" in sec.116.180(a)(1) and (2) will cause confusion since
they are not included in sec.116.15, concerning sec.112(g) Definitions. 
Although these terms can be considered definitions, they also contain several
procedural requirements. The commission believes that procedural requirements
are not appropriate for definition sections. Therefore, the rule has not been
revised in response to this comment. 

TU Services requested that the term "toxics-best available control technology"
in sec.116.180(a)(1)(B)(ii)(I) be defined. 

40 CRF Part 63 does not contain a definition of "toxics-best available
control technology," rather, it uses the term "toxics BACT" as an example
of control technology that states may use to implement sec.112(g). The preamble
to 40 CFR Part 63, Subpart B (61 FR 68383, 68389) discusses the definition
of "construct a major source." Specifically, the EPA acknowledges that states
may use different levels of control in their air quality programs (e.g., BACT,
lowest achievable emission rule, or a state toxics program that requires toxic-
BACT),
for the purpose of the definition of "construct a major source." The commission
intends to implement the requirements of sec.112(g) using the current NSR
permitting process, which requires a BACT and impacts review. Therefore, the
commission will not make the requested change. 

Both the EPA and TIP commented on the effective date of the commission's
sec.112(g) program. The EPA commented that sec.116.182 limits the implementation
of sec.112(g) to the sources in Texas covered by the Texas interim operating
permit program. EPA noted that sources not covered by the interim program
will also be subject to sec.112(g) after June 29, 1998, and will be required
to obtain a sec.112(g) determination from the EPA prior to the start of
construction. TIP commented that in sec.116.180(b), the commission should
conduct the sec.112(g) reviews for sources in Texas in order to avoid 
duplicative
review by the commission and the EPA and recommended adopting whatever 
compliance
date was necessary to avoid such duplication. 

Based on the comments received from the EPA and on discussions with the
EPA staff, the commission has revised the final rule to make clear that the
effective date for the sec.112(g) program is June 29, 1998. The commission
will conduct all of the sec.112(g) reviews that may be required by Subchapter
C. This issue is discussed further in the "EXPLANATION OF ADOPTED RULES" section
of this preamble. 

TIP commented that sec.116.181(d) (which implements 40 CFR sec.63.40(d))
should be deleted, since it could result in local authorities making case-by-
case
MACT determinations under TCAA, sec.382.113 that are more restrictive than
those that might be made by the commission. 

The TIP appears to believe that removing this rule language would prevent
local authorities from developing a more stringent control requirement than
a state or federal requirement. This language was taken from sec.63.40(d)
and does not enhance local authority beyond that already authorized under
TCAA, sec.382.113. Under sec.382.113, local programs are not prohibited
from having requirements more stringent than state or federal requirements.
The language has not been revised in response to this comment. 

TIP commented that sec.116.182 is confusing and suggested that the language
be rewritten to refer to "affected sources" rather than "new facility (major
source)." TIP also noted that the reference to "approved operating permit
program" could cause confusion about the effective date of the sec.112(g)
program in Texas. 

The commission agrees with the comment regarding the use of the term "affected
source" and has revised the final rule to reflect this change. The discussion
regarding the effective date of the sec.112(g) program is in the section
of the preamble entitled "EXPLANATION OF ADOPTED RULES." The final rule has
been revised to clarify the effective date of the sec.112(g) program. 

TIP commented that sec.116.183 contains an incorrect reference to "facility"
and suggested that the section be rewritten to refer to "affected source"
as defined in sec.116.15(1). 

The commission agrees with this comment and has revised the final rule
to say "Proposed affected sources (as defined in sec.116.15(1) of this title
(relating to Section 112(g) Definitions)) shall comply with the public notice
requirements contained in sec.116.130 of this title (relating to Applicability). 
TIP commented that the language of sec.116.312 currently requires the
executive director to provide written notice to permit holders within 30 days
of receipt of a complete application for permit renewal. TIP noted that the
proposed revisions did not specifically provide for notice within 30 days
of receipt of a complete application. TIP further commented that neither the
current nor proposed rule explains whether the commission is referring to
administratively or technically complete applications. TIP suggested that
since the commission is making changes to Chapter 116 under regulatory reform,
the commission should consider outlining a procedure for reviewing renewal
applications and notifying applicants of errors and for providing notice of
when an application is ready to undergo public notice. 

The commission has revised the first sentence in subsection (a) to read
as follows: "The executive director shall mail a written notice to the permit
holder within 30 days after receipt of a complete application." Current practice
is to send a permit renewal application to public notice as soon as the 
application
is deemed administratively complete. Currently, applicants are notified of
errors and requests for additional information by letter throughout the review
process. Although this section was revised under the regulatory reform process,
the commission believes adopting a new process with additional timelines for
review of renewal applications without additional opportunity for public comment
would be inappropriate. The commission is not making the suggested changes
beyond the one noted previously. 

TIP commented that sec.116.610(d) contained an incorrect reference to
"facility" and suggested that the section be rewritten to refer to "Affected
source" as defined in sec.116.15(1). 

The commission agrees with this comment and has replaced the proposed language
with the following: "Any project involving a proposed affected source (as
defined in sec.116.15(1) of this title (relating to Section 112(g) Definitions))
shall comply with all applicable requirements under Subchapter C of this chapter
(relating to Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part 63))." Affected
sources subject to Subchapter C of this chapter may use a standard permit
under this subchapter only if the terms of the specific standard permit meet
the requirements of Subchapter C of this chapter." 

TIP suggested that the phrase "is subject to" be added to sec.116.621(2)(F)
prior to the reference to Subchapter C. This is because the clause "any project
which constitutes a new major source, or major modification" applies to new
source review and not to sec.112(g) sources. 

The commission agrees with the suggested comment and will revise 
sec.116.621(2)(F)
to read: "any project which constitutes a new major source, or major 
modification
under the new source review requirements of the FCAA, Part C (Prevention of
Significant Deterioration review), Part D (nonattainment review) and regulations
promulgated thereunder, or is an affected source (as defined in sec.116.15(1)
of this title (relating to Section 112(g) Definitions)), subject to Subchapter
C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part
63)) shall be subject to the requirements of sec.116.110 of this title (relating
to Applicability) rather than this subchapter." The commission agrees that
the clause "any project which constitutes a new major source, or major 
modification"
applies to new source review and not to sec.112(g) sources. 

TIP commented that the language in sec.116.711(3) is confusing since
all changes to facilities with HAPs could "concern" a MACT determination.
TIP requested that the language be revised to be clear that the section applies
to major sources of HAPs that are subject to Subchapter C and not all 
facilities. 
The commission agrees with the comment and will revise sec.116.711(3)
to read: "For new facilities and proposed affected sources (as defined in
sec.116.15(1) of this title (relating to Section 112(g) Definitions)), subject
to Subchapter C of this chapter (relating to Hazardous Air Pollutants: 
Regulations
Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g),
40 CFR Part 63)) the use of BACT shall be demonstrated for the individual
facility or affected source. 

TIP requested that the language in sec.116.711(11) be revised to be clear
that the section applies to major sources of HAPs that are subject to Subchapter
C and not all facilities. 

The commission agrees with the comment and has revised sec.116.711(11)
to read: "Federal standards of review for constructed or reconstructed major
sources of hazardous air pollutants. If the proposed source is an affected
source (as defined in sec.116.15(1) of this title (relating to Section 112(g)
Definitions)), it shall comply will all applicable requirements under Subchapter
C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part
63))." 

TIP commented that the language "that concerns a maximum achievable control
technology determination" in sec.116.740(b) is ambiguous and recommended
that it be deleted. 

The commission agrees with the comment and has changed the final rule to
say: "Any person who applies for an amendment to a flexible permit regarding
an affected source (as defined in sec.116.15(1) of this title (relating
to Section 112(g) Definitions)) subject to Subchapter C of this chapter 
(relating
to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed
Major Sources (FCAA, sec.112(g), 40 CFR Part 63)) shall comply with the
provisions in sec.sec.116.130-116-134, 116.136, and 116.137 of this title." 
SUBCHAPTER A.Definitions
30 TAC sec.sec.116.110, 116.11, 116.13, 116.14
STATUTORY AUTHORITY. The repeals are adopted under the Texas
Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809783
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

30 TAC sec.sec.116.10, 116.11, 116.13-116.15
STATUTORY AUTHORITY. The new sections are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

sec.116.14.Standard Permit Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise. 

(1) Off-plant receptor-For the purposes of Subchapter F of
this chapter (relating to Standard Permits) only, shall be defined as any
recreational area or residence or other structure not occupied or used solely
by the owner or operator of the facilities or owner of the property upon which
the facilities are located. 

(2) Oil and gas facility-For the purposes of Subchapter
F of this chapter only, shall be defined as facilities which handle gases
and liquids associated with the production, conditioning, processing, and
pipeline transfer of fluids found in geologic formations beneath the earth's
surface. These oil and gas facilities include, but are not limited to: oil
or gas production facilities; water injection facilities; carbon dioxide 
separation
facilities; or oil or gas pipeline facilities consisting of one or more tanks,
separators, dehydration units, free water knock-outs, gunbarrels, heater 
treaters,
vapor recovery units, flares, pumps, internal combustion engines, gas turbines,
compressors, natural gas liquid recovery units, or gas sweetening and other
gas conditioning facilities. This definition does not include sulfur recovery
units. 

(3) Sulfur recovery unit-For the purposes of Subchapter
F of this chapter only, shall be defined as a process device whose primary
purpose is to recover elemental sulfur from acid gas. 

sec.116.15.Section 112(g) Definitions.
The following words and terms, when used in Subchapter C of this chapter
(relating to Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources, Subpart B, Requirements for Control Technology
(FCAA, sec.112(g), 40 Code of Federal Regulations (CFR) Part 63)), as amended
December 27, 1996, shall have the following meanings, unless the context clearly
indicates otherwise. 

(1) Affected source-The stationary source or group of stationary
sources which, when fabricated (on-site), erected, or installed meets the
criteria in sec.116.180(a)(1) and (2) of this title (relating to Applicability)
and for which no MACT standard has been promulgated under 40 CFR Part 63. 
(2) Control technology-Measures, processes, methods,
systems, or techniques to limit the emission of HAPs including, but not limited
to, measures that: 

(A) reduce the quantity of, or eliminate emissions of, such
pollutants through process changes, substitution of materials, or other 
modifications; 
(B) enclose systems or processes to eliminate emissions; 
(C) collect, capture, or treat such pollutants when released
from a process, stack, storage, or fugitive emissions point; 

(D) are design, equipment, work practice, or operational standards
(including requirements for operator training or certification) as provided
in 42 United States Code 7412(h); or 

(E) are a combination of subparagraphs (A)-(D) of this paragraph. 
(3) Electric utility steam generating unit-Any fossil
fuel fired combustion unit of more than 25 megawatts that serves a generator
that produces electricity for sale. A unit that co-generates steam and 
electricity
and supplies more than one-third of its potential electric output capacity
and more than 25 megawatts electric output to any utility power distribution
system for sale shall be considered an electric utility steam generating unit. 
(4) Greenfield site-A contiguous area under common control
that is an undeveloped site. 

(5) Hazardous air pollutant (HAP)-Any air pollutant listed
under the FCAA, sec.112(b). 

(6) List of source categories-The Source Category List
required by FCAA, sec.112(c). 

(7) Maximum achievable control technology (MACT) emission
limitation for new sources-The emission limitation which is not less stringent
than the emission limitation achieved in practice by the best controlled similar
source, and which reflects the maximum degree of reduction in emissions that
the executive director, taking into consideration the cost of achieving such
emission reduction, and any non-air quality health and environmental impacts
and energy requirements, determines is achievable by the constructed or 
reconstructed
major source. 

(8) Process or production unit-Any collection of structures
and/or equipment, that processes, assembles, applies, or otherwise uses material
inputs to produce or store an intermediate or final product. A single facility
may contain more than one process or production unit. 

(9) Research and development activities-Activities conducted
at a research or laboratory facility whose primary purpose is to conduct 
research
and development into new processes and products, where such source is operated
under the close supervision of technically trained personnel and is not engaged
in the manufacture of products for sale or exchange for commercial profit,
except in a de minimis manner. 

(10) Similar source-A stationary source or process that
has comparable emissions and is structurally similar in design and capacity
to a constructed or reconstructed major source such that the source could
be controlled using the same control technology. 

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.

Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809784
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER B.New Source Review Permits
Permit Application
30 TAC sec.sec.116.110-116.112, 116.114-116.118
STATUTORY AUTHORITY. The repeals are adopted under the Texas
Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809785
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

Division 1. Permit Application
30 TAC sec.sec.116.110-16.112, 116.114-116.118
STATUTORY AUTHORITY. The new sections are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997.

sec.116.110.Applicability.
(a) Permit to construct. Before any actual work is begun on
the facility, any person who plans to construct any new facility or to engage
in the modification of any existing facility which may emit air contaminants
into the air of this state shall either: 

(1) obtain a permit under sec.116.111 of this title (relating
to General Application); 

(2) satisfy the conditions for a standard permit under
the requirements in: 

(A) Subchapter F of this chapter (relating to Standard Permits);
(B) Chapter 321, Subchapter K of this title (relating to Concentrated
Animal Feeding Operations); 

(C) Chapter 332 of this title (relating to Composting); or
(D) Chapter 330, Subchapter N of this title (relating to Landfill
Mining); 

(3) satisfy the conditions for a flexible permit
under the requirements in Subchapter G of this chapter (relating to Flexible
Permits); or 

(4) satisfy the conditions for exempt facilities under
Chapter 106 of this title (relating to Exemptions from Permitting). 

(b) Modifications to existing permitted facilities. Modifications
to existing permitted facilities may be handled through the amendment of an
existing permit or an existing flexible permit. 

(c) Exclusion. Owners or operators of affected sources (as
defined in sec.116.15(1) of this title (relating to Section 112(g) Definitions))
subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants:
Regulations Governing Constructed or Reconstructed Major Sources (FCAA, 
sec.112(g),
40 CFR Part 63)) are not authorized to use: 

(1) an exemption under Chapter 106 of this title; 

(2) standard permits under Subchapter F of this chapter
that do not meet the requirements of Subchapter C of this chapter; or (3)
sec.116.116(e) of this title (relating to Changes to Facilities). 

(d) Change in ownership. 

(1) Within 30 days after the change of ownership of a facility
permitted under this chapter, the new owner shall notify the commission and
certify the following: 

(A) the date of the ownership change; 

(B) the name, address, phone number, and contact person for
the new owner; 

(C) an agreement by the new owner to be bound by all permit
conditions and all representations made in the permit application and any
amendments and alterations; 

(D) there will be no change in the type of pollutants emitted;
and 

(E) there will be no increase in the quantity of pollutants
emitted. 

(2) The new owner shall comply with all permit conditions
and all representations made in the permit application and any amendments
and alterations. 

(e) Submittal under seal of Texas licensed professional engineer.
Applications for permit or permit amendment with an estimated capital cost
of the project above $2 million, and not subject to any exemption contained
in the Texas Engineering Practice Act (TEPA), shall be submitted under seal
of a Texas licensed professional engineer. However, nothing in this subsection
shall limit or affect any requirement which may apply to the practice of 
engineering
under the TEPA or the actions of the Texas Board of Professional Engineers.
The estimated capital cost is defined in sec.116.141 of this title (relating
to Determination of Fees). 

(f) Responsibility for permit application. The owner of the
facility or the operator of the facility authorized to act for the owner is
responsible for complying with this section. 

sec.116.111.General Application.
In order to be granted a permit, amendment, or special permit amendment,
the application must include: 

(1) a completed Form PI-1 General Application signed by an
authorized representative of the applicant. All additional support information
specified on the form must be provided before the application is complete;
(2) information which demonstrates that all of the following
are met. 

(A) Protection of public health and welfare. 

(i) The emissions from the proposed facility will comply with
all rules and regulations of the commission and with the intent of the TCAA,
including protection of the health and physical property of the people. 
(ii) For issuance of a permit for construction or modification
of any facility within 3,000 feet of an elementary, junior high/middle, or
senior high school, the commission shall consider any possible adverse short-
term
or long-term side effects that an air contaminant or nuisance odor from the
facility may have on the individuals attending the school(s). 

(B) Measurement of emissions. The proposed facility will have
provisions for measuring the emission of significant air contaminants as 
determined
by the executive director. This may include the installation of sampling ports
on exhaust stacks and construction of sampling platforms in accordance with
guidelines in the "Texas Natural Resource Conservation Commission (TNRCC)
Sampling Procedures Manual." 

(C) Best available control technology (BACT). The proposed
facility will utilize BACT, with consideration given to the technical 
practicability
and economic reasonableness of reducing or eliminating the emissions from
the facility. 

(D) New Source Performance Standards (NSPS). The emissions
from the proposed facility will meet the requirements of any applicable NSPS
as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated
by the EPA under FCAA, sec.111, as amended. 

(E) National Emission Standards for Hazardous Air Pollutants
(NESHAP). The emissions from the proposed facility will meet the requirements
of any applicable NESHAP, as listed under 40 CFR Part 61, promulgated by EPA
under FCAA, sec.112, as amended. 

(F) NESHAP for source categories. The emissions from the proposed
facility will meet the requirements of any applicable maximum achievable control
technology standard as listed under 40 CFR Part 63, promulgated by the EPA
under FCAA, sec.112 or as listed under Chapter 113, Subchapter C of this
title (relating to National Emissions Standards for Hazardous Air Pollutants
for Source Categories (FCAA sec.112, 40 CFR 63)). 

(G) Performance demonstration. The proposed facility will
achieve the performance specified in the permit application. The applicant
may be required to submit additional engineering data after a permit has been
issued in order to demonstrate further that the proposed facility will achieve
the performance specified in the permit application. In addition, dispersion
modeling, monitoring, or stack testing may be required. 

(H) Nonattainment review. If the proposed facility is located
in a nonattainment area, it shall comply with all applicable requirements
in this chapter concerning nonattainment review. 

(I) Prevention of Significant Deterioration (PSD) review.
If the proposed facility is located in an attainment area, it shall comply
with all applicable requirements in this chapter concerning PSD review. 
(J) Air dispersion modeling. Computerized air dispersion modeling
may be required by the executive director to determine air quality impacts
from a proposed new facility or source modification. 

(K) Hazardous air pollutants. Affected sources (as defined
in sec.116.15(1) of this title (relating to Section 112(g) Definitions))
for hazardous air pollutants shall comply with all applicable requirements
under Subchapter C of this chapter (relating to Hazardous Air Pollutants:
Regulations Governing Constructed or Reconstructed Major Sources (FCAA, 
sec.112(g),
40 CFR Part 63)). 

sec.116.115.General and Special Conditions.
(a) General and special conditions. Permits, special permits,
standard permits, and special exemptions may contain general and special 
conditions.
(b) General conditions. Holders of permits, special permits,
standard permits, and special exemptions shall comply with the following:
(1) the general conditions contained in the permit document
if issued or amended prior to August 16, 1994; or 

(2) the following general conditions if the permit or
amendment is issued or amended on or after August 16, 1994, regardless of
whether they are specifically stated within the permit document. 

(A) Voiding of permit. A permit or permit amendment under
this chapter is automatically void if the permit holder does one of the 
following:
(i) fails to begin construction within 18 months of date of
issuance. The executive director may grant a one-time 18-month extension to
the date to begin construction; 

(ii) discontinues construction for more than 18 consecutive
months prior to completion; or 

(iii) fails to complete construction within a reasonable time.
(B) Report of construction progress. The permit holder shall
report start of construction, construction interruptions exceeding 45 days,
and completion of construction. The report shall be given to the appropriate
regional office of the commission not later than 15 working days after 
occurrence
of the event. 

(C) Start-up notification. 

(i) The permit holder shall notify the appropriate air program
regional office of the commission prior to the commencement of operations
of the facilities authorized by the permit. The notification must be made
in such a manner as to allow representative of the commission to be present
at the commencement of operations. 

(ii) The permit holder shall provide a separate notification
for the commencement of operations for each unit of phased construction, which
may involve a series of units commencing operations at different times. 
(D) Sampling requirements. 

(i) If sampling is required, the permit holder shall contact
the commission's Office of Compliance and Enforcement prior to sampling to
obtain the proper data forms and procedures. 

(ii) All sampling and testing procedures must be approved
by the executive director and coordinated with the regional representatives
of the commission. 

(iii) The permit holder is also responsible for providing
sampling facilities and conducting the sampling operations or contracting
with an independent sampling consultant. 

(E) Equivalency of methods. The permit holder must demonstrate
or otherwise justify the equivalency of emission control methods, sampling
or other emission testing methods, and monitoring methods proposed as 
alternatives
to methods indicated in the conditions of the permit. Alternative methods
shall be applied for in writing and must be reviewed and approved by the 
executive
director prior to their use in fulfilling any requirements of the permit.
(F) Recordkeeping. The permit holder shall: 

(i) maintain a copy of the permit along with records containing
the information and data sufficient to demonstrate compliance with the permit,
including production records and operating hours; 

(ii) keep all required records in a file at the plant site.
If, however, the facility normally operates unattended, records shall be 
maintained
at the nearest staffed location within Texas specified in the application;
(iii) make the records available at the request of personnel
from the commission or any air pollution control program having jurisdiction;
(iv) comply with any additional recordkeeping requirements
specified in special conditions attached to the permit; and 

(v) retain information in the file for at least two years
following the date that the information or data is obtained. 

(G) Maximum allowable emission rates. The total emissions
of air contaminants from any of the sources of emissions must not exceed the
values stated on the table attached to the permit entitled "Emission Sources--
Maximum
Allowable Emission Rates." 

(H) Maintenance of emission control. The permitted facilities
shall not be operated unless all air pollution emission capture and abatement
equipment is maintained in good working order and operating properly during
normal facility operations. The permit holder shall provide notification for
upsets and maintenance in accordance with sec.101.6 and sec.101.7 of this
title (relating to Upset Reporting and Recordkeeping Requirements; and 
Maintenance,
Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements).
(I) Compliance with rules. 

(i) Acceptance of a permit by an applicant constitutes an
acknowledgment and agreement that the permit holder will comply with all rules,
regulations, and orders of the commission issued in conformity with the TCAA
and the conditions precedent to the granting of the permit. 

(ii) If more than one state or federal rule or regulation
or permit condition are applicable, the most stringent limit or condition
shall govern and be the standard by which compliance shall be demonstrated.
(iii) Acceptance includes consent to the entrance of commission
employees and agents into the permitted premises at reasonable times to 
investigate
conditions relating to the emission or concentration of air contaminants,
including compliance with the permit. 

(c) Special conditions. The holders of permits, special permits,
standard permits, and special exemptions shall comply with all special 
conditions
contained in the permit document. 

(1) Special conditions may be attached to a permit that are
more restrictive than the requirements of Title 30 of the Texas Administrative
Code. 

(2) Special condition for written approval. 

(A) The executive director may require as a special condition
that the permit holder obtain written approval before constructing a source
under: 

(i) a standard permit under Subchapter F of this chapter (relating
to Standard Permits); or 

(ii) an exemption under Chapter 106 of this title (relating
to Exemptions from Permitting). 

(B) Such written approval may be required if the executive
director specifically finds that an increase of a particular pollutant could
either: 

(i) result in a significant impact on the air environment;
or 

(ii) cause the facility to become subject to review under
(I) Subchapter C of this chapter (relating to Hazardous Air
Pollutants: Regulations Governing Constructed or Reconstructed Major Sources
(FCAA, sec.112(g), 40 CFR Part 63)); or 

(II) the provisions in sec.116.150 and sec.116.151 of
this title (relating to Nonattainment Review) and sec.sec.116.160-116.163
of this title (relating to Prevention of Significant Deterioration Review). 
sec.116.116.Changes to Facilities.
(a) Representations and conditions. The following are the
conditions upon which a permit, special permit, or special exemption are issued:
(1) representations with regard to construction plans and
operation procedures in an application for a permit, special permit, or special
exemption; and 

(2) any general and special conditions attached to the
permit, special permit, or special exemption itself. 

(b) Permit amendments. 

(1) Except as provided in subsection (e) of this section,
the permit holder shall not vary from any representation or permit condition
without obtaining a permit amendment if the change will cause: 

(A) a change in the method of control of emissions; 

(B) a change in the character of the emissions; or 

(C) an increase in the emission rate of any air contaminant.
(2) Any person who requests permit amendments must
receive prior approval by the executive director or the commission. Applications
must be submitted with a completed Form PI-1 and are subject to the requirements
of sec.116.111 of this title (relating to General Application). 

(3) Any person who applies for an amendment to a permit
to construct or reconstruct an affected source (as defined in sec.116.15(1)
of this title (relating to Section 112(g) Definitions)) under Subchapter C
of this chapter (relating to Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part
63)) shall comply with the provisions in sec.sec.116.130-116.134, 116.136,
and 116.137 of this title (relating to Public Notification and Comment 
Procedures).
(c) Permit alteration. 

(1) A permit alteration is: 

(A) a decrease in allowable emissions; or 

(B) any change from a representation in an application, general
condition, or special condition in a permit that does not cause: 

(i) a change in the method of control of emissions; 

(ii) a change in the character of emissions; or 

(iii) an increase in the emission rate of any air contaminant.
(2) Requests for permit alterations that must
receive prior approval by the executive director are those that: 

(A) result in an increase in off-property concentrations of
air contaminants; 

(B) involve a change in permit conditions; or 

(C) affect facility or control equipment performance. 

(3) The executive director shall be notified in writing
of all other permit alterations not specified in paragraph (2) of this 
subsection. 
(4) A request for permit alteration shall include information
sufficient to demonstrate that the change does not interfere with the owner
or operator's previous demonstrations of compliance with the requirements
of sec.116.111(3) of this title. 

(5) Permit alterations are not subject to the requirements
sec.116.111(3) of this title. 

(d) Exemption under Chapter 106 of this title (relating to
Exemptions from Permitting) in lieu of permit amendment or alteration. 

(1) A permit amendment or alteration is not required if the
changes to the permitted facility qualify for an exemption under Chapter 106
of this title unless prohibited by permit condition as provided in sec.116.115
of this title (relating to General and Special Conditions). 

(2) All exempted changes to a permitted facility shall
be incorporated into that facility's permit when the permit is amended or
renewed. 

(e) Changes to qualified facilities. 

(1) Notwithstanding any other subsection of this section,
a physical or operational change may be made to a qualified facility if it
can be determined that the change does not result in: 

(A) a net increase in allowable emissions of any air contaminant;
and 

(B) the emission of any air contaminant not previously emitted.
(2) In making the determination in paragraph (1)
of this subsection, the effect on emissions of the following shall be 
considered:
(A) any air pollution control method applied to the qualified
facility; 

(B) any decreases in allowable emissions from other qualified
facilities at the same commission air quality account number that have received
a preconstruction permit or permit amendment no earlier than 120 months before
the change will occur; and 

(C) any decrease in actual emissions from other qualified
facilities at the same commission air quality account number that are not
included in subparagraph (B) of this paragraph. 

(3) The determination in paragraph (1) of this subsection
shall be based on the allowable emissions for air contaminant categories and
any allowable emissions for individual compounds. If a physical or operational
change would result in emissions of a air contaminant category or compound
above the allowable emissions for that air contaminant category or compound,
the amount above the allowable emissions must be offset by an equivalent 
decrease
in emissions at the same facility or a different facility. In making this
offset, the following applies. 

(A) The offset shall be based on the same time periods (e.g.,
hourly and annual rates) as the allowable emissions for the facility at which
the change will occur. 

(B) Emissions of different compounds within the same air contaminant
category may be interchanged. 

(C) For allowable emissions for individual compounds, any
interchange shall adjust the emission rates for the different compounds in
accordance with the ratio of the effects screening levels of the compounds.
(D) For allowable emissions for air contaminant categories,
interchanges shall use the unadjusted emission rates for the different 
compounds.
(E) The effects screening level shall be determined by the
executive director. 

(F) An air contaminant category is a group of related compounds,
such as volatile organic compounds, particulate matter, nitrogen oxides, and
sulfur compounds. 

(4) Persons making changes to qualified facilities
under this subsection shall comply with the applicable requirements of 
sec.116.117
of this title (relating to Documentation and Notification of Changes to 
Qualified
Facilities) and sec.116.118 of this title (relating to Pre-change 
Qualification).
(5) As used in this subsection, the term "physical and
operational change" does not include: 

(A) construction of a new facility; or 

(B) changes to procedures regarding monitoring, determination
of emissions and recordkeeping that are required by a permit. 

(6) Additional air pollution control methods may
be implemented for the purpose of making a facility a qualified facility.
The implementation of any additional control methods to qualify a facility
shall be subject to the requirements of this chapter. The owner or operator
shall: 

(A) utilize additional control methods that are as effective
as best available control technology (BACT) required at the time the additional
control methods are implemented; or 

(B) demonstrate that the additional control methods, although
not as effective as BACT, were implemented to comply with a law, rule, order,
permit, or implemented to resolve a documented citizen complaint. 

(7) For purposes of this subsection and sec.116.117
of this title, the following subparagraphs apply. 

(A) Intraplant trading means the consideration of decreases
in allowable and actual emissions from other qualified facilities in accordance
with paragraph (2) of this subsection. 

(B) The allowable emissions from facilities that were never
constructed shall not be used in intraplant trading. 

(C) The decreases in allowable and actual emissions shall
be based on emission rates for the same time periods (e.g., hourly and annual
rates) as the allowable emissions for the facility at which the change will
occur and for which an intraplant trade is desired. 

(D) Actual emissions shall be based on data that is representative
of the emissions actually achieved from a facility during the relevant time
period (e.g., hourly or annual rate). 

(8) The existing level of control may not be lessened
for a qualified facility. 

(f) Use of credits. Notwithstanding any other subsection of
this section, discrete emission reduction credits may be used to exceed permit
allowables as described in sec.101.29(d)(4)(v) of this title (relating to
Emission Credit Banking and Trading) if all applicable conditions of sec.101.29
of this title are met. This subsection does not authorize any physical changes
to a facility. 

sec.116.117.Documentation and Notification of Changes
to Qualified Facilities.
(a) Persons making changes under sec.116.116(e) of this
title (relating to Changes to Facilities) shall maintain documentation at
the plant site demonstrating that the changes satisfy sec.116.116(e) of
this title. If the plant site is unmanned, the regional manager may authorize
an alternative site to maintain the documentation. The documentation shall
be made available to representatives of the commission upon request. The 
documentation
shall include: 

(1) quantification of all emission increases and decreases
associated with the physical or operational change; 

(2) a description of the physical or operational change;
(3) a description of any equipment being installed; and
(4) sufficient information as necessary to show that
the project will comply with sec.116.150 and sec.116.151 of this title
(relating to Nonattainment Review) and sec.sec.116.160-116.163 of this
title (relating to Prevention of Significant Deterioration Review) and with
Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations
Governing Constructed or Reconstructed Major Sources (FCAA, sec.112(g),
40 CFR Part 63)). 

(b) Persons making such changes to qualified facilities shall
comply with the following notification requirements. 

(1) Annual report. For changes to qualified facilities when
there is no intraplant trading under sec.116.116(e)(2) of this title, an
annual report shall be submitted to the appropriate regional office of the
commission by August 1 of each year. The report shall include all changes
made under sec.116.116(e) during the immediately preceding annual period
July 1- June 30. This reporting period and the due date may be changed with
the agreement of the commission's regional office. The annual report shall
contain a PI-E form for each change. The report need not include changes 
previously
submitted by PI-E form to the commission under paragraphs (2) or (3) of this
subsection or which have been incorporated into the permit for the facility.
(2) Post-change notification. Post-change notification
shall be required for changes to qualified facilities for which there is 
intraplant
trading below the reportable limit. The notification shall be submitted on
a PI-E form to the commission's New Source Review Permits Division within
30 days after the change occurs. 

(3) Pre-change notification only. Pre-change notification
shall be required if a physical or operational change at a qualified facility
will affect compliance with a permit special condition. The notice shall be
made to the commission prior to the change. It shall identify the affected
special condition and indicate the change needed or the desire to remove the
special condition from the permit. The permit holder is relieved from complying
with the permit special condition upon the filing of the notice, provided
the change complies with sec.116.116(e) of this title. 

(4) Pre-change notification and approval. Pre-change
notification shall be required for changes to qualified facilities for which
there is intraplant trading above the reportable limit. The notification of
the change shall be submitted on a PI-E form to the commission's New Source
Review Permits Division before the change may occur. The change may occur
after the receipt of written notification from the commission that there are
no objections, or 45 days after the PI-E is received by the commission, 
whichever
occurs first. 

(5) Reportable limit. The executive director shall establish
reportable limits. A reportable limit is either: 

(A) an emission rate that is adjusted based on a factor that
accounts for a ratio of the effects screening levels of the different compounds
and the difference in location of emissions involved in an intraplant trade;
or 

(B) an emission rate that results in a sum total of modeled
ground level concentration for the account that shall not exceed two times
the effects screening level at any point off property. 

(c) For facilities that have received a preconstruction permit,
all changes for which the notification procedure of subsection (b) of this
section has been used shall be incorporated into the permit when the permit
is amended or renewed. 

(d) Nothing in this section shall limit the applicability
of any federal requirement. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809786
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

Compliance History
30 TAC sec.sec.116.120-116.126
STATUTORY AUTHORITY. The repeals are adopted under the Texas
Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809787
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

Division 2. Compliance History
30 TAC sec.sec.116.120-116.126
STATUTORY AUTHORITY. The new sections are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

sec.116.121.Exemptions.
The compliance history is not required if the total increased actual
emissions of any specific air contaminant (e.g., benzene, arsenic, etc.) at
the site will be accompanied by greater than a 1.1 to 1 reduction of the same
specific air contaminant at the site. 

sec.116.122.Contents of Compliance History.
(a) The compliance history shall include all of the following
compliance events and associated information involving the facility that is
the subject of the permit application: 

(1) for Texas facilities: 

(A) criminal convictions known to the commission and civil
orders, judgments, and decrees identified by stating: 

(i) the style of the case; 

(ii) the tribunal issuing the conviction or judgment; 

(iii) the docket number and the date of action; and 

(iv) the general nature of the alleged violation; 

(B) administrative enforcement orders identified by stating: 
(i) the name or style of action; 

(ii) the agency issuing the order; 

(iii) the docket number and the date of the order; and 

(iv) the general nature of the alleged violation; 

(C) compliance proceedings identified by stating: 

(i) the name or style of action; 

(ii) the general nature of the alleged violation; 

(2) for United States facilities outside Texas: 
(A) criminal convictions and civil judgments identified by
stating: 

(i) the style of the case; 

(ii) the tribunal issuing the conviction or judgment; 

(iii) the docket number and date of action; and 

(iv) the general nature of the alleged violation; 

(B) administrative enforcement orders identified by stating: 
(i) the name or style of action; 

(ii) the agency issuing the order; 

(iii) the docket number and the date of the order; and 

(iv) the general nature of the alleged violation; 

(C) for notices of violation issued by the EPA: 

(i) the name of the action; 

(ii) the EPA identification number and date of notice; and 
(iii) the general nature of the alleged violation. 

(b) Violations of fugitive emission monitoring and recordkeeping
requirements imposed either by sec.101.20(1) and (2) of this title (relating
to Compliance with Environmental Protection Agency Standards), or state 
implementation
plan requirements applicable to major sources in nonattainment areas shall
not be included in the compliance history where: 

(1) the violations occurred after the effective date of this
rule, and have been the subject of a commission administrative enforcement
action, and the commission classified the violations as not being subject
to compliance history review; or 

(2) the violations occurred during the five years preceding
the effective date of this rule and have been the subject of a commission
administrative enforcement action in which: 

(A) the commission did not classify the violations as either
major seriousness or major impact for the purpose of administrative review;
and 

(B) the commission assessed a total administrative penalty
of less than $20,000 for the violations. 

(c) The commission may request an analysis of the significance
of the compliance events identified in the compliance history and their 
relevance
to the facility that is the subject of the application. The commission request
shall list specific compliance events requiring such an analysis. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809788
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

Division 3. Public Notification and Comment Procedures
30 TAC sec.sec.116.130-116.134, 116.136, 116.137
STATUTORY AUTHORITY. The amendments are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

sec.116.133.Sign Posting Requirements.
(a) At the applicant's expense, a sign or signs shall be placed
at the site of the proposed facility declaring the filing of an application
for a permit and stating the manner in which the commission may be contacted
for further information. Such signs shall be provided by the applicant and
shall meet the following requirements: 

(1) -(4) (No change.) 

(5) signs shall include the words "Texas Natural Resource
Conservation Commission," and the address of the appropriate commission regional
office in no less than one-inch boldface capital lettering and 3/4-inch boldface
lower case lettering; and 

(6) signs shall include the phone number of the appropriate
commission office in no less than two-inch boldface numbers. 

(b) (No change.) 

(c) Each sign placed at the site must be located within ten
feet of each (every) property line paralleling a street or other public 
thoroughfare.
Signs must be visible from the street and spaced at not more than 1,500-foot
intervals. A minimum of one sign, but no more than three signs shall be required
along any property line paralleling a public thoroughfare. The commission
may approve variations from these requirements if it is determined that 
alternative
sign posting plans proposed by the applicant are more effective in providing
notice to the public. 

(d) The commission may approve variations from the requirements
of subsection (c) of this section if the applicant has demonstrated that it
is not practical to comply with the specific requirements of subsection (c)
of this section and alternative sign posting plans proposed by the applicant
are at least as effective in providing notice to the public. The approval
from the commission under this subsection must be received before posting
signs for purposes of satisfying the requirements of this section. 

(e) (No change.) 

(f) Alternate language sign posting. The requirements of this
subsection are applicable whenever either the elementary school or the middle
school located nearest to the facility or proposed facility provides a bilingual
education program as required by the Education Code, Chapter 29, Subchapter
B, and 19 TAC sec.89.1205(a) or if either school has waived out of such
a required bilingual education program under the provisions of 19 TAC 
sec.89.1205(g).
Schools not governed by the provisions of 19 TAC sec.89.1205(a) shall not
be considered in determining applicability of the requirements of this 
subsection.
Each affected facility shall meet the following requirements. 

(1) The applicant shall post an additional sign in each alternate
language in which the bilingual education program is taught. If the nearest
elementary or middle school has waived out of the requirements of 19 TAC 
sec.89.1205(a)
under 19 TAC sec.89.1205(g), the alternate language signs shall be published
in the alternate languages in which the bilingual education program would
have been taught had the school not waived out of the bilingual education
program. 

(2) -(4) (No change.) 

(g) Exemption from alternate language sign posting. Elementary
or middle schools that offer English as a second language under 19 TAC 
sec.89.1205(e),
and are not otherwise affected by 19 TAC sec.89.1205(a), will not trigger
the requirements of subsection (f) of this section. 

sec.116.137.Notification of Final Action by the Commission.
(a)-(b) (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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809789
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

Division 4. Permit Fees
30 TAC sec.sec.116.140, 116.141, 116.143
STATUTORY AUTHORITY. The amendments are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

sec.116.141.Determination of Fees.
(a) (No change.) 

(b) The following fee schedule shall be used by a permit applicant
to determine the fee to be remitted with a permit application. 

(1) If the estimated capital cost of the project is less than
$300,000 or if the project consists of new facilities controlled and operated
directly by the federal government and the federal regulations for Prevention
of Significant Deterioration (PSD) Review do not apply, the fee is $450. The
provisions of subsections (c) and (d) of this section do not apply to a project
consisting of new facilities controlled and operated directly by the federal
government. 

(2) (No change.) 

(c) If the estimated capital cost of the project is less than
$50 million, the permit applicant shall include a certification that the 
estimated
capital cost of the project is correct. Certification of the estimated capital
cost of the project may be spot-checked and evaluated for reasonableness during
permit processing. The reasonableness of project capital cost estimates used
as a basis for permit fees shall be determined by the extent to which such
estimates include fair and reasonable estimates of the capital value of the
direct and indirect costs listed as follows. 

(1) Direct costs are as follows: 

(A) process and control equipment not previously owned by
the applicant and not currently authorized under this chapter; 

(B)-(G) (No change.) 

(2) (No change.) 

(d)-(e) (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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809790
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

Division 6. Prevention of Significant Deterioration Review
30 TAC sec.116.160, sec.116.161
STATUTORY AUTHORITY. The amendments are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809791
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

Division 7. Emission Reductions: Offsets
30 TAC sec.116.170, sec.116.174
STATUTORY AUTHORITY. The amendments are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809792
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER C.Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources
30 TAC sec.sec.116.180-116.183
STATUTORY AUTHORITY. The new sections are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

sec.116.180.Applicability.
(a) The provisions of this subchapter implement FCAA, sec.112(g),
Modifications, and 40 Code of Federal Regulations Part 63, Hazardous Air 
Pollutants:
Regulations Governing Constructed or Reconstructed Major Sources, Subpart
B, Requirements for Control Technology, as amended December 27, 1996. Affected
sources (as defined in sec.116.15(1) of this title (relating to Section
112(g) Definitions)) subject to this subchapter are those sources for which
EPA has not promulgated a MACT standard under 40 CFR Part 63. For purposes
of this subchapter: 

(1) "Construct a major source" means the following: 

(A) to fabricate, erect, or install at any green field site
a stationary source or group of stationary sources which is located within
a contiguous area and under common control and which emits or has the potential
to emit ten tons per year of any hazardous air pollutant (HAP) or 25 tons
per year of any combination of HAPs; 

(B) to fabricate, erect, or install at any developed site
a new process or production unit which in and of itself emits or has the 
potential
to emit ten tons per year of any HAP or 25 tons per year of any combination
of HAPs, unless the process or production unit satisfies clauses (i)-(vi)
of this subparagraph: 

(i) all HAPs emitted by the process or production unit that
would otherwise be controlled under the requirements of this subchapter will
be controlled by emission control equipment which was previously installed
at the same site as the process or production unit; 

(ii) either of the following regarding control of HAP emissions: 
(I) the executive director has determined within a period
of five years prior to the fabrication, erection, or installation of the process
or production unit that the existing emission control equipment represented
best available control technology (BACT), lowest achievable emission rate
(LAER) under Title 40 Code of Federal Regulations (CFR) Part 51 or 52, toxics-
best
available control technology (T-BACT), or maximum achievable control technology
(MACT) based on state air toxic rules for the category of pollutants which
includes those HAPs to be emitted by the process or production unit; or 

(II) the executive director determines that the control of
HAP emissions provided by the existing equipment will be equivalent to that
level of control currently achieved by other well-controlled similar sources
(i.e., equivalent to the level of control that would be provided by a current
BACT, LAER, T-BACT, or state air toxic rule MACT determination); 

(iii) the executive director determines that the percent control
efficiency for emissions of HAP from all sources to be controlled by the 
existing
control equipment will be equivalent to the percent control efficiency provided
by the control equipment prior to the inclusion of the new process or production
unit; 

(iv) the executive director has provided notice and an opportunity
for public comment concerning its determination that criteria in clauses (i)-
(iii)
of this subparagraph apply and concerning the continued adequacy of any prior
LAER, BACT, T-BACT, or state air toxic rule MACT determination; 

(v) if any commenter has asserted that a prior LAER, BACT,
T-BACT, or state air toxic rule MACT determination is no longer adequate,
the executive director has determined that the level of control required by
that prior determination remains adequate; and 

(vi) any emission limitations, work practice requirements,
or other terms and conditions upon which the determinations in clauses (i)-(v)
of this subparagraph are predicated will be construed by the executive director
as applicable requirements under FCAA, sec.504(a), and either have been
incorporated into any existing permit issued under Chapter 122 of this title
(relating to Federal Operating Permits) for the affected source (as defined
in sec.116.15(1) of this title (relating to Section 112(g) Definitions))
or will be incorporated into such permit upon issuance. 

