Adopted Sections 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 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 463. Applications 22 TAC sec.463.6 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.6, concerning experience, without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6898). The amendment is adopted to change the effective date to 1995 in order not to penalize those applicants who have already begun their internship programs but will not be eligible to apply for licensure prior to August 31, 1993; and, to clarify how persons employed in public school districts can satisfy the board's experience requirements. The amendment will clarify the board's requirements for licensure so that potential applicants will place themselves in appropriate work settings to obtain experience that will be acceptable to the board. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this state, which are reasonably necessary for the proper performance of its duties and regulation of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1992. TRD-9200401 Patricia S. Bizzell Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: January 31, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 835-2036 22 TAC sec.463.25 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.25, concerning criteria for oral examiners, without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6899). The amendment is adopted to clarify that in order to qualify as an oral examiner, the psychologist must be currently licensed and actively practicing in his/her area of expertise and training. The amendment will insure that examiners are experienced and qualified to administer the oral examination. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this state, which are reasonably necessary for the proper performance of its duties and regulation of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1992. TRD-9200405 Patricia S. Bizzell Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: January 31, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 835-2036 Chapter 465. Rules of Practice 22 TAC sec.465.21 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.465.21, inactive status, without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6899). The amendment addresses the requirements of the board for a certificand and/or licensee who places his/her certificate/license on an inactive status. The amendment provides an avenue for the board to review the credentials of persons who have not been practicing psychology for at least two years. It will protect the public to insure that services are provided by persons who remain current with professional standards. The rule will be enforced from the date of adoption; it will not effect those persons who have placed their license/certificate on an inactive status. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this state, which are reasonably necessary for the proper performance of its duties and regulation of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1992. TRD-9200404 Patricia S. Bizzell Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: January 31, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 835-2036 22 TAC sec.465.28 The Texas State Board of Examiners of Psychologists adopts new sec.465.28 concerning career and vocational counseling, without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6899). The new section enables psychologists to receive training in their doctoral programs to do career and vocational counseling. The new section will put the public on notice that psychologists are trained in career and vocational counseling within their doctoral programs. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this state, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1992. TRD-9200406 Patricia S. Bizzell Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: January 31, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 835-2036 Chapter 473. Fees 22 TAC sec.473.1 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.473.1, concerning fees, without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6900). The amendment will attach a fee to a new requirement of the Psychologists' Certification and Licensing Act passed by the 72nd Legislature. The amendment will allow psychologists from other states to be considered for licensure by reciprocity. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this state, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1992. TRD-9200403 Patricia S. Bizzell Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: January 31, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 835-2036 22 TAC sec.473.6 The Texas State Board of Examiners of Psychologists adopts new sec.473.6, concerning fees, without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6900). The new section will attach a fee to a new requirement of the Psychologists' Certification and Licensing Act passed by the 72nd Legislature. The new section will allow psychologists from other states to be considered for licensure by reciprocity. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this state, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1992. TRD-9200402 Patricia S. Bizzell Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: January 31, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 835-2036 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 5. Property and Casualty Insurance Subchapter G. Workers' Compensation Insurance Sale of Substitutes to Workers' Compensation Insurance 28 TAC sec.5.6302 The State Board of Insurance of the Texas Department of Insurance adopts new sec.5.6302, concerning sale of substitutes to workers' compensation insurance, without changes to the proposed text as published in the September 13, 1991, issue of the Texas Register (16 TexReg 5054). The new section is necessary to conform the requirements of the board's rules to legislative enactments concerning workers' compensation insurance. Texas Civil Statutes, Article 8308, allows an employer who is not required to have workers' compensation insurance to obtain insurance coverage on employees so long as the insurance is not represented as providing workers' compensation coverage as authorized by workers' compensation statutes. Section 5.6302 provides that certain policies of insurance must contain language that decreases the possibility that a consumer or policyholder may misunderstand the effect of an insurance policy. The new section provides that no person, agent, or entity may represent any policy of insurance as a substitute for a policy of workers' compensation insurance. It also requires that all policies of insurance which provide benefits to employees shall include on the face page of the policy and on all advertising and marketing materials a notice indicating that the policy is not a policy of workers' compensation insurance and that the employer does not become a subscriber to the system by purchasing the policy. The new section also requires similar language on policies of insurance, including surplus lines policies, which provide employers' liability coverage which indemnify employers for costs of employee sickness or injuries. The new section also requires a similar disclaimer to appear on certificates issued to the policyholder's employees. One set of comments was received regarding adoption of the section. The Texas Life Insurance Association (TLIA) objected to the section as proposed. TLIA objected to the rule's application to individual and group health insurance policies because the majority of those policies exclude coverage for on-the-job injuries and as such could not be marketed as a workers' compensation policy. Second, TLIA said the rule should attempt to seek notification of employers and employees who are being encouraged to drop workers' compensation insurance, rather that attempt to do so by the policy language mandated by the rule. Third, TLIA also objected to specifying a certain size type on such policy notification, claiming that it could increase the cost of doing business. Finally, TLIA maintained that the employer, who controls the decision whether to subscribe to the workers' compensation system, should be responsible for communicating the effect of that decision to his workers. The board disagrees with these comments. The board believes it is necessary to include the notice language on accident and health policies because of the possibility that some employees may be misled into believing that their employer is a workers' compensation subscriber. Despite the fact that the new workers' compensation statute requires an employer to so notify its employees, the board believes the rule provides an additional safeguard. For the same reason, the board feels it is reasonable to require that the notice language be in 10-point bold-face type. The board also believes that the value of such notification outweighs any potential cost to the insurer. The new section is adopted under the Insurance Code, Article 1.04, which authorizes the State Board of Insurance to determine rules in accordance with the laws of this state and under Texas Civil Statutes, Article 8308 sec.3.42, which allow an employer to obtain insurance coverage on employees so long as it is not misrepresented as providing workers' compensation insurance. