TITLE 25.HEALTH SERVICES

Part 1. TEXAS DEPARTMENT OF HEALTH

Chapter 265. GENERAL SANITATION

Subchapter L. STANDARDS FOR PUBLIC POOLS AND SPAS

The Texas Department of Health (department) proposes the repeal of §§265.181 - 265.207 and new §§265.181 - 265.208, concerning the standards for public swimming pools and spas. The repeal is necessitated by substantive changes made to these rules.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to Government Code, Chapter 2001 (Administrative Procedure Act). The department reviewed §§265.181 - 265.207, and has determined that the reasons for adopting the sections continue to exist, in that rules on this subject are still needed. The repeal of existing rules and proposed new rules accommodate needed revisions as outlined in this preamble.

The department published a Notice of Intent to review for §§265.181 - 265.207 in the September 12, 2003, issue of the Texas Register (28 TexReg 8014). No comments were received following publication of the notice.

In order to consolidate and simplify the rules, the proposed new §§265.181 - 265.208 incorporates requirements from 25 Texas Administrative Code (TAC), Chapter 337, Water Hygiene, Subchapter B, "Design Standards for Public Swimming Pool Construction". Sections 337.71 - 337.96 are being repealed in a companion rulemaking action. Rules pertaining to the construction, operation, and sanitization of a pool or spa in existence prior to October 1, 1999, and, that are not specifically addressed in existing Chapter 265, are found in Chapter 337, Subchapter B, "Design Standards for Public Swimming Pool Construction". Sections 265.181 - 265.207 proposed for repeal, encompass all requirements for public pools and spas constructed on or after October 1, 1999, (post-10/01/99 pools and spas) and limited requirements for pools and spas constructed prior to October 1, 1999, (pre-10/01/99 pools and spas). After this rulemaking, all pool and spa requirements will be included in the new proposed §§265.181 - 265.208.

New §§265.181 - 265.208 will more clearly define the differences in requirements for pools and spas built on or after October 1, 1999, and those requirements for pools and spas built prior to October 1, 1999. Definitions have been updated to include language and terminology utilized within the public pool and spa industry. Also, the proposed rules include current and accepted minimum industry standards that have been tested, certified and adopted by pool and spa owners and operators, and by construction and maintenance companies. More sophisticated and highly efficient pool and spa equipment now allows installation of specialized water recreational amenities in pools built before and after October 1, 1999. The proposed new rules will include provisions regulating, when applicable, the technologically sophisticated water amenity upgrades at public pools and spas.

Further, existing §265.190, requires upgrades be made to suction systems in all pools and spas constructed before October 1, 1999, and, that multiple inspections by qualified individuals be made in order to determine the type of upgrade needed. After careful review of existing §265.190, it was determined that many pools and spas, constructed prior to October 1, 1999, would be unable to meet the structural upgrade requirements. Additionally, the cost involved in obtaining the required inspections and upgrades would be prohibitive and, if made, the upgrades would not necessarily provide protection against body entrapment, limb entrapment and hair entanglement. New §265.190 will eliminate the need for multiple inspections and offer pool owner/operators multiple upgrade choices. These upgrade choices will not only provide protection against entrapment and entanglement dangers, but also provide the owner/operator less costly options.

The current rules for public pools and spas, §§265.181 - 265.207, contain recommendations for the owner/operator that include both structural and operational elements. In all cases these recommendations exceed the scope of providing minimum construction, operation and maintenance standards. The recommendations have been removed from the proposed new rules: however; because they are believed to increase the levels of safety for pool and spa owner/operators and users, the recommendations will be available on the General Sanitation website.

Elias Briseno, Director, General Sanitation and Product Safety Division, has determined that for each year of the first five years the sections are in effect, there will be no fiscal impact on state or local government as a result of enforcing or administering the sections as proposed because the rules do not involve new program activities.

Mr. Briseno has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing or administering the rule will be increased protection for the public from disease transmission, catastrophic injury and death in public pools and spas. The proposal will not adversely affect small businesses or micro-businesses. Administrating the sections as proposed could reduce personnel and equipment costs, possibly result in a decrease in utility costs, and help reduce the cost of formerly required upgrades. For example, elimination of a section requiring some facilities to construct fences with expensive, special order materials, should result in cost savings for micro-businesses, small businesses, and larger businesses. There will be no impact on local employment.

Comments on the proposal may be submitted to Mr. Elias Briseno, Director, General Sanitation and Product Safety Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, phone 512-834-6600, fax 512-834-6707, or by email to katie.moore@tdh.state.tx.us. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

25 TAC §§265.181 - 265.207

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under Health and Safety Code, §§341.064 and 341.002, which provide the Texas Board of Health (board) with the authority to adopt necessary rules to administer this chapter; and the Health and Safety Code, §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.

The repeals affect the Health and Safety Code, Chapters 12 and 341. The review of the rules implements Government Code, §2001.039.

§265.181.General Provisions.

§265.182.Definitions.

§265.183.Plans, Permits and Instructions.

§265.184.General and Structural Design.

§265.185.Dimensional Design.

§265.186.Deck Entry/Exit, and Diving Facilities, and Other Deck Equipment.

§265.187.Circulation Systems.

§265.188.Filters.

§265.189.Pumps and Motors.

§265.190.Suction Outlets and Return Inlets.

§265.191.Surface Skimming and Perimeter Overflow (Gutter) Systems.

§265.192.Electrical Requirements.

§265.193.Heaters.

§265.194.Pool and Spa Water Supply.

§265.195.Facility Drinking Water Supply.

§265.196.Waste Water Disposal.

§265.197.Disinfectant Equipment and Chemical Feeders.

§265.198.Gas Chlorination.

§265.199.Specific Safety Features.

§265.200.Pool Yard Enclosures.

§265.201.Dressing and Sanitary Facilities.

§265.202.Food, Beverages, and Containers.

§265.203.Operation and Management.

§265.204.Water Quality.

§265.205.Spa Construction, Operation, and Maintenance.

§265.206.Compliance: Inspections and Investigations.

§265.207.Enforcement.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2004.

TRD-200402065

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: May 2, 2004

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


25 TAC §§265.181 - 265.208

The new rules are proposed under Health and Safety Code, §§341.064 and 341.002, which provide the Texas Board of Health (board) with the authority to adopt necessary rules to administer this chapter; and the Health and Safety Code, §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.

The new rules affect the Health and Safety Code, Chapters 12 and 341. The review of the rules implements Government Code, §2001.039.

§265.181.General Provisions.

(a) Scope and purpose of rules. These rules address minimum standards for design and construction of pools and spas. These rules also establish minimum operating standards for pools and spas to assure proper filtration, chemical, and general maintenance of water and safety to users. These standards are based in part on the American National Standards Institute and the National Spa and Pool Institute Standards for Public Swimming Pools (ANSI/NSPI-1, 1991) and the American National Standards Institute and National Spa and Pool Institute Standards for Public Spas (ANSI/NSPI-2, 1992). These rules are in addition to any municipal or federal laws applicable to pools and spas. These rules implement Texas Health and Safety Code, Title 5, Subtitle A, §341.064(g), and are considered good public health engineering and safety practices.

(b) Application of rules.

(1) A pool or spa constructed prior to October 1, 1999 will be defined as "pre-10/01/99". A pool or spa constructed on or after October 1, 1999 will be defined as "post-10/01/99". A pool or spa is considered constructed on the date that a building permit for construction of the pool or spa is issued by a municipality or, if no building permit is required, the pool/spa operator/owner must produce adequate written documentation of the date that excavation or electrical service to the pool or spa begins, whichever is first.

(2) A pool or spa serving only one or two dwellings (a single family home or a duplex), regardless of whether the pool or spa is permanently or temporarily installed in or above the ground, is exempt from these rules.

(3) Each section of the rules states the extent to which the rule applies to post-10/01/99 or pre-10/01/99 pools, spas, or facilities.

(4) The standards for pools or spas that apply to pools or spas constructed on or after October 1, 1999, are contained in these rules. Except for rules that specifically apply to pre-10/01/99 pools and spas, the standards for pool or spa design and construction are those standards that were in existence at the time the pool or spa was initially constructed, including then-applicable local, state and federal laws except as otherwise stated in these rules. Owners of pre-10/01/99 pools and spas may follow the rules applicable to post-10/01/99 pools and spas.

(5) The standards for spa design, construction, and operation that apply to post-10/01/99 and pre-10/01/99 spas are contained or referenced in §265.205 of this title (relating to Construction, Operation, and Maintenance of Post-10/01/99 and Pre-10/01/99 Spas).

(6) The standards for pool or spa operation that apply to pre-10/01/99 pools or spas are the provisions that specifically state that they are applicable to pre-10/01/99 pools or spas.

(7) The standards contained in these rules may be met notwithstanding minor variations in equipment, materials, or design if:

(A) the variation provides the quality, strength and durability equal to or greater than the standards contained in these rules; and

(B) the operation, maintenance, safety, and sanitation of the pool or spa are not adversely affected by the variation.

(8) Where a local regulatory authority has jurisdiction for the regulation of pools and spas, such authorities may, as statutorily allowed, adopt standards that vary from these standards; however, such standards shall be the same as, equivalent to, or more stringent than these standards and shall be in accordance with good public health engineering and safety practices.

(c) Stricter codes and standards. Whenever a pool or spa owner is in compliance with a more recent code or standard that is stricter than these rules, that standard shall be deemed as in compliance with these rules on a particular subject.

(1) Except as expressly provided in these rules, an owner whose pool or spa was constructed in compliance with a standard applicable on the date of construction is not required to modify construction to comply with a subsequent construction standard for post-10/01/99 pools and spas.

(2) Except as expressly provided in these rules, an owner whose pool or spa equipment was in compliance with a standard applicable at the time installation of equipment is not required to purchase and reinstall equipment complying with a subsequent equipment standard for post-10/01/99 pools and spas in these rules.

(3) Post-10/01/99 and pre-10/01/99 facilities shall be required to meet the operational standard that is most applicable to their use. For example, if a pool is operated as a Class C pool but will be made available for use by the general public, the pool shall meet Class B operational standards for lifeguards, etc.; or if a pool is normally operated as a Class B pool but, is used for a private party and is closed to the general public for the duration of the party.

(4) A post-10/01/99 facility shall be required to meet the applicable construction standard that is most restrictive for its intended use. For example, if a pool at a facility that is generally classified as a Class C pool will be opened for use by the general public at any time, it shall be constructed to meet Class B pool standards.

§265.182.Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

(1) Above-ground pool or spa--A removable pool or spa of any shape that is located on the surrounding earth or a pool or spa package located in an excavation below the ground level that may be readily disassembled or stored and reassembled.

(2) Actual water level--The water level at any particular point in time, which may vary with specific conditions such as rainfall or number of users. (See definition (46) "Design water level" and (87) "Operating water level range".)

(3) Algae--Microscopic plant-like organisms that contain chlorophyll and include green, blue-green or black brown, and yellow-green (mustard) algae.

(4) Algaecide--A natural or synthetic substance used for killing, destroying, or controlling algae.

(5) Alkalinity--The amount of bicarbonate, carbonate or hydroxide compounds present in water solution. (See definition (142) "Total alkalinity".)

(6) Approved cover or approved drain cover--A suction outlet drain cover that meets the requirements of §265.190(c)(1) of this title (relating to Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(7) Approved grate--A suction outlet grate that meets the requirements of §265.190(c)(2) of this title.

(8) ACI--American Concrete Institute, P. O. Box 9094, Farmington Hills, Michigan 48333-9094, telephone (248) 848-3800.

(9) ANSI--American National Standards Institute, 25 West 43rd Street (4th Floor), New York, New York 10036, telephone (212) 642-4900.

(10) ANSI/NSPI-1, 1991--American National Standards Institute and National Spa and Pool Institute Standards for Public Swimming Pools adopted in 1991.

(11) ANSI/NSPI-2, 1992--American National Standards Institute and National Spa and Pool Institute Standards for Public Spas adopted in 1992.

(12) ARC--American Red Cross, 8111 Gatehouse Road, Falls Church, Virginia 22042, telephone (703) 206-6000.

(13) ASHRAE--American Society of Heating, Refrigeration and Air-Conditioning Engineers, Inc., 1791 Tullie Circle NE, Atlanta, Georgia 30329-2305, telephone (800) 527-4723.

(14) ASME--American Society of Mechanical Engineers, 22 Law Drive, P.O. Box 2900, Fairfield, New Jersey 07007-2900, telephone (800) 843-2763.

(15) ASTM--American Society of Testing Materials, 100 Barr Harbor Drive, West Conshohocken, Pennsylvania 19428-2959, telephone (610) 832-9500.

(16) Available chlorine--Rating of chlorine containing products for total oxidizing power. (See definition number (61) "Free available chlorine".)

(17) AVS--An atmospheric vent system, as described in §296.190(d)(3)(A) of this title for minimizing risk of entrapment.

(18) Backwash--The process of cleansing the filter medium and/or elements by the reverse flow of water through the filter.

(19) Backflow prevention device--A device that is designed to prevent a physical connection between a potable water system and a non-potable source such as a pool or spa, or a physical connection between a pool or spa and a sanitary sewer or wastewater disposal system. (See definition number (40) "Cross-connection control device".)

(20) Bacteria--Single-celled microorganisms of various forms, some of which cause infections or disease.

(21) Beginner's areas--Water areas that are 3 feet or less in depth in a pool.

(22) Bleeder valve--A device that allows air to be vented from a closed system. (See definition number (153) "Valve".)

(23) Bonded--The permanent joining of metallic parts to form an electrically conductive path that will ensure electrical continuity and the capacity to conduct safely any current likely to be imposed in order to minimize the risk of electrocution. Examples of bonding are the installation of a metal wire from a pool or spa pump to the rebar in the pool or spa wall, or interconnecting all rebar in a pool or spa wall by metal wire prior to pouring concrete in the wall.

(24) Breakpoint--The practice of adding a sufficient amount of chlorinating compound to water to destroy chlorine demand compounds and any combined chlorine, which is present. Generally, the level of chlorine added is 10 times the level of combined chlorine in the water. (See definition number (131) "Super chlorination".)

(25) Breakpoint chlorination--The addition of a sufficient amount of chlorine to water to destroy the chlorine demand compounds and any combined chlorine that is present. (See definition number (131) "Super chlorination".)

(26) Broken stripe--A horizontal stripe that is at least 1 inch wide with uniform breaks in the stripe, with the breaks totaling not more than 75% of the length of the stripe and stripe breaks.

(27) Bromine--A chemical element (Br2) that exists as a liquid in its elemental form or as part of a chemical compound that is a biocide agent used to disinfect pool or spa water.

(28) Chemical feeder--A mechanical device for applying chemicals to pool or spa water.

(29) Chloramine--A compound formed when chlorine combines with nitrogen or ammonia that when found in significant amounts in a pool or spa, may cause eye and skin irritation and may have an objectionable odor.

(30) Chlorinator--A device to apply or to deliver a chlorine disinfectant to water at a controlled rate.

(31) Chlorine--A chemical element (Cl2) that exists as a gas in its elemental form or as a part of chemical compound that is an oxidant Chlorine is a biocide agent used to disinfect pool or spa water.

(32) Chlorine demand compounds--Organic matter, chloramines, and other such compounds that chlorine reacts with and that depletes chlorine.

(33) Chlorine Institute--Chlorine Institute, 2001 L Street North West, Suite 506, Washington, D.C. 20036-4919, telephone (202) 775-2790.

(34) Circulation equipment--The mechanical components that are a part of a circulation system on a pool or spa. Circulation equipment may include but is not limited to, categories of pumps; hair and lint strainers; filters; valves; gauges; meters; heaters; surface skimmers; inlet/outlet fittings; and chemical feeding devices. The components have separate functions, but when connected to each other by piping, perform as a coordinated system for purposes of maintaining pool or spa water in a clear, sanitary, and desirable condition for use.

(35) Circulation system--An arrangement of mechanical equipment or components, connected by piping to a pool or spa in a closed circuit. The function of a circulation system is to direct water from the pool or spa, causing it to flow through the various system components for purposes of clarifying, heating, purifying, and returning the water back to the original body of water.

(36) Combined chlorine--The portion of the total chlorine pre-10/01/99 in water in chemical combination with ammonia, nitrogen, and/or organic compounds, mostly comprised of chloramines. Combined chlorine plus free chlorine equals total chlorine.

(37) Construction date--The date that a building permit for construction of the pool or spa is issued by a municipality or, if no building permit is required, written documentation of the date that excavation or electrical service to the pool or spa begins, whichever is first.

(38) Coping--The cap on the pool or spa wall that provides a finishing edge around the pool or spa. The coping can be formed, cast in place or pre-cast, or pre-fabricated from metal or plastic materials.

(39) CPSC--United States Consumer Product Safety Commission, Washington, D.C. 20207, telephone (800) 638-2772.

(40) Cross-connection control device--A device that is designed to prevent a physical connection between a potable water system and a non-potable source such as a pool or spa, or a physical connection between a pool or spa and a sanitary sewer or wastewater disposal system. (See definition number (19) "Backflow prevention device".)

(41) Cyanuric acid--A chemical that helps reduce the excess loss of chlorine in water due to the ultraviolet rays of the sun.

(42) Decks--Areas immediately adjacent to or attached to a pool or spa that are specifically constructed or installed for sitting, standing, or walking.

(43) Deep areas--Water levels in pools that are over 5 feet deep.

(44) Department--The Texas Department of Health, General Sanitation Division, 1100 West 49th Street, Austin, Texas 78756, telephone (512) 834-6635.

(45) Depth (pool or spa depth)--The vertical distance measured at 3 feet from the pool or spa wall from the bottom of the pool or spa to the design water level.

(46) Design water level--The design water level defined in either of the following ways:

(A) skimmer system--The design water level shall be at the midpoint of the operating range of the skimmers; or

(B) overflow system--The design waterline shall be at the top of the overflow rim of the gutter system.

(47) DPD--A chemical testing reagent (N,N-Diethyl-P-Phenylenediamine) used to measure the levels of free chlorine or bromine in water by yielding a series of colors ranging from light pink to dark red.

(48) Disinfectant--Energy or chemicals used to kill undesirable or pathogenic (disease causing) organisms, and having a measurable residual at a level adequate to make the desired kill.

(49) Disinfectant equipment--Equipment designed to apply or deliver a disinfectant (such as chlorine or bromine) at a controlled rate.

(50) Diving board--A recreational mechanism for entering a pool, consisting of semi-rigid board that derives its elasticity through the use of a fulcrum mounted below the board.

(51) Diving equipment for competition--Competitive diving boards and fulcrum-setting diving stands intended to provide adjustment for competitive diving.

(52) Dwelling or rental dwelling--One or more rooms rented to one or more persons where a Class C or Class D pool or spa is located.

(53) Effective filter area--Total surface area through which designed flow rate will be maintained during filtration.

(54) Effluent--The water that flows out of a filter, pump, or other device.

(55) Facility(ies)--The pool or spa, restrooms, dressing rooms, equipment rooms, deck, enclosure, and other appurtenances directly serving the pool or spa area.

(56) Feet of head--A basis for indicating the resistance in a hydraulic system, equivalent to the height of a column of water that would cause the same resistance (100 feet of head equals 43 pounds per square inch). The dynamic head is the sum of all resistances in a complete operating system.

(57) Filter--A device that removes undissolved particles from water by recirculating the water through a porous substance (filter media or element).

(58) Filter element--A device within a filter tank designed to entrap solids and conduct water to a manifold, collection header, pipe, or similar conduit and return it to the pool or spa. A filter element usually consists of a septum and septum support, or a cartridge.

(59) Filter media--A finely graded material (for example, sand, diatomaceous earth, polyester fabric, and anthracite) that removes filterable particles from the water.

(60) Floor--The interior bottom surface of a pool or spa.

(61) Free available chlorine--That portion of the total chlorine remaining in chlorinated water that is not combined with ammonia or nitrogen compounds and that will react chemically with undesirable or pathogenic organisms. Combined chlorine plus free chlorine equals total chlorine.

(62) Handhold--A ledge, coping, rope, railing, deck, or similar construction along the immediate top edge of the pool that provides a slip-resistant surface or grip.

(63) Handrail--A railing that is intended to be gripped for resting and/or steadying a person while entering or exiting a pool or spa and that is typically part of a ladder, a set of steps, or deck-installed equipment.

(64) Hardness--The amount of calcium and magnesium dissolved in water measured by a chemical test kit and expressed as parts per million (ppm) of equivalent calcium carbonate.

(65) Heat exchanger--A device with coils, tubes or plates that absorbs heat from any fluid, liquid or air, and transfers that heat to another fluid without intermixing the fluids.

(66) Heat pump--A refrigeration compressor, usually electrically driven, that is operated in reverse. To obtain heat, the evaporator side (cooling coil) is exposed to warm water, air or ground. The evaporator coil absorbs the heat from this source and transfers it to the condenser coil where it discharges the heat to the pool or spa to be heated.

(67) Hot tub--A spa constructed of wood with sides and bottoms formed separately and joined together by pressure from surrounding hoops, bands, or rods; distinct from spa units formed of plastic, concrete, metal, or other materials.

(68) IESNA--Illuminating Engineering Society of North America, 120 Wall Street, Floor 17, New York, New York 10005-4001, telephone (212) 248-5000.

(69) Influent--The water entering a filter or other device.

(70) Jump board--A recreational mechanism for entering a pool that has a coil spring or comparable device located beneath the board which is activated by the force exerted in jumping on the board.

(71) Labeled--Equipment or material to which has been attached a label, symbol, or other identifying mark of an organization that is acceptable to the authority having jurisdiction and concerned with product evaluation that maintains periodic inspection of production of labeled equipment or materials and by whose labeling the manufacturer indicates compliance with appropriate standards or performance in a specified manner.

(72) Ladders -

(A) Deck ladder--A ladder ascending from ground level outside the pool or spa to the level of a deck.

(B) In-pool or in-spa ladder--A ladder located in a pool or spa to provide ingress and egress from the deck.

(73) Listed--Equipment or materials included in a list published by an organization acceptable to the authority having jurisdiction and concerned with product evaluation, that maintains periodic inspection of production of listed equipment or materials, and whose listing states either that the equipment or material meets appropriate designated standards or has been tested and found suitable for use in a specified manner.

(74) Local regulatory authority--The local enforcement body or authorized representative having jurisdiction over pools, spas, and associated facilities.

(75) May--An advisory statement or a good practice and is not legally required.

(76) MSHA--Mine Safety and Health Administration, 2002 Thayer Center, Oakland, Maryland 21550, telephone (301) 334-3831.

(77) Multi-port valve--A device that allows the multi-directional control of the passage or flow of water through a system. (See definition number (153) "Valve".)

(78) NEC--National Electric Code, published by NFPA. (See definition number (80) "NFPA".)

(79) NEMA--National Electric Manufacturers Association, 1300 North 17th Street, Suite 1847, Rosslyn, Virginia 22209, telephone (703) 841-3200.

(80) NFPA--National Fire Protection Association, 11 Tracy Drive, Avon, Massachusetts 02322, telephone (800) 344-3555.

(81) NOx--(also written nox) Nitrogen oxides or the sum of the nitric oxide and nitrogen dioxide found in the flue gas or emission point of a source.

(82) NRPA--National Recreation and Park Association, 650 West Higgins Road, Hoffman Estates, Illinois 60195-3402, telephone (847) 843-7529.

(83) NSFI--NSF International, (National Sanitation Foundation International), 789 North Dixboro Drive, Ann Arbor, Michigan 48115, telephone (800) 673-6275.

(84) NSPF--National Swimming Pool Foundation, 224 East Cheyenne Mountain Boulevard, Colorado Springs, CO 80906, telephone (719) 540-9119.

(85) NSPI--National Swimming Pool Institute, 2111 Eisenhower Avenue, Alexandria, Virginia 22314, telephone (703) 838-0083.

(86) Offset ledge--A horizontal shelf or ledge projecting toward the interior of a pool from the vertical wall that provides a safe footing for a pool user to stand on in deep areas of the pool.

(87) Operating water level range--The operating water level defined in one of the following ways:

(A) skimmer system--Two inches above to 2 inches below the midpoint of the operating range of the device, or manufacturer's maximum stated operating range; or

(B) overflow (gutter) system--The manufacturer's maximum stated operating range above the design water level.

(88) Organic matter--Perspiration, urine, fecal matter, saliva, suntan oil, cosmetics, lotions, dead skin, and similar debris introduced to water by users and the environment.

(89) ORP--The potential level of oxidation-reduction produced by strong oxidizing (sanitizing) agents in a water solution. Oxidation level is measured in millivolts by an ORP meter.

(90) OSHA--United States Department of Labor, Occupational Safety and Health Administration, 200 Constitution Avenue N.W., Washington, D.C. 20210, telephone (800) 321-6742.

(91) Outlet--(See definition number (130) "Suction outlet".)

(92) Overflow system--Overflows, surface skimmers, and surface water collection systems of various design and manufacture for removal of pool or spa surface water.

(93) Owner/operator--Fee title holder of the property upon which the pool or spa is located, and/or business manager, complex manager, property owners, association manager, rental agent or other individual who is in charge of the day to day operation or maintenance of the property. The owner/operator is responsible to ensure that the pool or spa and associated facilities comply with state and local pool or spa design, construction, operation, and maintenance standards.

(94) Parts per million (PPM)--A unit of measurement in chemical testing that indicates the parts by weight in relation to one million parts by weight of water. For the purposes of pool or spa water chemistry, ppm is considered to be essentially identical to the term milligrams per liter (mg/L).

(95) pH--A value expressing the relative acidic or basic tendencies of a substance, such as water, as indicated by the hydrogen ion concentration. The pH is expressed as a number on the scale of zero to 14, zero being most acidic, 1 to 7 being acidic, 7 being neutral, 7 to 14 being basic and, 14 being most basic.

(96) Plaster--A type of interior finish (a mixture of cement and aggregate) that is applied to a concrete pool or spa and that is either white or meets the observable "black disk" requirement in §265.184(f) of this title (relating to General Construction and Design for Post-10/01/99 Pools and Spas) and §265.185(c) of this title (relating to General Construction and Design for Pre-10/01/99 Pools and Spas).

(97) Plummet--A line perpendicular to the water surface and extending vertically to a point located at the front end of the diving board and at the center line directly in front of the diving board.

(98) Pool--Any man-made permanently installed or non-portable structure, basin, chamber, or tank containing an artificial body of water that is used for swimming, diving, aquatic sports, or other aquatic activity other than a residential pool and that is operated by an owner, lessee, operator, licensee or concessionaire, regardless of whether a fee is charged for use. The pool may be either publicly or privately owned. The term does not include a spa or a decorative fountain that is not used as a pool. References within the standard to various types of pools are defined by the following categories.

(A) Class A pool--Any pool used, with or without a fee, for accredited competitive aquatic events such as Federation Internationale De Natation Amateur (FINA), United States Swimming, United States Diving, National Collegiate Athletic Association (NCAA), National Federation of State High School Associations (NFSHSA), events. A Class A pool may also be used for recreation.

(B) Class B pool--Any pool used for public recreation and open to the general public with or without a fee.

(C) Class C pool--Any pool operated for and in conjunction with

(i) lodging such as hotels, motels, apartments, condominiums, or mobile home parks,

(ii) property owner associations, private organizations, or clubs, or

(iii) a school, college or university while being operated for academic or continuing education classes. The use of such a pool would be open to occupants, members or students, etc., and their guests but not open to the general public.

(D) Class D pool--A wading pool with a maximum water depth of 24 inches at any point.

(99) Pool yard or spa yard--An area that has a pool yard or spa yard enclosure and that contains a pool or spa.

(100) Pool yard or spa yard enclosure--A fence, wall, or combination of fences, walls, gates, windows, or doors that completely surround a pool or spa.

(101) Post-10/01/99 pool or spa--A pool or spa built on or after October 1, 1999, unless otherwise indicated. See §265.181(b) of this title (relating to General Provisions).

(102) Post-10/01/99 pool and/or spa construction--The activity of building or installing a pool and/or spa structure, and its component parts, where no such structure has previously existed or where previously pre-10/01/99 pool or spa structures have been removed.

(103) Potable water--Water that is bacteriologically safe and otherwise suitable for drinking and is regulated by the Texas Commission on Environmental Quality or local regulatory authority as a drinking water system.

(104) Pre-10/01/99 pool or spa--A pool or spa built before October 1, 1999, unless otherwise indicated. See §265.181(b) of this title (relating to General Provisions).

(105) Precipitate--A solid material that is forced out of a solution by some chemical reaction and that settles out or remains as a haze in suspension (turbidity).

(106) Pressure differential--The difference in pressure between two parts of a hydraulic system, such as the influent and effluent of a filter.

(107) PSI--Pounds per square inch.

(108) Pump--A mechanical device, usually powered by an electric motor that causes hydraulic flow and pressure for the purpose of filtration, heating, and circulation of pool and spa water.

(109) Push-pull valve--A device that allows the dual direction control or flow of water through a system. (See definition number (153) "Valve.")

(110) Rate of flow--The quantity of water flowing past a designated point within a specified time, such as the number of gallons flowing in 1 minute (gallons per minute).

(111) Regulatory authority--Any federal, state, or local enforcement body or authorized representative having jurisdiction over pools, spas, and associated facilities.

(112) Residential pool or spa--A pool or spa that is located on private property under the control of the property owner or the owner's tenant and that is intended for use by not more than two resident families and their guests. It includes a pool or spa serving only a single-family home or a duplex.

(113) Return inlet or inlet--The aperture or fitting through which the water under positive pressure returns into a pool or spa.

(114) Ring buoy--A ring-shaped floating buoy capable of supporting a user.

(115) Rope and float line--A continuous line that is not less than 1/4 inch in diameter and that is supported by buoys and attached to opposite sides or ends of a pool to separate the deep and shallow ends or mark exercise or racing lanes.

(116) Scale--The precipitate that forms on surfaces in contact with water when the hardness, pH, or total alkalinity levels are too high.

(117) Self-closing and self-latching device--A device that causes a gate to automatically fully close and latch without human or electrical power.

(118) Separation tank--A tank used in conjunction with a filter to facilitate the separation of filtrate material for disposal.

(119) Service animal--A guide dog, signal dog, or other animal trained to do work or perform tasks for the benefit of an individual with a disability, including but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, or providing minimal protection or rescue work, such as pulling a wheelchair, or fetching dropped items.

(120) Shall--Mandatory provisions of these regulations.

(121) Shallow areas--Pool water areas that are 5 feet deep or less.

(122) Shock treatment--The practice of adding significant amounts of an oxidizing chemical to water to destroy ammonia and nitrogenous and organic contaminants in water.

(123) Skimmer weir--Part of a skimmer that adjusts automatically to small changes in water level to assure a continuous flow of water to the skimmer.

(124) Slide--A recreational feature with a flow of water and an inclined flume or channel by which a rider is conveyed downward into a pool.

(125) Slip-resistant--A surface that has been treated or constructed to significantly reduce the chance of slipping.

(126) Spa--A constructed permanent or portable structure that is 2 feet or more in depth and that has a surface area of 250 square feet or less or a volume of 3250 gallons or less and that is intended to be used for bathing or other recreational uses and is not drained and refilled after each use. It may include, but is not limited to, hydrojet circulation, hot water, cold water, mineral baths, air induction bubbles, or any combination thereof. A spa, as is defined in these rules, does not refer to a business establishment such as a day spa or a health spa. Industry terminology for a spa includes, but is not limited to, "hydrotherapy pool," "whirlpool," "hot spa," "hot tub," etc. A spa does not include a residential spa. (See definition number (112) "Residential pool or spa".)

(127) Special aquatic activity device--An interactive play device, such as a slide, spray stream, or similar item, utilizing water that is recirculated.

(128) Stabilizer--A chemical that helps reduce the excess loss of chlorine in water due to the ultraviolet rays of the sun. (See definition number (41) "Cyanuric acid".)

(129) Steps, recessed steps, ladders, and recessed treads--A means of pool and spa ingress and egress that may be used separately or in conjunction with one another.

(A) Steps--A riser/tread or series of risers/treads extending down from the deck and terminating at the pool or spa floor. Included are recessed steps that have the risers located outside of user areas.

(B) Ladders--A series of vertically separated treads or rungs connected by vertical rail members or independently fastened to an adjacent vertical pool or spa wall. (See definition number (72) "Ladders" for particular ladder types.)

(C) Recessed treads--A series of vertically spaced cavities in the pool or spa wall creating tread areas for step holes.

(130) Suction outlet--The aperture or fitting through which the water is drawn from the pool or spa. A skimmer is not considered a suction outlet for purposes of these rules.

(131) Super chlorination--The practice of adding a sufficient amount of chlorinating compound to water to destroy chlorine demand compounds and any combined chlorine that is present. Generally, the level of chlorine added is 10 times the level of combined chlorine in the water. (See also definition number (25) "Breakpoint chlorination".)

(132) Surface skimmer system/Through wall skimmer--A device installed in the wall of an in-ground pool or spa, or above-ground pool or spa that permits the continuous removal of floating debris and surface water to the filters.

(133) Surge pit--A collecting tank or sump that allows the pool drains(s) and surface collection system to flow into it by gravity.

(134) SVRD--A safety vacuum release device, as described in §296.190(d)(3)(B) of this title for minimizing risk of entrapment.

(135) SVRS--A safety vacuum release system that consists of either an SVRD or an AVS, as described in §296.190(d)(3) of this title for minimizing risk of entrapment.

(136) Swimout--A recessed area outside of the general perimeter of the pool designed to facilitate the entry and exit of swimmers from a pool.

(137) TCEQ--Texas Commission on Environmental Quality, P. O. Box 13087, Austin, Texas 78711-3087, telephone (512) 239-1000.

(138) TDLR--Texas Department of Licensing and Regulation, Boiler Division, P. O. Box 12157, Austin, Texas 78711, telephone (800) 803-9202.

(139) TDS--Total dissolved solids, i.e., a measure of the total amount of dissolved matter in water (for example, calcium, magnesium, carbonates, bicarbonates, metallic compounds).

(140) Test kit--A device for monitoring a specific chemical level in pool or spa water.

(141) Therapeutic pool or spa--A pool or spa that is operated exclusively for therapeutic purposes, such as physical therapy, and is under the direct supervision and control of licensed medical personnel.

(142) Total alkalinity--A measure of the ability or capacity of water to resist change in pH; also known as the buffering capacity of water. Measured with a test kit and expressed as ppm; consists mainly of carbonates, bicarbonates and hydroxides.

(143) Total chlorine--The sum of both the free available and combined chlorine.

(144) Toxic--A substance that has an adverse physiological effect on human beings or other living organisms.

(145) Turbidity--Cloudy condition of water due to the presence of fine particulate materials in suspension that interferes with the passage of light.

(146) Turnover rate--The period of time (usually in hours) required to circulate a volume of water equal to the total pool or spa capacity.

(147) UFC--Uniform Fire Code, published by the International Fire Code Institute, 5360 Workman Mill Road, Whittier, California 90601-2298, telephone (800) 423-6587.

(148) Underwater light--A fixture designed to illuminate a pool or spa from beneath the water surface. An underwater light includes either of the following:

(A) wet niche light--a watertight and water-cooled light unit placed in a submerged, wet niche in the pool or spa wall and accessible only from the pool or spa; or

(B) dry niche light--a light unit placed behind a watertight window in the pool or spa wall.

(149) UL--Underwriters Laboratory, 333 Pfingsten Road, Northbrook, Illinois 60062-2096, telephone (847) 272-8800.

(150) User--A person using a pool or spa and adjoining deck area for the purpose of water sports, recreation therapy or related activities.

(151) User load--The number of persons in the pool or spa area at any given moment, or during any stated period of time.

(152) Vacuum--The reduction of atmospheric pressure within a pipe, tank, pump, or other vessel. Vacuum is measured in inches of mercury. Each inch of mercury is equivalent to 1.13 feet of head. The typical maximum vacuum is 30 inches of mercury, or 33.9 feet of head.

(153) Valve--Any device in a pipe that will partially or totally obstruct the flow of water (as in a ball, gate or globe valve) or permit flow in one direction only (as in a check or foot valve). See definition numbers (22) Bleeder valve, (77) Multi-port valve, and (109) Push-pull valve.

(154) Velocity--The speed at which a liquid flows between two specified points, expressed in feet per second.

(155) Vortex pool--Circular pools equipped with a method of transporting water in the pool for the purpose of propelling riders at speed dictated by velocity of the moving stream.

(156) Wading pool--A Class D pool that has a maximum depth of 2 feet at any point.

(157) Walls--The interior pool or spa wall surfaces consisting of surfaces from plumb to a slope of 11 degrees from plumb.

(158) Waste water disposal system--A plumbing system used to dispose of backwash or other water from a pool or spa or from dressing rooms and other facilities associated with a pool or spa.

(159) Water action pools--A pool designed to simulate breaking or cyclic waves for the purpose of general play or surfing.

(160) Water lounge--A horizontal area of a pool that adjoins the pool wall at a depth of from 2 inches to 10 inches, is used for seating and play.

(161) Weir--Part of a skimmer that adjusts automatically to small changes in water level to assure a continuous flow of water to the skimmer.

(162) YMCA--Y.M.C.A. of U.S.A. (Y.M.C.A.), 101 North Wacker, Chicago, Illinois 60606, telephone (800) 872-9622.

(163) Zero depth entry pool--A pool in which the pool floor intersects the water surface along at least one side of the pool.

§265.183.Plans, Permits and Instructions for Post-10/01/99 Pools and Spas.

(a) Plans and permits for post-10/01/99 pools and spas. The department may review plans for post-10/01/99 pools or spas in order to ensure compliance regarding enforcement issues. If the department intends to review plans it will notify the owner/operator in writing. The department recommends that a registered professional engineer or registered architect be consulted to ensure that the pool or spa is designed and built in compliance with these rules and applicable federal, state, and/or local regulatory requirements. Regardless of whether a regulatory authority requires plans or permits, pools and spas shall be designed, constructed, and operated in compliance with these standards.

(b) Instructions for post-10/01/99 pools and spas. Upon completion of construction of a post-10/01/99 pool or spa, the owner shall obtain from the pool or spa builder complete written operational instructions for the pool or spa. Written instructions shall include items such as procedures for filtration, backwash, cleaning, and operation of all chemical feed devices and general maintenance of pool or spa. In addition, the following are required:

(1) labeling of valves;

(2) labeling of exposed piping

(3) clean filter pressures, normal operating pressures, and pressure differentials that indicate the need for filter cleaning.