(2) "Reconstruct a major source" means the
replacement of components at an existing process or production unit that in
and of itself emits or has the potential to emit ten tons per year of any
HAP or 25 tons per year of any combination of HAP, whenever: 

(A) the fixed capital cost of the new components exceeds 50%
of the fixed capital cost that would be required to construct a comparable
process or production unit; and 

(B) it is technically and economically feasible for the reconstructed
major source to meet the applicable MACT emission limitation for new sources
established under this subchapter. 

(b) The requirements of this subchapter apply to an owner or
operator of an affected source (as defined in sec.116.15(1) of this title
(relating to Section 112(g) Definitions)) who constructs or reconstructs on
or after June 29, 1998, the effective date of sec.112(g)(2)(B), unless the
affected source in question has been specifically regulated or exempted from
regulation under a standard issued under the FCAA, sec.112(d), (h), or (j)
and incorporated in another subpart of Part 63, or the owner or operator of
such affected source has received all necessary air quality permits for such
construction or reconstruction project before the effective date of 
sec.112(g)(2)(B).
Administratively complete applications submitted prior to June 29, 1998, are
not subject to the requirements of this subchapter. 

(c) Affected sources as defined in sec.116.15(1) of this
title (relating to Section 112(g) Definitions)) subject to the requirements
of this subchapter are not eligible to use a standard permit under Subchapter
F of this chapter (relating to Standard Permits) unless the terms and conditions
of the specific standard permit meet the requirements of this subchapter.
sec.116.182.Application.
Consistent with the requirements of 40 Code of Federal Regulations,
sec.63.43 (concerning maximum achievable control technology determinations
for constructed and reconstructed major sources), the owner or operator of
a proposed affected source (as defined in sec.116.15(1) of this title (relating
to Section 112(g) Definitions)) shall submit a permit application as described
in sec.116.110 of this title (relating to Applicability). 

sec.116.183.Public Notice Requirements.
Proposed affected sources (as defined in sec.116.15(1) of this title
(relating to Section 112(g) Definitions)) shall comply with the public notice
requirements contained in sec.116.130 of this title (relating to Applicability). 
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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809793
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER D.Permit Renewals
30 TAC sec.sec.116.310-116.314
STATUTORY AUTHORITY. The repeals are adopted under the Texas
Health and Safety Code, the Texas Clean Air Act (TCAA), including, sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809794
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966


STATUTORY AUTHORITY. The new sections
are adopted under the Texas Health and Safety Code, the Texas Clean Air Act
(TCAA), including, sec.382.002, which provides the policy of the State of
Texas and of the TCAA to safeguard the air of the state; sec.382.003, which
provides definitions of terms used throughout the TCAA; sec.382.011, which
provides the commission with the powers necessary to control the quality of
the state's air; sec.sec.382.015-382.017, which provide for power to enter
property; monitoring requirements, examination of records; and the authority
to adopt rules consistent with the policy and purposes of the TCAA; sec.382.021
and sec.382.022, which provide for sampling methods and procedures; and
investigations; sec.sec.382.030-382.032, which provide for delegation
of hearing powers; notice of hearings; and appeal of commission actions; 
sec.382.040
and sec.382.041, which provide for public records and submission of confidential
information; sec.382.051, which provides the commission the authority to
issue permits and adopt rules as necessary to comply with changes in federal
law or regulations applicable to permits; sec.sec.382.0511-382.0518, which
provide authority for the commission to consolidate new source review 
authorizations
and make changes to permits; determine whether a proposed change is a 
modification;
establish and enforce permit conditions; to require sampling, monitoring,
and certification; to require permit applications; provide notices to state
senators and representatives; to determine administrative completeness of
applications; and to require persons to obtain permits for construction of
new facilities or modifications to existing facilities; sec.382.052 and
sec.382.053, which provide for consideration of impacts and nuisance conditions
near schools; and distance limitations for lead smelting plants; sec.382.0541
and sec.382.0542, which provide for administration and enforcement of federal
operating permits; issuance of federal operating permits and appeal of delays;
sec.382.055, which provides for renewals of preconstruction permits; 
sec.382.056,
which provides for notice of intent to obtain a permit or permit review and
provides for permit hearings for permits; sec.382.057, which provides authority
for exemptions from permitting as well as standard permits; sec.382.058,
which provides limitations on exemptions for construction of certain concrete
plants; sec.382.0591, which provides for denial of applications for permits
if assistance has been provided by former or current employees; sec.382.061,
which allows the commission to delegate certain powers to the executive 
director;
sec.382.062, which allows the commission to charge fees for certain actions;
sec.382.085, which prohibits unauthorized emissions; and under Texas Water
Code, including sec.5.103, which provides the commission with the authority
to adopt rules consistent with the policy and purposes of the TCAA and other
laws of this state; sec.5.105, which provides the commission with the authority
to establish and approve commission policy; sec.5.115 and sec.5.116, which
provide for who may be an affected person; notice of applications; and recess
of hearings; sec.5.121 and sec.5.122, which provide for public information;
and delegation of uncontested matters to the executive director; sec.5.234,
which provides for applications and other documents; sec.5.351, which provides
for judicial review of commission acts; sec.5.355, which provides for appeal
of district court judgment; and sec.sec.7.001-7.358, which provide for
enforcement. The rules are readopted under Article IX, sec.167, General
Appropriations Act, 75th Legislature, 1997. 

sec.116.311.Permit Renewal Application.
(a) In order to be granted a permit renewal, the permit holder
shall submit information in support of the application which demonstrates
that: 

(1) the facility is being operated in accordance with all
requirements and conditions of the existing permit, including representations
in the application for permit to construct and subsequent amendments, and
any previously granted renewal, unless otherwise authorized for a qualified
facility; 

(2) the facility meets the requirements of any applicable
New Source Performance Standards as listed under Title 40 Code of Federal
Regulations (CFR) Part 60, promulgated by the EPA under the authority of the
FCAA, sec.111, as amended; 

(3) the facility meets the requirements of any applicable
emission standard for hazardous air pollutants as listed under Title 40 CFR
Part 61, promulgated by EPA under the authority of the FCAA, sec.112, as
amended; and 

(4) the facility meets the requirements of any applicable
maximum achievable control technology standard as listed under 40 CFR Part
63, promulgated by the EPA under FCAA, sec.112 or as listed under Chapter
113, Subchapter C of this title (relating to National Emissions Standards
for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR
63)). 

(5) the facility meets the requirements of Subchapter
C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part
63)). 

(b) In addition to the requirements in subsection (a) of this
section, if the commission determines it necessary to avoid a condition of
air pollution or to ensure compliance with otherwise applicable federal or
state air quality control requirements, then: 

(1) the applicant may be required to submit additional information
regarding the emissions from the facility and their impacts on the surrounding
area; and 

(2) the commission shall impose as a condition for renewal
only those requirements the executive director determines to be economically
reasonable and technically practicable considering the age of the facility
and the impact of its emissions on the surrounding area. 

(c) A compliance history review must be conducted in accordance
with sec.sec.116.121-116.126 of this title (relating to Compliance History).
The renewal application must demonstrate that the facility is or has been
in substantial compliance with the provisions of the TCAA and the terms of
the existing permit. Failure to demonstrate substantial compliance shall result
in the renewal not being granted. If it is found that violations in the 
compliance
history constitute a recurring pattern of egregious conduct which demonstrates
a consistent disregard for the regulatory process, including failure to make
a timely and substantial attempt to correct the violations, the renewal shall
be denied. If a contested case hearing has not been called, the executive
director must notify the applicant of the intent to recommend denial and state
the basis of the findings. The applicant will be given an opportunity to respond
to the notice. If the findings reflect a pattern of disregard for applicable
regulations which do not warrant denial, additional conditions may be placed
in the permit. 

(d) An application for renewal must be submitted within 90
days prior to expiration of the permit or the permit will expire. The executive
director may extend the time period for submitting an application. 

(e) Any permit issued: 

(1) before December 1, 1991, is subject for review 15 years
after the date of issuance; 

(2) on or after December 1, 1991, is subject for review
every ten years after the date of issuance. 

(3) at nonfederal sources on or after December 1, 1991,
may, for cause, contain a provision requiring renewal between five and ten
years. 

sec.116.312.Public Notification and Comment Procedures.
(a) The executive director shall mail a written notice to
the permit holder within 30 days after receipt of a complete application.
The notice will confirm receipt of the application and shall require the 
applicant
to provide public notice of the application for permit renewal in accordance
with Subchapter B of this chapter (relating to New Source Review Permits).
(b) The sign heading required under sec.116.133(a)(2) of
this title (relating to Sign Posting Requirements) shall read "PROPOSED RENEWAL
OF AIR QUALITY PERMIT."

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809795
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER F.Standard Permits
30 TAC sec.sec.116.610, 116.611, 116.614, 116.615, 116.617, 116.620,
116.621
STATUTORY AUTHORITY. The amendments are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

sec.116.610.Applicability.
(a) Under the TCAA, sec.382.051, a project which meets the
requirements for a standard permit listed in this subchapter is hereby entitled
to the standard permit, provided the following conditions listed in this section
are met. For the purposes of this subchapter, project means the construction
or modification of a facility or a group of facilities submitted under the
same registration claim. 

(1)-(2) (No change.) 

(3) the proposed project must comply with the applicable
provisions of the FCAA, sec.111 (concerning New Source Performance Standards)
as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated
by the EPA; 

(4) the proposed project must comply with the applicable
provisions of FCAA, sec.112 (concerning Hazardous Air Pollutants) as listed
under 40 CFR 61, promulgated by the EPA; 

(5) the proposed project must comply with the applicable
maximum achievable control technology standards as listed under 40 CFR Part
63, promulgated by the EPA under FCAA, sec.112 or as listed under Chapter
113, Subchapter C of this title (relating to National Emissions Standards
for Hazardous Air Pollutants for Source Categories (FCAA sec.112, 40 CFR
63)). 

(6) the owner or operator of the facility shall register
the proposed project in accordance with sec.116.611 of this title (relating
to Registration Requirements). 

(b)-(c) (No change.) 

(d) Any project involving a proposed affected source (as defined
in sec.116.15(1) of this title (relating to Section 112(g) Definitions))
shall comply with all applicable requirements under Subchapter C of this chapter
(relating to Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part 63)). Affected
sources subject to Subchapter C of this chapter may use a standard permit
under this subchapter only if the terms and conditions of the specific standard
permit meet the requirements of Subchapter C of this chapter. 

sec.116.620.Installation and/or Modification of Oil
and Gas Facilities.
(a) Emission specifications. 

(1)-(3) (No change.) 

(4) New or modified internal combustion reciprocating
engines or gas turbines permitted under this standard permit shall satisfy
all of the requirements of sec.106.512 of this title (relating to Stationary
Engines and Turbines (Previously SE 6)), except that registration using the
Form PI-7 or PI-8 shall not be required. Emissions from engines or turbines
shall be limited to the amounts found in sec.106.4(a)(1) of this title (relating
to Requirements for Exemption from Permitting). 

(5)-(12) (No change.) 

(13) Appropriate documentation shall be submitted to
demonstrate that compliance with the Prevention of Significant Deterioration
(PSD) and nonattainment new source review provisions of the FCAA, Parts C
and D, and regulations promulgated thereunder, and with Subchapter C of this
chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed
or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part 63)) are being
met. The oil and gas facility shall be required to meet the requirements of
Subchapter B of this chapter (relating to New Source Review Permits) instead
of this subchapter if a PSD or nonattainment permit or a review under Subchapter
C of this chapter is required. 

(14) Documentation shall be submitted to demonstrate
compliance with applicable New Source Performance Standards (NSPS, 40 CFR
Part 60). 

(15) Documentation shall be submitted to demonstrate
compliance with applicable National Emission Standards for Hazardous Air 
Pollution
(NESHAP, 40 CFR Part 61). 

(16) Documentation shall be submitted to demonstrate
compliance with applicable maximum achievable control technology standards
as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, sec.112
or as listed in Chapter 113, Subchapter C of this title (relating to National
Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA
sec.112, 40 CFR Part 63)). 

(17) New and increased emissions shall not cause or contribute
to a violation of any National Ambient Air Quality Standard or regulation
property line standards as specified in Chapters 111, 112, and 113 of this
title (relating to Control of Air Pollution from Visible Emissions and 
Particulate
Matter; Control of Air Pollution from Sulfur Compounds; and Control of Air
Pollution from Toxic Materials). Engineering judgment and/or computerized
air dispersion modeling may be used in this demonstration. To show compliance
with sec.116.610(a)(1) of this title (relating to Applicability) for H<sub>2S 
emissions from process vents, ten milligrams per
cubic meter shall be used as the "L" value instead of the value represented
by sec.116.610(a)(1) of this title. 

(18) Fuel for all combustion units and flare pilots shall
be sweet natural gas or liquid petroleum gas, fuel gas containing no more
than ten grains of total sulfur per 100 dry standard cubic feet (dscf), or
field gas. If field gas contains more than 1.5 grains of H<sub>2S or 30 grains 
total sulfur compounds per 100 dscf, the operator shall
maintain records, including at least quarterly measurements of fuel H<sub>2S and 
total sulfur content, which demonstrate that
the annual SO<sub>2 emissions from the facility do
not exceed the limitations listed in the standard permit registration. If
a flare is the only combustion unit on a property, the operator shall not
be required to maintain such records on flare pilot gas. 

(b) Control requirements. 

(1) Floating roofs or equivalent controls shall be required
on all new or modified storage tanks, other than pressurized tanks which meet
sec.106.476 of this title (relating to Pressurized Tanks or Tanks Vented
to Control (Previously SE 83)), unless the tank is less than 25,000 gallons
in nominal size or the vapor pressure of the compound to be stored in the
tank is less than 0.5 pounds per square inch absolute (psia) at maximum short-
term
storage temperature. 

(A)-(E) (No change.) 

(2) (No change.) 

(c) Inspection requirements. 

(1) Owners or operators who are subject to subsection (a)(7)
or (8) of this section shall comply with the following requirements. 

(A) No component shall be allowed to have a VOC leak for more
than 15 days after the leak is detected to exceed a VOC concentration greater
than 10,000 parts per million by volume (ppmv) above background as methane,
propane, or hexane, or the dripping or exuding of process fluid based on sight,
smell, or sound for all components. The VOC fugitive emission components which
contact process fluids where the VOCs have an aggregate partial pressure or
vapor pressure of less than 0.5 psia at 100 degrees Fahrenheit are exempt
from this requirement. If VOC fugitive emission components are in service
where the operating pressure is at least 0.725 pounds per square inch (psi)
(five kilopascals (Kpa)) below ambient pressure, then these components are
also exempt from this requirement as long as the equipment is identified in
a list that is made available upon request by the agency representatives,
the EPA, or any other air pollution agency having jurisdiction. All piping
and valves two inches nominal size and smaller, unless subject to federal
NSPS requiring a fugitive VOC emissions leak detection and repair program
or Chapter 115 of this title (relating to Control of Air Pollution from Volatile
Organic Compounds), are also exempt from this requirement. 

(B)-(I) (No change.) 

(J) After completion of the required quarterly inspections
for a period of at least two years, the operator of the oil and gas facility
may request in writing to the Office of Air Quality, New Source Review Permits
Division that the monitoring schedule be revised based on the percent of valves
leaking. The percent of valves leaking shall be determined by dividing the
sum of valves leaking during current monitoring and valves for which repair
has been delayed by the total number of valves subject to the requirements.
This request shall include all data that has been developed to justify the
following modifications in the monitoring schedule. 

(i)-(ii) (No change.) 

(2) Owners or operators who are subject to
subsection (a)(9) or (10) of this section shall comply with the following
requirements. 

(A)-(I) ( No change.) 

(J) After completion of the required quarterly inspections
for a period of at least two years, the operator of the oil and gas facility
may request in writing to the Office of Air Quality, New Source Review Permits
Division that the monitoring schedule be revised based on the percent of valves
leaking. The percent of valves leaking shall be determined by dividing the
sum of valves leaking during current monitoring and valves for which repair
has been delayed by the total number of valves subject to the requirements.
This request shall include all data that have been developed to justify the
following modifications in the monitoring schedule. 

(i)-(ii) (No change.) 

(K) (No change.) 

(3) (No change.) 

(d) Approved test methods. 

(1)-(2) (No change.) 

(3) Proper operation of any condenser used as a VOC emissions
control device to comply with subsection (a)(5) of this section shall be tested
to demonstrate compliance with the minimum control efficiency. Sampling shall
occur within 60 days after start-up of new or modified facilities. The permittee
shall contact the Engineering Services Section, Office of Compliance and 
Enforcement
45 days prior to sampling for approval of sampling protocol. The appropriate
regional office in the region where the source is located shall also be 
contacted
45 days prior to sampling to provide them the opportunity to view the sampling.
Neither the regional office nor the Engineering Services Section, Office of
Compliance and Enforcement personnel are required to view the testing. Sampling
reports which comply with the provisions of the "TNRCC Sampling Procedures
Manual," Chapter 14 ("Contents of Sampling Reports," dated January 1983 and
revised July 1985), shall be distributed to the appropriate regional office,
any local programs, and the Engineering Services Section, Office of Compliance
and Enforcement.

(e) Monitoring and recordkeeping requirements. 

(1) If the operator elects to install and maintain ambient
H<sub>2S property line monitors to comply with subsection
(a)(11) of this section, the monitors shall be approved by the Engineering
Services Section, Office of Compliance and Enforcement office in Austin, and
shall be capable of detecting and alarming at H<sub>2S
concentrations of ten ppmv. Operations personnel shall perform an initial
on-site inspection of the facility within 24 hours of initial alarm and take
corrective actions as listed in subsection (c)(3)(A)-(C) of this section within
eight hours of detection of a leak. 

(2) The results of the VOC leak detection and repair
requirements shall be made available to the executive director or any air
pollution control agency having jurisdiction upon request. Records, for all
components, shall include: 

(A)-(E) (No change.) 

(3)-(8) (No change.) 

sec.116.621.Municipal Solid Waste Landfills.
A person may claim a standard permit for the construction or modification
to a municipal solid waste landfill (MSWLF) or municipal solid waste facility
(MSW facility) as defined in sec.101.1 of this title (relating to Definitions),
including, but not limited to, Type I, Type 1-AE, Type II, Type III, Type
IV, Type IV-AE, Type VI, and Type IX sites as defined in sec.330.41 of this
title (relating to Types of Municipal Solid Waste Sites). 

(1) (No change.) 

(2) Separate permit authorization under Subchapter B
of this chapter (relating to New Source Review Permits) must be obtained for
the following: 

(A)-(E) (No change.) 

(F) any project which constitutes a new major source, or major
modification under the new source review requirements of the FCAA, Part C
(Prevention of Significant Deterioration review), Part D (nonattainment review)
and regulations promulgated thereunder, or is an affected source (as defined
in sec.116.15(1) of this title (relating to Section 112(g) Definitions))
subject to Subchapter C of this chapter (relating to Hazardous Air Pollutants:
Regulations Governing Constructed or Reconstructed Major Sources (FCAA, 
sec.112(g)
40 CFR Part 63)) shall be subject to the requirements of sec.116.110 of
this title (relating to Applicability) rather than this subchapter. 

(3) (No change.) 

(4) The permit holder shall comply with the air emissions
standards as specified in 40 CFR Part 60, Subpart WWW, with the following
additions and changes. 

(A) (No change.) 

(B) The GCCS shall be designed to control nonmethane organic
compounds (NMOC) gas emissions in one or more of the following ways by routing
the total collected gas to: 

(i) an open flare with a minimum height of 30 feet and which
satisfies all of the requirements of Chapter 106, Subchapter A of this title
(relating to General Requirements) and sec.106.492 of this title (relating
to Flares (Previously SE 80)), except that registration using Form PI-7 or
PI-8 shall not be required; 

(ii)-(iii) (No change.) 

(iv) gas or liquid fuel-fired stationary internal combustion
reciprocating engines or gas turbines that satisfy all of the requirements
of Chapter 106, Subchapter A of this title and sec.106.512 of this title
(relating to Stationary Engines and Turbines (Previously SE 6)), except that
registration using Form PI-7 or PI-8 shall not be required; or 

(v) boilers, heaters, or other combustion units, but not including
stationary internal combustion engines or turbines, that satisfy all of the
requirements of Chapter 106, Subchapter A of this title and sec.106.183
of this title (relating to Boilers, Heaters, or Other Combustion Devices 
(Previously
SE 7)). 

(C) The active GCCS may be capped or removed only if, in addition
to the requirements listed in 40 CFR, sec.60.752(b)(2)(v), the MSWLF is
permanently closed under sec.sec.330.250-330.256 of this title (relating
to Closure and Post-closure). 

(5) (No change.) 

(6) High volume air sampling for net ground level concentrations
of total particulate matter shall be performed upon request of the executive
director or a designated representative. Each test shall consist of at least
one upwind and one downwind sample taken simultaneously. The tests shall be
performed during normal operations. A monitoring plan for high volume sampling
shall be developed in accordance with the Office of Air Quality Management
Plan, Appendix I (EPA Requirements for Quality Assurance Project Plans, dated
February 1995) and the "TNRCC Sampling Procedures Manual," Chapter 11 (dated
January 1983 and revised July 1985), and shall require approval by the executive
director or a designated representative prior to sampling. The executive 
director
or a designated representative shall be afforded the opportunity to observe
all such sampling equipment, operations, and records upon request. 

(7) GCCS components (compressor seals, pipeline valves,
pressure relief valves in gaseous service, flanges, and pump seals) at an
MSWLF or MSW facility, where the total of all estimated uncontrolled fugitive
emissions from all components is greater than ten tons per year, shall be
inspected and maintained under the requirements of sec.116.620(c)(1)(A)-(J)
of this title (relating to Installation and/or Modification of Oil and Gas
Facilities), with the following changes and additions. 

(A)-(E) (No change.) 

(8) The owner or operator of each MSWLF unit shall
maintain complete and up-to-date records sufficient to readily determine 
continuous
compliance with the requirements of this section for the previous five years
of operation. All the records shall be maintained in an operating record in
accordance with sec.330.113(b)(11) of this title (relating to Recordkeeping
Requirements). The records shall be available for review upon request by 
representatives
of the commission or any local air pollution agency having jurisdiction. The
following recordkeeping requirements shall apply, in addition to those specified
in 40 CFR 60, Subpart WWW. 

(A) Permit holders who are subject to the exemptions of Chapter
106 of this title (relating to Exemptions from Permitting), as specified in
paragraph (4) of this section shall maintain any records specified in the
exemption. 

(B) (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.

Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809796
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

SUBCHAPTER G.Flexible Permits
30 TAC sec.sec.116.710, 116.711, 116.714, 116.715, 116.721, 116.730,
116.740, 116.750
STATUTORY AUTHORITY. The amendments are adopted under the
Texas Health and Safety Code, the Texas Clean Air Act (TCAA), including, 
sec.382.002,
which provides the policy of the State of Texas and of the TCAA to safeguard
the air of the state; sec.382.003, which provides definitions of terms used
throughout the TCAA; sec.382.011, which provides the commission with the
powers necessary to control the quality of the state's air; sec.sec.382.015-
382.017,
which provide for power to enter property; monitoring requirements, examination
of records; and the authority to adopt rules consistent with the policy and
purposes of the TCAA; sec.382.021 and sec.382.022, which provide for sampling
methods and procedures; and investigations; sec.sec.382.030-382.032, which
provide for delegation of hearing powers; notice of hearings; and appeal of
commission actions; sec.382.040 and sec.382.041, which provide for public
records and submission of confidential information; sec.382.051, which provides
the commission the authority to issue permits and adopt rules as necessary
to comply with changes in federal law or regulations applicable to permits;
sec.sec.382.0511-382.0518, which provide authority for the commission
to consolidate new source review authorizations and make changes to permits;
determine whether a proposed change is a modification; establish and enforce
permit conditions; to require sampling, monitoring, and certification; to
require permit applications; provide notices to state senators and 
representatives;
to determine administrative completeness of applications; and to require persons
to obtain permits for construction of new facilities or modifications to 
existing
facilities; sec.382.052 and sec.382.053, which provide for consideration
of impacts and nuisance conditions near schools; and distance limitations
for lead smelting plants; sec.382.0541 and sec.382.0542, which provide
for administration and enforcement of federal operating permits; issuance
of federal operating permits and appeal of delays; sec.382.055, which provides
for renewals of preconstruction permits; sec.382.056, which provides for
notice of intent to obtain a permit or permit review and provides for permit
hearings for permits; sec.382.057, which provides authority for exemptions
from permitting as well as standard permits; sec.382.058, which provides
limitations on exemptions for construction of certain concrete plants; 
sec.382.0591,
which provides for denial of applications for permits if assistance has been
provided by former or current employees; sec.382.061, which allows the 
commission
to delegate certain powers to the executive director; sec.382.062, which
allows the commission to charge fees for certain actions; sec.382.085, which
prohibits unauthorized emissions; and under Texas Water Code, including 
sec.5.103,
which provides the commission with the authority to adopt rules consistent
with the policy and purposes of the TCAA and other laws of this state; 
sec.5.105,
which provides the commission with the authority to establish and approve
commission policy; sec.5.115 and sec.5.116, which provide for who may
be an affected person; notice of applications; and recess of hearings; sec.5.121
and sec.5.122, which provide for public information; and delegation of 
uncontested
matters to the executive director; sec.5.234, which provides for applications
and other documents; sec.5.351, which provides for judicial review of commission
acts; sec.5.355, which provides for appeal of district court judgment; and
sec.sec.7.001-7.358, which provide for enforcement. The rules are readopted
under Article IX, sec.167, General Appropriations Act, 75th Legislature,
1997. 

sec.116.711.Flexible Permit Application.
Any application for a new flexible permit or flexible permit amendment
must include a completed Form PI-1 General Application. The Form PI-1 must
be signed by an authorized representative of the applicant. The Form PI-1
specifies additional support information which must be provided before the
application is deemed complete. In order to be granted a flexible permit or
flexible permit amendment, the owner or operator of the proposed facility
shall submit information to the commission which demonstrates that all of
the following are met. 

(1) Protection of public health and welfare. The emissions
from the proposed facility, group of facilities, or account as determined
under sec.116.716 of this title (relating to Emission Caps and Individual
Emission Limitations), will comply with all rules and regulations of the 
commission
and with the intent of the TCAA, including protection of the health and physical
property of the people. In considering the issuance of a flexible permit for
construction or modification of any facility, group of facilities, or account
within 3,000 feet or less of an elementary, junior high/middle, or senior
high school, the commission shall consider any possible adverse short-term
or long-term side effects that an air contaminant or nuisance odor from the
facility, group of facilities, or account may have on the individuals attending
these school facilities. 

(2) Measurement of emissions. The proposed facility,
group of facilities, or account will have provisions for measuring the emission
of air contaminants as determined by the executive director. This may include
the installation of sampling ports on exhaust stacks and construction of 
sampling
platforms in accordance with guidelines in the "Texas Natural Resource 
Conservation
Commission Sampling Procedures Manual." 

(3) Best available control technology (BACT). The proposed
facility, group of facilities, or account will utilize BACT, with consideration
given to the technical practicability and economic reasonableness of reducing
or eliminating the emissions from the facility on a proposed facility, group
of facilities, or account basis. Control technology beyond BACT may be used
on certain facilities to provide the emission reductions necessary to comply
with this requirement on a group of facilities or account basis, provided
however, that the existing level of control may not be lessened for any 
facility.
For new facilities and proposed affected sources (as defined in sec.116.15(1)
of this title (relating to Section 112(g) Definitions)) subject to Subchapter
C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part
63)), the use of BACT shall be demonstrated for the individual facility or
affected source. 

(4) New Source Performance Standards (NSPS). The emissions
from each affected facility as defined in 40 Code of Federal Regulations (CFR),
Part 60 will meet at least the requirements of any applicable NSPS as listed
under Title 40 CFR Part 60, promulgated by the EPA under authority granted
under the FCAA, sec.111, as amended. 

(5) National Emission Standards for Hazardous Air Pollutants
(NESHAPS). The emissions from each facility as defined in 40 CFR Part 61 will
meet at least the requirements of any applicable NESHAPS, as listed under
40 CFR Part 61, promulgated by EPA under authority granted under the FCAA,
sec.112, as amended. 

(6) NESHAPS for source categories. The emissions from
each affected facility shall meet at least the requirements of any applicable
MACT standard as listed under 40 CFR Part 63, promulgated by the EPA under
FCAA, sec.112 or as listed under Chapter 113, Subchapter C of this title
(relating to National Emissions Standards for Hazardous Air Pollutants for
Source Categories (FCAA sec.112, 40 CFR 63)). 

(7) Performance demonstration. The proposed facility,
group of facilities, or account will achieve the performance specified in
the flexible permit application. The applicant may be required to submit 
additional
engineering data after a flexible permit has been issued in order to demonstrate
further that the proposed facility, group of facilities, or account will achieve
the performance specified in the flexible permit. In addition, initial 
compliance
testing with ongoing compliance determined through engineering calculations
based on measured process variables, parametric or predictive monitoring,
stack monitoring, or stack testing may be required. 

(8) Nonattainment review. If the proposed facility, group
of facilities, or account is located in a nonattainment area, each facility
shall comply with all applicable requirements under the undesignated head
concerning nonattainment review in Subchapter B of this chapter (relating
to New Source Review Permits). 

(9) Prevention of Significant Deterioration (PSD) review.
If the proposed facility, group of facilities, or account is located in an
attainment area, each facility shall comply with all applicable requirements
under the undesignated head concerning PSD in Subchapter B of this chapter.
(10) Air dispersion modeling or ambient monitoring. Computerized
air dispersion modeling and/or ambient monitoring may be required by the 
commission's
New Source Review Permits Division to determine the air quality impacts from
the facility, group of facilities, or account. 

(11) Federal standards of review for constructed or reconstructed
major sources of hazardous air pollutants. If the proposed source is an affected
source (as defined in sec.116.15(1) of this title (relating to Section 112(g)
Definitions)), it shall comply with all applicable requirements under Subchapter
C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part
63)). 

(12) Application content. In addition to any other requirements
of this chapter, the applicant shall: 

(A) identify each air contaminant for which an emission cap
is desired; 

(B) identify each facility to be included in the flexible
permit; 

(C) identify each source of emissions to be included in the
flexible permit and for each source of emissions identify the Emission Point
Number (EPN) and the air contaminants emitted; 

(D) for each emission cap, identify all associated EPNs and
provide emission rate calculations based on the expected maximum capacity
and the proposed control technology; 

(E) for each individual emission limitation, identify the
EPN and provide emission rate calculations based on the expected maximum 
capacity
and the proposed control technology. 

(13) Proposed control technology and compliance demonstration.
The applicant shall specify the control technology proposed for each unit
to meet the emission cap and demonstrate compliance with all emission caps
at expected maximum production capacity. 

sec.116.740.Public Notice and Comment.
(a) Any person who applies for a flexible permit or an amendment
to a flexible permit shall comply with the provisions in sec.sec.116.130-
116.134,
116.136, 116.137 of this title (relating to Public Notification and Comment
Procedures). 

(b) Any person who applies for an amendment to a flexible
permit regarding an affected source (as defined in sec.116.15(1) of this
title (relating to Section 112(g) Definitions)) subject to Subchapter C of
this chapter (relating to Hazardous Air Pollutants: Regulations Governing
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part
63)) shall comply with the provisions in sec.sec.116.130-116.134, 116.136,
and 116.137 of this title. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809797
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 8, 1998

Proposal publication date: March 20, 1998

For further information, please call: (512) 239-1966

CHAPTER 330.Municipal Solid Waste
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to sec.330.601, relating to Purpose and Applicability; the repeal
of sec.sec.330.801-330.818, 330.820-330.836, 330.838, and 330.840-330.889;
and new sec.sec.330.801-330.821 in Subchapter R, concerning Management
of Used or Scrap Tires. The amendment to sec.330.601 and new sec.sec.330.802-
330.820
are adopted with changes to the proposed text published in the January 2,
1998, issue of the Texas Register (23 TexReg
64). New sec.330.801 and sec.330.821 and the repealed sections are adopted
without changes and will not be republished.

EXPLANATION OF ADOPTED RULES The purposes of the adopted amendments, repeals
and new sections are to address the sunset provisions of Texas Health and
Safety Code Chapter 361, Subchapter P, address the requirements of existing
statutory language which does not contain a sunset provision, and streamline
certain requirements of the previous rules. In most areas of the adopted new
sections, rule language from the previously existing sections has been 
streamlined,
clarified, and/or reformatted. In other areas, new requirements are adopted. 
Chapter 361, Subchapter P of the Texas Health and Safety Code contained
a provision for the Waste Tire Recycling Fund (WTRF) reimbursement program
to sunset December 31, 1997. Subchapter P established the WTRF and the 
reimbursement
program for processors to collect, shred, and recycle used or scrap tires.
Under the sunset provisions, all references to the reimbursement program,
including end-use requirements, and the WTRF have been deleted. The adopted
rules no longer contain the 90-day limit for generators to remove whole tires
from storage. Generators who store more than 500 used or scrap tires are still
required to register with the commission. Other adopted changes concerning
generator requirements include removal of the requirement to accept used tires,
removal of the restriction from accepting money for tires, removal of the
requirement to remove tires from rims, removal of the differentiation between
large and regular volume generators, and removal of the restriction that 
generators
can only store their own tires. For transporters, the registration fee is
removed, the exemption from registration is expanded to include generators
hauling their own tires and to include governmental transport vehicles, and
the prohibition from charging a fee to haul tires is deleted. For storage
facilities, an exemption from registration as a storage site is adopted for
generators who process and/or store 500 or fewer used or scrap tires on the
ground or 2,000 or fewer in enclosed containers; the registration and design
requirements for a scrap tire storage site have been reorganized but are 
essentially
unchanged from the current rules; requirements are added for land reclamation
projects using tires (LRPUT); the training requirements for employees 
transporting
or handling tires and for transporters who deliver tires to the storage facility
have been removed; and notice to local governments is required. Concerning
scrap tire facilities, the adoption includes processing, recycling, and energy
recovery facilities under this designation; requires a scrap tire storage
site registration for certain processors and for facilities storing more than
a 30-day supply of tires; reduces the frequency of reporting to an annual
report; and removes the $500 registration fee. Concerning the Special 
Authorization
Priority Enforcement List (SAPEL) and the Priority Enforcement List (PEL)
program, the adoption has removed the 2,500,000 tire "trigger" for issuing
contracts to procure cleanups for the removal of tires from PEL sites, and
has removed the previous rule language concerning assignment of PEL sites
on an individual basis to waste tire facilities, in favor of a competitively-bid
contract process. Concerning closure costs estimates and financial assurance,
the per-tire formula is deleted, the written estimate of closure costs is
to be calculated based on actual estimates for third-party closure, and 
financial
assurance sections are being adopted under Chapter 37 of this title (relating
to Financial Assurance). 

Also due to the sunset provisions of Texas Health and Safety Code Chapter
361, Subchapter P, the following previously existing sections are repealed:
sec.330.804, concerning the use of tire shreds in landfills; sec.sec.330.820-
330.829,
concerning WTRF allocation method, model, notification, fiscal audits, 
overpayment
from the WTRF, and WTRF program reviews; sec.330.838, concerning requirements
for a Type VIII-W.T. waste tire storage facility; sec.330.842, concerning
waste tire facility classification and operational requirements such as 
shredding;
sec.330.848, concerning eligibility for the WTRF program; sec.330.850,
concerning requirements for waste tire recycling facilities; sec.330.853
and sec.330.854, concerning requirements and funding for waste tire energy
recovery facilities; sec.330.856 and sec.330.857, concerning requirements
for waste tire transfer stations and collection centers; sec.330.864, concerning
ranking of illegal waste tire sites; sec.330.871 and sec.330.872, concerning
the WTRF; and sec.sec.330.874-330.884, concerning WTRF grants, confidentiality,
WTRF reimbursement and transfer of funds, special authorization tires, community
service, executive director's regional site directive and protests thereof,
formal petitions and hearings, and end use credit system. 

FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the rulemaking
in light of the regulatory analysis requirements of the Texas Government Code
sec.2001.0225 and has determined that the rulemaking is not subject to 
sec.2001.0225
because it does not meet the definition of a "major environmental rule" as
defined in the act, and it does not meet any of the four applicability 
requirements
listed in sec.2001.0225(a). No comments on the proposed regulatory impact
analysis were received. 

TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact
Assessment for these rules pursuant to Texas Government Code Annotated 
sec.2007.043.
The following is a summary of that assessment. The specific purpose of the
rules is to adopt a set of regulations for the sound and proper management
of used or scrap tires or tire pieces that are classified as municipal solid
waste. The rules will substantially advance this specific purpose by adopting
a set of standards controlling the storage, transportation, treatment, and
disposal of used tires, scrap tires, and tire pieces. Promulgation and 
enforcement
of these rules will burden private real property which is the subject of the
rules to the extent that restrictions are placed on private property where
used or scrap tires are stored, and restrictions are placed on the use of
used or scrap tires in land reclamation projects. However, this action is
taken to prevent a public or private nuisance. Without the regulatory controls
and management options provided in these rules, there would be a proliferation
of illegal tire dumps on both private and public lands. These dumps would
not only be unsightly, but would also present public health and safety hazards
primarily due to vectors and the risk of fires. Furthermore, there is a good
faith belief that this action is necessary to prevent a grave and immediate
threat to life or property. Without the regulatory controls and management
options provided in these rules, there would be a proliferation of illegal
tire dumps on both private and public lands. These dumps would present a serious
threat of fires which would endanger life and property. In addition, these
dumps would lead to serious vector problems which would endanger life in areas
where disease-carrying vermin and/or mosquitoes are present alongside human
and animal populations. Some portion of the rules implement the existing state
law in 361.112, and some portion of the rules replace existing rules that
are more stringent. 

COASTAL MANAGEMENT PROGRAM The commission has reviewed this rulemaking
and found that the rulemaking identified in Coastal Coordination Act 
Implementation
Rules, 31 TAC sec.505.11, relating to Actions and Rules Subject to the Coastal
Management Program (CMP), or will affect an action/authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC sec.505.11, and
therefore requires that applicable goals and policies of the CMP be considered
during the rulemaking process. 

The commission has prepared a consistency determination for the adopted
rules pursuant to 31 TAC sec.505.22 and has found the rulemaking to be 
consistent
with the applicable CMP goals and policies. The following is a summary of
that determination. The CMP goal applicable to the rules is the goal to protect,
preserve, restore, and enhance the diversity, quality, quantity, functions,
and values of coastal natural resource areas. CMP policies applicable to the
rules include the administrative policies and the policies for specific 
activities
related to construction and operation of solid waste treatment, storage, and
disposal facilities. 

Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because the rules will encourage safe and appropriate
storage, transportation, treatment, and disposal of used tires, scrap tires,
and tire pieces that are classified as municipal solid wastes, which will
result in an overall environmental benefit across the state, including in
coastal areas. In addition, the rules do not violate any applicable provisions
of the CMP's stated goals and policies. No comments were received on the 
proposed
CMP consistency determination. 

PUBLIC HEARING AND COMMENTS A public hearing was held on January 27, 1998
in Austin, Texas. There were oral and written comments received from six 
commenters
at the hearing. Oral comments were provided by Anne Day, Tom Collins, and
Beatrice Link, representing the City of Houston (City of Houston); R.P. Jones,
representing the Harris County Health Department; Danny Ibarra, representing
Safe Tire Disposal Corporation of Texas; and Kay Knapp, representing Texas
Tire Dealers Association. In addition, there were written comments received
subsequent to the public hearing prior to the filing deadline of 5:00 p.m.
February 17, 1998. Twenty-four written comments were received from: Aluminum
Company of America (Alcoa), Blackburn & Carter, Concerned Citizens for
Community Development, Edgebrook Neighborhood Coalition, City of El Paso 
Department
of Solid Waste Management (City of El Paso), Environmental Recovery &
Recycling Inc. (ERRI), Gulf Freeway Oaks Civic Club, Holnam Texas L.P. (HTLP),
House, Kingsmill, Riess & Seabolt, L.L.C., City of Houston Mayor's Office
(City of Houston), Lubbock Waste Tire Recycling, North Texas Cement Company
(NTCC), State Representative Dora Olivo, Safe Tire Disposal Corp. of Texas,
Southeast Neighborhood Coalition, TechniServ Inc., Texas Automobile Dealers
Association (TADA), Texas Crumb Industries, L.L.C. (TCI), Texas Mosquito Control
Association, and five individuals. 

An individual commented that an unzoned area and neighborhoods adjacent
to commercial use are not protected from nuisances. The Edgebrook Neighborhood
Coalition commented that, if the new commission rules are adopted, the quality
of life in neighborhoods will be negatively impacted, and since the City of
Houston lacks zoning and deed restrictions, the entire city will suffer. The
Gulf Freeway Oaks Civic Club stated that they did not agree with the proposed
rules, that the proposed rules would be a disaster for the neighborhood, and
that they would bring the value of the homes down. The City of Houston expressed
concerns that storage facilities can be located anywhere in the City of Houston,
and concerns over the lack of distance and screening requirements. 