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 13, 1992. TRD-9200458 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: February 3, 1992 Proposal publication date: February 13, 1991 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 120. Control of Air Pollution From Hazardous Waste and Solid Waste Management Subchapter A. Facility Permit Requirements 31 TAC sec.sec.120.1, 120.3, 120.11, 120.13, 120.15, 120.21 The Texas Air Control Board (TACB) adopts amendments to sec.sec.120.1, 120.3, 120.11, 120.13, 120.15, and 120.21, concerning control of air pollution from hazardous waste or solid waste management facilities, without changes to the proposed text as published in the September 24, 1991, issue of the Texas Register (16 TexReg 5235). In order to satisfy the requirements of Senate Bill (SB) 1099, passed by the 72nd Texas State Legislature, the regulation was reorganized into two subchapters. The revised Subchapter A, consists or previously adopted rule language which remains unchanged, except that all references to "chapter" are corrected to read "subchapter." Public hearings were held in Austin on October 14, 1991, and in Dallas and in Houston on October 16, 1991, to consider the proposed amendments to Regulation X, concerning control of air pollution from hazardous waste or solid waste management facilities. Written comments were accepted through October 25, 1991. Thirteen commenters submitted written testimony. Four individuals presented oral testimony during the three public hearings. Numerous oral comments were received during six public meetings sponsored by the Texas Water Commission (TWC) from October 22 through November 6, 1991. In general, most parties responded favorably to the pollution prevention rules. The majority of testimony was directed at refining the proposed rule language or making the rules more stringent then proposed. The following discussion addresses the comment on the proposed revisions in the following areas: Concerning 120.3, applicability, Galveston-Houston Association for Smog Prevention (GHASP) and one individual were opposed to the provision which allows for grandfather a facility which was in operation before September 1, 1987, except for facilities which incinerate or burn hazardous or sold waste. Prior to September 1, 1987, TACB could only issue permits to those facilities which incinerate or burn hazardous or solid waste. After September 1, 1987, TWC became the permitting authority for all hazardous waste units other than those facilities which are classified as major sources under the Federal Clean Air Act, C or D for which TACB also issues permits. Since this section reflects the original rule language as adopted in 1988 and is unchanged except for changing "chapter" to "subchapter," no modification is deemed necessary. Any major changes or making the rule language more strict than proposed, are prohibited by Administrative Procedure and Texas Register Act without going through the public hearing process so that the public has an opportunity to comment. Concerning sec.120.13, representations in application for permit, GHASP commented that the public should be included in the TWC permitting process. Senate Bill 1099 added sec.361.0791 to TWC rules which requires a public meeting as part of the local review process of an application for a new hazardous waste management facility. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code Annotated (Vernon 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1992. TRD-9200446 Lane Hartsock Deputy Director Texas Air Control Board Effective date: February 3, 1992 Proposal publication date: September 24, 1991 For further information, please call: (512) 908-1451 Subchapter B. Pollution Prevention Requirements: Source Reduction and Waste Minimization 31 TAC sec.sec.120.101-120.103, 120.105-120.110 The Texas Air Control Board (TACB) adopts new sec.sec.120.101-120.103, and 120.105-120.110, concerning control of air pollution from hazardous waste or solid waste management facilities. Sections 120.101, 120.103, 120.105, 120.106, and 120.109 are adopted with changes to the proposed text as published in the Texas Register (16 TexReg 5255). New sec.sec.120.102, 120.107, 120.108, and 120.110 are adopted without changes and will not be republished. These sections comprise a new Subchapter B of Chapter 120, concerning pollution prevention: source reduction and waste minimization, developed to satisfy requirements of Senate Bill (SB) 1099, passed by the 72nd Texas State Legislature. The new Subchapter B, adds several sections to implement the statutory requirements of SB 1099, referred to as the Waste Reduction Policy Act of 1991. The new sec.120.101, concerning definitions, adds new definitions applicable to source reduction and waste minimization. The new sec.120.102, concerning pollutants and contaminants, lists the categories of pollutants and contaminants that will be subject to this subchapter. The new sec.120.103, con- cerning applicability, defines which facilities will be affected by this subchapter. The new sec.120.105, concerning source reduction and waste minimization plans, establishes the requirement for a source reduction and waste minimization plan, details components of the plan, and describes the requirements for an executive summary of the plan. The new sec.120.106, concerning reporting and recordkeeping, outlines the elements required for the annual report. The new sec.120.107, concerning exemptions, defines which facilities are exempt from the requirements and also establishes the circumstances under which facilities currently covered by this subchapter may apply for an exemption. The new sec.120.108, concerning enforcement, covers administrative completeness requirements of the plan or annual report and establishes that failure to develop a plan or submit an annual report constitutes a violation of the Waste Reduction Policy Act of 1991. The new sec.120.109, concerning compliance schedules, develops a prioritized schedule by which affected facilities must have a source reduction and waste minimization plan in place. The new sec.120.110, concerning confidentiality, establishes that the source reduction and waste minimization plan is not public record; however, both the executive summary and the annual report are public records. Public hearings were held in Austin on October 14, 1991, and in Dallas and in Houston on October 16, 1991, to consider the proposed amendments to Regulation X. Written comments were accepted through October 25, 1991. Thirteen commenters submitted written testimony. Four individuals presented oral testimony during the three public hearings. Numerous oral comments were received during six public meetings sponsored by the Texas Water Commission (TWC) from October 22 through November 6, 1991. In general, most parties responded favorably to the pollution prevention rules. The majority of testimony was directed at refining the proposed rule language or making the rules more stringent than proposed. The following discussion addresses the comments on the proposed revisions in the following areas: Concerning sec.120.101, definition several commenters felt that revisions to the definitions for "release," "small-quantity generator," "toxic release inventory (TRI)," and "waste minimization" should be made, and that addi- tional definitions for terms such as "detoxification" and "neutralization" were needed. Since the definitions used were mandated by SB 1099 and generally conform to those definitions current applied in the field of pollution prevention, no action is deemed necessary at this time. Concerning sec.120.102, pollutants and contaminants, Texas Instruments (TI) felt that the definition for pollutant and contaminant was too broad, and the Texas Chemical Council (TCC) and one individual wanted hazardous air pollutants (HAP) as defined in the Federal Clean Air Act included in the definition of pollutant and contaminant. The staff is satisfied with the definition as defined by SB 1099. Changing the definition to include more compounds at this time is not necessary and would require modifications of those source reduction and waste minimization plans already active. Concerning sec.120.103, applicability, GHASP was against excluding conditionally exempt small-quantity generators (CESQC) from this program because they felt that any level of hazardous waste needs to be regulated. Senate Bill 1099 specifically exempted CESQC by exclusion in sec.361.434(2). Electric Reliability Council of Texas, Inc. (ERCOT) suggested that a facility be subject as a generator of hazardous waste or a to TRI reporting, but not both. The staff agrees that a facility becomes subject by exceeding the threshold of either. A modification to sec.120.103 has been made to clarify this point. Concerning sec.120.105, source reduction and waste minimization plans, Star Enterprise (STAR) wanted a single, consolidated, Texas-wide plan for all STAR small service stations and gasoline marketing terminals because of the small amounts and unpredictable and cyclic nature of the wastes generated. Although this approach may be in the company's best interest, every facility must record waste generated on a monthly basis to determine its generator category. The facility must then develop a plan based on its individual, unique requirements. The facility managers must be involved in and manage their own plans in order to successfully accomplish the source reduction and waste minimization goals of SB 1099. Texas Automobile Dealers Association and STAR felt that the proposed pollution prevention rules were too burdensome and difficult for most automobile dealers and gasoline stations or terminals to comply with. The staff agrees that small businesses may require assistance to accomplish the additional requirements of these new rules. The ultimate goal of pollution prevention is source reduction, and the staffs of both TACB and TWC are in the process of developing programs to assist small businesses in meeting these requirements. Phasing-in of these small quantity generator facilities is among the last covered by the implementation schedule, allowing sufficient time for the affected facilities to obtain assistance and develop adequate programs before the deadline for a plan is due. This phasing-in approach was supported by Tarrant Coalition for Environmental Awareness (TCEA). The Sierra Club suggested that the agencies periodically revisit the issue of source reduction and waste minimization plan components after the first groups of plans are submitted to determine if any modification in components is necessary. The staff of TACB is committed to the pollution prevention program and will continually review the process for possible improvement. McGinnis, Lochridge & Kilgore (MLK) suggested that the authority to certify a plan be delegated to any officer of the corporation or any manager of a "large facility." SB 1099, sec.361.435(a)(8) clearly states that only those persons who have the authority to commit the corporation's resources to implement the plan are able to certify the plan. MLK pointed out that the term "chemicals" is not defined in the proposed rules or statutory language. Part of the executive summary and the plan must include a prioritized list of chemicals to be reduced. The staff agrees and has changed the rule language to reflect "pollutants and contaminants" which is defined, rather than chemicals which is not. The staff agrees with the Sierra Club's recommendation that all facilities should be encouraged to share their source reduction and waste minimization plans with the public to the maximum extent possible. Concerning sec.120.106, reporting and recordeeping requirements, in general, industry felt that the February deadline for the annual report was unrealistic. This date allows only one month to compile the data required for submittal. While this seems to be a short deadline, most businesses use computers to compile the required data. Hazardous waste generated must be recorded on a monthly basis to determine the generator's waste category, so a February report should not be unreasonably difficult to produce. Ethyl Corporation pointed out that hazardous waste generated (annual waste summary) for the previous year is due to TWC by January 25, the Superfund Amendments and Reauthorization Act Title III, TRI report is due by July 1; therefore, a September 1 date for the annual report would be more appropriate. TCC also supports a September 1 date. ERCOT felt that March 15 would be appropriate. The staff agreed to delay the report date from February 1 to March 1 to allow owners and operators additional time to prepare the annual report, but any later date would further delay the pollution prevention program. TCC was concerned that its member companies will be required to report data for the entire calendar year of 1993 although their plans are not required to be in place until July 1, 1993. TCC felt that the first report should only cover the period from July 1 through December 31, 1993. The staff strongly disagrees with the TCC position. There is no reason that the facility cannot report for the entire calendar year even if the plan was implemented during that year. Use of the base year of 1987 was supported by the Sierra Club, but they also expressed that the use of more current data may be more logical due to at least a five-year lapse between the base year and the first plan submittal. Audubon Council of Texas (ACT), GHASP, TI, and TCEA felt that a more recent base year should be selected. MLK felt that the base year should be flex- ible, based on the facility and when the facility began their source reduction and waste minimization program. The base year 1987 was selected because it was the first year that both hazardous waste generated and toxic release inventory reporting was required concurrently. At this time, many companies began a source reduction and waste minimization program. These companies which aggressively pursued a source reduction and waste minimization program should not be penalized and be required to reduce on the same schedule as those companies which delayed action. Concerning sec.120.107, exemptions, GHASP and an individual were concerned that a facility could obtain an exemption from the source reduction and waste minimization program. SB 1099 required the commission and the board to develop, as an incentive to promote the implementation of source reduction and waste minimization, an opportunity for a facility to be exempted from the requirements of the program provided that they meet appropriate criteria. As proposed, in order for a facility to drop out of the requirements of the source reduction waste minimization program, the facility must demonstrate that it has accomplished at least a 90% reduction, plus obtain approval by the executive directors of both TWC and TACB after a demonstration is made that further reduction is technically and economically not feasible. This demonstration will be a difficult task for most facilities to accomplish and then must be redemonstrated annually thereafter to maintain the exemption. Two commenters, Sierra Club and TCEA, felt that the board or commission, rather than the executive directors, should grant the exemption from continuing with the plan. Since the executive directors are selected by the board/commission and are delegated with the daily operation of the agencies, the staff feels that the executive director is the proper level for this decision. The board and commission are informed of all important decisions and have an opportunity to review any exemption granted by the executive directors. ERCOT felt that the 90% waste reduction demonstration from the base year of 1987 was arbitrary and did not take into account reductions prior to the base year. The base year of 1987 was chosen because it represents the first reporting year in which both hazardous waste generated and TRI reports were required concurrently. MLK felt that an exemption level should be set at 70% instead of the 90% as proposed because this would maintain consistency with the TWC's goal of reducing generation and disposal of hazardous waste and acutely toxic substances from 1987 levels by the year 2000. The staff believes that a facility must meet a more stringent requirement for an exemption than the average goal required by the TWC initiatives. Concerning sec.120.109, compliance schedules, most environmental groups and individuals felt the first plans should be in place by January 1993 rather than the proposed July 1993. They felt that the timetable was too lengthy and should be shortened to between three and five years. The implementation was scheduled to incorporate 99.6% of the top hazardous waste generators and 95.8% of the top TRI covered facilities in the first year. Due to the large number of early facilities to be included in this program, the schedule must be maintained as proposed to provide adequate time to evaluate these facilities' plans and annual reports. Texas Eastman Company (TEC) suggested that only the dry weight of wastes be used since many are diluted with