§265.184.General Construction and Design for Post-10/01/99 Pools and Spas.

(a) Structural design and materials for post-10/01/99 pools and spas. Construction design and materials used in construction of post-10/01/99 pools and spas shall comply with the requirements of this section, as well as other requirements expressly stated in these rules.

(b) Non-toxic and sound materials for post-10/01/99 pools and spas. Post-10/01/99 pools and spas and all appurtenances shall be constructed of materials that are considered to be nontoxic to humans and the environment, are impervious and enduring, and will withstand design stresses; and will provide a water-tight structure with a smooth and easily cleanable surface without cracks or joints, excluding structural joints.

(c) Accepted practice for post-10/01/99 pools and spas. The structural design and materials used for post-10/01/99 pools or spas shall be in accordance with generally accepted industry engineering practices and methods prevailing at the time of original construction.

(d) NSFI Standard-50 for post-10/01/99 pools and spas. Where equipment for a post-10/01/99 pool or spa such as pumps, filters, skimmers, chemical feeders, and other equipment, falls within the scope of ANSI and NSFI Standard-50-1996 (ANSI/NSFI-50-1996), such equipment shall meet the standard as confirmed by a testing laboratory, except as otherwise noted in Section 265.190(h) of this title (relating to Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas). Conformity with standards noted above shall be evidenced by the listing or labeling of such equipment by such a laboratory or by separate documentation.

(e) Prohibition of earth material for post-10/01/99 pools and spas. Earth shall not be permitted as an interior finish in a post-10/01/99 pool or spa. Clean sand or similar material, if used in a beach pool environment shall only be used over an impervious surface and designed to perform in such an environment, and controlled so as not to adversely affect the proper filtration, treatment system, maintenance, safety, sanitation and operation of the overall pool or spa. If sand or similar material is used, positive upflow circulation through the sand shall be provided as necessary to assure that sanitary conditions are maintained at all times.

(f) Interior color for post-10/01/99 pools and spas. The colors, patterns, or finishes of a post-10/01/99 pool or spa interior shall not obscure the existence or presence of objects or surfaces within the pool or spa. All post-10/01/99 pool and spa interior surfaces shall be a light enough color so that an 8-inch black disk on the pool or spa floor at the deepest point of the pool or spa can be clearly and immediately seen by an observer standing on the pool or spa deck at a point closest to the disk.

(g) Materials to withstand freezing temperatures for post-10/01/99 pools and spas. In climates subject to freezing temperatures, a post-10/01/99 pool or spa shell and appurtenances, piping, filter system, pump and motor, and other components shall be designed and constructed to facilitate protection from damage due to freezing.

(h) Hydrostatic relief for post-10/01/99 pools and spas. A hydrostatic relief valve, plug, or a more extensive hydrostatic system shall be installed if necessary to prevent ground water pressure from displacing or otherwise damaging a post-10/01/99 pool or spa.

(i) Interior surface footing for post-10/01/99 pools and spas. The surfaces within a post-10/01/99 pool or spa intended to provide footing for users shall have a slip-resistant surface to help reduce the chance for a fall. The roughness or irregularity of such surfaces shall not cause injury to feet during normal use.

(j) General shape for post-10/01/99 pools and spas. This standard is not intended to regulate the perimeter shape of post-10/01/99 pools or spas. It is the designer's responsibility to take into account the effect a given shape will have on the health and safety of the occupants.

(k) Dimensional variation for post-10/01/99 pools and spas. Dimensions for post-10/01/99 pools and spas may vary in limited areas where access for persons with disabilities has been provided, as long as general safety of all users is maintained. The design shall take into account requirements of the "Americans with Disabilities Act of 1990", 42 U.S.C. §§12101-12213, Disability Act and any other applicable local, state and federal laws relating to such access.

(l) Entanglement or entrapment avoidance for post-10/01/99 pools and spas. There shall be no protrusions, extensions, means of entanglement, or other obstructions in a post-10/01/99 pool or spa that are likely to cause the entrapment or injury of the user. For specific information regarding entrapment issues, see the CPSC, Handbook for Public Playground Safety, Publication Number 325-1997, or the ASTM, Standard Consumer Safety Performance Specification for Playground Equipment for Public Use, F1487-1995.

(m) Construction tolerances for post-10/01/99 pools and spas. For post-10/01/99 pools and spas, construction tolerances allowed on all dimensional designs for overall length, width, and depth in the deep end may vary plus or minus 3 inches. All other dimensions may vary plus or minus 2 inches, unless otherwise specified (such as in a Class A pool). The design water level shall have a maximum construction tolerance at the time of completion of the work of plus or minus 1/4 inch for post-10/01/99 pools or spas with adjustable weir surface skimming systems, and of plus or minus 1/8 inch for post-10/01/99 pools or spas with non-adjustable surface skimming systems. Step treads and risers may vary plus or minus 1/2 inch.

(n) Maximum user loading for post-10/01/99 pools and spas. The maximum number of users to be allowed in a post-10/01/99 pool or spa at one time will depend on a number of factors, such as the type of pool or spa; indoor or outdoor location, surface area, operating characteristics of the water; purification system, quality and clarity of the pool or spa water, etc., the most significant factors are the surface area of the water in the pool or spa and the sanitary and physical condition of the pool or spa water. Based on these factors, pool or spa owners of a post-10/01/99 pool or spa shall reduce the user load if pre-10/01/99 conditions indicate the need. The maximum user load in a post-10/01/99 pool or spa shall be based on the following.

(1) In post-10/01/99 pools, maximum load limit shall be in accordance with the following table:

Figure: 25 TAC §265.184(n)(1)

(2) In post-10/01/99 spas, the maximum user load shall not exceed 1 person per 10 square feet of water surface area.

(o) Interior walls for post-10/01/99 pools and spas. Post-10/01/99 Class B and C pools and spas shall have walls not greater than 11 degrees from plumb. Maximum allowable wall slope:

Figure: 25 TAC §265.184(o)

(p) Walls joining floors for post-10/01/99 pools. Walls for post-10/01/99 Class B and C pools shall be joined to the floor with a radius tangent to the wall at a depth not less than 4 feet 6 inches in water depths 8 feet and greater and not less than 2 feet 6 inches in water depths of 3 feet. The tangent radius point at the wall shall progressively move between these points as the water depth progressively changes. Wall to floor radiuses shall not encroach on the minimum specified floor width, prescribed in §265.186(c)(7) of this title (relating to Decks, Entry/Exit, Diving Facilities and Other Deck Equipment at Post-10/01/99 and Pre-10/01/99 Pools and Spas). Class A pools, where racing lanes terminate, shall have walls that are not greater than 1 degree from vertical.

(q) Floor slopes for post-10/01/99 pools. Floor slopes for post-10/01/99 pools shall, as a minimum meet the following requirements:

(1) all slopes shall drain and be uniform within the different activity areas of the pool;

(2) the slope of the floor from the shallow end wall toward the deep end shall not exceed 1 foot in 10 feet to the point of the first slope change;

(3) the point of the first slope change shall be defined as the point at which the floor slope exceeds 1 foot in 10;

(4) the slope of the floor from the point of the first slope change to the deep end shall not exceed 1 foot in 3 feet; and

(5) the slope of the floor may vary in limited areas where access for persons with disabilities has been provided.

(r) Visual separation for post-10/01/99 pools. Any area of a post-10/01/99 pool that is less than 3 feet in depth shall be visually set apart from deeper areas of the pool by a minimum 4-inch wide tile band, painted line, or similar means of contrasting color across the floor at this point, see also §265.199(b)(1), (2), and (3) of this title (relating to Specific Safety Features for Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(s) Zero depth entry design for post-10/01/99 pools. Zero depth entry designs for post-10/01/99 pools shall be allowed where the bottom of the pool in the beginner's area is designed and constructed to meet the pool deck surface at a slope not to exceed 1 in 12 to a water depth of 1-1/2 feet. In such pools where the water depth is less than 1-1/2 feet, floor inlets shall be provided and spaced uniformly with at least 1 inlet per 200 square feet or portion thereof.

(t) Offset ledges for post-10/01/99 pools. When provided in a post-10/01/99 pool, offset ledges shall:

(1) fall within 11 degrees from plumb starting at the junction of the pool wall and the design water level;

(2) have a slip-resistant surface; and

(3) have a maximum width of 8 inches and shall be in accordance with the following drawing of offset ledges:

Figure: 25 TAC §265.184(t)(3)

(u) Underwater seat benches for post-10/01/99 pools and spas. Underwater seat benches for post-10/01/99 pools and spas shall:

(1) have a maximum seating width of 18 inches projecting from the wall at a depth not to exceed 24 inches below the design water level;

(2) be located fully outside of the required minimum diving water envelope if the pool is intended for use with diving equipment;

(3) be visually set apart and be provided with a solid or broken stripe at least 1 inch wide on the top surface along the front leading edge of the bench. The stripe shall be plainly visible to persons on the pool deck. The stripe shall be a contrasting color to the background on which it is applied, and the color shall be permanent;

(4) have a slip-resistant surface; and

(5) not be used as the required entry/exit access unless they are in conjunction with pool steps.

(v) Water lounges in post-10/01/99 pools and spas. Water lounges in post-10/01/99 pools and spas must:

(1) be a minimum of 20 inches wide and provide a minimum of 10 square feet of horizontal surface adjoining on the edge of the pool over a distance of not less than 3 feet;

(2) be horizontal and at a depth of 2 inches to 10 inches below the water surface;

(3) be visually set apart with a horizontal solid or broken stripe at least 1 inch wide on the top surface along the leading edge of horizontal surfaces of all edges not adjoining the pool wall. The stripe shall be plainly visible to persons on the pool deck. The stripe shall be a contrasting color to the background on which it is applied, and the color shall be permanent;.

(4) be located fully outside of the required minimum diving water envelope if the pool is intended for use with diving equipment;

(5) have a slip-resistant surface; and

(6) be located in water depths of 4 feet or less.

(w) Special requirements for post-10/01/99 Class D wading pools.

(1) Post-10/01/99 wading pools at a facility having Class A, B, or C pools shall be separate and physically set apart from beginner or shallow water areas by at least 15 feet of deck or a pool yard enclosure meeting the requirements of §265.200 of this title (relating to Pool Yard and Spa Yard Enclosures for Post-10/01/99 and Pre-10/01/99 Pools and Spas). If a pool yard enclosure is provided, clear visibility through the barrier shall be maintained.

(2) If a post-10/01/99 wading pool at a facility having a Class A, B, or C pool is within 35 feet of any deep-water area, a pool yard enclosure meeting the requirements of §265.200 of this title shall be provided to physically separate the wading pool from the deep-water area. Clear visibility through the barrier shall also be maintained.

(3) The maximum water depth in a post-10/01/99 wading pool shall be no greater than 24 inches. At the perimeter of the pool the vertical distance from the deck or walk to the bottom of the pool or to perimeter seating bench underwater shall not be greater than 18 inches. The vertical distance from the bottom of the pool to the deck or walk may be reduced and brought to zero at the most shallow point. The slope of zero level deck entries shall not exceed 1 foot in 12 feet.

(4) Floors of post-10/01/99 wading pools shall be uniform, sloped to drain with a maximum slope of 1 foot in 12 feet, and shall be slip-resistant.

§265.185.General Construction and Design for Pre-10/01/99 Pools and Spas.

(a) Structural design and materials for pre-10/01/99 pools and spas. Construction design and materials used in construction of pre-10/01/99 pools and spas shall comply with good public health engineering practices for construction of newly-built pools and spas prevailing at the time of original construction as required by Health and Safety Code, §341.064(g), and shall comply with these rules except as expressly provided otherwise.

(b) Prohibition of earth material for pre-10/01/99 pools and spas. Earth shall not be permitted as an interior finish in a pre-10/01/99 pool or spa. Clean sand or similar material, if used in a beach pool environment shall only be used over an impervious surface and designed to perform in such an environment, and controlled so as not to adversely affect the proper filtration, treatment system, maintenance, safety, sanitation and operation of the overall pool or spa. If sand or similar material is used, positive upflow circulation through the sand shall be provided as necessary to assure that sanitary conditions are maintained at all times.

(c) Interior color for pre-10/01/99 pools and spas. The colors, patterns, or finishes of a pre-10/01/99 pool or spa interior shall not obscure the existence or presence of objects or surfaces within the pool or spa. Surfaces of a pre-10/01/99 pool and spa shall be a light enough color so that an 8 inch black disk on the pool or spa floor at the deepest point of the pool or spa can be clearly and immediately seen by an observer standing on the pool or spa deck at a point closest to the disk.

(d) NSFI Standard-50 for pre-10/01/99 pools and spas. When equipment is replaced on pre-10/01/99 pools and spas, such equipment that falls within the scope of ANSI and NSFI Standard-50-1996 (ANSI/NSFI-50-1996), shall meet the standard as confirmed by a testing laboratory. Conformity with standards noted above shall be evidenced by the listing or labeling of such equipment by such a laboratory or by separate documentation.

(e) Maximum user loading for pre-10/01/99 pools and spas. The maximum number of users to be allowed in a pre-10/01/99 pool or spa at one time will depend on a number of factors, such as the type of pool or spa; indoor or outdoor location; surface area; operating characteristics of the water; purification system; quality and clarity of the pool or spa water, etc., the most significant factors being the surface area of the water in the pool or spa and the sanitary and physical condition of the pool or spa water. Based on these factors, pool or spa owners of a pre-10/01/99 pool or spa shall reduce the user load if pre-10/01/99 conditions indicate the need. The maximum user load in a pre-10/01/99 pool or spa shall be based on the following:

(1) In pre-10/01/99 pools, the maximum load limit shall be in accordance with the table in §265.184(n)(1) of this title (relating to General Construction and Design for Post-10/01/99 Pools and Spas).

(2) In pre-10/01/99 spas, the maximum user load shall not exceed 1 person per 10 square feet of water surface area.

§265.186.Decks, Entry/Exit, Diving Facilities, and Other Deck Equipment at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Decks for post-10/01/99 pools and spas.

(1) Deck(s) for post-10/01/99 pools and spas shall be designed and installed in accordance with the engineering methods required by the department or the applicable local regulatory authority. This includes the design and quality of subbase, concrete mix, reinforcing, joints, etc.

(2) If a concrete deck is installed, in the absence of specific local engineering practices, the work shall be performed in accordance with ACI Standard 302.1R-1998, "Guide for Concrete Floor and Slab Construction."

(3) Decks, ramps, coping, steps, markings, brand insignias and similar surfaces shall be slip-resistant and easily cleanable.

(4) Soils supporting decks shall have adequate load-bearing capacities.

(5) The minimum continuous, unobstructed, usable deck width (which can include flush coping) shall conform with subparagraphs (A)-(G) of this paragraph, except that at a Class B, C, or D pool, as much as 35% of the deck in subparagraphs (A)-(E) of this paragraph may be replaced with other structures; however, in no case shall other structures restrict emergency access or create above deck structures that may be used as diving platforms or create other safety or sanitary hazards.

(A) Class A pool deck widths shall meet standards of the appropriate sanctioning body that regulates the type of competitions to be held.

(B) Class B pool deck widths shall be a minimum of 4 feet if the post-10/01/99 pool was built before October 1, 2004.

(C) Class B pool deck widths shall be a minimum of 6 feet if the post-10/01/99 pool is built on or after October 1, 2004.

(D) Class C pool deck widths shall be a minimum of 4 feet.

(E) Class D pool deck widths shall be a minimum of 4 feet.

(F) Decks shall be provided surrounding at least 50% or more of the spa. Spa deck widths shall be a minimum of 4 feet, and the decks shall be continuous and unobstructed. Coping that is flush where it meets the deck may be included in determining minimum deck width compliance.

(G) A minimum of 4 feet of deck width shall be provided on the sides and rear of any diving equipment. A deck clearance of 3 feet shall be provided around all other deck equipment.

(6) The minimum slope of the deck(s) shall be 1/8 inch per foot for textured, hand-finished concrete decks and 1/4 inch per foot for exposed aggregate concrete decks including decks covered with an epoxy finish and other specialty surfaces installed according to the manufacturer's instructions and good sanitation practices. Wood decks or indoor/outdoor carpeting shall not be located within the distance specified in paragraph (5) of this subsection unless approved by local regulatory authority.

(7) The maximum slope of all decks, other than wood decks, shall be one-half inch per foot, except for ramps. The maximum slope for wood decks shall be 1/8 inch per foot. Gaps shall be required between deck boards consistent with good engineering and safety practices with respect to the type of wood used.

(8) The maximum gaps between pool or spa decks and/or walkways including joint material, shall be 3/16 inch of horizontal clearance with a maximum difference in vertical elevation of 1/4 inch.

(9) Joints where pool or spa coping meets concrete deck(s) shall be watertight.

(10) Joints where pool or spa coping meets concrete deck shall be installed to protect the coping and its mortar bed from damage as a result of movement of adjoining deck(s).

(11) Joints in deck(s) shall be provided to minimize the potential for cracks due to shrinkage or slight movement of the slab.

(12) The areas where concrete deck(s) join other concrete work shall be protected by expansion joints to protect the pool and spa adequately from the pressures of relative movements.

(13) The edge of deck(s) shall be rounded, tapered or otherwise shaped to eliminate sharp corners.

(14) Deck(s) shall be sloped to effectively drain to perimeter areas or to deck drains. Drainage shall remove pool and spa splash water, deck cleaning water, and rainwater without leaving standing water deeper than 1/8 inch. Water from deck drainage shall not be mixed with pool or spa water.

(15) Site drainage shall direct all perimeter deck drainage, general site and roof drainage away from the pool area. Yard drains shall be installed, as needed, to prevent the accumulation or puddling of site water in the general area of the deck(s) and related improvements.

(16) Valves installed in or under any deck(s) shall be accessible through an access cover at least 10 inches in diameter and installed in a valve pit at least 10 inches in diameter to facilitate operation, service, and maintenance. Access covers shall be provided for valve pits for post-10/01/99 pools and spas.

(17) An adequate number of hose bibs and adequate hose shall be provided for washing down all areas of the deck. Cross-connection control device(s) as approved by the TCEQ or local regulatory authority shall be provided. When not in use, hoses shall be stored in such a manner to prevent a hazard from tripping.

(b) Decks for pre-10/01/99 pools and spas.

(1) Decks for pre-10/01/99 pools and spas shall comply with the construction and design requirements in existence at the time the pool was originally built.

(2) In decks of pre-10/01/99 pools and spas, access covers shall be provided for any valve pits in the decks.

(3) In pre-10/01/99 pools and spas, the usable pool deck (which can include flush coping) must be continuous and unobstructed and shall conform to the applicable minimum width in subparagraphs (A)-(E) of this paragraph. However, at a Class B, C, or D pool, as much as 35% of the deck in subparagraphs (A)-(E) of this paragraph may be replaced with other structures. Other structures must not restrict emergency access or create above-deck structures that may be used as diving platforms or create other safety or sanitary hazards.

(A) Class A pool deck widths shall meet standards of the appropriate sanctioning body that regulates the type of competitions to be held.

(B) Class B pool deck widths shall be a minimum of 4 feet.

(C) Class C pool deck widths shall be a minimum of 4 feet.

(D) Class D pool deck widths shall be a minimum of 4 feet.

(E) A minimum of 4 feet of deck width shall be provided on the sides and rear of any diving equipment. A deck clearance of 3 feet shall be provided around all other deck equipment.

(c) Entries and exits for post-10/01/99 pools. Post-10/01/99 pools shall have a minimum of two entry/exits, e.g., one serving the shallow end and one serving the deep end. Entry/exits may consist of ladders, steps, recessed treads, zero depth entries or combinations thereof. Ladders, steps, and recessed treads shall conform to the following:

(1) in post-10/01/99 pools, areas where the vertical distance from the bottom of the pool to the deck or walk is 18 inches or less at the pool wall may be considered as an entry/exit;

(2) in post-10/01/99 pools, if the deep portion of the pool is more than 30 feet wide, opposite sides of the deep portion must each have an entry/exit;

(3) a means of entry/exit for the shallow end of a post-10/01/99 pool shall be located between the shallow end wall and the cross section at Point C, while a means of entry/exit for the deep end shall be between the deep end wall and the cross section at Point B, refer to pool dimensions at subsection (e)(6) of this section, or if not a diving pool, they shall be so located as to reasonably serve the respective areas;

(4) a means of entry/exit shall be provided at a minimum of every 75 linear feet of wall or fraction thereof, in a post-10/01/99 pool;

(5) steps, ladders, and recessed treads in a post-10/01/99 pool shall be located so as not to interfere with racing lanes if applicable;

(6) steps, ladders, and recessed treads in a post-10/01/99 pool shall have slip-resistant surfaces;

(7) steps in a post-10/01/99 pool shall comply with the following:

(A) steps shall have a minimum unobstructed horizontal depth (i.e., horizontal run) of 12 inches and a minimum width of 20 inches;

(B) risers for steps shall have a maximum uniform height of 10 inches, with the bottom riser height allowed to taper to zero;

(C) underwater steps shall be provided with a horizontal solid or broken stripe at least 1 inch wide on the top surface along the front leading edge of each step. This stripe shall be plainly visible to persons on the pool deck. The stripe shall be a contrasting color to the background on which it is applied, and the color shall be permanent in nature and shall be a slip-resistant surface; and

(D) the pool shall comply with applicable requirements for disability access for pools under federal, state, and local fair housing and handicap access laws. A handrail shall be provided in pools for which a lifeguard is required under these rules. When provided, handrails shall comply with the following requirements:

(i) handrails, if removable, shall be installed in such a way that they cannot be removed without the use of tools;

(ii) the leading edge of handrails for steps shall be no more than plus or minus 8 inches horizontally from the vertical plane of the bottom riser or extend into the pool to a water depth of 36 inches as measured from the horizontal step surface to the design water level; and

(iii) the outside diameter of handrails shall range from 1.25 inches to 2 inches;

(8) Pool ladder(s) with ladder treads in post-10/01/99 pools shall comply with the following:

(A) the handrails and treads of the ladders shall be made entirely of corrosion-resistant materials;

(B) two handrails shall be provided for each ladder, one on each side of the ladder;

(C) the clear horizontal distance between ladder handrails shall be a minimum of 17 inches and a maximum of 24 inches;

(D) there shall be a uniform vertical distance between ladder treads of not less than 7-inches or more than 12 inches;

(E) the vertical distance between the pool coping edge, deck, or step surface and the uppermost ladder tread shall be a maximum of 12 inches;

(F) the ladder treads shall have a minimum horizontal depth of 1.5 inches; and

(G) below the water level of the pool, the inside edge of the ladder hand rails may not be further than 5 inches and the ladder treads may not be further than 3.5 inches from the pool wall. See §265.184(l) of this title (relating to General Construction and Design for Post-10/01/99 Pools and Spas);

(9) pool ladder(s) with recessed treads in walls of post-10/01/99 pools shall comply with the following:

(A) the handrails of the ladders shall be made entirely of corrosion-resistant materials;

(B) two handrails shall be provided for each ladder, one on each side of the ladder;

(C) the clear horizontal distance between ladder handrails shall be a minimum of 17 inches and a maximum of 24 inches;

(D) there shall be a uniform vertical distance between recessed treads of not less than 7-inches or more than 12 inches;

(E) the vertical distance between the pool coping edge, deck, or step surface and the uppermost recessed tread shall be a maximum of 12 inches;

(F) the recessed treads shall have a minimum depth of 4.5 inches and a minimum width of 12 inches; and

(G) the recessed treads shall drain into the pool but not be sloped more than 1/2 inch per foot, to prevent the accumulation of dirt and debris.

(10) swimouts in the pool walls of post-10/01/99 pools shall comply with the following:

(A) swimouts shall be completely outside the perimeter shape of the pool;

(B) when used as an entry/exit access, swimouts shall be provided with step(s) to meet the pool step requirements as stated in paragraph (7) of this subsection;

(C) when steps are used in swimouts, they shall be visually set apart with a horizontal solid or broken stripe at least 1 inch wide on the top surface along the leading edge of horizontal surfaces of each step. The stripe shall be plainly visible to persons on the pool deck. The stripe shall be a contrasting color to the background on which it is applied, and the color shall be permanent;

(D) swimouts are allowed in the deep or shallow areas of the pool;

(E) the horizontal surface shall be a maximum of 20 inches below the design water level unless steps are provided in the swimout; and

(F) pools that do not utilize a perimeter overflow system shall provide a wall return inlet or outlet in the swimout to maintain sufficient circulation.

(d) Entries and exits for pre-10/01/99 pools.

(1) Entries and exits in pre-10/01/99 pools shall comply with good public health engineering practices for construction of newly-built pools and spas prevailing at the time of original construction as required by Health and Safety Code, §341.064(g), and shall comply with these rules except as expressly provided otherwise.

(2) Pre-10/01/99 pools shall comply with applicable requirements for disability access for pools under federal, state, and local fair housing and handicap access laws. A handrail serving all treads of a stepped entry shall be provided in pools for which a lifeguard is required under these rules. When provided, handrails shall be installed in such a way that they cannot be removed without the use of tools.

(e) Diving facilities for post-10/01/99 pools. Except for diving facilities in pools covered by subsection (g) of this section, diving facilities in post-10/01/99 pools shall comply with the following:

(1) post-10/01/99 pools with diving facilities in excess of 3 meters in height or pools designed for platform diving, shall comply with the pool dimension design requirements of one of the organizations listed in subsection (g) of this subsection;

(2) post-10/01/99 Class B and C pools with diving areas shall conform to the minimum water depths, areas, slopes, and other dimensions shown in paragraph (6) of this subsection. Diving equipment on post-10/01/99 Class B and C pools shall have a fixed fulcrum unless the design and construction of the pools meets the standards for a Class A pool as stated in subsection (g) of this subsection;

(3) at post-10/01/99 pools, there shall be a completely unobstructed clear vertical distance of 16 feet above any diving board measured from the center of the front end of the board. This area shall extend horizontally at least 12 feet behind, 12 feet to each side and 16 feet ahead of Point A, as described in paragraph (6) of this subsection;

(4) the tip of the diving board at a post-10/01/99 pool shall be located at directly above Point A, as described in paragraph (6) of this section, which is the reference point of all other dimensions. If the board is given more overhang, other dimensions shall move further outward by the same amount respectively;

(5) when other types of equipment or devices are provided for water entry at post-10/01/99 pools, installation of the equipment or devices shall be in accordance with the manufacturer's instructions regarding location, size, and depths of the required water envelope. At post-10/01/99 pools, a label shall be permanently affixed to the equipment or device and shall include the applicable items found in paragraph (9) of this subsection;

(6) minimum dimensions for diving areas of post-10/01/99 Class B and C pools are contained in the table:

Figure: 25 TAC §265.186(e)(6)

(7) at post-10/01/99 pools, supports, platforms, steps, and ladders for diving equipment shall be designed to carry the anticipated loads. Steps and ladders shall be of corrosion-resistant material, easily cleanable and with slip-resistant tread;

(8) in post-10/01/99 pools, diving equipment shall be installed according to manufacturer's instructions supplied with each unit;

(9) on post-10/01/99 pools, a label shall be permanently affixed to the diving equipment or diving board and shall include the following:

(A) manufacturer's name and address;

(B) board equipment length;

(C) identification as to diving or jump board;

(D) fixed fulcrum setting;

(E) reference to the applicable article(s) in the American National Standards Institute/National Swimming Pool Institute-1 (ANSI/NSPI-1, 1991) Standards for Public Swimming Pools;

(F) weight limitations as specified by the board manufacturer, if available; and

(G) date of installation;

(10) in post-10/01/99 pools, post-10/01/99 diving stands higher than 21 inches measured from the deck to the top butt end of the board shall have steps or a ladder and handrails. Step treads shall be self-draining;

(11) on post-10/01/99 pools, platforms and diving equipment of 1/2 to 1 meter in height shall be protected with guardrail(s) that shall be at least 30 inches above the diving board and extend from the butt end of the equipment to the edge of the pool wall. All platforms or diving equipment higher than 1 meter shall have dual guardrails that are approximately 18 inches and 36 inches above the diving board. A means shall be provided on platforms or diving equipment higher than 1 meter to prevent slips or falls through the equipment onto the deck surface;

(12) on post-10/01/99 pools, diving equipment shall have slip-resistant tread surfaces;

(13) on post-10/01/99 pools, diving equipment shall be permanently anchored to the pool deck;

(14) at post-10/01/99 pools, the top of the diving board from the deck end to the tip shall be level or have an upward slope of 5/8 inch per foot maximum, provided elevation difference shall not exceed 6 inches from the deck end to the tip of the board; and

(15) at post-10/01/99 pools, the maximum construction tolerances for the installation of diving equipment shall be plus or minus 2 inches to allow for construction variances only on Class B and C pools.

(f) Diving facilities in pre-10/01/99 pools. Except for diving facilities in pools covered by subsection (g) of this section, diving facilities in pre-10/01/99 pools shall comply with the following:

(1) diving areas for pre-10/01/99 Class A, B, and C pools shall conform to the minimum water depths, areas, slopes, and other dimensions in the table listed in subsection (e)(6) of this section;

(2) in pre-10/01/99 pools, new diving stands higher than 21 inches measured from the deck to the top butt end of the board shall have steps or a ladder and handrails. Step treads shall be self-draining; and

(3) when other types of equipment or devices are provided for water entry at pre-10/01/99 pools, installation of the equipment or devices shall be in accordance with the manufacturer's instructions regarding location, size, and depths of the required water envelope.

(g) Platform or diving facilities in post-10/01/99 and pre-10/01/99 pools. Post-10/01/99 Class A, B, and C pools containing platform or diving facilities shall be designed and constructed according to dimensions specified by either the Federation Internationale De Natation Amateur-2002, the United States Swimming Association-2002, the United States Diving Association-2002, the National Federation of State High School Association-2002, or the National Collegiate Athletic Association-2003. Pre-10/01/99 Class A, B, and C pools containing platform or deck diving facilities shall conform to one of the above standards.

(h) Starting blocks in post-10/01/99 and pre-10/01/99 pools. In post-10/01/99 and pre-10/01/99 pools:

(1) starting blocks shall be installed to meet the standards, depth specifications and other requirements of the national competitive pool organization having jurisdiction over the competition;

(2) starting blocks shall only be used during official competition or when there is direct supervision by the team coach or another qualified instructor; and

(3) starting blocks shall be removed or secured to prevent inadvertent use when use of the starting blocks is not directly supervised.

(i) Play equipment for post-10/01/99 and pre-10/01/99 pools. Playground equipment that is installed on or after October 1, 1999 in a post-10/01/99 and pre-10/01/99 pool yard or spa yard and that is not covered by the Amusement Ride Safety Inspection and Insurance Act, Chapter 2151, Texas Occupations Code, shall be designed and installed according to the CPSC Handbook for Public Playground Safety, Publication Number 325-1997, or the ASTM Standard Consumer Safety Performance Specification for Playground Equipment for Public Use, F1487-1995. (See subsection (k) of this section.)

(j) Slides for post-10/01/99 and pre-10/01/99 pools. Slides at post-10/01/99 and pre-10/01/99 pools that are of the slide configuration and type covered by the CPSC Standard for Swimming Pool Slides as published in the Code of Federal Regulations, 16 CFR, Part 1207, shall comply with those standards.

(k) Exclusion of post-10/01/99 and pre-10/01/99 pools. This section is not intended to cover amusement rides as defined in the Occupations Code, §2151.002 (relating to the Amusement Ride Safety Inspection and Insurance Act) and 28 TAC §§5.9001-5.9014, Subchapter J, Rules to Implement the Amusement Ride Safety Inspection and Insurance Act (that regulates large slides and other such types of amusement devices used at post-10/01/99 and pre-10/01/99 pool facilities).

§265.187.Circulation Systems for Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Suction outlet covers or grates for post-10/01/99 and pre-10/01/99 pools and spas. Suction outlet covers or grates must be provided for post-10/01/99 and pre-10/01/99 pools and spas in accordance with §265.190(c) of this title (relating to Suction Outlets and Return Inlets in Post-10/01/99 and Pre-10/01/99 Pools and Spas). If the owner or operator of a post-10/01/99 or pre-10/01/99 pool or spa knows or should have known in the exercise of ordinary care that a suction outlet cover or grate is missing, broken, or loose, the pool or spa must be closed immediately and the pump(s) must be shut off. The pool or spa must remain closed until a proper repair or replacement has been accomplished.

(b) General circulation requirements for post-10/01/99 pools and spas. In post-10/01/99 pools and spas, a circulation system consisting of pumps, piping, return inlets and suction outlets, filters, and other necessary equipment shall provide complete and uniform circulation of water and be designed to accommodate 100% of the turnover flow rate and maintain the distribution of disinfectant residual through all parts of the pool or spa.

(1) The system shall be designed to give the proper turnover rate based on the manufacturer's specified maximum pressure and flow through of the filter. (Also refer to §265.203(c) of this title (relating to Operation and Management of Post-10/01/99 and Pre-10/01/99 Pools and Spas.) The equipment shall be of adequate size to turn over the entire pool or spa water capacity as follows:

(A) a turnover rate of 6 hours is required for post-10/01/99 pools with average depths of 4 feet or greater;

(B) turnover rates in pools with shallower average depths shall be calculated based upon the formula: average depth in feet times 1.5 shall be the required turnover rate; for example, a pool with an average depth of 3 feet will require a 4.5 hour turnover rate;

(C) a spa recirculation system shall turn over the entire spa water capacity at a minimum of once every 30 minutes based on the manufacturer's recommended rate of the filter, with a clean filter; and

(D) the turnover rate for a wading pool shall be at least once per hour.

(2) Circulation system components that require replacement or servicing shall be accessible for inspection, repair, or replacement, and shall be installed according to manufacturer's instructions.

(3) Pool and spa equipment and related plumbing shall be supported to prevent damage from misalignment, settlement, or similar activities. The equipment shall be mounted to minimize the potential for the accumulation of debris and moisture, following manufacturer's instructions.

(4) The water velocity in the pool and spa piping shall not exceed 10 feet per second for discharge piping (except for copper pipe where the velocity shall not exceed 8 feet per second), and 6 feet per second for suction piping, and 1.5 feet per second velocity through suction grates unless the suction outlet meets the requirements of ASME/ANSI A112.19.8M and is rated under such standard at a higher flow rate. Pool and spa piping shall be sized to permit the rated flows for filtering and cleaning without exceeding the maximum head of the pump.

(5) Circulation system piping, other than that integrally included in the manufacture of the pool or spa, shall be subject to an induced static hydraulic pressure test for 6 hours at a pressure 50% greater than the maximum design operating pressure of the system or 25 pounds per square inch, whichever is less. This test shall be performed before the deck is poured, and the pressure shall be maintained throughout the deck pour.

(6) The circulation system piping and fittings shall be non-toxic, and shall be of material(s) able to withstand operating pressures and operating conditions. Polyvinyl chloride pipe shall bear the NSFI seal for potable water and be schedule 40 or stronger.

(7) Pool or spa piping subject to damage by freezing shall have a uniform slope in one direction and equipped with valves for adequate drainage or shall be capable of evacuating water to prevent freezing and possible damage. Pool or spa piping shall be adequately supported and designed to prevent entrapment of air, water or dirt. Provision shall be made for expansion or contraction of pipes.

(8) Equipment shall be designed and fabricated to drain the pool or spa water from the equipment, by removal of drain plugs and manipulating valves, or by other methods.

(9) Post-10/01/99 pools and spas shall be equipped with the following:

(A) a pump suction (vacuum) gauge installed as close to the suction side of the pump as possible without sacrificing accuracy;

(B) a filter inlet pressure gauge installed in the area of greatest pressure;

(C) a filter outlet gauge; and

(D) a flow meter that is located to show the rate of flow through the filter in gallons per minute and that is represented by the manufacturer to be accurate within 10% of true flow and capable of measuring flow of at least 1.5 times the design flow rate of the circulation system.

(c) General circulation requirements for pre-10/01/99 pools and spas. In pre-10/01/99 pools and spas, a circulation system consisting of pumps, piping, return inlets, suction outlets, filters, and other necessary equipment shall provide complete and uniform circulation of water and be designed to maintain distribution of disinfectant through all parts of the pool or spa.

(1) Equipment in pre-10/01/99 pools shall be designed to provide a turnover rate of 8 hours or less, providing a minimum turnover of at least 3 times in 24 hours. Water quality as required in §265.203(b) of this title must be maintained at all times.

(2) Equipment in pre-10/01/99 spas shall be designed to provide a turnover rate of 30 minutes or less.

(3) Equipment in pre-10/01/99 wading pools shall be designed to provide a turnover rate of 1 hour or less unless the wading pool flows by gravity to a pool, in which case the turnover requirements for the pool shall apply to the wading pool.

(4) Piping in pre-10/01/99 pools and spas shall be of non-toxic material, resistant to corrosion and able to withstand operating pressures.

(5) In pre-10/01/99 pools, a vacuum cleaning system shall be provided. Any vacuum outlets in pre-10/01/99 pools and spas must comply with §265.190(g) of this title.

(6) Pumps on pre-10/01/99 pools and spas should be located so as to eliminate the need for priming whenever possible. If the pump or suction piping is located above the water level, the pump should be self-priming. Under normal conditions, the pump or pumps should supply the circulation flow rate at a dynamic head of at least 40 feet.

(7) Pre-10/01/99 pools and spas shall be equipped with the following:

(A) a pump suction (vacuum) gauge installed as close to the suction side of the pump as possible without sacrificing accuracy;

(B) a filter inlet pressure gauge installed in the area of greatest pressure;

(C) a filter outlet gauge; and

(D) a flow meter that is located to show the rate of flow through the filter in gallons per minute and that is represented by the manufacturer to be accurate within 10% of true flow and capable of measuring flow of at least 1.5 times the design flow rate of the circulation system.

(d) Labeling of exposed piping for post-10/01/99 and pre-10/01/99 pools and spas. Exposed piping in post-10/01/99 and pre-10/01/99 pools and spas shall be labeled to identify the piping function and direction of flow. The name of the liquid or gas and arrows indicating direction of flow, shall be permanently indicated on the pipe.