While the commission appreciates these commenters' concerns, it should
be noted that concerns over zoning and deed restrictions are more appropriately
addressed on a local basis by local governments. It should also be noted that
a primary purpose of the adopted rules is to prevent nuisances and uncontrolled
storage of used or scrap tires. Promulgation and enforcement of these rules
will encourage safe and appropriate storage, transportation, treatment, and
disposal of used tires, scrap tires, and tire pieces that are classified as
municipal solid wastes, which will result in an overall environmental benefit
across the state, including in unzoned areas. 

The City of Houston recommended that the rules contain a provision acknowledging
the authority of local governments to regulate entities not regulated under
the state rules and to impose more stringent requirements. An individual 
commented
that a facility with a registration or permit must be operated in compliance
with local ordinances that may be stronger than the commission's rules. The
City of El Paso recommended that language be added that would enable 
municipalities
to draft local ordinances to address the problems of proper waste tire disposal
and specify that municipalities may enact more stringent regulations that
are consistent with these rules. 

The commission agrees with these comments and acknowledges that local 
municipalities
have the authority to pass regulations which are equal to or more stringent
than the regulations in this subchapter. The commission has added language
in sec.330.802(a) which states that local governments have the authority
to pass local ordinances regarding the management of used or scrap tires within
the boundaries of the local government and requires all persons or facilities
regulated by the subchapter to comply with all applicable local ordinances
that are equally or more stringent than the regulations in this subchapter. 
Concerning sec.330.803, the City of Houston requested clarification as
to what constitutes a facility or site. 

The commission agrees that a definition of facility is appropriate and
has added the definition of facility as all contiguous land and structures,
other appurtenances, and improvements on the land used for the storage or
processing of scrap tires. 

Concerning sec.330.803, the TADA identified a typographical error in
referring to generators as "registered." 

The commission agrees with this comment. Not all generators are required
to register under these rules. The word "registered" has been deleted for
purposes of clarification. 

Concerning sec.330.803, ERRI, Lubbock Waste Tire Recycling, and TCI recommended
that tire baler be included in the definition of tire processor to ensure
that baling operations are subject to the regulations, provisions, and rules
required for tire processing facilities. The commenters also requested that
these facilities be specifically required to include legitimate end uses for
their baled products and provide financial assurance for the future liability
of site cleanups from the eventual decomposition of the binding material. 
In response to this comment, the commission has included tire baling in
the definition of tire processor. When tires are baled, they are compressed
and baled with wire strands, reducing the volume of the tires. Processing
is defined as "the extraction of materials from or the transfer, volume 
reduction,
conversion to energy or separation and preparation of solid waste for reuse
or disposal," and by definition, baling is processing. Therefore, tire baling
should be included in the definition of tire processor and baling operations
should be subject to the same requirements as tire processing facilities.
Under this subchapter, tire baling facilities will be required to register
as scrap tire facilities and will be subject to the same storage site and
financial assurance requirements as tire processors. 

Concerning sec.330.803, the definition of land reclamation, Blackburn
& Carter recommended that long term beneficial use be defined. 

In response to this comment, rather than attempting to define the general
term "long term beneficial use" the commission has instead deleted the term
"long term beneficial use" and had added language to clarify the definition
of land reclamation. The commission believes that the purpose of a land 
reclamation
project is to restore the land to its approximate natural grade and to prepare
or reclaim the land for re-use. 

Concerning sec.330.803, HTLP suggested that the commission remove a comma
and add the word "to" to the definition of tire processor to clarify that
energy recovery facilities are defined as scrap tire facilities and not defined
as tire processors. From the wording and punctuation of the definition, it
is difficult to ascertain whether the definition of tire processor includes
an energy recovery facility or whether the reference to energy recovery 
facilities
is only as the recipient of a delivery of scrap tires by a tire processor. 
The commission agrees with this comment and has made the proposed changes
to the definition of tire processor for purposes of clarification. In the
definition of tire processor, energy recovery facilities are referred to as
recipients of scrap tires from tire processors. 

Concerning sec.330.803, the City of Houston recommended that "enclosed
and lockable container" be defined as a container, including, but not limited
to a building, trailer, or dumpster that is water impervious and lockable.
The commenter expressed concern about the ability of persons to store tires
in a lockable chain link fence with a roof or in an old dumpster that would
allow water accumulation and access by rats and other vectors. 

The commission disagrees with this comment and agrees in part. The commission
believes that it is necessary to allow generators to accumulate tires in 
trailers
that can be easily transported offsite. It is a common practice for transporters
to leave a trailer for generators who accumulate large volumes of scrap tires
in a short amount of time. The commission has added the word "portable" in
recognition of this practice. In addition, the commission believes that 
dumpsters,
if enclosed and lockable, typically meet the definition of trailer, but the
commission does not believe that it is necessary to require that temporary
generator storage be water impervious because of the variety of climate 
conditions
and rainfall across the state. However, the commission does recognize the
authority and flexibility of local governments to address local conditions
and impacts, such as weather. 

Concerning sec.330.803, an individual recommended adding a definition
of "nuisance" to include any scrap tire facility located within 1,500 feet
of any single family residential use. 

The commission disagrees with this comment and has made no change to the
rule. The term nuisance is defined in 30 TAC sec.330.2 as "Municipal solid
waste that is stored, processed, or disposed of in a manner that causes the
pollution of the surrounding land, the contamination of groundwater or surface
water, the breeding of insects or rodents, or the creation of odors adverse
to human health, safety, or welfare." The commission believes that a scrap
tire facility, if operated in accordance with these rules, will not result
in nuisance conditions. The rules require that the owner or operator of a
scrap tire facility operate vehicles and equipment to prevent nuisances or
disturbances to adjacent landowners and that land reclamation projects be
constructed so as not to result in a public nuisance. In addition, the 
commission
notes that city and county governments may adopt ordinances and zoning 
restrictions
to address nuisance concerns. 

Concerning sec.330.803, Blackburn & Carter commented that debris
and rubble are not suitable for fill material. 

The commission agrees with this comment. Debris and rubble are vague and
undefined terms and could include non-inert materials which could decay and
be unsuitable for use as fill material. The definition of LRPUT has been changed
to limit the allowable mixture material to only inert fill materials as defined
in 30 TAC sec.330.2. 

Concerning sec.330.803, the definition of scrap tire storage site, HTLP
commented that an energy recovery facility that stores less than a 30-calendar
day supply of used or scrap tires or tire pieces should not be included as
part of the definition. 

The commission agrees with this comment. The definition has been revised
to exclude a scrap tire facility that stores less than a 30-calendar day supply
of used or scrap tires or tire pieces. The commission believes that it is
unnecessary to require a registered energy recovery facility to also register
as a scrap tire storage site because such a facility will be storing less
than a 30-day supply of scrap tires and is already required to maintain records
and prepare an annual summary of scrap tire use. 

Concerning sec.330.803, the City of El Paso recommended clarification
of the definition of "good used tire" to reference the amount of tread left
on a good used tire by specific measurement. 

The commission does not agree with this comment. In sec.330.806(c)(3),
the commission requires retailers and wholesalers who sell good used tires
as a commodity to sort, mark, classify, and arrange the tires in an organized
manner for sale to the consumer. The commission believes that this method
for classifying tires is sufficient and that specific tread measurements are
unnecessary. 

Concerning sec.330.803, the City of El Paso recommended removing a loophole
in the definition of scrap tire that defines a tire that can no longer be
used for its intended purpose, but can still be used for "another purpose,"
as not a scrap tire. The definition does not define what constitutes a 
legitimate
"other purpose." 

The commission agrees with this comment. Used tires that can no longer
be used for their original purpose are scrap tires, and are regulated under
this chapter. In response to this comment, the commission has simplified the
definition of scrap tire by removing the reference to other purposes for scrap
tires. 

Concerning sec.330.804, the Harris County Health Department and the Texas
Mosquito Control Association recommended that vector monitoring and control
provisions be included in all rules and regulations concerning generation,
storage, transportation, and disposal of scrap tires. 

The commission has made no change in response to this comment. The commission
believes that the vector control measures required throughout these rules
are sufficient to protect human health and the environment. For example, in
sec.330.806(c)(4) the commission requires that generators monitor and use
preventive measures for vectors at least once every two weeks. Further, in
sec.330.810(b)(10)(E)(v) and sec.330.811(e), vector control procedures
are required for any type of vector that may be found at a scrap tire storage
site. Also, in sec.330.813(d)(2), vector control measures are required for
scrap tire facilities. Where municipalities believe that these general 
requirements
are not adequate for specific areas of the state, local governments may adopt
ordinances to address specific local concerns about tire management. 

Concerning sec.330.804, The Gulf Freeway Oaks Civic Club commented that
the siting of scrap tire facilities and storage sites will bring down the
value of homes in neighborhoods near such sites. 

The commission has made no change in response to this specific comment.
The commission believes that it is appropriate for local governments with
zoning authority to address local facility siting issues that are not considered
in the general statewide regulation of facilities. In addition, the commission
does not consider property values when approving facility registrations. 
Concerning sec.330.804(d), the City of Houston suggested that the rules
be clarified so that vehicles used by local governments to collect and transport
abandoned tires to authorized facilities or to collect municipal solid waste
are not subject to the general transporter requirements. 

The commission agrees with this comment and has revised the section to
exempt certain municipal vehicles listed in sec.330.807(b)(4) and (5) from
the general transporter requirements. The commission believes that local 
governments
should be exempt from the general transporter requirements in this case because
improper disposal by local governments is not a risk. This exemption will
remove the burden of registration and other requirements from government 
subdivisions
by exempting municipal solid waste or commercial route collection trucks which
handle incidental loads of used or scrap tires and by exempting transport
vehicles owned and operated by governmental entities used to transport used
or scrap tires. 

Concerning sec.330.804, the Edgebrook Neighborhood Coalition commented
that the quality of life in neighborhoods will be negatively impacted, and
because Houston has no zoning and deed restrictions there will be nothing
to prevent anyone from collecting and storing tires. 

The commission has made no change in response to this comment. The commission
believes that storage sites and LRPUTs, if operated in accordance with these
rules, will not endanger human health or the environment. In addition, city
and county governments may adopt ordinances to address specific concerns about
local tire management and zoning issues. 

Concerning sec.330.804(b), the City of Houston suggested that the commission
clarify at what point scrap tires may be commingled with other solid waste.
Adding the word "before" to the section will clarify that split, quartered
or shredded tires may be intermixed with other solid waste only during disposal
at permitted municipal solid waste (MSW) landfills. 

The commission agrees with this comment. The proposed change has been made
to clarify that before disposal, scrap tires may not be mixed with any other
type of scrap material or solid waste, except for incidental scrap tires picked
up in enclosed municipal solid waste collection vehicles. 

Concerning sec.330.805, Alcoa, the City of El Paso, the City of Houston,
NTCC, Safe Tire Disposal Corp. of Texas, Southeast Neighborhood Association,
and Techniserv Inc., suggested that the commission continue to register 
generators. 
The commission does not agree with this comment. Given that there is no
longer a reimbursement program, the commission believes that there is no 
additional
protection of human health and the environment gained from generator 
registration
and that is it appropriate to remove this unnecessary regulatory requirement.
In addition, the commission believes that the requirements for generators
to retain originals of scrap tire management documentation for a period of
three years and to have these records available to the executive director
upon request, in addition to the reporting requirements for transporters,
are adequate for the state to regulate scrap tire management and disposal. 
Concerning sec.330.805, the City of El Paso and the City of Houston recommended
that municipalities be able to provide input during the registration process
before approval. The City of Houston suggested that applicants be required
to mail a copy of the application to the local governments and that the 
commission
withhold registration until 45 days after the local governments receive the
application, to allow local governments time to submit comments. 

The commission agrees that local governments should be given an opportunity
to provide input during the storage site registration process. In response
to this comment, the commission has added sec.330.811(b)(2) and (3) and
sec.330.816(a)(9) and (10) requiring that notice be sent to local governments
in the LRPUT and storage site approval requirements and has added a public
comment section. Rather than providing a 45-day comment period, however, the
commission believes that 30 days is a sufficient period of time to allow local
governments to comment on an application and is consistent with other public
notice and comment provisions. 

Concerning sec.330.805(6)(A), the City of Houston suggested that causes
for denial of registration include failure to comply with local ordinances,
failure to obtain fire marshal approval, and failure to meet any other 
requirements
of this subsection. 

The commission agrees with this comment. The application requirements for
scrap tire storage sites require an applicant to submit a statement that the
applicant will operate a site in compliance with local and state regulations.
In addition, the commission has added failure to obtain fire marshal approval
as a ground for denial of a registration. The commission believes that these
changes will ensure that storage sites are designed and operated in compliance
with local ordinances and with approval of the local fire marshal, which will,
in turn, ensure more local control of local health and safety concerns. 

Concerning sec.330.806, the Texas Tire Dealers Association expressed
support for generator manifesting requirements. 

The commission agrees that a tracking document is appropriate and has added
sec.330.806(c) which requires that each generator use manifests, work orders,
invoices, or other records to document the removal and management of all scrap
tires generated on-site. 

Concerning sec.330.806(a), the TADA opposes the requirement that generators
be responsible for ensuring that scrap tires are transported to an authorized
facility because there is no relief for a generator whose tires never reach
an authorized facility. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission believes it is important that generators have
some responsibility for proper tire disposal. The manifest system protects
the generator by immediately providing the generator with a record of the
tires removed from the generator's site and by providing a record of the final
disposal of the tires within 60 days. If a generator does not receive a copy
of the manifest within three months after the off-site transportation of the
used or scrap tires or tire pieces indicating that the tires reached an 
authorized
storage or disposal facility, the generator should notify the appropriate
commission regional office as required in sec.330.808(e). 

Concerning sec.330.806(b), an individual recommended prohibiting storage
of any tire on the ground and recommended requiring more than 18 inches of
open clear space between the earth and any tire or tire parts. 

The commission disagrees with this comment and has made no change to the
rule. The commission does not believe that prohibiting storage of tires on
the ground or requiring more than 18 inches of open clear space between the
ground and tires is a necessary statewide storage requirement for purposes
of environmental protection or the protection of human health. In addition,
the rules require vector monitoring and control procedures. The commission
does acknowledge the authority of local governments to address specific local
zoning, health and safety concerns through local ordinances. 

Concerning sec.330.806(b), the TADA supported the 500/2000 accumulation
limits and suggested that there be a 90-day time limit placed on generator
storage, and that sites should be registered as storage sites if storing tires
for more than 90 days. 

The commission agrees in part with this comment. The commission has added
generator registration requirements to sec.330.806 because sec.361.112
of the Texas Health and Safety Code requires any person storing more than
500 used or scrap tires for any period of time to register with the commission.
However, the commission is exempting generators from registering as storage
sites because generators typically store more than 500 used or scrap tires
for a temporary period of time, while waiting for a transporter to remove
the tires. The commission recognizes that this temporary storage period will
vary depending on the size of the generator and the volume of tires collected.
Therefore, the commission declines to require generators who store used or
scrap tires for more than 90 days to register as storage sites. 

Concerning sec.330.806(b), the City of El Paso suggested that tire generators
who store 500 tires on the ground be required to screen these tires from public
view and keep the tires covered. The City of Houston also recommended that
tires stored on the ground be covered by a water repellent cover. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission does not believe that screening tires from
public view or covering tires is an appropriate requirement to impose statewide.
Some areas of the state do not experience the same problems with water 
accumulation
and vector breeding in tires as other areas, such as Houston. The commission
again notes that city and county governments may adopt ordinances to address
specific concerns about local tire management. 

Concerning sec.330.806(b)(1), the City of El Paso and the City of Houston
requested clarification of the total number of tires allowed under generator
storage. 

The commission agrees that clarification is needed. Section 330.806(c)(1)
has been revised to limit generator storage to the total of 500 used or scrap
tires (or weight equivalent tire pieces or any combination thereof) on the
ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any
combination thereof) in trailers. Used or scrap tires in excess of 500 must
be stored in trailers. 

Concerning sec.330.807, NTCC and Techniserv Inc. recommended a continuation
of transporter registration fees to fund registration activities and to prevent
"fly-by-nighters" from registering as transporters. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission has no authority under Texas Health and Safety
Code sec.361.112 to collect fees for registration and hauling activities.
In addition, the commission believes that the annual reporting requirements
and the grounds for revoking a transporter registration are adequate to qualify
transporters. A transporter registration may be revoked for: failure to maintain
complete and accurate records required under this chapter; failure to maintain
vehicles in safe working order as evidenced by at least two citations per
vehicle from the Texas Department of Public Safety or local traffic law 
enforcement
agencies; altering any record maintained or received by the registrant; delivery
of used or scrap tires or tire pieces to a facility not registered to handle
the tires, unless the facility receiving the tires is exempt from registration;
failure to comply with any rule or order issued by the commission pursuant
to the requirements of this chapter; failure to submit any applicable annual
report; dumping of used or scrap tires or tire pieces illegally; collection,
storage, transportation or processing of used or scrap tires or tire pieces
without registration, as required in this section; or failure to notify the
executive director of any change in registration information as required. 
Concerning sec.330.807(b)(5), the City of Houston recommended that the
transporter exemptions include trucks the city uses when collecting abandoned
tires and transporting them to a central collection site for later transport
to an authorized facility. 

The commission agrees with this comment. The commission believes that local
governments should be exempt from transporter requirements in this case because
improper disposal by local governments is not a risk. The commission has 
included
a provision that exempts transport vehicles used by government entities to
transport tires to a collection facility for temporary storage before transport
to an authorized facility. 

Concerning sec.330.807(c)(2), the TADA suggested that transporters, instead
of tire facilities, return manifests to generators. 

The commission disagrees with this comment and has made no change in response
to this comment. The manifest system is designed to track the tires from 
generation
to final disposal. Transporters are responsible for completing the transporter
portion of the document and retaining one of the five copies. There are 
instances
where more than one transporter collects and delivers tires to an end user,
and therefore, it is more appropriate for the final accepting facility to
return the manifest to the generator. 

Concerning sec.330.807(c)(2), the TADA suggested that transporters return
manifests in 30 days rather than 60 days. 

The commission disagrees with this comment and has made no change in response
to this comment. There are instances when a tire may be transported by more
than one transporter and may not reach a final destination until 60 days after
collection. 

Concerning sec.330.808(b), the TADA suggested that the manifest include
the license plate number or driver's license number of the vehicle and 
individual
collecting tires from generators. 

The commission agrees with this comment and has specified the information
required on the manifest to include the transporter's drivers license number.
Clearly identifying the driver of the transport vehicle is important to prevent
and enforce against illegal dumping. The commission believes that the driver's
license number is a better source to identify the actual driver than the license
plate number, which would only identify the company. 

Concerning sec.330.808(c), the City of El Paso recommended that generators
be required to track all waste tires. The proposed rules track tires transported
by registered transporters. If a tire generator transports his own tires,
then the manifest does not track those tires. 

The commission agrees with this comment and recognizes that there may be
situations when a tire generator transports the generator's own tires. In
such a situation, although registration as a transporter is not required,
the tires should be properly manifested. Section 330.806(b) has been added,
requiring each generator to use manifests, work orders, invoices, or other
records to document the removal and management of all scrap tires generated
on-site. 

Concerning sec.330.809, an individual suggested prohibiting the storage
of more than four tires at any location adjacent to a facility within 1,500
feet of any single family residence. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission believes that a scrap tire facility, if operated
in accordance with these rules, will not result in nuisance conditions to
single family residences. In addition, the commission notes that city and
county governments may adopt ordinances to address specific concerns about
zoning and local tire management. 

Concerning sec.330.809(b)(4), the City of Houston suggested deleting
the words "necessary and appropriate" when referring to local ordinances. 
The commission agrees that these words are not needed when referring to
local ordinances. For purposes of clarification, the words "necessary and
appropriate" have been deleted. 

Concerning sec.330.809(b)(6), Safe Tire Disposal Corp. of Texas commented
that annual reporting is inadequate, and expressed support for quarterly 
reporting. 
The commission disagrees with this comment and has made no change in response
to this comment. The commission believes that submittal of the summary of
activities on an annual basis is adequate, and that on-site records will provide
the opportunity for sufficient scrutiny of a facility's operations on a more
frequent basis. 

Concerning sec.sec.330.809-330.812, HTLP commented that an energy recovery
facility storing less than a 30-day supply is intended to be exempt from storage
site requirements. 

The commission agrees with this comment. The section has been revised.
The commission believes that it is unnecessary to require a registered energy
recovery facility to also register as a scrap tire storage site. The facility
will not be storing more than a 30-day supply of scrap tires and is already
required to maintain records and prepare an annual summary of scrap tire use. 
Concerning sec.330.810, an individual suggested that any permit have
approval from the local mosquito control entity to ensure that the facility
has an abatement program for mosquitos and rat propagation. 

The commission has made no change in response to this comment. The commission
requires storage sites to describe and follow vector control procedures in
the Site Operation Plan that is prepared by a registered professional engineer.
Vector monitoring and control procedures are required at storage sites. The
commission again notes that city and county governments may adopt ordinances
to address specific concerns about local tire management. 

Concerning sec.330.810(a), the City of Houston commented that it is unclear
to whom the regulations regarding the storage of used or scrap tires will
apply and the rules seem to imply that an individual is required to obtain
a storage site registration if the total number of tires he stores is in excess
of the storage thresholds, even if those tires are distributed among numerous
sites. The City of Houston recommended a clarification of whether a storage
site registration is required for a person, or for a site, with more than
500 or 2000 tires. 

The commission agrees with this comment. The commission has revised the
rule to clarify that a registration is required for each site storing more
than 500 tires. A storage site registration is required for generators storing
more than 500 scrap tires on the ground or 2,000 scrap tires in trailers. 
Concerning sec.330.810(b), an individual suggested that any applicant
for a scrap tire facility permit or registration within 1,500 feet of a single
family residence be required to notify all home owners within this radius
of the intent to have a variance from this setback. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission has included sec.330.810(b)(2) and (3) and
sec.330.816(a)(9) and (10) to require applicants for scrap tire storage
sites and LRPUTs to give notice of application to landowners within 500 feet
of the proposed site and to publish a general notice in a newspaper of general
circulation, which will provide additional notice to all surrounding landowners. 
Concerning sec.330.810(b)(1), Alcoa commented that this section fails
to recognize the situation where a storage site already has, or is required
to obtain pursuant to another regulatory program, evidence of financial 
assurance.
Alcoa suggested that no additional financial assurance be required for a project
for which financial assurance has already been posted. 

The commission disagrees with this comment. No rule change is required
in response to this comment. An owner or operator of a scrap tire site who
currently demonstrates financial assurance for closure of its scrap tire 
activity
under a different program would not have to provide duplicative assurances
under proposed Chapter 37, Subchapter M regulations (relating to Financial
Assurance Requirements for Scrap Tire Sites). However, the owner or operator
will be required to submit with the tire registration, a letter describing
the current closure plan and the amount of financial assurance currently 
available
at the site. The commission may require additional information from the owner
or operator, if needed. 

Concerning sec.330.810 and sec.330.815, an individual suggested that
any permit have approval from the local fire marshal for fire safety and fire
fighting access to the proposed facility. 

The commission agrees with this comment and replies that these rules provide
for approval from local fire marshals. The commission has not made a change
in response to this comment. In sec.330.810(b)(9)(D), storage facilities
are required to secure approval of the fire protection system from the fire
marshal with jurisdiction over the facility. A letter from the fire marshal
is also required as part of the application and must state that the fire marshal
has reviewed and approved the fire protection aspects of the application,
as well as the design of the all-weather roads to accommodate fire fighting
vehicles. 

Concerning sec.330.811, Alcoa recommended that the executive director
exempt remote land reclamation projects from the design and operation standards
for storage sites where storage, handling and reclamation projects are subject
to other permits, since these sections are tailored for urban or at least
non-rural areas. 

The commission disagrees with this comment and has made no change to the
rule. The commission does not believe it is consistent with the intent of
the rules to exempt storage sites from the design requirements for a scrap
tire storage site based on the location of the proposed site. In addition,
the commission cannot exempt a proposed site based on a permit issued by other
state or federal agencies which are not charged with environmental protection. 
Concerning sec.330.811, Techniserv Inc. recommended that no site should
be permitted to have more than 500 tires on the ground or in the open, 
particularly
with regard to facilities near population centers. Storage requirements must
be applied to all facilities, particularly landfills and/or monofills. 

The commission disagrees with this comment and has made no change in response
to this comment. By statute, the commission may register a site to store more
than 500 used or scrap tires (Texas Health and Safety Code sec.361.112).
The storage requirements for landfills and monofills, which are permitted
facilities, are found in 30 TAC Chapter 330. The commission believes that
storage and disposal sites being operated in compliance with these requirements
protect human health and the environment. 

Concerning sec.330.811, ERRI, Lubbock Waste Tire Recycling, Safe Tire
Disposal Corp. of Texas, and TCI suggested leaving the 20 feet setback or
grandfathering existing facilities with approved fire plans. 

The commission agrees with this comment. Storage sites registered before
January 1, 1998 may maintain setbacks less than 40 feet, under the current
registration, if approved in writing by the local fire marshal in the fire
plan. These sites will have to meet all the requirements of these rules when
the registration is renewed. 

Concerning sec.330.811, an individual suggested that any used or scrap
tire storage facility be prohibited from allowing water to accumulate and
provide mosquito incubation. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission believes that the vector control measures
required in these rules are sufficient. The commission requires in 
sec.330.806(c)(4)
that generators monitor and use preventive measures for vectors at least once
every two weeks. In sec.330.810(b)(10)(E)(v) and sec.330.811 (e), vector
control procedures are required for any type of vector that may be found at
the scrap tire storage site. In sec.330.813(d)(2), vector control measures
are required for scrap tire facilities. If municipalities believe these 
requirements
are not adequate for specific areas of the state, local governments may adopt
ordinances to address specific local concerns about tire management such as
vector control. 

Concerning sec.330.811, the City of Houston recommended that generators
who store more than 500 tires be required to split, quarter or shred those
tires as required by the Texas Health and Safety Code sec.361.112(f). 

The commission disagrees with this comment. Section 361.112(f) requires
that persons who store more than 500 tires must shred, split or quarter the
tires. The section also allows the commission to grant an exception to this
requirement if the commission finds that circumstances warrant the exception.
Registered generators may store up to 2,000 tires in trailers if the storage
is temporary. The intent of this rule is to allow generators to accumulate
tires in an amount to fill a trailer, making tire collection economical. The
commission recognizes that some generators may require more time than others
to accumulate a sufficient number of tires for transport. Most generators
do not have the equipment needed to split, quarter, or shred tires that are
in the process of being transported. 

Concerning sec.330.811, the City of Houston commented that the requirement
to shred tires within 90 days of delivery should apply to facilities other
than storage sites as required by sec.361.112(f) of the Texas Health and
Safety Code. The City of Houston also stated that the rules do not specify
what constitutes temporary storage. 

The commission responds that the statutory requirement in sec.361.112(f)
of the Texas Health and Safety Code to shred, split, or quarter tires does
not apply to registered scrap tire energy recovery facilities. As authorized
by sec.361.112(f) of the Texas Health and Safety Code, the commission has
granted an exception to generators who are temporarily storing tires until
the scrap tires can be transported. 

Concerning sec.330.811(a), an individual suggested that any permit be
required to have a plan to prohibit non point source pollution of adjacent
waterways in the event of a fire requiring large volumes of water to extinguish. 
The commission disagrees with this comment and has made no change in response
to this comment. The proposed design requirements require adequate fire 
protection
systems using fire hydrants or a firewater storage pond or tank at the facility.
Any illegal discharge to waters of the state is prohibited under sec.26.121
of the Texas Water Code. Any owner or operator that violates this statute
would be subject to enforcement penalties. It is impossible to prepare for
every possible contingency and requiring storage sites to provide for unforeseen
future events would be cost prohibitive. 

Concerning sec.330.811(b)(1), NTCC and Techniserv Inc. recommend excluding
variances for 8,000 square foot pile size. 

The commission agrees with this comment and has changed the rule accordingly.
Variance requests for piles larger than 8,000 square feet will no longer be
considered by the executive director; however, existing facilities may maintain
approved pile sizes under their current registration. Approval from the 
executive
director and the local fire marshal will be required for larger pile sizes
with renewal or amended application requests. 

Concerning sec.330.811(b)(1), the City of Houston commented that the
rules should limit tire piles to 10 feet rather than 15 feet in height, in
order to match the limit which has been adopted in several municipalities. 
The commission disagrees with this comment and has made no change in response
to this comment. The commission acknowledges that municipalities have the
authority to regulate storage of used or scrap tires, but the commission does
not believe it is necessary to change the tire pile height limitation across
the state to match the standard adopted in some municipalities. 

Concerning sec.330.811(l), the City of Houston suggested that sites be
designed to comply with all local building codes, fire codes and other 
"applicable"
codes, and expressed concerns that fire codes of localities be considered. 
The commission agrees with this comment. As previously stated, the commission
acknowledges that municipalities have the authority to regulate storage of
used or scrap tires. Therefore, the commission has added language stating
that a scrap tire storage site shall be designed in compliance with all local
building codes, fire codes and other applicable local codes. 

Concerning sec.330.812 , Safe Tire Disposal Corp. of Texas recommended
the commission receive quarterly reports. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission believes that the requirements for facilities
to maintain records for three years and to make the records available to the
executive director upon request is sufficient to monitor the activities of
storage sites. 

Concerning sec.330.813(b), HTLP commented that the storage site registration
requirement is ambiguous and suggested that the rules clarify that energy
recovery facilities that store less than a 30-day supply of scrap tires are
exempt from the storage site requirements. 

The commission agrees with this comment. For the purpose of clarification,
the section has been revised to clarify that a storage site registration is
required for 1) a facility that intends to have more than a 30-calendar day
supply of tires at the facility site; or 2) a facility that is solely a scrap
tire processing facility with no recycling or energy recovery conducted on-site
and that intends to store in excess of 500 used or scrap tires on the ground
or 2,000 used or scrap tires in trailers. 

Concerning sec.330.813(d)(4), the City of Houston suggested that the
rules clarify what is meant by nuisance. 

The commission disagrees with this comment and has made no change in response
to this comment. The term nuisance is defined in 30 TAC sec.330.2 as "Municipal
solid waste that is stored, processed, or disposed of in a manner that causes
the pollution of the surrounding land, the contamination of groundwater or
surface water, the breeding of insects or rodents, or the creation of odors
adverse to human health, safety, or welfare." The commission believes that
a scrap tire facility, if operated in accordance with these rules, will not
result in nuisance conditions. The rules require that the owner or operator
of the scrap tire facility operate the vehicles and equipment to prevent 
nuisances
or disturbances to adjacent landowners and that land reclamation projects
be constructed so as not to result in a public nuisance. In addition, the
commission notes that city and county governments may adopt ordinances to
address zoning restrictions and nuisance concerns. The commission believes
that it is appropriate to address statewide concerns and acknowledges the
authority of government subdivisions to address local conditions and concerns
about nuisances. 

Concerning sec.330.815, Techniserv Inc. suggested that guidelines for
monofilling should conform to guidelines applied to land reclamation, which
are designed to allow the long term stability of the tire material when buried. 
The commission disagrees with this comment and has made no change in response
to this comment. The commission's rules apply different approval and design
standards to monofills and LRPUTs. A tire monofill is a below-ground depository,
landfill or landfill trench consisting of greater than 50% by volume of tires
or tire pieces. A tire monofill requires a permit, because the purpose of
a monofill is disposal, as defined by Texas Health and Safety Code, 
sec.361.003(7).
A tire monofill must also comply with the design and operation standards for
a Type IV landfill. The minimum operational standards are prescribed in 
sec.sec.330.50-330.65
(relating to Permit Procedures), sec.sec.330.111-330.135 (relating to
Operational Standards for Solid Waste Land Disposal Sites), sec.330.138
and sec.330.139 (relating to Operational Standards for Solid Waste Land
Disposal Sites), sec.sec.330.204-330.206 (relating to Groundwater Protection
Design and Operation), sec.330.239 (relating to Groundwater Monitoring at
Type IV Landfills), sec.330.251 (relating to Closure Requirements for MSW
Landfill Units That Stop Receiving Waste Prior to October 9, 1991, and MSW
Sites), unless otherwise specified in sec.330.3(e) (relating to Applicability).
Waste shall be compacted and covered weekly unless another schedule is approved
or required by the commission. Those facilities meeting the requirements of
sec.330.3(e) shall be referred to as Type IV-AE facilities and are exempt
from sec.sec.330.200-330.206 and sec.sec.330.230-330.242 (relating
to Groundwater Protection Design and Operation and Groundwater Monitoring
and Corrective Action, respectively). A LRPUT is a project which is designed
to reclaim land. The rules require that tire shreds be mixed with inert fill
material in a proportion no greater than 50% of tire material by volume. Tires
or tire pieces shall not be placed below ground for the purpose of disposal
as defined in Texas Health and Safety Code, sec.361.003(7). 

Concerning sec.330.815, NTCC suggested the commission clarify that the
agency will impose restrictions to ensure that monofills will not create 
additional
threats to health and safety through underground fires and hydrocarbon leachate
from those fires. 

The commission disagrees with this comment and has made no change in response
to this comment. All tire monofills will be permitted facilities, which must
meet the regulatory requirements in 30 TAC Chapter 330. The minimum operational
standards require a formal permit application and approval, professional 
engineer
design, groundwater protection design and monitoring, and specific operating
and closure requirements including weekly covering. The commission believes
facilities that operate in compliance with these requirements are protective
of human health and the environment. 

Concerning sec.330.816, Alcoa recommended a permit for all reclamation
projects using tires. It seems inappropriate for the commission to rely on
only a certification to confirm the adequacy of a reclamation project. This
potentially conflicts with the Litter Abatement Act. 

The commission disagrees with this comment and has made no change in response
to this comment. A permit will be required for the disposal of tires or scrap
tires, such as a monofill. Land reclamation projects are not required to obtain
a permit because these projects are not disposal projects. These projects
are designed by a professional engineer and approved after staff review. The
Litter Abatement Act prohibits the disposal of litter or other solid waste
in a place that is not an approved dump site. The Litter Abatement Act does
not prohibit the beneficial use of solid waste in a manner that does not 
constitute
disposal. 

Concerning sec.330.816, Alcoa, Safe Tire Disposal Corp. of Texas, and
an individual recommended that the commission allow projects to use a mix
greater than 50% tire pieces by volume in LRPUTs if the notification is approved
by an engineer with data to support more than a 50/50 mix. ERI, Lubbock Waste
Tire Recycling, and TCI suggested that the technical requirements for each
LRPUT project should stand alone and the percentage of tire shred mix and
inert material shall vary according to the engineering determinations of each
project. 

The commission disagrees with this comment and has made no change in response
to this comment. In 1995, there were three instances where tire shred fills
used for highway projects experienced an exothermic reaction causing the fills
to heat and ignite. The commission believes that given the unfavorable 
experiences
in Washington and Colorado that have used tire shreds as part of fill projects,
a 50% mix of tire shreds and inert material is the maximum which can safely
be used in these projects. 

More than 70 projects where tire shreds were used for fill for highway
projects have not experienced an exothermic reaction. Most of these projects
used only tires and were not mixed with inert materials. The commission believes
that tire shreds can be an ideal construction material in certain cases because
they are lightweight, durable, highly permeable which promotes free draining,
and have low lateral earth pressure. The use of tire shreds also addresses
the management and disposal problem presented by tire accumulation and conserves
natural aggregate resources. 

At least seven other states have tire shred fills including Colorado, Kentucky,
Maine, Minnesota, North Carolina, Vermont and Wyoming. These projects vary
in thickness from 0.75 feet to 20 feet. In particular, Minnesota reports that
in addition to three Minnesota Department of Transportation projects, there
are more than 50 projects where whole or shredded tires were used without
any exothermic reaction as fill for roads, parking lots and driveways with
thicknesses ranging from two to eight feet. In addition, the Virginia 
Transportation
Research Council (VTRC) is monitoring settlement and temperature in a large
tire shred/soil mixture fill section on Route 199 in Williamsburg completed
in 1993. This project used over 43,000 cubic meters of tire shreds in a 50/50
mixture of soil and tire shreds in a fill section leading to a future 
interchange
bridge. The demonstration project, reported to be the largest such fill in
the country, was instrumented to measure settlement, vertical stress, 
temperature
and groundwater changes. Temperature monitoring indicated no evidence of heat
generation within the core of the tire shred embankment. 

Concerning sec.330.816, the City of Houston recommended that the LRPUT
portion of the rules be deleted because: 1) the definition of land reclamation
projects using tires is vague and would allow for significant abuse; 2) the
commission should not accept a professional engineers word that a project
would meet the regulatory requirements; 3) there is statutory authority for
the disposal of used tires in this manner; 4) the proposed rule conflicts
with the Texas Litter Abatement Act; and 5) the proposed rules will be difficult
to enforce. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission believes that the definition of land reclamation
project is clear without being overly restrictive. In addition, the commission
believes that design by a professional engineer ensures that the project is
designed and completed in a manner consistent with the proposed regulations.
The Texas Health and Safety Code sec.361.011 gives the commission broad
authority for the management of municipal solid waste. In addition Texas Health
and Safety Code sec.361.112 states that the commission may issue a permit
for the disposal of used or scrap tires. These rules do not conflict with
Texas Health and Safety Code sec.361.112 because a permit is explicitly
required for the monofilling (disposal) of used or scrap tires. The commission
believes that requiring final certification from a professional engineer will
ensure that land reclamation projects are properly designed and completed.
The commission does not agree that these rules conflict with the Litter 
Abatement
Act. A permit will be required for the disposal of tires or scrap tires, such
as a monofill. Land reclamation projects are not required to obtain a permit
because these projects are not disposal projects. The Litter Abatement Act
prohibits the disposal of litter or other solid waste in a place that is not
an approved dump site. The Litter Abatement Act does not prohibit the beneficial
use of solid waste in a manner that does not constitute disposal. Finally,
the commission will rely on its regional offices to ensure that land reclamation
projects are being constructed according to the approved designs. 

Concerning sec.330.816, State Representative Dora Olivo commented that
she has serious concerns with the proposed rules because Fort Bend County
officials are considering filling open pits at a closed landfill with a mixture
of soil and tire chips. Representative Olivo commented that a neighboring
community in Rosenberg called "Little Mexico" has suffered enough as a result
of the Fort Bend County landfill. Representative Olivo further comments that
adding tire chips to the landfill would greatly increase the possibility of
fires because the tire chips are highly combustible. 

The commission disagrees with this comment, but has made a change in response
to this comment to allow for public comment on LRPUTs. The commission responds
that LRPUTs which are designed and operated in compliance with these rules
should not adversely affect neighboring communities. In addition, land 
reclamation
projects will not pose a greater threat of fire due to the requirements that
the material be mixed with inert fill material rather than receive daily or
weekly cover. Nonetheless, the commission has added provisions to the proposed
rules which allow any person who has concerns to submit written comments within
30 days of the mailed notice. 

Concerning sec.330.816, NTCC and Techniserv, Inc. suggested that LRPUTs
be limited to permitted areas. Financial assurance should be in an amount
sufficient to excavate their project and move the material to a safe disposal
site, and temperature probes should be required. 

The commission disagrees with this comment and has made no change in response
to this comment. A permit will be required for the disposal of used or scrap
tires, such as a monofill. Land reclamation projects are not required to obtain
a permit because they are not disposal projects. Financial assurance is required
for storage sites, but not for reclamation projects. As part of the notification
process, the commission can request additional information and believes that
projects designed in accordance with these rules will not require excavation.
Finally, the commission believes that based on the experience in other states,
tire shred fills that are mixed with other fill materials do not require 
temperature
probes. The VTRC has monitored the temperature in one of the large tire 
shred/soil
mixture fill in Williamsburg. This project used over 43,000 cubic meters of
tire shreds in a 50/50 mixture of soil and tire shreds in a fill section leading
to a future interchange bridge. The demonstration project, reported to be
the largest such fill in the country, was built with instruments to measure
settlement, vertical stress, temperature and groundwater changes. Temperature
monitoring since the construction was completed indicated no evidence of heat
generation within the core of the tire shred embankment. 

Concerning sec.330.816, Blackburn & Carter recommended that a final
certification from a professional engineer be required at the close of the
project. 

The commission agrees with this comment. Final certification from a professional
engineer provides the commission with an additional level of assurance that
the project was properly designed and completed. The proposed change has been
made. 

Concerning sec.330.816, two individuals commented that the preamble and
sec.330.816 describe a landfill and make it clear that scrap tires are waste
and fit the definition of municipal solid waste per sec.330.2. An excavation
that receives waste is a landfill and the rules require that a landfill meet
requirements, submit a permit application, involve public participation, and
meet liner, inspection and monitoring specifications. 

The commission disagrees with this comment and has made no change in response
to this comment. A permit will be required for the disposal of tires or scrap
tires, such as a monofill. The commission agrees that scrap tires meet the
definition of municipal solid waste in 30 TAC sec.330.2. However, the commission
makes a distinction between disposing of municipal solid waste in a landfill,
which requires a permit, and the beneficial use of scrap tires. The commission
believes that scrap tires which are mixed with natural inert material can
be used for the purpose of land reclamation with no threat to the environment
if these rules are followed. The rules require that land reclamation projects
be designed in a manner which does not constitute disposal as defined in 
sec.361.003
(7) of the Texas Health and Safety Code. This means that the LRPUTs must be
designed so that the scrap tires or any constituent thereof are not emitted
into the air, discharged into surface water or groundwater, or introduced
into the environment in any other manner. 

Concerning sec.330.816(a), Blackburn & Carter suggested allowing
the opportunity for public participation and staff review, including a 
description
of the project operation, developing guidelines for design of project and
including provisions for groundwater monitoring. 

The commission has added sec.330.816(a) which allows for staff review
of the project, and sec.330.816(a)(9) and (10) that require public and local
government notice and allow for public comment. The commission does not believe
that groundwater monitoring is necessary because the commission does not believe
that LRPUTs will result in any leaching to groundwater. 