large quantities of water which then becomes a contaminated waste of significantly larger volume. TCC felt that the program will inappropriately focus on volume reductions rather than on the hazardous constituents. The Resource Conservation and Recovery Act (RCRA) requires the entire volume of hazardous and nonhazardous waste material be reported regardless of the percentages of constituents therein, unless the material is exempted. TEC suggested that only wastes generated at the point of generation should be counted. Wastes generated as the result of voluntary clean-up, closures, or RCRA correction at land disposal units should be excluded. TWC is developing a reporting method for accounting for one-time generation. The goal is to encourage clean-ups and simplify reporting. TEC suggested a tiered approach which would consider toxicity rather than volume of hazardous waste generated or TRI released. The staffs did not choose the tiered approach because the current method will cover the largest group of facilities in the shortest time. Facilities will also be able to use existing report data to comply rather than develop additional reporting methods. Facilities are encouraged to consider toxicity when developing individual site reduction goals and plans. Concerning sec.120.110, confidentiality, GHASP, TCEA, and two individuals wanted the plans to be made public, while TI felt that any public release of information was too costly for the industries which could be using this addi- tional expense toward waste reduction or minimization. The legislature meant for the plans to be confidential because many of the recommended changes would involve long-term modifications to the facility, process changes, and/or other methods which might involve trade secrets or proprietary process information. It was also believed that a more realistic approach by industry to solving the waste reduction goals would be accomplished by allowing the companies to release only the amounts of reduction, and not what was originally estimated by the plan. The public would have access to the types and amounts of hazardous chemicals on the facility and could see the levels of reduction over successive years. The staff agrees with the Sierra Club's recommendation that all facilities should be encouraged to share their source reduction and waste minimization plans with the public to the maximum extent possible. The following are other comments received regarding adoption of the new sections. One individual raised numerous questions that were not pertinent to the proposed rulemaking. These issues were concerning a specific permit application, siting policies, local land usage determinations, zoning authority, and the possibility of environmental racism. These concerns were addressed in a personal response to the commenter by the TACB general counsel. A great number of the comments received addressed issues which are beyond the this scope of this rulemaking. In addition to those mentioned previously, a significant number related to making substantive changes which cannot be accomplished during this rulemaking. One commenter pointed out slight textual discrepan- cies between TACB and TWC rule language. Other issues regarded activities not conducted or regulated by TACB and included waste determinations from an elementary neutralization unit or wastewater treatment facility, developing a suitable standard for assessment of "potential impact on human health and the environment," duplication of reports, emergency response, surface water, ground water and aquifer contamination which were referred to TWC for analysis. The new sections are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code Annotated (VERNON 1990), which provides TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.120.101. Definitions. The words and terms used in this subchapter have the meanings given in the Waste Reduction Policy Act of 1991, Senate Bill 1099, or the regulations promulgated thereunder. Unless specifi- cally defined in the Waste Reduction Policy Act or the regulations promulgated thereunder, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air, water, and solid waste pollution control. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Acute hazardous waste-Hazardous waste listed by the ad- ministrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 United States Code, sec.sec.6901 et seq), because the waste meets the criteria for listing hazardous waste identified in 40 Code of Federal Regulations, sec.261.11(a)(2). Board-The Texas Air Control Board. Commission-The Texas Water Commission. Committee-The Waste Reduction Advisory Committee estab- lished by the Texas Solid Waste Disposal Act, Texas Health and Safety Code, Annotated sec.361.0215. Conditionally exempt small-quantity generator-A generator that does not accumulate more than 1,000 kilograms of hazardous waste at any one time on the facility and generates less than 100 kilograms of hazardous waste in any given month. Environment-Water, air, and land and the interrelationship that exists among and between water, air, land, and all living things. Facility-All buildings, equipment, structures, and other stationary items located on a single site or on contiguous or adjacent sites that are owned or operated by a person who is subject to this subchapter or by a person who controls, is controlled by, or is under common control with a person subject to this subchapter. Generator and generator of hazardous waste -Have the meaning assigned by the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated sec.361.131. Large-quantity generator -A generator that generates, through ongoing processes and operations at a facility: (A) more than 1, 000 kilograms of hazardous waste in a month or a month; or (B) more than one kilogram of acute hazardous waste in a month. Media and medium -Air, water, and land into which waste is emitted, released, discharged, or disposed. Pollutant or contaminant-Any element, substance, compound, disease-causing agent, or mixture that after release into the en- vironment and on exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions, including malfunctions in reproduction, or physical deformations in the organism or its offspring. The term does not include petroleum, crude oil, or any fraction of crude oil that is not otherwise specifically listed or designated as a hazardous substance under the environmental response law, sec.101(14)(A)-(F), nor does it include natural gas, natural gas liquids, liquefied natural gas, synthetic gas of pipeline quality, or mixtures of natural gas and synthetic gas. Release-Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, but not including: (A) a release that results in an exposure to a person solely within a workplace, concerning a claim that the person may assert against the person's employer; (B) an emission from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; (C) a release of source, by-product, or special nuclear materials from a nuclear incident, as those terms are defined by the Atomic Energy Act of 1954, as amended (42 United States Code, sec.sec.2011 et seq), if the release is subject to requirements concerning financial protection established by the Nuclear Regulatory Commission under that Act, sec.170; (D) for the purposes of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, sec.104 (42 United States Code, sec.sec.9601 et seq), or other response action, release of source, by-product, or special nuclear material from a processing site designated under the Uranium Mill Tailings Radiation Control Act of 1978, sec.102(a)(1) or sec.302(a) (42 United States Code, sec.7912 and sec.7942); and (E) the normal application of fertilizer. Small-quantity generator -A generator that generates, through ongoing processes and operations at a facility: (A) equal to or less than 1,000 kilograms, but more than 100 kilograms of hazardous waste in a month; or (B) equal to or less than one kilogram of acute hazardous waste in a month. Source reduction -Has the meaning assigned by the federal Pollution Prevention Act of 1990, Public Law 101-508, sec.6603, 104 Statute 1388. Ton-2,000 pounds, also referred to as short tons. Toxic release inventory (TRI)-A program which includes those chemicals on the list in Committee Print Number 99-169 of the United States Senate Committee on Environmental and Public Works, titled "Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right-To-Know Act of 1986" (EPCRA, 42 United States Code Annotated, sec.11023), including any revised version of the list as may be made by the administrator of the United States Environmental Protection Agency. Waste minimization -A practice that reduces the environmental or health hazards associated with hazardous wastes, pollut- ants, or contaminants. Examples may include