§265.188.Filters at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Filters for post-10/01/99 pools and spas. Filters for post-10/01/99 pools and spas shall meet ANSI/NSFI Standard-50-1996.

(b) Replaced filters for pre-10/01/99 pools and spas. When equipment is replaced on pre-10/01/99 pools and spas, equipment falling within the scope of ANSI/NSFI Standard-50-1996 shall meet that standard.

(c) Filter design and operation for post-10/01/99 pools and spas. Filters for post-10/01/99 pools and spas shall be designed so that after cleaning according to the manufacturer's instructions the system provides the water clarity noted in §265.203(b) of this title (relating to Operation and Management of Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(d) Filter accessibility for post-10/01/99 pools and spas. Filters for post-10/01/99 pools and spas shall be installed so that filtration surfaces are accessible for inspection and service in accordance with manufacturer's instructions.

(e) Filter and separation tank pressure release for post-10/01/99 pools and spas. Filters or separation tanks for post-10/01/99 pools or spas shall have both manual and automatic means of air release that provide a slow, safe release of pressure as a part of their design.

(f) Filter and separation tank instructions for post-10/01/99 pools and spas. Filters and separation tanks for post-10/01/99 pools and spas shall have operation and maintenance instructions permanently installed on the filter or separation tank and shall include a warning statement not to start up the system after maintenance without first opening the air release and properly reassembling the filter and separation tank. The statement shall be readily visible from the area of the air release and the start-up controls.

(g) Observable waste discharge for post-10/01/99 pools and spas. Filters for post-10/01/99 pools and spas shall be provided with a readily observable free fall or sight glass installed on the waste discharge line in order that the filter washing progress may be observed. Sight glasses shall be readily removable for cleaning.

(h) Backwashing for post-10/01/99 and pre-10/01/99 pools and spas. Filters for post-10/01/99 and pre-10/01/99 pools and spas shall be backwashed and maintained according to manufacturer's instructions.

§265.189.Pumps and Motors at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Safe pump operation for post-10/01/99 and pre-10/01/99 pools and spas. A pump for a post-10/01/99 or pre-10/01/99 pool or spa shall not be operated if the owner or operator of the pool or spa knows or should have known in the exercise of ordinary care the main drain grate, suction outlet, or any suction outlet cover is missing, broken, or loose. If such a condition exists the pool or spa shall be closed immediately and remain closed until a proper repair or replacement has been accomplished.

(b) Safe pump design and operation for post-10/01/99 pools and spas. The design, construction and installation of the pump(s) and component parts for post-10/01/99 pools and spas shall provide safe operation in accordance with manufacturer's instructions. Pumps for post-10/01/99 pools and spas shall comply with UL and/or NEMA requirements.

(c) Backflow prevention or cross-connection control devices for post-10/01/99 and pre-10/01/99 pools and spas. Any priming device for a post-10/01/99 or pre-10/01/99 pool or spa pump receiving piped water from a potable water supply shall be isolated from the potable supply by means of a cross-connection control device (backflow prevention device) approved by the TCEQ, the department, or state or local regulatory authority.

(d) Pump and motor provided for circulation for post-10/01/99 and pre-10/01/99 pools and spas. A pump and motor shall be provided for circulation of water in post-10/01/99 and pre-10/01/99 pools and spas. Performance of all pumps for post-10/01/99 pools and spas shall meet the filter design range of flow required for filtering as stated in §265.187(b)(1) of this title (relating to Circulation Systems for Post-10/01/99 and Pre-10/01/99 Pools and Spas) and cleaning the filters (if applicable) against the total dynamic head developed by the complete system and to meet the clarity as required in §265.203(b) of this title (relating to Operation and Management of Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(e) Cleanable strainer for post-10/01/99 pools and spas. Post-10/01/99 pools and spas, except those with a vacuum filter, shall have a cleanable strainer or screen upstream of the circulation pump(s) to remove solids, such as debris, hair, and lint, and shall be readily accessible and cleaned routinely.

(f) Pumps and motors accessible for post-10/01/99 pools and spas. Pumps and motors for post-10/01/99 pools and spas shall be accessible for inspection and service in accordance with manufacturer's instructions.

(g) Durable pump seal for post-10/01/99 pools and spas. Components of mechanical pump seals for post-10/01/99 pools and spas shall be corrosion resisting and capable of operating under conditions normally encountered in pool or spa operation.

(h) Pump valves for post-10/01/99 pools and spas. If the pump for a post-10/01/99 pool or spa is below the design water level, valves shall be installed on suction and discharge lines to enable maintenance and removal of the pump without draining the pool or spa.

(i) Motors for post-10/01/99 pools and spas. Motors for post-10/01/99 pools and spas shall comply with the following:

(1) Motors shall have as a minimum an open, drip-proof enclosure as defined by the National Electrical Manufacturers Association (NEMA) Standard NEMA, MG1-1993, and be constructed electrically and mechanically to perform satisfactorily and safely under the conditions of load and environment normally encountered in pool or spa installations. Motors shall comply with UL requirements.

(2) Motors shall be capable of operating the pump under full load with a voltage variation of plus or minus 10% from the nameplate rating.

(3) Motors shall have thermal or current overload protection, either built in or in the line starter, to provide locked rotor and running protection.

§265.190.Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Suction outlets for post-10/01/99 and pre-10/01/99 pools and spas. Any suction outlet system for a post-10/01/99 or pre-10/01/99 pool or spa circulation or filtration system, booster system, automatic cleaning system, solar system, water feature, etc., must be designed to protect against a suction entrapment, evisceration or hair entrapment/entanglement hazard and must comply with this section. Drain covers do not need to be flush with the floor. For the purpose of this section, skimmers are not considered to be suction outlets.

(b) Closure of post-10/01/99 and pre-10/01/99 pools and spas if the suction outlet is defective. If the owner or operator of a post-10/01/99 or pre-10/01/99 pool or spa knows or should have known in the exercise of ordinary care that a cover or grate of a suction outlet (including a vacuum outlet) is missing, broken, or loose, the pool or spa must be closed immediately and the pump(s) must be shut off. The pool or spa must remain closed until a proper repair or replacement has been accomplished. The pool or spa may not be opened unless all covers or grates are securely installed according to subsection (c)(5) and subsection (g) of this section. Suction outlets must have cover(s) complying with subsection (c)(1) or grate(s) complying with subsection (c)(2) of this section, as well as covers for vacuum outlets complying with subsection (g) of this section.

(c) Approved suction outlet covers and grates in post-10/01/99 and pre-10/01/99 pools and spas. In post-10/01/99 and pre-10/01/99 pools and spas, a suction outlet must be provided with an approved cover or approved grate, as described below.

(1) An approved cover is a suction outlet drain cover that:

(A) is stamped showing that it has been certified by a nationally recognized testing laboratory as being in compliance with ASME/ANSI A112.19.8M;

(B) is stamped showing the gallons per minute approved by the testing laboratory for the cover and the designation ASME/ANSI A112.19.8M;

(C) does not have water flow through the cover that exceeds the maximum gallons per minute approved for the drain cover under ASME/ANSI A112.19.8M testing; and

(D) complies with paragraph (5) of this subsection.

(2) An approved grate is a suction outlet grate that:

(A) has a minimum diagonal measurement of 24 inches;

(B) has a flow velocity through the open area that does not exceed 1.5 feet per second; and

(C) complies with paragraph (5) of this subsection.

(3) In a post-10/01/99 pool that has hydraulically balanced main drains and meets all of the other requirements of this subsection, grates that are 12 inches by 12 inches or greater may be used if no approved cover is manufactured in that size, as long as the velocity through the open area of the grate does not exceed 1.5 feet per second.

(4) If a pre-10/01/99 pool has a drain cover or grate with less than a 24 inch diagonal measurement and no approved cover is manufactured and available, a cover or grate that is not approved may be used as long as the velocity through the open area of the cover or grate does not exceed 1.5 feet per second.

(5) The installation of all approved covers or grates must be according to manufacturer's instructions. If the manufacturer specifies fasteners, they must be stainless steel or brass.

(d) Suction outlets in post-10/01/99 pools and spas. All post-10/01/99 pools and spas built after October 1, 2004, must comply with the following.

(1) In post-10/01/99 pools and spas, at least two hydraulically balanced suction outlets (suction fittings) with approved covers or approved grates per pump suction line, must be provided for each suction line. Multiple sets of pump suctions are permitted in two or more suction outlets as long as they are hydraulically balanced and meet the requirements of subsection (c) of this section. The distance between the drain covers or grates of the suction outlet fittings must be no less than 3 feet and no more than 20 feet apart. Suction outlets that are main drains shall be located at the lowest point of the pool or spa floor. No means of isolating hydraulically balanced suction outlets is permitted that could allow one suction outlet to serve as the sole source of water to a pump. A single pipe to a pump suction inlet that serves two or more suction outlets may have a valve to shut off the flow to the pump.

(2) In post-10/01/99 pools and spas, water velocity in pipes in a pump-suction hydraulic system must not exceed 6 feet per second when 100% of the pump flow comes from the main drain system and any suction fitting in the main drain system is completely blocked. When 100% of the pump flow comes from the main drain system and one fitting is completely blocked, water velocity and flow rate at the remaining suction fittings must comply with the following.

(A) if the fitting is a grate with at least a 24-inch diagonal measurement, the velocity of the water at the grate may not exceed 1.5 feet per second; and

(B) if the fitting does not have at least a 24-inch diagonal measurement, it must have an approved cover and the flow rate may not exceed the approved flow rate for that cover.

(3) Post-10/01/99 spas and pools that are 4 feet deep or less measured from the normal water level to the suction outlet and that have covers or grates that measure less than 24 inches diagonally, must also have a Safety Vacuum Release System (SVRS). No SVRS may be installed to create an additional hazard (such as chlorine gas release, electrical danger, etc.) in the event of the deployment of the device. An SVRS is either an AVS or an SVRD, as defined below.

(A) An AVS is a system that provides indirect suction and a break to the atmosphere and that is limited to 5 feet of head. An AVS is described in the United States CPSC "Guideline for Addressing Potential Entrapment Hazards Associated with Pools and Spas," Publication Number 363-009801. The vent of an AVS must be at least 2 inches in diameter and if vented by pipe, it must have a vent cover that may be removed only with a tool. Vent systems, other than surge pits that do not have direct suction between the pool drain(s) and pump and that are installed after October 1, 2004, must be:

(i) a complete assembly that is engineered and manufactured offsite;

(ii) designed so that a 1/2-inch ball will not pass through any vent opening; and

(iii) installed and maintained so that the vent function will not be impaired by accumulation of vegetation or soil or by improper installation or maintenance of the vent system; or

(B) An SVRD is a vacuum safety valve or pump shut-off device that has been specifically designed and manufactured to help prevent entrapment hazards, according to the manufacturer's description of the device, by either cutting off electricity to the pump or allowing air to enter the main drain line, or both after the main drain or other suction line becomes blocked.

(e) Upgrading suction outlet system on pre-10/01/99 pools and spas. No later than October 1, 2004, a pre-10/01/99 pool or spa shall have an approved cover or approved grate on each suction outlet, except that a vacuum outlet may be permanently sealed or have a cover that closes automatically and can be opened only with a tool. If the manufacturer's installation instructions require the use of nuts or bolts they must be stainless steel or brass. A pre-10/01/99 pool or spa is required to be upgraded to comply with all other provisions of either subsection (d) of this section or subsection (e)(1) or (e)(2) of this section, as applicable no later than January 1, 2005.

(1) In a pre-10/01/99 pool or spa, suction outlets that are 4 feet deep or less, as measured from the normal water level to the suction outlet, must have for each suction system:

(A) dual hydraulically balanced suction outlets with approved covers as described in subsection (c)(1) or approved grates as described in subsection (c)(4) of this section with a distance between the suction outlet fittings no less than 3 feet and no more than 20 feet, and either an AVS or SVRD as described in subsection (d)(3) of this section; or

(B) a single suction outlet with an approved cover or a grate with a minimum diagonal measurement of 24 inches and a flow velocity of 1.5 fps as described in subsection (c)(1), (c)(2) or (c)(4) of this section, and either an AVS or an SVRD as described in subsection (d)(3) of this section; or

(C) dual hydraulically-balanced, suction outlets with a distance between the suction outlet fittings no less than 3 feet and no more than 20 feet, each with a minimum diagonal measurement of 24 inches and a flow velocity through the open area of the grate that does not exceed 1.5 feet per second.

(2) In a pre-10/01/99 shallow pool or spa with water 3 feet deep or less that has no main drains or other suction outlets and the water turnover rate and the water quality required by these rules is maintained by gravity drainage from the shallow pool to another deeper pool that has a main drain, the shallow pool is not required to have a main drain, other suction outlet or an SVRS, provided the deeper pool complies with these rules.

(3) In a pre-10/01/99 pool or spa, suction outlets that are more than 4 feet deep, as measured from the normal water level to the suction outlets, must have, for each suction system:

(A) two or more hydraulically-balanced suction outlets with a distance between the suction outlet fittings no less than 3 feet and no more than 20 feet, and with approved covers or grates as described in subsection (c)(1), (c)(2) or (c)(4) of this section; or

(B) a single suction outlet with an approved cover or approved grate as described in subsection (c)(1), (c)(2) or (c)(4) of this section, and either an AVS or an SVRD as described in subsection (d)(3) of this section.

(f) Stainless steel or brass fasteners for drain covers and grates in post-10/01/99 and pre-10/01/99 pools and spas. On a post-10/01/99 or pre-10/01/99 pool or spa, all suction outlet covers or grates must be designed to be opened only with the use of a tool. If the manufacturer of the cover or grate specifies that it should be installed with fasteners (e.g. screws or bolts), the fasteners must be stainless steel or brass.

(g) Vacuum outlets in post-10/01/99 and pre-10/01/99 pools and spas. If a post-10/01/99 or pre-10/01/99 pool or spa has a vacuum outlet, the outlet must be provided with a cover that automatically closes and automatically latches and that is designed to be opened only with the use of a tool. The cover must be installed according to manufacturer instructions and subsection (f) of this section. The cover must be securely closed and latched when the pool or spa is open for use. When a vacuum outlet is internally located in a skimmer that has a cover, a separate cover for the vacuum outlet is not required. If a vacuum outlet is provided in a post-10/01/99 pool or spa, it must be located in an accessible position at least 12 inches and no greater than 18 inches below the design water level or as an attachment to a skimmer. If a vacuum outlet is provided in a post-10/01/99 or pre-10/01/99 pool or spa, it may be permanently sealed in lieu of having a cover.

(h) Skimmer lines in post-10/01/99 and pre-10/01/99 pools and spas. If skimmer equalizer lines are installed in post-10/01/99 pools or spas they must be installed with an approved equalizer wall or drain cover as described in subsection (c) of this section. Skimmer equalizer lines in pre-10/01/99 pools and spas shall either be permanently sealed or fitted with an approved equalizer wall or drain cover as described in subsection (c) of this section.

(i) Automatic cleaners not operated while a post-10/01/99 or pre-10/01/99 pool or spa is in use. In a post-10/01/99 or pre-10/01/99 pool or spa, an automatic bottom or side cleaner that could provide a means of entanglement or entrapment must not be in the pool or operated while the facility is open for use.

(j) Check valves in post-10/01/99 and pre-10/01/99 pools and spas. Check valves may not be used in a post-10/01/99 or pre-10/01/99 pool or spa except as provided in this subsection. Check valves may be used only when there is no other manual or practical way of preventing drainage from elevated pools or sections of pools. When check valves are used, they may not be on the suction side of the pump, on any system that has single source suction (excluding skimmers), or where the manufacturer of an SVRS that is used on the system does not allow check valves.

(k) Velocity in suction piping in pre-10/01/99 pools and spas. In pre-10/01/99 pools and spas where the suction piping is not accessible, water velocities in the piping may exceed 6 feet per second if:

(1) the water velocity through a grate on any suction outlet does not exceed 1.5 feet per second; and

(2) the gallons per minute rating of an ANSI/ASME-approved cover on any suction outlet is not exceeded by the gpm flow of the pool as measured by the flow meter.

(l) Replacement cover on hand for post-10/01/99 and pre-10/01/99 pools and spas. For post-10/01/99 and pre-10/01/99 pools and spas, a replacement cover with stainless steel or brass fasteners (if fasteners are specified by the manufacturer) must be kept on site. This subsection does not apply to grates that are 24 inches or larger, measured diagonally.

(m) Clearance beneath a main drain cover or grate for post-10/01/99 pools and spas. Clearance beneath a main drain cover or grate for post-10/01/99 pools and spas, must have a sump below the open area of a drain cover or grate that meets the following:

(1) clearance between the cover or grate and the closest part of the suction pipe must be at least one and one half times the diameter of the suction pipe or 8 inches, whichever is less; and

(2) the sump must be below all of the open area of a drain cover or grate; or

(3) cover assemblies that do not connect directly to the circulation piping must have either the manufacturer's recommended sump below the outlet cover, or a field built sump of the design specified by the manufacturer.

(n) Clearance beneath a main drain cover or grate for pre-10/01/99 pools and spas. Pre-10/01/99 pools and spas must have clearance below the open area of a drain cover or grate that meets the following:

(1) clearance between the cover or grate and the closest part of the suction pipe must be equivalent to at least the diameter of the suction pipe serving the suction outlet or 8 inches, whichever is less; or

(2) cover assemblies that do not connect directly to the circulation piping must have either the manufacturer's recommended sump below the outlet cover, or a field built sump of the design specified by the manufacturer.

(o) Return inlets in post-10/01/99 pools and spas. Return inlets from the circulation system in post-10/01/99 and pre-10/01/99 pools and spas must be designed to not constitute a hazard to the user. Return inlets in post-10/01/99 pools and spas must comply with the following:

(1) a post-10/01/99 pool must have one return inlet for each 300 square feet of surface area or portion thereof with a minimum of two return inlets per pool. A spa must have one return inlet for each 150 square feet of surface area or portion thereof with a minimum of two return inlets per spa; and

(2) return inlets in a post-10/01/99 pool or spas must not project more than 1 inch beyond the pool or spa wall surface and must be submerged at least 12 inches below the design water level. Return inlets in the pool or spa bottom must be flush with the floor. Bottom inlets will be considered to have an area of influence within a radius of 15 feet.

§265.191.Surface Skimming and Perimeter Overflow (Gutter) Systems for Post-10/01/99 Pools and Spas.

(a) Surface skimming or perimeter overflow system required for post-10/01/99 pools and spas. A surface skimming system or perimeter overflow (gutter) system shall be designed and constructed to skim the surface of a post-10/01/99 pool or spa when the water level is maintained within the operating water level range of the system's rim or weir device.

(b) Safe design of surface skimming or perimeter overflow system for post-10/01/99 pools and spas. Surface skimmers and perimeter overflow systems in post-10/01/99 pools and spas shall be designed and installed to prevent body or limb entrapment. See §265.184(d) of this title (relating to General Construction and Design for Post-10/01/99 Pools and Spas) regarding equipment meeting any applicable NSFI Standard-50 standards.

(c) Specific requirements for surface skimmer systems for post-10/01/99 pools and spas. Surface skimmer systems for post-10/01/99 pools and spas shall comply with the following:

(1) the return inlet(s) shall be located so as to help bring floating particles within range of the skimmers;

(2) if surface skimmers are used, they shall be located to maintain effective skimming action throughout the pool or spa;

(3) if surface skimmers are used in a pool as the sole overflow system, at least one surface skimmer shall be provided for each 500 square feet or fraction thereof of the water surface area (recessed areas such as steps, and swimouts shall not be considered in the calculation);

(4) if surface skimmers are used on a spa, one surface skimmer shall be provided for each 150 square feet, or fraction thereof;

(5) the circulation system shall be designed to handle 100% of water flow through surface skimmers;

(6) flow rate shall be no less than 3 gallons per minute per skimmer per weir inch; and

(7) skimmer covers located on a walking surface shall be securely seated, slip-resistant, of sufficient strength to withstand normal deck use, and not constitute a tripping hazard.

(d) Specific requirements for perimeter overflow (gutter) systems for post-10/01/99 pools and spas. Perimeter overflow (gutter) surface skimming systems for post-10/01/99 pools and spas shall comply with the following:

(1) if a perimeter overflow (gutter) surface-skimming system is used as the sole surface skimmer system, the system shall extend around a minimum of 50% of the perimeter of the pool or spa;

(2) if a perimeter overflow (gutter) surface skimming system is used, it shall be connected to the circulation system with a system surge capacity not less than 1 gallon for each square foot of pool surface; gutter as well as gutter piping capacity may be counted as surge capacity;

(3) if a perimeter overflow (gutter) surface skimming system is used in a spa, it shall be connected to the circulation system with a system surge capacity not less than 2 gallons for each square foot of spa surface;

(4) the hydraulic capacity of a perimeter overflow (gutter) surface skimming system shall be capable of handling 100% of the circulation flow; and

(5) the operating water level for a perimeter overflow (gutter) surface skimming system shall be slightly over the overflow (gutter) lip or, in the case of surface skimmers, within the vertical operating range of the skimmers.

§265.192.Electrical Requirements for Post-10/01/99 and Pre-10/01/99 Pools, Spas, Pool Yards, and Spa Yards.

(a) National Electrical Code (NEC) for post-10/01/99 pools and spas. Electrical equipment and lines at post-10/01/99 pools and spas and at restrooms, equipment rooms and other facilities serving post-10/01/99 pools or spas shall:

(1) comply with the 1996 NEC if the pool or spa was constructed between October 1, 1999 and October 1, 2004; or

(2) comply with applicable provisions of this section, applicable local electrical codes, and the 2002 NEC if the pool or spa was constructed on or after October 1, 2004; or

(3) comply with the local electrical code to the extent the local electrical code is more restrictive than the NEC.

(b) National Electrical Code (NEC) for pre-10/01/99 pools and spas. Electrical equipment and lines at pre-10/01/99 pools and spas and at restrooms, equipment rooms and other facilities serving pre-10/01/99 pools and spas shall comply with applicable provisions of this section, local electrical codes, and the NEC in effect on the original construction date of the pool or spa. If a pool or spa was built before June 13, 1965, the pool shall comply with good public health engineering and safety practices in effect at the time, applicable local electrical codes, and subsections (d), (e), (f), (g), (i), (j), (k), (l), and (m) of this section to the extent they are applicable to pre-10/01/99 pools.

(c) National testing for electrical equipment for post-10/01/99 pools and spas. Electrical equipment for post-10/01/99 pools and spas shall be approved by a nationally recognized electrical testing laboratory, such as UL, at the time of installation, evidenced by the listing or labeling on the equipment. Junction boxes shall comply with applicable provisions of UL-1241 regarding Junction Boxes for Swimming Pool Fixtures at the time of installation. Pumps, filters, and chlorinators shall comply with UL-1081 regarding Swimming Pool Pumps, Filters and Chlorinators, at the time of installation.

(d) Manufacturer's instructions for proper installation in post-10/01/99 and pre-10/01/99 pools and spas. Electrical equipment and related electrical components for post-10/01/99 and pre-10/01/99 pools and spas shall comply with the manufacturer's installation instructions for such equipment and components.

(e) Ground fault circuit interrupters in post-10/01/99 and pre-10/01/99 pools and spas. Each electrical outlet in the pool yard or spa yard of a post-10/01/99 or pre-10/01/99 pool or spa and in a dressing or sanitary facility serving a post-10/01/99 or pre-10/01/99 pool or spa shall be protected with a ground fault circuit interrupter (commonly referred to as a "GFI" or "GFCI"). Each electrical line to an underwater light in a post-10/01/99 or pre-10/01/99 pool and spa shall be protected with a ground fault circuit interrupter that is located in the circuit breaker for the light at the breaker box or in an outlet through which the power for the light passes.

(f) If a switch that serves lights or equipment (other than pumps and underwater lights) in a post-10/01/99 or pre-10/01/99 pool or spa is between 5 and 10 feet from the wall of the pool or wall of the spa, each electrical line to such switch shall be grounded and shall have a ground fault circuit interrupter located:

(1) in the circuit breaker for the light;

(2) in the equipment circuit that powers the switch at the breaker box; or

(3) in an outlet through which the power for the switch passes. All ground fault circuit interrupters and circuit breakers shall comply with 2002 NEC requirements. Other electrical equipment, including pumps, must be grounded in accordance with subsection (g) of this section.

(g) Bonding and grounding in post-10/01/99 and pre-10/01/99 pools and spas. To reduce electrical shock, electrical equipment serving a post-10/01/99 or pre-10/01/99 pool or spa shall be grounded according to ANSI/UL 1563-1995 "Standard for Electric Hot Tubs, Spas and Associated Equipment" and the 2002 NEC. All post-10/01/99 pools shall comply with applicable bonding and grounding requirements of the 2002 NEC. All post-10/01/99 spas and hot tubs shall comply with bonding and grounding requirements of ANSI/UL 1563-1995 "Standard for Electric Hot Tubs, Spas and Associated Equipment. Pumps in post-10/01/99 and pre-10/01/99 pools and spas shall be both internally and externally grounded. If a pool or spa was built between October 1, 1999 and October 1, 2004, and if the 2002 NEC requirements referred to in subsection are more restrictive than the 1996 NEC, the 1996 NEC requirements shall apply.

(h) Plastic-coated or epoxy-coated rebar in pools or spas constructed on or after October 1, 2004, shall not be used.

(i) Electrical line clearances for post-10/01/99 and pre-10/01/99 pools, spas, pool yards, and spa yards. For post-10/01/99 and pre-10/01/99 pools, spas, pool yards and spa yards, electrical line clearances shall comply with the following:

(1) overhead lines above post-10/01/99 pools and spas. Insulated overhead electrical lines above a post-10/01/99 pool or spa may pass no closer than 22.5 feet to the water surface, deck, or permanently-anchored raft of the pool or spa as required in the 2002 NEC and may pass no closer than 14.5 feet to the top of an observation stand, tower, diving platform, or diving board as required in the 2002 NEC. However, such lines may pass as low as 20 feet above the water surface, deck, or permanently anchored raft of the post-10/01/99 pool or spa if the pool or spa was built between October 1, 1999 and October 1, 2004. Non-insulated overhead electrical lines may pass no closer to the pool or spa than the distances required in the 2002 NEC. A neutral wire for residential-type service is not considered a line for purposes of this subsection;

(2) overhead lines above post-10/01/99 pool yards and spa yards. Insulated overhead electrical lines may pass no closer than 20 feet to other surfaces of a pool yard or spa yard of a post-10/01/99 pool or spa. Non-insulated overhead electrical lines above such other surfaces may pass no closer than the distances required in the 2002 NEC. A neutral wire for residential-type service is not considered a line for purposes of this subsection;

(3) overhead lines above pre-10/01/99 pools and spas. Insulated overhead electrical lines above a pre-10/01/99 pool or spa may pass no closer than 20 feet to the deck, water surface, or permanently-anchored raft of the pool or spa and may pass no closer than 14.5 feet to the top of an observation stand, tower, diving platform or diving board. Non-insulated overhead electrical lines may pass no closer to the pool or spa than the distances required in the 2002 NEC, unless the NEC in effect at the time of original construction of the pool or spa expressly allowed for a closer distance. A neutral wire for residential-type service is not considered a line for purposes of this subsection;

(4) overhead lines above pre-10/01/99 pool yards and spa yards. Insulated overhead electrical lines may pass no closer than 20 feet to other surfaces of a pool yard or spa yard of a pre-10/01/99 pool or spa. Non-insulated overhead electrical lines above such other surfaces may pass no closer than the distances required in the 2002 NEC, unless the NEC in effect at the time of original construction of the pool or spa expressly allowed a closer distance. A neutral wire for residential-type service is not considered a line for purposes of this subsection; and

(5) non-overhead lines. Non-overhead electrical lines that are inside a pool yard or spa yard or within 20 feet outside the perimeter of the pool yard or spa yard:

(A) shall be at least 5 feet from the edge of the water in the pool or spa (except for lines serving underwater or overhead lighting); and

(B) shall, to the point of connection with an overhead lines, be either underground, encased in concrete, or completely inside a wall, building or conduit.

(j) Electrical disconnects for service personnel in post-10/01/99 and pre-10/01/99 pools and spas. Electrical disconnecting means for the protection of service personnel for post-10/01/99 and pre-10/01/99 pool and spa equipment shall be accessible for service personnel, located within sight from the pool or spa equipment, and located at least 5 feet from the inside walls of the pool or spa as required by the 2002 NEC, Chapter 6, §680.12 - Disconnecting Means. Each disconnecting means (i.e., turn-off switch) shall disconnect all ungrounded conductors (hot wires) to the equipment it serves. For example, a switch serving a 220-volt pump motor shall be able to turn off both hot wires at the same time. If electricity to equipment is supplied through a line that plugs into an outlet and if the line may be disconnected by removing the plug from the outlet, a separate disconnect switch is not required for that equipment.

(k) Location of other electrical equipment for post-10/01/99 and pre-10/01/99 pools and spas. Electrical equipment, including switches, outlets, deck lights, pumps, and other electrical equipment at post-10/01/99 and pre-10/01/99 pools and spas, shall be located at least 10 feet from the inside wall of a post-10/01/99 pool or spa unless:

(1) the electrical equipment is at least 5 feet from the wall of the pool or spa and is separated from the pool or spa by a solid fence, wall or other permanent barrier at least 4 feet in height; or

(2) the electrical equipment is at least 5 feet from the wall of the pool or spa and:

(A) consists of only one outlet for an electrical line that is grounded, has a ground fault circuit interrupter, and has a locking mechanism covering the outlet;

(B) consists of one or more switches serving electrical lines that are grounded and that have ground fault circuit interrupter protection that is located in the circuit breaker for the equipment at the breaker box or in an outlet through which the power for the equipment passes; or

(C) consists of an electrical device other than an outlet or switch and complies with applicable NEC requirements at the time of installation.

(l) Emergency shutoff switch for post-10/01/99 and pre-10/01/99 pools and spas. On post-10/01/99 and pre-10/01/99 pools, a pump shutoff switch for use by pool users is not required. On post-10/01/99 and pre-10/01/99 spas, a pump shutoff switch for use by spa users is required and shall be:

(1) clearly labeled as "Emergency Spa Shutoff";

(2) located within sight of the spa, or, there shall be a sign visible from the spa, in letters at least 1 inch tall, stating the location of the emergency shutoff switch;

(3) readily accessible to spa users;

(4) not behind a locked door or gate; and

(5) located no closer than 5 feet from the spa unless the switch is a non-electrical air switch.

(m) Electrical inspections during construction of post-10/01/99 pools and spas. The owner of a post-10/01/99 pool or spa constructed after October 1, 2004, shall have an electrician licensed in this state conduct a minimum of two inspections during and after the construction of a pool or spa to ensure that all electrical facilities serving the pool or spa are constructed in compliance with this section. The first inspection shall be conducted to assure proper bonding of the pool or spa shell prior to the concrete pour and another inspection shall be conducted after all electrical equipment is installed and operating and prior to opening the facility to users. The inspections may be done by the licensed electrician who installs the bonding and grounding equipment or by a governmental inspector who is a licensed electrician.

(n) Electrical safety of underwater lights in post-10/01/99 and pre-10/01/99 pools and spas. Underwater lights are not required in post-10/01/99 and pre-10/01/99 pools and spas. If the lights have no epoxy insulation, have cracked insulation, have spliced connection cords, or have been modified in violation of an applicable electrical code they shall be replaced with lights complying with this section.

§265.193.Heating of Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Certification of heaters or boilers for post-10/01/99 and pre-10/01/99 pools and spas. If required by TDLR, both post-10/01/99 and pre-10/01/99 pool and spa heaters or boilers shall have a current certificate of operations from the TDLR. In addition, all pool and spa heater installation and energy sources for post-10/01/99 pools and spas shall be designed, constructed and operated to comply with applicable local, state, or federal codes or standards as well as the manufacturer's instructions.

(b) Heater installation and testing for post-10/01/99 pools and spas. Heaters using fossil fuels, such as natural gas, liquid petroleum gas, No. 2 fuel oil, or electricity for heating water for post-10/01/99 pools and spas and shall comply with the following:

(1) heaters shall comply with ANSI Z21.56-1994, Standards for Gas-Fired Heaters, or for electrical heaters UL 1261-1992, or UL 559-1985 for heat pumps and shall comply with 30 TAC, TCEQ Chapter 117, Control of Air Pollution from Nitrogen Compounds, Subchapter D, Small Combustion Sources, at the time of construction of the pool or spa, including requirements related to ASME ratings and low NOx emissions;

(2) heaters shall be installed on a surface with sufficient structural strength to support the heater when it is full of water and operating. The heater shall be level and stationary after plumbing, gas and/or electrical connections are completed;

(3) heaters requiring a non-combustible surface per the manufacturer, shall be placed on a concrete or other accepted surface in accordance with ANSI Z21.56-1994 Gas-Fired Heaters;

(4) heaters shall be installed and maintained with at least the minimum clearances to combustibles for which the heater has been tested as specified by the manufacturer;

(5) heaters shall have adequate ventilation in order to ensure proper operation;

(6) heaters shall be grounded and bonded to reduce electrical shock hazard;

(7) heaters shall be wired to ensure they will not turn on when the pump is off; and

(8) water flow through heaters, bypass plumbing installed, cross-connection protection, and heat sinks shall be installed in accordance with manufacturer and TCEQ specifications or the department or other state or local regulatory authority.

(c) Temperature and thermometer for post-10/01/99 and pre-10/01/99 spas. The following shall apply to post-10/01/99 and pre-10/01/99 spas.

(1) The maximum temperature of the water shall not exceed 104 degrees Fahrenheit (40 degrees Centigrade).

(2) A break-resistant thermometer (plus or minus 1 degree Fahrenheit tolerance) that is designed for use in spas shall be available for spa users and staff to monitor spa temperature; and

(3) The control for the temperature of the water in the spa shall not be accessible to the spa user.

(d) Heating energy source for post-10/01/99 pools and spas. The heating energy source for post-10/01/99 pools and spas shall comply with the following:

(1) pool and spa heater energy sources shall be designed, constructed and operated to comply with applicable local, state, or federal codes or standards as well as the manufacturer's instructions;

(2) the natural gas energy supply piping shall comply with manufacturer's instructions and ANSI Z223.1-1996-National Fuel Gas Code;

(3) gas lines shall have a gas cock, properly sized and readily accessible outside the jacket, to stop the flow of natural gas for heater service or emergency shutdown;

(4) where liquid petroleum gas appliances are used, they shall be installed in accordance with ANSI/NFPA 58-1998-Storage and Handling of Liquefied Petroleum Gases;

(5) the storage tank, supply piping and regulator shall be adequately sized to ensure operating fuel pressures as specified by the appliance manufacturer; and

(6) propane appliances located in a pit or enclosed area shall be installed in accordance with ANSI/NFPA 58-1998 standards.

§265.194.Pool or Spa Water Supply for Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Initial fill water for post-10/01/99 and pre-10/01/99 pools and spas. The water supply used to fill a post-10/01/99 or pre-10/01/99 pool or spa shall be from a potable water system that meets applicable standards of 30 TAC, Chapter 290, Public Drinking Water, Subchapter D, Rules and Regulations for Public Water Systems, or meets the approval of the department or local regulatory authority, or is from a pre-10/01/99 pool's water that meets or exceeds all relevant conditions in this standard.

(b) Make-up water source for post-10/01/99 and pre-10/01/99 pools and spas. In a post-10/01/99 or pre-10/01/99 pool or spa, water added to maintain the pool or spa water level, water used as vehicle for disinfectants or chemicals, and water used for pump priming shall be potable water from a water system meeting applicable standards of 30 TAC, Chapter 290, Public Drinking Water, Subchapter D, Rules and Regulations for Public Water Systems or local regulatory authority or shall be water from the pool or spa itself.

(c) No direct connection to wastewater system for post-10/01/99 and pre-10/01/99 pools and spas. In a post-10/01/99 or pre-10/01/99 pool or spa, no direct mechanical (hard) connection shall be made between the pool or spa, chlorinating equipment, or the system of piping for the pool or spa and between the sanitary sewer system, septic system or other wastewater disposal system.

(d) Fill spout for post-10/01/99 pools and spas. An over-the-rim spout, if used in a post-10/01/99 pool or spa, shall be located under a diving board, adjacent to a ladder, or otherwise properly shielded so as not to create a trip or other hazard. Its open end shall have a secured soft pliable end (for example, a short section of a rubber hose) to prevent injury to patrons and shall not protrude more than 2 inches beyond the edge of the pool or spa. The end of the soft pliable outlet shall be separated from the maximum possible pool or spa water level by an air gap at least two times the diameter of the pipe. Other methods for addition of water to the pool may be used as long as cross-connections control and other safety considerations are adequately addressed.

(e) Fill spout for pre-10/01/99 pools and spas. An over-the-rim spout, if used in a pre-10/01/99 pool or spa, shall have a secure soft pliable end (for example, a short section of rubber hose) to prevent injury to patrons and shall not protrude more than 2 inches beyond the edge of the pool or spa. The end of the soft pliable outlet shall be separated from the maximum possible pool or spa water level by an air gap at least two times the diameter of the pipe.

§265.195.Drinking Water at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Potable water source for post-10/01/99 and pre-10/01/99 pools and spa facilities. The water supply serving a post-10/01/99 or pre-10/01/99 pool or spa facility, such as drinking water fountains, plumbing fixtures, lavatories and showers shall be a potable water system and shall meet applicable standards of 30 TAC, Chapter 290, Public Drinking Water, Subchapter D, Rules and Regulations for Public Water Systems.

(b) No cross-connections at post-10/01/99 and pre-10/01/99 pools and spas. At a post-10/01/99 or pre-10/01/99 pool or spa, no direct mechanical connection shall be made between the potable water supply and the pool or spa, chlorinating equipment, or the system of piping for the pool or spa, unless it is protected against cross-connection in a manner in compliance with 30 TAC, Chapter 290, Public Drinking Water, Subchapter D, Rules and Regulations for Public Water Systems, §290.44(h) of this title (relating to Water Distribution) concerning back siphonage or local regulatory authority.

(c) Drinking water fountain for post-10/01/99 pools and spas. At least one drinking fountain shall be provided and available to users at a post-10/01/99 pool or spa. The drinking water may be tap water or chilled water.