Tests conducted by state agencies and private research laboratories have
found that the levels of metals and organics in the leachate from tire shreds
do not exceed primary drinking water standards. Radian Corporation tested
cured, uncured, ground and unground rubber products using the U.S. Environmental
Protection Agency (EPA) Toxicity Characterization Leaching Procedure found
no compounds above regulatory limits and concluded that tire chips are not
hazardous waste. Inter Mountain Laboratories conducted tests on the leachate
from 2 inch by 2 inch shreds using the EPA SW-846 Method, Base Neutral Organics
test and the American Foundryman Society (AFS) test and detected only barium
at levels well below the regulator limits. The State of Wisconsin also conducted
toxicity tests and found no concentrations of metals and no organic compounds
above detection limits. The state also conducted an AFS test and found that
samples showed a low release pattern and declining concentrations over time
and all compounds tested with the exception of manganese were at levels below
drinking water standards. Dr. Dana Humphrey at the University of Maine has
monitored leachate from tire chips used in field studies placed both above
and below the groundwater table. The monitoring efforts above the groundwater
table detected no concentrations of metals above primary drinking water 
standards
and no concentrations of metals above secondary drinking water standards with
the exception of manganese and iron. Tests for volatile and semi-volatile
organics found no detectable levels for all measured compounds. In projects
using tires below the groundwater table, concentrations of metals were found
to be below drinking water standards and some volatile and semi-volatile 
organics
were found at low levels. Balsam tested the leachate from tire shreds used
in the final cap of a landfill and found that the levels of concentrations
of targeted compounds did not exceed primary drinking water standards. 

Concerning sec.330.816(a)(5)(c), Blackburn & Carter commented that
the section should be reworded as follows: tires or tire pieces shall not
be placed below ground in a manner that constitutes disposal as defined in
Texas Health and Safety Code sec.361.003. 

The commission agrees with this comment. The proposed rule stated that
tires or tire pieces shall not be placed below ground for the purpose of 
disposal.
The commission agrees that it is difficult to determine what "purpose" means
in this context. For purposes of clarification, the proposed change has been
made. 

Concerning sec.330.816(b), Blackburn & Carter suggested that land
reclamation projects should only allow the restoration of the land to its
approximate natural grade. 

The commission agrees with this comment but has made no change in response
to this comment. The proposed definition of land reclamation and LRPUT already
describes the purpose of land reclamation to be to restore the land to its
approximate natural grade. 

Concerning sec.330.816(b), two individuals commented that the intention
of one who would excavate a pit cannot be known and the proposed rules would
allow a number of illegal conversions to landfills. 

The commission has made no change in response to this comment. Proposed
sec.330.816(a)(7) requires the property owner to sign an affidavit that
the pit existed before the project and that the project will be completed
to comply with the regulations. Any property owner who excavates a pit or
hole for the sole purpose of reclaiming that land will be in violation of
commission rules and risks enforcement or other administrative penalty. 

Concerning sec.330.816(e)(j), Blackburn & Carter commented that processing
scrap tires must not be allowed in a land reclamation project. 

The commission disagrees with this comment and has made no change in response
to this comment. The commenter has provided no specific concerns and the 
commission
believes that there is no reason to prohibit tire processing in a land 
reclamation
project. 

Concerning sec.330.816(g), Alcoa intends to use bottom ash in its reclamation
projects which is clearly a suitable natural fill material to mix with tires
for reclamation. 

The commission responds that if the bottom ash, which this commenter intends
to use, qualifies as non-hazardous inert fill material then it may be used
in a land reclamation project. 

Concerning sec.330.816(j), Blackburn & Carter recommended that LRPUTs
be prohibited from registering as storage sites or facilities. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission believes that some LRPUTs will, by necessity,
be required to register as storage sites during the design and completion
of the project. 

Concerning sec.330.821, the City of Houston suggested that cost estimates
for closure that include disposing of the tires and closing the facility be
made in current dollars on the date the facility is projected to cease 
operations
and add a provision that the local government must be named as an additional
insured or surety on any insurance policy. 

The commission disagrees with this comment and has made no change in response
to this comment. Closure estimates are already required to be maintained in
current dollars as specified in sec.37.3011 which references Subchapter
B of Chapter 37. Section 37.131 (relating to Annual Inflation Adjustments
to Closure Cost Estimates) requires annual inflation adjustments, therefore,
no rule change is needed. Regarding adding a provision which names the local
government as an additional insured, the statute requires the commission to
use the financial assurance for closure in order to protect the state from
incurring the cost of closure. The mechanisms are worded to allow the commission
to draw on the funds if the site is abandoned or the owner/operator does not
comply with the regulations. The rules do not prohibit a local government
from taking action against the owner/operator of a tire facility who is not
in compliance with any local government rule or ordinance. Therefore, no rule
change is made in response to this comment. 

Concerning sec.330.821, ERRI, Lubbock Waste Tire Recycling, and TCI suggested
that sites be allowed to keep their current financial assurance arrangements
until the registration expires. 

The commission disagrees with this comment and has made no change in response
to this comment. At the time a registration is renewed, an owner/operator
of a tire facility will be required to comply with Chapter 37, Subchapter
C (relating to Financial Assurance Mechanisms for Closure) and Subchapter
D (relating to Wording of the Mechanisms for Closure). All other provisions,
including adjusting the closure cost estimate for inflation, will become 
effective
90 days after the adoption of Chapter 37, Subchapter M (relating to Financial
Assurance Requirements for Scrap Tire Sites). 

Concerning sec.330.821(a), ERRI, Lubbock Waste Tire Recycling, and TCI
recommend that storage site applicants be given a choice of formula calculation
or third party estimate for financial assurance calculations. 

The commission disagrees with this comment and has made no change in response
to this comment. The commission believes that a third party estimate is 
preferable
to a formula calculation due to the variety of site specific factors 
contributing
to the closure cost calculation. 

NTCC and Techniserv Inc. commented on the use of tire shreds as alternative
daily cover in landfills. 

The commission has made no change in response to this comment. This comment
is not within the scope of the proposed rules. 

Concerning baling, ERRI, Lubbock Waste Tire Recycling, and TCI recommended
that baling operations be subject to regulations required for processors and
storage facilities. Balers should be required to provide legitimate end uses
for bales and required to post financial assurance for cleanups from the 
eventual
decomposition. 

The commission agrees with this comment. For the purposes of adequately
regulating used and scrap tires, facilities that bale tires should be subject
to the same requirements as tire processors. The commission has changed the
rule accordingly. 

SUBCHAPTER P.Fees and Reporting
30 TAC sec.330.601
STATUTORY AUTHORITY The amendment is adopted under the Texas
Water Code, sec.5.103, which provides the commission with the authority
to adopt any rules necessary to carry out its powers and duties under the
Code and other laws of the State of Texas, and to establish and approve all
general policy of the commission; under Texas Solid Waste Disposal Act (the
Act), Texas Health and Safety Code, Chapter 361, sec.361.112, relating to
the Storage, Transportation, and Disposal of Used or Scrap Tires, and under
the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code,
Chapter 361, sec.361.011 and sec.361.024 which provide the commission
with the authority to regulate municipal solid waste and adopt rules consistent
with the general intent and purposes of the Act. 

sec.330.601.Purpose and Applicability.
(a) Purpose. 

(1) Fees. The commission is mandated by the Solid Waste Disposal
Act, Texas Health and Safety Code, Chapter 361, to collect a fee for solid
waste disposed of within the state, and from transporters of solid waste who
are required to register with the state. Fee requirements for persons who
collect and/or transport municipal wastewater treatment plant sludges, water
supply treatment plant sludges, grit trap waste, grease trap waste, and septage
are contained in sec.330.448 of this title (relating to Transporter Fees).
Persons desiring to transport or deliver waste in enclosed containers or 
enclosed
vehicles to a Type IV municipal solid waste management facility are subject
to special route permit application and maintenance fees set forth and described
in sec.330.32 of this title (relating to Collection and Transportation 
Requirements).
The fee amount may be raised or lowered in accordance with spending levels
authorized by the legislature. 

(2) - (3) (No change.) 

(b) (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.
Filed with the Office of the Secretary of State on June
17, 1998.
TRD-9809726
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 7, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1970

SUBCHAPTER R.Management of Whole Used or Scrap Tires
30 TAC sec.sec.33.801-330.118, 330.820-330.836, 330.838,
330.840-330.889
The repeals are adopted under the Texas Water Code, sec.5.103,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state. These amendments and new sections are also
adopted under the Texas Solid Waste Disposal Act (the Act), Texas Health and
Safety Code, Chapter 361, sec.361.011 and sec.361.024, which provide the
commission with the authority to regulate municipal solid waste and adopt
rules consistent with the general intent and purposes of the Act.

This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal 
authority.
Filed with the Office of the Secretary of State on June
17, 1998.
TRD-9809727
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 7, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1970

30 TAC sec.sec.330.801-330.821
The new sections are adopted under the Texas Water Code, sec.5.103,
which provides the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code and other laws of this state. These amendments and new sections are also
adopted under the Texas Solid Waste Disposal Act, Texas Health and Safety
Code, Chapter 361, sec.361.112(b) which provides the commission with the
authority to register a site to store more than 500 used or scrap tires, 
sec.361.112(e)
which provides the commission with the authority to adopt forms and procedures
for the registration and permitting, and sec.361.112(m) which provides the
commission with the authority to adopt rules to regulate storage of scrap
or shredded tires that are stored at a marine dock, rail yard, or trucking
facility.

sec.330.802.Applicability.
(a) This subchapter does not preempt local ordinances regarding
the management of used or scrap tires that are as or more stringent than the
regulations in this subchapter. All persons or facilities regulated by this
subchapter must comply with all applicable local ordinances that are not 
inconsistent
with the regulations in this subchapter. A local ordinance is not inconsistent
with this subchapter if a regulated person or facility can simultaneously
comply with both the state and local requirements. 

(b) This subchapter applies to persons that are involved in
the generation, transportation, processing, storage, utilization, and disposal
of used or scrap tires or tire pieces that are classified as municipal solid
waste, recyclable materials, or inert fill materials. This subchapter does
not apply to whole used or scrap tires that are classified as industrial solid
waste. 

(c) All used or scrap tires or tire pieces, except for tires
collected incidentally by municipal solid waste collection vehicles, are subject
to manifesting by generators according to the requirements in sec.330.808
of this title (relating to Manifest System). 

(d) Scrap tires that are off-the-road tires intended for use
on heavy machinery, including, but not limited to, an earth mover/dozer, a
grader, or mining equipment are exempt from the requirements to be split,
quartered or shredded at a storage site or a permitted landfill. 

sec.330.803.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise. Other
definitions, pertinent to specific sections, are contained within the 
appropriate
sections. Definitions that apply to all of Chapter 330 are in sec.330.2
of this title (relating to Definitions). 

(1) 30-Day supply - An amount equal to the highest documented
monthly consumption of tires consumed for energy recovery or legitimately
recycled in the six-month period preceding the month for which the supply
is being calculated. A facility in operation for less than six months shall
submit an estimate of a 30-day supply for commission review, evaluation and
approval. 

(2) Alter - To modify any record or document kept or
received by any entity subject to the requirements of this subchapter. 

(3) Authorized representative - A facility owner or a
person designated in writing by a facility owner to sign documents, make 
commitments
for the entity, and represent the entity in all matters related to the 
application
for registration or permit. 

(4) Authorized scrap tire facility - A facility authorized
to accept scrap tires including, but not limited to, a registered scrap tire
storage site, scrap tire facility or permitted landfill. 

(5) Closure - The cessation of acceptance of used or
scrap tires or tire pieces for processing and/or storage which results in
taking the facility out of service. 

(6) Facility - All contiguous land and structures, other
appurtenances, and improvements on the land used for the storage or processing
of scrap tires. 

(7) Fleet operator - An entity that owns or operates
more than 15 vehicles and generates 30 or more used or scrap tires per calendar
quarter. 

(8) Generator - An entity, except a scrap tire energy
recovery facility and a scrap tire recycling facility, that is a fleet operator,
is an automotive dismantler, or is a whole new or used tire retailer, 
wholesaler,
manufacturer, recapper or retreader. 

(9) Good used tire - A used tire, not including a recapped
or retreaded tire, suitable for continued use for its original intended purpose. 
(10) Land reclamation - The filling, rehabilitating,
improving and restoring of excavated and/or deteriorated and/or disturbed
land for the purpose of restoring the land to its approximate natural grade
and to prepare or reclaim the land for re-use. 

(11) Land reclamation projects using tires (LRPUT) -
A project to fill, rehabilitate, improve and/or restore already excavated,
deteriorated or disturbed land, which uses no more than 50% by volume of tire
pieces along with inert fill materials, for the purpose of restoring the land
to its approximate natural grade and to prepare or reclaim the land for re-use.
Projects for the use of used or scrap tires or tire pieces as a component
of an On-Site Sewage Facility as defined in sec.285.50 of this title (relating
to General Requirements for Registration and Certification) are not included
in this definition. 

(12) Manufacturer reject tire - A tire rendered defective
in the manufacturing process, whether the tire is determined to be defective
before or after consumer purchase. 

(13) Off-the-road tire - A tire intended for use on heavy
machinery, including, but not limited to, an earth mover/dozer, a grader,
agricultural machinery or mining equipment. Truck tires are not off-the-road
tires. 

(14) Operator - The person responsible for the overall
operation of the facility. 

(15) Owner - The person or company who owns the facility
or part of a facility. 

(16) Processing - The extraction of materials from or
the transfer, volume reduction, conversion to energy or separation and 
preparation
of solid waste for reuse or disposal. 

(17) Professional engineer - A person licensed by The
Texas Board of Professional Engineers to practice engineering in the State
of Texas. 

(18) Scrap tire - A whole tire that can no longer be
used for its original intended purpose. A whole used tire that can be used,
reused or legally modified to be reused, for its original intended purpose
is not a scrap tire. 

(19) Scrap tire facility - A facility that processes,
conducts energy recovery or recycles used or scrap tires or tire pieces. 
(20) Scrap tire storage site - A registered facility
where more than 500 used or scrap tires (or weight equivalent tire pieces
or any combination thereof) on the ground or more than 2,000 used or scrap
tires (or weight equivalent tire pieces or any combination thereof) in enclosed
and lockable containers. The term does not include a transportation facility
or a scrap tire facility that stores on-site no more than a 30 calendar day
supply of used or scrap tires or tire pieces. 

(21) Scrap tire transporter - A registered entity that
collects and transports used or scrap tires or tire pieces for storage, 
processing,
recycling or energy recovery. 

(22) Tire monofill - A below-ground depository, landfill
or landfill trench consisting of greater than 50% by volume of tires or tire
pieces. 

(23) Tire piece - A particle of a scrap tire or scrap
tire piece that has been split, quartered or shredded to a usable size such
as two-inch minus, or other size required by an industry user or recycler. 
(24) Tire processor - A registered scrap tire facility
where used or scrap tires or tire pieces are collected and shredded or baled
for delivery to a scrap tire storage site, or to a facility that recycles,
reuses or recovers the energy from the tire pieces. Mobile tire processing
facilities shall be considered scrap tire facilities and required to comply
with all applicable requirements contained in this subchapter relating to
scrap tire facilities. 

(25) Tire shredder - A piece of equipment used to split,
shred or quarter tires, whether stationary, or mounted on wheels or skid 
mounted. 
(26) Trailer - For the purposes of this chapter only,
an enclosed, portable and lockable container for the storage of less than
2,000 used or scrap tires. This may include a trailer, railcar, roll-off 
container,
or dumpster. 

(27) Transportation facility - A facility such as a marine
terminal, rail yard, or trucking facility where scrap tires or tire pieces
may be stored for periods longer than 30 consecutive calendar days. 

sec.330.804.General Requirements.
(a) An entity that violates the applicable sections of this
subchapter shall be subject to any action authorized by law to secure 
compliance,
including the assessment of administrative penalties or civil penalties as
prescribed by law, and the suspension or revocation of registration or permit.
(b) Before disposal, whole used or scrap tires may not be
commingled with any other type of scrap material or solid waste, except for
incidental scrap tires picked up in enclosed municipal solid waste collection
vehicles. 

(c) Any permitted municipal solid waste landfill site may
store or process whole tires or tire pieces in an unused portion of the property
within its permit boundary dedicated to tires only. Storage shall be above
ground in controlled storage piles or in enclosed and lockable containers,
pursuant to sec.330.811 of this title (relating to Design Requirements for
Scrap Tire Storage Site). A permitted municipal solid waste landfill site
shall not store tires or tire pieces in excess of 500 used or scrap tires
(or weight equivalent tire pieces or any combination thereof) on the ground
or 2,000 used or scrap tires (or weight equivalent tire pieces or any 
combination
thereof) in enclosed and lockable containers without prior written approval
from the executive director or the commission. Approval of storage or processing
shall be by authorization for such storage in an approved Site Development
Plan, or, as applicable, through a Class I permit modification under sec.305.70
of this title (relating to Municipal Solid Waste Class I Modifications) or
an amendment under sec.305.62 of this title (relating to Amendment). The
tire storage and/or processing activity shall not be conducted in a manner
that will adversely affect operations of the municipal solid waste disposal
site, or otherwise endanger human health or the environment. 

(d) All vehicles and equipment used for the collection and
transportation of used or scrap tires or tire pieces, except for those vehicles
listed in sec.330.807(b)(4) and (5) of this title (relating to Transporter
Requirements), shall be constructed, operated, and maintained to prevent loss
of used or scrap tires or tire pieces during transport and to prevent health
nuisances and safety hazards to operating personnel and the public. Collection
vehicles and equipment shall be maintained in a sanitary condition to prevent
odors and insect breeding. Any vehicle or trailer used to transport used or
scrap tires or tire pieces shall be identified on both sides and the rear
of the vehicle. The identification shall consist of the name and place of
business of the transporter and the commission registration number, using
numbers and letters at least two inches tall. Trailers or trucks used to 
transport
used or scrap tires shall either be fully enclosed and lockable, or have 
sidewalls
of sufficient height to contain the load. Trailers and trucks transporting
used or scrap tires in excess of the sidewall height of the vehicle shall
be covered with a tarp during transit. Trailers and trucks transporting any
amount of tire pieces shall be covered with a tarp during transit. 

(e) A person who, for eventual recycling, reuse, or energy
recovery, temporarily stores used or scrap tires in a designated recycling
collection area at a permitted landfill may be granted an exemption from 
shredding,
splitting or quartering the scrap tires by the executive director, upon request. 
sec.330.805.Registration Requirements.
Registration requirements for scrap tire storage sites, scrap tire
facilities, transportation facilities, and transporters are as follows: 
(1) An application for a registration shall be made on a form
obtained from the executive director, upon request. The applicant may deliver
the completed application to any commission regional office or mail it to
the following address: Texas Natural Resource Conservation Commission, P.O.
Box 13087, Mail Code 125, Austin, Texas 78711-3087. The following registration
information must be provided to the executive director: 

(A) the name, mailing address, county, and telephone and facsimile
numbers of the applicant; 

(B) the name, mailing address, and telephone number of the
property owner where the scrap tire storage site, scrap tire facility, or
transportation facility is located; 

(C) the street location of the scrap tire storage site, scrap
tire facility, or transportation facility, including county; 

(D) the approximate number of used or scrap tires or tire
pieces (in tons) that will be stored at the scrap tire storage site or the
scrap tire facility; 

(E) the existing land use surrounding the scrap tire storage
site, scrap tire facility, or transportation facility; and 

(F) the tax identification number. 

(2) The application must be signed by the authorized
representative and, if applicable, the professional engineer who assisted
in its preparation. 

(3) Entities that are registered by the executive director
shall maintain a copy of their commission registration notice at their 
designated
place of business. 

(4) A registered entity shall provide written notice
to the executive director, within 15 days, if: 

(A) the mailing address or telephone number of the entity
changes; 

(B) the office or designated place of business is relocated;
(C) the applicant's registered name is changed; or 

(D) the authorized representative has changed. If the authorized
representative has changed, a registered entity shall provide a written, signed
designation of the new authorized representative, including the representative's
name, mailing address, and telephone and facsimile numbers. 

(5) Within 10 days of a change in ownership, or
if a change in operations or management methods occurs such that the existing
registration no longer adequately describes current operations or management
methods, the registered entity shall submit a new registration application
to the executive director. Following a determination, the executive director
may issue a new registration, cancel the old registration or transfer the
old registration to the new registrant. Timeliness of required submittals
may be a factor in the executive director's determination. 

(6) Annulment, suspension, revocation or denial of registration
procedures are as follows: 

(A) The executive director may annul, suspend or revoke a
registration or deny an initial or renewal registration for: 

(i) failure to maintain complete and accurate records required
under this chapter; 

(ii) failure to maintain vehicles in safe working order as
evidenced by at least two citations per vehicle from the Texas Department
of Public Safety or local traffic law enforcement agencies; 

(iii) failure to maintain equipment in safe working order;
(iv) altering any record maintained or received by the registrant;
(v) delivery of used or scrap tires or tire pieces to a facility
not registered to handle the tires, unless the facility receiving the tires
is exempt from registration under sec.330.804(c) of this title (relating
to General Requirements); 

(vi) failure to comply with any rule or order issued by the
commission pursuant to the requirements of this chapter; 

(vii) failure to submit any applicable annual report; 

(viii) failure to pay registration fees; 

(ix) failure to maintain financial assurance as required;
(x) dumping of used or scrap tires or tire pieces illegally;
(xi) collection, storage, transportation or processing of
used or scrap tires or tire pieces without registration, as required in this
section; 

(xii) failure to notify the executive director of any change
in registration information as required in paragraph (4) of this section;
or 

(xiii) failure to obtain and maintain necessary approvals
or certifications from the Fire Marshal with jurisdiction over the facility
location; 

(B) A registration shall be suspended for a period of one
year; however, depending upon the seriousness of the offense(s), the time
of suspension may be increased or decreased. A registration is revoked 
automatically
upon a second suspension. If the registration is suspended or revoked, an
entity shall not collect, store, transport or process used or scrap tires
or tire pieces regulated under this subchapter. 

(C) The holder of a registration that has been revoked by
the executive director may reapply for registration under to this subchapter
as if applying for the first time, after a period of at least one year from
the date of revocation. If a registration is revoked by the executive director
a second time, the revocation shall be permanent. 

(D) Appeal of annulment, suspension, revocation or denial
of initial or renewal registration procedures are as follows: 

(i) An opportunity for a formal hearing on the annulment,
suspension or revocation of registration may be requested in writing by the
registrant by certified mail, return receipt requested, provided the request
is postmarked within 20 days after a notice of proposed revocation or denial
of registration has been sent from the executive director to the last known
address of the registrant, as shown in the records of the agency. 

(ii) An opportunity for a formal hearing on the denial of
registration or renewal of registration may be requested in writing by the
applicant by certified mail, return receipt requested, provided the request
is postmarked within 20 days after a notice of denial has been sent from the
executive director to the last known address. If the registration is denied,
a person shall not collect, store, transport or process used or scrap tires
or tire pieces. 

(iii) The formal hearing under this paragraph shall be a contested
case in accordance with the requirements of the Administrative Procedures
Act, Texas Government Code Annotated, sec.2001 et seq. and the Texas Solid
Waste Disposal Act, Texas Health and Safety Code Annotated Chapter 361 and
the rules of the commission. 

sec.330.806.Generator Requirements.
(a) Generator registration requirements include the following.
(1) Generators storing more than 500 tires shall obtain a
registration number from the executive director. The generator must contact
the executive director, identify the business as a generator, provide the
business name, tax identification number, mailing address, physical location,
and the city and county where the generator is located. 

(2) The generator shall notify the executive director
within 15 days, in writing, of any changes to the generator information. 
(b) Each generator shall be responsible for ensuring that
scrap tires or scrap tire pieces are transported by a registered transporter
to an authorized facility. 

(c) Each generator shall use manifests, work orders, invoices
or other records to document the removal and management of all scrap tires
generated on-site. 

(d) The following requirements apply to on-site storage by
generators: 

(1) Generators may store used or scrap tires or tire pieces
at the location where they are generated, provided the total number of used
or scrap tires does not exceed 500 used or scrap tires (or weight equivalent
tire pieces or any combination thereof) on the ground or 2,000 used or scrap
tires (or weight equivalent tire pieces or any combination thereof) in trailers.
(2) Generators who store used or scrap tires in excess
of 500 used or scrap tires (or weight equivalent tire pieces or any combination
thereof) on the ground or 2,000 used or scrap tires (or weight equivalent
tire pieces or any combination thereof) in trailers shall be required to obtain
a scrap tire storage registration pursuant to sec.330.805 of this title
(relating to Registration Requirements); 

(3) Retailers and wholesalers who sell good used tires
as a commodity shall do so only from stock that has been sorted, marked, 
classified,
and arranged in an organized manner for sale to the consumer, or has been
designated on the manifest as removed for reuse by a registered transporter.
Used tires that are to be resold as commodities, but are not sorted, marked,
classified, and arranged in an organized manner for sale to the consumer,
shall be considered as stockpiled scrap tires and the site shall be subject
to registration as a scrap tire storage site; and 

(4) Tires stored outside shall be monitored for vectors,
and appropriate vector control measures shall be utilized at least once every
two weeks. 

(5) Generators who store more than 500 used or scrap
tires are exempt from the requirement to shred, split, or quarter the used
or scrap tires provided that the tires are awaiting transport. 

(e) A generator of used or scrap tires may transport its scrap
tires between its own business locations or to an authorized facility without
a transporter registration, but must still comply with all manifesting 
requirements
in sec.330.808 of this title (relating to Manifest System) and record keeping
requirements in sec.330.807(d) of this title (relating to Transporter 
Requirements). 
sec.330.807.Transporter Requirements.
(a) Applicability. This section establishes standards applicable
to transporters collecting and hauling used or scrap tires or tire pieces.
(b) Exemptions. 

(1) Used or defective tires shipped back to the manufacturer
or manufacturer's representative for adjustment are not required to be 
transported
by a registered transporter, provided the generator retains, for a period
of three years, written records of the shipments, indicating the date of 
shipment,
destination and the number of tires in each shipment. These records shall
be made available to the executive director upon request. 

(2) Any person who is registered with the executive director
as an On-Site Sewage Facility Installer under sec.285.50 of this title (relating
to General Requirements for Registration and Certification) may transport
used or scrap tires or tire pieces for construction of an on-site sewage 
disposal
system without a transporter registration, but must still comply with all
manifesting requirements under sec.330.808 of this title (relating to Manifest
System) and record keeping requirements in subsection (d) of this section.
(3) Retreaders who haul tires from customers for the
purpose of retreading or who return tires to customers after retreading or
recapping, do not have to register as transporters; however, they must register
as transporters if they haul tires to an authorized facility. 

(4) Trucks engaged in municipal solid waste collection
or commercial route collection which handle incidental loads of used or scrap
tires or tire pieces as part of their normal household or commercial collection
activities, may transport such incidental small quantities of scrap tires
to a landfill, transfer station or other collection point for proper handling
without a transporter registration. 

(5) Transport vehicles owned and operated by municipalities,
counties, or other governmental entities or agencies which are used to transport
used or scrap tires to an authorized facility or to a facility used by local
or other governmental entities or agencies to collect used or scrap tires
shall be exempt from registration under this section; however, each load of
used or scrap tires shall be manifested in accordance with sec.330.808 of
this title. 

(c) General requirements. 

(1) Transporters shall register their operations with the
executive director before conducting business, according to the registration
procedures outlined in sec.330.805 of this title (relating to Registration
Requirements). 

(2) Transporters shall maintain records using a manifest
system, as required in sec.330.808 of this title. 

(3) Each transporter shall be responsible for ensuring
that used or scrap tires or tire pieces are transported to an authorized scrap
tire facility. 

(4) Each transporter shall notify the generator of any
changes to the manifest. A written notification must be received by the 
generator
within two weeks of any changes. 

(d) Maintenance of records. The transporter shall retain all
manifests, work orders and invoices showing the collection and disposition
of all used or scrap tires and tire pieces. Records shall be retained by the
transporter at the designated place of business for a period of at least three
years and made available to the executive director upon request. 

(1) Any change made to the face of an original record shall
be made by drawing a single line through the item being changed, ensuring
that the item remains legible and readable. To the side of the mark, the person
making the change shall place his/her initials with the date of the change.
(2) Any change made to the face of an original record
shall be accompanied by a written justification stating the reason and purpose
for the change. This written justification shall be prepared simultaneously
with the change to the original record, attached to the original record, 
maintained
at the designated place of business for a period of at least three years,
and made available to the executive director upon request. The justification
shall include the date of the change, and the full name and position of the
individual making the change. 

(e) Annual report. Transporters shall submit to the executive
director an annual report of their activities from January 1 through December
31 of each calendar year showing the number and type of used or scrap tires
collected listed by generator name and address, the disposition of the tires,
and the number of whole used or scrap tires delivered to each facility. The
report shall be submitted no later than March 1 of the year following the
end of the reporting period. The report shall be prepared on a form provided
by the executive director. 

(f) Interstate transportation. Persons who engage in the transportation
of used or scrap tires or tire pieces from Texas to other states or countries,
or from other states or countries to Texas, or persons who collect or transport
used or scrap tires or tire pieces in Texas but have their place of business
in another state or country, shall comply with all of the requirements for
transporters contained in this subchapter. If such persons also engage in
any activity of managing used or scrap tires or tire pieces in Texas by storage,
processing or disposal, they shall follow the applicable requirements for
operators of such activities. Persons who engage in the transportation of
used or scrap tires or tire pieces which do not originate or terminate in
Texas, are exempt from these regulations, except for sec.330.804(d) of this
title (relating to General Requirements). 

sec.330.808.Manifest System.
(a) Generators shall obtain from the transporter collecting
tires from their place of business and maintain a record of each individual
load of used or scrap tires or tire pieces hauled off from their business
location. The record shall be in the form of a five-part manifest or other
similar documentation approved by the executive director. The generator shall
complete the information pertaining to generator name, address, and telephone
number, number of tires removed on the manifest, and registration number,
if applicable. The generator shall indicate the destination of all used or
scrap tires or tire pieces removed from the business location. A representative
of the generator shall sign the manifest acknowledging that the information
on the manifest is true and correct. 

(b) The transporter shall complete the information on the
manifest pertaining to transporter name and registration number and the 
transporter's
driver's license number and the state where the license was issued. The 
transporter
shall record the number and type of scrap tires removed from the generator
and delivered and the location of any whole used or scrap tires removed from
the load and delivered. Transporters shall maintain a manifest record of each
individual collection and delivery. The transporter shall sign the manifest
acknowledging that the information on the manifest form is true and correct.
If the transporter removes, for beneficial reuse, all tires from an individually
manifested load, the transporter shall return the original manifest to the
generator within 60 days of the date of collection. 

(c) The authorized facility accepting delivery of the used
or scrap tires or tire pieces shall complete the information on the manifest
pertaining to the authorized facility identification and number or weight
of tires or tire pieces accepted for delivery. A representative of the 
authorized
facility shall sign the manifest acknowledging that the information on the
manifest form is true and correct. The authorized facility shall ensure that
the top original of the five-part manifest is completely filled out and returned
to the generator within 60 days of the date and time of collection as indicated
in Section 1 of the manifest. 

(d) A generator shall obtain the completed manifest within
60 days after the scrap tires or tire pieces were transported off-site by
the transporter. 

(e) The generator shall notify the appropriate commission
regional office of any transporter or authorized scrap tire facility that
fails to complete the manifest, alters the generator portion of the manifest,
or fails to return the manifest within three months after the off-site 
transportation
of the used or scrap tires or tire pieces. 

(f) Originals of manifests, work orders, invoices or other
documentation used to support activities related to the accumulation, handling,
and shipment of used or scrap tires or scrap tire pieces shall be retained
by the generator for a period of three years. All such records shall be made
available to the executive director upon request. 

(1) Any change made to the face of an original record shall
be made by drawing a single line through the item being changed, ensuring
that the item remains legible and readable. To the side of the mark, the person
making the change shall place his or her initials with the date of such change.
(2) Any change made to the face of an original record
shall be accompanied by a written justification stating the reason and purpose
for the change. This written justification shall be prepared simultaneously
with the change to the original record, attached to the original record, 
maintained
at the designated place of business for a period of at least three years,
and made available to the executive director upon request. The justification
shall include the date of the change, and the full name and position of the
individual making the change. 

(3) Should the executive director identify discrepancies/errors
in records, an opportunity will be given to justify, in writing, any such
errors or discrepancies. 

sec.330.809.Storage of Used or Scrap Tires or Tire
Pieces.
(a) Applicability. This section establishes standards applicable
to persons that store or intend to store more than 500 used or scrap tires
(or weight equivalent tire pieces or any combination thereof) on the ground
or more than 2,000 used or scrap tires (or weight equivalent tire pieces or
any combination thereof) in trailers on any public or privately owned property.
Persons that store used or scrap tires or tire pieces shall register in 
accordance
with this subchapter. This subchapter does not apply to the use of tires in
the storage, protection, or production of agricultural commodities. 

(b) General requirements. 

(1) All owners and/or operators shall properly register their
property with the executive director if the intended use of the property is
for the storage of used or scrap tires or tire pieces, pursuant to sec.330.805
of this title (relating to Registration Requirements). 

(2) When a properly registered storage site begins operations,
the owner or operator shall file in the county deed records an affidavit to
the public advising that the land has been used for a tire storage facility.
(3) Owners and/or operators shall ensure that the tire
transporters or mobile tire processors that deliver scrap tires or tire pieces
to their registered scrap tire storage site have manifested the used or scrap
tires or tire pieces, pursuant to sec.330.808 of this title (relating to
Manifest System). 

(4) Owners and/or operators of scrap tire storage facilities
shall obtain all required state and local permits, licenses, or registrations
and operate in compliance with such permits, licenses, or registrations, or
other applicable state and local codes. 

(5) Owners and/or operators shall maintain a copy of
the mechanism for financial assurance on-site as specified in Chapter 37,
Subchapter M of this title (relating to Financial Assurance Requirements for
Scrap Tire Storage Facilities) which shall be made available for inspection
by the executive director or authorized agents or employees of local governments
having jurisdiction to inspect the storage facility. 

(6) Owners and/or operators shall submit to the executive
director an annual summary of their activities from January 1 through December
31 of each calendar year, showing the number and disposition of used or scrap
tires or tire pieces received, and the number of used or scrap tires or tire
pieces removed from the facility. The annual report shall be submitted no
later than March 1 of the year following the end of the reporting period.
The annual report shall be prepared on a form provided by the executive 
director. 
sec.330.810.Scrap Tire Storage Site Registration.
(a) Registration required. Persons who store more than 500
used or scrap tires (or weight equivalent tire pieces or any combination 
thereof)
on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces
or any combination thereof) in enclosed and lockable containers at a facility
shall be required to obtain a scrap tire storage site registration for that
facility from the executive director pursuant to sec.330.805 of this title
(relating to Registration Requirements). Storage activities shall not begin
until the executive director approves the registration. 

(b) Application requirements. 

(1) The application for a scrap tire storage site registration,
amended registration, or renewal shall consist of: the application form; site
and surrounding area information; engineering information, including a site
layout plan and a site operating plan; and evidence of financial assurance
as required under this section. 

(2) Upon filing a registration application, the applicant
shall mail a copy of the application to the appropriate county judge and shall
mail notice that an application has been filed to the appropriate regional
council of government and the appropriate mayor if the proposed facility is
to be located within the corporate limits or extraterritorial jurisdiction
of a city. Proof of mailing shall be provided in the form of return receipts
for registered mail. 

(3) Upon filing a registration application, the facility
owner or operator shall provide notice to the general public by means of a
notice by publication and a notice by mail. Each notice shall specify both
the name, affiliation, address, and telephone number of the applicant and
of the commission employee who may be reached to obtain more information about
the application to register the site. The notices shall specify that the 
registration
application has been provided to the county judge and that it is available
for review by interested parties. The applicant shall publish notice in the
county in which the facility is located, and in adjacent counties. Notice
shall be published in a newspaper of general circulation. The published notice
shall be published once a week for three weeks. The applicant should attempt
to obtain publication in a Sunday edition of a newspaper. The notice by 
certified
mail, return receipt requested, shall be sent to all adjacent landowners and
all owners of property within 500 feet of the boundary of the facility; the
health authorities of the city and county in which the facility will be located,
if applicable; and the appropriate state senator and representative for the
area encompassing the facility. 

(4) Applications shall be submitted in triplicate. 
(5) Preparation of the application shall be in accordance
with the requirements of the Texas Engineering Practice Act, Article 3271a,
Vernon's Annotated Texas Statutes. Each sheet of engineering plans, drawings,
maps, calculations, computer models, cost estimates, and the title or contents
page of the application shall be signed and sealed by a professional engineer
in accordance with the Rules of the Texas Board of Professional Engineers.
(6) Drawings shall be legible and include a dated title
block, scale, and responsible engineer's seal, if required. If color coding
is used, it should be legible and the code distinct when reproduced on black
and white photocopy machines. Drawings shall be submitted using a standard
engineering scale. 

(7) Each map or plan drawing shall have a north arrow,
a legend and a reference to the base map source and date if the map is based
upon another map. The latest revision of all maps shall be used. Maps shall
show the following: 

(A) all structures and inhabitable buildings within 500 feet
of proposed site; 

(B) location of all roads within one mile of the site that
will normally be used to access the site; 

(C) latitudes and longitudes; 

(D) area streams; 

(E) the property boundary of the site; and 

(F) drainage, pipeline, and utility easements within or adjacent
to the site. 

(8) The applicant or an authorized representative
shall provide a signed statement representing that he or she: is familiar
with the application and all supporting data; is aware of all commitments
represented in the application; is familiar with all pertinent requirements
in these regulations; and agrees to develop and operate the scrap tire storage
site in compliance with the application, applicable local and state regulations,
and any special provisions that may be imposed by the executive director.
(9) Site and surrounding area information includes the
following. 

(A) Maps. 

(i) Location maps. These maps shall be all or a portion of
county maps prepared by Texas Department of Transportation. At least one general
location map shall be at a scale of one-half inch equals one mile. These maps
may be obtained at a nominal cost from the nearest District Highway Engineer
Office or by writing to: Texas Department of Transportation, Attention: 
Transportation
Planning Division (D-10), P. O. Box 5051, West Austin Station, Austin, Texas
78763-5051; 

(ii) Topographic maps. These maps shall be United States Geological
Survey 7 1/2-minute quadrangle sheets or equivalent, marked to show the storage
site boundaries and roadway access. These maps may be obtained at a nominal
cost from: Branch of Distribution, United States Geological Survey, Federal
Center, Denver, Colorado 80225; 

(iii) Land ownership map and list. This map shall locate the
property owned by potentially affected landowners. The map shall show all
property ownership within 500 feet of the site. A list shall be provided that
gives each property owner's and easement holder's name and mailing address.
The list shall be keyed to the Land Ownership Map. 

(iv) Floodplain maps. These maps shall be the appropriate
Federal Emergency Management Agency maps or other demonstration acceptable
to the executive director indicating the location of any 100-year flood plain
which may exist within the property boundary or surrounding area. 

(B) Legal description. A legal description of the storage
facility and the volume and page number of the deed record, or if platted
property, the book and page number of the plat record of only that acreage
encompassed in the application. 

(C) Property owner affidavit. A statement from the property
owner shall be submitted on a form provided by the executive director; and
shall be witnessed and notarized. The form shall include: 

(i) the legal description of the site; 

(ii) acknowledgment that the State of Texas may hold the property
owner of record either jointly or severally responsible for the operation,
maintenance, and closure and post-closure care of the site; 

(iii) acknowledgment that the owner has a responsibility to
file in the county deed records an affidavit to the public advising that the
land has been used for a tire storage facility, at the time as the site actually
begins operating; and 

(iv) acknowledgment that the site owner or operator and the
State of Texas shall have access to the property during the active life and
for a period of not less than five years after closure for the purpose of
inspection and maintenance. 

(D) Fire marshal approval. The fire marshal with jurisdiction
over the facility location shall approve the fire protection system. A letter
from the fire marshal shall be included in the application stating that the
fire marshal has reviewed and approved the fire protection aspects of the
application as well as the design of the all-weather roads to accommodate
fire fighting vehicles. The fire marshal shall sign and date the Site Layout
Plan. 

(10) Engineering information includes the following.
(A) Site layout plan. The site layout plan shall include:
(i) location of storage areas; 

(ii) location of fire lanes and fire control facilities; 
(iii) security fencing, gates and gatehouse, site entrance
and access roads and fire lanes in accordance with sec.330.811(c) and (d)
of this title (relating to Design Requirements for Scrap Tire Storage Site);
(iv) location of buildings; and 

(v) location and description of processing equipment. 

(B) Drainage plan. A drainage plan showing drainage flow throughout
the scrap tire storage site area, locations of streams and any other important
drainage feature of the facility. Calculations shall be presented to show
that normal drainage patterns will not be significantly altered. If the 
executive
director determines that significant alteration will occur, the owner/operator
shall design and provide additional surface drainage controls which shall
be designed and provided to mitigate the effects of the altered watershed,
as required by the executive director. 

(C) Fire plan. The fire plan and all revisions shall be maintained
at the site, with copies provided to all local fire departments and other
emergency response teams, and shall include guidance or instruction on the
following: 

(i) roles to be assumed by on-site personnel (example: fire-fighting
coordinator, equipment custodian, hose operator, etc.) in the event of a fire,
duty stations, and procedures to be followed by these persons; 

(ii) arrangements agreed to by local fire departments, police
departments, hospitals, contractors, nearby businesses and industries that
can be called for assistance, and state and local emergency response teams.
In this regard, a letter from each of these entities shall be included in
the fire plan, which letters shall acknowledge receipt of a copy of the fire
plan, and agreement to participate as stated in the fire plan. 

(iii) names, addresses, and telephone numbers of these emergency
response teams (fire, police, medical, etc.) that are to be included in the
plan. The fire plan must include a map of the general area of the site that
shows the site location, the location of the emergency response teams included
in the plan (fire stations, police stations, hospitals, etc.). The plan shall
also include the best route for these emergency response teams to take from
their location to the site location. 

(iv) names, addresses, and telephone numbers of all site employees
that are qualified to act as emergency coordinator(s) (this list must be kept
up to date, and where more than one person is listed one must be designated
as primary coordinator and the others as alternates); 

(v) a list of all emergency equipment at the facility (fire
extinguishers, protective clothing items, hoses, pumps, axes, shovels, detention
ponds, water storage tanks, fire hydrants, signal and alarm system equipment,
decontamination equipment, etc.), a copy of the Site Layout Plan (to be posted
at several prominent locations on the site as well as included in the fire
plan) drawing that clearly marks the location of these items as well as 
personnel
assembly points and evacuation routes from the site and from buildings on
the site, and a narrative description of where these items are kept or located
on site as well as a description of how the items are used (if applicable)
and their capabilities; 

(vi) an evacuation procedure for facility personnel where
there is a possibility that evacuation could be necessary, evacuation routes,
alternate routes, and signals to be used by the emergency coordinator(s) for
the various necessary procedures; and 

(vii) information about any insurance held by the company
that would cover fire damage, loss, and cleanup. 