reuse, recycling, neutralization, and detoxification. sec.120.103. Applicability. This subchapter applies to facilities which are required to develop a source reduction and waste minimization plan pursuant to the Waste Reduction Policy Act of 1991, Senate Bill 1099, or the regulations promulgated thereunder, including: (1) all large-quantity generators of hazardous waste as defined in sec.120.101 of this title (relating to Definitions); (2) all generators other than large-quantity generators and conditionally exempt small-quantity generators as defined by the Texas Health and Safety Code, sec.361.431(3); (3) all facilities subject to the Super-fund Amendments and Reauthorization Act of 1986, sec.313, Title III, (Emergency Planning and Community Right-to-Know Act (EPCRA), 42 United States Code, sec.11023). These toxic release inventory (TRI) covered facilities would be required to develop source reduction and waste minimization plans for only the TRI listed chemicals that exceed threshold quantities established under EPCRA. sec.120.105. Source Reduction and Waste Minimization Plan. All owners or operators of facilities identified under sec.120.103 of this title (relating to Applicability), shall prepare a five-year (or more) source reduction and waste minimization plan which may be updated annually as appropriate according to the schedule listed in sec.120.109 of this title (relating to Compliance Schedules). Plans shall be updated as necessary to assure that there never exists a time period for which a plan is not in effect. Prior to completion of the plan and each succeeding plan, a new five-year (or more) plan shall be prepared. Plans required by paragraphs (1), (2), and (3) of this section shall contain a separate component addressing source reduction activities and a separate component addressing waste minimization activities. (1) With the exception of small-quantity generators which are subject to paragraph (3) of this section, the plan shall include, at a minimum: (A) an initial survey that identifies: (i) for facilities subject to sec.120.103(1) of this title, activities that generate hazardous waste; and (ii) for facilities subject to sec.120.103(3) of this title, activities that result in the release of pollutants or contaminants designated under sec.120.102 of this title (relating to Pollutants and Contaminants); (B) based on the initial survey, a prioritized list of economically and technologically feasible source reduction and waste minimization projects; (C) an explanation of source reduction or waste minimization projects to be undertaken, with a discussion of technical and economic considerations, and environmental and human health risks considered in selecting each project undertaken; (D) an estimate of the type and amount of reduction anticipated; (E) a schedule for implementation of each source reduction and waste minimization project; (F) source reduction and waste minimization goals for the entire facility, including incremental goals to aid in evaluating progress; (G) an explanation of employee awareness and training programs to aid in accomplishing source reduction and waste minimization goals; (H) certification by the owner or operator of the facility having the authority to commit the corporation's resources to implement the plan, that the plan is complete and correct; (I) identification of cases in which the implementation of a source reduction or waste minimization activity designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium; and (J) an executive summary of the plan which shall include, at a minimum: (i) a description of the facility which shall include: name of the facility; address; contact; general description of the facility; and Texas Air Control Board (TACB) account number, Texas Water Commission (TWC) solid waste notice of registration number, TWC waste water permit number, United States Environmental Protection Agency (EPA) identification number (Resource Conservation and Recovery Act (RCRA) number), national pollutant discharge elimination system (NPDES) permit number, and underground injection well code identification number; (ii) a list of all hazardous wastes generated and the volumes of each; (iii) a list of all reportable toxic release inventory (TRI) releases and the volume of each; (iv) a prioritized list of pollutants and contaminants to be reduced; (v) a statement of reduction goals; (vi) an explanation of environmental and human health risks considered in determining reduction goals; (vii) implementation milestones for individual project development; (viii) an implementation schedule for future reduction goals; and (ix) identification and description of cases in which the implementation of a source reduction or waste minimization activity designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium. Included in this description shall be a discussion of the change in characteristics of the normal waste stream or release and how it will be managed in the affected medium. (2) The source reduction and waste minimization plan may also include: (A) a discussion of the owner's or operator's previous efforts at the facility to reduce risk to human health and the environment or to reduce the generation of hazardous waste or the release of pollutants or contaminants; (B) a discussion of the effect that changes to environmental regulations have had on the achievement of the source reduction and waste minimization goals; (C) the effect that events which the owner or operator could not control have had on the achievement of the source reduction and waste minimization goals; (D) a description of projects that have reduced the generation of hazardous waste or the release of pollutants or contaminants; and (E) a discussion of the operational decisions made at the facility that have affected the achievement of the source reduction or waste minimization goals or other risk reduction efforts. (3) The plans of small-quantity generators shall include, at a minimum: (A) a description of the facility which shall include: name of the facility; address; contact; general description of the facility; and TACB account number, TWC solid waste notice of registration number, TWC waste water permit number, EPA identification number (RCRA number), NPDES permit number, and underground injection well code identification number; (B) a list of all hazardous wastes generated and the volumes of each; (C) a list of all reportable TRI releases and the volumes of each; (D) a prioritized list of pollutants and contaminants to be reduced; (E) a statement of reduction goals; (F) information on environmental and human health risks, such as material safety data sheets (MSDS) or other available documentation, considered in determining reduction goals; (G) implementation milestones for individual project development; (H) an implementation schedule for future reduction goals; and (I) identification and description of cases in which the implementation of a source reduction or waste minimization activity designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium. Included in this description shall be a discussion of the change in characteristics of the normal waste stream or release and how it will be managed in the affected medium. sec.120.106. Reporting and Recordkeeping Requirements. All owners or operators required to develop a source reduction and waste minimization plan for a facility under this subchapter shall submit to the commission and the board, concurrent with implementation of the plan under sec.120.109 of this title (relating to Compliance Schedules), an initial executive summary of such plan and a copy of the certification of completeness and correctness in sec.120.105(1) (H) of this title (relating to Source Reduction and Waste Minimization Plans). Within 30 days of any revision of such plan, a revised executive summary shall be submitted. All owners and operators required to develop a plan shall also submit an annual report according to the schedule outlined in paragraph (4) of this section. (1) The report shall detail the facility's progress in implementing the source reduction and waste minimization plan and include: (A) an assessment of the progress toward achievement of the facility source reduction goal and the facility waste minimization goal; (B) a statement to include, for facilities subject to sec.120.103(1) of this title (relating to Applicability), the amount of hazardous waste generated and, for facilities subject to sec.120.103(3) of this title, the amount of the release of reportable pollutants, or contaminants designated under the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated, sec.361.433(c) in the year preceding the report, and a comparison of those amounts generated or released using 1987 as a base year; and (C) any modification to the plan. (2) The report