(d) Location of waterlines for post-10/01/99 pools and spas. Location of water lines, in relation to wastewater lines, at a post-10/01/99 pool or spa facility shall be in compliance with 30 TAC, Chapter 290, Public Drinking Water, Subchapter D, Rules and Regulations for Public Water Systems, §290.44(e) of this title concerning location of waterlines or local regulatory authority.

§265.196.Waste Water Disposal at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Filter backwash disposal for post-10/01/99 and pre-10/01/99 pools and spas. Filter backwash water and pool or spa drainage water from post-10/01/99 and pre-10/01/99 pools and spas shall be discharged or disposed of in accordance with the requirements of TCEQ or local regulatory authority.

(b) No direct connection between a wastewater system and a post-10/01/99 or pre-10/01/99 pool or spa. There shall be no direct physical connection between a wastewater disposal system and a drain or recirculation system of a post-10/01/99 or pre-10/01/99 pool or spa. Backwash water or pool and spa draining water, shall be discharged through an air gap formed by positioning the discharge pipe opening at least two pipe diameters above the overflow level of any confining barriers that could cause flooding and submergence of the discharge opening, in the event that the disposal system should fail or by other means in accordance with TCEQ or other local regulatory requirements. Splash screening barriers are permitted as long as they do not destroy air gap effectiveness.

(c) Location of on-site sewage facility wastewater disposal lines for post-10/01/99 and pre-10/01/99 pools and spas. The location of on-site sewage facility wastewater disposal lines at a post-10/01/99 or pre-10/01/99 pool or spa shall be in compliance with 30 TAC, Chapter 285, On-site Sewage Facilities, Subchapter D, Planning, Construction and Installation Standards for OSSF's, §285.31 (relating to Selection Criteria for Treatment and Disposal Systems) or local regulatory requirements.

(d) Location of other wastewater disposal facilities or lines for post-10/01/99 and pre-10/01/99 pools and spas. The location of other wastewater disposal facilities or lines at a post-10/01/99 or pre-10/01/99 pool or spa shall meet applicable standards of the 30 TAC, Chapter 307, Texas Surface Water Quality Standards, Chapter 308, Criteria and Standards for the National Pollutant Discharge Elimination System, Chapter 311, Watershed Protection, and Chapter 315, Pretreatment Regulations for Post-10/01/99 and Pre-10/01/99 Sources of Pollution or local regulatory authority if local regulations are more strict.

§265.197.Disinfectant Equipment and Chemical Feeders for Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Disinfectant equipment and practices at post-10/01/99 and pre-10/01/99 pools and spas. Disinfectant equipment and practices at post-10/01/99 and pre-10/01/99 pools and spas shall comply with the following:

(1) disinfectant equipment, installation, and use shall comply with ANSI/NSFI-50-1996, "Circulation System Components and Related Materials for Swimming Pools, Spas/Hot Tubs";

(2) disinfectant feed systems shall have the capacity to maintain up to 5 parts per million chlorine or approved equivalent for outdoor pools and up to 3 parts per million chlorine or approved equivalent for indoor pools, under all conditions of intended use. The disinfectant feed system at a post-10/01/99 outdoor spa shall have the capacity to maintain up to 8 parts per million chlorine or approved equivalent and up to 5 parts per million chlorine or approved equivalent in a post-10/01/99 indoor spa;

(3) chlorine or bromine residual or other method of disinfectant approved by the department shall be maintained in the pool or spa water to meet the requirements of §265.204(a) of this title (relating to Water Quality at Post-10/01/99 and Pre-10/01/99 Pools and Spas). Disinfection equipment shall be selected and installed so that continuous and effective disinfection can be achieved under all conditions. The use of elemental gas chlorine shall be in compliance with §265.198 of this title (relating to Gas Chlorination at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(4) the pool or spa water shall be continuously disinfected by a disinfecting agent whose residual can be easily measured by simple and accurate field tests;

(5) personnel responsible for the operation of the disinfection agent and other potentially hazardous chemicals shall be properly trained. Protective equipment and clothing, including rubber gloves and goggles, and any other protective gear and safety information shall be provided;

(6) disinfection agents or other chemicals and feed equipment shall be stored in such a manner that pool and spa users shall not have access to such facilities and/or chemicals. Dry chemicals shall be stored off the floor in a dry, above ground level room and protected against flooding or wetting from floors, walls, and ceiling;

(7) all chemical bulk and day tanks shall be clearly labeled to indicate the tank's contents;

(8) solution containers shall be provided with a cover to prevent the entrance of dust, insects, and other contaminants;

(9) chlorine compounds shall not be stored in the same area as petroleum products as required in §§295.1-295.8 and 295.10 of this title (relating to Hazardous communications);

(10) chlorine, pH or other chemical control equipment that automatically adjusts chemical feed based on demand, shall be provided if needed in order to meet §265.204(a) of this title (relating to Required Water Quality at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(11) if ancillary non-chlorine or non-bromine disinfectants are used, they shall be used in addition to chlorine or bromine or other approved equivalent, see §265.204(a) of this title;

(12) disinfectant agents for pools and spa shall be registered for use by the United States Environmental Protection Agency;

(13) supplemental hand feeding of disinfectant or other chemicals directly into the pool or spa must not be done when the pool or spa is occupied by users; and

(14) pool and spa skimmer baskets shall not be used as chemical feeders.

(b) Chemical feeders at post-10/01/99 and pre-10/01/99 pools and spas. Chemical feeders at post-10/01/99 and pre-10/01/99 pools and spas shall:

(1) be installed, maintained and operated in accordance with the manufacturer's instructions;

(2) be installed so that the gas or solution is introduced downstream from the filter and heater and, if possible, at a point lower than the heater outlet fitting or according to manufacturer's instructions;

(3) incorporate failure-proof features so that the chemical cannot feed into the pool or spa, the pool or spa piping system, water supply system, or the pool and spa enclosure if equipment or power fails. Chemical feed pumps shall be wired so they cannot operate unless there is adequate return flow to properly disburse the chemical throughout the pool or spa as designed;

(4) be regulated to ensure constant feed with varying supply or back pressure;

(5) be designed to prevent siphoning from the recirculation system to the solution container and to prevent the siphoning of the chemical solution into the pool or spa;

(6) have a graduated and clearly marked dosage adjustment to provide flows from full capacity to 10% of such capacity. The device shall be capable of continuous delivery within 10% of the dosage at any setting;

(7) be provided with make-up water supply lines to chemical feeder solution containers that have an air gap or other acceptable cross-connection control; and

(8) comply with ANSI/NSFI-50-1996 "Circulation System Components and Related Materials for Swimming Pools, Spas/Hot Tubs" except as otherwise noted in §265.190(h) of this title (relating to Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas). Chemicals used in a disinfection system for a post-10/01/99 or pre-10/01/99 pool or spa should be those complying with the instructions of the system's manufacturer and shall not be of a type or used in a manner that would invalidate the ANSI/NSFI-50-1996 rating for the system equipment.

§265.198.Gas Chlorination for Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Gas chlorination equipment shall not be installed on post-10/01/99 pools or spas constructed after October 1, 2004.

(b) Post-10/01/99 pools and spas constructed before October 1, 2004, and pre-10/01/99 pools and spas using gas chlorination shall comply with the following:

(1) trained personnel shall be provided to comply with §265.197(b)(3) of this title (relating to Disinfectant Equipment and Chemical Feeders for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(2) two persons trained in the performance of routine chlorination operation and emergency procedures shall be readily available during normal operating hours;

(3) pool personnel shall be informed about leak control procedures;

(4) only trained designated personnel shall operate the chlorinator and change chlorine cylinders; and

(5) chlorination equipment shall be located so that failure or malfunction will have minimum effect on evacuation of pool users in an emergency.

(c) Chlorinators on post-10/01/99 pools and spas constructed before October 1, 2004, and pre-10/01/99 pools and spas. On post-10/01/99 pools and spas constructed before October 1, 2004, and pre-10/01/99 pools and the spas the chlorinator's regulator shall attach to the gas cylinder so that the injector is located at the point of injection. The vacuum line taking suction at the regulator shall deliver gas to the vacuum injector. They shall be designed to prevent the suction of water into the chlorination system if the booster pump fails to operate.

(d) Booster pumps on post-10/01/99 pools and spas constructed before October 1, 2004, and pre-10/01/99 pools and spas. The booster pump water supply for the gas chlorinator injector on post-10/01/99 pools and spas constructed before October 1, 2004, and pre-10/01/99 pools and spas shall be capable of producing the flow rate and pressure required by the manufacturer's instructions for proper operation of the equipment.

(1) Elemental chlorine feeders (chlorinators) shall be activated by a booster pump using recirculated water supplied via the recirculation system.

(2) The booster pump shall be interlocked to the filter pump to prevent feeding of chlorine when the recirculation pump is not running.

(e) Housing of chlorinators, cylinders of chlorine and associated equipment at post-10/01/99 pools and spas constructed before October 1, 2004, and pre-10/01/99 pools and spas. The chlorinator, cylinders of chlorine, and associated equipment at post-10/01/99 pools and spas constructed before October 1, 2004, and pre-10/01/99 pools and spas shall be housed in a separate corrosion-resistant reasonably gas-tight room with a floor area adequate to the purpose. The following shall apply to housing structures:

(1) all enclosures shall be located at or above ground level;

(2) the enclosure shall:

(A) have ducts from the bottom of the enclosure to the atmosphere in an unrestricted area, and a motor-driven louvered exhaust fan capable of producing at least one air change per minute near the top of the enclosure for admitting fresh air; or

(B) have negative pressure ventilation as long as the facility also has gas containment and treatment equipment and procedures as prescribed by the Uniform Fire Code (UFC).

(3) a warning sign shall be posted on the exterior side of the doors that states in 4-inch letters, "DANGER CHLORINE";

(4) the doors to the chlorine room shall open away from the pool and open outward and have panic hardware;

(5) electrical switches for the control of artificial lighting and ventilation shall be on the outside of the enclosure adjacent to the door. Adequate lighting shall be provided;

(6) at least one door shall have a view port to permit the operators to look into the room before entering; and

(7) the door shall be kept locked when the chlorine room is not being serviced.

(f) General gas chlorine safety features at post-10/01/99 pools and spas constructed before October 1, 2004 and pre-10/01/99 pools and spas. The following gas chlorination safety features shall be required at post-10/01/99 pools and spas constructed before October 1, 2004 and pre-10/01/99 pools and spas.

(1) Two full-face self-contained breathing apparatus (SCBA) or supplied air respirators that meet Occupational Safety and Health Administration (OSHA) or Mine Safety Health Administration (MSHA) standards shall be provided for protection against chlorine in the event of a leak. This equipment shall have sufficient capacity for the purpose intended. All applicable local, state or federal requirements concerning the proper handling of chlorine shall be followed.

(2) Containers may be stored indoors or outdoors. Full and empty cylinders shall be segregated and appropriately tagged. Cylinders, empty or full, shall always be stored in an upright position and properly secured. Cylinders shall be chained to a wall or scale support. Storage conditions shall:

(A) minimize external corrosion;

(B) be clean and free of trash;

(C) be away from elevator shafts or intake vents; and

(D) be away from elevated temperatures or heat sources;

(3) Chlorine cylinders shall be handled with care. Valve protection and outlet caps shall be in place at all times except when the cylinder is connected for use. Cylinders shall not be dropped and shall be protected from falling objects. Cylinders shall be used on a first-in, first-out basis. Post-10/01/99, approved washers shall be used each time a cylinder is connected;

(4) As soon as a container is empty, the valve shall be closed and the lines disconnected. The outlet cap shall be applied promptly and the valve protection hood attached. The open end of the disconnected line shall be plugged or capped promptly to keep atmospheric moisture out of the system. A chlorine valve shut off wrench shall be kept on the cylinder valve stem of the cylinder that is in use;

(5) Contents of a chlorine cylinder can be determined only by weight; therefore, facilities shall include a scale suitable for weighing the cylinders. Changing cylinder(s) shall be accomplished only after weighing proves contents of cylinder to be exhausted. Care shall be taken to prevent water suck-back into the cylinder by closing the cylinder valve;

(6) The telephone number of the chlorine supplier, and the fire department or agency trained in the handling of chlorine spills shall be posted on the outside of the chorine room door. In the event of a chlorine leak, the fire department or an agency trained in the handling of chlorine spills shall be immediately contacted.

(7) The chlorinator and all line and tank fittings shall be checked for leaks at regular intervals and after every tank exchange. A small bottle of fresh ammonia solution (or approved equivalent) for testing for chlorine leakage shall be provided and accessible outside the chlorinator room when chlorine gas is used; and

(8) Tanks and cylinders shall be secured as necessary to prevent spills.

§265.199.Specific Safety Features for Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Handholds and coping for post-10/01/99 and pre-10/01/99 pools and spas. A post-10/01/99 pool or spa shall be provided with a handhold around its perimeter in areas where depths exceed 42 inches and there is no seat bench, swimout, or lounge area below the perimeter area in question. Handholds shall be provided no farther apart than 2 feet to include, but not limited to, one or a combination of the following items:

(1) handholds for post-10/01/99 and pre-10/01/99 pools may be coping, rope, railing, ledge, deck, or similar construction along the immediate top edge of the pool that provides a slip-resistant surface or grip and shall be at least 4 inches minimum horizontal width and located at or not more than 9 inches above the design water level. Any overhang of coping or decking shall not exceed 2 inches;

(2) coping overhang in post-10/01/99 and pre-10/01/99 pools shall be continuous without breaks or notches (other than slight indentations by masonry joints);

(3) coping in post-10/01/99 and pre-10/01/99 pools shall be rounded at the edge closest to the water with the rounding having a radius of at least 1/16 inch; and

(4) ladders, steps, and seat ledges for post-10/01/99 pools shall be constructed in accordance with §265.186(b) of this title (relating to Decks, Entry/Exit, Diving Facilities, and Other Deck Equipment at Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(b) Float lines and floor markings for post-10/01/99 and pre-10/01/99 pools. Float lines with floats and floor markings for a post-10/01/99 and pre-10/01/99 pools shall comply with the following:

(1) in post-10/01/99 and pre-10/01/99 Class A and B pools over 5 feet deep:

(A) the transition point of the pool from the from the shallow area to the deep area of the pool shall be visually set apart with a 4-inch minimum width row of floor tile, a painted line, or similar means using a color contrasting with the bottom; and

(B) a rope and float line shall be provided between 1 foot and 2 feet on the shallow side of the 5-foot depth along and parallel to this depth from one side of the pool to the other side. The floats shall be spaced at not greater than 7-foot intervals; and the floats shall be secured so they will not slide or bunch up. The stretched float line shall be of sufficient size and strength to offer a good handhold and support loads normally imposed by users. If the owner or operator of the pool knows or should have known in the exercise of ordinary care that a rope or float is missing, broken, or defective, the problem shall be promptly remedied.

(2) in post-10/01/99 and pre-10/01/99 Class C pools over 5 feet deep, the transition point of the pool from the shallow area to the deep area of the pool shall be visually separated by a 4-inch minimum width row of floor tile, a painted line, or similar means using a color contrasting with the bottom; and

(3) if rope and float lines are provided in post-10/01/99 or pre-10/01/99 pools, they shall be securely fastened to wall or deck anchors of corrosion-resisting materials and of the type that is recessed or removable and shall have no projection that will constitute a hazard when the line is removed.

(c) Depth markers for post-10/01/99 pools. Post-10/01/99 pools shall have markers showing depth and unit of measurement for the depth, complying with the following:

(1) Depth markers on both sidewalls and decks of the pool shall;

(A) indicate the pool depth from the design water level to the floor of the pool according to a vertical measurement taken 3 feet from the pool wall;

(B) be a minimum of 4 inches in height (measured vertically on a sidewall and horizontally on a deck);

(C) be of contrasting color to the background on which they are applied;

(D) have permanent colors for the numbers, units, and background of the marker;

(E) placed at 2-foot increments of depth in the shallow and deep ends of the pool, and be uniformly installed around a pool to the extent practical;

(F) be spaced at distances not greater than 25-foot intervals, and with a minimum of at least one marker per pool side;

(G) be placed at the maximum and minimum points of depths and at the 5-foot depth of a pool over 5 feet deep;

(H) designate the depth, on irregularly shaped pools, at all major deviations in shape; and

(I) have units of measurement spelled out in "feet" or "inches" or abbreviated as "Ft.", "In." or feet and fractions of a foot. In addition to feet and inches, the unit of measurement may also be displayed in meters, in which event units of measurement may be spelled out as "meters" or abbreviated as "M".

(2) Depth and unit markers on decks shall be slip-resistant, placed within 24 inches of the water's edge, and positioned to be read while standing on the deck facing the water;

(3) Depth and unit markers on pool sidewalls, except as provided in paragraph (4) of this subsection shall be plainly and conspicuously posted in the top 4.5 inches of the pool wall and be positioned to be read by a user while in the pool; and

(4) If depth and unit markers cannot be placed on the sidewall with a readable portion of the marker above the actual water level (e.g. the edges of a zero depth entry pool or other coping types that do not allow sufficient space for the 4-inch depth markers), other methods may be used to mark the depth and unit of measurement, as follows:

(A) sidewall depth and unit markers shall not be required on the edges of a zero depth entry pool;

(B) on roll out gutter pools or other pools without a vertical sidewall and with at least 3 inches of the sidewall above the design water level, depth and unit markers shall be readable from the pool and shall be placed in the first 6 inches of deck or on a vertical wall or fence, if one exists, within 10 feet of the water's edge. Otherwise, no depth or unit markers shall be required for such pools; and

(C) on vanishing edge pools, depth and unit markers shall not be required on that portion of the vanishing edge that has no pool wall above the design water level and shall not be required on that portion of the vanishing edge that is inaccessible to patrons on the deck; but sidewall and deck markers must be installed on the vanishing edge immediately at the end of the vanishing edge, in the top 4.5 inches of the pool.

(d) Depth markers for pre-10/01/99 pools. Pre-10/01/99 pools shall have depth markers that comply with the following:

(1) depth markers on both sidewalls and decks of the pool shall:

(A) indicate the pool depth from the design water level to the floor of the pool according to a vertical measurement taken 3 feet from the pool wall;

(B) be a minimum of 4 inches in height (measured vertically on a sidewall and horizontally on a deck);

(C) be of contrasting color to the background on which they are applied;

(D) have permanent colors for the numbers, units (if any), and background of the marker;

(E) be placed at 2-foot increments of depth around the pool; and

(F) be placed at the maximum and minimum points of depths and at the point of bottom slope change from shallow end and deep end;

(2) depth markers and any unit markers on decks shall be slip-resistant, placed within 24 inches of the water's edge, and positioned to be read while standing on the deck facing the water;

(3) depth and any unit markers on pool sidewalls, except as provided in paragraph (4) of this subsection, shall have at least 50% of the depth number and any unit of measurement, plainly and conspicuously placed above the design water level on the sidewall and be positioned to be read by a user while in the pool. A percentage higher than 50% is permitted but not required;

(4) if depth markers and any unit markers cannot be placed on the sidewall with a readable portion of the marker above the design water level (e.g. the edges of a zero depth entry pool or other coping types which do not allow sufficient space for the 4-inch depth markers), other methods may be used to mark the depth and unit of measurement, as follows:

(A) sidewall depth markers shall not be required on edges of zero depth entry pools;

(B) on roll out gutter pools or other pools without a vertical wall that does not have at least 3 inches of pool wall above the design water level, the depth markers and any unit markers shall be readable from the pool and shall be placed in the first 6 inches of deck, or on a vertical wall or fence, if one exists, within 10 feet of the water's edge. If there is no practical location for installation of vertical depth markers, no depth or unit markers shall be required in those areas; and

(C) on vanishing edge pools, depth markers and any unit markers shall not be required on that portion of the vanishing edge that has no pool wall above the design water level and shall not be required on that portion of the vanishing edge that is inaccessible to patrons on the deck; but sidewall and deck markers must be installed on the vanishing edge immediately at the end of the vanishing edge, in the top 4.5 inches of the pool; and

(5) if a pre-10/01/99 pool is substantially replastered or the waterline tile is substantially replaced, all depth markers on the sidewalls must comply with subsection (c) of this section regarding depth markers for post-10/01/99 pools.

(e) "NO DIVING" wording and international no diving symbol warning signs for post-10/01/99 and pre-10/01/99 pools. This subsection applies to post-10/01/99 and pre-10/01/99 pools.

(1) The warning words "NO DIVING" and the international no diving symbol shall be clearly marked on the pool deck with contrasting colors and letters at least 4 inches high. The warning shall be placed at least every 25 feet or fraction thereof, around the pool where the water depth is 6 feet or less. At least two warnings including the "NO DIVING" and international no diving symbol, shall be provided at the extreme ends of the minimum depth and at the extreme ends of the maximum depth at 6 feet on each side of the pool or on each of the longer dimensional sides of the pool. These warning signs shall be slip-resistant. The warning "NO DIVING" and international no diving symbol on the deck shall be within 24 inches of the water edge and positioned to be read while standing on the deck facing the water. The international no diving symbol consists solely of a diver's profile in a circle with a 45-degree slash through the diver and may be red and/or black on a light background.

(2) If a permanent structure above the pool deck (other than a diving board or diving platform) is within 5 feet of the water surface of a pool and is likely to be used for diving, the international no diving symbol and the warning "NO DIVING" (in contrasting colors and letters at least 4 inches high), shall be permanently affixed to the structure so that such warnings are visible to persons who may be attempt to use the structure for diving.

(f) Signs for post-10/01/99 and pre-10/01/99 pools.

(1) Post-10/01/99 and pre-10/01/99 pools shall comply with the following sign requirements:

(A) signs shall be securely mounted as applicable and readily visible to the pool user from inside the pool enclosure;

(B) for Class C and D pools where no lifeguard is provided, a sign shall be placed in plain view and shall state "NO DIVING" along with an international warning symbol for no diving. The letters "NO DIVING" and the symbol shall be at least 4 inches high;

(C) for pools where no lifeguard service is required, a warning sign shall be placed in plain view and shall state "WARNING-NO LIFEGUARD ON DUTY" with clearly legible letters at least 4 inches high. In addition, the sign shall also state in letters at least 2 inches high "CHILDREN SHOULD NOT USE POOL WITHOUT ADULT SUPERVISION". The additional signage required in this subsection may be included on the sign described in paragraph (2) of this subsection; and

(D) when a required telephone is not readily visible from a post-10/01/99 or pre-10/01/99 pool or spa, directions shall be posted regarding its location as stated in subsection (i) of this section.

(2) In areas of Texas where a majority of citizens are non-English speaking, in addition to signs in English, signs, and other written warnings required by these standards, may be posted in the predominant language.

(g) Lifeguard personnel standards at post-10/01/99 and pre-10/01/99 pools. Post-10/01/99 and pre-10/01/99 pools shall comply with the following lifeguard requirements:

(1) lifeguards and second responders shall be provided at:

(A) post-10/01/99 and pre-10/01/99 Class A pools during competitive events;

(B) post-10/01/99 and pre-10/01/99 Class B pools; and

(C) post-10/01/99 and pre-10/01/99 Class C pools with a diving board or a slide that is not locked or chained to prevent use of the slide. At pools where lifeguards are not provided, refer to subsection (f)(1) of this section relating to signs; and

(2) when a lifeguard is provided at a pool, the following shall apply:

(A) the number of lifeguards provided shall be adequate to provide supervision, continuous surveillance and close observation of pool users in all areas of the pool and at all times when the pool is in use. No user shall be permitted in a pool area unless lifeguard(s) are present;

(B) the lifeguard(s) shall hold a current American Red Cross (ARC) "Lifeguard Training" certificate or the equivalent certification from an aquatic safety organization, which also includes training in (ARC) "Adult, Infant, and Child CPR" and "Community First Aid" or their equivalent. Management at each facility will maintain a current file with each staff person's current certification including expiration dates;

(C) an additional lifeguard, or second responder who is monitoring and readily available at the pool, and who has a minimum training in (ARC) "Adult, Infant, and Child CPR" and "Community First Aid" or equivalent training, shall also be in the pool area when the pool is in use;

(D) lifeguard(s) conducting surveillance of pool users shall not be assigned duties that would distract their attention from proper observation of the patrons, or that would prevent immediate assistance to persons in distress in the water;

(E) pool facilities shall provide alertness/response drills and other training including documentation of the following:

(i) a pre-season training program;

(ii) a continual "in-service" training program for all lifeguards, and other aquatic personnel totaling a minimum 60 minutes per week; and

(iii) performance "audits" as recommended by the ARC or YMCA or equivalent aquatic safety organization;

(F) owners shall maintain an emergency action plan similar to the one outlined by the ARC or YMCA or equivalent aquatic safety organization. All lifeguards and second responders shall receive training in the application of effective pool emergency procedures for events such as submersions, suspected spinal injury, medical emergencies, missing persons, bad weather, etc. Such training will be reviewed as necessary and kept current. Each lifeguard shall be given an assigned surveillance area commensurate with ability;

(G) owners shall allow lifeguards to have sufficient break time from guarding activities as recommended by the ARC or YMCA or equivalent aquatic safety organization.

(H) when a lifeguard is conducting active surveillance of pool patrons, the lifeguard shall not be in the water except in the line of duty.

(h) Lifeguard chairs and lifeguard equipment for post-10/01/99 and pre-10/01/99 pools. Post-10/01/99 and pre-10/01/99 pools shall comply with the following requirements, as applicable:

(1) A post-10/01/99 pool that has a diving board(s) shall have at least one elevated lifeguard chair, located to provide a clear unobstructed view of the pool bottom in the diving area and shall comply with the following.

(A) The seat of the lifeguard chair in the diving water area shall be located at an elevation at least 4 feet above the pool deck. The lifeguard chair may be portable so that its location can be optimized to prevent glare and provide proper supervision.

(B) If the width of the pool is 45 feet or more, an additional elevated chair or station shall be provided and shall be located in the diving area on the opposite side of the pool.

(C) Such lifeguard platforms or chairs shall be placed in locations to reduce sun glare on the water, and in positions which allow complete visual coverage of the pool and the pool bottom within a field of view no greater than 90 degrees on either side of a line of sight extending straight out from the platform or chair.

(2) At post-10/01/99 and pre-10/01/99 pools, lifeguard(s) shall have a sufficient number of standard rescue tube(s) or buoy(s) with attached rope/strap and other equipment as necessary for use by the lifeguard(s). Such equipment shall be immediately accessible at all times. Lifeguard(s) and second responders shall be dressed in swimming attire so that they are readily identifiable as members of the staff.

(i) Pool safety equipment for post-10/01/99 and pre-10/01/99 pools. Post-10/01/99 and pre-10/01/99 pools shall comply with the following standards:

(1) lifesaving equipment at post-10/01/99 and pre-10/01/99 Class A, B, and C pools. At post-10/01/99 and pre-10/01/99 Class A, B, and C pools having less than 2,000 square feet of surface area, at least one of each of the following items of lifesaving equipment shall be provided for the pool:

(A) a reaching pole that is light, strong, non-telescoping and at least 12 feet long. The pole shall be constructed of fiberglass or other material that does not conduct electricity and shall have a body hook or shepherd's crook with blunted ends attached to it; and

(B) a throwing rope that is 1/4-inch to 3/8-inch diameter, with a length at least two-thirds the maximum width of the pool. A ring buoy that is approved by the United States Coast Guard and that has an outside diameter of 15 to 24 inches shall be attached to the throwing rope;

(C) if the pool has between 2,000 and 4,000 square feet of water surface area, an additional reaching pole and throwing rope with ring buoy, as described in subparagraphs (A) and (B) of this paragraph shall be provided. If the pool has over 4,000 square feet of water surface area, an additional reaching pole and throwing rope with ring buoy as described in subparagraphs (A) and (B) of this paragraph shall be provided for each 6,000 square feet of water surface area or portion thereof over 4,000 square feet. All such lifesaving equipment shall be mounted in conspicuous places around the pool deck within 20 feet of the pool. All lifesaving equipment shall be kept in good repair and ready condition.

(2) backboards at post-10/01/99 and pre-10/01/99 pools. Post-10/01/99 and pre-10/01/99 Class A and B pools and Class C pools that have a diving board, slide, or lifeguard shall have one or more backboards with a minimum of 3 tie down straps and head immobilizer for back and neck injuries; and

(3) first aid kits at post-10/01/99 and pre-10/01/99 pools. Post-10/01/99 and pre-10/01/99 Class A and B pools and other pools with lifeguards shall be equipped with a first aid kit meeting OSHA requirements. First aid kits shall be a standard 24-unit kit and housed in a durable weather resistant container and kept filled and ready for use (including disease transmission barriers and cleansing kits that meet OSHA standards.

(j) Telephones at post-10/01/99 and pre-10/01/99 pools and spas. Post-10/01/99 and pre-10/01/99 pools and spas shall have a telephone that is capable of immediately summoning emergency service and that is readily accessible within 200 feet from the pool or spa water. Any other electronic means of summoning emergency service will qualify as a telephone if clear instructions for its use are provided by signage. A telephone that is answered by an on-site office does not meet the requirements of this subsection. The following shall apply to telephones for post-10/01/99 and pre-10/01/99 pools and spas.

(1) The telephone may be located inside or outside of the pool yard or spa yard if the enclosure entry gates and doors of the pool yard or spa yard are never locked in any manner, or the gate or fence is not more than 4 feet 4 inches tall.

(2) The telephone may be located inside or outside of the pool yard if the pool is a Class A or B pool.

(3) The telephone must be located outside of all other pool yards or spa yards if all of the following occur:

(A) the entry gate(s) or door(s) are locked on either side of the gate or door;

(B) the enclosure entry gates and doors and the enclosure fences and walls are all higher than 4 feet 4 inches; and

(C) the pool or spa is operated in conjunction with:

(i) lodging such as hotels, motels, apartments, condominiums, or mobile homes parks;

(ii) a property owners association, private organization, or club;

(iii) a school, college, or university while being operated for academic or continuing education classes, or (iv) practice event (excluding competition events in accordance with subparagraph (A) of this paragraph).

(4) Each entry gate and door of a pool yard or spa yard that is locked must have a sign on the exterior of the gate or door or on the exterior of the enclosure fence or wall immediately adjacent to the gate or door, stating the location of the telephone outside of the enclosure and complying with the content and letter size of paragraph (5) of this subsection if:

(A) the telephone is located outside the pool yard of a Class A or B pool; or

(B) the telephone is required to be located outside the pool yard or spa yard under paragraph (3) of this subsection.

(5) Regardless of where the telephone is located or whether the gate(s) or door(s) are locked, a sign must be installed inside the pool yard or spa yard in plain view of the pool or spa and state in letters at least 1 inch high: "In case of emergency, call 911". If the telephone is not readily visible from the pool or spa, the sign inside the pool yard or spa yard shall include a concise description of the location of the telephone.

(k) Lighting for post-10/01/99 and pre-10/01/99 pools and spas. Lighting for decks and water surfaces of post-10/01/99 or pre-10/01/99 pool or spa shall be provided according to this subsection. Lighting for such pools and spas shall comply with the following:

(1) lighting above water level for decks and water surfaces shall be not less than 0.5 watts (incandescent equivalent) per square foot of the combined deck and water surface areas of the pool or spa;

(2) if underwater lighting is installed in a pool, the underwater lighting shall be 0.5 watts per square foot of water surface area of the pool, and the water surface area need not be counted for purposes of subsection (l) of this section; and

(3) lighting shall be spaced to provide illumination to all portions of the deck and water surface areas of a pool or spa. The bottom of the pool or spa must be readily seen without glare.

(l) Indoor ventilation for post-10/01/99 pools and spas. A post-10/01/99 pool or spa that is constructed indoors must meet ASHRAE 62-1989 "Ventilation for Acceptable Indoor Air Quality" standards.

(m) Safety and sanitation of special aquatic activity devices. Post-10/01/99 or pre-10/01/99 special aquatic activity devices involving a water circulation system separate from the circulation system for a pool (e.g., separate pump, holding tank, etc.) shall comply with the following sections to the same extent the sections apply to pools, except as otherwise noted:

(1) §265.187 of this title relating to (Circulation Systems for Post-10/01/99 and Pre-10/01/99 Pools and Spas), except that the water turnover rate shall be at least once every 30 minutes, and a vacuum cleaning system is not required;

(2) §265.188 of this title (relating to Filters at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(3) §265.189 of this title (relating to Pumps and Motors at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(4) §265.190 of this title (relating to Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(5) §265.192 of this title (relating to Electrical Requirements for Post-10/01/99 and Pre-10/01/99 Pools, Spas, Pool Yards, and Spa Yards);

(6) §265.194 of this title (relating to Pool or Water Supply for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(7) §265.196 of this title (relating to Waste Water Disposal at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(8) §265.197 of this title (relating to Disinfection Equipment and Chemical Feeders for Post-10/01/99 and Pre-10/01/99 Pools and Spas); and

(9) §265.204 of this title (relating to Water Quality for Post-10/01/99 and Pre-10/01/99 Pools and Spas).

§265.200.Pool Yard and Spa Yard Enclosures for Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Enclosures for post-10/01/99 and pre-10/01/99 Class A and B pools and spas and post-10/01/99 and pre-10/01/99 residential youth camp pools and spas.

(1) Post-10/01/99 and pre-10/01/99 Class A and B pools, and post-10/01/99 and pre-10/01/99 pools and spas that are located at residential youth camps required to be licensed under Health and Safety Code, Chapter 141 shall be enclosed by a barrier consisting of one of the following, or equivalent barrier: a fence, portion of a building, wall, or other durable enclosure.

(2) A building that serves as part of the enclosure may have doors or gates that open into the pool yard only if:

(A) any doors or gates between the building and the pool yard are for entry into a storage room, restroom, shower room, dressing room, or mechanical room adjacent to the pool;

(B) the room does not have any door or gate openings to the outside of the pool yard enclosure; and

(C) the room does not contain any gas chlorine containers.

(3) The enclosure, including doors and gates, shall:

(A) have a minimum effective perpendicular height of at least 6 feet as measured from the ground surface on the outside of the fence;

(B) have no openings in the enclosure through or under which a 4-inch diameter sphere can pass;

(C) be designed and constructed so that it cannot be readily climbed; and

(D) have all doors, gates, and windows in the enclosure directly and continuously supervised by staff at the pool during hours of operation, or locked to prevent unauthorized entry.

(b) Enclosures for post-10/01/99 or pre-10/01/99 Class C and D pools and spas that are subject to Health and Safety Code, Chapter 757. A post-10/01/99 or pre-10/01/99 pool or spa that is subject to Health and Safety Code, Chapter 757 (covering pool yards and spa yards of apartments, property owner associations, and similar residential developments) shall have an enclosure as required in Chapter 757.

(c) Enclosures for all other post-10/01/99 or pre-10/01/99 Class C and D pools and spas. A post-10/01/99 or pre-10/01/99 Class C pool or spa or Class D pool or spa that is not subject to Health and Safety Code, Chapter 757 (such as pools and spas for hotels, motels, RV parks, etc.) must have a pool yard or spa yard enclosure in compliance with this subsection.

(1) The pool yard or spa yard enclosure for a post-10/01/99 or pre-10/01/99 pool or spa subject to this subsection shall consist of one or a combination of a fence, portion of a building, wall or other durable enclosure. The enclosure shall comply with the following:

(A) the enclosure must have a minimum perpendicular height of at least 48 inches as measured from the ground surface on the outside of the fence;

(B) openings in or under the enclosure shall not allow the passage of a 4-inch diameter sphere;

(C) planters or other structures that might allow small children to climb over the enclosure shall not be permitted within 36 inches, measured horizontally, from the outside of the enclosure;

(D) chain link fencing may be used for the enclosure of a pre-10/01/99 pool and spa if the chain link fencing was installed prior to October 1, 1999. Chain link fencing may not be used for an enclosure for a post-10/01/99 pool or spa;

(E) doors, gates, or windows that open into a building are allowed as part of a pre-10/01/99 pool or spa enclosure. Windows that are capable of being opened are not allowed as part of a post-10/01/99 pool or spa enclosure. Doors or gates of a building that are capable of being opened are not allowed as part of a post-10/01/99 pool or spa enclosure unless:

(i) the doors or gates between the building and the pool yard or spa yard are for entry into a storage room, restroom, shower room, dressing room or mechanical room adjacent to the pool;

(ii) the room does not have any door or gate openings to the outside of the pool yard or spa yard enclosure; and

(iii) the room does not contain any gas chlorine containers.

(2) Gates and doors for pool yard or spa yard enclosures for post-10/01/99 and pre-10/01/99 pools and spas subject to this subsection shall:

(A) be equipped with self-closing and self-latching devices and be latched when the pool or spa is not in use. The self-closing device shall be designed to keep the gate or door securely closed and the self-latching device shall latch when the gate is allowed to close within in its range of operation, which is from its fully open position to 6 inches from the fully closed position;

(B) open outward away from the pool or spa except for gates constructed before October 1, 1999, in compliance with an applicable city ordinance;

(C) have hand activated door or gate opening hardware located at least 3.5 feet above the deck or walkway;

(D) be capable of being locked;

(E) be locked if it is for entry into a Class A or B pool or a spa, and the pool or spa is not open for use; and

(F) be locked if it is for entry into a Class C or D pool or a spa and the pool or spa needs to be closed because of repairs, hazards, or other conditions.

(3) Pool yard and spa yard enclosures for post-10/01/99 pools and spas shall be constructed so that all persons will be required to pass through an enclosure gate or door in order to gain access to the pool or spa. All gates and doors exiting a pool yard or spa yard of a post-10/01/99 pool or spa shall open into a public area or walkway accessible by all users of the pool or spa.

§265.201.Dressing and Sanitary Facilities at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Fixture design at post-10/01/99 facilities. Fixtures at facilities for post-10/01/99 and pre-10/01/99 pools and spas shall be designed so that they are readily cleanable.

(b) Fixture installation at post-10/01/99 and pre-10/01/99 facilities. Fixtures at facilities for post-10/01/99 and pre-10/01/99 pools and spas shall be installed in accordance with local plumbing codes and shall be properly protected by cross-connection control devices (backflow prevention devices).