(D) Cost estimate for closure. The applicant shall submit
a cost estimate for closure costs in accordance with sec.330.821 of this
title (relating to Closure Cost Estimate for Financial Assurance). 

(E) Site operating plan. The Site Operating Plan shall include
information to provide specific guidance and instructions for the management
and operation of a scrap tire storage site and should include: 

(i) information on security, facility access control, the
hours and days during which tire-hauling vehicles will be admitted, traffic
control and safety; 

(ii) sequence of the development of the scrap tire storage
site such as utilization of storage areas, drainage features, firewater storage
ponds, trenches, and buildings; 

(iii) information on control of loading and unloading of used
or scrap tires or tire pieces within designated areas, so as to minimize 
operational
problems at the storage facility; 

(iv) fire prevention and control plans, and special training
requirements for fire-fighting personnel that may be called for assistance;
(v) vector control procedures for any type of vector that
may be found at the scrap tire storage site; 

(vi) a procedure for removal of any waste material that is
not a used or scrap tire or tire piece to a disposal facility permitted by
the commission. This procedure must include the means to remove this illegally
deposited waste material. In all cases, such waste shall be removed from the
storage area immediately and placed in suitable collection bins, or shall
be returned to the transporter's vehicle and removed from the scrap tire storage
site. Collection bins must be emptied at least weekly, depending on the amount
and type of unauthorized waste. The equipment necessary to meet this objective
shall be specified in the design requirements and shall be on site and operable
during operating hours; 

(vii) the name of the facility employee who is designated
by the owner or operator to inspect each load of used or scrap tires or tire
pieces that is delivered to the scrap tire storage site. The employee shall
have the authority and responsibility to reject unauthorized or improperly
manifested loads. The employee shall also be authorized to have unauthorized
materials removed by the transporter, assess appropriate disposal fees, and
have any unauthorized material removed by on-site personnel; 

(viii) a procedure whereby the required transporter manifest,
the daily log and other required documents shall be maintained at the scrap
tire storage site for a period of three years and be made available for 
inspection
by the executive director or authorized agents or employees of local governments
having jurisdiction to inspect the storage facility; 

(ix) dust and mud control measures for access roads, fire
lanes, and storage areas within the scrap tire storage site; 

(x) posting of signs and enforcement of scrap tire storage
site rules; 

(xi) procedures for wet-weather operations; 

(xii) preventive maintenance procedures for all storage areas,
tire processing equipment, fire lanes, fire control devices, drainage 
facilities,
access roads, buildings, and other structures on the scrap tire storage site
in use during the active operating period of the scrap tire storage site.
A schedule shall be established for periodic inspection of all equipment and
facilities to determine if unsatisfactory conditions exist; and 

(xiii) incorporation of other instructions as necessary to
ensure that the scrap tire storage site personnel comply with all of the 
operational
standards for the facility. 

(11) The applicant seeking registration or
amended registration for a scrap tire storage site shall submit evidence of
financial responsibility in conformance with sec.330.821 of this title.
(c) Application processing. If an application for registration
or amended registration of a scrap tire storage site is received that is not
administratively or technically complete, the executive director shall notify
the applicant of the deficiencies within 30 working days. If the additional
information is not received within 60 days of the date of receipt of the 
deficiency
notice, the executive director may return the incomplete application to the
applicant, which shall result in forfeiture of the application review fee.
The executive director may extend the response time to a maximum of 270 days
upon sufficient proof from the applicant within 60 days of the receipt of
the deficiency note that an adequate response cannot be submitted within 60
days. If, however, the applicant does not submit an administratively and 
technically
complete application or sufficient proof of inability within the time frames
indicated, the application may be considered withdrawn without prejudice.
(d) Registration expiration. A scrap tire storage site registration
shall expire 60 months from the date of issuance. A scrap tire storage site
registration is transferable contingent upon executive director approval.
A change in the federal tax identification number will constitute a change
of ownership. Registrations shall be renewed prior to the expiration date.
Applications for renewal shall be submitted at least 60 days prior to the
expiration date of the scrap tire storage site registration. Failure to timely
file an application for renewal shall result in automatic expiration of the
registration. 

sec.330.811.Design Requirements for Scrap Tire Storage
Site.
(a) A scrap tire storage site shall be designed so that the
health, welfare and safety of operators, transporters, and others who may
utilize the site are maintained. 

(b) A registered scrap tire storage site may store scrap tires
or tire pieces using outdoor or indoor tire piles or enclosed and lockable
containers, or a combination of any of the aforementioned methods. Registered
scrap tire storage sites shall be limited to a maximum of three piles of whole
used or scrap tires on the ground. 

(1) Tire piles consisting of scrap tires or tire pieces shall
be no greater than 15 feet in height, nor shall the pile cover an area greater
than 8,000 square feet. Existing storage sites with variances to the 8,000
square foot pile size limit may maintain the approved pile size if approved
in writing by the local fire marshal in the fire plan under the current 
registration.
Approval from the executive director and the local fire marshal will be required
to maintain existing pile sizes greater than 8,000 square feet with renewal
or amended application requests. 

(2) Scrap tires or tire pieces may be stored in any enclosed
building or other type of covered enclosure. Where applicable, local fire
prevention codes must be met and appropriate precautions taken. Indoor storage
piles or bins shall not exceed 12,000 cubic feet with a 10-foot aisle space
between piles or bins. 

(3) Scrap tires or tire pieces may be stored in trailers
provided the trailer is totally enclosed and lockable. 

(c) There shall be a minimum separation of 40 feet between
outdoor piles consisting of scrap tires or tire pieces. This 40-foot space
shall be designated as a fire lane that totally encircles the tire piles and
shall be an all-weather road. Provisions shall be made for all-weather access
from publicly-owned roadways to the scrap tire storage site, and from the
entrance of the site to unloading and storage areas used during wet weather.
The design (a cross-section), location, maintenance, and all-weather 
serviceability
of interior access roads/fire lanes shall be addressed in the overall facility
design and in the Site Operating Plan, and shall be indicated on the Site
Layout Plan with appropriate design notes. At a minimum, these roadways shall
have minimum 25-foot turning radii, shall be capable of accommodating 
firefighting
vehicles during wet weather, and shall meet applicable local requirements
and specifications. An estimate shall be provided of the number, size, and
maximum weight of vehicles expected to use the site daily. The open space
between buildings and outdoor tire piles consisting of scrap tires or tire
pieces shall be a minimum of 40 feet; kept open at all times and maintained
free of rubbish, equipment, tires, or other materials. In the event that a
variance for supersize piles is approved by the executive director, the minimum
fire lane separation shall be at least 40 feet. Upon coordination with the
local fire marshal, the distance may be increased, as necessary, to protect
human health and safety. Storage sites registered before January 1, 1998 may
maintain setbacks less than 40 feet under the current registration if approved
in writing by the local fire marshal in the fire plan. 

(d) Outdoor piles consisting of scrap tires or tire pieces
and entire buildings used to store scrap tires or tire pieces shall not be
within 40 feet of the property line or easements of the scrap tire storage
site. This setback line shall be kept open at all times and maintained free
of rubbish, equipment, tires, or other materials. The executive director may
grant a variance to the 40-foot property line or easement if the setback line
meets the other applicable requirements of this subchapter and the applicant
provides a written statement to the executive director from the local fire
marshal that the distance that is the subject of the variance is adequate
for fire fighting purposes. In the event that a variance for supersize piles
is approved by the executive director, the minimum setback from property lines
or easements will be 40 feet. Storage sites registered before January 1, 1998
may maintain setbacks less than 40 feet under the current registration if
approved in writing by the local fire marshal in the fire plan. 

(e) Scrap tires shall be split, quartered, or shredded within
90 days from the date of delivery to the scrap tire storage site. The executive
director may grant a variance from this requirement if the executive director
finds that circumstances warrant the exception. Off-the-road tires that are
used on heavy machinery, including earthmovers, loader/dozers, graders, 
agricultural
machinery and mining equipment are exempt from this requirement. Truck tires
shall not be classified as off-the-road tires and thus are not exempt from
this requirement. Appropriate vector controls shall be used at a frequency
based upon type and size of piles, weather conditions and other applicable
local ordinances. 

(f) Access to the facility shall be controlled to prevent
unauthorized activities. The facility shall be completely fenced with a gate
that is locked when the facility is closed. A scrap tire storage site shall
be enclosed by a chain-link type security fence at least six feet in height.
(g) The scrap tire storage site shall have an adequate fire
protection system using fire hydrants or a firewater storage pond or tank
at the facility. The capacity of a firewater storage pond or tank shall be
of sufficient size for firefighting purposes and shall be in conformance with
all local and state fire code requirements. 

(h) The scrap tire storage site shall have large capacity
dry chemical fire extinguishers located in strategically-placed enclosures
throughout the entire site, equally spaced within the facility to provide
quick access from any location within the facility. The minimum number of
fire extinguishers or fire hydrants for each scrap tire storage site shall
be one per acre. 

(i) If necessary, suitable drainage structures or features
shall be provided to divert the flow of rainfall runoff or other uncontaminated
surface water within the scrap tire storage site to a location off-site. 
(j) Each site shall conspicuously display at the entrance
a sign at least 1 1/2 feet by 2 1/2 feet in size with clear, legible letters
stating the name of the scrap tire storage site using the words "scrap tire
site," the commission registration number, and operating hours. 

(k) A scrap tire storage site located within a designated
100-year floodplain area shall be designed with adequate environmental 
protection.
The owner/operator shall demonstrate that the tire storage area will not 
restrict
the flow of the 100-year flood, reduce temporary water storage capacity of
the floodplain, or result in a washout of tires, tire pieces or other material
so as to pose a hazard to human health and the environment. 

(l) The scrap tire storage site shall be designed in accordance
with all local building codes, fire codes, and other applicable local codes. 
sec.330.812.Scrap Tire Storage Site Record Keeping.
(a) General requirements. 

(1) The owner/operator shall maintain on site at all times:
a copy of the registration application with all supporting data, including
the approved scrap tire storage site layout plan; the approved scrap tire
storage site engineering information; a copy of the latest approved closure
cost estimate and a copy of the current financial assurance mechanism, as
filed with the commission; and a copy of the commission's current rules. The
facility supervisor shall be knowledgeable of current commission rules; the
contents of the approved scrap tire storage site application; and the approved
scrap tire storage site in relation to the operational requirements. 

(2) All drawings or other sheets prepared for revisions
to a scrap tire storage site layout plan or other previously approved documents,
which may be required by this subchapter, shall be submitted in triplicate.
(b) Daily log. Persons that store used or scrap tires or tire
pieces under this subchapter shall maintain a record of each individual delivery
and removal. The record shall be in the form of a daily log or other similar
documentation approved by the executive director. The daily log shall include,
at a minimum, the: 

(1) name and commission registration number of the scrap tire
storage site; 

(2) physical address of the scrap tire storage site;
(3) number of used or scrap tires or tire pieces received
at the scrap tire storage site; 

(4) number of used or scrap tires or tire pieces, removed
from the scrap tire storage site (for disposal, resale, recycling, reuse or
energy recovery); 

(5) specific location in the scrap tire storage site
(i.e., tire pile number, bin number, building number, etc.) where used or
scrap tires or tire pieces are delivered or removed (for disposal, resale,
recycling, reuse or energy recovery); 

(6) description of specific events or occurrences at
the scrap tire storage site relating to routine maintenance, spraying for
vectors, observations of vectors, evidence of vectors, and fire or theft or
other similar events or occurrences; 

(7) number of used or scrap tires being held for resale,
adjustments or other purposes; 

(8) name and signature of facility representative acknowledging
truth and accuracy of the daily log; and 

(9) the name, address, telephone number, and date of
the individual or company delivering or removing the used or scrap tires or
tire pieces to or from the scrap tire storage site. 

(c) Manifests. The scrap tire storage site operator shall
retain all manifests received from a scrap tire facility or scrap tire 
transporter
for used or scrap tires or tire pieces delivered to or removed from the scrap
tire storage site. The scrap tire storage site shall ensure that the top 
original
of the five-part manifest is returned to the generator completely filled out
within 60 days of the date and time of collection as indicated in Section
1 of the manifest form. The scrap tire storage site shall follow the 
requirements
in sec.330.808 of this title (relating to Manifest System). 

(d) Annual report. Scrap tire storage site owners or operators
shall report their recycling, reuse, and energy recovery activities to the
executive director. The annual report shall be prepared on a form provided
by the executive director, and at a minimum the following information shall
be required in the report: 

(1) the name, physical address, mailing address, county and
telephone number of the scrap tire storage site; 

(2) the name, physical address, mailing address, county
and telephone number of partners, corporate officers, and directors; 

(3) a list of facilities where the scrap tire storage
site owners or operators currently deliver used or scrap tires or tire pieces.
Each scrap tire recycling or energy recovery facility listed shall include
the following information: 

(A) phone number of company and responsible person; 

(B) physical address and mailing address of the scrap tire
facility; 

(C) detailed description of process to recycle, reuse or recover
the energy from the used or scrap tires or tire pieces; 

(D) exact quantities, by month, (in number of tires or weight
of scrap tires or tire pieces) that the scrap tire storage site owner or 
operator
delivered to the scrap tire facility. 

(e) Local ordinances. Where local ordinances require controls
or records more stringent than the requirements of this subchapter, the scrap
tire storage site owner or operator shall use those criteria to satisfy the
commission's requirements. 

sec.330.813.Scrap Tire Facility Requirements.
(a) Applicability. This section applies to owners or operators
of facilities that process, conduct energy recovery or recycle used or scrap
tires or tire pieces. 

(b) Storage site registration requirement. The applicant shall
obtain a scrap tire storage site registration in accordance with sec.330.810
of this title (relating to Scrap Tire Storage Site Registration) if the 
applicant
seeking registration for a scrap tire facility: 

(1) intends to have more than a 30 calendar day supply of
tires at the facility site; or 

(2) is solely a scrap tire processing facility with no
recycling or energy recovery conducted on-site and intends to store in excess
of 500 used or scrap tires (or weight equivalent tire pieces or any combination
thereof) on the ground or 2,000 used or scrap tires (or weight equivalent
tire pieces or any combination thereof) in trailers. 

(c) Scrap tire facility registration requirements. Scrap tire
facilities shall register their operation with the executive director in 
accordance
with sec.330.805 of this title (relating to Registration Requirements) before
starting operations. An application for registration shall be made on a form
provided by the executive director upon request. In addition to the General
Registration requirements, the following registration information must be
provided to the executive director. 

(1) Persons that process, conduct energy recovery or recycle
used or scrap tires or tire pieces shall submit an application for a 
registration
number from the executive director for the operation of the scrap tire facility.
(2) The application for registration shall be prepared
and signed by the applicant. The application shall identify the use of the
tires (e.g., the product to be made and the end use market), and shall include
information necessary for the executive director to make an evaluation of
the proposed operation. 

(3) The application for registration of a scrap tire
facility shall be submitted as one original and two copies to the executive
director with all supporting data also submitted in triplicate unless otherwise
directed by the executive director. 

(4) Data presented in support of an initial or renewal
application for a scrap tire facility shall consist of the following 
information:
(A) an application form provided by the executive director
and location map(s) pursuant to sec.330.810 of this title; 

(B) the maximum amount of tires (in pounds) that will be on
the scrap tire facility at any given time; 

(C) the amount of tires necessary to provide a 30 calendar
day raw material supply for the proposed recycling process; 

(D) the storage method (piles on the ground, piles inside
a building or enclosure, or totally enclosed and lockable containers that
are locked during non-operational hours); 

(E) the product to be manufactured and the end use market;
(F) a property owner affidavit on a form provided by the executive
director pursuant to sec.330.810 of this title; and . 

(G) a list of all other applicable federal, state, and local
permits and/or registrations with the associated numbers; 

(5) Persons that conduct energy recovery shall obtain
all other applicable authorizations (i.e., permits and/or registrations) 
necessary
for conducting tire related activities before submitting an application for
registration as a scrap tire facility. 

(d) General requirements. 

(1) Where local ordinances require controls and records more
stringent than the requirements of this subchapter, scrap tire facility 
operators
shall use those criteria to satisfy commission requirements under this section.
(2) Stockpiles of used or scrap tires or tire pieces
at the processing location that are awaiting splitting, quartering, shredding,
processing or recycling shall be monitored for vector control and appropriate
vector control measures shall be applied when needed, but in no event less
than once every two weeks. 

(3) If a scrap tire facility does not intend to provide
its own fire fighting personnel or system, the facility shall make arrangements
with public or private emergency response personnel that are capable of 
complying
with applicable fire and building codes. In addition, the scrap tire energy
recovery facility shall provide a letter from the fire marshal within whose
jurisdiction the scrap tire energy recovery facility is located stating that
the fire marshal has reviewed and approved the fire protection system. 

(4) The owner or operator of the scrap tire facility
shall operate the vehicles and equipment to prevent nuisances or disturbances
to adjacent landowners. 

(5) A scrap tire facility operator shall submit to the
executive director an annual summary of facility activities from January 1
through December 31 of each calendar year, showing the number and type of
scrap tires received, amount by weight of tires shredded, processed, burned
for energy recovery or recycled, and the amount by weight of tire pieces removed
from the facility. If the tire pieces were delivered to an end user, the annual
report shall include the name of the end user, type of end user and the date
of delivery to the end user. The annual report shall be submitted no later
than March 1 of the year following the end of the reporting period. The report
shall be prepared on a form provided by the executive director. 

sec.330.814.Requirements for a Scrap Tire Transportation
Facility.
Any person storing tires for periods longer than 30 calendar days
at transportation facilities such as marine terminals, rail yards or trucking
facilities, shall register the facility with the executive director on a form
provided by the executive director and comply with all applicable requirements
in sec.330.805 of this title (relating to Registration Requirements).

sec.330.815.Tire Monofill Permit Required.
(a) In accordance with sec.330.4(a) of this title (relating
to Permit Required), no person may cause, suffer, allow, or permit the 
underground
disposal or placement of tires or tire pieces into a tire monofill unless
that activity is authorized by a permit from the commission. No person may
begin physical construction of a tire monofill without first having submitted
a permit application in accordance with sec.sec.330.50-330.65 of this
title (relating to Permit Procedures) and received a permit from the commission.
(b) A separate permit is not required for the underground
disposal or placement of tires or tire pieces into a tire monofill if the
underground disposal or placement occurs within the permit boundary at a 
permitted
municipal solid waste landfill site. Such disposal or placement shall be 
conducted
only as authorized by the approved site development plan, or by a permit 
modification
or amendment, as appropriate. 

sec.330.816.Land Reclamation Projects Using Tires
(LRPUT).
(a) Any person or entity intending to initiate a LRPUT shall
notify the executive director in writing of the intent to fill land by means
of a LRPUT. Owners/operators of LRPUTs are required to provide information
to the executive director as part of the notification document as described
in paragraph (1) of this subsection. Approval in writing by the executive
director (authorization to proceed) is required before the reclamation project
may be initiated. The executive director may withhold authorization to proceed
if the information submitted is not deemed to be complete. The executive 
director
shall have 60 days to review the notification documents for completeness.
The executive director may request additional information if the executive
director determines that the notification submittal does not address all 
applicable
requirements of this subchapter. The following information shall be submitted
in the notification document or attachments thereto. 

(1) The owner/operator of the LRPUT shall disclose in the
notification the location of the project on a state highway map, United States
Geological Survey map or similar, and provide a legal description of the 
property.
The general location on the site where fill activities will take place shall
be shown on one or more of these maps; 

(2) A property owner's affidavit shall be submitted at
the time of notification of intent to initiate a LRPUT and shall include the
following: 

(A) legal description of the property on which the LRPUT will
occur; and 

(B) acknowledgment that the owner has a responsibility to
file with the county deed records an affidavit to the public advising that
a reclamation project utilizing tire pieces exists on the site, and providing
details about the location of the filled area within the property boundaries,
areal extent of the fill project, coordinates or survey data, and the 
approximate
volume or weight of tires which were used as fill, at such time as the fill
project has been completed; 

(3) The approximate volume of tire pieces proposed
to be placed below ground, or the equivalent number of whole tires, and the
approximate size and depth of the depression or borrow area to be filled shall
be disclosed in the notification document; 

(4) The approximate period of time during which the project
will be conducted shall be disclosed, with estimated start and finish dates;
(5) The method of placement and commingling of the tire
shreds to achieve a mix of tire pieces with the inert fill material in a 
proportion
no greater than 50% of tire material by volume. 

(6) A statement signed and sealed by a professional engineer
licensed to practice in Texas shall be submitted in the notification to the
executive director to certify that the LRPUT is designed in a manner that
will comply the following standards. 

(A) The LRPUT shall not cause a discharge of solid waste or
pollutants adjacent to or into the waters of the state, including ground water,
that is in violation of the requirements of the Texas Water Code, sec.26.121;
(B) The LRPUT shall not adversely affect human health, public
safety or the environment, either during fill operations or after the 
reclamation
project is complete; and 

(C) Tire or tire pieces shall not be placed below ground in
a manner that constitutes disposal as defined in Texas Health and Safety Code
sec.361.003(7); 

(7) An affidavit signed by the property owner shall
be submitted certifying that: 

(A) the borrow area, hole or disturbed land area existed before
the project; was excavated for another purpose; and was not excavated for
the burial of tire pieces; 

(B) the LRPUT will be completed in a manner that will comply
with all regulations set forth in this subchapter and any other rules of the
commission or any other local, state or federal agency which apply; and 
(C) the local fire marshal has been notified of the tire placement
or fill activity. 

(8) An affidavit signed by the operator shall be
submitted certifying that he or she is familiar with the application and all
supporting data; is aware of all commitments represented in the notification;
is familiar with all pertinent requirements in these regulations; and agrees
to develop and operate the project in accordance with the application, 
applicable
local and state regulations, and any special provisions that may be imposed
by the executive director. 

(9) The owner or operator shall mail a copy of the notification
documents and attachments to the appropriate mayor and county judge if the
proposed project is to be located within the corporate limits or 
extraterritorial
jurisdiction of a city; or the appropriate county judge if the proposed project
is to be located within an unincorporated area of a county; and the appropriate
regional council of government. Proof of mailing shall be provided in the
form of return receipts for registered mail. 

(10) Upon the filing of the notification documents, the
facility owner or operator shall provide notice to the general public by means
of a notice by publication and a notice by mail. Each notice shall specify
both the name, affiliation, address, and telephone number of the applicant
and of the commission employee who may be reached to obtain more information
about the LRPUT project. The notices shall specify that the notification 
documents
have been provided to the county judge and that they are available for review
by interested parties. The applicant shall publish notice in the county in
which the facility is located, and in adjacent counties. The notice shall
be published once a week for three weeks. The applicant should attempt to
obtain publication in a Sunday edition of a newspaper. The notice by certified
mail, return receipt requested, shall be sent to all adjacent landowners and
all owners of property within 500 feet of the boundary of the project; the
health authorities of the city and county in which the project will be located,
if applicable; and the appropriate state senator and representative for the
area encompassing the project. 

(b) Undisturbed land shall not be excavated for the purpose
of filling the same land with a mixture of tires and debris or soil. Any borrow
area, hole or other disturbed land area to be used for a LRPUT must have existed
before the project, and it must have been excavated or soil removed for a
purpose other than for the burial of tire pieces. 

(c) The LRPUT shall not result in a public nuisance. 

(d) The owner or operator of the LRPUT shall notify the local
fire marshal or fire department serving the area of the tire placement or
fill activity. 

(e) All tires used to fill land shall be split, quartered
or shredded. Whole tires shall not be placed below ground. 

(f) The owner and operator of the LRPUT shall comply with
all applicable local ordinances, including any public safety, or zoning and
land use laws. 

(g) Shredded, split or quartered tires placed below ground
shall be mixed in a proportion no greater than approximately 50% by volume
with inert material acceptable for filling land. If greater than 50% of tire
pieces by volume are placed below ground, the site is considered a tire monofill
and is subject to sec.330.815 of this title (relating to Tire Monofill Permit
Required). 

(h) Tire pieces shall be placed no closer than 18 inches to
the final grade or ground surface. A soil cover unadulterated with tire pieces
shall make up at least the upper 18 inches of the reclamation project. 

(i) The owner or operator of the LRPUT shall register as a
scrap tire facility if a shredding operation is conducted on site for processing
tires. 

(j) The owner or operator of the LRPUT shall register as a
scrap tire storage site under sec.330.810 of this title (relating to Scrap
Tire Storage Site Registration) if: 

(1) operations requiring storage of more than 500 used or
scrap tires (or weight equivalent tire pieces or any combination thereof)
on the ground or more than 2,000 used or scrap tires (or weight equivalent
tire pieces or any combination thereof) in enclosed and lockable containers
would qualify the site as a registered tire storage site under sec.330.810
of this title; and 

(2) the construction of the LRPUT extends beyond 90 days
from the date of delivery of tires or tire pieces to the site. 

(k) The executive director shall issue an identifying number
at the time the approval letter for the LRPUT is issued. This identifying
number shall be referenced in any correspondence relating to a particular
LRPUT for which such a number is issued. 

(l) A person may provide the commission with written comments
on any notification of a LRPUT project. The executive director shall review
any written comments when they are received within 30 days of mailing the
notice. The written information received will be utilized by the executive
director in determining what action to take on the application for a LRPUT.
(m) Following completion of all fill activities for the LRPUT,
the owner or operator shall submit to the executive director, for review and
approval, a documented certification signed by a registered professional 
engineer
verifying that the project has been completed in accordance with this 
subchapter,
the notification documents, and all attachments. Once approved, this 
certification
shall be placed in the file. 

sec.330.817.Special Authorization Priority Enforcement
List (SAPEL).
(a) SAPEL. 

(1) General. The SAPEL consists of scrap tires generated in
specially designated counties or regions that are identified by the executive
director as areas which are not receiving adequate collection service and
that pose a threat to public health and safety or the environment. 

(A) The executive director may designate collection entities
as necessary to ensure continuous and adequate collection of SAPEL tires.
(B) The executive director may impose certain conditions on
the SAPEL tire collection activities of designated collection entities as
necessary to minimize disruption of activities at the generator locations
and any other actions consistent with this subsection that are necessary to
carry out the purposes of this section. 

(C) Implementation of this section is not intended to impair
or reduce existing generator collection in areas of the state containing SAPEL
tires if adequate collection service is currently provided. 

(2) Relationship to priority enforcement list (PEL).
Unless otherwise provided by the executive director, the requirements in 
sec.330.818
of this title (relating to Priority Enforcement List (PEL) Program) do not
apply to the SAPEL or SAPEL process. 

(3) Generator responsibility. A generator desiring to
have tires located at his site listed on the SAPEL shall cooperate fully with
executive director instructions. A generator shall make his site available
for access by designated collection entities for SAPEL tire collection. Failure
to comply may result in tires at that site being ineligible for listing on
the SAPEL. 

(b) SAPEL contract. 

(1) The executive director may contract with designated collection
entities as necessary to ensure adequate collection of SAPEL tires. 

(2) As part of the SAPEL contract, a designated collection
entity may be required to comply with the following: 

(A) for entities currently providing scrap tire collection,
proof that their participation in the SAPEL contract process shall not impair
or reduce their existing generator collection routes; 

(B) attempt to the maximum extent possible to deliver SAPEL
tires to an end user; 

(C) special manifesting and reporting requirements; 

(D) provide proof of ability to ensure adequate collection
service for sites containing SAPEL tires; and 

(E) any other requirements as necessary which are consistent
with this section, and which will facilitate cleanup of SAPEL tires and protect
human health, safety, and the environment. 

sec.330.818.Priority Enforcement List (PEL) Program.
(a) PEL program. 

(1) Applicability. This section applies to the creation and
maintenance of the PEL and the identification of illegal scrap tire sites,
and the determination of a Potentially Responsible Party (PRP). 

(2) PEL procurement. The executive director may issue
contracts to procure cleanups for the removal of tires from such sites through
a competitive bid process conducted in accordance with the provisions of the
State Purchasing and General Services Act (Article 601b, Vernon's Civil Texas
Statutes) applicable to contract for services. The executive director may
elect not to enter into contracts under this section. If no reasonable bids
are submitted under the procurement process for the cleanup of PEL sites,
or at the executive director's discretion, the executive director may rebid
the PEL sites. 

(b) PEL. 

(1) The PEL shall be a list, maintained by the executive director,
of piles of scrap tires or tire pieces in excess of 500 and defined as illegal
scrap tire sites identified before December 31, 1997 and classified by the
executive director. This list shall be used by the executive director for
awarding site cleanups to successful contract bidders. The scrap tires or
tire pieces obtained from the PEL sites are eligible for payment according
to contract guidelines. 

(2) The executive director may, on an as needed basis,
and with notice, recontract or execute additional contracts for any PEL site
identified and contracted in the state. 

(3) Members of the commission, employees or agents of
the commission, and authorized scrap tire facilities or their subcontractors
are entitled to enter any public or private property at any reasonable time
to inspect, investigate or remediate any condition related to illegal dumping
of scrap tires. 

(4) An authorized contractor or subcontractor is entitled
to enter property only at the executive director's direction. The executive
director shall give notice of intent to enter private property for those 
purposes
by certified mail to the last known address indicated in the current county
property records at least ten days before a commission member, commission
employee or agent, or authorized contractor or subcontractor enters the 
property.
A commission member, commission employee or agent, or authorized contractor
or subcontractor who, acting under this subsection, enters private property
shall: 

(A) observe the establishment's rules concerning safety, internal
security, and fire protection; and 

(B) if the property has management in residence, make a reasonable
attempt to notify the management or person in charge of the entry and exhibit
credentials. 

(5) Authorized contractors and their subcontractors
shall not be considered agents of the state and are solely responsible for
their own actions and actions of their agents. 

(6) Once a PEL site has been cleaned up, property owners
shall not be eligible for future cleanup assistance as a result of further
tire deposition on the owners' property. 

(c) PEL scrap tire site cleanup contract. 

(1) Authorized scrap tire facilities that intend to receive
payment shall enter into a PEL scrap tire site cleanup contract as a guarantee
of job performance. 

(2) Should the authorized facility's registration to
utilize scrap tires or tire pieces be suspended or revoked by the executive
director pursuant to sec.330.805 of this title (relating to Registration
Requirements), then the PEL sites remaining in the PEL Scrap Tire Site Cleanup
Contract shall be rebid. 

(d) Authority of commission personnel. 

(1) The contractor shall report on the status of the cleanup
activities at the PEL site to the executive director in the time frame and
manner requested. 

(2) The executive director shall have the authority to
suspend cleanup activities at a PEL site following a determination of whether
the conditions and/or activities at the PEL site or other circumstances warrant
the temporary suspension of cleanup activities to ensure the protection of
public health and safety or the environment. 

(3) The executive director may undertake immediate remediation
of a site if, after investigation, the executive director finds: 

(A) that there exists a situation caused by the illegal dumping
of scrap tires that is causing or may cause imminent and substantial 
endangerment
to the public health and safety or the environment; and 

(B) the immediacy of the situation makes it prejudicial to
the public interest to delay action until an administrative order can be issued
to PRPs or until a judgment can be entered in an appeal of an administrative
order. 

(4) If a person ordered to eliminate an imminent
and substantial danger to the public health and safety or the environment
has failed to do so within the time limits specified in the order or any 
extension
of time approved by the executive director, the executive director may implement
a remedial program for the site. 

(5) The commission or executive director may seek to
bring suit against a PRP to recover reasonable expenses incurred in undertaking
immediate removal of tires or in implementing a remedial action order. For
purposes of this subchapter, the following three criteria shall be used to
determine whether a person is a PRP. 

(A) The person must be the property owner of record, the site
operator or the depositor of the scrap tires on the site; 

(B) The person must have benefitted financially from the disposition
of the scrap tires on the site; and 

(C) The person must be financially capable of paying all or
part of the costs of the cleanup as determined by the commission. 

(6) The commission or executive director shall seek
to file the suit to recover costs not later than one year after the date removal
or remedial measures are completed. 

(7) The commission or executive director, in lieu of
bringing suit to recover costs incurred under this subchapter, may seek to
file a lien against the property on which the site is located. The lien shall
state the name of the owner of the property, the amount owed, and the legal
description of the property. The lien arises and attaches on the date the
lien is filed in the real property records of the county in which the property
is located. The lien is subordinate to the rights of prior bona fide purchasers
or lienholders of the property. 

sec.330.819.Public Notice of Intent to Operate.
(a) Scrap tire storage sites that are registered with the
executive director shall publish notice in the county where they intend to
store used or scrap tires or tire pieces before beginning operation. Notice
shall be published in a newspaper of general circulation. Subject to executive
director approval, a variance to the public notice requirement may be requested
provided that similar notice has been published within the previous 12-month
period and that the notice was associated with activities under the jurisdiction
of this subchapter. 

(b) Scrap tire facilities that are registered with the executive
director and have submitted an application amendment to request a variance
from the 8,000 square feet pile size shall publish notice of intent to increase
the pile size in accordance with this section. 

(c) The notice of intent published by the scrap tire storage
site owner shall contain at a minimum the following information: 

(1) the facility registration number; 

(2) the name under which the facility registration number
was issued; 

(3) the permanent street address and telephone number
of the facility; 

(4) a brief statement explaining the utilization activities
the facility intends to perform at the location; 

(5) where the tires intended for utilization or already
utilized will be stored, if different from the actual facility site; and 
(6) the number of tire piles planned for the storage
facility and the square footage of the largest pile planned. 

(d) The public notice of intent to operate shall identify
the Texas Natural Resource Conservation Commission as the state agency 
regulating
this activity. 

(e) The public notice of intent shall be published at least
30 days before beginning activities. The public notice of intent shall be
published for a period of 10 days continuously. In counties where no daily
newspaper is published, the notice shall be published at least once each week
for three consecutive weeks. 

sec.330.820.Motion for Reconsideration.
A person affected by a registration under this chapter may file a
Motion for Reconsideration pursuant to sec.50.39 of this title (relating
to Motion for Reconsideration), notwithstanding sec.50.31 of this title
(relating to Purpose and Applicability). 

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.
Filed with the Office of the Secretary of State on June
17, 1998.
TRD-9809728
Kevin McCalla

Director, Legal Division

Texas Natural Resource Conservation Commission

Effective date: July 7, 1998

Proposal publication date: January 2, 1998

For further information, please call: (512) 239-1970

TITLE 31. NATURAL RESOURCES AND CONSERVATION
PART X. Texas Water Development Board
CHAPTER 357.Regional Water Planning Guidelines
31 TAC sec.357.5, sec.357.12
The Texas Water Development Board adopts amendments to sec.357.5,
concerning Guidelines for Development of Regional Water Plans, and to 
sec.357.12,
concerning Notice and Public Participation without changes to the proposed
text as published in the May 1, 1998 issue of the 
Texas Register (23 TexReg 4223) and will not be republished. The amendments
amend notice requirements of regional water planning groups (RWPGs). 

The amendment to sec.357.5(h) modifies the requirement that a RWPG provide
notice of each of its meetings to all holders of water rights, contracts and
option contracts in a special water resource. This has proven to be an extremely
burdensome requirement in some areas. For example, Regions J and M must provide
approximately 1600 notices each for this purpose for each meeting. Under the
amendment, each RWPG will be required to initially notice all rights holders,
and continue to provide notice of each meeting only if the right holder requests
continued notice. This will allow the notice to be provided only to those
who desire, and will further allow a RWPG to reduce its work and cost by 
providing
notice in other than mailed form if the right holder indicates such receipt
is acceptable. 

The amendment to sec.357.12(c)(2) eliminates the requirement that a RWPG
and subgroup publish notice of their meetings in the 
Texas Register. The practical effect of the requirement that is being
eliminated is to extend the deadline by which an agenda must be developed
from the 72 hours required by the Texas Open Meetings Act to a minimum of
ten days before the meeting, which is the notice period for publishing in
the Texas Register. Since the initial development
of the rules, the board has developed a method for routinely posting each
RWPG and subgroup meeting on the Board's Internet home page, thereby providing
a better alternative for statewide distribution of the meetings than the 
Texas Register. 

No comments were received on the proposed amendments.

The amendments are adopted under the authority granted in Texas
Water Code, sec.6.101, which provides the board with the authority to adopt
rules necessary to carry our its powers and duties under the Texas Water Code
and laws of Texas, and under the authority of Texas Water Code, sec.16.053,
which requires the board to develop rules and guidelines: to provide procedures
for adoption of regional water plans by regional water planning groups and
approval of regional water plans by the board, to govern procedures to be
followed in carrying out the responsibilities in Texas Water Code, sec.16.053.
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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809809
Suzanne Schwartz

General Counsel

Texas Water Development Board

Effective date: July 8, 1998

Proposal publication date: May 1, 1998

For further information, please call: (512) 463-7981

CHAPTER 363.Financial Assistance Programs
SUBCHAPTER B.State Water Pollution Control Revolving Fund
Division 1. Introductory Provisions
31 TAC sec.sec.363.202, 363.206, 363.207, 363.208
The amendments and new section are adopted under the authority
of the Texas Water Code, sec.6.101 which provide the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State.

sec.363.202. Definitions.
Words and terms used in this subchapter shall have the following meanings,
unless the context clearly indicates otherwise. Words defined in the Texas
Water Code Chapters 15, 16 or 17, and not defined here shall have the meanings
provided by the appropriate Texas Water Code chapter.

(1) Act - The Federal Water Pollution Control Act, as amended,
33 U.S.C. 1251 et. seq. 

(2) Administrative cost recovery fund - An operating
fund to finance the administration of the SRF program, to be held outside
the state treasury and separate from the SRF Program Account. 

(3) Administrative costs - All reasonable and necessary
costs of administering any aspect of the SRF program, including the cost of
servicing debt obligations of recipients of SRF financial assistance. 

(4) Alternative technology - Proven wastewater treatment
processes and techniques which provide for the reclaiming and reuse of water,
productively recycle wastewater constituents or otherwise eliminate the 
discharge
of pollutants, or recover energy. Specifically, alternative technology includes
land application of effluent and sludge; aquifer recharge; aquaculture; direct
reuse (nonpotable); horticulture; revegetation of disturbed land; containment
ponds; sludge composting and drying prior to land application; self-sustaining
incineration; methane recovery; individual and onsite systems; and small 
diameter
pressure and vacuum sewers and small diameter gravity sewers carrying partially
or fully treated wastewater. 

(5) Application for assistance - All the information
required for submittal in the following sections: sec.363.12 of this title
(relating to General, Legal and Fiscal Information), sec.363.222 of this
title (relating to Required SRF Engineering Feasibility report) and sec.363.223
of this title (relating to Required Environmental Review and Determinations). 
(6) Environmental determination - A finding by the executive
administrator regarding the environmental soundness of a proposed project. 
(7) Environmental assessment - A written analysis prepared
by the applicant describing the potential environmental impacts of a proposed
project, sufficient in scope to enable the executive administrator to make
an environmental determination. 

(8) EPA - The Environmental Protection Agency. 

(9) Estuary management plan - A plan for the conservation
and management of an estuary of national significance as described in the
Act, sec.320. 

(10) Estuary management project - A project pursuant
to an estuary management plan. 

(11) Hardship grants program for rural communities -
The program established by the federal Omnibus Consolidated Recessions and
Appropriations Act of 1996 (Public Law 104-403). 

(12) Nonpoint source pollution plan - A plan for managing
nonpoint source pollution as described in the Act, sec.319. 

(13) Nonpoint source project - A project pursuant to
a nonpoint source pollution management plan. 

(14) Rural hardship community - A community consisting
of not more than 3,000 residents that is not a remote area within the corporate
boundaries of a larger city and that: 

(A) is lacking centralized wastewater treatment or collection
systems or is in need of improvements to onsite wastewater treatment systems; 
(B) has an average annual per capita income equal to or less
than 80% of the national annual per capita income as determined by the latest
decennial census; and 

(C) has an unemployment rate that exceeds by at least one
percentage point the most recently reported average yearly national unemployment
rate. 

(15) SRF - The state water pollution control revolving
fund, created pursuant to the Texas Water Code, Subchapter J, Chapter 15. 
(16) SRF program account - The program account is an
account in the SRF created pursuant to a resolution of the board in issuing
SRF bonds and is used, pursuant to such bond resolution(s), for the purpose
of providing financial assistance to political subdivisions for construction
of treatment works and, if needed, to pay rebate amounts to the federal 
government. 
(17) State of Texas 303(d) List - The list prepared biennially
by the commission, required by the Act, sec.303(d). 

(18) Treatment works - The meaning established in the
Act, sec.212, shall apply for projects funded from the state water pollution
control revolving fund.

sec.363.206. Criteria and Methods for Distribution
of Funds.
(a) After the executive administrator determines the amount
of funds available for projects for a fiscal year, the funds will be applied
to the list of projects designated to receive funding in the intended use
plan. The list will be divided into eight categories as follows: 

(1) Category A, which shall consist of projects proposed by
applicants with existing populations of 3,000 or fewer; 

(2) Category B, which shall consist of projects proposed
by applicants with existing populations from 3,001 to 10,000; 

(3) Category C, which shall consist of projects proposed
by applicants with existing populations from 10,001 to 25,000; 

(4) Category D, which shall consist of projects proposed
by applicants with existing populations from 25,001 to 100,000; 

(5) Category E, which shall consist of projects proposed
by applicants with existing populations from 100,001 to 500,000; 

(6) Category F, which shall consist of projects proposed
by applicants with existing populations of 500,001 or greater; 

(7) Category G, which shall consist of projects proposed
by applicants for rural hardship communities; and 

(8) Category H, which shall consist of nonpoint source
projects or estuary management projects. 

(b) Projects for Categories A through G shall be listed in
priority ranking order with funds required and totaled by category. Projects
in Category H shall be listed in alphabetical order according to the name
of the applicant with funds required and totaled for the category. Project
costs will be based on cost estimates, acceptable to the executive 
administrator,
contained in the intended use plan solicitation described in sec.363.207
of this title (relating to Intended Use Plan) used to establish the project
list. Funds required by all projects in each category will then be totaled.
Except for Category G, a percentage of the total funds required by each category
shall be computed based upon the ratio of funds required by each category
to the funds required by all categories. The portion of the available funds
shall be assigned to the categories based on this computed percentage, provided
that no category will be assigned less than 5.0% of the total funds available.
The funds assigned to Category G shall be equal to the amount of federal grants
available for the fiscal year plus an equal amount of SRF loan funds. 