may include: (A) a discussion of the owner's or operator's previous effort at the facility to reduce hazardous waste or the release of pollutants or contaminants through source reduction or waste minimization; (B) a discussion of the effect that changes in environmental regulations have had on the achievement of the source reduction and waste minimization goals; (C) the effect that events, which the owner or operator could not control, have had on the achievement of the source reduction and waste minimization goals; and (D) a discussion of the operational decisions the owner or operator has made that affected the achievement of the source reduction and waste minimization goals. (3) The report shall contain a separate component addressing source reduction activities and a separate component addressing waste minimization activities. (4) The report and the executive summary of the plan shall be submitted according to the following schedule and annually thereafter. (A) For all facilities meeting the specifications of sec.120.109(1) of this title, the first report will be due on or before March 1, 1994. The report will cover calendar year 1993. (B) For all facilities meeting the specifications of sec.120.109(2) of this title, the first report will be due on or before March 1, 1995. The report will cover calendar year 1994. (C) For all facilities meeting the specifications of sec.120.109(3) of this title, the first report will be due on or before March 1, 1996. The report will cover calendar year 1995. (D) For all facilities meeting the specifications of sec.120. 109(4) of this title, the first report will be due on or before March 1, 1997. The report will cover calendar year 1996. (E) For all facilities meeting the specifications of sec.120.109(5) of this title, the first report will be due on or before March 1, 1998. The report will cover calendar year 1997. (5) Base line data from the calendar year 1987 shall be used in developing each of the first reports referred to in paragraph (4) of this section. (6) The report shall be submitted on forms furnished or approved by the executive directors of the commission and the board and shall contain, at a minimum, the information specified in paragraph (1) of this section. Upon written request by the owner or operator, the executive directors may authorize a modification in the reporting period. sec.120.109. Compliance Schedules. All facilities subject to sec.120.103 of this title (relating to Applicability) and not exempted by sec.120. 107 of this title (relating to Exemptions) shall develop a source reduction and waste minimization plan. The implementation year shall be de- termined by the prior year's reported volumes of hazardous waste generated and/or total toxic release inventory (TRI) releases. A facility once subject to this subchapter shall remain subject until it no longer meets the requirements of sec.120.103 of this title or is exempted under sec.120.107 of this title. Volumes for calculations will be based on total hazardous waste generated and/or total TRI releases. The executive summary shall be submitted to the commission and board on the date the plan is required to be in place. Plan implementation will be according to the following schedule. (1) The source reduction and waste minimization plan shall be in place, available for review, and be implemented no later than July 1, 1993 for: (A) hazardous waste generators reporting 5, 000 tons or more; or (B) TRI facilities reporting 100 tons or more. (2) The source reduction and waste minimization plan shall be in place, available for review, and be implemented no later than January 1, 1994 for: (A) hazardous waste generators reporting less than 5,000 tons, but more than or equal to 500 tons; or (B) TRI facilities reporting less than 100 tons, but more than or equal to 10 tons. (3) The source reduction and waste minimization plan shall be in place, available for review, and be implemented no later than January 1, 1995 for: (A) hazardous waste generators reporting less than 500 tons, but more than or equal to 15 tons; or (B) TRI facilities reporting less than 10 tons, but more than or equal to five tons. (4) The source reduction and waste minimization plan shall be in place, available for review, and be implemented no later than January 1, 1996 for: (A) hazardous waste generators reporting less than 15 tons, but more than or equal to five tons; or (B) TRI facilities reporting less than five tons, but more than or equal to one ton. (5) The source reduction and waste minimization plan shall be in place, available for review, and be implemented no later than January 1, 1997 for: (A) hazardous waste generators reporting less than five tons, but greater than 1.102 tons (1,000 kilograms); or (B) TRI facilities reporting less than one ton. (6) Any facility which becomes subject to the requirement to have a source reduction and waste minimization plan, either within 90 days prior to or at any time following the dates referenced in paragraphs (1)-(5) of this section, shall have 90 days to have a plan in place and available for review. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 10, 1992. TRD-9200445 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: February 3, 1992 Proposal publication date: September 24, 1991 For further information, please call: (512) 908-1451 Part IX. Texas Water Commission Chapter 293. Water Districts Conditional Approval 31 TAC sec.293.60 The Texas Water Commission adopts new sec.293.60, without changes to the proposed text as published in the October 1, 1991, issue of the Texas Register (16 TexReg 5391) concerning conditional approval of reimbursements to developers. The new section is proposed in order to inform developers that reimbursement by a district for a developer project may be conditioned on the actions of the developer of related to affiliated entities of the developer in the district applying for approval or in any other district in which the developer or related or affiliated entities of the developer have been involved. Section 293.60(a) specifies that the commission may condition reimbursement of construction funds to a developer on certain actions of the developer or related or affiliated entities. Section 293.60(a)(1) specifies the issues which the commission may consider in evaluating the performance of the developer and includes the past history of the developer or related affiliated entities with respect to payment of financial obligations to districts, devaluation of property values through claiming special exemptions within districts, compliance with commission rules and orders, and performance under agreements with districts. Section 293.60(a)(2) specifies the conditions on which the commission may conditions the approval of reimbursement and includes the payment of financial obligations, the withdrawal of a claim of a special exemption for property valuation, compliance with commission rules and orders, and performance under agreements with districts. Section 293.60(b) provides a definition of "developer" and sec.293.60(c) provides a definition of "relating or affiliated entities." Section 293.60(d) requires a district to submit information regarding the developer or affiliated or related entities upon the request of the executive director. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Water Code, sec.sec.5.013, 5.015, and 12.081 which provide the Texas Water Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 9, 1992. TRD-9200364 Claire Arenson Chief, Hearings Examiner Texas Water Commission Effective date: January 30, 1992 Proposal publication date: October 1, 1991 For further information, please call: (512) 463-8069 Chapter 295. Water Rights, Procedural Subchapter A. Requirements of Water Use Permit Application 31 TAC sec.295.72 The Texas Water Commission (TWC) adopts an amendment to sec.295.72 of its regulations concerning water rights, procedural, without changes to the proposed text as published in the July 26, 1991, issue of the Texas Register (16 TexReg 4063). The amendments to sec.295.72 clarify the grounds necessary for granting an application to amend a water right to extend the time for commencing or completing construction of the facilities prescribed in the applicant's authorization to use state water. The amended rule also provides that the applicant shall state in his application reasons the commission should consider in determining whether the appropriation should be canceled and forfeited in the event the commission denies the application for an extension of time. The amended rule further provides that, in the event an application for extension is denied, the commission may consider and determine in the same proceeding whether the appropriation shall be forfeited for failure to meet the permit condition requiring timely commencement