(c) Proper cleaning at post-10/01/99 and pre-10/01/99 facilities. Facilities for post-10/01/99 and pre-10/01/99 pools and spas shall be cleaned as necessary to maintain sanitary conditions at all times.

(d) Adequate ventilation at post-10/01/99 facilities. Adequate ventilation shall be provided in facilities for post-10/01/99 and pre-10/01/99 pools and spas to prevent objectionable odors in accordance with §265.199(l) of this title (relating to Specific Safety Features for Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(e) Dressing and sanitary facilities at facilities for post-10/01/99 Class A, B, or D pools. Adequate dressing and sanitary facilities shall be provided for post-10/01/99 Class A or B pools and for post-10/01/99 Class D pools and spas operated in conjunction with a Class A or Class B pool.

(1) Separate dressing and sanitary facilities shall be provided for each gender. The rooms shall be well lit, drained, ventilated, and of good construction, using impervious materials. They shall be developed and planned so that good sanitation will be maintained throughout the building at all times. An appropriate number of dressing rooms that can accommodate a family are allowed.

(2) Partitions between portions of the dressing room area, screen partitions, shower, toilet, and dressing room booths shall be of durable material not subject to damage by water and shall be designed so that a waterway is provided between partitions and floor to permit thorough cleaning of the walls and floor areas with hoses and brooms.

(3) At least one shower and dressing booth for each gender shall be provided. This condition may be subject to variation for schools and other institutional use where a pool or spa may be open to one gender at a time.

(4) Floors shall have a slip-resistant surface and shall be sufficiently smooth to ensure ease in cleaning. Floor drains shall be provided, and floors shall be sloped 1/4 inch per foot toward the drains to ensure positive drainage.

(5) An adequate number of hose bibs and a hose of adequate length shall be provided for washing down all areas of the dressing facility interior. Adequate cross-connection control devices as approved by the TCEQ or local regulatory authority shall be provided. When not in use, hoses shall be stored in such a manner to prevent a trip hazard.

(f) Lavatories, showers, and toilets at post-10/01/99 pools and spas. Except as provided in subsection (g) of this section, the following requirements apply to lavatories, showers and toilets in facilities serving post-10/01/99 Class A, B, C, or D pools and spas:

(1) the required fixture schedule is contained in the following table:

Figure: 25 TAC §265.201(f)(1)

(2) the number of fixtures should be increased for swimming pools at schools or similar locations where load may reach peaks due to schedule of use; and

(3) shower(s) and lavatory(s) water temperature shall be controlled by anti-scald devices. The water heater and thermostatically-controlled mixing valves shall be inaccessible to users and shall be capable of providing 2 gallons per minute of water between 90 to 110 degrees Fahrenheit to each shower head. A shower can be located on the deck of the pool if proper wastewater disposal is provided. The shower need not be enclosed in Class C pools.

(g) Sanitary facilities serving post-10/01/99 pools or spas in apartments, hotels, motels or condominiums. Post-10/01/99 Class C and D pools and spas located in an apartment, hotel, motel or condominium complex are not required to have the following facilities:

(1) showers;

(2) dressing rooms;

(3) toilets;

(4) urinals unless the facility has toilets for persons using the pool or spa;

(5) hand drying towels unless the facility has a lavatory in an enclosed room;

(6) baby changing table unless the facility has a dressing room or toilets; and

(7) a lavatory if a faucet is installed at lavatory height and in compliance with subsection (f)(3) of this section and proper wastewater disposal is provided.

(h) Additional requirements for sanitary facilities at post-10/01/99 and pre-10/01/99 pools and spas. Post-10/01/99 and pre-10/01/99 sanitary facilities serving a post-10/01/99 or pre-10/01/99 pool or spa shall comply with the following whenever lavatories, toilets, mirrors, or dressing rooms are provided:

(1) Soap dispensers with liquid or powdered soap shall be provided at each lavatory. The dispenser shall be of all metal or plastic type with no glass permitted in these units;

(2) any mirrors shall be shatter resistant;

(3) toilet paper holders and toilet paper shall be provided at each toilet;

(4) covered waste receptacles shall be provided in toilet or dressing room areas; and

(5) single-use hand drying towels or hand drying devices shall be provided near the lavatory.

§265.202.Food, Beverages, and Containers at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Food and beverages while in the water at post-10/01/99 and pre-10/01/99 pools and spas. At post-10/01/99 and pre-10/01/99 pools and spas, no person may eat, drink, or smoke while in the pool or spa water.

(b) Non-breakable containers at post-10/01/99 and pre-10/01/99 pools and spas. At post-10/01/99 and pre-10/01/99 pools and spas, food and beverage(s) shall be served only in non-breakable containers. Glass containers shall not be allowed on a deck, in a pool or spa, or elsewhere in a pool yard or spa yard.

(c) Trash containers at post-10/01/99 and pre-10/01/99 pools and spas. At post-10/01/99 and pre-10/01/99 pools and spas, trash containers shall be provided where food and/or beverage(s) are allowed.

§265.203.Operation and Management of Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Required operator certification for certain types of post-10/01/99 and pre-10/01/99 pools and spas. Post-10/01/99 and pre-10/01/99 Class A or B pools and Class D pools operated in conjunction with a Class A or B pool shall be maintained under the supervision and direction of a properly trained and certified operator who is responsible for the sanitation, safety, and proper maintenance of the pool or spa, and for maintaining all physical and mechanical equipment and records. Training and certification can be obtained by completion of one of the following courses or their equivalent:

(1) the NRPA, "Aquatic Facility Operator" (A.F.O.);

(2) the NSPF, "Certified Pool-Spa Operator" (C.P.O.);

(3) YMCA, "Pool Operator on Location" (P.O.O.L.); or

(4) the NSPI, "Professional Pool & Spa Operator" (P.P.S.O.).

(b) Water clarity standards for post-10/01/99 and pre-10/01/99 pools and spas. Areas of a post-10/01/99 or pre-10/01/99 pool or a spa shall be opened for use only if the pool or spa bottom and/or main drains are clearly visible. Possible visual occlusion by sediment or other matter shall be checked before opening a pool and periodically, as necessary, while the pool is in use. To check the pool or spa when in use, bathers shall exit and the pool or spa water shall be allowed to calm. Clarity shall be observed between 1 to 5 minutes after users have exited. The pool or spa shall be opened for use only if the bottom and/or main drains are clearly visible. Sediment or other matter that may cause visual occlusion shall be vacuumed, filtered or otherwise removed as needed prior to pool use.

(c) Equipment for water clarity for post-10/01/99 and pre-10/01/99 pools and spas. When a post-10/01/99 or pre-10/01/99 pool or spa is open for use, filtration, circulation systems, chemical/disinfectant feeders, slurry feeders, heaters, etc., that are dependent upon circulation pump flow shall be operating, plus any additional time necessary to ensure continuous water clarity and chemical distribution.

(1) The pool and spa shall be operated to maintain the turnover rates as stated in §265.187(b)(1) of this title (relating to Circulation Systems for Post-10/01/99 Pools and Spas) and §265.187(c) of this title.

(2) Circulation pumps shall run continuously 24 hours a day year round and not be throttled to reduce circulation below the design flow rate, except that a pool pump may run less than 24 hours a day if:

(A) a "Pool Closed" sign, with letters at least 1-inch tall, is posted on the exterior side of each entry gate into the pool yard; and

(B) the pump runs a sufficient number of hours needed to keep the water at required clarity and disinfectant levels; and

(C) the pump runs the same number of hours each day.

(d) Off season water clarity for post-10/01/99 and pre-10/01/99 outdoor pools and spas. When a post-10/01/99 or pre-10/01/99 outdoor pool or spa is not in use for an extended period of time (such as off season), clarity shall be maintained and algae growth shall be prevented; however, other water quality parameters as required in §265.204(a) of this title (relating to Water Quality for Post-10/01/99 and Pre-10/01/99 Pools and Spas) do not need to be maintained. Other methods may be used to maintain pools and spas during extended periods of non-use if the methods are approved by local authorities in writing and water clarity is maintained.

(e) Off season safety for post-10/01/99 and pre-10/01/99 pools and spas. When a post-10/01/99 or pre-10/01/99 pool or spa is not in use after seasonal operation, while under construction or renovation, or for any other reason, the facility shall not be allowed to give off objectionable odors, become a breeding site for insects, or create any other nuisance situation or safety hazard.

(f) Domestic animals prohibited at post-10/01/99 and pre-10/01/99 pools and spas. Domestic animals and other pets shall not be allowed within a post-10/01/99 or pre-10/01/99 pool or spa enclosure area, except that service animals shall be allowed on the deck and within the pool enclosure but not in the pool.

(g) Actual water level at post-10/01/99 and pre-10/01/99 pools and spas. Actual water level in a post-10/01/99 or pre-10/01/99 pool or spa shall be maintained within the operating water level range of the system's rim or weir device.

(h) Protection from chemicals for post-10/01/99 and pre-10/01/99 pools and spas. Personnel in charge of maintaining a post-10/01/99 or pre-10/01/99 pool or a spa shall be properly trained in accordance with §265.197(a)(5) of this title (relating to Disinfectant Equipment and Chemical Feeders at Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(i) Maximum load limits for post-10/01/99 pools and spas. The maximum load limits for a post-10/01/99 pool and spa shall be calculated and posted. Load limits are indicated in §265.184(n) of this title (relating to General Construction and Design for Post-10/01/99 Pools and Spas).

(j) Use of life jackets for post-10/01/99 and pre-10/01/99 pools and spas. No person shall be prohibited from the use of a life jacket in a post-10/01/99 or pre-10/01/99 pool or spa.

(k) Proper use of chemicals at post-10/01/99 and pre-10/01/99 pools and spas. Use of chemicals at post-10/01/99 and pre-10/01/99 pools and spas shall be according to the chemical manufacturer's directions. No chemical shall be used in a way that violates the manufacturer's instructions for the chemical feed system or the ANSI/NSF-50 certification of the chemical feed system.

(l) Use of registered products at post-10/01/99 and pre-10/01/99 pools and spas. In post-10/01/99 and pre-10/01/99 pools and spas, only chemicals registered and labeled for use in pools and spas by U.S. Environmental Protection Agency shall be used.

§265.204.Water Quality at Post-10/01/99 and Pre-10/01/99 Pools and Spas.

(a) Required water quality for post-10/01/99 and pre-10/01/99 pools and spas. Water quality for a post-10/01/99 or pre-10/01/99 pool or a spa shall meet the following criteria when the pool or spa is open for use. The water quality parameters in the following table apply to both pools and spas unless otherwise indicated.

Figure: 25 TAC §265.204(a)

(b) Water quality testing at post-10/01/99 and pre-10/01/99 pools and spas. A reliable means of testing for pH, free and total chlorine or total bromine residuals, and cyanuric acid (if used), total alkalinity, and hardness shall be maintained for post-10/01/99 and pre-10/01/99 pools and spas. The test method shall be capable of measuring chemical ranges as detailed in subsection (a) of this section.

(1) Free available chlorine residual shall be determined by the use of the DPD method or its equivalent.

(2) Test reagents shall be properly stored and changed at frequencies recommended by the manufacturer to assure accuracy of the tests.

(c) Testing frequency for post-10/01/99 and pre-10/01/99 pools and spas. When a post-10/01/99 or pre-10/01/99 Class A or B pool is open for use or when a post-10/01/99 or pre-10/01/99 Class D pool or spa is operated in conjunction with a Class A or B pool open for use, a test for disinfectant level and pH shall be conducted at least every 2 hours to assure compliance with subsection (a) of this section relating to required water quality parameters. In lieu of the above testing frequency, if a system is used to automatically control disinfectant and pH, testing for disinfectant level and pH shall be made at least once per day. If necessary, tests shall be conducted more frequently to assure proper disinfectant level and pH.

(d) Other required tests for post-10/01/99 and pre-10/01/99 pools and spas. Test(s) for total chlorine, cyanuric acid, alkalinity and hardness at post-10/01/99 and pre-10/01/99 pools and spas shall be conducted as necessary to assure proper chemical control.

(e) Operational records for post-10/01/99 and pre-10/01/99 pools and spas. When tests are required, under this section, operational records of the tests shall be kept for two years and be made available during a governmental inspection.

§265.205.Construction, Operation, and Maintenance of Post-10/01/99 and Pre-10/01/99 Spas.

(a) General construction standards for pre-10/01/99 spas. Pre-10/01/99 spas shall comply with good public health engineering practices for construction of post-10/01/99 built pools and spas prevailing at the time of original construction as required by Health and Safety Code, §341.064(g), and shall comply with applicable rules at the time of original construction.

(b) General construction standards for post-10/01/99 spas. Post-10/01/99 spas shall comply with good public health engineering practices for construction of post-10/01/99-built pools and spas prevailing at the time of original construction as required by Health and Safety Code, §341.064(g), and shall comply with ANSI/NSPI-2, 1992 Standards for Public Spas except as otherwise provided in these rules.

(c) General standards for circulation equipment in post-10/01/99 spas. Circulation equipment on post-10/01/99 spas, such as pumps, filters, skimmers, chemical feeders, and other circulation equipment, shall comply with ANSI and NSFI Standard-50-1996 (ANSI/NSFI-50-1996) except as otherwise noted in §265.190(h) of this title (relating to Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(d) General standards for replacement of circulation equipment in pre-10/01/99 spas. Circulation equipment replaced on pre-10/01/99 spas shall comply with ANSI and NSFI Standard-50-1996 (ANSI/NSFI-50-1996) except as otherwise noted in §265.190(h) of this title (relating Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(e) Specific construction and operational standards for post-10/01/99 spas. The following standards apply to post-10/01/99 spas as specifically stated therein.

(1) §265.181 of this title (relating to General Provisions);

(2) §265.182 of this title (relating to Definitions);

(3) §265.183 of this title (relating to Plans, Permits and Instructions for Post-10/01/99 Pools and Spas);

(4) §265.185 of this title (relating to General Construction and Design for Post-10/01/99 Pools and Spas), and as follows:

(A) the maximum water depth shall be 4 feet from the design waterline except when approved by the local regulatory authority; and

(B) multi-level seating may be provided, but the maximum water depth of any seat or sitting bench shall be 24 inches, measured from the design waterline.

(5) §265.186(a) and (b) of this title (relating to Decks, Entry/Exit, Diving Facilities, and Other Deck Equipment for Post-10/01/99 and Pre-10/01/99 Pools and Spas). Also see ANSI/NSPI-2, 1992;

(6) §265.187 of this title (relating to Circulation Systems for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(7) §265.188 of this title (relating to Filters at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(8) §265.189 of this title (relating to Pumps and Motors at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(9) §265.190 of this title (relating to Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(10) §265.191 of this title (relating to Surface Skimming and Perimeter Overflow (Gutter Systems for Post-10/01/99 Pools and Spas);

(11) §265.192 of this title (relating to Electrical Requirements for Post-10/01/99 and Pre-10/01/99 Pools, Spas, Pool Yards and Spa Yards);

(12) §265.193 of this title (relating to Heating of Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(13) §265.194 of this title (relating to Pool or Spa Water Supply for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(14) §265.195 of this title (relating to Drinking Water at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(15) §265.196 of this title (relating to Waste Water Disposal at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(16) §265.197 of this title (relating to Disinfectant Equipment and Chemical Feeders for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(17) §265.198 of this title (relating to Gas Chlorination at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(18) §265.199 of this title (relating to Specific Safety Features for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(19) §265.200 of this title (relating to Pool Yard and Spa Yard Enclosures for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(20) §265.201 of this title (relating to Dressing and Sanitary Facilities at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(21) §265.202 of this title (relating to Food, Beverages, and Containers at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(22) §265.203 of this title (relating to Operation and Management of Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(23) §265.204 of this title (relating to Water Quality at Post-10/01/99 and Pre-10/01/99 Pools and Spas); and

(24) air blowers and other devices and systems which induce or allow air to enter the spa either by means of a power pump or passive design and shall comply with the following:

(A) the air blower systems shall prevent water backflow that could cause electrical shock hazards in accordance with ANSI/UL 1563-1995;

(B) air intake sources shall not induce water external to the spa unit dirt or contaminants, into the spa;

(C) the air induction system shall be properly sized in accordance with the manufacturer's sizing specification;

(D) when installing an air blower indoors or within an enclosure, adequate ventilation is required. The air induction system shall be installed in accordance with the manufacturer's recommendations;

(E) the air blowers shall be installed in accordance with the NEC and any federal, state or local codes;

(F) the air blower shall be accessible for inspection and service;

(G) integral air passages shall be pressure tested at time of manufacture to provide structural integrity to a value of 1.5 times the intended working pressure; and

(H) if an air blower or other means of introducing air is provided, a manually operated timer switch located as to require the exiting of the spa to reset shall be provided. Such a timer shall operate the spa blower and circulation pump and shall automatically shut the blower and circulation pump off in 15 minutes or when manually switched to the off position.

(f) Other safety-related requirements for post-10/01/99 and pre-10/01/99 spas. Post-10/01/99 and pre-10/01/99 spas shall comply with the following.

(1) First aid kits. Post-10/01/99 and pre-10/01/99 spas operated in conjunction with a Class A or B pool shall be equipped with a standard, 24-unit first aid kit that meets OSHA requirements and is kept ready for use at all times. First aid kits shall be housed in a durable weather resistant container and kept filled and ready for use (including disease transmission barriers and cleansing kits that meet OSHA standards).

(2) Telephone. Post-10/01/99 and pre-10/01/99 spas shall provide a means of summoning help in an emergency, and a sign shall be provided in accordance with §265.199(j) of this title (relating to Specific Safety Features for Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(3) Spa yard enclosures. Post-10/01/99 and pre-10/01/99 spas shall be provided with an enclosure as follows:

(A) a post-10/01/99 or pre-10/01/99 spa at a complex subject to Health and Safety Code, Chapter 757, shall be provided with an enclosure as required in that code;

(B) all other post-10/01/99 and pre-10/01/99 spas shall be provided with an enclosure required by §265.200 of this title (relating to Pool Yard and Spa Yard Enclosures for Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(4) Deck depth markers. Deck depth markers for post-10/01/99 and pre-10/01/99 spas shall comply with the following:

(A) spas shall have permanent deck depth markers with numbers and units of measurement a minimum of 4 inches high plainly and conspicuously visible from all obvious points of entry;

(B) there shall be a minimum of 2 deck depth markers per spa, regardless of spa size or shape;

(C) deck depth markers shall be spaced at no more than 25-foot intervals and shall be uniformly located around the entry areas of the spa;

(D) deck depth markers and units of measurement shall be within 24 inches of the water edge and positioned to be read while standing on the deck facing the water;

(E) deck depth markers shall be positioned to be read while standing on the deck facing the water;

(F) deck depth markers in or on the deck surfaces shall be slip-resistant;

(G) units of measurement shall either spell out "feet" or "inches" or abbreviate "Ft.", "In. or feet and fractions of a foot. In addition to feet and inches the depth of water may also be displayed in meters. Units of measurement for meter depth markers may be spelled out "meters" or abbreviated "M"; and

(H) deck depth markers shall indicate the spa depth from the design water level to the floor of the spa with a vertical measurement taken 3 feet from the spa wall.

(5) Temperature and thermometers. Post-10/01/99 and pre-10/01/99 spas shall comply with the following temperature safeguards:

(A) the maximum temperature of the water in the spa shall not exceed 104 degrees Fahrenheit (40 degrees Centigrade);

(B) a break-resistant thermometer (plus or minus 1 degree Fahrenheit tolerance) that is designed for use in a spa environment shall be available for patrons and staff to monitor spa temperature; and

(C) the controls for the spa temperature shall not be accessible to the spa user.

(6) Maximum load limits. Maximum load limits for post-10/01/99 spas are set forth in §265.184(n)(2) of this title and for pre-10/01/99 spas are set forth at §265.185(e)(2) of this title.

(7) Signs. Signs for post-10/01/99 and pre-10/01/99 spas shall be securely mounted and readily visible to the spa user from inside the spa enclosure. Signage shall state the following:

(A) the location of the nearest telephone or emergency-summoning device;

(B) "DO NOT USE THE SPA, IF THE WATER TEMPERATURE IS ABOVE 104 DEGREES FAHRENHEIT (40 DEGREES CENTIGRADE)" in letters at least 1 inch high;

(C) "WARNING-NO LIFEGUARD ON DUTY" with clearly legible letters at least 4 inches high if no lifeguard is required;

(D) "CHILDREN SHOULD NOT USE SPA WITHOUT ADULT SUPERVISION" with clearly legible letters at least 2 inches high if no lifeguard is required; and

(E) the maximum load limit as required in §265.203(j) of this title.

§265.206.Construction, Operation, and Maintenance of Post-10/01/99 and Pre-10/01/99 Therapeutic Pools and Spas.

(a) General construction standards for post-10/01/99 and pre-10/01/99 therapeutic pools and spas. Construction design and materials used in construction of post-10/01/99 and pre-10/01/99 therapeutic pools and spas shall comply with good public health engineering practices for construction of post-10/01/99-built therapeutic pools and spas prevailing at the time of original construction as required by Health and Safety Code, §341.064(g).

(b) General standards for circulation equipment in post-10/01/99 therapeutic pools and spas. Circulation equipment or post-10/01/99 therapeutic pools and spas, such as pumps, filters, skimmers, chemical feeders and other circulation equipment, shall comply with ANSI and NSFI Standard 50-1996 (ANSI/NSFI-50-1996) except as otherwise noted in Section 265.190(h).

(c) General standards for replacement of circulation equipment in pre-10/01/99 therapeutic pools and spas. Circulation equipment replaced on pre-10/01/99 therapeutic pools and spas shall comply with ANSI and NSFI Standard-50-1996 (ANSI/NSFI-50-1996) except as otherwise noted in §265.190(h) of this title (relating to Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas).

(d) Specific construction and operational standards for post-10/01/99 therapeutic pools and spas. The following standards apply to post-10/01/99 therapeutic pools and spas as specifically stated therein.

(1) §265.181 of this title (relating to General Provisions);

(2) §265.182 of this title (relating to Definitions);

(3) §265.183 of this title (relating to Plans, Permits and Instructions for Post-10/01/99 Pools and Spas);

(4) §265.187 of this title (relating to Circulation Systems for Post-10/01/99 and Pre-10/01/99 Pools and Spas). If the therapeutic pool contains less than 1,000 gallons, the water turnover rate shall be 30 minutes or less;

(5) §265.188 of this title (relating to Filters at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(6) §265.189 of this title (relating to Pumps at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(7) §265.190 of this title (relating to Suction Outlets and Return Inlets at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(8) §265.192 of this title (relating to Electrical Requirements for Post-10/01/99 and Pre-10/01/99 Pools, Spas, Pool Yards and Spa Yards);

(9) §265.193 of this title (relating to Heating of Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(10) §265.194 of this title (relating to Pool or Spa Water Supply for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(11) §265.195 of this title (relating to Drinking Water Supply at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(12) §265.196 of this title (relating to Waste Water Disposal at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(13) §265.197 of this title (relating to Disinfectant Equipment and Chemical Feeders for Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(14) §265.204 of this title (relating to Water Quality at Post-10/01/99 and Pre-10/01/99 Pools and Spas);

(15) §265.207 of this title (relating to Compliance, Inspections and Investigations); and

(16) §265.208 of this title (relating to Enforcement).

§265.207.Compliance, Inspections, and Investigations.

(a) A department or local regulatory representative, upon presenting the department credentials, shall have the right to enter at all reasonable times any area or environment, including but not limited to the pool or spa facility, building, storage, equipment room, or office area to inspect and investigate for compliance with these sections, to review records, to question any person, or to locate, to identify, and to assess the condition of pool or spa facility.

(b) Advance notice or permission for inspections or investigations by the department or local regulatory authority is not required.

(c) A department or local regulatory representative shall not be impeded or refused entry in the course of his official duties by reason of any state or federal law or company policy. It is a violation of this chapter for a person to interfere with, deny, or delay an inspection or investigation conducted by a department or local regulatory representative.

§265.208.Enforcement.

(a) If inspections by the department or the local regulatory authority determine that a person has caused, suffered, allowed, or permitted a violation of Health and Safety Code §341.064 or any of these rules the department or the local regulatory authority may, in accordance with Health and Safety Code, §341.092, assess civil penalties, seek injunctive relief in district court, or both.

(b) The department may also seek a criminal penalty under Health and Safety Code, §341.091.

(c) The department or local regulatory authority may take all appropriate legal remedies available to it including immediately closing the pool or spa either through voluntary compliance or an injunction.

(d) If a pool or spa closes either voluntarily or by court order all access to the pool or spa shall be restricted and a notice posted notifying the public that the pool or spa is closed until further notice.

(e) In the case of voluntary closure and upon presentation of evidence that the deficiencies that caused closure have been corrected, operation can be resumed if explicitly authorized by the department or local regulatory authority in writing. Such evidence may be in the form of a reinspection by the regulatory authority, or by other evidence acceptable to the regulatory authority.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2004.

TRD-200402066

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: May 2, 2004

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


Chapter 289. RADIATION CONTROL

Subchapter E. REGISTRATION REGULATIONS

25 TAC §289.232

The Texas Department of Health (department) proposes an amendment to §289.232, concerning radiation control regulations for dental radiation machines.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 289.232 has been reviewed and the department has determined that the reasons for adopting the section continue to exist; however, revisions to the rule are necessary as outlined in this preamble.

The department published a Notice of Intention to Review for §289.232 regarding Government Code, §2001.039, in the Texas Register (28 TexReg 9549) on October 31, 2003. No comments were received by the department on this section following publication of the notice.

The proposed revision incorporates legislation passed by the 78th Legislature, Regular Session, 2003. House Bill (HB) 2292, which added Health and Safety Code, §§12.0111 and 12.0112, requires two-year terms for certificates of registration and requires recovery through fees of 100% of regulatory program costs for the two-year term of the certificate of registration. Therefore, references to annual fees are deleted throughout the section. The department is also simplifying its fee structure for certificates of registration. Dental registrants now have one specified fee of $300 every two years, rather than a base fee plus machine fee. References to base fee and machine fee are deleted throughout the section. The registrant will be required to renew the certificate of registration every two years by paying the required fee and having a satisfactory compliance history. Registrants will receive a fee bill from the department every two years rather than every year. The requirement for an annual late payment fee is deleted. Failure to pay the fee means the certificate of registration is expired and the registrant is subject to compliance procedures provided in subsection (k)(2) regarding hearing and enforcement procedures. Senate Bill 1152, 78th Legislature, Regular Session, 2003, which amended Government Code, Chapter 2054, directs the department to participate in Texas Online, an electronic fee payment system developed and maintained by the Texas Online Authority. Wording is added that authorizes the department to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online. The changes to the rule are reflected in revised subsections (g) and (h)(6).

The revision changed references to the Formal Hearing Procedures throughout the rule to properly cite the references. In current subsection (a)(4), the sentence "No radiation may be deliberately applied to human beings except by or under the supervision of an individual licensed by the Texas State Board of Dental Examiners." is deleted in this paragraph and moved to subsection (b)(1) as this sentence is addressed more appropriately within this paragraph. Paragraph (5) is added to subsection (b) to clarify that registrants who are also licensed by the agency to receive, possess, use, and transfer radioactive materials must also comply with the applicable requirements of other sections of this title. A definition of "Act," which is the statutory authority for the radiation control rules, is added as it was inadvertently omitted from a previous version. The definitions of "leakage radiation," "medical research," "notice of violation," "radiation," "shallow dose equivalent," and "supervision" are revised to be consistent with language used in other sections in this title. The definitions of "mobile services" and "x-ray equipment" are revised to more clearly state the intent of the rule. The definitions of "interested person," "mobile x-ray equipment," and "requestor" are deleted as these terms are not used in this section. Subsequent definitions are renumbered as a result of the deleted definitions. The wording in the requirements concerning occupational dose in subsection (i)(4), including the definition of shallow dose equivalent, is being revised for clarification and to be compatible with the United States Nuclear Regulatory Commission (NRC), and as an agreement state, Texas must adopt these requirements. The word "registrant" was replaced with "person" in several subsections because the applicable requirements are not limited to registrants. The requirements apply to any person not complying with the provisions of this chapter.

House Bill 253, 78th Legislature, Regular Session, 2003, which amended Health and Safety Code, §401.110, requires the department to deny a certificate of registration application, amendment or renewal if the applicant's compliance history reveals a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations of the Radiation Control Act or the department's radiation control rules. The department has defined "a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process through significant violations..." by adding a requirement that states the department will deny an application if at least three agency actions have been issued against the applicant, within the previous six years, that assess administrative or civil penalties against the applicant or that revoke or suspend the certificate of registration. The change to the rule is reflected in new subsection (h)(4)(F).

New subparagraph (G) is added to subsection (h)(4) to specify that registrants must ensure that any person they hire to provide services is registered with the department. This is consistent with language in other sections of this title. Subsection (h)(5)(A) is revised to clarify that the registrant shall notify the department in writing of the new requirements in clauses (i)-(iv). Subsection (h)(5)(B)(i) is revised to more clearly state that if a person has a valid certificate of registration and radiation machines are being used for clinical trial evaluations and loaner or demonstration for more than 60 days, then the person shall register the radiation machines with the department. Subsection (h)(5)(C)(i) is revised to be consistent with language used throughout this chapter. In subsection (h)(5)(D), new requirements are added to specify what information is to be included on the inventory of radiation machines and changes regarding inventory that the registrant is required to report to the department. New paragraph (8) of subsection (h) is added to be consistent with modification, suspension, and revocation procedures in other sections of this title. Subsection (h)(9)(A)(vii) and (h)(9)(G) is revised to expand the requirements for requesting reciprocal recognition to be consistent with language used throughout this chapter. New paragraph (10) is revised to consolidate the requirements for the radiation safety officer. Subsection (i)(3) adds subparagraph (A) to specify that a registrant shall document that each individual operating a radiation machine has read the operating and safety procedures. The requirements for radiation machines used for clinical trial evaluations and loaner or demonstration radiation machines are revised to reflect changes in the notification requirements. Language is also added to the expiration and termination subsections to clarify requirements for the disposition or transfer of radiation machines if a registrant terminates a certificate of registration or it expires. Subsection (i)(6)(E) is deleted because this is a manufacturing requirement rather than a use requirement. Subsequent subparagraphs are renumbered as a result of this deleted subparagraph. Language is added to subsection (i)(8) for clarification and to be consistent with language used in other sections of this title. Subparagraph (13) of subsection (i) is also revised to be consistent with language used throughout his chapter. Subparagraph (16) is added to subsection (i) to require that users of digital imaging acquisition systems follow quality assurance/quality control protocols, that such protocols be included in the registrant's operating and safety procedures, and that the frequency at which the protocols are performed be documented. The revision adds language to subsection (k)(1)(T)(iii) to clearly state that the registrant shall submit documentation of the most recent equipment performance evaluation and the inventory. In subsection (k)(2)(C)(iii), subclause (IV) is added to state that a certificate of registration may also be modified, suspended, or revoked in whole or in part as a result of existing conditions that constitute a substantial threat to the public health or safety or the environment to be consistent with language used in other sections of this title. Subsection (k)(2)(D)(iii)(I), (iv), and (G)(i) and (iv) are also revised to be consistent with language used throughout this chapter. Current subsection (k)(2)(H)(ii)-(v) are deleted as these requirements do not apply to dental registrants.

Concerning the entire section, several changes were made to state the correct rule citations and for renumbering purposes as needed due to language being added or deleted throughout the section. Other minor grammatical changes have been made throughout the section.

This amendment is part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, other factors, or to incorporate requirements that are items of compatibility with NRC regulations because as an agreement state, Texas must adopt compatible requirements.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section as proposed. The subscription and convenience fees for electronic payment of fees as determined by Texas Online will be collected by the department and paid directly to the Texas Online Authority to offset the costs to state government for operating Texas Online.

Mrs. McBurney has also determined that for each year of the first five years the proposed section will be in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring that rules are clear and specific and that those persons required to operate radiation machines do so in ways that ensure such protection. There will be fiscal impact on applicants/licensees that are small businesses, micro-businesses or other persons required to comply with the rule. The fee amounts will increase for some registrants and will decrease for others because the department is implementing one specified fee, rather than a base fee plus a machine fee. Approximately 68% of dental registrants will have an average decrease in fee of $40. Approximately 32% will have an average increase in fee of $22. When implemented, the subscription and convenience fees determined by Texas Online will be $10 for credit card use by registrants. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, Telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 10:00 a.m., Tuesday, April 13, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

The amendment is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The amendment affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.232.Radiation Control Regulations for Dental Radiation Machines.

(a) Purpose. This section establishes the following.

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

(3) Requirements [ These requirements are ] intended to control the receipt, possession, use, and transfer of radiation machines by any person so the total dose to an individual, including doses resulting from all sources of radiation other than background radiation, does not exceed the standards for protection against radiation prescribed in this section. However, nothing in this section shall be construed as limiting actions that may be necessary to protect health and safety in an emergency.

(4) Requirements for the use of dental radiation machines. [ No radiation may be deliberately applied to human beings except by or under the supervision of an individual licensed by the Texas State Board of Dental Examiners. ] The registrant shall assure that the requirements of this section are met in the operation of such radiation machines.

(5) (No change.)

(6) Requirements for providing notices to employees and instructions and options available to such individuals in connection with agency inspections of registrants to ascertain compliance with the provisions of the Texas Radiation Control Act , Health and Safety Code, Chapter 401, and requirements of this chapter [ rules ], orders, and certificates of registration issued thereunder regarding radiological working conditions.

(7) Governing of the following in accordance with the Texas Radiation Control Act, the Texas Administrative Procedure Act, Health and Safety Code, Chapter 401; Texas Government Code, Chapter 2001 ; [ , ] Title 1 Texas Administrative Code (TAC), Chapter 155; and the Formal Hearing Procedures, [ Chapter 1, ] §§1.21, 1.23, 1.25, and 1.27 [ §§1.21-1.34 ] of this title (relating to the Texas Board of Health):

(A)-(D) (No change.)

(b) Scope.

(1) Except as specifically provided in other sections of this chapter, this section applies to persons who receive, possess, use, or transfer dental radiation machines. The dose limits in this section do not apply to doses due to background radiation, to exposure of patients to radiation for the purpose of dental diagnosis, to exposure from individuals administered radioactive material and released in accordance with this chapter, or to voluntary participation in medical research programs. No radiation may be deliberately applied to human beings except by or under the supervision of a dentist licensed by the Texas State Board of Dental Examiners.

(2) (No change.)

(3) Dental radiation machines located in a facility that also has other healing arts radiation machines will be inspected at the intervals specified in §289.231(ll)(1) of this title (relating to General Provisions and Standards for Protection Against [ Radiation ] Machine-Produced Radiation) and equipment performance evaluations shall be performed at the interval specified for a medical facility in subsection §289.227(q)(1) of this title (relating to Use of Radiation Machines in the Healing Arts and Veterinary Medicine).

(4) The agency may, by requirements in this chapter [ rule ], an order, or a condition of certificate of registration, impose upon any registrant such requirements in addition to those established in this chapter as it deems appropriate or necessary to minimize danger to public health and safety or the environment.

(5) Registrants who are also licensed by the agency to receive, possess, use, and transfer radioactive materials must also comply with the applicable requirements of §289.201 of this title (relating to General Provisions for Radioactive Material), §289.202 of this title (relating to Standards for Protection Against Radiation from Radioactive Materials), §289.252 of this title (relating to Licensing of Radioactive Material), §289.256 of this title (relating to Medical and Veterinary Use of Radioactive Material), and §289.257 of this title (relating to Packaging and Transportation of Radioactive Material).

(c) Definitions. The following words and terms when used in this section shall have the following meaning, unless the context clearly indicates otherwise.

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

(3) Act - Texas Radiation Control Act, Health and Safety Code, Chapter 401.

(4) [ (3) ] Administrative law judge (ALJ) - A judge employed by the State Office of Administrative Hearings.

(5) [ (4) ] Administrative penalty - A monetary penalty assessed by the agency in accordance with the Texas Radiation Control Act, §401.384, to emphasize the need for lasting remedial action and to deter future violations.

(6) [ (5) ] Adult - An individual 18 or more years of age.

(7) [ (6) ] Agency - The Texas Department of Health.

(8) [ (7) ] Agreement State - Any state with which the United States Nuclear Regulatory Commission has entered into an effective agreement under the Atomic Energy Act of 1954 (42 United States Code et seq.), as amended.

(9) [ (8) ] As low as is reasonably achievable (ALARA) - Making every reasonable effort to maintain exposures to radiation as far below the dose limits in this section as is practical, consistent with the purpose for which the registered activity is undertaken, taking into account the state of technology, the economics of improvements in relation to the state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of ionizing radiation and radiation machines in the public interest.

(10) [ (9) ] Automatic exposure control - A device that automatically controls one or more technique factors in order to obtain a required quantity of radiation at preselected locations (See definition for phototimer.)

(11) [ (10) ] Background radiation - Radiation from cosmic sources; non-technologically enhanced naturally occurring radioactive material, including radon, except as a decay product of source or special nuclear material; and including global fallout as it exists in the environment from the testing of nuclear explosive devices or from past nuclear accidents such as Chernobyl that contribute to background radiation and are not under the control of the registrant. "Background radiation" does not include radiation from sources of radiation regulated by the agency.

(12) [ (11) ] Barrier - (See definition for protective barrier.)

(13) [ (12) ] Beam-limiting device - A device that provides a means to restrict the dimensions of the x-ray field.

(14) [ (13) ] Beam quality (diagnostic x-ray) - A term that describes the penetrating power of the x-ray beam. This is identified numerically by half-value layer and is influenced by kVp and filtration.

(15) [ (14) ] Board - The Texas Board of Health.

(16) [ (15) ] Certificate of registration - A form of permission given by the agency to an applicant who has met the requirements for registration set out in the Texas Radiation Control Act and this section.

(17) [ (16) ] Certified equipment - Equipment that has been certified in accordance with Title 21, Code of Federal Regulations.

(18) [ (17) ] Coefficient of variation or C - The ratio of the standard deviation to the mean value of a population of observations. It is estimated using the following equation:

Figure: 25 TAC §289.232(c)(18) [Figure: 25 TAC §289.232(c)(17)]

(19) [ (18) ] Collective dose - The sum of the individual doses received in a given period of time by a specified population from exposure to a specified source of radiation.