(c) After population class percentages have been assigned
and available funds distributed among the categories, a line shall be drawn
within each category not to exceed the available funds to each category. 
(d) Projects above the funding line shall be eligible for
assistance. After the funding line is drawn, the executive administrator shall
notify in writing all applicants above the funding line of the availability
of funds for the fiscal year and shall invite the submittal of applications.
Applicants will be allowed until January 1 of the fiscal year to submit 
applications
for assistance, and will be allowed until February 28 of the fiscal year to
receive a loan commitment. 

(e) If, at any time during this period prior to January 1,
an applicant above the funding line submits written notification that it does
not intend to submit an application, or if additional funds become available
for assistance, the funding line within each category may be moved downward
in priority order to accommodate additional projects which would utilize the
funds that would otherwise not be committed. The executive administrator will
notify such additional applicants in writing and will invite the submittal
of applications. Applicants receiving such notice will be allowed until April
1 of the fiscal year to submit applications for assistance, and will be allowed
until May 31 of the fiscal year to receive a loan commitment. 

(f) No later than March 1 of the fiscal year, if all available
funds are not committed, the executive administrator will return any incomplete
applications and move all projects for which no applications or incomplete
applications were submitted to the bottom of the prioritized list within each
category, where they will be placed in priority order. The funding line will
be redrawn within each category to utilize the funds remaining within the
category. 

(g) Projects above the funding line shall be eligible for
assistance. After the funding line is drawn, the executive administrator shall
notify in writing all applicants above the funding line of the availability
of funds for the fiscal year and shall invite the submittal of applications.
Applicants will be allowed until April 1 of the fiscal year to submit 
applications
for assistance, and will be allowed until May 31 of the fiscal year to receive
a loan commitment. 

(h) If, at any time during this period prior to April 1, an
applicant above the funding line submits written notification that it does
not intend to submit an application, or if additional funds become available
for assistance, the funding line within each category may be moved downward
in priority order to accommodate additional projects which would utilize the
funds that would otherwise not be committed. The executive administrator will
notify such additional applicants in writing and will invite the submittal
of applications. Applicants receiving such notice will be allowed until July
1 of the fiscal year to submit applications for assistance, and will be allowed
until August 31 of the fiscal year to receive a loan commitment. 

(i) No later than June 1 of the fiscal year, if all available
funds are not committed, the executive administrator will return any incomplete
applications and move all projects for which no applications or incomplete
applications were submitted to the bottom of the prioritized list within each
category, where they will be placed in priority order. The funding line will
be redrawn within each category to utilize the funds remaining within the
category. 

(j) Projects above the funding line shall be eligible for
assistance. After the funding line is drawn, the executive administrator shall
notify in writing all applicants above the funding line of the availability
of funds for the fiscal year and shall invite the submittal of applications.
Applicants will be allowed until July 1 of the fiscal year to submit 
applications
for assistance, and will be allowed until August 31 of the fiscal year to
receive a loan commitment. 

(k) If funds are available after the executive administrator
is able to make a determination that all applicants in each category have
had the opportunity to be funded, the remaining funds will be made available
to the other categories. The remaining funds will be pooled with any left
over from the other categories and made available to Category A. If no 
applicants
in Category A are able to utilize the funds, then the funds will be made 
available
to Category B. If no applicants in Category B are able to utilize the funds,
then the funds will be made available to Category C. If no applicants in 
Category
C are able to utilize the funds, then the funds will be made available to
Category D. If no applicants in Category D are able to utilize the funds,
then the funds will be made available to Category E. If no applicants in 
Category
E are able to utilize the funds, then the funds will be made available to
Category F. 

(l) Loan assistance will not exceed the cost estimate in the
intended use plan without board approval. In the event the cost of a project
exceeds the funds available, the applicant may seek additional funds from
other appropriate board programs. 

(m) Regardless of the provisions of subsections (c) through
(k) of this section, applications for assistance for Category H, nonpoint
source or estuary projects will be developed as follows. 

(1) After funds have been assigned to Category H, the executive
administrator will notify all applicants with projects included in the intended
use plan of the availability of funds, and will invite the submittal of 
applications.
Applicants will be allowed until January 1 of the fiscal year to submit 
applications
and will be allowed until February 28 of the fiscal year to receive a loan
commitment. 

(2) Applications in Category H will be funded on a first
come, first served basis until the available funds have been exhausted. 

(3) If, on the first business day of the month, the total
amount of funds required to fund all applications which are complete and ready
for scheduling for board action exceeds the amount of funds available, the
applications will be considered in the order of the submittal date of the
complete application. 

(4) If, during any month, the amount of funds required
to fund a particular application are insufficient to completely fund the 
application,
the applicant may seek additional funds from other appropriate board programs. 
(5) If any funds remain in this category after February
28 of the fiscal year, and if any projects have been added to the category
after the July 1 deadline for including projects in the intended use plan,
the executive administrator will notify such applicants of the availability
of funds and invite the submittal of applications. Applicants will be allowed
until April 1 of the fiscal year to submit an application and will be allowed
until May 31 of the fiscal year to receive a loan commitment. 

(n) If there is a shortage of funds, no single applicant may
receive more than 30% of the total funds available for projects for a fiscal
year. 

sec.363.208. Rating Process.
The rating process is designed to achieve optimum water quality management,
consistent with public health and water quality goals, and to give consideration
to the varying populations of the state's political subdivisions. 

(1) In situations where the application includes line work
and sewage treatment plant work, and/or includes more than one sewage treatment
plant, the application will be given the rating calculated for the principal
project, type of work or the single facility which comprises the majority
of the cost. The criteria used to rate applications and the number of points
assignable to each criterion shall be as follows. 

(A) Applications in which the principal project is a sewage
treatment plant or lines where the sewage treatment plant is at 90% or greater
of its rated capacity for three consecutive months of the past 12 months as
reported to the commission will receive 3 points. 

(B) Applications in which the principal project is a sewage
treatment plant or lines where the sewage treatment plant is at 75% or greater
but less than 90% of its rated capacity for three consecutive months of the
past 12 months as reported to the commission will receive 2 points. 

(C) Applications in which the principal project is a sewage
treatment plant or lines where the sewage treatment plant is at 65% or greater
but less than 75% of its rated capacity for three consecutive months of the
past 12 months as reported to the commission will receive 1.5 points. 

(D) Applications in which the principal project is under a
schedule imposed by a court order, EPA administrative order, or commission
enforcement order will receive 1 point. 

(E) Applications in which the principal project is required
to meet a higher level of treatment than required by their current permit
or in which the applicant elects not to discharge in order to avoid higher
levels of treatment will receive 1.5 points. 

(F) Applications in which the principal project will provide
service to areas which have no centralized sewerage systems and which have
documented public health problems will receive 4 points. 

(G) Applicants which are proposing to construct nonconventional,
innovative, or alternative treatment or collection systems will receive 1
point. 

(H) Applications in which the principal project impacts stream
segments designated as "High Priority" or where a total maximum daily load
(TMDL) analysis is underway or scheduled for development as identified in
the current approved State of Texas 303(d) List and where the proposed project
will directly or indirectly mitigate the identified problem will receive 4
points. 

(I) Applications in which the principal project impacts stream
segments designated as "Medium Priority," as identified in the current approved
State of Texas 303(d) List, and where the proposed project will directly or
indirectly mitigate the identified problem will receive 3 points. 

(J) Applications in which the principal project impacts stream
segments designated as "Low Priority," as identified in the current approved
State of Texas 303(d) List, and where the proposed project will directly or
indirectly mitigate the identified problem will receive 2 points. 

(K) Applications in which the principal project impacts stream
segments designated as "Threatened" as identified in the current approved
State of Texas 303(d) List, and where the proposed project will directly or
indirectly mitigate the identified problem will receive 1 point. 

(L) For projects applying for commitment of funds in fiscal
year 1999 only, any applicant who has obtained a preliminary eligibility 
determination
under sec.363.224 of this title (relating to Capital Improvements Plan Option)
shall receive 1 point for all work that has received approval of plans and
specifications prior to September 1, 1998. 

(M) Applicants whose proposed project will create or upgrade
a system that qualifies as a regional facility under the definition of Texas
Water Code sec.17.001(24) will receive 1 point. 

(2) The rating score will be the sum of the points
assigned to the application under all criteria which are applicable to the
application. 

(3) In the event more than one project as listed in the
intended use plan receives the same rating score, funding will first be made
available for the project in which the sewage treatment plant is at the greatest
percentage of its rated capacity for three consecutive months of the past
12 months as reported to the commission. In the event applicants lacking 
centralized
wastewater treatment or collection systems receive the same rating score,
funding will first be made available to the applicant with the lowest annual
per capita income. In the event an applicant lacking centralized wastewater
treatment or collection and an applicant with centralized wastewater treatment
receive the same rating score, funding will first be made available to the
applicant lacking centralized wastewater treatment and collection. 

(4) Where the existing treatment facilities will be abandoned
and sewage diverted to a different location, the diversion line will be given
the rating score of the treatment facilities to be abandoned.

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.

Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809808
Suzanne Schwartz

General Counsel

Texas Water Development Board

Effective date: July 8, 1998

Proposal publication date: May 1, 1998

For further information, please call: (512) 463-7981

31 TAC sec.363.206
The Texas Water Development Board (Board) adopts amendments
to sec.sec.363.202, 363.207 and 363.208, the repeal of sec.363.206,
and new sec.363.206 and sec.363.226, concerning Financial Assistance Programs.
Sections 363.202, 363.206, and 363.208 are adopted with changes to the proposed
text as published in the May 1, 1998 issue of the 
Texas Register (23 TexReg 4224). Amendments to sec.363.207, the repeal
of sec.363.206, and new sec.363.226 are adopted without changes and will
not be republished. 

Amendments to sec.sec.363.202, 363.207 and 363.208, the repeal of sec.363.206,
and new sec.363.206 provide for a funding system based on priority rating
of applicant's projects. The rating system is based on critical water quality
and public health factors. Amendments to sec.363.202 and new sec.363.206
and sec.363.226 provide for the new Hardship Grants Program for Rural 
Communities. 
The amendments to Chapter 363 are promulgated to establish a rural hardship
grant program and to provide a new method of ranking projects to receive 
financial
assistance since total funds available through the Clean Water State Revolving
Fund (CWSRF) will be insufficient to meet the anticipated total amount of
financial assistance that will be sought for projects. 

The rural hardship grant program is established pursuant to a U.S. Environmental
Protection Agency grant program for wastewater created by the Omnibus 
Consolidated
Recessions and Appropriations Act of 1996 (Act). Pursuant to the Act, the
program enables the Board to offer grants along with CWSRF loans to rural
communities of less than 3,000 population which lack centralized wastewater
collection or treatment facilities and which comply with federal requirements
in qualifying as hardship communities. 

A new method of prioritizing projects to be funded is established due to
a projected shortage of funds that will be available through the CWSRF. The
ranking of projects for priority funding is implemented through a points awarded
system, whereby the greatest number of points are awarded for projects that
serve areas of critical water quality needs and that present potential or
actual public health problems. 

Amendments to sec.363.202 provide new definitions for terms in the chapter.
"Estuary management plan" is defined as a plan for the conservation and 
management
of an estuary of national significance as described in the Clean Water Act,
sec.320. "Estuary management project" is defined as a project pursuant to
an estuary management plan. "Nonpoint source pollution plan" is defined as
a plan for managing nonpoint source pollution as described the in the Clean
Water Act, sec.319. "Nonpoint source project" is defined as a project pursuant
to a nonpoint source pollution management plan. All four definitions are 
consistent
with the requirements of the Clean Water Act, sec.319 and sec.320, and
specify those projects and plans that relate to Category H. Nonpoint sources
projects or estuary management projects can not be rated and ranked according
to the priority rating system used for projects in Categories A-F and Category
H, yet are eligible projects pursuant to Title VI of the Clean Water Act,
so a separate category has been created for these projects. 

"Hardship grants program for rural communities" is defined as the program
established by the federal Omnibus Consolidated Recessions and Appropriations
Act of 1996 (Public Law 104-403) and is defined for the purpose of identifying
a particular source of federal grant funding. 

"Rural hardship community" is defined as a community consisting of not
more than 3,000 residents that is not a remote area within the corporate 
boundaries
of a larger city and that: (A) is lacking centralized wastewater treatment
or collection systems or is in need of improvements to onsite wastewater 
treatment
systems; (B) has an average annual per capita income equal to or less than
80% of the national annual per capita income as determined by the latest 
decennial
census; and (C) has an unemployment rate that exceeds by at least one percentage
point the most recently reported average yearly national unemployment rate.
It is defined to establish the eligibility requirement that a community must
meet to apply for funding under the hardship grants program for rural 
communities. 
"State of Texas 303(d) List" is defined as the list prepared biennially
by the Texas Natural Resource Conservation Commission as required by the Clean
Water Act, sec.303(d). The term is defined since information in the list
is used to calculate project priority rating scores. 

Amendments to sec.363.202 also number definitions in accordance with
new Texas Register requirements. 

The repeal of sec.363.206 and new sec.363.206, Criteria and Methods
for Distribution of Funds, provide for the distribution of available Clean
Water State Revolving Funds (CWSRF) to critical projects designated for funding
pursuant to the intended use plan. The section conforms to the authority granted
the agency in the Texas Water Code, sec.15.603(f) and complies with the
requirements of Title VI of the Clean Water Act which requires that a state
establish a criteria and method for distribution of funds from the CWSRF.
The section creates eight funding categories divided into: (1) projects proposed
by applicants with different sizes of populations; (2) projects proposed by
applicants for rural hardship communities; and (3) nonpoint source or estuary
management projects. Six categories of projects from applicants with different
populations were created to ensure that small population entities which may
have limited resources for making application do not have to compete for funds
against larger entities with greater resources. A separate category was created
for nonpoint source projects or estuary management projects to provide an
equitable funding opportunity since these projects differ in nature from 
wastewater
projects and cannot be rated and ranked according to the same criteria that
is applied to Categories A-F. These projects will be funded, instead, on a
first come, first served basis. A separate category was created for rural
hardship community projects and a specified amount of state funding was allotted
to the category to ensure that all available federal rural hardship grant
funds can be utilized. The section sets schedules for submission of and action
upon applications to provide notice of deadlines and to ensure orderly 
management
of the application and commitment process and to maximize the use of funds
available. The section further provides for the establishment of funding lines.
The funding lines establish which priority projects can be funded within a
funding time period and give notice to applicants of the standing of their
projects and the projects' likelihood for funding during that funding time
period. Establishing a funding line allows the agency to more effectively
manage the competitive application process and to maximize use of the financial
assistance that is available. 

Amendments to sec.363.207, Intended Use Plan, reflect the expectation
by the agency that applications for financial assistance through the CWSRF
will exceed funds available. For this reason, applicants are given notice
that project information must be received by July 1. July 1 is set as a deadline
in order to enable the agency to carry out activities in the annual funding
cycle which coincides with the availability of federal funding. Federal funding
to the CWSRF comprises a portion of the funds available. The section also
provides that applicants which submit late project information will be added
to the appropriate population category list in order of date of submission
and below those projects already ranked. This provision is included in order
to provide an incentive to applicants to submit information before July 1.
The amendments further require additional project information to ensure that
the agency receives the necessary information to calculate the new project
priority rating score. 

Amendments to sec.363.208, Rating Process, at (A) clarify that the provision
applies to a sewage treatment plant that is at 90% or greater of its rated
capacity. For further clarification, subparagraphs (A), (B) and (C) define
how capacity should be calculated in terms of "three consecutive months of
the past 12 months." The amendments broaden the provision for giving a priority
rating point for enforcement orders by eliminating the requirement for 
initiation
of construction within 18 months. The deadline of 18 months was eliminated
because enforcement orders may give varying time limitations for undertaking
remedies and there is no factual basis for stating this particular time frame
of 18 months. Subparagraphs (H) through (L) are deleted and replaced with
new subparagraphs (H) through (L) which set out criteria and a point system
based upon water quality impacts to priority stream segments. These criteria
and the assigned points bring the rating system into line with the water quality
goals of the Clean Water Act. Subparagraph (L) awards one point to applicants
which have previously obtained an preliminary eligibility determination (PED)
under Board rules sec.363.224. Applicants have invested time and funds in
preparing and obtaining approval of a PED for a group of projects. Many of
these applicants have also expended significant time and effort in subjecting
individual projects to Board review and approval, pursuant to the PED process.
The applicants completed these activities in good faith and on the reliance
that the effort would result in the funding of all or part of the projects
in the PED. They were unaware that the priority system would be instituted
and that most of their efforts would be wasted. It is the belief of the agency
that these applicants should receive an additional priority point due to their
previous efforts and expectations of funding assistance. This additional point
is being awarded for one year only since most of the projects which underwent
Board review and approval will have an opportunity to be funded in the first
funding year. The amendments to sec.363.208 provide specific procedures
for listing projects with identical scores in ranking order. Funding will
first be made available to projects in which the sewage treatment plant is
at the greatest percentage of its rated capacity for three consecutive months
of the past 12 months. For applicants lacking centralized wastewater treatment
or collection systems, funding will first be made available to the applicant
with the lowest annual per capita income. Funding will be made available to
an applicant lacking centralized wastewater treatment or collection before
funding will be made available to the applicant with centralized wastewater
treatment and collection. 

The amendments further contain the substitution of the term "facility"
for "systems" in order to correctly identify the definition of "regional 
facility"
that is provided in the Texas Water Code, sec.17.001(24). 

New sec.363.226, Rural Hardship Grants, establishes the eligibility for
grant assistance pursuant to the CWSRF program. The rural hardship grant program
is established pursuant to a U.S. Environmental Protection Agency grant program
for wastewater created by the Omnibus Consolidated Recessions and Appropriations
Act of 1996 (Act). Pursuant to the Act, the program enables the Board to offer
grants along with CWSRF loans to rural communities of less than 3,000 population
which lack centralized wastewater collection or treatment facilities and which
comply with certain federal requirements in qualifying as hardship communities.
The new program enables the Board to administer federal assistance grants
to rural communities for projects that improve public health or reduce an
environmental risk. 

Comments on the proposed amendments were received from the City of Houston,
the Texas Natural Resource Conservation Commission, and the law firm of Henry,
Lowerre, Johnson, Hess and Frederick. 

The City of Houston (City) suggested a change to sec.363.206(n), Criteria
and Methods for Distribution of Funds, that in the event of a shortage of
funds, funds available to any one applicant should be limited to no more than
30% of the total funds available for a fiscal year, instead of the proposed
language that if there is a shortage of funds within a category, no single
applicant may receive more than 30% of funds available for that category for
a fiscal year. The City believed that the less restrictive language of the
suggested version would provide the Board with maximum flexibility to fund
projects that are ready for loan commitment. 

Response: The language as currently proposed could unnecessarily limit
the agency's ability to completely fund large, high priority projects during
a period in which demand for funding might be low. The City's suggestion would
enable the Board to accomplish dual objectives of limiting the amount of funds
that a single applicant could receive when demand for funding is very high,
and still providing for maximum utilization of available funds if demands
for funding were to be low. Accordingly, the Board adopts the suggested language
for sec.363.206(n) as follows: (n) If there is a shortage of funds, no single
applicant may receive more than 30% of the total funds available for projects
for a fiscal year. 

The City further commented that sec.363.208, Rating Process, assigns
a rating of one point to a principal project which is under a schedule imposed
by a court order, EPA administrative order, or commission enforcement order.
The City suggests that this rating be extended to include principal projects
which result from a permittee meeting conditions of a federal NPDES permit
or TNRCC waste discharge permit. 

Response: Permit conditions have historically reflected a broad range of
issues and it would be difficult to objectively determine which issues relate
to enforcement and which issues do not. The agency does not believe that 
projects
which result from permit requirements fit within the same category of court
and/or administrative enforcement orders and should not be included to receive
a rating of one point. 

The law firm of Henry, Lowerre, Johnson, Hess and Frederick commented that
public health is not enough of a priority of the proposed rules and priority
system. The commentator suggested that sec.363.208(1)(F) should be changed
to give a project where there is no centralized sewerage system and documented
health problems the same priority as high priority stream segments. 

Response: The Board agrees that the priority system is based on critical
water quality and public health factors and that public health is a priority
of the proposed rules. The Board also agrees that four points instead of two
points should be assigned to projects that provide service to areas which
have no centralized sewerage systems and which have public health problems.
The proposed language of sec.363.208 (1)(F) has been changed to read as
follows: (F) Applications in which the principal project will provide service
to areas which have no centralized sewerage systems and which have documented
public health problems will receive four points. 

The commentator also suggests that a new section be added and that two
points be given for systems where communities use self-help to lower the cost
of building the sewerage system. The comment states that just as 
nonconventional,
innovative, or alternative treatment or collection systems are awarded, so,
too, community self-help should be awarded. The comment adds that at a minimum,
sec.363.208(1)(G) should be amended to include self-help. 

Response: The Texas Water Code, Chapter 15, sec.15.007 provides, in part,
that before granting an application for financial assistance, the Board must
find that any waste treatment facility to be financed under the application
will consider cost-effective innovative methods of treatment such as rock
reed, root zone, ponding, irrigation, or other nonconventional methods. Because
of this required finding, points are awarded to projects which utilize such
technologies. 

The Board agrees that community self-help efforts can be useful for implementing
sewerage systems in unsewered communities, but does not recommend a change
based on this comment. The rating process has been designed to measure criteria
which can be uniformly evaluated across applications. Each community self-help
program is inherently different and such programs or efforts cannot be 
quantitatively
evaluated in an objective manner which is fair to all applicants. Additionally,
factors utilized in a rating process should be independently verified during
the rating process, and the Board cannot determine whether or not an applicant
is capable of effectively implementing proposed self-help measures at the
time the priority rating scores are being determined. 

The Texas Natural Resource Conservation Commission (TNRCC) commented on
sec.363.208(1)(K) that the proposed rating system undervalues stream segments
where Total Maximum Daily Loads (TMDL) studies are underway. The TNRCC considers
these segments to be a priority and the TMDL studies are being implemented
in accordance with the agency's five-year basin cycle process. Giving a higher
point allocation to segments where a TMDL analysis is underway or scheduled
for development would be more consistent with the TMDL program. The TNRCC
also notes that the 303(d) document is a "list" in the agency's terminology,
and not a "report" as used in the proposed rules. 

Response: Sections 363.208(1)(H) and 363.208(1)(K) are changed to reflect
that stream segments previously designated as "Under Study" in sec.363.208(1)(K)
and which received one point should be moved from sec.363.208(1)(K) to 
sec.363.208(1)(H)
and given four points. The term "Under Study" should be replaced with "a total
maximum daily load (TMDL) analysis is underway or scheduled for development"
to reflect the terminology used in the most recently approved State of Texas
303(d) List. Changes to sec.363.202(17) and sec.363.208(1)(H)-(K) replace
the reference to the "State of Texas 303(d) Report" with the term "State of
Texas 303(d) List." 

Section 363.208(1)(H) is therefore changed as follows: (H) Applications
in which the principal project impacts stream segments designated as "High
Priority" or where a total maximum daily load (TMDL) analysis is underway
or scheduled for development as identified in the current approved State of
Texas 303(d) List and where the proposed project will directly or indirectly
mitigate the identified problem will receive 4 points. 

The repeal is adopted under the authority of the Texas Water
Code, sec.6.101 which provide the Texas Water Development Board with the
authority to adopt rules necessary to carry out the powers and duties in the
Water Code and other laws of the State.

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.
Filed with the Office of the Secretary of State on June
17, 1998.
TRD-9809807
Suzanne Schwartz

General Counsel

Texas Water Development Board

Effective date: July 8, 1998

Proposal publication date: May 1, 1998

For further information, please call: (512) 463-7981

Division 2. Applications for Assistance
31 TAC sec.363.226
The new section is adopted under the authority of the Texas
Water Code, sec.6.101 which provide the Texas Water Development Board with
the authority to adopt rules necessary to carry out the powers and duties
in the Water Code and other laws of the State.

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809810
Suzanne Schwartz

General Counsel

Texas Water Development Board

Effective date: July 8, 1998

Proposal publication date: May 1, 1998

For further information, please call: (512) 463-7981

TITLE 34. PUBLIC FINANCE
PART III. Teacher Retirement System of Texas
CHAPTER 41.Insurance
34 TAC sec.41.12
The Teacher Retirement System of Texas (TRS) adopts amendments
to sec.41.12, concerning the certification of public school employees group
health coverage by TRS without changes to the proposed text as published in
the April 17, 1998 issue of the Texas Register
(23 TexReg 3803). 

New law passed by the 75th Legislature found at sec.22.004 of the Education
Code provides that the TRS Board of Trustees shall adopt rules to determine
whether a school district's coverage is comparable to the basic coverage 
provided
under the Texas Employees Uniform Group Insurance Benefits Act. It is a 
requirement
for each school district to provide the information outlined in the amended
section. The amendments provide clarification as to the methodology and 
consequences
of the certification process. 

Under the previous Education Code sec.22.004, school districts were required
to self certify to TRS that they were providing comparable coverage as described
by law. The new law requires TRS to make an independent certification, based
on various factors set forth in the law. In addition, TRS is required to report
its determinations of non-comparable group health coverage to the district
and to the Legislative Budget Board. TRS must also submit a report describing
the status of each district's group health coverage program no later than
January 1 of each odd-numbered year. The amendments provide notice to those
who must comply with the law and rules as to how the decisions will be made
on certification. They also inform districts of the consequences of the 
certification
process. 

TRS consulted with an actuarial consultant who advised that, in order to
accurately compare all the relevant variables, a benefit replacement ratio
methodology should be used to evaluate comparability. The proposed amendments
describe this methodology. No comments were submitted in opposition to this
methodology. The consultant recommended a weighted average methodology (based
on number of employees participating in each plan) to determine whether a
district's overall medical program is comparable to the coverage described
in the law. Comments opposing this methodology are described below. 

The published notice of the proposed rule amendments established a May
18 deadline for the submission of written comments. No written comments were
received before the expiration of the deadline. TRS received one written comment
after the May 18, 1998 deadline, which was jointly submitted by the Texas
Association of School Administrators (TASA) and the Texas Association of School
Boards (TASB). On May 21, 1998, the TRS Board of Trustees' Policy Committee
heard testimony from representatives of TASA and TASB at a public meeting.
On May 22, 1998, the TRS Board of Trustees (Board) heard testimony from 
representatives
of TASA and TASB at a public meeting. 

In their written comments and verbal testimony, the representatives of
TASA and TASB expressed their opposition to the proposed subsection (c). 
Subsection
(c) generally provides that where a district offers multiple plans, some 
comparable
and some not, the plans will be frequency weighted by the number of members
in each plan, and a weighted average will be determined. Subsection (c) further
provides that, in addition to the comparability of each plan, a composite
comparability will be reported. 

TASA and TASB assert that the law requires only a plan-by-plan determination
of comparability, and that TRS should not report the composite comparability
for districts that offer more than one plan. They argue that a composite 
comparability
report may penalize districts that offer more than one health plan. They propose
that subsection (c) be replaced with language stating that a district is in
compliance if it provides at least one comparable plan. 

The Board's response is that Education Code sec.22.004 reflects a legislative
intent that TRS may report both composite comparability and plan-by-plan 
comparability.
Specifically, the Education Code sec.22.004(c)(4) requires that districts
report to TRS "the number of employees covered by each health coverage plan
offered by the district." This information is useful in preparing a composite
comparability report. Also, the Education Code sec.22.004(d) requires the
executive director to "submit a report to the legislature . . . describing
the status of each district's group health
coverage program . . . ." (emphasis added).
Use of the word "program" reflects an intent that TRS provide more than a
plan-by-plan analysis, and that TRS reporting may include composite 
comparability.
The Education Code sec.22.004(d) further provides that the status report
must be based on the information provided to TRS by the districts "and the
certification required by this subsection." If the status report is to be
based, in part, on the plan-by-plan certification, the legislature must have
intended for the status report to include more information than the plan-by-plan
certification alone. 

On May 21, 1998, the TRS Board of Trustees' Policy Committee heard testimony
from a representative of the Association of Texas Professional Educators (ATPE)
in support of the rule amendments as published in the 
Texas Register. On May 22, 1998, the TRS Board of Trustees (Board)
heard testimony from a representative of ATPE at a public meeting, again in
support of the rule amendments as published. 

The amendments are adopted under the Government Code, Chapter
825, sec.825.102, which provides the Board of Trustees of the Teacher Retirement
System with the authority to adopt rules of the administration of the funds
of the retirement system. In addition, Texas Education Code sec.22.004 gives
the Board the authority to adopt these amendments.

Education Code, sec.22.004 is affected by this adoption. 

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.
Filed with the Office of the Secretary of State on June
17, 1998.
TRD-9809714
Charles Dunlap

Executive Director

Teacher Retirement System of Texas

Effective date: July 17, 1998

Proposal publication date: April 17, 1998

For further information, please call: (512) 391-2115

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 12.Special Nutrition Programs
SUBCHAPTER A.Child and Adult Care Food Program
40 TAC sec.12.14
The Texas Department of Human Services (DHS) adopts an amendment
to sec.12.14, without changes to the proposed text as published in the May
8, 1998, issue of the Texas Register (23 TexReg
4532). 

The justification for the amendment is to establish that meals served to
eligible program participants during field trips are eligible for reimbursement
provided that all Child and Adult Care Food Program requirements are met,
and the field trip complies with the applicable standards for such activities
as established by the licensing/approval authority for the child or adult
care facility. 

The amendment will function by ensuring that child and adult care providers
are able to include a nutritious meal service as an element of field trips
taken to enhance their child and adult care services. 

No comments were received regarding adoption of the amendment. 

The amendment is adopted under the Human Resources Code, Title
2, Chapters 22 and 33, which provides the department with the authority to
administer public and nutritional assistance programs. 

The amendment implements sec.sec.22.001-22.030 and sec.sec.33.001-33.024
of the Human Resources Code. 

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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809837
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: July 15, 1998

Proposal publication date: May 8, 1998

For further information, please call: (512) 438-3765

CHAPTER 69.Contracted Services
SUBCHAPTER L.Contract Administration
40 TAC sec.69.202, sec.69.208
The Texas Department of Human Services (DHS) adopts amendments
to sec.69.202 and sec.69.208 without changes to the proposed text as published
in the May 8, 1998, issue of the Texas Register 
(23 TexReg 4535). 

Justification for the amendments is to encourage more faith-based providers
to contract with DHS. 

The amendments will function by complying with a recommendation issued
by the Governor's Advisory Task Force on Faith-Based Community Service Groups
that legal provisions guaranteeing religious liberty be enacted to assure
faith-based, would-be service providers that their distinct religious character
and beliefs would not be surrendered or secularized when providing services
for the state. 

The department received no comments regarding adoption of the amendments.
The amendments are proposed under the Human Resources Code, Title
2, Chapter 22, which authorizes the department to administer public assistance
programs. 

The amendments implement the Human Resources Code, sec.sec.22.001-22.033
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.
Filed with the Office of the Secretary of State on June
18, 1998.
TRD-9809838
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: May 8, 1998

For further information, please call: (512) 438-3765

CHAPTER 92. Personal Care Facilities
The Texas Department of Human Services (DHS) adopts the repeal of
sec.92.1, sec.92.2, sec.92.21, sec.92.101, and sec.92.129; amendments
to sec.92.3, sec.92.4, sec.sec.92.10-92.18, sec.92.41, sec.92.61,
sec.92.62, sec.92.63, sec.92.81, sec.92.82, sec.92.102, sec.92.103,
sec.92.106, sec.92.124, sec.92.125, sec.92.127, sec.92.153, sec.92.155;
and new sec.92.2, sec.92.19, sec.92.20, sec.92.101, and sec.92.154.
New sections and amendments to sec.sec.92.2, 92.3, 92.4, 92.16, 92.41,
92.61-92.63, 92.102, 92.124, 92.125, 92.127, and 92.154 are adopted
with changes to the proposed text as published in the March 13, 1998, issue
of the Texas Register (23 TexReg 2751). Repeal
of sec.sec.92.1, 92.2, 92.21, 92.101, and 92.129; amendments to sec.sec.92.10-
92.15,
92.17, 92.18, 92.61, 92.81, 92.82, 92.103, 91.106, 92.153, 92.155; and new
92.19, 92.20, and 92.101 are adopted without changes and will not be 
republished. 
Justification of the sections is to improve the quality of life of residents
of personal care homes by allowing them to age in place and requiring facilities
to enter into agreements with residents who are aging in place as to how 
services
will be delivered; to improve the quality of care in personal care homes by
permitting nurses employed by personal care homes to perform occasional nursing
tasks for residents with a terminal condition or experiencing a short-term
acute episode; to better protect personal care residents through increased
training for managers and licensed staff and a specific requirement for 
sufficient
staff to safely evacuate the facility; to encourage small unlicensed facilities
to obtain their licenses by revising the Life Safety Code requirements to
make them more appropriate to private homes; and to implement House Bills
1596 and 2601. 

The amendments and new sections will function by implementing House Bills
1596 and 2601, which were passed during the 75th Legislature, and updating
the current regulations. The new legislation establishes a six-month provisional
license under certain circumstances for existing unlicensed facilities, which
are in compliance with resident care standards, but require additional time
to achieve compliance with Life Safety Code standards; allows the department
to seek a temporary restraining order against a personal care facility which
is operating without a license or to gain entry to a facility; sets civil
penalties of $1,000 to $10,000 per day for persons operating a personal care
facility without a license; and requires personal care facilities to use their
license numbers in all advertising. 

DHS held a public hearing on April 8, 1998, to receive comments on the
proposed personal care rules. Representatives of the Texas Association for
Home Care, the Texas Department on Aging, the Mental Health Association of
Tarrant County, the Texas Organization of Residential Care Homes, and several
individuals testified. The following comments were received. 

Comment: The proposed rules presented to the Aged and Disabled Advisory
Committee included provisional licenses in the definition of dietitian. The
proposed rules in the Texas Register do not
contain the provisional license. Add "provisional license" to the proposed
definition. 

Response: The department concurs and has changed the definition in sec.92.3
to read: 

"Dietitian - A dietitian qualified by: 

(A) registration by the Commission on Dietetic Registration of the American
Dietetic Association, or 

(B) licensure or provisional licensure by the Texas State Board of Examiners
of Dietitians and who has 15 hours of dietetic continuing education annually."
Comment: The proposed sec.92.41(h)(11) presented to the ADAC required
that food be washed, but deleted the requirement to wash food "with potable
water." The proposed rules in the Texas Register 
contain the phrase "with potable water." Adopt the rule as proposed
to the ADAC. 

Response: The department originally deleted the language as unnecessary.
Retaining the language was an oversight. The department has deleted "with
potable water." 

Comment: The proposed sec.92.4(2)(D) presented to the ADAC stated a resident
of a Type B facility may "not be permanently bedfast, but may require assistance
in transferring to and from a wheelchair." The proposed rules in the 
Texas Register added the phrase "however, once into
the chair, the resident is able to move about independently." Requiring Type
B residents to be able to move independently in a wheelchair would prohibit
blind persons, persons with arthritis, or other residents, whose physical
condition has deteriorated due to the normal aging process, from continuing
to live in a personal care home, regardless of whether their needs are being
met. Institutionalization is the next step for personal care residents. Texas
residents should not be forced to move to nursing facilities because of this
rule. Restore the language as originally proposed. 

An additional commenter added the following comments regarding the same
section: 

Comment: Delete the text that reads, "...but once into the chair is able
to move about independently." This statement seems to contradict sec.92.4(2)(A),
which states that the tenant could "require staff assistance to evacuate."
Requiring Type B residents to be able to move independently in a wheelchair
may conflict with resident rights. Our facilities have the operational and
design capacity to meet the needs of persons who need ambulation assistance
(beyond simple transferring). We could further demonstrate that tenants could
be evacuated appropriately even when many of the tenants may need ambulation
assistance. Evicting persons who need ambulation assistance when the facility
could provide the needed services may be in violation to their rights. Consider
that persons living at home who need ambulation assistance would not necessarily
be evicted. 

This policy creates a problem for individuals who cannot afford to purchase
a motorized vehicle - for example, a tenant with right-side paralysis who
is suffering from a stroke and who is lacking in financial resources. 

This could also lead to the misuse of public and private dollars since
the only alternative for such persons would be a nursing facility whose 
construction
standards may not show a significantly better performance. Although staffing
patterns may seem higher, resources may not be proportionally better when
comparing the typical resident profile in each setting. 

And finally this discourages individuals who do need services and safety
features but who are not ready for nursing home care, from accessing such
services; such a policy may encourage people to remain in a less safe 
environment.
Response: In general, the department concurs with the comments and, in
response to comment, has deleted the phrase "...but once into the chair is
able to move about independently." 

Comment: The proposed sec.92.41.(d)(2)(A) as presented to the ADAC stated: 
"A facility must not admit or retain: 

(i) residents whose needs cannot be met by the personal care facility,
or the necessary services secured by the resident. When services beyond personal
care are needed, the decision that such services can be provided or secured
shall be the responsibility of facility management with written concurrence
of the resident, resident's attending physician, or responsible party. 

(ii) an individual requiring the services of facility employees who are
licensed nurses on a daily or regular basis, excluding occasional treatments
or procedures. Individuals with a terminal condition or experiencing a short-
term
acute episode are excluded from this requirement." 

The rules as proposed in the Texas Register were
changed to read: 

"A facility must not admit or retain: 

(i) residents whose needs cannot be met by the personal care facility,
or the necessary services secured by the resident. As part of the facility's
general supervision or oversight of the physical and mental well-being of
its residents, the facility remains responsible for all care provided at the
facility. If the individual is appropriate for placement in a personal care
facility, then the decision that additional services are necessary and can
be secured must be agreed to by the resident and the facility in writing. 
(ii) an individual requiring the services of facility employees who are
licensed nurses on a daily or regular basis. Individuals with a terminal 
condition
or experiencing a short-term, acute episode are excluded from this requirement." 
Adopt the rules as originally presented to the ADAC. 

Response: The department added the phrase "As part of the facility's general
supervision or oversight of the physical and mental well-being of its residents,
the facility remains responsible for all care provided at the facility" because
it reflects the statutory language at Chapter 247, Texas Health and Safety
Code, and emphasizes the facility's responsibility for overseeing all aspects
of the resident's care, even when additional services are contracted. In 
response
to comment, the department has changed the third sentence of 
sec.92.41(d)(2)(A)(i)
to read "If the individual is appropriate for placement in a personal care
facility, then the decision that additional services are necessary and can
be secured shall be the responsibility of facility management with written
concurrence of the resident, resident's attending physician, or legal 
representative."
Comment: Would it be possible to include a provision for voluntary licensure
of facilities that have fewer than four residents? 

Response: The department cannot add such a provision to this group of rules,
but the department will take such an idea under advisement. 

Comment: Requirements for being a manager are inadequate. Rules would allow
a person to be a manager of a personal care home with only a GED and no 
additional
relevant training or education prior to assuming the responsibility for the
home. 

Response: The department does not concur. The workgroup, composed of advocates
and providers, which developed the proposed rules considered the additional
costs for higher manager qualifications versus the importance of keeping 
personal
care a cost-effective option for the majority of Texans. The department will
retain the language as proposed, but will consider the issue of manager 
qualifications
at a future date. 

Comment: Twelve hours per year of continuing education for a manager is
an improvement, but should be required in more than one area. This would allow
a manager to take twelve hours of accounting, but nothing that relates to
resident care. Change to read: "The manager of a licensed facility must show
evidence of 12 hours of annual continuing education that includes at least
two of the following areas: (I) residents rights and responsibilities, 
abuse/neglect/
and exploitation, respecting residents' dignity and confidentiality. Delete
"provider rights and responsibilities from this section....(ii) through (viii).
And one of the two areas must include an item under (I)." 

It does not seem necessary to require that a manager have continual training
in provider rights since it can be assumed that based on self interest a 
provider
would know their rights. It seems redundant to require a provider to have
continual education on provider responsibilities since this is what Licensure
and standards/regulations is about. However, if it is appropriate to require
continual education for provider rights and responsibilities, these should
be in a category separate from resident rights and responsibilities. Also,
add a section that a Manager is required to have basic emergency first aide
(CPR, choking, etc.). 

Response: The department agrees with the reasons stated in the comment
and will require training in two of the areas and has made the change to 
sec.92.41(a)(1)(C).
Further changes to required topics for continuing education will be considered
in an on-going workgroup. 

Comment: Social services in sec.92.41(b) seem to refer more to resident
activities. True social service needs should be addressed in the resident
service plan. If this means activities, one per week is generally not sufficient
for most people. Activity level should also be addressed in the service plan,
but more than one per week should available for most residents. 

Response: Personal care homes serve an immensely varied clientele. To mandate
additional resident activities means that homes serving persons who do not
require extensive activities as part of their service array will have to 
increase
the number of activities provided, which will increase the cost to the resident.
The majority of personal care is paid for with private funds; therefore, the
need for activities is market driven by the clientele served and their needs.
The department will not require additional activities to be offered. 

Comment: Dietary section needs to include requirements that food be served
in an attractive/palatable manner, and should be provided in accordance with
the resident's service plan, i.e., low fat, low sodium, soft diet. 

Response: The department concurs, except with the request for a requirement
that food be "attractive." The term "attractive" is too subjective for rule
language. The department will change sec.92.41(h)(3) and (4) to read: 

(3) Menus must be planned one week in advance. Menus must be prepared to
provide a balanced and nutritious diet, such as that recommended by the National
Food and Nutrition Board. Food must be palatable
and varied. Records of menus as served must be filed and maintained
for 30 days after the date of serving. 

(4) Therapeutic diets must be provided according
to the service plan. Therapeutic diets which cannot customarily be
prepared by a lay person must be calculated by a qualified dietician. 
Therapeutic
diets which can customarily be observed by a person in a family setting may
be served by the personal care facility. 

Comment: Allowing 14 days after admission for acquiring physical information
on a resident is not adequate. A complete physical might wait 14 days, but
the facility staff should at a minimum have a medical history and physicians
orders upon admission. Change "Within 14 days" to read "Within 72 hours."
Also add a description of what should be contained in an assessment. Assessment
should include physical, mental health, and social histories as well as 
recommendations
for standardized assessments for physical, psychological and social status,
and needs. 