or completion of construction. The Texas Water Code, sec.11.145 (the Code) provides that construction of diversion facilities and/or a storage reservoir must commence within the time fixed by the commission, not to exceed a period of two years from issuance of the appropriation. Upon application by the appropriator, the commission may grant an extension of the time to commence such construction. The appropriator, however, must work "diligently and continuously" towards completion of the project. The Code, sec.11.146, provides that failure to commence construction within the prescribed time period or failure to work diligently and continuously towards completion of such construction shall subject the appropriation to cancellation and forfeiture after thirty days notice and opportunity for hearing. The amendments to sec.295.72 provide specific criteria for determining whether to grant an extension of time, including guidance as to what constitutes working "diligently and continuously" towards commencement or completion of construction. The amendments further provide that should the commission deny the application for an extension of time, it may determine in the same hearing whether the appropriation should be canceled and forfeited for failure to commence or complete construction within the prescribed time periods. The 30-day comment period with respect to these rules expired on August 26, 1991. The commission received only one comment during this period, submitted by the Texas Utilities Electric Company (TU Electric), a private business which provides electric power to much of the central, eastern, and western portions of the state. TU Electric owns a number of dams and reservoirs and purchases water from river authorities, water districts, and cities. In its comment, TU Electric opposes the amendments, asserting that the commission has no authority to place upon an appropriator the burden of proving why a permit should not be forfeited at the time an application is submitted for an extension of time to commence or complete construction. Rather, TU Electric believes that the commission must initiate a separate proceeding apart from its determination on whether to grant an extension and must carry the burden of proof in such forfeiture proceeding. TU Electric bases it opinion on an interpretation that the forfeiture and cancellation provisions contained in the Code, sec.11.171 et seq., are applicable to proceedings under the Code, sec.11.146. The commission respectfully disagrees with the comments submitted by TU Electric. The provisions of the Code, sec.11.171 et seq., specifically relate only to the cancellation and forfeiture of an appropriation for failure to beneficially use all or part of the appropriation for a consecutive 10-year period, not for failure to commence or complete construction of facilities within the timeframes provided in permits issued in accordance with the Code, sec.11.145. Additionally, sec.11.146(a) specifically provides that forfeiture of an appropriation for failure to commence construction shall be subject to notice and hearing "as prescribed by this section." Therefore, there is no requirement in either the Code, sec.11.146 or sec.11.171 et seq. that forfeiture of an appropriation for failure to timely commence construction is to be governed by the Code, sec.11.171 et seq. Additionally, requiring a separate proceeding for purposes of determing whether to cancel and forfeit an appropriation, separate and apart from the determination upon which the forfeiture must be predicated, is judicially and administratively inefficient. Also, any attempt to relitigate issues previously and finally determined in the prior proceeding would be prohibited by the legal doctrine of collateral estoppel. Finally, since applicants are the movants in proceedings of this nature (i.e., to amend the time limitations contained in a permit) and have particular knowledge of the facts which must be proven to prevail (i.e., working diligently and continuously towards commencement or completion of construction), the burden of proof legally and properly rests with the applicant, as provided by sec.263.33 of this title and applicable caselaw. The amendment is adopted under the Water Code, sec.sec.5.103, 5.105, and 5.120, which provide the commission with the authority to promulgate rules as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 9, 1992. TRD-9200365 Claire Arenson Chief, Hearings Examiner Texas Water Commission Effective date: January 30, 1992 Proposal publication date: July 26, 1991 For further information, please call: (512) 463-8069 Subchapter C. Notice Requirements of Water Use Permit Applications 31 TAC sec.295.159 The Texas Water Commission (TWC) adopts amendments to sec.295.159 of its regulations concerning water rights, procedural, without changes to the proposed text as published in the July 26, 1991, issue of the Texas Register (16 TexReg 4063). The changes to sec.295.159 add to the notice requirements for applications to extend the time to commence or complete construction of diversion and/or impoundment facilities, to specifically reflect that the commission shall also consider whether the appropriation should be forfeited for failure by the applicant to demonstrate sufficient due diligence and justification for delay. The Texas Water Code (Code), sec.11.145, provides that construction of diversion facilities and/or a storage reservoir must commence within the time fixed by the commission, not to exceed a period a two years from issuance of the appropriation. Upon application by the appropriator, the commission may grant an extension of the time to commence such construction. The appropriator, however, must work diligently and continuously towards completion of the project. Section 11.146 of the Code provides that failure to commence construction within the prescribed time period or failure to work diligently and continuously towards completion of such construction shall subject the appropriation to cancellation and forfeiture after 30 days notice and opportunity for hearing. The amendments to sec.295.72 provide criteria for determining whether to grant an extension of time, including guidance as to what constitutes working diligently and continuously towards commencement or completion of construction. The amendments further provide that should the commission deny the application for an extension of time, it may determine in the same hearing whether the appropriation should be canceled and forfeited for failure to commence or complete construction within the prescribed time periods. The 30 day comment period with respect to these rules expired on August 26, 1991. The commission received only one comment during this period, submitted by the Texas Utilities Electric Company (TU Electric), a private business which provides electric power to much of the central, eastern, and western portions of the state. TU Electric owns a number of dams and reservoirs and purchases water from river authorities, water districts, and cities. In its comment, TU Electric opposes the amendments, asserting that the commission has no authority to place upon an appropriator the burden of proving why a permit should not be forfeited at the time an application is submitted for an extension of time to commence or complete construction. Rather, TU Electric believes that the commission must initiate a separate proceeding apart from its determination on whether to grant an extension and must carry the burden of proof in such forfeiture proceeding. TU Electric bases its opinion on a interpretation that the forfeiture and cancellation provisions contained in the Code, sec.11.171 et seq, are applicable to proceedings under the Code, sec.11.146. The commission respectfully disagrees with the comments submitted by TU Electric. The provisions of sec.11.171 et seq. of the Code specifically relate only to the cancellation and forfeiture of an appropriation for failure to beneficially use all or part of the appropriation for a consecutive 10-year period, not for failure to commence or complete construction of facilities within the timeframes provided in permits issued in accordance with the Code, sec.11.145. Additionally, sec.11.146(a) specifically provides that forfeiture of an appropriation for failure to commence construction shall be subject to notice and hearing "as prescribed by this section." Therefore, there is no requirement in either sec.11.146 or sec.11.171 et seq. of the Code that forfeiture of an appropriation for failure to timely commence construction is to be governed by the Code, sec.11.171 et seq. Additionally, requiring a separate proceeding for purposes of determining whether to cancel and forfeit an appropriation, separate and apart from the determination upon which the forfeiture must be predicated, is