(20) [ (19) ] Contested case - A proceeding in which the agency determines the legal rights, duties, or privileges of a party after an opportunity for adjudicative hearing.

(21) [ (20) ] Continuous pressure type switch - A switch so constructed that a circuit closing contact can be maintained only by continuous pressure on the switch by the operator.

(22) [ (21) ] Control panel - The part of the radiation machine control upon which are mounted the switches, knobs, push buttons, and other hardware necessary for manually setting the technique factors.

(23) [ (22) ] Declared pregnant woman - A woman who has voluntarily informed the registrant, in writing, of her pregnancy and the estimated date of conception. The declaration remains in effect until the declared pregnant woman voluntarily withdraws the declaration in writing or is no longer pregnant.

(24) [ (23) ] Deep dose equivalent, that applies to external whole body exposure - The dose equivalent at a tissue depth of 1 centimeter (1000 milligrams per square centimeter)[ ) ].

(25) [ (24) ] Dentist - An individual licensed by the Texas State Board of Dental Examiners.

(26) [ (25) ] Diagnostic source assembly - The tube housing assembly with a beam-limiting device attached.

(27) [ (26) ] Dose - For external exposure to x-ray radiation from radiation machines, a generic term that means absorbed dose, dose equivalent, or total effective dose equivalent. For purposes of this section, "radiation dose" is an equivalent term.

(28) [ (27) ] Dose equivalent - The product of the absorbed dose in tissue, quality factor, and all other necessary modifying factors at the location of interest. The units of dose equivalent are the sievert and rem.

(29) [ (28) ] Dose limits - The permissible upper bounds of radiation doses established in accordance with this section. For purposes of this section, "limits" is an equivalent term.

(30) [ (29) ] Embryo/fetus - The developing human organism from conception until the time of birth.

(31) [ (30) ] Enforcement conference - A meeting held by the agency with management of a person [ registrant ] to discuss the following:

(A) safety or safeguards;

(B) compliance with regulatory registration condition requirements;

(C) proposed corrective measures including, but not limited to, schedules for implementation; and

(D) enforcement options available to the agency.

(32) [ (31) ] Entrance exposure - The exposure expressed in roentgens (R), measured in air with the specified technique, calculated or adjusted to represent the exposure at the point where the center of the useful beam enters the patient.

(33) [ (32) ] Exposure - The quotient of dQ by dm where "dQ" is the absolute value of the total charge of the ions of one sign produced in air when all the electrons (negatrons and positrons) liberated by photons in a volume element of air having mass "dm" are completely stopped in air. The International System of Units (SI) [ SI ] unit of exposure is the coulomb per kilogram. For purposes of this section, this term is used as a noun.

(34) [ (33) ] Exposure rate - The exposure per unit of time.

(35) [ (34) ] External dose - That portion of the dose equivalent received from any source of radiation outside the body.

(36) [ (35) ] Extremity - Hand, elbow, arm below the elbow, foot, knee, and leg below the knee. The arm above the elbow and the leg above the knee are considered part of the whole body.

(37) [ (36) ] Field emission equipment - Equipment that uses an x-ray tube in which electron emission from the cathode is due solely to the action of an electric field.

(38) [ (37) ] Filter - Material placed in the useful beam to preferentially absorb selected radiations.

(39) [ (38) ] Gray - The SI unit of absorbed dose. One gray is equal to an absorbed dose of 1 joule per kilogram or 100 rad.

(40) [ (39) ] Half-value layer - The thickness of a specified material that attenuates the beam of radiation to an extent such that the exposure rate is reduced to one-half of its original value.

(41) [ (40) ] Healing arts - Any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury, or unhealthy or abnormal physical or mental condition.

(42) [ (41) ] Hearing - A proceeding to examine an application or other matter before the agency in order to adjudicate rights, duties, or privileges.

(43) [ (42) ] Human use - For exposure to x-ray radiation from radiation machines, the external administration of radiation to human beings for healing arts purposes or research and/or development specifically authorized by the agency.

(44) [ (43) ] Image receptor - Any device, such as a fluorescent screen or radiographic film, that transforms incident x-ray photons either into a visible image or into another form that can be made into a visible image by further transformations.

(45) [ (44) ] Individual - Any human being.

(46) [ (45) ] Individual monitoring - The assessment of dose equivalent to an individual by the use of:

(A) individual monitoring devices; or

(B) survey data.

(47) [ (46) ] Individual monitoring devices - Devices designed to be worn by a single individual for the assessment of dose equivalent. For purposes of this section, "personnel dosimeter" and "dosimeter" are equivalent terms. Examples of individual monitoring devices are film badges, thermoluminescence dosimeters, optically stimulated luminescence dosimeters, pocket ionization chambers (pocket dosimeters), and electronic personal dosimeters.

(48) [ (47) ] Inspection - An official examination and/or observation including, but not limited to, records, tests, surveys, and monitoring to determine compliance with the Texas Radiation Control Act and agency rules, orders, requirements, and conditions of the certificate of registration.

(49) [ (48) ] Institutional Review Board - Any board, committee, or other group formally designated by an institution to review, approve the initiation of, and conduct periodic review of biomedical research involving human subjects.

[ (49) Interested person - A person who participates in a hearing concerning a contested case but who is not admitted as a party by the ALJ.]

(50)-(54) (No change.)

(55) Leakage radiation - Radiation emanating from the diagnostic assembly except for the useful beam and radiation produced when the exposure switch or timer is not activated .

(56)-(63) (No change.)

(64) Medical research - The investigation of various health risks and diseases [ using radiation machines as part of the evaluation process ].

(65)-(66) (No change.)

(67) Mobile service operation [ services ] - The provision of radiation machines and personnel at temporary sites for limited time periods. The radiation machines may be fixed inside a motorized vehicle or may be a portable radiation machine that may be removed from the vehicle and taken into a facility for use. [ The utilization of radiation machines in temporary locations for limited time periods. The radiation machines may be fixed inside a mobile van or transported to temporary locations. ]

[ (68) Mobile x-ray equipment - (See definition for x-ray equipment).]

(68) [ (69) ] Monitoring - The measurement of radiation and the use of the results of these measurements to evaluate potential exposures and doses. For purposes of this chapter, "radiation monitoring" and "radiation protection monitoring" are equivalent terms.

(69) [ (70) ] Non-certified equipment - Equipment manufactured and assembled prior to certification requirements of Title 21, Code of Federal Regulations (CFR), effective as specified in Title 21, CFR, §1020.30(a).

(70) [ (71) ] Notice of violation - A written statement of one or more alleged infringements of a legally binding requirement. The notice [ normally ] requires the person receiving the notice [ registrant ] to provide a written statement describing the following:

(A) corrective steps taken by the person [ registrant ] and the results achieved;

(B) corrective steps to be taken to prevent recurrence; and

(C) the projected date for achieving full compliance. The agency may require responses to notices of violation to be under oath.

(71) [ (72) ] Occupational dose - The dose received by an individual in the course of employment in which the individual's assigned duties involve exposure to radiation from licensed/registered and unlicensed/unregistered sources of radiation, whether in the possession of the licensee/registrant or other person. Occupational dose does not include dose received from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released in accordance with this chapter or from voluntary participation in medical research programs, or as a member of the public.

(72) [ (73) ] Order - A specific directive contained in a legal document issued by the agency.

(73) [ (74) ] Party - A person designated as such by the ALJ. A party may consist of the following:

(A) the agency; and

(B) an applicant, licensee, registrant, accredited mammography facility, or certified industrial radiographer . [ ; and ]

[ (C) any person affected.]

(74) [ (75) ] Patient - An individual subjected to dental examination, diagnosis, or treatment.

(75) [ (76) ] Peak tube potential - The maximum value of the potential difference in kilovolts across the x-ray tube during an exposure.

(76) [ (77) ] Person - Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, local government, any other state or political subdivision or agency thereof, or any other legal entity, and any legal successor, representative, agent, or agency of the foregoing, other than the United States Nuclear Regulatory Commission, and other than federal government agencies licensed or exempted by the United States Nuclear Regulatory Commission.

(77) [ (78) ] Personnel monitoring equipment - (See definition for individual monitoring devices.)

(78) [ (79) ] Phototimer - A method for controlling radiation exposures to image receptors by the amount of radiation that reaches a radiation monitoring device. The radiation monitoring device is part of an electronic circuit that controls the duration of time the tube is activated (See definition for automatic exposure control).

(79) [ (80) ] Portable x-ray equipment - (See definition for x-ray equipment).

(80) [ (81) ] Primary protective barrier - (See definition for protective barrier).

(81) [ (82) ] Protective barrier - A barrier of radiation absorbing materials used to reduce radiation exposure. The types of protective barriers are as follows:

(A) Primary [ primary ] protective barrier - A barrier sufficient to attenuate the useful beam to the required degree ; or [ . ]

(B) Secondary [ secondary ] protective barrier - A barrier sufficient to attenuate the stray radiation to the required degree.

(82) [ (83) ] Public dose - The dose received by a member of the public from exposure to radiation from licensed/registered and unlicensed/unregistered sources of radiation, whether in the possession of the licensee/registrant or other person. It does not include occupational dose or doses received from background radiation, from any medical administration the individual has received, from exposure to individuals administered radioactive material and released in accordance with this chapter or from voluntary participation in medical research programs, or as a member of the public.

(83) [ (84) ] Rad - The special unit of absorbed dose. One rad is equal to an absorbed dose of 100 ergs per gram or 0.01 joule per kilogram (0.01 gray).

(84) [ (85) ] Radiation - One or more of the following:

(A) gamma and x rays; alpha and beta particles and other atomic or nuclear particles or rays;

(B) radiation emitted to energy density levels that could reasonably cause bodily harm from an electronic device [ stimulated emission of radiation from any electronic device to such energy density levels as to reasonably cause bodily harm ]; or

(C) sonic, ultrasonic, or infrasonic waves from any electronic device or resulting from the operation of an electronic circuit in an electronic device in the energy range to reasonably cause detectable bodily harm.

(85) [ (86) ] Radiation area - Any area, accessible to individuals, in which radiation levels could result in an individual receiving a dose equivalent in excess of 0.005 rem (0.05 millisievert) in one hour at 30 centimeters from the radiation machine or from any surface that the radiation penetrates.

(86) [ (87) ] Radiation machine - Any device capable of producing ionizing radiation except those devices with radioactive material as the only source of radiation.

(87) [ (88) ] Radiation safety officer - An individual who has a knowledge of and the authority and responsibility to apply appropriate radiation protection rules, standards, and practices, who shall be specifically authorized on a certificate of registration, and who is the primary contact with the agency.

(88) [ (89) ] Radiograph - An image receptor on which the image is created directly or indirectly by an x-ray exposure and results in a permanent record.

(89) [ (90) ] Registrant - Any person issued a certificate of registration by the agency in accordance with the Texas Radiation Control Act and this chapter.

(90) [ (91) ] Regulation - (See definition for rule.)

(91) [ (92) ] Rem - The special unit of any of the quantities expressed as dose equivalent. The dose equivalent in rem is equal to the absorbed dose in rad multiplied by the quality factor (1 rem = 0.01 sievert).

(92) [ (93) ] Remote inspection - An examination by the agency of information submitted by the registrant on a form provided by the agency.

[ (94) Requestor - A person claiming party status as a person affected.]

(93) [ (95) ] Research and development - Research and development is defined as:

(A) theoretical analysis, exploration, or experimentation; or

(B) the extension of investigative findings and theories of a scientific or technical nature into practical application for experimental and demonstration purposes, including the experimental production and testing of models, devices, equipment, materials, and processes.

(94) [ (96) ] Restricted area - An area, access to which is limited by the registrant for the purpose of protecting individuals against undue risks from exposure to radiation. Restricted area does not include areas used as residential quarters, but separate rooms in a residential building may be set apart as a restricted area.

(95) [ (97) ] Roentgen (R) - The special unit of exposure. One roentgen (R) equals 2.58 x 10 -4 coulombs per kilogram of air. (See definition for exposure.)

(96) [ (98) ] Rule - Any agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedure or practice requirements of an agency. The term includes the amendment or repeal of a prior section but does not include statements concerning only the internal management or organization of any agency and not affecting private rights or procedures. The word "rule" was formerly referred to as "regulation."

(97) [ (99) ] Scattered radiation - Radiation that has been deviated in direction during passage through matter.

(98) [ (100) ] Secondary protective barrier (See definition for protective barrier).

(99) [ (101) ] Severity level - A classification of violations based on relative seriousness of each violation and the significance of the effect of the violation on the occupational or public health or safety.

(100) [ (102) ] Shallow dose equivalent - The dose equivalent at a tissue depth of 0.007 centimeters (7 milligrams per square centimeter) that applies to the external exposure of the skin of the whole body or the skin of an extremity [ averaged over an area of 1 square centimeter (applies to the external exposure of the skin or an extremity) ].

(101) [ (103) ] SI - The abbreviation for the International System of Units.

(102) [ (104) ] Sievert - The SI unit of any of the quantities expressed as dose equivalent. The dose equivalent in sievert is equal to the absorbed dose in gray multiplied by the quality factor (1 sievert = 100 rem).

(103) [ (105) ] Source of radiation - Any radioactive material, or any device or equipment emitting or capable of producing radiation.

(104) [ (106) ] Source-to-image receptor distance - The distance from the source to the center of the input surface of the image receptor.

(105) [ (107) ] Source-to-skin distance - The distance from the source to the skin of the patient.

(106) [ (108) ] Special units - The conventional units historically used by registrants, i.e., rad (absorbed dose), and rem (dose equivalent).

(107) [ (109) ] Stationary x-ray equipment - (See definition for x-ray equipment).

(108) [ (110) ] Stray radiation - The sum of leakage and scattered radiation.

(109) [ (111) ] Supervision - The delegating of the task of applying radiation in accordance with this section to persons not licensed in dentistry, who perform tasks [ provide services ] under the dentist's control. The dentist assumes full responsibility for these tasks and shall assure that the tasks will be administered correctly.

(110) [ (112) ] Survey - An evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, and/or disposal of radiation machines. When appropriate, such survey includes, but is not limited to, tests, physical examination of location of equipment or radiation machines, and measurements of levels of radiation present, and evaluation of administrative and/or engineered controls.

(111) [ (113) ] Technique chart - A chart that provides all necessary generator control settings and geometry needed to make clinical radiographs when the radiation machine is in manual mode.

(112) [ (114) ] Technique factors - The conditions of operation that are specified as follows:

(A) for capacitor energy storage equipment, peak tube potential in kilovolt and quantity of charge in milliampere-second;

(B) for field emission equipment rated for pulsed operation, peak tube potential in kilovolt and number of x-ray pulses; and

(C) for all other equipment, peak tube potential in kilovolt and either tube current in milliamperes and exposure time in seconds or the product of tube current and exposure time in milliampere-second.

(113) [ (115) ] Termination - A release by the agency of the obligations and authorizations of the registrant under the terms of the certificate of registration. It does not relieve a person of duties and responsibilities imposed by law or rule.

(114) [ (116) ] Texas Regulations for Control of Radiation (TRCR) - All sections of Title 25 Texas Administrative Code, Chapter 289.

(115) [ (117) ] Total effective dose equivalent - For external exposures only to x-ray radiation from radiation machines, the total effective dose equivalent is equal to the deep dose equivalent.

(116) [ (118) ] Traceable to a national standard - This indicates that a quantity or a measurement has been compared to a national standard, for example, the National Institute of Standards and Technology, directly or indirectly through one or more intermediate steps and that all comparisons have been documented.

(117) [ (119) ] Tube - An x-ray tube, unless otherwise specified.

(118) [ (120) ] Tube housing assembly - The tube housing with tube installed. It includes high-voltage and/or filament transformers and other appropriate elements when such are contained within the tube housing.

(119) [ (121) ] Unrestricted area (uncontrolled area) - An area, access to which is neither limited nor controlled by the registrant. For purposes of this section, "uncontrolled area" is an equivalent term.

(120) [ (122) ] Useful beam - Radiation that passes through the window, aperture, core, or other collimating device of the source housing. Also referred to as the primary beam.

(121) [ (123) ] Violation - An infringement of any rule, license or registration condition, order of the agency, or any provision of the Texas Radiation Control Act.

(122) [ (124) ] X-ray control - A device that controls input power to the x-ray high-voltage generator and/or the x-ray tube. It includes components such as timers, phototimers, automatic brightness stabilizers, and similar devices that control the technique factors of an x-ray exposure.

(123) [ (125) ] X-ray equipment - An x-ray system, subsystem, or component thereof. For the purposes of this rule, types [ Types ] of x-ray equipment are as follows:

(A) portable x-ray equipment [ mobile x-ray equipment ] - x-ray equipment mounted on a permanent base with wheels and/or casters for moving while completely assembled or equipment designed to be hand-carried ; or

[ (B) portable x-ray equipment - x-ray equipment designed to be hand-carried; or]

(B) [ (C) ] stationary x-ray equipment - x-ray equipment that is installed in a fixed location.

(124) [ (126) ] X-ray field - That area of the intersection of the useful beam and any one of the set of planes parallel to and including the plane of the image receptor, whose perimeter is the locus of points at which the exposure rate is one-fourth of the maximum in the intersection.

(125) [ (127) ] X-ray high-voltage generator - A device that transforms electrical energy from the potential supplied by the x-ray control to the tube operating potential. The device may also include means for transforming alternating current to direct current, filament transformers for the x-ray tubes, high-voltage switches, electrical protective devices, and other appropriate elements.

(126) [ (128) ] X-ray system - An assemblage of components for the controlled production of x rays. It includes minimally an x-ray high-voltage generator, an x-ray control, a tube housing assembly, a beam-limiting device, and the necessary supporting structures. Additional components that function with the system are considered integral parts of the system.

(127) [ (129) ] X-ray subsystem - Any combination of two or more components of an x-ray system.

(128) [ (130) ] X-ray tube - Any electron tube that is designed to be used primarily for the production of x rays.

(129) [ (131) ] Whole body - For purposes of external exposure, head, trunk including male gonads, arms above the elbow, or legs above the knee.

(130) [ (132) ] Worker - An individual engaged in work under a certificate of registration issued by the agency and controlled by a registrant, but does not include the registrant.

(131) [ (133) ] Year - The period of time beginning in January used to determine compliance with the provisions of this chapter. The registrant may change the starting date of the year used to determine compliance by the registrant provided that the change is made at the beginning of the year and that no day is omitted or duplicated in consecutive years.

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

(f) Interpretations. Except as specifically authorized by the agency in writing, no interpretation of the meaning of this chapter by any officer or employee of the agency other than a written legal interpretation by the agency [ Office of General Counsel, Texas Department of Health ], will be considered binding upon the agency.

(g) Fees for Certificates of Registration for Dental Facilities.

(1) Payment of fees.

(A) Each application for a certificate of registration [ for which a fee is prescribed in paragraph (2) of this subsection ] shall be accompanied by a nonrefundable fee of $300 [ equal to the appropriate annual fee ]. No application will be accepted for filing or processed prior to payment of the full amount specified. [ For facilities possessing ten or more machines at a single authorized use location, the fee is specified in paragraph (2) of this subsection. ]

(B) A nonrefundable fee of $300 [ , in accordance with paragraph (2) of this subsection, ] shall be paid [ annually ] for each certificate of registration for radiation machines used in dentistry . The fee shall be for the two-year term of the certificate of registration. The fee shall be paid in full on or before the last day of the expiration month and year of the certificate of registration.

(i) For each additional use location authorized on a single certificate of registration, the registrant will pay an additional $90.

(ii) In the case of a single certificate of registration that authorizes more than one category of use, the category listed in §289.204(h) of this title (relating to Fees for Certificates of Registration, Radioactive Material Licenses, Emergency Planning and Implementation, and Other Regulatory Services) and assigned the higher fee will be used. If this certificate of registration also has additional authorized use sites, the registrant shall pay an additional 30% of the highest fee category. [ For facilities possessing one to nine machines at a single authorized use location, the fee consists of a base fee plus a fee for each machine possessed. ]

(C) Each application for reciprocal recognition of an out-of-state registration in accordance with subsection (h)(9) of this section shall be accompanied by the $300 [ applicable annual ] fee, provided that no such fee has been submitted within 24 [ 12 ] months of the date of commencement of the proposed activity.

(D) (No change.)

[ (2) Schedule of annual fees for certificates of registration for dental radiation machines. The annual fees for certificates of registration for dental radiation machines include the following:]

[Figure: 25 TAC §289.232(g)(2)]

(2) [ (3) ] Failure to pay prescribed fees.

(A) In any case where the agency finds that an applicant for a certificate of registration has failed to pay the fee prescribed in this section, the agency will not process that application until such fee is paid.

[ (B) In any case where the agency finds that a registrant has failed to pay a fee prescribed by this section by the due date, the registrant shall pay a late payment fee of 20% of the annual fee prescribed in paragraph (2) of this subsection, in addition to the annual registration fee. The late payment fee shall not exceed $10,000 for each registrant who fails to pay the fees prescribed by this section.]

(B) [ (C) ] In any case where the agency finds that a registrant has failed to pay a fee prescribed by this section by the due date, the certificate of registration expires and the agency may implement compliance procedures as provided in subsection (k)(2)(C) of this section.

(3) Fees for Texas Online participation. For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

(h) Registration of Radiation Machine Use.

(1) Application for registration.

(A) Each person having a radiation machine used in dentistry shall apply for registration with the agency within 30 days after beginning use of the radiation machine, except for mobile services that shall be registered in accordance with paragraph (2) of this subsection and clinical trial evaluations that shall be registered in accordance with paragraph (5)(B) of this subsection.

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

(J) Each application shall be accompanied by a completed BRC Form 226-1, Business Information Form [ Franchise Tax Information Form, shall be submitted with the application to confirm that no tax owed to the state under Tax Code, Chapter 171, is delinquent ].

(K) (No change.)

(2) Application for registration of mobile service operation [ services ] used in dentistry. In addition to the requirements of paragraph (1) of this subsection, each applicant shall apply for and receive authorization for mobile service operation [ services ] before beginning mobile service operation. The following shall be submitted.

(A) An established main location where the machine(s) [ machine ], records, etc. will be maintained for inspection. This shall be a street address, not a post office box number.

(B) A sketch or description of the normal configuration of each radiation [ x-ray ] machine's use, including the operator's position and any ancillary personnel's location during exposures. If a mobile van is used with a fixed radiation machine inside, furnish the floor plan indicating protective shielding and the operator's location.

(C) (No change.)

(3) Issuance of certificate of registration.

(A) Upon a determination that an application meets the requirements of the Texas Radiation Control Act and the requirements of this chapter [ rules of the agency ], the agency may issue a certificate of registration authorizing the proposed activity in such form and containing such conditions and limitations as the agency [ it ] deems appropriate or necessary.

(B) (No change.)

(4) Specific terms and conditions of certificates of registration.

(A) Each certificate of registration issued in accordance with this section shall be subject to the applicable provisions of the Texas Radiation Control Act, now or hereafter in effect, and to the applicable requirements of this chapter [ rules ] and orders of the agency.

(B)-(E) (No change.)

(F) In making a determination whether to grant, deny, amend, renew, revoke, suspend, or restrict a certificate of registration, the agency may consider the technical competence and compliance history of an applicant or holder of a certificate of registration. After an opportunity for a hearing, the agency shall deny an application for a certificate of registration, an amendment to a certificate of registration, or renewal of a certificate of registration if the applicant's compliance history reveals that at least three agency actions have been issued against the applicant, within the previous six years, that assess administrative or civil penalties against the applicant, or that revoke or suspend the certificate of registration.

(G) No registrant shall engage any person for services described in §289.226(j) of this title (relating to Registration of Radiation Machine Use and Services) until such person provides evidence to the registrant of registration with the agency.

(5) Responsibilities of the registrant.

(A) The registrant shall notify the agency in writing within 30 days of any of the following changes that would render the information contained in the application for registration and/or the certificate of registration inaccurate : [ . ]

(i) name and mailing address;

(ii) street address where machine will be used;

(iii) RSO; or

(iv) name of entity contracted for "provider of equipment" registered in accordance with §289.226 of this title.

(B) The following criteria applies to loaner or demonstration radiation machines and radiation machines used for clinical trial evaluations. For persons having a valid certificate of registration, radiation machines used for clinical trial evaluations and loaner or demonstration radiation machines may be used for up to 60 days. After 60 days, the registrant shall notify the agency of the following:

(i) any change in the category(ies) of machine type or type of use as authorized in the certificate of registration (for example, addition of a computerized tomography machine to the authorized dental radiographic machine); or

(ii) any increase in the number of machines authorized by the certificate of registration in any machine type or type of use category.

[ (i) Radiation machines used for clinical trial evaluations and loaner or demonstration radiation machines may be used for up to 60 days without adding the radiation machines to an existing certificate of registration. If the use period will exceed 60 days, the facility will be required to add the radiation machine to their certificate of registration and a fee will be assessed. Radiation machines will be registered in accordance with paragraph (1) of this subsection.]

[ (ii) No fees will be assessed for the operation of radiation machines for clinical trial evaluations or loaner or demonstration radiation machines used for a period of 60 days or less at a facility with a current certificate of registration.]

(C) The following applies to voluntary or involuntary petitions for bankruptcy.

(i) Each registrant shall notify the agency, in writing, immediately following the filing of a voluntary or involuntary petition for bankruptcy by the registrant or its parent company . This notification shall include:

(I) the bankruptcy court in which the petition for bankruptcy was filed; and

(II) the date of the filing of the petition.

[ (ii) The notification specified in clause (i) of this subparagraph shall include:]

[ (I) the bankruptcy court in which the petition for bankruptcy was filed; and]

[ (II) the date of the filing of the petition.]

(ii) [ (iii) ] A copy of the "petition for bankruptcy" shall be submitted to the agency along with the written notification.

(D) Inventory.

(i) Each registrant shall [ annually ] inventory all radiation machines at an interval not to exceed one year. [ possessed. ] The inventory shall [ include the manufacturer's name and model and serial number of the control panel and shall ] be made and maintained for inspection by the agency in accordance with subsection (k)(1)(X)(i) of this section and shall include: [ . ]

(I) manufacturer's name;

(II) model and serial number of the control panel; and

(III) location of radiation machine(s), for example, room number.

(ii) Notification to the agency concerning radiation machine inventory is required within 30 days of either of the following:

(I) any change in the category(ies) of machine type or type of use as authorized in the certificate of registration (for example, addition of a computerized tomography machine to the authorized dental radiographic machine); or

(II) any increase in the number of machines authorized by the certificate of registration in any machine type or type of use category.

[ (ii) Notification is required within 30 days of any change of radiation machine inventory. This includes installation or removal and the disposition of any machine disposed of or transferred. The assembler's notification of installation may be accepted in lieu of notification by the registrant. This does not relieve the registrant of the responsibility to assure that proper notification has been made.]

(E) (No change.)

(F) Records of training and experience required by this section shall be maintained for inspection by the agency until disposal is authorized by the agency.

(6) Expiration of certificates of registration.

(A) Effective September 1, 2004, the term of the certificate of registration is two years. Each certificate of registration expires at the end of the day, in the month and year stated in the certificate of registration. Upon payment of the fee required by subsection (g)(1)(B) of this section, and if the agency does not deny the renewal in accordance with subsection (h)(4)(F) of this section, the certificate of registration will be renewed. [ Except as provided by paragraph (8) of this subsection, each certificate of registration that specifies an expiration date expires at the end of the day on that date. Expiration of the certificate of registration does not relieve the registrant of the requirements of this section. ]

(B) If the fee is not paid and the certificate of registration is not renewed in accordance with subparagraph (A) of this paragraph, the certificate of registration expires, and the registrant is in violation of the requirements in this chapter and is subject to administrative penalties in accordance with §289.205 of this title.

(i) If the registrant pays the fee required by §289.204 of this title within 30 days after expiration of the certificate of registration, the certificate of registration will be reinstated and the registrant will not be required to file an application in accordance with subsection (h) of this section.

(ii) If the registrant fails to pay the fee within 30 days after expiration of the certificate of registration, the registrant shall file an application in accordance with subsection (h) of this section.

(C) [ (B) ] If a registrant does not pay the fee required by subsection (g) of this section and the certificate of registration is not renewed, [ submit an application for renewal of the certificate of registration under paragraph (8) of this subsection, as applicable, ] the registrant shall [ on or before the expiration date specified in the certificate of registration ]:

(i) terminate use of all radiation machines within 30 days following the expiration date ; and

(ii) submit to the agency a record of the disposition of the radiation machines and if transferred, to whom transferred within 30 days following the expiration date. [ ; and ]

[ (iii) pay any outstanding fees in accordance with subsection (g) of this section.]

(D) Expiration of the certificate of registration does not relieve the registrant of the requirements of this chapter.

(7) Termination of certificates of registration. When a registrant decides to terminate all activities involving radiation machines authorized under the certificate of registration, the registrant shall notify the agency immediately and:

(A) (No change.)

(B) submit to the agency a record of the disposition of the radiation machines and if transferred, to whom transferred ; and

(C) (No change.)

(8) Modification, suspension, and revocation of certificate of registration.

(A) The terms and conditions of all certificates of registration shall be subject to revision or modification. A certificate of registration may be suspended or revoked by reason of amendments to the Act, by reason of requirements of this chapter or orders issued by the agency.

(B) Any certificate of registration may be revoked, suspended, or modified, in whole or in part, for any of the following:

(i) any material false statement in the application or any statement of fact required under provisions of the Act;

(ii) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a certificate of registration on an original application;

(iii) violation of, or failure to observe any of the terms and conditions of the Act, this chapter, the certificate of registration, or order of the agency; or

(iv) existing conditions that constitute a substantial threat to the public health or safety or the environment.

(C) Each certificate of registration revoked by the agency ends at the end of the day on the date of the agency's final determination to revoke the certificate of registration, or on the revocation date stated in the determination, or as otherwise provided by the agency order.

(D) Except in cases in which the occupational and public health or safety requires otherwise, no certificate of registration shall be suspended or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the registrant in writing and the registrant shall have been afforded an opportunity to demonstrate compliance with all lawful requirements.

[ (8) Renewal of certificate of registration.]

[ (A) Application for renewal of registration shall be filed in accordance with paragraph (1) of this subsection.]

[ (B) If a registrant files an application in proper form before the existing certificate of registration expires, such existing certificate of registration shall not expire until the application status has been determined by the agency.]

(9) Reciprocal recognition of out-of-state certificates of registration.

(A) Whenever any radiation machine is to be brought into the state for any temporary use, the person proposing to bring the machine into the state shall apply for and receive a notice from the agency granting reciprocal recognition prior to beginning operations. The request for reciprocity shall include the following:

(i) completed BRC Form 226-1 (Business Information Form) [ (Franchise Tax Form) ];

(ii)-(iv) (No change.)

(v) copy of the applicant's current operating and safety procedures pertinent to the proposed use; [ and ]

(vi) the [ annual ] fee as specified in subsection (g)(2) of this section ; and [ . ]

(vii) qualifications of personnel who will be operating the machines.

(B)-(C) (No change.)

(D) When radiation machines are used as authorized under reciprocity, the out-of-state registrant shall have the following in its possession at all times for inspection by the agency:

(i)-(iii) (No change.)

(iv) copy of the applicable rules [ regulations ] as specified in the notice granting reciprocity.

(E)-(F) (No change.)

(G) Reciprocal recognition will expire one year from the date it is granted. A new request for reciprocity shall be submitted to the agency each year. Reciprocity requests made after the initial request shall include only the following:

(i) completed BRC Form 226-1 (Business Information Form);

(ii) completed BRC Form 252-3 (Notice of Intent to Work in Texas Under Reciprocity);

(iii) name and Texas licensing board number of the dentist if the radiation machines are used to irradiate humans;

(iv) copy of the applicant's current state certificate of registration or equivalent document;

(v) copy of the applicant's current operating and safety procedures pertinent to the proposed use;

(vi) the fee as specified in subsection (g)(1) of this section; and

(vii) qualifications of personnel who will be operating the machines.

[ (i) a completed BRC Form 226-1 if the information is changed;]

[ (ii) a completed BRC Form 252-3; and]

[ (iii) the annual fee as specified in subsection (g)(2) of this section.]

(H) (No change.)

(10) A radiation safety officer (RSO) shall be designated on each application form. The qualifications of that individual shall be submitted to the agency with the application.

(A) The RSO shall have the following qualifications:

(i) knowledge of potential hazards and emergency precautions; and

(ii) completed educational courses related to ionizing radiation safety or a radiation safety officer course; or

(iii) experience in the use and familiarity of the type of equipment used; and

(B) In addition to the qualifications in subparagraph (A) of this paragraph, documentation of the following shall be submitted to the agency:

(i) dentist radiation safety officers shall provide documentation of licensing board number and their signature on the application; or

[ (10) Qualification requirements for radiation safety officers. ]

[ (A) All radiation safety officers shall meet the following qualification requirements: ]

[ (i) educational courses related to ionizing radiation safety or a radiation safety officer course; ]

[ (ii) experience in the use and familiarity of the type of radiation machine used; and ]

[ (iii) knowledge of potential radiation hazards or emergency precautions. ]

[ (B) Licensed dentist radiation safety officers shall provide documentation of licensing board number and their signature on the application; or ]

(ii) [ (C) ] non-practitioner [ Non-practitioner ] radiation safety officers shall provide any one of the following:

(I) [ (i) ] evidence of a valid general certificate issued under the Medical Radiologic Technologist Certification Act, Texas Occupations Code, Chapter 601, and at least two years of supervised use of radiation machines;

(II) [ (ii) ] evidence of a valid limited general certificate issued under the Medical Radiologic Technologist Certification Act, Texas Occupations Code, Chapter 601, and at least four years of supervised use of radiation machines;

(III) [ (iii) ] evidence of registry by the American Registry of Radiologic Technologists (ARRT) or the American Registry of Clinical Radiologic Technologists (ARCRT) and at least two years of supervised use of radiation machines;

(IV) [ (iv) ] evidence of associate degree in radiologic technology, health physics, or nuclear technology, and at least two years of supervised use of radiation machines;

(V) [ (v) ] evidence of registration with the Board of Nurse Examiners as a Registered Nurse or a Registered Nurse with an extended scope of practice (Nurse Practitioner) performing radiologic procedures, and at least two years of supervised use of radiation machines in the respective practitioners' specialty;

(VI) [ (vi) ] evidence of registration with the Texas State Board of Physician Assistant Examiners, and at least two years of supervised use of radiation machines in the respective practitioners' specialty;

(VII) [ (vii) ] evidence of:

(-a-) [ (I) ] registration with the Texas State Board of Dental Examiners to perform radiologic procedures under a dentist's instruction and direction or evidence of a valid certificate as a registered dental hygienist; and

(-b-) [ (II) ] at least four years of supervised use of radiation machines in the respective dentists' specialty;

(VIII) [ (viii) ] evidence of bachelor's (or higher) degree in a natural or physical science, health physics, radiological science, nuclear medicine, or nuclear engineering; or

(IX) [ (ix) ] evidence of a current Texas license under the Medical Physics Practice Act, Texas Occupations Code, Chapter 602, in medical health physics, diagnostic radiological physics, or medical nuclear physics for diagnostic x-ray facilities.

(C) [ (D) ] Academic institutions and/or research and development facilities shall have radiation safety officers who are faculty or staff members in radiation protection, radiation engineering, or related disciplines. (This individual may also serve as the radiation safety officer over the dental section of the facility).

(D) [ (E) ] The radiation safety officer identified on a certificate of registration issued before September 1, 1993, need not comply with the qualification requirements in this subsection.

(11) (No change.)

(i) Use of Dental Radiation Machines.

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

(3) Operating and safety procedures. Each registrant shall have and implement written operating and safety procedures. These procedures shall be made available to each individual operating a radiation machine, including any restrictions of the operating technique required for the safe operation of the particular x-ray system.

(A) The registrant shall document that each individual operating a radiation machine has read the operating and safety procedures and shall maintain this documentation for inspection by the agency in accordance with subsection (k)(1)(X)(i) of this section. The documentation shall include the following:

(i) name and signature of individual;

(ii) date individual read the operating and safety procedures; and

(iii) initials of the RSO.

(B) The operating and safety procedures [ These procedures ] shall include, but are not limited to, the following procedures as applicable.

(i) [ (A) ] use of a technique chart in accordance with paragraph (6)(A) of this subsection;

(ii) [ (B) ] radiation dose requirements in accordance with paragraph (4)(A) of this subsection;

(iii) [ (C) ] holding of patients or film in accordance with paragraph (13)(A), (C), and (D) of this subsection;

(iv) [ (D) ] film processing program or digital image processing in accordance with paragraphs (14)-(16) [ (14) and (15) ] of this subsection;

(v) [ (E) ] posting notices to workers in accordance with paragraph (5)(B) of this subsection;

(vi) [ (F) ] instructions to workers in accordance with paragraph (4)(D) of this subsection;

(vii) [ (G) ] notifications and reports to individuals in accordance with subsection (j)(2)(B) and (C) of this section;

(viii) [ (H) ] ordering x-ray exams in accordance with subsection (b)(1) of this section; and

(ix) [ (I) ] posting of a radiation area in accordance with paragraph (5)(D) and (E) of this subsection.

(4) Personnel requirements.

(A) Occupational dose limits.

(i) The registrant shall control the occupational dose to individuals, to the following dose limits.

(I) (No change.)

(II) The annual limits to the lens of the eye, to the skin of the whole body , and to the skin of any extremities shall be:

(-a-) (No change.)

(-b-) a shallow dose equivalent of 50 rems (0.5 sievert) to the skin of the whole body or to the skin of any extremity.

(III)-(V) (No change.)

(ii) The assigned deep dose equivalent [ and shallow dose equivalent ] shall be for the portion of the body receiving the highest exposure. The assigned shallow dose equivalent shall be the dose averaged over the contiguous 10 cm 2 of the skin receiving the highest exposure.

(iii) The deep dose equivalent, lens dose equivalent, and shallow dose equivalent may be assessed from surveys [ , calculations, ] or radiation measurements for the purpose of demonstrating compliance with the occupational dose limits.

(iv) (No change.)

(B)-(D) (No change.)

(5) Facility requirements.

(A)-(B) (No change.)

(C) Notice to employees. The following form, or an equivalent as stated in subparagraph (B)(ii) of this paragraph, shall be posted.