Response: The department does not concur. Personal care homes' main service
is the assistance with activities of daily living (ADLs). Allowing a personal
care home 14 days to fully assess a resident and determine a service plan
is reasonable. Even in nursing facilities, staff is allowed 14 days to develop
a care plan. The department will retain the rules as proposed. 

Comment: Psychological and social services needs are completely neglected
in these rules. A psychosocial assessment should be made upon admission, and
psychological or psychiatric histories should be available upon admission.
Historical conditions or needs identified by assessment should be included
in the service plan. Staff training needs in order to provide appropriate
care for the resident with a mental health need should be identified and 
provided.
Response: The department does not concur. Mandating the suggested psychological
and social services would increase the cost of personal care, putting it out
of the reach of the average Texan. Staff training is being discussed in an
on-going workgroup. 

Comment: Posting requirements should also include the Ombudsman number.
Section 92.125(a)(3)(BB) states that the resident has a right to "have access
to the service of a representative of the State Long Term Care Ombudsman 
Program,
Texas Department on Aging." Requiring the posting of a sign on the Ombudsman
Program would be consistent with that right. Also require that the facility
Admission Packet include a copy of: (a) Resident Rights, and (b) Information
about the Ombudsman Program. 

Response: The department agrees with the suggestions regarding the ombudsman
and will require, in sec.92.41(d)(1)(C), that information about the Ombudsman
Program be included in the admission packet, and that the telephone number
be added to the posting requirements in sec.92.127. The department does
not concur with requiring facilities to include a copy of "resident rights"
in the admission packet because the rights already must be posted. 

Comment: Resident Rights should also include the right to have a copy of
their personal records within 48 hours of request. 

Response: The residents rights are established by Chapter 247, and they
do not address resident records; therefore, the department will make no changes.
Comment: A major weakness in these currently drafted Standards for Personal
Care Facilities is the lack of intermediate sanctions that can be imposed
by TDHS Long Term Care Regulatory for facilities who are providing sub-standard
care and are not meeting the minimum requirements of the Standards. There
is a big gap between the rather benign sanction of finding a "Deficiency"
and the very extreme measure of "Closing Down a Facility." The Standards should
be amended to include intermediate sanctions available to TDHS-LTC-R including:
financial penalties, requiring a specific plan of action to correct 
deficiencies,
and requiring additional staff training. 

Response: Currently we have available civil penalties. However, new financial
penalties would have to be addressed statutorily. Section 92.82(e) requires
a plan of correction. Other intermediate sanctions would require further 
consideration
by the department. Staff training is being addressed in another workgroup.
Comment: Staff training should be enhanced. Perhaps the Department could
contract for development of a personal care home staff training curriculum.
Response: Staff training is being addressed in an on-going workgroup. 
Comment: If the new legislation allowed for fines and referral to local
enforcement for licensed facilities, language such as is in sec.92.154 relating
to unlicensed facilities should be included in the section relating to licensed
facilities. 

Response: In response to comment, the department has re-written sec.92.154
to make it consistent with sec.92.157, Referral to the Attorney General.
Comment: Regarding sec.92.2, Basis and Scope, this statement does not
seem to be necessary since a personal care facility is already defined in
the above section (1) as facility with "four or more persons" etc. If the
intent of (b)(2) is that facilities with fewer than four residents are not
required to be licensed, the wording should be changed to reflect that. 
Response: The commenter is correct that the information in sec.92.2(b)(2)
has already been set out in sec.92.2(b)(1); therefore, the department has
deleted the duplicative language. 

Comment: Regarding sec.92.3, Definitions, "direct care" is not defined.
However in this same Section "Personal care services" is defined. If "direct
care" means "Personal care services," then use those words or provide a separate
definition for direct care. 

Response: The department does not agree that a definition of direct care
is needed. The term is self-explanatory. 

Comment: The phrase "not be permanently bedfast, but may require assistance
in transferring to and from a wheelchair" at sec.92.4(b)(D) is confusing.
Perhaps delete "not be permanently bedfast" in this section. Clarify regulations
against not having bedfast residents in another section. 

Response: The department does not concur. The section on Type B facilities
is the appropriate place for this rule because sec.92.4(1) and (2) contain
descriptions of residents of Type A and B facilities. 

Comment: Under 92.2(b)(3), the new language could be misinterpreted to
mean that such services could only be contracted with a home health agency
if a tenant requires services from licensed personnel, when in fact it should
be their right to contract these services however they choose. I would recommend
that this be changed back to its original language. 

Also, with the reduction in long-term home health benefits through Medicare,
this may result in people being placed sooner in a nursing home. Current rules
prohibit Personal Care Facilities from providing the level of nursing services
found in a nursing home, hospital, etc. We interpret that to mean we cannot
provide continuous nursing services or admit/retain people who need to have
a nurse on-site 24 hours because of their unstable medical condition. Current
rules recognized that some folks need intermittent health-related services--
whether long or short-term--which consumers were free to purchase either 
privately
or through Medicare. In assisted living, nurses or their delegatee's could
perform certain nursing services under the Nurse Practice Act. The proposed
policy change would be a move in the wrong direction by more narrowly defining
the options available to consumers. This would prohibit tenants from receiving
services by licensed staff employed by the facility. 

Response: The language at sec.92.2(b)(3) merely states that residents
may contract for home health services while residing in a personal care 
facility;
there is no requirement to do so. The proposed rules are consistent with current
state law regarding the services that may be provided by a personal care 
facility
and are not intended to allow personal care facilities to do less than they
may do under current rules. Texas does not license assisted living facilities
per se. 

Comment: Certain sections of the proposed rules go beyond the scope of
the authority given to the department under Chapter 247 of the Health and
Safety Code to license personal care facilities. Specifically, personal care
facilities do not have the authority under Chapter 247 to provide skilled
nursing services to their residents, as is proposed under 
sec.92.41(d)(2)(A)(ii).
We ask that the department not go forward with those sections of the rules
that would allow personal care facilities to provide skilled nursing services
to residents with a terminal condition or who are experiencing a short- term
acute episode until the legislature specifically grants the department the
authority to do so. 

Response: The department does not concur. In drafting the language of 
sec.92.41(d)(2)(A)(ii),
the department was careful to stay within the boundaries for personal care
facilities established in Chapter 247. The rule, by its own language, does
not permit a personal care facility to admit or retain residents who require
the services of facility employees who are licensed nurses on a daily or regular
basis. However, the department does not believe the law requires persons who
are appropriately placed in a personal care facility to go through the trauma
of moving simply because they have a short-term need for a slightly higher
level of care. 

Comment: Regarding sec.92.41(d)(2)(A), and the statement that "as part
of the facility's general supervision or oversight of the physical and mental
well-being of its residents, the facility remains responsible for all care
provided at the facility," although the intent seems appropriate, the item
does not fit under this section. The topic does seem appropriate if outlining
facility's responsibilities for service coordination but not admission/retention
policies. 

Personal care providers cannot be expected to monitor for regulatory standards
which they are not familiar with. It is reasonable to expect a facility to
respond appropriately to reported/observed service concerns by third parties.
However a home health agency has its own set of responsibilities in providing
appropriate care with different regulatory agency oversight. From a liability
standpoint, this statement could also expose a facility to litigation for
harm by a third party which the facility may not have any knowledge of. 
Also this may subvert tenant preference. Tenants may choose to make their
own arrangements for care without facility oversight. Again, intervention
by the facility for known/suspected quality concerns may be appropriate; 
however,
this puts more burden on the facility than may be warranted. In practice,
this may lead to providers restricting tenants from coordinating with their
provider of preference. Further, the statement also seems to hold a facility
responsible for services which the tenant/family chose not to (or forgot)
to inform staff about. 

Response: The department does not concur. Personal care facilities are
ultimately responsible for the oversight of all care delivered in their 
facilities,
regardless of whether delivered by their staff or a home health agency. The
Health and Safety Code sec.247.002(4)(C) specifically lists general supervision
or oversight of residents' physical and mental well-being as being a part
of the personal care services provided by a facility. Personal care staff
must be aware of the condition of their residents and notify family members
or the physician when the resident's condition changes. 

The following written comments were received from the Senate Interim Committee
on Home Health and Assisted Living Facilities, the Texas Assisted Living 
Association,
the Private Providers Association of Texas, the Texas Department of Mental
Health and Mental Retardation, Texas Association of Residential Care 
Communities,
and numerous individuals. 

Comment: We petition that paragraph sec.92.4(2)(D) of the proposed personal
care regulations as published in the Texas Register 
on March 13, 1998, regarding "aging in place" should be amended to
delete the following: "however, once into the chair, the resident is able
to move about independently," and to add "however, a resident may be allowed
to age in place with supervision from staff, and if needed, the resident shall
be allowed to contract for professional services." We feel these changes are
necessary to preserve our quality of life and yet, receive personal attention
for us and our loved ones who rely on assistance but who do not wish or require
institutionalization for non-skilled care. 

Response: To allow individuals more choice in their place of residence,
and in response to comment, the department has deleted the requirement that
residents be able to move independently in their wheelchairs. The department
does not see the necessity for adding the statement regarding "aging in place"
because the proposed rules allow residents to age in place, when arrangements
can be made which are agreeable to the resident and facility management. 
Comment: We believe the "occasional" nursing rules contained in sec.92.2(b)(3),
as originally adopted by the Personal Care Advisory Committee and the ADAC,
should be approved. The rules are clear that only occasional nursing services
will be permitted. Other rules relating to the condition of residents make
it clear that personal care facilities are not allowed to offer a nursing
facility level of care to their residents. Additionally, it makes sense that
nurses have the right to practice within their scope of practice. 

Response: The department agrees that it is made clear in the proposed amendments
to the personal care rules that personal care facilities are not allowed to
offer a nursing facility level of care and that the department's responsibility
is the regulation of health care facilities, not nurses. The proposed rule
language was intended to track as closely as possible the language of Chapter
247 to emphasize the department's authority under current law and to allow
as wide a provision of services by personal care facilities as is encompassed
by Chapter 247. In response to comment, the department will insert the phrase,
"including occasional nursing services consistent with the needs of individuals
described in sec.92.41(d)(2)(A) of this title (relating to Standards for
Type A and Type B Personal Care Facilities)" to sec.92.2(b)(3), after the
words, "well-being of residents," and before the words "enabling them to 
maintain
their independence." This language reflects the restriction contained in the
rule on admissions to personal care facilities, makes it clear what type of
nursing services are permitted, and retains the language emphasizing the 
department's
authority under current law. 

Comment: Regarding sec.92.41(a)(2), the age requirement for facility
attendants should be 17 years old instead of 18 years old to allow for high
school graduates that have not yet turned 18. Some of the best attendants
that I have had have fallen into that category. 

Response: In recognition that some 17-year-old persons could have graduated
and in response to comment, the department has changed the requirement to
read "Full-time facility attendants must be at least 18 years old 
or a high-school graduate." 

Comment: In sec.92.62(l)(1)(D), the language is awkward. Reword it as
follows: 

" A facility must have no more than 50% of its beds in bedrooms of three
or more. A bedroom must have no more than four beds." 

Response: The department concurs and has made the change. 

Comment: Add the following at (D) to sec.92.62(d)(4) so that it matches
the Life Safety Code: 

"(D) In small and large Type B facilities protected throughout by an approved
automatic sprinkler system, the facility may have smoke resisting doors. Door-
closing
devices are not required." 

Response: The department concurs and has made the change. 

Comment: The association disagrees with the department's decision to apply
the definition of a personal care facility to the HCS program and thus requests
that the department clarify this interpretation with appropriate legal staff
and legislators. If the legislative intent is to include the HCS program under
the definition of a personal care facility. we strongly urge the department
to pursue legislation during the next session that would correct this situation.
The department will have the association's full support in this endeavor.
It is difficult to believe that legislators would support such an interpretation
that only duplicates agencies' efforts, creates over- regulation and does
nothing to further protect the health and safety of consumers of HCS services.
The association further disagree with requirement that HCS three persons
alternative living residences be licensed by the Texas Department of Human
Services (TDHS). Providers of HCS services are annually certified by TDMHMR
and must maintain a current license as a Home Health Services Support Agency
through the Texas Department of Health (TDH). As previously noted, this 
requirement
is not only unnecessarily burdensome for providers, but does nothing to further
ensure the health and safety of the consumers served, and creates an increase
in administrative oversight for the department. 

The proposed language under sec.92.4(4)(A) is contradictory and confusing.
If the department proceeds with the adoption of these rules as written, it
is imperative that language be added to the rule which specifically states
that HCS programs will not be required to be in compliance with TDHS personal
care rules and will not to be subject to survey by the department. 

Lastly, the association is concerned that neither TDHS nor TDMHMR notified
the industry in advance of the interpretation of this statute. Such a 
significant
interpretation should have been discussed with all stakeholders before 
proceeding
with rule revisions. Therefore, until such discussions can take place we 
recommend
that the department withdraw the proposed rules and convene a group of 
stakeholders
to discuss the interpretation of the statute and subsequent rule revisions.
Response: The department does not wish to license all HCS providers. The
proposed rule at sec.92.2(b)(1) was written to address situations where
a single provider of personal care services owns two or more homes in close
proximity to each other, each with only three residents, thereby escaping
the requirement to be licensed as a personal care home. Only HCS providers
that own more than one home, in close proximity, would need a Type D license.
The language regarding HCS providers will be revised in response to the 
following
comment. The addition of a Type D licensing category for these providers allows
them to have only one set of requirements to follow, the MHMR provider 
requirements,
rather then both the HCS requirements and the personal care facility 
requirements.
Comment: Please substitute the following language at sec.92.4(4). This
language would clarify the settings eligible for a Type D license and reference
a Memorandum of Understanding (MOU) between TDMHMR and DHS, which would further
clarify that those facilities covered under a Type D license would be deemed
(due to TDMHMR status) for clients served under TDMHMR agreements. 

"(4) Type D. An establishment which qualifies as a personal care facility
under sec.92.2(b)(1)(A) of this title (relating to Basis and Scope), operated
by a person certified by the Texas Department of Mental Health and Mental
Retardation (TDMHMR) as a provider in a sec.1915(c) waiver program and providing
personal care services only to persons in such a program, 
or operated by a community mental health or mental retardation center 
contracting
with TDMHMR or a local mental health or mental retardation authority designated
by TDMHMR and providing personal care services only to persons in TDMHMR's
priority populations, will be deemed licensed as a Type D facility
without having to apply for a personal care facility license. 

(A) After the effective date of this rule and at least 45 days prior to
recertification, contract renewal or redesignation
as a local authority (delete: "with TDMHMR"), the facility must submit
an application and fee for a personal care license. Failure to submit the
application and fee at least 45 days prior to the date of recertification, 
contract renewal or redesignation as a local authority 
(delete: "with TDMHMR") will result in loss of deemed licensure. 

(B) A facility applying for licensure as a Type D facility after the effective
date of this rule must be certified by TDMHMR at the time of application to
DHS. 

Response: The department has not made the requested change, because the
suggested language was too broad. However, to accommodate a sister state agency
to increase program efficiency, the department has changed the language in
sec.92.4(4) to read: "An establishment which qualifies as a personal care
facility under sec.92.2(b)(1)(A) of this title (relating to Basis and Scope),
operated by a person certified by the Texas Department of Mental Health and
Mental Retardation (TDMHMR) as a provider in a sec.1915(c) waiver program
and providing personal care services only to persons in such a program, 
or any other programs identified in a memorandum of understanding
(MOU) between DHS and TDMHMR as being similar to Home and Community-based
Services (HCS), will be deemed licensed as a Type D facility without
having to apply for a personal care facility license." The department will
work with the TDMHMR to develop the MOU. 

Comment: Leave the original language at sec.92.10(d) and sec.92.11(5),
referring to feasibility inspections and plan reviews, since the department
is re-instating them on a voluntary basis. 

Response: The department is currently developing rules regarding plan review;
consequently, there is no need to retain the referenced language. 

Comment: It is very important that we adequately and logically describe
the person who is in charge of the day-to-day operation of the facility. Yet
the definition of manager in these proposed rules describes a person who might
have a management contract with the owner. It also describes a person who
has a contractual arrangement. The definition, as proposed, is not needed
and is inaccurate. Delete the proposed definition of manager and substitute
the following, "the individual in charge or the day-to-day operation of the
facility." 

Response: The department concurs and has made the suggested change. 

Comment: Regarding sec.92.19, Advertisements, Solicitations and Promotional
Material, this new provision implements one of the requirements of HB 2601,
passed during the 1997 Session of the Texas Legislature. The reason for this
section in the law was to help the public identify legitimate licensed 
facilities
from unlicensed facilities. Printing the license number on facility brochures,
newspaper ads, and yellow page ads and mailing pieces is logical. The 
requirement
in this rule to print this number on business cards was not the intent of
the law. Business cards are personal identification pieces and are not designed
to promote the facility. Remove the following language from the first paragraph
of the proposed rule, "and business cards." 

Response: The department does not concur. This issue was discussed during
the development of the rules, and the rule committee agreed that business
cards should be considered as advertising materials. The department agrees
with the committee's reasoning and will not make the requested change. 

Comment: Regarding sec.92.41(d)(2)(A)(ii), Standards for Type A and B
Personal Care Facilities, this is not the version of the rules approved by
the "work group" and the Aged and Disabled Advisory Committee (ADAC). The
words "excluding occasional treatments and procedures" has been excluded from
the first sentence of the paragraph. We are aware that the home health industry
objected to this language. Have we now concluded that pandering to the home
health industry is more important than the good of the residents that we serve.
At the end of the first sentence of paragraph, restore the following language,
"excluding occasional treatments or procedures." 

Response: The department does not concur. This subsection of the rule as
it existed in the workgroup draft stated that a facility must not admit or
retain an individual requiring the services of facility employees who are
licensed nurses on a daily or regular basis, excluding occasional treatments
and procedures. Occasional treatments and procedures are by definition not
services that are provided on a daily or regular basis; therefore, the reference
to occasional treatments and procedures was superfluous. The second sentence
of (d)(2)(A)(ii), exempting people with a terminal illness or experiencing
a short-term, acute episode from this requirement, has the same effect as
the requested language. 

In addition, in sec.92.3(11) DHS has placed the definition of "management
services" before "manager" to be alphabetically correct. In sec.92.3(15)
"resident's" has been corrected to read "residents." Section 92.16(a) was
corrected to replace "(the department)" with "(DHS)." In sec.92.17(a)(1)
a correction to a section title was made to read, "Standards for Type A and
Type B Personal Care Facilities." The lettering of subparagraphs (E) and (F)
in sec.92.61(b)(4) was corrected to be (C) and (D). In 92.63(a)(2) the first
sentence was corrected to read, "All construction must be done in accordance
with minimum licensing requirements," with the insertion of the word "with."
In sec.92.81(e), "visits to determine" was inserted between "but not limited
to" and "conditions" to correct the syntax. In sec.92.102(a) "to" was replaced
with "must" to correct a syntax error. The address where public records are
requested in sec.92.124(c)(1) was corrected, and, in the same section, outdated
references to "bureau" were changed to "DHS." DHS deleted "be" in 
sec.92.125(a)(1)
to correct the syntax. 

SUBCHAPTER A. Introduction
40 TAC sec.92.1, sec.92.2
The repeal is adopted under the Health and Safety Code, Chapter
247, which authorizes the department to license personal care facilities,
and Human Resources Code, Title 2, Chapter 22, which authorizes the department
to administer public assistance programs. 

The repeal implements the Health and Safety Code, sec.sec.247.001-
247.066, and the Human Resources Code, sec.sec.22.001-22.030. 

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.
Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809347
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

40 TAC sec.sec.92.2-92.4
The new section and amendments are adopted under the Health
and Safety Code, Chapter 247, which authorizes the department to license 
personal
care facilities, and Human Resources Code, Title 2, Chapter 22, which authorizes
the department to administer public assistance programs. 

The new section and amendments implement the Health and Safety Code, 
sec.sec.247.001-247.066,
and the Human Resources Code, sec.sec.22.001-22.030. 

sec.92.2. Basis and Scope. 
(a) Basis in legislation. The licensing standards for personal
care facilities are promulgated under the authority of the Health and Safety
Code, Chapter 247. 

(b) Scope. The licensing standards for personal care facilities
contain the minimum standards that a facility must meet in order to be licensed
as a personal care facility. The standards serve as a basis for survey 
activities
for licensure. 

(1) A personal care facility is an establishment, including
a board and care home, that provides, in one or more facilities: food and
shelter to four or more persons who are unrelated to the owner of the 
establishment;
personal care services; minor treatment under the direction and supervision
of a physician licensed by the Texas State Board of Medical Examiners; or
services which meet some need beyond basic provision of food, shelter, and
laundry. 

(A) The Texas Department of Human Services considers one or
more facilities to be part of the same establishment and, therefore, subject
to licensure as a personal care facility, based on the following factors: 
(i) common ownership: 

(ii) physical proximity; 

(iii) shared services, personnel, or equipment in any part
of the facilities' operations; and 

(iv) any public appearance of joint operations or of a relationship
between the facilities. 

(B) The presence or absence of any one factor in subparagraph
(A) of this paragraph is not conclusive. 

(2) Structured or organized medical, nursing, or
other care as found in licensed hospitals and licensed nursing facilities,
and similar specialized facilities, cannot be furnished by the licensed personal
care facility staff, but licensed nursing staff may administer medication
and provide general supervision or oversight of the physical and mental well-
being
of residents, including occasional nursing services consistent with the needs
of individuals described in sec.92.41(d)(2)(A) of this title (relating to
Standards for Type A and Type B Personal Care Facilities), enabling them to
maintain their independence. Residents may contract to have home health services
delivered. 

(c) Personal care residents. General characteristics of personal
care residents include, but are not limited to, the following. A resident
may: 

(1) exhibit symptoms of mental or emotional disturbance, but
is not considered at risk of imminent harm to self or others; 

(2) need assistance with movement; 

(3) require assistance with bathing, dressing, and grooming; 
(4) require assistance with routine skin care, such as
application of lotions, or treatment of minor cuts and burns; 

(5) need reminders to encourage toilet routine and prevent
incontinence; 

(6) require temporary services by professional personnel; 
(7) need assistance with medications, supervision of
self-medication, or administration of medication; 

(8) require encouragement to eat or monitoring due to
social or psychological reasons of temporary illness; 

(9) be hearing impaired or speech impaired; 

(10) be incontinent without pressure sores; 

(11) require established therapeutic diets; 

(12) require self-help devices; and 

(13) need assistance with meals. 

sec.92.3 Definitions. 
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise. 

(1) Affiliate - With respect to a: 

(A) partnership, each partner thereof; 

(B) corporation, each officer, director, principal stockholder,
subsidiary, and each person with a disclosable interest, as the term is defined
in this section; 

(C) natural person: 

(i) each person's spouse; 

(ii) each partnership and each partner thereof of which said
person or any affiliate of said person is a partner; and 

(iii) each corporation in which said person is an officer,
director, principal stockholder, or person with a disclosable interest. 

(2) Applicant - A person applying for a personal
care license under Health and Safety Code, Chapter 247. 

(3) Attendants - A facility employee who provides direct
care to residents. This individual may serve other functions which may include,
but are not limited to, aides, cooks, janitors, porters, maids, laundry workers,
security personnel, bookkeepers, managers, etc. 

(4) Change of ownership - A change: of 50% or more in
the ownership of the business organization that is licensed to operate the
facility; in the owner holding the facility license; or in the federal tax
payer identification number. 

(5) Co-mingles - The laundering of wearing apparel and/or
linens of two or more individuals together. 

(6) Dietitian - A dietitian qualified by: 

(A) registration by the Commission on Dietetic Registration
of the American Dietetic Association, or 

(B) licensure or provisional licensure by the Texas State
Board of Examiners of Dietitians and who has 15 hours of dietetic continuing
education annually. 

(7) Facility - An establishment under the scope
of Personal Care Facility Licensing Act, Health and Safety Code, Chapter 247,
which furnishes room, board, and one or more personal care services. 

(8) Governmental unit - The state or any county, municipality
or other political subdivision, or any department, division, board, or other
agency of any of the foregoing. 

(9) Immediately available - The capacity of facility
staff to immediately respond to an emergency situation after being notified
through a communication and/or alarm system. The staff is to be no more than
600 feet from the farthest resident. 

(10) Management services - Services provided under contract
between the owner of a facility and a person to provide for the operation
of a facility, including administration, staffing, maintenance, or delivery
of resident services. Management services do not include contracts solely
for maintenance, laundry, or food services. 

(11) Manager - The individual in charge or the day-to-day
operation of the facility. 

(12) Medication - Medication is: 

(A) any substance recognized as a drug in the official United
States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States,
Texas Drug Code Index or official National Formulary, or any supplement to
any of these official documents; 

(B) any substance intended for use in the diagnosis, cure,
mitigation, treatment, or prevention of disease; 

(C) any substance (other than food) intended to affect the
structure or any function of the body; 

(D) any substance intended for use as a component of any substance
specified in this definition. It does not include devices or their components,
parts, or accessories. 

(13) Medication administration - The direct application
of a medication or drug to the body of a resident by an individual legally
allowed to administer medication in the State of Texas. 

(14) Medication assistance or supervision - The assistance
or supervision of the medication regimen by facility staff. Refer to 
sec.92.41(e)
of this title (relating to Standards for Type A and Type B Personal Care 
Facilities). 
(15) Medication (self-administration) - The capability
of residents to administer their own medication/treatments without assistance
from the facility staff. 

(16) NFPA 101 - The 1988 publication titled "NFPA 101
Life Safety Code" published by the National Fire Protection Association, Inc.,
Batterymarch Park, Quincy, Massachusetts 02269. 

(17) Person - Any individual, firm, partnership, corporation,
association, or joint stock association, and the legal successor thereof. 
(18) Person with a disclosable interest - A person with
a disclosable interest is any person who owns five percent interest in any
corporation, partnership, or other business entity that is required to be
licensed under Health and Safety Code, Chapter 247. A person with a disclosable
interest does not include a bank, savings and loan, savings bank, trust company,
building and loan association, credit union, individual loan and thrift company,
investment banking firm, or insurance company unless such entity participates
in the management of the facility. 

(19) Personal care services - Assistance with meals,
dressing, movement, bathing, or other personal needs or maintenance; the 
administration
of medication or the assistance with or supervision of medication; or general
supervision or oversight of the physical and mental well-being of a person
who needs assistance to maintain a private and independent residence in the
facility or who needs assistance to manage his personal life, regardless of
whether a guardian has been appointed for the person. 

(20) Physician - A practitioner licensed by the Texas
State Board of Medical Examiners. 

(21) Resident - Anyone accepted for care in the personal
care facility. 

(22) Respite - The provision by a facility of room, board,
and care at the level ordinarily provided for permanent residents of the 
facility
to a person for not more than 60 days for each stay in the facility. 

(23) Safety - Protection from injury or loss of life
due to such conditions as fire, electrical hazard, unsafe building or site
conditions, and the hazardous presence of toxic fumes and materials. 

(24) Service plan - A written description of the medical
care or the supervision and nonmedical care needed by a person. 

(25) Short-term acute episode - An illness of less than
30 days duration. 

(26) Staff - Any employee of a personal care facility. 
(27) Standards - The minimum licensing standards in Subchapter
C of this chapter (relating to Standards for Licensure) intended to protect
the health and safety of the residents. 

(28) Terminal condition - A medical diagnosis, certified
by a physician, of an illness which will result in death in six months or
less. 

(29) Universal precautions - An approach to infection
control in which blood, any body fluids visibly contaminated with blood, and
all body fluids in situations where it is difficult or impossible to 
differentiate
between body fluids are treated as if known to be infectious for HIV, hepatitis
B, and other bloodborne pathogens. 

sec.92.4. Types of Personal Care Facilities. 
Types of personal care facilities are as follows. 

(1) Type A. In a Type A facility a resident: 

(A) must be physically and mentally capable of evacuating
the facility unassisted in the event of an emergency. This may include the
mobile nonambulatory, e.g., persons in wheelchairs or electric carts having
the capacity to transfer and evacuate themselves in an emergency; 

(B) does not require routine attendance during nighttime sleeping
hours; and 

(C) must be capable of following directions under emergency
conditions. 

(2) Type B. In a Type B facility a resident may: 
(A) require staff assistance to evacuate; 

(B) be incapable of following directions under emergency conditions; 
(C) require attendance during nighttime sleeping hours; or 
(D) not be permanently bedfast, but may require assistance
in transferring to and from a wheelchair. 

(3) (No change.) 

(4) Type D. An establishment which qualifies as a personal
care facility under sec.92.2(b)(1)(A) of this title (relating to Basis and
Scope), operated by a person certified by the Texas Department of Mental Health
and Mental Retardation (TDMHMR) as a provider in a sec.1915(c) waiver program
and providing personal care services only to persons in such a program, or
any other programs identified in a memorandum of understanding (MOU) between
DHS and TDMHMR as being similar to Home and Community-based Services (HCS),
will be deemed licensed as a Type D facility without having to apply for a
personal care facility license. 

(A) After the effective date of this rule and at least 45
days prior to recertification with TDMHMR, the facility must submit an 
application
and fee for a personal care license. Failure to submit the application and
fee at least 45 days prior to the date of recertification with TDMHMR will
result in loss of deemed licensure. 

(B) A facility applying for licensure as a Type D facility
after the effective date of this rule must be certified by TDMHMR at the time
of application to the Texas Department of Human Services. 

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.

Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809348
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

SUBCHAPTER B. Application Procedures
40 TAC sec.sec.92.10-92.20
The amendments and new sections are adopted under the Health
and Safety Code, Chapter 247, which authorizes the department to license 
personal
care facilities, and Human Resources Code, Title 2, Chapter 22, which authorizes
the department to administer public assistance programs. 

The amendments and new sections implement the Health and Safety Code, 
sec.sec.247.001-247.066,
and the Human Resources Code, sec.sec.22.001-22.030. 

sec.92.16. Change of Ownership. 
(a) During the license term, a license holder may not transfer
the license as a part of the sale of the facility. Prior to the sale of the
facility, the license holder must notify the Texas Department of Human Services
(DHS) that a change of ownership is requested. The prospective purchaser must
submit to the department a complete application for a license under sec.92.10
of this title (relating to Criteria for Licensing) at least 30 days prior
to the anticipated date of sale. The applicant must meet all requirements
for a license. 

(b) Pending the review of the prospective purchaser's application,
the license holder must continue to meet all requirements for operation of
the facility. 

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.
Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809349
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

SUBCHAPTER C. Standards for Licensure
40 TAC sec.92.21
The repeal is adopted under the Health and Safety Code, Chapter
247, which authorizes the department to license personal care facilities,
and Human Resources Code, Title 2, Chapter 22, which authorizes the department
to administer public assistance programs. 

The repeal implements the Health and Safety Code, sec.sec.247.001-
247.066, and the Human Resources Code, sec.sec.22.001-22.030. 

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.
Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809350
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

40 TAC sec.92.41
The amendment is adopted under the Health and Safety Code,
Chapter 247, which authorizes the department to license personal care 
facilities,
and Human Resources Code, Title 2, Chapter 22, which authorizes the department
to administer public assistance programs. 

The amendment implements the Health and Safety Code, sec.sec.247.001-
247.066, and the Human Resources Code, sec.sec.22.001-22.030. 

sec.92.41. Standards for Type A and Type B Personal
Care Facilities. 
(a) Employees. 

(1) Manager. 

(A) Each facility must designate, in writing, a manager to
have authority over the operation. 

(B) The manager must have proof of graduation from an accredited
high school or certification of equivalency of graduation. 

(C) The manager of a licensed facility must show evidence
of 12 hours of annual continuing education in at least two of the following
areas: 

(i)-(v) (No change.) 

(vi) accounting and budgeting; 

(vii) basic emergency first aid (e.g., CPR, choking, etc.);
or 

(viii) federal laws, such as Americans with Disabilities Act,
Civil Rights Act of 1991, the Rehabilitation Act of 1993, Family and Medical
Leave Act of 1993, and the Fair Housing Act. 

(D) The manager must be on duty 40 hours per week. 

(E) An individual competent and authorized to act in the absence
of the manager must be designated in writing. 

(2) Attendants. Full-time facility attendants must
be at least 18 years old or a high-school graduate. 

(A) An attendant must be in the facility at all times when
residents are in the facility. 

(B) The facility must document that attendants are competent
to provide personal care and have the following knowledge prior to assuming
responsibilities: needs of the resident(s) and tasks to be provided, resident's
health conditions and how they may affect provision of tasks, and conditions
about which the attendant should notify the facility manager. 

(C) Attendants are not precluded from performing other functions
as required by the personal care facility. 

(3) Staffing. 

(A) A facility must have sufficient staff to: 

(i) maintain order, safety, and cleanliness; 

(ii) assist with medication regimens; 

(iii) prepare and service meals; 

(iv) assist with laundry; 

(v) assure that each resident receives the kind and amount
of supervision and care required to meet his basic needs; and 

(vi) ensure safe evacuation of the facility in the event of
an emergency. 

(B) The staff-resident ratios described in this subparagraph
must be maintained in a Type A or Type B facility. The facility management
has the authority to define day, evening, and night shift start and end times. 
(i) day = 1 to 16; 

(ii)-(iii) (No change.) 

(4) Staff training. Facilities that employ
licensed nurses, nurse aides, or medication aides must provide annual inservice
training, appropriate to their job responsibilities, from one or more of the
following areas: 

(A) communication techniques and skills useful when providing
geriatric care (skills for communicating with the hearing impaired, visually
impaired and cognitively impaired; therapeutic touch; recognizing communication
that indicates psychological abuse); 

(B) assessment and nursing interventions related to the common
physical and psychological changes of aging for each body system; 

(C) geriatric pharmacology, including treatment for pain management
and sleep disorders; 

(D) common emergencies of geriatric residents and how to prevent
them, for example falls, choking on food or medicines, injuries from restraint
use; recognizing sudden changes in physical condition, such as stroke, heart
attack, acute abdomen, acute glaucoma; and obtaining emergency treatment; 
(E) common mental disorders with related nursing implications;
and 

(F) ethical and legal issues regarding advance directives,
abuse and neglect, guardianship, confidentiality. 

(b) Social services. The facility must provide an activity
and/or social program at least weekly for the residents. 

(c) Resident assessment. Within 14 days of admission, a facility
must assess an individual and develop an individual service plan for providing
care, which is based on the assessment. The service plan must be approved
and signed by the person arranging care. The facility must provide care 
according
to the service plan. 

(1) For respite clients, the facility may keep a service plan
for six months from the date on which it is developed. During that period,
the facility may admit the individual as frequently as needed. 

(2) Emergency admissions must be assessed and a service
plan developed for them. 

(d) Resident policies, admission policies, and records. 

(1) Resident policies. 

(A) The facility must have written policies regarding residents
accepted, services provided, charges, refunds, responsibilities of facility
and residents, privileges of residents, and other rules and regulations. 
(B) Each facility must make available copies of the resident
policies to staff and to residents and/or residents' responsible parties at
time of admission. Documented notification of any changes to the policies
must occur before the effective date of the changes. 

(C) The facility must provide residents information about
the ombudsman program in the admission packet. 

(2) Admission policies. 

(A) A facility must not admit or retain: 

(i) residents whose needs cannot be met by the personal care
facility, or the necessary services secured by the resident. As part of the
facility's general supervision and oversight of the physical and mental well-
being
of its residents, the facility remains responsible for all care provided at
the facility. If the individual is appropriate for placement in a personal
care facility, then the decision that additional services are necessary and
can be secured shall be the responsibility of facility management with written
concurrence of the resident, resident's attending physician, or legal 
representative. 
(ii) an individual requiring the services of facility employees
who are licensed nurses on a daily or regular basis. Individuals with a terminal
condition or experiencing a short-term, acute episode are excluded from this
requirement. 

(B) There must be a written admission agreement between the
facility and the resident. The agreement must specify such details as services
to be provided and the charges for the services, including any nursing services
and supplies, with a statement that such services and supplies could be a
Medicare benefit. 

(C) Each resident must have a health examination by a physician
performed within 30 days prior to admission or 14 days after admission, unless
a transferring hospital or facility has a physical examination in the medical
record. 

(D) The personal care facility must secure at the time of
admission of a resident the following identifying information: full name of
resident; social security number; usual residence (where resident lived before
admission); sex; marital status; date of birth; place of birth; usual occupation
(during most of working life); family, other persons named by the resident,
and physician for emergency notification; pharmacy preference; and 
Medicaid/Medicare
number, if available. 

(3) Records. Records pertaining to residents must
be treated as confidential and properly safeguarded from unauthorized use.
Records must be available to residents, their legal representatives, and the
Texas Department of Human Services (DHS) staff. 

(4) Personnel records. The facility must keep personnel
records on all staff in a central location. 

(e) Medications. 

(1) Administration. 

(A) Residents who choose not to or can not self-administer
their medications must have their medications administered by a person who: 
(i) (No change.) 

(ii) holds a current medication aide permit and acts under
the authority of a person who holds a current nursing license under state
law which authorizes the licensee to administer medication. A medication aide
must function under the direct supervision of a licensed nurse on duty or
on call by the facility. 

(iii) is an employee of the facility to whom the administration
of medication has been delegated by a registered nurse, who has trained them
to administer medications or verified their training. The delegation of the
administration of medication is governed by 22 TAC Chapter 218 (Delegation
of Selected Nursing Tasks), which implements the Nurse Practice Act. 

(B)-(C) (No change.) 

(D) Each resident's medications must be listed on an individual
resident's medication profile record. The recorded information obtained from
the prescription label must include, but is not limited to, the medication
name, strength, dosage, amount received, directions for use, route of 
administration,
prescription number, pharmacy name, and the date each medication was issued
by the pharmacy. 

(2) Supervision. Supervision of a resident's medication
regimen by facility staff may be provided to residents who are incapable of
self-administering without assistance to include and limited to: 

(A)-(F) (No change.) 

(3)-(4) (No change.) 

(5) Storage. 

(A) The facility must provide a locked area for all medications.
Examples of areas, but not limited to, are: 

(i)-(iii) (No change.) 

(B) Each resident's medication must be stored separately from
other resident's medications within the storage area. 

(C) A refrigerator must have a designated and locked storage
area for medications requiring refrigeration, unless it is inside a locked
medication room. 

(D) (No change.) 

(6) Disposal. 

(A) (No change.) 

(B) Needles and hypodermic syringes with needles attached
must be disposed as required by 25 TAC sec.sec.1.131-1.137 (Definition,
Treatment, and Disposal of Special Waste from Health Care Related Facilities). 
(C) (No change.) 

(f) Accident, injury, or acute illness. 

(1) In the event of accident or injury requiring emergency
medical, dental or nursing care, or in the event of apparent death, the personal
care facility will: 

(A)-(B) (No change.) 

(C) describe and document the injury, accident, or illness
on a separate report. The report must contain a statement of final disposition
and be maintained on file. 

(2) The facility must stock and maintain in a single
location first aid supplies to treat burns, cuts, and poisoning. 

(3) Residents who need the services of professional nursing
or medical personnel due to a temporary illness or injury may have those 
services
delivered by persons qualified to deliver the necessary service. 

(g) Resident finances. The personal care facility must keep
a simple financial record on all charges billed to the resident for care and
these records must be available to the department, while in the facility.
If the resident entrusts the handling of any personal finances to the personal
care facility, a simple financial record must be maintained to document 
accountability
for receipts and expenditures, and these records must be available to DHS.
Receipts for payments from residents or family members must be issued upon
request. 

(h) Dietary service. 

(1) (No change.) 

(2) At least three meals or their equivalent must be
served daily, at regular times, with no more than a 16-hour span between a
substantial evening meal and breakfast the following morning. All exceptions
must be specifically approved by DHS. 

(3) Menus must be planned one week in advance. Menus
must be prepared to provide a balanced and nutritious diet, such as that 
recommended
by the National Food and Nutrition Board. Food must be palatable and varied.
Records of menus as served must be filed and maintained for 30 days after
the date of serving. 

(4) Therapeutic diets must be provided according to the
service plan. Therapeutic diets which cannot customarily be prepared by a
lay person must be calculated by a qualified dietician. Therapeutic diets
which can customarily be prepared by a person in a family setting may be served
by the personal care facility. 

(5) Supplies of staple foods for a minimum of a four-day
period and perishable foods for a minimum of a one-day period must be maintained
on the premises. 

(6) Food must be obtained from sources that comply with
all laws relating to food and food labeling. If food, subject to spoilage,
is removed from its original container, it must be kept sealed, and labeled.
Food subject to spoilage must also be dated. 

(7) (No change.) 

(8) Potentially hazardous food, such as meat and milk
products, must be stored at 45 degrees Fahrenheit or below. Hot food must
be kept at 140 degrees Fahrenheit or above during preparation and serving. 
(9) Freezers must be kept at a temperature of 0 degrees
Fahrenheit or below and refrigerators must be 45 degrees Fahrenheit or below.
Thermometers must be placed in the warmest area of the refrigerator and freezer
to assure proper temperature. 

(10) Food must be prepared and served with the least
possible manual contact, with suitable utensils, and on surfaces that prior
to use have been cleaned, rinsed, and sanitized to prevent cross-contamination. 
(11) Raw foods must be washed before preparation. 

(12) Food service employees, while infected with a disease
in a communicable form that can be transmitted by foods, or who is a carrier
of organisms that cause such a disease or while afflicted with a boil, an
infected wound, or an acute respiratory infection, must not work in the food
service area in any capacity in which there is a likelihood of such person
contaminating food or food-contact surfaces with pathogenic organisms or 
transmitting
disease to other persons. 

(13) Effective hair restraints must be worn to prevent
the contamination of food. 

(14) Tobacco products must not be used in the food preparation
and service areas. 

(15) Kitchen employees must wash their hands before returning
to work after using the lavatory. 

(16) (No change.) 

(17) Sanitary dishwashing procedures and techniques must
be followed. 

(18) Facilities housing 17 or more residents must comply
with 25 TAC sec.sec.229.161-229.173 (Food Service Sanitation) and local
health ordinances or requirements must be observed in the storage, preparation,
and distribution of food; in the cleaning of dishes, equipment, and work area;
and in the storage and disposal of waste. 

(i) Infection control. 

(1) (No change.) 

(2) The facility must comply with departmental rules
regarding special waste in 25 TAC sec.sec.1.131-1.137 (Definition, Treatment,
and Disposition of Special Waste from Health Care Related Facilities). 

(3) The name of any resident of a facility with a reportable
disease as specified in 25 TAC sec.sec.97.1 - 97.13 (Control of Communicable
Diseases) shall be reported immediately to the city health officer, county
health officer, or health unit director having jurisdiction, and appropriate
infection control procedures shall be implemented as directed by the local
health authority. 