judicially and administratively inefficient. Also, any attempt to relitigate issues previously and finally determined in the prior proceeding would be prohibited by the legal doctrine of collateral estoppel. Finally, since applicants are the movants in proceedings of this nature (i.e., to amend the time limitations contained in a permit) and have particular knowledge of the facts which must be proven to prevail (i.e., working diligently and continuously towards commencement or completion on construction), the burden of proof legally and properly rests with the applicant, as provided by sec.263.33 of this title and applicable caselaw. The amendment is adopted under the Water Code, sec.sec.5.103, 5.105, and 5.120, which provide the commission with the authority to promulgate rules as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 9, 1992. TRD-9200363 Claire Arenson Chief, Hearings Examiner Texas Water Commission Effective date: January 30, 1992 Proposal publication date: July 26, 1992 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 9. Property Tax Administration Subchapter A. Practice and Procedure 34 TAC sec.sec.9.1-9.6 The Comptroller of Public Accounts adopts new sec.sec.9.1-9.6, concerning protests by school districts, county education districts, certain property owners, and appraisal districts of its property value study's preliminary findings, without changes to the proposed text as published in the December 10, 1991, issue of the Texas Register (16 TexReg 7083). The new sections are necessary because new legislation transferred responsibility for conducting the property value study and property value study protests to the comptroller. The new sections clearly describe the agency's protest procedures, including its general rules concerning protests; who may protest; and when a petitioner may file a protest petition. No comments were received regarding adoption of the new sections. The new sections are proposed under the Education Code, sec.11.86(e), which provides the comptroller with the authority to adopt procedural rules governing the conduct of protest hearings. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 13, 1992. TRD-9200451 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 3, 1992 Proposal publication date: December 10, 1991 For further information, please call: (512) 463-4028 Part XII. State Auditor's Office Chapter 351. Administration 34 TAC sec.351.1 The State Auditor's Office adopts the repeal of sec.351.1, without changes to the proposed text as published in the November 12, 1991, issue of the Texas Register (16 TexReg 6580). Senate Bill Number 1004, 72nd Legislature, Regular Session, transferred rulemaking authority relating to the filing of audit reports under the Texas Political Subdivision Employees Uniform Group Benefits Program from the State Auditor's Office to the Department of Insurance. As of the effective date of Senate Bill Number 1004, September 1, 1991, the statutory authority under which the State Auditor's Office originally adopted this rule was rescinded. Repeal of this section will ensure compliance with any applicable provisions of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. No comments were received regarding adoption of the repeal. The repeal is adopted under the Local Government Code, sec.172.010 as amended, which transfers rulemaking authority to the Department of Insurance. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 8, 1992. TRD-9200410 Lawrence F. Alwin State Auditor Effective date: January 31, 1992 Proposal publication date: November 12, 1991 For further information, please call: (512) 479-4700 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 4. Medicaid Programs-Children and Pregnant Women Eligibility Requirements 40 TAC sec.4.1006 The Texas Department of Human Services (DHS) adopts an amendment to sec.4. 1006, concerning requirements for application for Medicaid, without changes to the proposed text as published in the December 10, 1991, issue of the Texas Register (16 TexReg 7084). The justification for the amendment is to comply with a policy clarification from the Health Care Financing Administration removing the relationship requirement for certain Medicaid-eligible children. As a result, DHS is changing its policy to allow certain children born on or after October 1, 1983, to be eligible for Medicaid irrespective of their relationship to the person(s) with whom they live. The amendment will function by ensuring that additional needy individuals will receive Medicaid benefits. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 9, 1992. TRD-9200369 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: December 10, 1991 For further information, please call: (512) 450-3765. Chapter 5. Medicaid Programs for Aliens Subchapter B. Medicaid Benefits for Aliens Not Legally Residing in the U.S. 40 TAC sec.5.2004 The Texas Department of Human Services (DHS) adopts an amendment to sec.5. 2004, concerning eligibility requirements for Medicaid, without changes to the proposed text as published in the December 10, 1991, issue of the Texas Register (16 TexReg 7085). The justification for the amendment is to comply with a policy clarification from the Health Care Financing Administration removing the relationship requirement for certain Medicaid-eligible children. As a result, DHS is changing its policy to allow certain children born on or after October 1, 1983, to be eligible for Medicaid irrespective of their relationship to the person(s) with whom they live. The amendment will function by ensuring that additional needy individuals will receive Medicaid benefits. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 9, 1992. TRD-9200370 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: December 10, 1991 For further information, please call: (512) 450-3765 Chapter 10. Family Self-support Services Title IV-A Funded Child Care The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.10. 3325, 10.3340-10.3347, and 10.3501-10.3507, concerning family self-support services, without changes to the proposed text as published in the December 6, 1991, issue of the Texas Register (16 TexReg 6996). Justification of the repeals is to remove obsolete rule material. The repeals will function by deleting rules that have been replaced by new rules implementing the child care management services (CCMS) system and also deleting rules for the CCMS field test that has been completed. No comments were received regarding adoption of the repeals. 40 TAC sec.sec.10.3325, 10.3340-10.3347 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which authorizes the department to administer public assistance and day care programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 9, 1992. TRD-9200371 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 17, 1992 Proposal publication date: December 6, 1991 For further information, please call: (512) 450-3765 Child Care Management Services Field Test 40 TAC sec.sec.10.3501-10.3507 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which authorizes the department to administer public assistance and day care programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 9, 1992. TRD-9200372 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 17, 1992 Proposal publication date: December 6, 1991 For further information, please call: (512) 450-3765 Chapter 79. Legal Services Subchapter R. Release Hearings 40 TAC sec.sec.79.1701-79.1704, 79.1708, 79.1709 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.79. 1701-79.1704, 79.1708, and 79.1709 concerning release hearings, without changes to the proposed text as published in the November 22, 1991, issue of the Texas Register (16 TexReg 6743). The justification for the amendments is to change the rules governing release hearings to allow adult protective services (APS) to notify an employer or other entity of APS findings of abuse, neglect, or exploitation. The amendments are intended also to protect the perpetrator's due process rights. In addition to the amendments concerning release hearings in APS, DHS has rewritten the definition of adverse action in sec.79.1701 as it pertains to child protective services. This rewrite is intended to clarify the existing definition. The amendments will function by increasing protection from abuse, neglect, and exploitation of aged or disabled adults and increasing protection of perpetrators' due process rights. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 48, which provides the department with the authority to administer public assistance and adult protective services programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 9, 1992. TRD-9200373 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 15, 1992 Proposal publication date: November 22, 1991 For further information, please call: (512) 450-3765