Figure: 25 TAC §289.232(i)(5)(C) (.pdf) [Figure: 25 TAC §289.232(i)(5)(C)]

(D)-(E) (No change.)

(6) Radiation machine requirements.

(A)-(D) (No change.)

[ (E) Radiation from components other than the diagnostic source assembly. The radiation emitted by a component other than the diagnostic source assembly shall not exceed 2 millirem in one hour at 5 centimeters from any accessible surface of the component when it is operated in an assembled x-ray system under any conditions for which it was designed. Measurement is averaged over an area of 100 square centimeter with no linear dimension greater than 20 centimeters.]

(E) [ (F) ] Beam quality. The following requirements apply to beam quality.

(i) Half-value layer.

(I) The half-value layer of the useful beam for a given x-ray tube potential shall not be less than the values shown in the following Table I. If it is necessary to determine such half-value layer at an x-ray tube potential that is not listed in Table I, linear interpolation may be made.

Figure: 25 TAC §289.232(i)(6)(E)(i)(I) [Figure: 25 TAC §289.232(i)(6)(F)(i)(I)]

(II) For capacitor energy storage equipment, compliance with the requirements of this subparagraph shall be determined with the maximum quantity of charge per exposure.

(ii) Filtration controls. For x-ray systems that have variable kilovolt peak and variable filtration for the useful beam, a device shall link the kilovolt peak selector with the filters and shall prevent an exposure unless the minimum amount of filtration required by clause (i) of this subparagraph is in the useful beam for the given kilovolt peak that has been selected.

(iii) Any other system having removable filters shall be required to have the minimum amount of filtration as required by clause (i)(I) of this subparagraph permanently located in the useful beam during each exposure.

(F) [ (G) ] Multiple tubes. Where two or more radiographic tubes are controlled by one exposure switch, the tube or tubes that have been selected shall be clearly indicated prior to initiation of the exposure. This indication shall be both on the x-ray control panel and at or near the tube housing assembly that has been selected.

(G) [ (H) ] X-ray control. An x-ray control shall be incorporated into each x-ray system such that an exposure can be terminated by the operator at any time, except for exposures of 0.5 second or less. [ Each x-ray control shall be located in such a way as to permit the operator to remain in an area of less than 2 millirem in any one hour during the entire exposure. ] The exposure switch shall be of the continuous pressure type.

(H) [ (I) ] Timer.

(i) The accuracy of the timer shall meet the manufacturer's specifications. If the manufacturer's specifications are not obtainable, the timer accuracy shall be (10% of the indicated time with testing performed at 0.5 second.

(ii) Means shall be provided to terminate the exposure at a preset time interval, a preset product of current and time, a preset number of pulses, or a preset radiation exposure to the image receptor. In addition, it shall not be possible to make an exposure when the timer is set to a "zero" or "off" position if either position is provided.

(I) [ (J) ] Exposure interval reproducibility. When all technique factors are held constant, including control panel selections associated with automatic exposure control systems, the coefficient of variation of exposure for both manual and automatic exposure control systems shall not exceed 0.05. This requirement applies to clinically used techniques.

(J) [ (K) ] Kilovolt peak. If the registrant possesses documentation of the appropriate manufacturer's kilovolt peak specifications, the radiation machine shall meet those specifications. If the registrant does not possess documentation of the appropriate manufacturer's kilovolt peak specifications, the indicated kilovolt peak shall be accurate to within ±10% of the indicated setting(s). For radiation machines with fewer than three fixed kilovolt peak settings, the radiation machine shall be checked at those settings.

(K) [ (L) ] Tube stability. The x-ray tube shall remain physically stable during exposures. In cases where tubes are designed to move during exposure, the registrant shall assure proper and free movement of the radiation machine.

(L) [ (M) ] Collimation. Field limitation shall meet the requirements of paragraph (12) of this subsection.

(M) [ (N) ] Radiographic entrance exposure limits for dental facilities. The in-air exposure determined for the technique used by the registrant for the specified average human adult patient thickness for routine intraoral (bite wing) dental radiography shall not exceed the following entrance exposure limits.

(i) 450 millirem for dental intraoral at 60 kilovolt peak and above; and

(ii) 600 millirem for dental intraoral less than 60 kilovolt peak.

(N) [ (O) ] Security and control of radiation machines.

(i) The registrant shall secure radiation machines from unauthorized removal.

(ii) The registrant shall use devices and/or administrative procedures to prevent unauthorized use of radiation machines.

(7) Equipment performance evaluations.

(A) For all dental radiation machines, the registrant shall perform, or cause to be performed, tests necessary to assure proper function of equipment with the indicated standard for each item specified in paragraph (6)(H)-(M) [ (6)(I)-(N) ] of this subsection. After installation, the tests listed shall be performed every four years.

(B) (No change.)

(C) Any items not meeting the specifications of the tests shall be corrected or repaired. Correction or repair shall begin within 30 days following the check and shall be performed according to a plan designated by the registrant. Correction or repair shall be completed no longer than 90 days from discovery unless authorized by the agency. Records of corrections or repairs shall be maintained by the registrant in accordance with subsection (k)(1)(X)(i) of this section for inspection by the agency .

(D) (No change.)

(8) Dental research. In addition to the requirements of subsection (h)(1) of this section, any [ Any ] research using radiation machines on humans shall receive prior approval from the agency and shall be approved by an Institutional Review Board as required by Title 45, CFR, Part 46 and Title 21, CFR, Part 56. The Institutional Review Board shall include at least one dentist to direct any use of radiation in accordance with subsection (a)(4) of this section.

(9)-(12) (No change.)

(13) Additional operational controls.

(A) When a patient or image receptor must be held in position during radiography, mechanical supporting or restraining devices shall be used when the exam permits except in individual cases in which the registrant has determined that the holding devices are contraindicated.

(B) The registrant's written operating and safety procedures required by paragraph (3) of this subsection shall include the following:

(i) a list of circumstances in which mechanical holding devices cannot be routinely utilized [ exceptions to using mechanical holding devices may apply ]; and

(ii) a procedure used for selecting an individual to hold or support the patient or image receptor . [ ; and ]

[ (iii) a procedure the individual must follow when holding or supporting the patient or image receptor.]

(C) The operator position during the exposure shall be such that the operator's exposure is as low as reasonably achievable and the operator is a minimum of [ shall stand at least ] six feet from the useful beam or behind a protective barrier. The operator shall maintain verbal, aural, and visual contact with the patient.

(D) In no case shall an individual hold the tube or tube housing assembly support during any radiographic exposure. [ The tube housing support shall be constructed and adjusted so that the tube housing shall not drift from its set position during an exposure. Neither the tube housing nor support housing shall be hand-held during an exposure. ]

(14) Automatic and manual film processing for dental facilities and mobile dental services.

(A)-(D) (No change.)

(E) Corrections or repairs of the light leaks or other deficiencies in subparagraphs (B)-(D) of this paragraph shall be initiated within 72 hours of discovery and completed no longer than 15 days from detection of the deficiency unless a longer time is authorized by the agency. Records of the corrections or repairs shall include the date and initial of the individual performing these functions and should be maintained in accordance with subsection (k)(1)(X)(i) of this section for inspection by the agency.

(F) (No change.)

(15) (No change.)

(16) Digital imaging acquisition systems. Users of digital imaging acquisition systems shall follow quality assurance/quality control protocol for image processing established by the manufacturer or, if no manufacturer's protocol is available, by the registrant. The registrant shall include the protocols, whether established by the registrant or the manufacturer, in its operating and safety procedures. The registrant shall document the frequency at which the quality assurance/quality control protocol is performed. Documentation shall include the date and initials of the individual completing the document and shall be maintained at the site where performed in accordance with subsection (k)(1)(X)(i) of this section for inspection by the agency.

(j) Records and reports.

(1) General provisions for records and reports.

(A)-(G) (No change.)

(H) Each registrant shall maintain records of receipt, transfer, and disposal of radiation machines for inspection by the agency. The records shall include the following information and shall be kept until disposal is authorized by the agency:

(i) manufacturer's name;

(ii) model and serial number from the control panel;

(iii) date of the receipt, transfer, and disposal; and

(iv) name of the individual recording the information.

(I) [ (H) ] Copies of records required in subsections (h)(5)(D) and (E), (i)(7), and (i)(14)(F) of this section and by certificate of registration condition that are relevant to operations at an additional authorized use location shall be maintained at that location in addition to the main location specified on a certificate of registration in accordance with subsection (k)(1)(X)(i) of this section.

(J) [ (I) ] The registrant shall maintain adequate safeguards against tampering with and loss of records.

(K) [ (J) ] Subject to the limitations provided in the Texas Public Information Act, Government Code, Chapter 552, all information and data collected, assembled, or maintained by the agency are public records open to inspection and copying during regular office hours.

(L) [ (K) ] Any person who submits written information or data to the agency and requests that the information be considered confidential, privileged, or otherwise not available to the public under the Texas Public Information Act, shall justify such request in writing, including statutes and cases where applicable, addressed to the agency.

(i) Documents containing information that is claimed to fall within an exception to the Texas Public Information Act shall be marked to indicate that fact. Markings shall be placed on the document on origination or submission.

(I) The words "NOT AN OPEN RECORD" shall be placed conspicuously at the top and bottom of each page containing information claimed to fall within one of the exceptions.

(II) The following wording shall be placed at the bottom of the front cover and title page, or first page of text if there is no front cover or title page:

Figure: 25 TAC §289.232(j)(1)(L)(i)(II) [Figure: 25 TAC §289.232(j)(1)(K)(i)(II)]

(ii) The agency requests, whenever possible, that all information submitted under the claim of an exception to the Texas Public Information Act be extracted from the main body of the application and submitted as a separate annex or appendix to the application.

(iii) Failure to comply with any of the procedures described in subparagraphs (A) and (B) of this paragraph may result in all information in the agency file being disclosed upon an open records request.

(M) [ (L) ] The agency will determine whether information falls within one of the exceptions to the Texas Public Information Act. The agency [ Office of General Counsel ] will determine [ be queried as to ] whether or not there has been a previous determination that the information falls within one of the exceptions to the Texas Public Information Act. If there has been no previous determination and the agency believes that the information falls within one of the exceptions, an opinion of the Attorney General will be requested. If the agency agrees in writing to the request, the information shall not be open for public inspection unless the Attorney General's office subsequently determines that it is not an exception.

(N) [ (M) ] Requests for information.

(i) All requests for open records information shall be in writing and refer to documents currently in possession of the agency.

(ii) The agency will ascertain whether the information may be released or whether it falls within an exception to the Texas Public Information Act.

(I) The agency may take a reasonable period of time to determine whether information falls within one of the exceptions to the Texas Public Information Act.

(II) If the information is determined to be public, it will be presented for inspection and/or copies of documents will be furnished within a reasonable period of time. A fee will be charged to recover agency costs for copies.

(iii) Original copies of public records may not be removed from the agency. Under no circumstances shall material be removed from existing records.

(2) Reports.

(A) (No change.)

(B) Reports of incidents.

(i) Notwithstanding other requirements for notification, each registrant shall immediately report each event involving a radiation machine possessed by the registrant that may have caused or threatens to cause an individual to receive:

(I)-(II) (No change.)

(III) a shallow dose equivalent to the skin of the whole body or to the skin of any extremities of 250 rads (2.5 grays) or more.

(ii) Each registrant shall, within 24 hours of discovery of the event, report to the agency each event involving loss of control of a radiation machine possessed by the registrant that may have caused, or threatens to cause an individual to receive, in a period of 24 hours:

(I)-(II) (No change.)

(III) a shallow dose equivalent to the skin of the whole body or to the skin of any extremities exceeding 50 rems (0.5 sievert).

(iii)-(iv) (No change.)

(C)-(D) (No change.)

(k) Compliance and hearing procedures.

(1) Inspections.

(A)-(S) (No change.)

(T) For remote inspection of radiation machines, each registrant shall:

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

(iii) return to the agency the completed remote inspection forms including [ with ] documentation of the most recent equipment performance evaluation performed in accordance with subsection (i)(7) of this section and an inventory in accordance with subsection (h)(5)(D) of this section by the deadline indicated on the forms.

(U) Each registrant shall perform, upon instructions from the agency, or shall permit the agency to perform such reasonable surveys as the agency deems appropriate or necessary including, but not limited to, surveys of:

(i) (No change.)

(ii) facilities where [ wherein ] radiation machines are used; and

(iii) (No change.)

(V) (No change.)

(W) Training for agency inspectors of dental radiation machines.

(i) Objectives. Training of agency individuals who perform inspections [ inspectors ] of radiation machines will be conducted by the agency. Upon completion of training, the inspector will be able to:

(I)-(IX) (No change.)

(ii)-(iv) (No change.)

(X) Time requirement for record keeping. [ Record/document requirements. ]

(i) Each registrant shall maintain the following records/documents at each location and make available to the agency for inspection.

Figure: 25 TAC §289.232(k)(1)(X)(i) [Figure: 25 TAC §289.232(k)(1)(X)(i)]

(ii)-(iii) (No change.)

(2) Hearing and enforcement procedures.

(A) Violations. A court [ An ] injunction or [ other ] agency order may be issued [ obtained ] prohibiting any violation of any provision of the Texas Radiation Control Act , Health and Safety Code, Chapter 401, or any rule or order issued thereunder. Any person who violates any provision of the Texas Radiation Control Act , Health and Safety Code, Chapter 401, or any rule or order issued thereunder may be subject to civil and/or administrative penalties. Such person may also be guilty of a misdemeanor.

(B) (No change.)

(C) Compliance procedures for registrants and other persons .

(i) A registrant or other person who commits a violation(s) will be issued a notice of violation.

(ii) (No change.)

(iii) Any certificate of registration may be modified, suspended, or revoked in whole or in part, for any of the following:

(I) (No change.)

(II) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a certificate of registration on an original application; [ or ]

(III) violation of, or failure to observe any of the [ applicable ] terms and conditions of the Texas Radiation Control Act, Health and Safety Code, Chapter 401, this section, or of the certificate of registration, or order of the agency ; or [ . ]

(IV) existing conditions that constitute a substantial threat to the public health or safety of the environment.

(iv)-(vi) (No change.)

(vii) Except in cases in which the occupational and public health[ , interest, ] or safety requires otherwise, no certificate of registration shall be [ modified, ] suspended [ , ] or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the registrant in writing, and the registrant shall have been afforded an opportunity to demonstrate compliance with all lawful requirements.

(viii) (No change.)

(ix) Any applicant or registrant against whom the agency contemplates an action described in clause (viii) of this subparagraph may request a hearing by submitting a written request to [ writing ] the director within 30 days of service of the notice [ or date of mailing ].

(I)-(II) (No change.)

(D) Assessment of Administrative Penalties.

(i) When the agency determines that monetary penalties are appropriate, proposals for assessment of and hearings on administrative penalties shall be made in accordance with the Texas Radiation Control Act, Health and Safety Code, §401.384, Title 1, Texas Administrative Code, Chapter 155, and applicable sections of the Formal Hearing Procedures, [ Chapter 1, ] §§1.21, 1.23, 1.25, and 1.27 [ §§1.21-1.34 ] of this title.

(ii) (No change.)

(iii) Application of administrative penalties. The agency may impose differing levels of penalties for different severity level violations and different classes of users as follows.

(I) Administrative penalties may be imposed for severity level I and II violations. Administrative penalties may be imposed [ will be considered ] for severity level III, IV, and V violations when they are combined with those of higher severity level(s) or for repeated violations [ that could have been prevented by corrective action and for which the registrant did not take effective corrective action ].

(II)-(IV) (No change.)

(iv) The agency [ Office of General Counsel ] may conduct settlement negotiations.

(E) Severity levels of violations for registrants or other persons .

(i) Violations for registrants or other persons shall be categorized by one of the following severity levels.

(I)-(V) (No change.)

(ii)-(iii) (No change.)

(F) Impoundment of radiation machines. Radiation machines shall be subject to impounding in accordance with the Texas Radiation Control Act, Health and Safety Code, §401.068 [ of the Texas Radiation Control Act ] and this paragraph.

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

(iii) If agency action is necessary to protect the public health and safety, no prior notice need be given the owner or possessor. If agency action is not necessary to protect the public health and safety, the agency will give written notice to the owner and/or the possessor of the impounded radiation machine of the intention to dispose of the radiation machine. Notice shall be the same as provided in subparagraph (C)(viii) of this paragraph. The owner or possessor shall have 30 days from the date of personal service or mailing to request a hearing under Title 1, Texas Administrative Code, Chapter 155, and the Formal Hearing Procedures, [ Chapter 1, ] §§1.21, 1.23, 1.25, and 1.27 [ §§1.21-1.34 ] of this title, and in accordance with subparagraph (C)(ix) of this paragraph, concerning the intention of the agency. If no hearing is requested within that period of time, the agency may take the contemplated action, and such action is final.

(iv) Upon agency disposition of a source of radiation, the agency may notify the owner and/or possessor of any expense the agency may have incurred during the impoundment and/or disposition and request reimbursement. If the amount is not paid within 60 days from the date of notice, the agency may request the Attorney General to file suit against the owner/possessor for the amount requested. [ If the owner/possessor desires to contest the amount of such charge, the owner/possessor may request a hearing under the Formal Hearing Procedures, Chapter 1, §§1.21-1.34 of this title and in accordance with paragraph (2)(I) of this subsection. ]

(v) (No change.)

(G) Emergency orders [ for certificates of registration ].

(i) When an emergency exists requiring immediate action to protect the public health or safety or the environment, the agency may, without notice or hearing, issue an order citing the existence of such emergency and require that certain actions be taken as it shall direct to meet the emergency. The agency shall, no later than 30 days following the end of the month in which the action was taken, submit notice of the action for publication in the Texas Register . The action taken will remain in full force and effect unless and until modified by subsequent action of the agency. [ These emergency orders shall apply to certificates of registration. ]

(ii)-(iii) (No change.)

(iv) The person [ registrant ] shall be afforded the opportunity for a hearing on an emergency order. Notice of the action, along with a complaint, shall be given to the person [ registrant ] by personal service or certified mail, addressed to the last known address. A hearing shall be held on an emergency order if the person receiving the order submits a written request to the director [ makes a written application to the agency for a hearing ] within 30 days of the date of the order [ date ].

(I)-(III) (No change.)

(H) Miscellaneous provisions.

(i) (No change.)

[ (ii) Interested person.]

[ (I) An interested person may:]

[ (-a-) make sworn or unsworn statements;]

[ (-b-) attend a hearing and may present evidence after the presentation of evidence by the parties; or]

[ (-c-) be represented by an attorney.]

[ (II) An interested person may not:]

[ (-a-) cross-examine the witnesses of the parties;]

[ (-b-) object to evidence presented by the parties; or]

[ (-c-) appeal a decision rendered by the agency.]

[ (III) An interested person is not responsible for sharing the costs of the transcription of the hearing, but may purchase a transcript.]

[ (IV) The parties may cross-examine witnesses presented by an interested person.]

[ (V) At the discretion of the ALJ an interested person may make an unsworn statement. Such statement shall not be made a part of the record.]

(ii) [ (iii) ] Hearing location. Hearings will be held at the offices of the State Office of Administrative Hearings in Austin unless the ALJ specifies another location.

[ (iv) Prior testimony. Testimony and evidence presented in the hearing to determine standing have the same weight at the hearing on the merits if a tape recording or written transcript of the standing hearing is available.]

(iii) [ (v) ] Non-party witness and mileage fees.

(I) A witness or deponent who is not a party (or an employee, agent, or representative of a party) and who is subpoenaed or otherwise compelled to attend an agency hearing or a proceeding to give a deposition, or to produce books, records, papers, accounts, documents, or other objects necessary and proper for the purposes of the hearing or proceeding may receive reimbursement for transportation and other costs at rates established by the current Appropriations Act for state employees.

(II) The person requesting the attendance of the witness or deponent shall deposit with the agency the funds [ estimated by the ALJ ] to accrue in accordance with subclause (I) of this clause when filing a motion for the issuance of a subpoena or a commission to take a deposition.

(iv) [ (vi) ] Service. A return of service by the person who performed personal service, postal return receipt, or proof of mailing to the last known address shall be conclusive evidence of service.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2004.

TRD-200402071

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: May 2, 2004

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


Subchapter F. LICENSE REGULATIONS

25 TAC §289.260

The Texas Department of Health (department) proposes an amendment to §289.260, concerning licensing of uranium recovery and byproduct material disposal facilities.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Section 289.260 has been reviewed and the department has determined that the reasons for adopting the section continue to exist; however, revisions to the rule are necessary as outlined in this preamble.

The department published a Notice of Intention to Review for §289.260 regarding Government Code, §2001.039, in the Texas Register (29 TexReg 1231) on February 6, 2004. No comments were received by the department on this section following publication of the notice.

The proposed revision incorporates legislation passed by the 78th Legislature, Regular Session, 2003. House Bill (HB) 2292, which added Health and Safety Code, §12.0112, requires two-year terms for radioactive material licenses. The department has historically required renewal of specific licenses that includes submission to the department of updated technical information regarding the radioactive material possessed, operating, safety and emergency procedures, and personnel responsible for the security of safe use of the radioactive materials. In order to incorporate the provisions of HB 2292 concerning two-year terms and to continue requiring a renewal that includes pertinent technical information, the department is implementing an administrative renewal and a technical renewal. The licensee will be required to renew the license every two years by paying the required fee and having a satisfactory compliance history. This administrative renewal will not involve review of technical information regarding the license. At a longer interval, the licensee will be required to submit certain technical information for review. This technical renewal date will be specified in the license and will be for an interval of an even number of years in order to eventually coincide with the fee renewal. Maintaining the more resource-intensive technical renewal allows the department to ensure continued security and safe use of radioactive material. The change to the rule is reflected in revised subsections (h) and (i).

The proposed revision deletes the definition of "fund" as it is defined in another applicable section of this title and as a result, subsequent definitions are renumbered. Throughout the section, the revision deletes requirements for: filing application for specific licenses; general requirements for the issuance of specific licenses; issuance of specific licenses; specific terms and conditions of licenses; and modification and revocation of licenses. These requirements are currently addressed in §289.252 of this title (relating to Licensing of Radioactive Material). All applicants for radioactive material licenses and radioactive material licensees are required to comply with §289.252 of this title, as stated in this section and other sections of this title, as applicable. Subsection (f)(2) is revised to prohibit commencement of construction prior to issuance of a license. This requirement is an item of compatibility with the United States Nuclear Regulatory Commission (NRC) and as an agreement state, Texas must adopt it. In subsections (m)(5), (n)(1), and (n)(3), the word "Fund" is replaced with "Account" after "Care" to accurately state the name of the account as a result of changes authorized by House Bill 1678, 78th Legislature, Regular Session, 2003, which amended Health and Safety Code, Chapter 401.

Concerning the entire section, several changes were made to rule citations to state the correct citations and for renumbering purposes due to language being added or deleted throughout the section. Other minor grammatical changes have been made throughout the section.

This amendment is part of the department's continuing effort to update, clarify, and simplify its rules regarding the control of radiation based upon technological advances, public concerns, legislative directives, other factors, or to incorporate requirements that are items of compatibility with NRC regulations because as an agreement state, Texas must adopt compatible requirements.

Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, has determined that for each year of the first five years the section will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section as proposed.

Mrs. McBurney has also determined that for each year of the first five years the proposed section will be in effect, the public benefit anticipated as a result of enforcing the section will be to ensure continued protection of the public, workers, and the environment from unnecessary exposure to radiation by ensuring adequate requirements relative to the risk associated with uranium recovery and byproduct material disposal facilities. There will be no fiscal impact on applicants/licensees that are small businesses, micro-businesses or other persons required to comply with the rule. No additional costs will be incurred because the additional requirements are relatively minor changes to the process for renewing licenses. In addition, the revisions correct reference citations and clarify the intent. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and Standards, Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, Telephone (512) 834-6688 or electronic mail at Ruth.McBurney@tdh.state.tx.us. Public comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public meeting to accept oral comments will be held at 1:30 p.m., Wednesday, April 14, 2004, in Conference Room N-218, Texas Department of Health, Bureau of Radiation Control, located at the Exchange Building, 8407 Wall Street, Austin, Texas.

The amendment is proposed under the Health and Safety Code, §401.051, which provides the Texas Board of Health (board) with authority to adopt rules and guidelines relating to the control of radiation; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The amendment affects Health and Safety Code, Chapters 12 and 401. The review of the rule implements Government Code, §2001.039.

§289.260.Licensing of Uranium Recovery and Byproduct Material Disposal Facilities.

(a) (No change.)

(b) Scope. In addition to the requirements of this section, all licensees, unless otherwise specified, are subject to the requirements of §289.201 of this title (relating to General Provisions for Radioactive Material), §289.202 of this title (relating to Standards for Protection Against Radiation from Radioactive Materials [ Material ]), §289.203 of this title (relating to Notices, Instructions, and Reports to Workers; Inspections), §289.204 of this title (relating to Fees for Certificates of Registration, Radioactive Material Licenses, Emergency Planning and Implementation, and Other Regulatory Services), §289.205 of this title (relating to Hearing and Enforcement Procedures), §289.251 of this title (relating to Exemptions, General Licenses, and General License Acknowledgements), §289.252 of this title, and §289.257 of this title (relating to Packaging and Transportation of Radioactive Material).

(c) Definitions. The following words and terms when used in this section shall have the following meaning unless the context clearly indicates otherwise.

(1) Aquifer--A geologic formation, group of formations, or part of a formation capable of yielding a significant amount of groundwater to wells or springs. Any saturated zone created by uranium or thorium recovery operations would not be considered an aquifer unless the zone is or potentially is:

(A) - (B) (No change.)

(C) reasonably accessible because of migration beyond the vertical projection of the boundary of the land transferred for long-term government ownership and care in accordance with subsection (p) [ (r) ] of this section.

(2) - (10) (No change.)

(11) Disposal area--The area containing byproduct materials to which the requirements of subsection (o)(16)-(27) [ (q)(16)-(27) ] of this section apply.

(12) Existing portion--As used in subsection (o)(9)(A) [ (q)(9)(A) ] of this section, "existing portion" is that land surface area of an existing surface impoundment on which significant quantities of byproduct materials had been placed prior to September 30, 1983.

(13) Factors beyond the control of the licensee--Factors proximately causing delay in meeting the schedule in the applicable reclamation plan for the timely emplacement of the final radon barrier notwithstanding the good faith efforts of the licensee to complete the barrier in compliance with subsection (o)(24) [ (q)(24) ] of this section. These factors may include but are not limited to:

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

(14) Final radon barrier--The earthen cover (or approved alternative cover) over byproduct material constructed to comply with subsection (o)(16)-(27) [ (q)(16)-(27) ] of this section (excluding erosion protection features).

[ (15) Fund--The Radiation and Perpetual Care Fund.]

(15) [ (16) ] Groundwater--Water below the land surface in a zone of saturation. For purposes of this section, groundwater is the water contained within an aquifer as defined in paragraph (1) of this subsection.

(16) [ (17) ] Hazardous constituent--Subject to subsection (o)(10)(E) [ (q)(10)(E) ] of this section, "hazardous constituent" is a constituent that meets all three of the following tests:

(A) the constituent is reasonably expected to be in or derived from the byproduct material in the disposal area;

(B) the constituent has been detected in the groundwater in the uppermost aquifer; and

(C) the constituent is listed in 10 CFR Part 40, Appendix A, Criterion 13.

(17) [ (18) ] Leachate--Any liquid, including any suspended or dissolved components in the liquid, that has percolated through or drained from the byproduct material.

(18) [ (19) ] Licensed site--The area contained within the boundary of a location under the control of persons generating or storing byproduct materials under a license.

(19) [ (20) ] Liner--A continuous layer of natural or man-made materials, beneath or on the sides of a surface impoundment that restricts the downward or lateral escape of byproduct material, hazardous constituents, or leachate.

(20) [ (21) ] Maximum credible earthquake--That earthquake that would cause the maximum vibratory ground motion based upon an evaluation of earthquake potential considering the regional and local geology and seismology and specific characteristics of local subsurface material.

(21) [ (22) ] Milestone--An action or event that is required to occur by an enforceable date.

(22) [ (23) ] Operation--The period of time during which a byproduct material disposal area is being used for the continued placement of byproduct material or is in standby status for such placement. A disposal area is in operation from the day that byproduct material is first placed in it until the day final closure begins.

(23) [ (24) ] Point of compliance--The site-specific location in the uppermost aquifer where the groundwater protection standard shall be met. The objective in selecting the point of compliance is to provide the earliest practicable warning that an impoundment is releasing hazardous constituents to the groundwater. The point of compliance is selected to provide prompt indication of groundwater contamination on the hydraulically downgradient edge of the disposal area.

(24) [ (25) ] Principal activities--Activities authorized by the license that are essential to achieving the purpose(s) for which the license is issued or amended. Storage during which no licensed material is accessed for use or disposal and activities incidental to decontamination or decommissioning are not principal activities.

(25) [ (26) ] Reclamation plan--For the purposes of subsection (o)(16)-(27) [ (q)(16)-(27) ] of this section, "reclamation plan" is the plan detailing activities to accomplish reclamation of the byproduct material disposal area in accordance with the technical criteria of this section. The reclamation plan shall include a schedule for reclamation milestones that are key to the completion of the final radon barrier, including as appropriate, but not limited to, wind blown tailings retrieval and placement on the pile, interim stabilization (including dewatering or the removal of freestanding liquids and recontouring), and final radon barrier construction. Reclamation of byproduct material shall also be addressed in the closure plan. The detailed reclamation plan may be incorporated into the closure plan.

(26) [ (27) ] Security (surety)--The following are examples of security:

(A) cash deposits;

(B) surety bonds;

(C) certificates of deposit;

(D) deposits of government securities;

(E) irrevocable letters of credit; or

(F) other security acceptable to the agency.

(27) [ (28) ] Surface impoundment--A natural topographic depression, man-made excavation, or diked area, which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well.

(28) [ (29) ] Unrefined and unprocessed ore--Ore in its natural form before any processing, such as grinding, roasting, beneficiating, solution extracting, or refining.

(29) [ (30) ] Uppermost aquifer--The geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary.

(30) [ (31) ] Uranium recovery--Any uranium extraction or concentration activity that results in the production of "byproduct material" as it is defined in this subsection. As used in this definition, "uranium recovery" has the same meaning as "uranium milling" in 10 CFR 40.4.

(d) Filing application for specific licenses. Unless otherwise specified, an applicant for a license is subject to the requirements in §289.252(d) of this title. The applicant shall also comply with the following additional filing requirements.

(1) Applications for specific licenses shall be filed in seven copies in a manner specified by the agency [ on BRC Form 252-2, "Application for Radioactive Material License." ]

[ (2) The agency may, at any time after the filing of the original application, require further statements or data to enable the agency to determine whether the application should be denied or the license should be issued.]

[ (3) Each application shall be signed by the chief executive officer or other individual delegated the authority to manage, direct, or administer the licensee's activities.]

[ (4) An application for a license may include a request for one or more activities. The agency may require the issuance of separate licenses for those activities.]

(2) [ (5) ] Each [ The ] applicant shall demonstrate to the agency that the applicant is financially qualified to conduct the licensed activity, including any required decontamination, decommissioning, reclamation, and disposal, before the agency issues or renews a license. The requirement is different from those in subsection (m) [ (o) ] of this section for financial security.

(A) An applicant or licensee shall show financial qualification by submitting one of the following:

(i) the bonding company report or equivalent (from which information can be obtained to calculate a ratio as described in subparagraph (B) of this paragraph) that was used to obtain the financial security instrument used to meet the financial security requirement specified in subsection (m) [ (o) ] of this section. However, if the applicant or licensee posted collateral to obtain the financial instrument used to meet the requirement for financial security specified in subsection (m) [ (o) ] of this section, the applicant or licensee shall demonstrate financial qualification by one of the methods specified in clause (ii) or (iii) of this subparagraph;

(ii) SEC documentation (from which information can be obtained to calculate a ratio as described in subparagraph (B) of this paragraph), if the applicant or licensee is a publicly-held company; or

(iii) a self-test (for example, an annual audit report, certifying a company's assets and liabilities and resulting ratio (as described in subparagraph (B) of this paragraph) or, in the case of a new company, a business plan specifying expected expenses versus capitalization and anticipated revenues).

(B) Each applicant or licensee must declare its Standard Industry Classification (SIC) code. Several companies publish lists, on an annual basis, of acceptable assets-to-liabilities (assets divided by liabilities) ratio ranges for each type of SIC code. If an applicant or licensee submits documentation of its current assets and current liabilities or, in the case of a new company, a business plan specifying expected expenses versus capitalization and anticipated revenues, and the resulting ratio falls within an acceptable range as published by generally recognized companies (for example, Almanac of Business and Industrial Financial Ratios, Industry NORM and Key Business Ratios, Dun & Bradstreet Industry publications, and Manufacturing USA: Industry Analyses, Statistics, and Leading Companies), the agency will consider that applicant or licensee financially qualified to conduct the requested or licensed activity.

(C) The agency will consider other types of documentation if that documentation provides an equivalent measure of assurance of the applicant's or licensee's financial qualifications as found in subparagraphs (A) and (B) of this paragraph.

(3) [ (6) ] An application for a license shall contain written specifications relating to the uranium recovery facility operations and the disposition of the byproduct material.

(4) [ (7) ] Each application shall clearly demonstrate how the requirements of subsections (d)-(g) and (m)-(p) [ (d)-(h) and (o)-(r) ] of this section have been addressed.

[ (8) Each application for a license shall be accompanied by the fee prescribed in §289.204 of this title.]

[ (9) Each application shall be accompanied by a completed BRC Form 252-1, (Business Information Form).]

(5) [ (10) ] Applications for new licenses shall be processed in accordance with the following time periods.

(A) The first period is the time from receipt of an application by the Division of Licensing, Registration and Standards to the date of issuance or denial of the license or a written notice outlining why the application is incomplete or unacceptable. This time period is 180 days.

(B) The second period is the time from receipt of the last item necessary to complete the application to the date of issuance or denial of the license. This time period is 180 days.

(C) These time periods are exclusive of any time period incident to hearings and post-hearing activities required by Government Code, Chapters 2001 and 2002.

(6) [ (11) ] Notwithstanding the provisions of §289.204(d)(1) [ §289.204(e)(1) ] of this title, reimbursement of application fees may be granted in the following manner.

(A) In the event the application is not processed in the time periods as stated in paragraph (5) [ (10) ] of this subsection, the applicant has the right to request of the Director of the Radiation Control Program full reimbursement of all application fees paid in that particular application process. If the director does not agree that the established periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied.

(B) Good cause for exceeding the period established is considered to exist if:

(i) the number of applications for licenses to be processed exceeds by 15% or more the number processed in the same calendar quarter the preceding year;

(ii) another public or private entity utilized in the application process caused the delay; or

(iii) other conditions existed giving good cause for exceeding the established periods.

(C) If the request for full reimbursement authorized by subparagraph (A) of this paragraph is denied, the applicant may then request a hearing by appeal to the Commissioner of Health for a resolution of the dispute. The appeal will be processed in accordance with Title 1, Texas Administrative Code, Chapter 155 (relating to Rules of Procedure) and the Formal Hearing Procedures, §§1.21, 1.23, 1.25, and 1.27 of this title (relating to the Texas Board of Health).

[ (12) Applications for licenses may be denied for the following reasons:]

[ (A) any material false statement in the application or any statement of fact required under provisions of the Texas Radiation Control Act (Act);]

[ (B) conditions revealed by the application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a license on an application; or]

[ (C) failure to clearly demonstrate how the requirements in this chapter have been addressed.]

(e) General requirements for the issuance of specific licenses. A license application will be approved if the agency determines that the applicant has met the requirements of §289.252(e) of this title and the following :

[ (1) the applicant and all personnel who will be handling the radioactive material are qualified by reason of training and experience to use the material in question for the purpose requested in accordance with these requirements in such a manner as to minimize danger to occupational and public health and safety and the environment;]

[ (2) the applicant's proposed equipment, facilities, and procedures are adequate to minimize danger to occupational and public health and safety and the environment;]

[ (3) the issuance of the license will not be inimical to occupational and public health and safety nor have a long-term detrimental impact on the environment;]

(1) [ (4) ] qualifications of the designated radiation safety officer (RSO) are adequate for the purpose requested in the application and include as a minimum:

(A) possession of a high school diploma or a certificate of high school equivalency based on the GED test; and

(B) training and experience necessary to supervise the radiation safety aspects of the licensed activity;

(2) [ (5) ] the applicant satisfies all applicable special requirements in this section . [ ; and ]

[ (6) there is no reason to deny the license as specified in subsection (d)(12) of this section.]

(f) Special requirements for a license application for uranium recovery and byproduct material disposal facilities. In addition to the requirements in subsection (e) of this section, a license will be issued if the applicant submits the items in paragraph (1) of this subsection for agency approval and meets the conditions in paragraphs (2) and (3) of this subsection.

(1) An application for a license shall include the following:

(A) (No change.)

(B) a closure plan for decontamination, decommissioning, restoration, and reclamation of buildings and the site to levels that would allow unrestricted use and for reclamation of the byproduct material disposal areas in accordance with the technical requirements of subsection (o) [ (q) ] of this section;

(C) proposal of an acceptable form and amount of financial security consistent with the requirements of subsection (m) [ (o) ] of this section;

(D) procedures describing the means employed to meet the requirements of subsections (g)(1) and (2) and (o)(15) [ (h)(7) and (8) and (q)(15) ] of this section during the operational phase of any project;

(E) - (F) (No change.)

(2) Unless otherwise exempted, the applicant shall not commence construction at the site until the agency has issued the license. Commencement of construction prior to issuance of the license shall be grounds for denial of a license. [ commencement of major construction is prohibited until 30 days after the agency has given notice that a license is proposed to be granted. If a hearing is requested, the commencement of major construction is prohibited until notice of the contested case hearing is noticed in accordance with the Act. Commencement of major construction subsequent to issuance of the notices is at the economic risk of the applicant. ]

(3) (No change.)

[ (g) Issuance of specific licenses.]

[ (1) When the agency determines that an application meets the requirements of the Act and the requirements of the agency, the agency will issue a license authorizing the proposed activity in such form and containing the conditions and limitations as it deems appropriate or necessary.]