(4) The facility must have written policies for the control
of communicable disease in employees and residents, which includes tuberculosis
(TB) screening and provision of a safe and sanitary environment for residents
and employees. 

(A) If employees contract a communicable disease that is transmissible
to residents through food handling or direct resident care, the employee must
be excluded from providing these services as long as a period of communicability
is present. 

(B) (No change.) 

(C) The facility must screen all employees for tuberculosis
within two weeks of employment and annually, according to Center for Disease
Control (CDC) screening guidelines. All persons providing services under an
outside resource contract must, upon request of the facility, provide evidence
of compliance with this requirement. 

(D) All residents should be screened upon admission and after
exposure to tuberculosis, in accordance with the attending physician's 
recommendations
and CDC guidelines. 

(5) (No change.) 

(6) Universal precautions must be used in the care of
all residents. 

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.

Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809351
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

SUBCHAPTER D. Facility Construction
40 TAC sec.sec.92.61-92.63
The amendments are adopted under the Health and Safety Code,
Chapter 247, which authorizes the department to license personal care 
facilities,
and Human Resources Code, Title 2, Chapter 22, which authorizes the department
to administer public assistance programs. 

The amendments implement the Health and Safety Code, sec.sec.247.001-
247.066, and the Human Resources Code, sec.sec.22.001-22.030. 

sec.92.61. Introduction and Application. 
(a) (No change.) 

(b) Applicability of requirements for construction and life
safety. 

(1) All buildings or structures, new or existing, used as
a licensed personal care facility must be in accordance with these standards.
Any exceptions are specifically mentioned. 

(2) For existing buildings and structures which are converted
to personal care occupancy, no residents will be admitted until all standards
are met and approval for occupancy is granted by the licensing section of
the Texas Department of Human Services (DHS). 

(3) (No change.) 

(4) Buildings and structures must conform to the 1988
edition, of NFPA 101, as published by the National Fire Protection Association,
Inc., Batterymarch Park, Quincy, Massachusetts 02269, as follows. DHS has
the option, for new construction only, of accepting compliance with later
editions of the code, in their entirety, when required by local building 
authorities. 
(A) All Type A facilities and Type B small facilities must
conform to Chapter 21. 

(B) Type B large facilities must conform to Chapters 21 and
12 (limited care, as defined by the NFPA 101, requirements may be used). 
(C) Other chapters, sections, subsections, or paragraphs of
the NFPA 101 such as Chapters 1 through 7 and Chapter 31, must apply as 
referenced
or intended for their relation to Chapters 21, 12 and 18. 

(D) Buildings which contain living units with independent
cooking and bathroom facilities shall conform with NFPA 101, Chapters 21 and
18, New Apartment Buildings, Option #2, "Buildings provided with a complete
automatic fire detection and notification system," as a minimum. 

(5) New construction is subject to local codes.
The description of the occupancy may vary with local codes. In the absence
of local codes or their enforcement for new construction, the department will
require conformance to the fundamentals of the following codes: 

(A)-(C) (No change.) 

(D) illumination systems must be designed and installed in
accordance with the Lighting Handbook of the Illuminatory Engineering Society
(IES) of North America, except as may be modified in this subchapter. 

(6) An existing building either occupied as a personal
care facility at the time of initial inspection by DHS or converted to occupancy
as a personal care facility must meet all local requirements pertaining to
that building for that occupancy. DHS will require the facility sponsor or
licensee to submit evidence that local requirements are satisfied. When local
laws, codes or ordinances are more stringent than these standards for personal
care, the more stringent requirements will govern. 

(7) Buildings must be structurally sound with regard
to actual or expected dead, live, and wind loads according to applicable 
building
codes. 

(8) The facility must meet the provisions and requirements
concerning accessibility for individuals with disabilities in the following
laws: the Americans with Disabilities Act of 1990 (Public Law 101- 336; Title
42, United States Code, Chapter 126); Title 28, Code of Federal Regulations,
Part 35; Texas Civil Statutes, Article 9102; and Title 16, Texas Administrative
Code, Chapter 68. Plans for new construction, substantial renovations, 
modifications,
and alterations must be submitted to the Texas Department of Licensing and
Regulation (Attn: Elimination of Architectural Barriers Program) for 
accessibility
approval under Article 9102. 

(c) Provisional license. Existing facilities, i.e., facilities
that have residents but are not licensed as a personal care facility may be
issued a six-month provisional license, in accordance with sec.92.20 of
this title (relating to Provisional License), if the facility needs additional
time to comply with life safety code and physical plant standards. 

sec.92.62. General Requirements.
(a) General. The concept of the National Fire Protection Association
(NFPA) 101 Life Safety Code requirements for fire safety with regard to the
residents, is based on evacuation capability. In accordance with Chapter 21
of this title (relating to Residential Board and Care Occupancies), Type A
facilities are classified "slow" evacuation capability and Type B facilities
are classified "impractical" evacuation capability. 

(b) Evacuation procedures. Residents in Type A facilities
must be able to demonstrate to the Texas Department of Human Services (DHS)
that they can travel from their living unit to a centralized space, such as
lobby, living or dining room on the level of discharge within a 13- minute
period without continuous staff assistance. Elevators cannot be used as an
evacuation route. 

(c) Operational features. 

(1) All fires causing damage to the facility and/or equipment
must be reported to DHS within 72 hours. Any fire causing injury or death
to a resident shall be reported immediately. A telephone report must be followed
by a written report on a form which will be supplied by DHS. 

(2) Fire drills must be conducted at least four times
a year on each shift. The drills may be announced in advance to the residents.
The drills must involve the participation of the staff in accordance with
the emergency plan. Residents must be informed of evacuation procedures and
locations of exits. All fire drills must be documented on a form provided
by DHS. 

(3) Smoking regulations must be established, and smoking
areas must be designated for residents and staff. Ashtrays of noncombustible
material and safe design must be provided in smoking areas. 

(4) All facilities, except small, one-story facilities,
must post an emergency evacuation floor plan. 

(5) The administration must have in effect and available
to all supervisory personnel written copies of a plan for the protection of
all persons in the event of fire and for their remaining in place, for their
evacuation to areas of refuge, and from the building when necessary. The plan
must include special staff actions including fire protection procedures needed
to ensure the safety of any resident and must be amended or revised when needed.
All employees must be periodically instructed and kept informed with respect
to their duties and responsibilities under the plan. A copy of the plan must
be readily available at all times within the facility. 

(d) Construction. 

(1) There must be separation from other occupancies. A common
wall between a personal care facility and another occupancy must be not less
than a two-hour fire-rated partition. (The partition must be as defined by
National Fire Protection Association Standards.) A licensed nursing facility
or licensed hospital is not considered another occupancy for this purpose.
An exception is where an unlicensed occupancy occurs in the same building
or structure and is so intermingled that separate safeguards are impracticable.
The means of egress, construction, protection and other safeguards must comply
with the NFPA 101 requirements of the licensed occupancy. 

(2) Interior wall and ceiling surfaces must have as the
finished surface or as substrate or sheathing a fire resistance of not less
than that provided by 3/8" gypsum board (20 minute fire rating), unless approved
otherwise by DHS. A sprinkler system will not substitute for the minimum 
construction
requirements. An exception is Type B large facilities shall meet the 
construction
requirements of NFPA 101, Chapter 12, sec.12-1.6. 

(3) Flame spread rate requirements must be as specified
in NFPA 101, sec.6-5. Flame spread is the rate of fire travel along the
surface of a material. (This is different than other requirements for time-rated
"burn through" resistance ratings, such as one-hour rated.) Flame spread ratings
are Class A (0-25), Class B (26-75), and Class C (76-200). 

(4) Doors between resident rooms and corridors or public
spaces must be not less than 1-3/4" thick solid core wood construction or
20- minute fire-rated, self-closing or automatic-closing, and latch in their
frames. Exceptions are as follows. 

(A)-(C) (No change.) 

(D) In small and large Type B facilities protected throughout
by an approved automatic sprinkler system, the facility may have smoke resisting
doors. Door-closing devices are not required. 

(5) Upper floors must have at least two separate
approved stairs. Each stair must be arranged and located so that it is not
necessary to go through another room (such as bedroom or bath) to reach the
stair. All stairs must be provided with handrails and with normal lighting.
Refer to NFPA 101 for Class 'A' stair details. An exception is that for existing
16 beds or less: at least one main stair may be Class 'B'. Such stairs may
be constructed of wood. 

(6) All hazardous areas, as defined in the NFPA 101,
Chapter 21 or 12, must be one-hour fire-separated or provided with sprinkler
protection or both if considered severe. Gasoline, volatile materials, oil
base paint, or similar products must not be stored in the building housing
residents. 

(7) Exit signs, with emergency power, must be provided
in all large facilities and installed in accordance with NFPA 101, sec.5-10. 
(8) Emergency lighting must be provided in all buildings
with 25 or more rooms; in apartment buildings with 12 or more living units
or which are 3 or more stories in height; and in all large facilities that
are designed for Type B. The system must be installed in accordance with NFPA
101, sec.5-9. 

(e) Fire alarm and sprinkler systems. 

(1) Fire alarm and smoke detection system. Facilities licensed
for eight beds or less must provide a manual fire alarm system, with smoke
detection that complies with Household Fire Warning Equipment (NFPA 74), at
a minimum. For all other facilities, an underwriter's laboratory (U.L.) listed
manual fire alarm initiating system, with an interconnected automatic smoke
detection and alarm initiation system, must be provided in accordance with
the NFPA 101, sec.7-6. The operation of any alarm initiating device will
sound an audible/visual alarm(s) at the site. 

(A) Smoke detectors must be installed in resident bedrooms,
corridors, hallways, living rooms, dining rooms, offices, and public or common
areas. Service areas, such as kitchens, laundries and attached garages used
for car parking may have heat detectors in lieu of smoke detectors. Exceptions
are as follows. 

(i) Large facilities with apartment units may use listed smoke
detectors with an alarm device and separate heat detector contacts in the
living area. The smoke detectors must provide an audible signal within the
apartment, and annunciate at the main staff station or location. The heat
detector contacts must be connected into the fire alarm system and provide
a general alarm when activated. 

(ii) (No change.) 

(B) The fire alarm control panel must be visible to staff
at or near the staff area that is attended 24 hours a day. An exception to
this requirement is a fire alarm control panel that is monitored by a device
carried by the staff. 

(C) (No change.) 

(D) Emergency power source must be from approved storage batteries
or on-site engine-driven generator set. 

(E) The facility must have a written contract with a fire
alarm company or person licensed by the State of Texas to maintain the alarm
system semiannually. Inspections stipulated in the contract must be performed. 
(F) In large facilities, the fire alarm panel must indicate
as a separate zone, each floor and/or smoke compartment. Each zone must have
an alarm and trouble indication. 

(G) In large Type B facilities the fire alarm must automatically
notify the fire department in accordance with NFPA 101, sec.7-6.4. 

(2) Sprinkler systems. When installed or required,
sprinkler systems must meet the following criteria. 

(A)-(C) (No change.) 

(f) Site and location. 

(1) The facility must be serviced by a paid or volunteer fire
fighting unit as approved by DHS. Water supply for fire fighting purposes
must be as required and approved by the fire fighting unit. 

(2) Any site or building conditions that are a fire hazard,
health hazard, or physical hazard must have corrections made as determined
by DHS. 

(3) The facility must provide or arrange for nearby parking
spaces for private vehicles of residents and visitors. A minimum of one space
must be provided for each four beds or fraction thereof, or per local code,
whichever is more stringent. 

(4) Ramps, walks, and steps must be of slip-resistive
texture and uniform, without irregularities. Ramps must not exceed 1:12 slope,
and shall meet handicap standards for width. Guardrails, fences, or handrails
must be provided where grades make an abrupt change in level. 

(5) All outside areas, grounds, adjacent buildings, etc.,
on the site must be maintained in good condition and kept free of rubbish,
garbage, untended growth, etc., that may constitute a fire or health hazard.
Site grades must provide for water drainage away from the structure to prevent
ponding or standing water at or near the building. 

(g) Sanitation and housekeeping. 

(1) Waste water and sewage must be discharged into an approved
sewerage system or an onsite sewerage facility approved by the Texas Natural
Resource Conservation Commission or its authorized agent. 

(2) The water supply must be of safe, sanitary quality,
suitable for use, and adequate in quantity and pressure, and must be obtained
from a water supply system, the location, construction, and operation of which
are approved by DHS. 

(3) Waste, trash, and garbage must be disposed of from
the premises at regular intervals in accordance with state and local practices.
Excessive accumulations are not permitted. The facility must comply with 25
TAC sec.sec.1.131-1.137 (Definition, Treatment, and Disposal of Special
Waste from Health Care Related Facilities). 

(4) Operable windows must be insect screened. 

(5) An ongoing pest control program must be provided
by facility staff or by contract with a licensed pest control company. The
least toxic and least flammable effective chemicals must be used. 

(6) All bathrooms, toilet rooms, and other odor-producing
rooms or areas for soiled and unsanitary operations must be ventilated with
operable windows or powered exhaust to the exterior for odor control. An 
exception
is that small facilities may vent into an attic in accordance with the Uniform
Building Code or local building code. 

(7) In kitchens and in laundries, there must be procedures
utilized by facility staff to avoid cross-contamination between clean and
soiled utensils and linens. 

(8) The facility must be kept free of accumulations of
dirt, rubbish, dust, and hazards. Floors must be maintained in good condition
and cleaned regularly; walls and ceilings must be structurally maintained,
repaired, and repainted or cleaned as needed. Storage areas and cellars must
be kept in an organized manner. No storage will be permitted in the attic
spaces. 

(9) The facility must be capable of being ventilated
through the use of windows, mechanical ventilation, or a combination of both.
Interior areas designated for smoking within the building must have mechanical
ventilation directed to the exterior to remove smoke at the rate of 10 air
changes per hour. 

(10) In addition to janitor closet(s) called for in specific
departments of large facilities, other janitor closet(s) must be provided
throughout the facility to maintain a clean and sanitary environment. Each
janitor closet must have a service sink and forced air ventilation ducted
to the outside. 

(11) A public/staff toilet, i.e. commode and lavatory,
complying with accessibility standards is required for every large facility
up to and including 60 beds. Facilities over 60 beds must have separate public
and staff toilets in addition to the staff toilet(s) required for the dietary
staff. 

(12) If the facility provides linens to the residents,
the quantity of available linen must meet the sanitary and cleanliness needs
of the residents. Clean linens must be stored in a clean area. 

(h) General safety features. 

(1) The building must be kept in good repair; electrical,
heating, and cooling must be maintained in a safe manner. DHS may require
the facility sponsor or licensee to submit evidence to this effect, consisting
of a report from the fire marshal, city/county building official having 
jurisdiction,
licensed electrician, or a registered professional engineer. Use of electrical
appliances, devices, and lamps must be such as not to overload circuits or
cause excessive lengths of extension cords. 

(2) Existing furnace and water heater installations may
be continued in service, subject to approval by DHS. 

(3) In large facilities, all draperies and other window
coverings in public or common areas, and in bedrooms and/or living units in
which smoking is permitted must be flame resistant. 

(4) In large facilities, all new floor carpet installed
in public or common spaces after the initial inspection by the department
must be Class I or II based on the "Critical Radiant Flux" ratings. Proper
documentation must be provided. 

(5) Open flame heating devices are prohibited. All fuel
burning heating devices must be vented. Working fireplaces are acceptable
if of safe design and construction and if screened or otherwise enclosed. 
(6) There must be at least one telephone in the facility
available to both staff and residents for use in case of an emergency. Emergency
telephone numbers, including at least fire, police, ambulance, EMS, and poison
control center, must be posted conspicuously at or near the telephone. 

(7) An initial pressure test of facility gas lines from
the meter must be provided. Additional pressure tests will be required when
the facility has major renovations or additions where the gas service is 
interrupted.
All gas heating systems must be checked prior to the heating season for proper
operation and safety by persons who are licensed or approved by the State
of Texas to inspect such equipment. A record of this service must be maintained
by the facility. Any unsatisfactory conditions must be corrected promptly. 
(8) Exterior and interior stairs must have handrails
that are firmly secured to prevent falls. 

(9) Cooling and heating must be provided for occupant
comfort. Conditioning systems must be capable of maintaining the comfort ranges
of 68 degrees Fahrenheit to 82 degrees Fahrenheit in resident-use areas. 
(10) The Illumination Engineering Society of North America
recommendations must be followed to achieve proper illumination characteristics
and lighting levels throughout the facility. Minimum illumination must be
10-foot candles in resident rooms during the day and 20 foot candles in 
corridors,
staff stations, dining rooms, lobbies, toilets, bathing facilities, laundries,
stairways and elevators during the day. Illumination requirements for these
areas apply to lighting throughout the space and should be measured at 
approximately
30 inches above the floor anywhere in the room. Minimum illumination for 
medication
preparation or storage areas, kitchens, and staff station desks must be 50-foot
candles during the day. Illumination requirements for these areas apply to
the task performed and should be measured on the tasks. 

(11) All buildings three floors or higher and in facilities
that provide services, treatment, or social activities on floors above or
below the level of discharge and which house mobility impaired residents must
have a passenger elevator. The lowest level of discharge will be the first
floor for determining floor level. 

(12) Floor, ceiling, and wall finish materials must be
complete and in place to provide a sanitary and structurally safe environment. 
(i) Portable fire extinguishers. Portable fire extinguishers
must be provided and maintained to comply with the provisions of the National
Fire Protection Association (NFPA) 10. This includes such items as type of
extinguishers (A, B, or C), location and spacing, mounting heights, monthly
inspections by staff, yearly inspections by a licensed agent (with any necessary
servicing), and hydrostatic testing as recommended by the manufacturer. 

(1) Extinguishers in resident corridors must be spaced so
that travel distance is not more than 75 feet. The minimum size of extinguishers
must be either 2 1/2 gallon for water type or five pound for ABC type. In
large facilities, at least one portable Underwriters Laboratory (U.L.) or
factory mutual (F.M.)-approved five-pound Class B:C dry chemical fire 
extinguisher,
rechargeable type, is required in each laundry, kitchen and walk-in mechanical
room. 

(2)-(7) (No change.) 

(j) (No change.) 

(k) Accessibility provisions. The physical plant of all large
facilities and all other facilities housing residents with physical disabilities
and/or mobility impairments must comply with applicable federal, state and
local requirements for persons with disabilities. 

(l) Resident accommodations. 

(1) Resident bedrooms. 

(A) Bedroom usable floor space for Type A facilities must
not be less than 80 square feet for a one-bed room and not less than 60 square
feet per bed for a multiple bed room. A bedroom must be not less than eight
feet in the smallest dimension, unless specifically approved otherwise by
the department. Bedrooms for persons with physical disabilities and/or mobility
impairment must meet accessibility standards for access around the bed or
beds, i.e., minimum of 3'-0" clear width for access aisles. 

(B) Bedroom usable square footage for Type B facilities must
be not less than 100 square feet per bed for a single-bed room and not less
than 80 square feet per bed for a multiple-bed room. Bedrooms for persons
with physical disabilities and/or mobility impairment must meet accessibility
standards for access around the bed or beds, i.e., minimum of 3'-0" clear
width for access aisles. A bedroom must not be less than ten feet in the 
smallest
dimension unless specifically approved otherwise by DHS. 

(C) (No change.) 

(D) A facility must have no more than 50% of its beds in bedrooms
of three or more. A bedroom must have no more than four beds. 

(E) Each bedroom must have at least one operable window with
outside exposure. The window sill must be no higher than 44" from the floor
and must be at or above grade level. The window will be operable from the
inside, without the use of tools or special devices, and provide an operable
section with a clear opening of not less than 5.7 square feet (minimum width
of 20" x 41.2" high and minimum height of 24" x 34.2" wide). Windows required
for evacuation will not be blocked by bars, shrubs, or any obstacle that would
impede evacuation. Exceptions are as follows. 

(i) In large Type B facilities, the window must permit the
venting of products of combustion in accordance with the Life Safety Code
for Healthcare Occupancy. 

(ii) In existing buildings, if the window is not required
for the secondary means of escape, the window size and sill height requirements
will not apply provided the windows meet the Uniform Building Code requirements
or local building code. 

(F) In the event the resident does not provide his or her
own furnishings, the facility must provide for each resident a bed with 
mattress,
chair, table or dresser, and enclosed closet space for clothing and personal
belongings. Drawer space must be provided. Furnishings provided by the facility
must be maintained in good repair. 

(G) All resident rooms must open upon an exit, corridor, living
area, or public area and must be arranged for convenient resident access to
dining and recreation areas. 

(H) A staff or attendant area must be provided on each floor
or in each separate building. The area must consist of a desk or writing surface
and telephone. An exception is that Type A facilities, two- story or less
in height, with separate buildings grouped together, and connected by covered
walks, need not have staff or attendant areas on each floor or in each building,
provided that the areas are not more than 200 feet walking distance from the
furthest resident living unit. The areas must have a communication system
and fire alarm annunciation indicating the units served. 

(I) Facilities which consist of two or more floors or separate
buildings must have a communication system from each resident living unit
to a central staff location. This communication system may be a direct 
telephone,
nurse call, or intercom. 

(2) Resident toilet and bathing facilities. 

(A) All bedrooms must be served by separate private, connecting,
or general toilet rooms for each sex (if facility houses both sexes). General
toilet room or bathing room must be accessible from a corridor or public space.
A lavatory must be readily accessible to each water closet. At least one water
closet, lavatory, and bathing unit must be provided on each sleeping floor
accessible to residents of that floor. 

(B) (No change.) 

(C) Privacy partitions and/or curtains must be provided at
water closets and bathing units in rooms for multi-resident use. 

(D) Tubs and showers must have non-slip bottoms or floor surfaces,
either built-in or applied to the surface. 

(E) (No change.) 

(F) Towels, soap, and toilet tissue must be available at all
times for individual resident use. 

(3) Resident living areas. 

(A) Social-diversional spaces such as living rooms, day rooms,
lounges, sun rooms, etc., must be provided and have appropriate furniture.
A minimum of 120 square feet must be provided in at least one space regardless
of number of residents. This space must have exterior windows providing a
view of the outside. 

(B) The total space requirement for social-diversional areas
must be provided on a sliding scale as follows: 

Figure: 40 TAC sec.92.62(l)(3)(B) 

(C) (No change.) 

(4) Resident dining areas. 

(A) A dining area must be provided and have appropriate furnishings.
A minimum of 120 square feet must be provided in at least one space, regardless
of number of residents. This space must have exterior windows providing a
view of the outside. 

(B) Access to a dining area from the resident living units
or bedrooms must be covered. 

(C) The total space requirement for a dining area must be
provided on a sliding scale as follows: 

Figure: 40 TAC sec.92.62(l)(4)(C) 

(D) (No change.) 

(5) Storage areas. The facility must provide sufficient
separate storage spaces or areas for the following: 

(A) (No change.) 

(B) locked areas for medications and medical supplies. Poisons
must be stored in a locked area and separate from all medications and 
preparation; 
(C)-(I) (No change.) 

(6) Kitchen. 

(A) The facility must have a kitchen or dietary area to meet
the general food service needs of the residents. It must include provisions
for the storage, refrigeration, preparation, and serving of food; for dish
and utensil cleaning; and for refuse storage and removal. Exception: Food
may be prepared off-site or in a separate building provided that the food
is served at the proper temperature and transported in a sanitary manner. 
(B) Kitchens (main/dietary) for facilities serving 17 or more
non- employees per meal, on a routine basis, must be as follows. 

(i) Kitchens will be evaluated on the basis of their performance
in the sanitary and efficient preparation and serving of meals to residents
and compliance with provisions covering dietary service in sec.92.41(h)(18)
of this title (relating to Standards for Type A and Type B Personal Care 
Facilities). 
(I) Consideration must be given to planning for the type of
meals served, the overall building design, the food service equipment, 
arrangement,
and the work flow involved in the preparation and delivery of food. 

(II) Plans must include a detailed kitchen layout designed
by a registered or licensed dietitian or architect having knowledge in the
design of food service operations. 

(ii) Kitchens must be designed so that room temperature, at
peak load (summertime), must not exceed 85 degrees Fahrenheit measured over
the room at the five foot level. The amount of supply air must take into account
the large quantities of air that may be exhausted at the range hood and 
dishwashing
area. 

(iii) Facilities for washing and sanitizing dishes and cooking
utensils must be provided. The kitchen must contain a multi-compartment pot
sink large enough to immerse pots and pans, and a mechanical dishwasher for
washing and sanitizing dishes. Separation of soiled and clean dish areas must
be maintained, including air flow. 

(iv) A vegetable preparation sink must be provided. It must
be separate from the pot sinks. 

(v) A supply of hot and cold water must be provided. Hot water
for sanitizing purposes must be 180 degrees Fahrenheit or the manufacturer's
suggested temperature for chemical sanitizers. 

(vi) The kitchen must be provided with a hand-washing lavatory
in the food preparation area with hot and cold water, soap, towel dispenser,
and waste receptacle. The dish room area must have ready access to a handwashing
lavatory. 

(vii) Staff restroom facilities with lavatory must be directly
accessible to kitchen staff without traversing resident use areas. The rest
room must not open directly into the kitchen (i.e., provide a vestibule).
An exception is that staff rest rooms in existing facilities must be provided,
but may be located outside of the kitchen area. 

(viii) Janitorial facilities must be provided exclusively
for the kitchen and must be located in the kitchen area. An exception is that
Janitorial closets in existing facilities may be located outside of the kitchen
area provided sanitary procedures are used to reduce the possibility of cross-
contamination. 
(ix) Non-absorbent smooth finishes or surfaces must be used
on kitchen floors, walls and ceilings. Such surfaces must be capable of being
routinely cleaned and sanitized to maintain a healthful environment. Counter
and cabinet surfaces, inside and outside, must also have smooth, cleanable,
non-porous finishes. 

(x) Doors between kitchen and dining or serving areas must
have 1/4-inch fixed wire glass view panel mounted in a steel frame. 

(xi) A garbage can or cart washing area with drain and hot
water must be provided either on the interior or exterior of the facility. 
(xii) Floor drains must be provided in the kitchen and dishwashing
areas. Exception: Floor drains are not required in existing facilities provided
the floors are kept clean. 

(xiii) A commercial range must be provided and equipped with
a commercial range hood and exhaust designed and installed in accordance with
NFPA 96. Small facilities with residential ranges may have residential range
hoods, if they meet the Uniform Building Code (or local building code). 

(xiv) Grease traps must be provided as required. 

(C) Food storage areas for large facilities must be as follows. 
(i) Food storage areas must provide for storage of a four-day
minimum supply of non-perishable foods at all times. 

(ii) Shelves must be adjustable wire type. An exception is
that existing facilities with wood shelves may continue to use the shelves
provided they are kept sealed and clean. 

(iii) (No change.) 

(iv) Food must not be stored on the floor. Dollies, racks,
pallets, or wheeled containers may be used to elevate foods not stored on
shelving. 

(v) Dry foods storage must have an effective venting system
to provide for positive air circulation. 

(vi) The maximum room temperature for food storage must not
exceed 85 degrees Fahrenheit at any time. The measurement must be taken at
the highest food storage level, but not less than five feet from the floor. 
(vii) (No change.) 

(D) Auxiliary serving kitchens (not contiguous to food preparation/serving
area) must be as follows. 

(i) Where service areas other than the kitchen are used to
dispense foods, these must be designated as food service areas and must have
equipment for maintaining required food temperatures while serving. 

(ii) Separate food service areas must have handwashing facilities
as part of the food service area. 

(iii) Finishes of all surfaces, except ceilings, must be the
same as those required for dietary kitchens or comparable areas. 

(7) Laundry/linen services. 

(A) A large personal care facility which co-mingles and processes
laundry on-site in a central location must comply with the following. 

(i) The laundry must be separated and provided with sprinkler
protection if located in the main building. (Separation must consist of a
one-hour fire rated partition carried to the underside of the floor or roof
deck above.) Access doors must be from the exterior or interior non-resident
use areas, such as a small vestibule or service corridor. 

(ii) The laundry must be provided with the following physical
features: 

(I) a soiled linen receiving, holding, and sorting room with
a floor drain and forced exhaust to the exterior which must operate at all
times there is soiled linen being held in this area. (This may be combined
with the washer section.); 

(II)-(IV) (No change.) 

(B) If linen is processed off the site, the following must
be provided on the premises: 

(i)-(ii) (No change.) 

(C) Resident-use laundry, if provided, must utilize residential
type washers and dryers. If more than three washers and three dryers are located
in one space, the area must be one-hour fire separated or provided with 
sprinkler
protection. 

sec.92.63. Construction and Initial Survey of Completed
Construction.
(a) Construction phase. 

(1) The Texas Department of Human Services (DHS), Long Term
Care- Regulatory, Licensing Section in Austin, Texas, must be notified in
writing of construction start. 

(2) All construction must be done in accordance with
minimum licensing requirements. It is the sponsor's responsibility to employ
qualified personnel to prepare the contract documents for construction of
a new facility or remodeling of an existing facility. Contract documents for
additions and remodeling and for the construction of an entirely new facility
must be prepared by an architect licensed by the Texas State Board of 
Architectural
Examiners. Drawings must bear the seal of the architect. Certain parts of
final plans, designs, and specifications must bear the seal of a registered
professional engineer approved by the State Board of Registration for 
Professional
Engineers to operate in Texas. These certain parts include sheets and sections
covering structural, electrical, mechanical, and sanitary engineering. 

(A) Remodeling is the construction, removal, or relocation
of walls and partitions; the construction of foundations, floors, or ceiling-
roof assemblies; or the expanding or altering of safety systems (including,
but not limited to, sprinkler, fire alarm, and emergency systems). 

(B) (No change.) 

(b) (No change.) 

(c) Initial survey of completed construction. 

(1) Upon completion of construction, including grounds and
basic equipment and furnishings, an initial architectural inspection of the
facility, including additions or remodeled areas, is required to be performed
by DHS prior to occupancy. The completed construction must have the written
approval of the local authorities having jurisdiction, including the fire
marshal, health department, and building inspector. 

(2) The Licensure Section, Long Term Care-Regulatory,
must be notified of completion of construction or pending completion in order
to facilitate the initial architectural inspection. DHS will schedule an 
inspection
as soon as possible. 

(3) After the completed construction has been surveyed
by DHS and found acceptable, this information will be conveyed to the licensing
officer of DHS as part of the information needed to issue a license to the
facility. In the case of additions or remodeling of existing facilities, a
revision or modification to an existing license may be necessary. Note that
the building, grades, drives, and parking must essentially be 100% complete
at the time of this initial visit for occupancy approval and licensing, 
including
basic furnishings and operational needs. A facility may accept up to three
residents between the time it receives initial approval from the architectural
section and the time the license is issued. 

(4) The following documents must be available to DHS's
surveyor at the time of the survey of the completed building: 

(A)-(C) (No change.) 

(D) approval of the completed sprinkler system installation
by the designing engineer. A copy of the material list and test certification
must be available; 

(E)-(F) (No change.) 

(G) a written statement from an architect/engineer stating
that, from periodic onsite observation visits, the facility as constructed
is, to the best of his/her knowledge and belief, in substantial compliance
with his/her construction documents, the Life Safety Code, DHS licensure 
standards,
and local codes; and 

(H) (No change.) 

(d) Nonapproval of new construction. 

(1)-(2) (No change.) 

(3) Copies of reduced size floor plans on an 8 1/2 inch
by 11 inch sheet must be submitted in duplicate to the department for 
record/file
use and for the facility's use and for facility's use for evacuation plan,
fire alarm zone identification, etc. The plan must contain basic legible 
information
such as scale, room usage names, actual bedroom numbers, doors, windows, and
any other pertinent information. 

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.

Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809352
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

SUBCHAPTER E. Inspections, Surveys, and Visits
40 TAC sec.92.81, 92.82
The amendments are adopted under the Health and Safety Code,
Chapter 247, which authorizes the department to license personal care 
facilities,
and Human Resources Code, Title 2, Chapter 22, which authorizes the department
to administer public assistance programs. 

The amendments implement the Health and Safety Code, sec.sec.247.001-
247.066, and the Human Resources Code, sec.sec.22.001-22.030. 

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.
Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809353
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

SUBCHAPTER F. Abuse, Neglect and Exploitation; Complaint and
Incident Reports and Investigations
40 TAC sec.92.101
The repeal is adopted under the Health and Safety Code, Chapter
247, which authorizes the department to license personal care facilities,
and Human Resources Code, Title 2, Chapter 22, which authorizes the department
to administer public assistance programs. 

The repeal implements the Health and Safety Code, sec.sec.247.001-
247.066, and the Human Resources Code, sec.sec.22.001-22.030. 

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.
Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809354
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

40 TAC sec.sec.92.101-92.103, 92.106
The amendments and new section are adopted under the Health
and Safety Code, Chapter 247, which authorizes the department to license 
personal
care facilities, and Human Resources Code, Title 2, Chapter 22, which authorizes
the department to administer public assistance programs. 

The amendments and new section implement the Health and Safety Code, 
sec.sec.247.001-247.066,
and the Human Resources Code, sec.sec.22.001-22.030. 

sec.92.102. Abuse, Neglect, or Exploitation Reportable
to the Texas Department of Human Services (DHS) by Facilities. 
(a) Any facility staff who has reasonable cause to believe
that a resident is in a state of abuse, neglect, or exploitation must report
the abuse, neglect, or exploitation to DHS's state office at (512) 438-2629
and must follow the facility's internal policies regarding abuse, neglect,
or exploitation. 

(b) The following information must be reported to DHS: 

(1) name, age, and address of the resident; 

(2) name and address of the person responsible for the
care of the resident, if available; 

(3) nature and extent of the elderly or disabled person's
condition; 

(4) basis of the reporter's knowledge; and 

(5) any other relevant information. 

(c) The facility must investigate the alleged abuse or neglect
and send a written report of the investigation to DHS's state office no later
than the fifth calendar day after the oral report. 

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.
Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809355
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

SUBCHAPTER G. Miscellaneous Provisions
40 TAC sec.sec.92.124, 92.125, 92.127
The amendments are adopted under the Health and Safety Code,
Chapter 247, which authorizes the department to license personal care 
facilities,
and Human Resources Code, Title 2, Chapter 22, which authorizes the department
to administer public assistance programs. 

The amendments implement the Health and Safety Code, sec.sec.247.001-
247.066, and the Human Resources Code, sec.sec.22.001-22.030. 

sec.92.124. Procedures for Inspection of Public Records. 
(a) (No change.) 

(b) Long Term Care - Regulatory, Texas Department of Human
Services (DHS), will be responsible for the maintenance and release of records
on licensed facilities, and other related records. 

(c) The application for inspection of public records is subject
to the following criteria. 

(1) The application must be made to Long Term Care - Regulatory,
Texas Department of Human Services, P.O. Box 149030 (E-349), Austin, Texas
78714-9030. 

(2) The requestor must identify himself/herself. 

(3) The requestor must give reasonable prior notice of
the time for inspection and/or copying of records. 

(4) The requestor must specify the records requested. 
(5) (No change.) 

(6) DHS must provide the requested records as soon as
possible. However, if the records are in active use, or in storage, or time
is needed for proper deidentification or preparation of the records for 
inspection,
DHS must so advise the requestor and set an hour and date within a reasonable
time when the records will be available. 

(d)-(e) (No change.) 

(f) Charging for copies of records must be in accordance with
the following criteria. 

(1) (No change.) 

(2) If the requestor wants to request copies of a record,
the requestor will specify in writing the records to be copied on an appropriate
DHS form, and DHS will complete the form by specifying the cost of the records
which the requestor must pay in advance. Checks and other instruments of payment
will be made payable to the Texas Department of Human Services. 

(3) Any expenses for standard-size copies incurred in
the reproduction, preparation, or retrieval of records must be borne by the
requestor on a cost basis in accordance with costs established by the State
Purchasing and General Services Commission or the department for office machine
copies. 

(4)-(5) (No change.) 

(g) (No change.) 

sec.92.125. Resident's Bill of Rights and Provider
Bill of Rights.
(a) Resident's bill of rights. 

(1) Each personal care facility must post the resident's bill
of rights, as provided by the Texas Department of Human Services (DHS), in
a prominent place in the facility and written in the primary language of each
resident. 

(2) (No change.) 

(3) The resident's bill of rights must provide that each
resident in the personal care facility has the right to: 

(A)-(C) (No change.) 

(D) be treated with respect, consideration, and recognition
of his or her dignity and individuality. A resident must receive personal
care and private treatment in a safe and decent living environment. 

(E)-(F) (No change.) 

(G) be encouraged and assisted in the exercise of his or her
rights. A resident may present grievances on behalf of the resident or others
to the manager, state agencies, or other persons without threat of reprisal
in any manner. The person providing services must develop procedures for 
submitting
complaints and recommendations by residents and for assuring a response by
the person providing services; 

(H)-(J) (No change.) 

(K) manage his or her financial affairs, or must be given
at least a quarterly accounting of financial transactions made on his or her
behalf by the facility should the facility accept his or her written delegation
of this responsibility to the facility for any period of time in conformance
with state law; 

(L)-(X) (No change.) 

(Y) not be transferred or discharged, except in an emergency
situation. The responsible party of the resident and the attending physician
must be notified immediately; 

(Z)-(BB) (No change.) 

(b) Provider's bill of rights. 

(1) Each personal care facility must post a providers' bill
of rights in a prominent place in the facility. 

(2) The providers' bill of rights must provide that a
provider of personal care services has the right to: 

(A)-(B) (No change.) 

(C) terminate a contract immediately, after notice to the
department, if the provider finds that a resident creates a serious or immediate
threat to the health, safety, or welfare of other residents of the personal
care facility. During evening hours and on weekends or holidays, notice to
DHS must be made to 1-800-458-9858; 

(D)-(J) (No change.) 

sec.92.127. Required Postings. 
Each facility must prominently and conspicuously post for display in
a public area of the facility that is readily available to residents, employees,
and visitors: 

(1)-(2) (No change.) 

(3) a notice in the form prescribed by the department
stating that inspection and related reports are available at the facility
for public inspection and providing the department's toll-free telephone number
that may be used to obtain information concerning the facility; 

(4) a copy of the most recent inspection report relating
to the facility; 

(5) Resident Bill of Rights; 

(6) Provider Bill of Rights; and 

(7) the telephone number of the Office of the State Long
Term Care Ombudsman. 

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.

Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809356
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

40 TAC sec.92.129
The repeal is adopted under the Health and Safety Code, Chapter
247, which authorizes the department to license personal care facilities,
and Human Resources Code, Title 2, Chapter 22, which authorizes the department
to administer public assistance programs. 

The repeal implements the Health and Safety Code, sec.sec.247.001-
247.066, and the Human Resources Code, sec.sec.22.001-22.030. 

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.
Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809357
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

SUBCHAPTER H. Enforcement
40 TAC sec.sec.92.153-92.155
The new section and amendments are adopted under the Health
and Safety Code, Chapter 247, which authorizes the department to license 
personal
care facilities, and Human Resources Code, Title 2, Chapter 22, which authorizes
the department to administer public assistance programs. 

The new section and amendments implement the Health and Safety Code, 
sec.sec.247.001-247.066,
and the Human Resources Code, sec.sec.22.001-22.030. 

sec.92.154. Referrals. 
The Texas Department of Human Services (DHS) may refer a facility to
the attorney general or local prosecuting authority for a temporary restraining
order and/or injunction, as appropriate, under the Texas Health and Safety
Code, sec.247.044 when a violation creates an immediate threat or threat
to the health and safety of residents, a facility is operating without a 
license,
or the department is denied entry to a facility that is alleged to be operating
without a license. DHS may refer a facility that is operating without a license
to the district attorney, county attorney, city attorney, or the attorney
general for a civil penalty of $1000 to $10,000 per day under the Texas Health
and Safety Code, sec.247.045. 

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.
Filed with the Office of the Secretary of State on June
10, 1998.
TRD-9809358
Glenn Scott

General Counsel, Legal Services

Texas Department of Human Services

Effective date: August 1, 1998

Proposal publication date: March 13, 1998

For further information, please call: (512) 438-3765

PART II. Texas Rehabilitation Commission
CHAPTER 106.Contract Administration
SUBCHAPTER A.Acquisition of Client Goods and Services
40 TAC sec.106.3
The Texas Rehabilitation Commission adopts an amendment to
sec.106.3, concerning acquisition of client goods and services, with changes
to the proposed text as published in the May 22, 1998, issue of the 
Texas Register (23 TexReg 5390). 

In accordance with the Appropriations Act, sec.167, the Commission has
reviewed the section and has determined that it should be readopted. 

The adopted section deletes language from subsection (c)(3) and adds a
new paragraph (6). 

No comments were received regarding adoption of the amendment.

The amendment is adopted under the Texas Human Resources Code,
Title 7, Chapter 111, sec.111.018 and sec.111.023, House Bill Number 1,
Article IX, sec.167, which provides the Texas Rehabilitation Commission
with the authority to promulgate rules consistent with Title 7, Texas Human
Resources Code. 

sec.106.3. Criteria for Determining When a Contract
Is Required. 
(a) If the business relationship with the other party involves
financial assistance and the other party is responsible for administering
the program, then the appropriate instrument to establish the relationship
with the other party is a contract. 

(b) If the business relationship with the other party involves
purchase of client goods or services: 

(1) and the services are allowed by state or federal law; 
(2) and the services are available to the general public
then the appropriate instrument to establish the relationship with the other
party is a purchase order, and no additional express contract is required. 
(c) If the business relationship with the other party involves
purchase of client goods or services and one of the following conditions is
met: 

(1) a contract is required by state or federal law; 

(2) special or technical goods or services provided by
another state agency; 

(3) the goods or services are provided according to Commission
designated standards and criteria; 

(4) the need exists to provide special protection to
the Commission or Commission clients; 

(5) the need exists to clearly differentiate employee
versus independent contractor status; then the appropriate instrument to 
establish
the relationship with the other party is an express contract; 

(6) defined high risk factors, or other conditions, exist
that would make the establishment of an express contract in the best interests
of the Commission; then the appropriate instrument to establish the relationship
with the other party is an express contract. 

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.

Filed with the Office of the Secretary of State on June
22, 1998.
TRD-9809972
Charles Schiesser

Chief of Staff

Texas Rehabilitation Commission

Effective date: July 12, 1998

Proposal publication date: May 22, 1998

For further information, please call: (512) 424-4050