[ (2) The agency may incorporate in any license at the time of issuance or thereafter by amendment, additional requirements and conditions with respect to the licensee's receipt, possession, use, and transfer of radioactive material subject to this section as it deems appropriate or necessary in order to:]

[ (A) minimize danger to occupational and public health and safety or the environment;]

[ (B) require reports and the keeping of records, and to provide for inspections of activities in accordance with the license as may be appropriate or necessary; and]

[ (C) prevent loss or theft of radioactive material subject to this chapter.]

[ (3) The agency may request and the licensee shall provide additional information after the license has been issued to enable the agency to determine whether the license should be modified in accordance with subsection (n) of this section.]

(g) [ (h) ] Specific terms and conditions of licenses. Unless otherwise specified, each license issued in accordance with this section is subject to the requirements of §289.252(x) of this title and the following. [ license. ]

[ (1) Each license issued in accordance with this section shall be subject to the applicable provisions of the Act and to applicable rules, now or hereafter in effect, and orders of the agency.]

[ (2) No license issued in accordance with this section and no right to possess or utilize radioactive material authorized by any license issued in accordance with this section shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any person unless the agency shall, after securing full information, find that the transfer is in accordance with the provisions of the Act and to applicable rules, now and hereafter in effect, and orders of the agency, and shall give its consent in writing.]

[ (3) Each person licensed by the agency in accordance with this section shall confine use and possession of the radioactive material to the locations and purposes authorized in the license.]

[ (4) Each licensee shall notify the agency, in writing, immediately following the filing of a voluntary or involuntary petition for bankruptcy by the licensee or its parent company.]

[ (5) The notification in paragraph (4) of this subsection shall include:]

[ (A) the bankruptcy court in which the petition for bankruptcy was filed; and]

[ (B) the date of the filing of the petition.]

[ (6) A copy of the petition for bankruptcy shall be submitted to the agency along with the written notification.]

(1) [ (7) ] Daily inspection of any byproduct material retention systems shall be conducted by the licensee. General qualifications for individuals conducting inspections shall be approved by the agency. Records of the inspections shall be maintained for review by the agency.

(2) [ (8) ] In addition to the applicable requirements of §289.202(ww)-(yy) of this title, the licensee shall immediately notify the agency of the following:

(A) any failure in a byproduct material retention system that results in a release of byproduct material into unrestricted areas;

(B) any release of radioactive material that exceeds the concentrations for water listed in Table II, Column 2, of §289.202(ggg)(2) of this title and that extends beyond the licensed boundary;

(C) any spill that exceeds 20,000 gallons and that exceeds the concentrations for water listed in Table II, Column 2, of §289.202(ggg)(2) of this title; or

(D) any release of solids that exceeds the limits in subsection (h)(6) [ (i)(4) ] of this section and that extends beyond the licensed boundary.

(3) [ (9) ] In addition to the applicable requirements of §289.202(ww)-(yy) of this title, the licensee shall notify the agency within 24 hours of the following:

(A) any spill that extends:

(i) beyond the wellfield monitor well ring;

(ii) more than 400 feet from an injection or production well pipe artery to or from a recovery plant; or

(iii) more than 200 feet from a recovery plant; or

(B) any spill that exceeds 2,000 gallons and that exceeds the concentrations for water listed in Table II, Column 2, of §289.202(ggg)(2) of this title.

(4) [ (10) ] A licensee shall submit to the agency at five year intervals from the issuance of the license or at the time of technical renewal, if renewal and re-evaluation occur in the same year, continued proof of the licensee's financial qualifications.

(h) [ (i) ] Expiration and termination of licenses and administrative renewal; decommissioning of sites, separate buildings[ , ] or outdoor areas.

(1) Effective September 1, 2004, the term of the specific license is two years. Except as provided in paragraph (4) [ (2) ] of this subsection and subsection (i)(2) [ (j)(2) ] of this section, each specific license expires at the end of the day, in the month and year stated in the license. Upon payment of the fee required by §289.204 of this title and if the agency does not deny the renewal in accordance with §289.252(x)(7) of this title, the specific license will be administratively renewed.

(2) If the fee is not paid and the license is not renewed in accordance with paragraph (1) of this subsection, the license expires, and the licensee is in violation of the rules and is subject to administrative penalties in accordance with §289.205 of this title.

(A) If the licensee pays the fee required by §289.204 of this title within 30 days after expiration of the license, the license will be reinstated and the licensee will not be required to file an application in accordance with subsection (d) of this section.

(B) If the licensee fails to pay the fee within 30 days after expiration of the license, the licensee shall file an application in accordance with subsection (d) of this section.

(3) Expiration of the specific license does not relieve the licensee of the requirements of this chapter.

(4) [ (2) ] All license provisions continue in effect beyond the expiration date with respect to possession of radioactive material until the agency notifies the former licensee in writing that the provisions of the license are no longer binding. During this time, the former licensee shall:

(A) be limited to actions involving radioactive material that are related to decommissioning; and

(B) continue to control entry to restricted areas until the location(s) is suitable for release for unrestricted use in accordance with the requirements of paragraph (6) [ (4) ] of this subsection.

(5) [ (3) ] Within 60 days of the occurrence of any of the following, each licensee shall provide notification to the agency in writing and either begin decommissioning its site, or any separate buildings or outdoor areas that contain residual radioactivity in accordance with the closure plan in subsection (f)(1)(B) of this section, so that the buildings or outdoor areas are suitable for release in accordance with paragraph (6) [ (4) ] of this subsection if:

(A) the license has expired in accordance with paragraph (1) of this subsection; or

(B) the licensee has decided to permanently cease principal activities, as defined in subsection (c)(24) [ (c)(25) ] of this section, at the entire site or in any separate building or outdoor area; or

(C) no principal activities have been conducted for a period of 24 months in any building or outdoor area that contains residual radioactivity such that the building or outdoor area is unsuitable for release in accordance with agency requirements.

(6) [ (4) ] Outdoor areas are considered suitable for release for unrestricted use if the following limits are not exceeded.

(A) The concentration of radium-226 or radium-228 in soil, averaged over any 100 square meters (m 2 ), shall not exceed the background level by more than:

(i) 5 picocuries per gram (pCi/g) (0.185 becquerel per gram (Bq/g)), averaged over the first 15 cm of soil below the surface; and

(ii) 15 pCi/g (0.555 Bq/g), averaged over 15 cm thick layers of soil more than 15 cm below the surface.

(B) The contamination of vegetation shall not exceed 5 pCi/g (0.185 Bq/g), based on dry weight, for radium-226 or radium-228.

(C) The concentration of natural uranium in soil, with no daughters present, averaged over any 100 m 2 , shall not exceed the background level by more than:

(i) 30 pCi/g (1.11 Bq/g), averaged over the top 15 cm of soil below the surface; and

(ii) 150 pCi/g (5.55 Bq/g), average concentration at depths greater than 15 centimeters below the surface so that no individual member of the public will receive an effective dose equivalent in excess of 100 mrem (1 mSv) per year.

(7) [ (5) ] Coincident with the notification required by paragraph (5) [ (3) ] of this subsection, the licensee shall maintain in effect all decommissioning financial security established by the licensee in accordance with subsection (m) [ (o) ] of this section in conjunction with a license issuance or renewal or as required by this section. The amount of the financial security shall be increased, or may be decreased, as appropriate, with agency approval, to cover the detailed cost estimate for decommissioning established in accordance with paragraph (13)(E) [ (11)(E) ] of this subsection.

[ (A) Any licensee who has not provided financial security to cover the detailed cost estimate submitted with the closure plan shall do so on or before September 1, 1998.]

[ (B) Following approval of the closure plan, a licensee may reduce the amount of the financial security, with the approval of the agency, as decommissioning proceeds and radiological contamination is reduced at the site.]

(8) [ (6) ] In addition to the provisions of paragraph (7) [ (5) ] of this subsection, each licensee shall submit an updated closure plan to the agency within 12 months of the notification required by paragraph (5) [ (3) ] of this subsection. The updated closure plan shall meet the requirements of subsections (f)(1)(B) and (m) [ (o) ] of this section. The updated closure plan shall describe the actual conditions of the facilities and site and the proposed closure activities and procedures.

(9) [ (7) ] The agency may grant a request to delay or postpone initiation of the decommissioning process if the agency determines that such relief is not detrimental to the occupational and public health and safety and is otherwise in the public interest. The request shall be submitted no later than 30 days before notification in accordance with paragraph (5) [ (3) ] of this subsection. The schedule for decommissioning in paragraph (5) [ (3) ] of this subsection may not begin until the agency has made a determination on the request.

(10) [ (8) ] A decommissioning plan shall be submitted if required by license condition or if the procedures and activities necessary to carry out decommissioning of the site or separate building or outdoor area have not been previously approved by the agency and these procedures could increase potential health and safety impacts to workers or to the public, such as in any of the following cases:

(A) procedures would involve techniques not applied routinely during cleanup or maintenance operations;

(B) workers would be entering areas not normally occupied where surface contamination and radiation levels are significantly higher than routinely encountered during operation;

(C) procedures could result in significantly greater airborne concentrations of radioactive materials than are present during operation; or

(D) procedures could result in significantly greater releases of radioactive material to the environment than those associated with operation.

(11) [ (9) ] The agency may approve an alternate schedule for submittal of a decommissioning plan required in accordance with paragraph (5) [ (3) ] of this subsection if the agency determines that the alternative schedule is necessary to the effective conduct of decommissioning operations and presents no undue risk from radiation to the occupational and public health and safety and is otherwise in the public interest.

(12) [ (10) ] The procedures listed in paragraph (10) [ (8) ] of this subsection may not be carried out prior to approval of the decommissioning plan.

(13) [ (11) ] The proposed decommissioning plan for the site or separate building or outdoor area shall include:

(A) a description of the conditions of the site, separate buildings, or outdoor area sufficient to evaluate the acceptability of the plan;

(B) a description of planned decommissioning activities;

(C) a description of methods used to ensure protection of workers and the environment against radiation hazards during decommissioning;

(D) a description of the planned final radiation survey;

(E) an updated detailed cost estimate for decommissioning, comparison of that estimate with present funds set aside for decommissioning, and a plan for assuring the availability of adequate decommissioning; and

(F) for decommissioning plans calling for completion of decommissioning later than 24 months after plan approval, a justification for the delay based on the criteria in paragraph (17) [ (15) ] of this subsection.

(14) [ (12) ] The proposed decommissioning plan will be approved by the agency if the information in the plan demonstrates that the decommissioning will be completed as soon as practicable and that the occupational health and safety of workers and the public will be adequately protected.

(15) [ (13) ] Except as provided in paragraph (17) [ (15) ] of this subsection, licensees shall complete decommissioning of the site or separate building or outdoor area as soon as practicable but no later than 24 months following the initiation of decommissioning.

(16) [ (14) ] Except as provided in paragraph (17) [ (15) ] of this subsection, when decommissioning involves the entire site, the licensee shall request license termination as soon as practicable but no later than 24 months following the initiation of decommissioning.

(17) [ (15) ] The agency may approve a request for an alternate schedule for completion of decommissioning of the site or separate buildings or outdoor areas and the license termination if appropriate, if the agency determines that the alternative is warranted by the consideration of the following:

(A) whether it is technically feasible to complete decommissioning within the allotted 24-month period;

(B) whether sufficient waste disposal capacity is available to allow completion of decommissioning within the allotted 24-month period; and

(C) other site-specific factors that the agency may consider appropriate on a case-by-case basis, such as the regulatory requirements of other government agencies, lawsuits, groundwater treatment activities, monitored natural groundwater restoration, actions that could result in more environmental harm than deferred cleanup, and other factors beyond the control of the licensee.

(18) [ (16) ] As the final step in decommissioning, the licensee shall:

(A) certify the disposition of all radioactive material, including accumulated byproduct material;

(B) conduct a radiation survey of the premises where the licensed activities were carried out and submit a report of the results of this survey unless the licensee demonstrates that the premises are suitable for release in accordance with paragraph (6) [ (4) ] of this subsection. The licensee shall, as appropriate;

(i) report the following levels:

(I) gamma radiation in units of microroentgen per hour (µR/hr) (millisieverts per hour (mSv/hr)) at 1 meter (m) from surfaces;

(II) radioactivity, including alpha and beta, in units of disintegrations per minute (dpm) or microcuries (µCi) (megabecquerels (MBq)) per 100 square centimeters (cm 2 ) for surfaces;

(III) µCi (MBq) per milliliter for water; and

(IV) picocuries (pCi) (becquerels (Bq)) per gram (g) for solids such as soils or concrete; and

(ii) specify the manufacturer's name, and model and serial number of survey instrument(s) used and certify that each instrument is properly calibrated and tested.

(19) [ (17) ] The agency will provide written notification to specific licensees, including former licensees with license provisions continued in effect beyond the expiration date in accordance with paragraph (4) [ (2) ] of this subsection, that the provisions of the license are no longer binding. The agency will provide such notification when the agency determines that:

(A) radioactive material has been properly disposed;

(B) reasonable effort has been made to eliminate residual radioactive contamination, if present;

(C) a radiation survey has been performed that demonstrates that the premises are suitable for release in accordance with agency requirements;

(D) other information submitted by the licensee is sufficient to demonstrate that the premises are suitable for release in accordance with the requirements of paragraph (6) [ (4) ] of this subsection;

(E) all records required by §289.202(nn)(2) of this title have been submitted to the agency;

(F) the licensee has paid any outstanding fees required by §289.204 of this title and has resolved any outstanding notice(s) of violation issued to the licensee;

(G) the licensee has met the applicable technical and other requirements for closure and reclamation of a byproduct material disposal site; and

(H) the United States Nuclear Regulatory Commission (NRC) has made a determination that all applicable standards and requirements have been met.

(20) [ (18) ] Licenses for uranium recovery and/or byproduct material disposal are exempt from paragraphs (5)(C), (8), and (9) [ (3)(C), (6), and (7) ] of this subsection with respect to reclamation of byproduct material impoundments and/or disposal areas. Timely reclamation plans for byproduct material disposal areas shall be submitted and approved in accordance with subsection (o)(16)-(27) [ (q)(16)-(27) ] of this section.

(21) [ (19) ] A licensee may request that a subsite or a portion of a licensed site be released for unrestricted use before full license termination as long as release of the area of concern will not adversely impact the remaining unaffected areas and will not be recontaminated by ongoing authorized activities. When the licensee is confident that the area of concern will be acceptable to the agency for release for unrestricted use, a written request for release for unrestricted use and agency confirmation of closeout work performed shall be submitted to the agency. The request should include a comprehensive report, accompanied by survey and sample results that show contamination is less than the limits specified in paragraph (6) [ (4) ] of this subsection and an explanation of how ongoing authorized activities will not adversely affect the area proposed to be released. Upon confirmation by the agency that the area of concern is releasable for unrestricted use, the licensee may apply for a license amendment, if required.

(i) [ (j) ] Technical renewal of licenses [ Renewal of license ].

(1) Application [ Request ] for a technical renewal of specific licenses shall be filed in accordance with subsections (d)(1)-(5) [ (d)(1)-(8) and (10), ] and (f)(1) of this section. Application for a technical renewal of a specific license shall be filed by the date specified in the existing license. If the licensee fails to apply for a technical renewal and fails to pay the fee required by §289.204 of this title, the license expires and the licensee shall comply with the requirements of subsection (h) of this section. In any application for renewal, the applicant may incorporate drawings by clear and specific reference (for example, title, date and unique number of drawing), if no modifications have been made since previously submitted.

(2) In any case in which a licensee, [ not less than 30 days ] prior to expiration of the existing license, has filed a request in proper form for a technical renewal or for a new license authorizing the same activities, such existing license shall not expire until the application has been finally determined by the agency. In any case in which a licensee, not more than 30 days after the expiration of an existing license, has filed an application for technical renewal or for a new license authorizing the same activities and paid the fee required by §289.204 of this title, the agency may reinstate the license and extend the expiration until the request has been finally determined by the agency.

(3) An application for technical renewal of a license will be approved if the agency determines that the requirements of subsection (e) of this section have been satisfied.

(4) If the application for technical renewal of the license is not approved in accordance with paragraph (3) of this subsection, the license expires, and the former licensee is subject to enforcement action by the agency.

(5) Expiration of the specific license does not relieve the former licensee of the requirements of this chapter.

(j) [ (k) ] Amendment of licenses at request of licensee. Requests for amendment of a license shall be filed in accordance with subsection (d) of this section and §289.252(d)(1)-(3) of this title [ , except that the requirements of subsection (d)(1), (d)(7), and (d)(8) of this section may be waived at the discretion of the agency ]. Such requests shall be signed by the RSO and [ also ] specify how the licensee desires the license to be amended and the basis for such amendment.

(k) [ (l) ] Agency action on applications to renew or amend. In considering a request by a licensee to renew or amend a license, the agency will apply the appropriate criteria in subsections (e) and (f) of this section.

(l) [ (m) ] Transfer of material.

(1) No licensee shall transfer radioactive material except as authorized in accordance with this chapter.

(2) Except as otherwise provided in a license and subject to the provisions of paragraphs (3) and (4) of this subsection, any licensee may transfer radioactive material:

(A) to the agency after receiving prior approval from the agency;

(B) to the United States Department of Energy;

(C) to any person exempt from the licensing requirements of the Act and these requirements or exempt from the licensing requirements of the NRC or an agreement state, to the extent permitted by these exemptions;

(D) to any person authorized to receive such material in accordance with terms of a general license or its equivalent, a specific license or equivalent licensing document issued by the agency, NRC, any agreement state, any licensing state, or to any person otherwise authorized to receive such material by the federal government or any agency of the federal government, or the agency;

(E) to any person abroad pursuant to an export license issued under Title 10, Chapter 1, CFR Part 110; or

(F) as otherwise authorized by the agency in writing.

(3) Before transferring radioactive material to a specific licensee of the agency, NRC, an agreement state, a licensing state, or to a general licensee who is required to register with the agency, the licensee transferring the radioactive material shall verify that the transferee's license authorizes the receipt of the type, form, and quantity of radioactive material to be transferred.

(4) The following methods for the verification of paragraph (3) of this subsection are acceptable:

(A) the transferor may possess and have read a current copy of the transferee's specific license or registration certificate;

(B) the transferor may possess a written certification by the transferee that the transferee is authorized by the license or certificate of registration to receive the type, form, and quantity of radioactive material to be transferred, specifying the license or registration certificate number, issuing agency, and expiration date;

(C) for emergency shipments, the transferor may accept oral certification by the transferee that the transferee is authorized by license or registration certificate to receive the type, form, and quantity of radioactive material to be transferred, specifying the license or registration certificate number, issuing agency, and expiration date, provided that the oral certification is confirmed in writing within ten days; or

(D) when none of the methods of verification described in subparagraphs (A)-(C) of this paragraph are readily available or when a transferor desires to verify that information received by one of these methods is correct or up-to-date, the transferor may obtain and record confirmation from the agency, or the NRC, that the transferee is licensed to receive the radioactive material.

(5) Preparation for shipment and transport of radioactive material shall be in accordance with the provisions of §289.257 of this title.

[ (n) Modification and revocation of licenses.]

[ (1) The terms and conditions of all licenses shall be subject to amendment, revision, or modification. A license may be suspended or revoked by reason of amendments to the Act, by reason of rules in this chapter, or orders issued by the agency.]

[ (2) Any license may be revoked, suspended, or modified, in whole or in part for any of the following:]

[ (A) any material false statement in the application or any statement of fact required under provisions of the Act;]

[ (B) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to issue a license on an original application; or]

[ (C) violation of, or failure to observe any of the terms and conditions of the Act, this chapter, the license, or order of the agency.]

[ (3) Except in cases in which occupational and public health and safety or the environment require otherwise, no license shall be modified, suspended, or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the licensee in writing and the licensee shall have been afforded an opportunity to demonstrate compliance with all lawful requirements.]

[ (4) Each specific license revoked by the agency expires at the end of the day on the date of the agency's final determination to revoke the license, or on the revocation date stated in the determination, or as otherwise provided by agency order.]

(m) [ (o) ] Financial security requirements.

(1) Financial security for decontamination, decommissioning, reclamation, restoration, disposal, and any other requirements of the agency shall be established by each licensee prior to the commencement of operations to assure that sufficient funds will be available to carry out the decontamination and decommissioning of buildings and the site and for the reclamation of any byproduct material disposal areas. The amount of funds to be ensured by such security arrangements shall be based on agency-approved cost estimates in an agency-approved closure plan for:

(A) decontamination and decommissioning of buildings and the site to levels that allow unrestricted use of these areas upon decommissioning; and

(B) the reclamation of byproduct material disposal areas in accordance with technical criteria delineated in subsection (o) [ (q) ] of this section.

(2) The licensee shall submit this closure plan in conjunction with an environmental report that addresses the expected environmental impacts of the licensee's operation, decommissioning and reclamation, and evaluates alternatives for mitigating these impacts.

(3) The security shall also cover the payment of the charge for long-term surveillance and control for byproduct material disposal areas required by subsection (n)(3) [ (p)(3) ] of this section.

(4) In establishing specific security arrangements, the licensee's cost estimates must take into account total costs that would be incurred if an independent contractor were hired to perform the decommissioning and reclamation work. In order to avoid unnecessary duplication and expense, the agency may accept financial securities that have been consolidated with financial or security arrangements established to meet requirements of other federal or state agencies and/or local governing bodies for such decommissioning, decontamination, reclamation, and long-term site surveillance and control, provided such arrangements are considered adequate to satisfy these requirements and that the portion of the security that covers the decommissioning and reclamation of the buildings, site, and byproduct material disposal areas, and the long-term funding charge is clearly identified and committed for use in accomplishing these activities.

(5) The security shall be continuous for the term of the license and shall be payable in the State [ state ] of Texas to the Radiation and Perpetual Care Account [ Fund ].

(6) The licensee's security mechanism will be reviewed annually by the agency to assure that sufficient funds would be available for completion of the reclamation plan if the work had to be performed by an independent contractor. The amount of security liability should be adjusted to recognize any increases or decreases resulting from inflation, changes in engineering plans, activities performed, and any other conditions affecting costs.

(7) Regardless of whether reclamation is phased through the life of the operation or takes place at the end of operations, an appropriate portion of security liability shall be retained until final compliance with the reclamation plan is determined. This will yield a security that is at least sufficient at all times to cover the costs of decommissioning and reclamation of the areas that are expected to be disturbed before the next license technical renewal. The term of the security mechanism shall be open ended. This assurance would be provided with a security instrument that is written for a specified period of time (for example, five years) yet which shall be automatically renewed unless the security notifies the agency and the licensee some reasonable time (for example, 90 days) prior to the renewal date of their intention not to renew. In such a situation the security requirement still exists and the licensee would be required to submit an acceptable replacement security within a brief period of time to allow at least 60 days for the agency to collect.

(8) Proof of forfeiture shall not be necessary to collect the security so that in the event that the licensee could not provide an acceptable replacement security within the required time, the security shall be automatically collected prior to its expiration. The conditions described above would have to be clearly stated on any security instrument, and shall be agreed upon by all parties.

(9) Self-insurance, or any arrangement that essentially constitutes self insurance (for example, a contract with a state or federal agency), will not satisfy the security requirement since this provides no additional assurance other than that which already exists through license requirements.

(n) [ (p) ] Long-term care and maintenance requirements.

(1) Unless otherwise provided by the agency, each licensee licensed in accordance with this part for disposal of byproduct material shall make payments into the Radiation and Perpetual Care Account [ Fund ] in amounts specified by the agency. The agency shall make such determinations on a case-by-case basis.

(2) The final disposition of byproduct material should be such that the need for ongoing active maintenance is eliminated to the maximum extent practicable.

(3) A minimum charge of $250,000 (1978 dollars) or more, if demonstrated as necessary by the agency, shall be paid into the Radiation and Perpetual Care Account [ Fund ] to cover the costs of long-term care and maintenance. The total charge shall be paid prior to the termination of a license. With agency approval, the charge may be paid in installments. The total or unpaid portion of the charge shall be covered during the term of the license by additional security meeting the requirements of subsection (m) [ (o) ] of this section. If site surveillance, control, or maintenance requirements at a particular site are determined, on the basis of a site-specific evaluation, to be significantly greater (for example, if fencing or monitoring is determined to be necessary), the agency may specify a higher charge. The total charge shall be such that, with an assumed 1.0% annual real interest rate, the collected funds will yield interest in an amount sufficient to cover the annual costs of site care, surveillance, and where necessary, maintenance. Prior to actual payment, the total charge will be adjusted annually for inflation. The inflation rate to be used is that indicated by the change in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics.

(4) The requirements of this subsection shall apply only to those sites whose ownership is subject to being transferred to the state or the federal government. The total amount of funds collected by the agency in accordance with this subsection shall be transferred to the federal government if title and custody of the byproduct material disposal site is transferred to the federal government upon termination of the license.

(o) [ (q) ] Technical requirements.

(1) Byproduct material handling and disposal systems shall be designed to accommodate full-capacity production over the lifetime of the facility. When later expansion of systems or operations may be likely, capability of the disposal system to be modified to accommodate increased quantities without degradation in long-term stability and other performance factors shall be evaluated.

(2) In selecting among alternative byproduct material disposal sites or judging the adequacy of existing sites, the following site features which would assure meeting the broad objective of isolating the tailings and associated contaminants without ongoing active maintenance shall be considered:

(A) remoteness from populated areas;

(B) hydrogeologic and other environmental conditions conducive to continued immobilization and isolation of contaminants from usable groundwater sources; and

(C) potential for minimizing erosion, disturbance, and dispersion by natural forces over the long term.

(3) The site selection process shall be an optimization to the maximum extent reasonably achievable in terms of these site features.

(4) In the selection of disposal sites, primary emphasis shall be given to isolation of the byproduct material, a matter having long-term impacts, as opposed to consideration only of short-term convenience or benefits (e.g., minimization of transportation of land acquisition costs). While isolation of byproduct material will also be a function of both site and engineering design, overriding consideration shall be given to siting features.

(5) Byproduct material should be disposed of in a manner such that no active maintenance is required to preserve conditions of the site.

(6) The applicant's environmental report shall evaluate alternative sites and disposal methods and shall consider disposal of byproduct material by placement below grade. Where full below grade burial is not practicable, the size of retention structures, and size and steepness of slopes associated with exposed embankments shall be minimized by excavation to the maximum extent reasonably achievable or appropriate given the geologic and hydrologic conditions at a site. In these cases, it shall be demonstrated that an above grade disposal program will provide reasonably equivalent isolation of the byproduct material from natural erosional forces.

(7) To avoid proliferation of small waste disposal sites and thereby reduce perpetual surveillance obligations, byproduct material from in situ extraction operations, such as residues from solution evaporation or contaminated control processes, and wastes from small remote above ground extraction operations shall be disposed of at existing large mill tailings disposal sites; unless, considering the nature of the wastes, such as their volume and specific activity, and the costs and environmental impacts of transporting the wastes to a large disposal site, such offsite disposal is demonstrated to be impracticable or the advantages of onsite burial clearly outweigh the benefits of reducing the perpetual surveillance obligations.

(8) The following site and design requirements shall be adhered to whether byproduct material is disposed of above or below grade:

(A) the upstream rainfall catchment areas shall be minimized to decrease erosion potential by flooding that could erode or wash out sections of the byproduct material disposal area;

(B) the topographic features shall provide good wind protection;

(C) the embankment and cover slopes shall be relatively flat after final stabilization to minimize erosion potential and to provide conservative factors of safety assuring long term stability. The objective should be to contour final slopes to grades that are as close as possible to those that would be provided if byproduct material was disposed of below grade. Slopes shall not be steeper than 5 horizontal to 1 vertical (5h:1v), except as specifically authorized by the agency. Where steeper slopes are proposed, reasons why a slope steeper than 5h:1v would be as equally resistant to erosion shall be provided, and compensating factors and conditions that make such slopes acceptable shall be identified;

(D) a full self-sustaining vegetative cover shall be established or rock cover employed to reduce wind and water erosion to negligible levels;

(E) where a full vegetative cover is not likely to be self-sustaining due to climatic conditions, such as in semi-arid and arid regions, rock cover shall be employed on slopes of the impoundment system. The agency will consider relaxing this requirement for extremely gentle slopes, such as those that may exist on the top of the pile;

(F) the following factors shall be considered in establishing the final rock cover design to avoid displacement of rock particles by human and animal traffic or by natural processes, and to preclude undercutting and piping:

(i) shape, size, composition, gradation of rock particles (excepting bedding material, average particles size shall be at least cobble size or greater);

(ii) rock cover thickness and zoning of particles by size; and

(iii) steepness of underlying slopes.

(G) individual rock fragments shall be dense, sound, and resistant to abrasion, and shall be free from cracks, seams, and other defects that would tend to unduly increase their destruction by erosion and weathering action. Local rock materials are permissible provided the characteristics under local climatic conditions indicate similar long-term performance as a protective layer. Weak, friable, or laminated aggregate may not be used;

(H) rock covering of slopes may not be required where top covers are very thick (on the order of 10 m or greater); impoundment slopes are very gentle (on the order of 10h:1v or less); bulk cover materials have inherently favorable erosion resistance characteristics; there is negligible drainage catchment area upstream of the pile; and there is good wind protection;

(I) all impoundment surfaces shall be contoured to avoid areas of concentrated surface runoff or abrupt or sharp changes in slope gradient. In addition to rock cover on slopes, areas toward which surface runoff might be directed shall be well protected with substantial rock cover (riprap). In addition to providing for stability of the impoundment system itself, overall stability, erosion potential, and geomorphology of surrounding terrain shall be evaluated to assure that there are no ongoing or potential processes, such as gully erosion, which would lead to impoundment instability;

(J) the impoundment shall not be located near a capable fault that could cause a maximum credible earthquake larger than that which the impoundment could reasonably be expected to withstand; and

(K) the impoundment should be designed to incorporate features that will promote deposition. Design features that promote deposition of sediment suspended in any runoff which flows into the impoundment area might be utilized. The object of such a design feature would be to enhance the thickness of cover over time.

(9) Groundwater protection. The following groundwater protection requirements and those in paragraphs (10) and (11) of this subsection and subsection (q) [ (s) ] of this section apply during operations and until closure is completed. Groundwater monitoring to comply with these standards is required by paragraphs (28) and (29) of this subsection.

(A) The primary groundwater protection standard is a design standard for surface impoundments used to manage byproduct material. Unless exempted under paragraph (9)(C) of this subsection, surface impoundments (except for an existing portion) shall have a liner that is designed, constructed, and installed to prevent any migration of wastes out of the impoundment to the adjacent subsurface soil, groundwater, or surface water at any time during the active life (including the closure period) of the impoundment. If the liner is constructed of materials that may allow wastes to migrate into the liner during the active life of the facility, impoundment closure shall include removal or decontamination of all waste residues, contaminated containment system components (liners, etc.), contaminated subsoils, and structures and equipment contaminated with waste and leachate. For impoundments that will be closed with the liner material left in place, the liner shall be constructed of materials that can prevent wastes from migrating into the liner during the active life of the facility.

(B) The liner required by subparagraph (A) of this paragraph shall be:

(i) constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation;

(ii) placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and

(iii) installed to cover all surrounding earth likely to be in contact with the wastes or leachate.

(C) The applicant or licensee will be exempted from the requirements of subparagraph (A) of this paragraph if the agency finds, based on a demonstration by the applicant or licensee, that alternate design and operating practices, including the closure plan, together with site characteristics will prevent the migration of any hazardous constituents into groundwater or surface water at any future time. In deciding whether to grant an exemption, the agency will consider:

(i) the nature and quantity of the wastes;

(ii) the proposed alternate design and operation;

(iii) the hydrogeologic setting of the facility, including the attenuative capacity and thickness of the liners and soils present between the impoundment and groundwater or surface water; and

(iv) all other factors that would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water.

(D) A surface impoundment shall be designed, constructed, maintained, and operated to prevent overtopping resulting from normal or abnormal operations, overfilling, wind and wave actions, rainfall, or run-off; from malfunctions of level controllers, alarms, and other equipment; and from human error.

(E) When dikes are used to form the surface impoundment, the dikes shall be designed, constructed, and maintained with sufficient structural integrity to prevent massive failure of the dikes. In ensuring structural integrity, it shall not be presumed that the liner system will function without leakage during the active life of the impoundment.

(10) Byproduct materials shall be managed to conform to the following secondary groundwater protection requirements:

(A) hazardous constituents, as defined in subsection (c)(16) [ (c)(17) ] of this section, entering the groundwater from a licensed site shall not exceed the specified concentration limits in the uppermost aquifer beyond the point of compliance during the compliance period.

(B) specified concentration limits are those limits established by the agency as indicated in subparagraph (G) of this paragraph.

(C) the agency will also establish the point of compliance and compliance period on a site-specific basis through license conditions and orders.

(D) when the detection monitoring established under paragraphs (28) and (29) of this section indicates leakage of hazardous constituents from the disposal area, the agency will perform the following:

(i) identify hazardous constituents;

(ii) establish concentration limits;

(iii) set the compliance period; and

(iv) may adjust the point of compliance if needed in accordance with developed data and site information regarding the flow of groundwater or contaminants.

(E) even when constituents meet all three tests in the definition of hazardous constituent, the agency may exclude a detected constituent from the set of hazardous constituents on a site-specific basis if it finds that the constituent is not capable of posing a substantial present or potential hazard to human health or the environment. In deciding whether to exclude constituents, the agency will consider the following:

(i) potential adverse effects on groundwater quality, considering the following:

(I) physical and chemical characteristics of the waste in the licensed site, including its potential for migration;

(II) hydrogeological characteristics of the licensed site and surrounding land;

(III) quantity of groundwater and the direction of groundwater flow;

(IV) proximity of groundwater users and groundwater withdrawal rates;

(V) current and future uses of groundwater in the area;

(VI) existing quality of groundwater, including other sources of contamination and cumulative impact on the groundwater quality;

(VII) potential for human health risks caused by human exposure to waste constituents;

(VIII) potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and

(IX) persistence and permanence of potential adverse effects.

(ii) potential adverse effects on quality of hydraulically-connected surface water, considering the:

(I) volume and physical and chemical characteristics of the byproduct material in the licensed site;

(II) hydrogeological characteristics of the licensed site and surrounding land;

(III) quantity and quality of groundwater and the direction of groundwater flow;

(IV) patterns of rainfall in the region;

(V) proximity of the licensed site to surface waters;

(VI) current and future uses of surface waters in the area and any water quality standards established for those surface waters;

(VII) existing quality of surface water, including potential impacts from other sources of contamination and the cumulative impact on surface water quality;

(VIII) potential for human health risks caused by human exposure to waste constituents;

(IX) potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and

(X) persistence and permanence of the potential adverse effects.

(F) In making any determinations under subparagraphs (E) and (H) of this paragraph about the use of groundwater in the area around the facility, the agency will consider any identification of underground sources of drinking water and exempted aquifers made by the United States Environmental Protection Agency (EPA) and the Texas Commission on Environmental Quality.

(G) At the point of compliance, the concentration of a hazardous constituent shall not exceed the following:

(i) the agency approved background concentration in the groundwater of the constituents listed in 10 CFR 40, Appendix A, Criterion 13;

(ii) the respective value given in subsection (q) [ (s) ] of this section if the constituent is listed in the table and if the background level of the constituent is below the value listed; or

(iii) an alternate concentration limit established by the agency.

(H) Alternate concentration limits to background concentration or to the drinking water limits in subsection (q) [ (s) ] of this section that present no significant hazard may be proposed by licensees for agency consideration. Licensees shall provide the basis for any proposed limits including consideration of practicable corrective actions, evidence that limits are as low as reasonably achievable, and information on the factors the agency shall consider. The agency will establish a site-specific alternate concentration limit for a hazardous constituent, as provided in subparagraph (G) of this paragraph, if it finds that the proposed limit is as low as reasonably achievable, after considering practicable corrective actions, and that the constituent will not pose a substantial present or potential hazard to human health or the environment as long as the alternate concentration limit is not exceeded. In making the present and potential hazard finding, the agency will consider the factors listed in subparagraph (D) of this paragraph.

(11) If the groundwater protection standards established under subparagraph (D) of this paragraph are exceeded at a licensed site, a corrective action program shall be put into operation as soon as is practicable, and in no event later than 18 months after the agency finds that the standards have been exceeded. The licensee shall submit the proposed corrective action program and supporting rationale for agency approval prior to putting the program into operation, unless otherwise directed by the agency. The licensee's proposed program shall address removing or treating in place any hazardous constituents that exceed concentration limits in groundwater between the point of compliance and downgradient licensed site boundary. The licensee shall continue corrective action measures to the extent necessary to achieve and maintain compliance with the groundwater protection standard. The agency will determine when the licensee may terminate corrective action measures based on data from the groundwater monitoring program and other information that provides reasonable assurance that the groundwater protection standard will not be exceeded.

(12) In developing and conducting groundwater protection programs, applicants and licensees shall also consider the following:

(A) where synthetic liners are used, a leakage-detection system shall be installed immediately below the liner to ensure detection of any major failures. This is in addition to the groundwater monitoring program conducted as provided in paragraph (29) of this subsection. Where clay liners are proposed or relatively thin, in situ clay soils are to be relied upon for seepage control, tests shall be conducted with representative tailings solutions and clay materials to confirm that no significant deterioration of permeability or stability properties will occur with continuous exposure of clay to byproduct material solutions. Tests shall be run for a sufficient period of time to reveal any effects that may occur;

(B) mill process designs that provide the maximum practicable recycle of solutions and conservation of water to reduce the net input of liquid to the byproduct material impoundment;

(C) dewatering of byproduct material solutions by process devices and/or in situ drainage systems. At new sites, byproduct material solutions shall be dewatered by a drainage system installed at the bottom of the impoundment to lower the phreatic surface and reduce the driving head of seepage, unless tests show byproduct material solutions are not amenable to such a system. Where in situ dewatering is to be conducted, the impoundment bottom shall be graded to assure that the drains are at a low point. The drains shall be protected by suitable filter materials to assure that drains remain free-running. The drainage system shall also be adequately sized to assure good drainage; and

(D) neutralization to promote immobilization of hazardous constituents.

(13) Technical specifications shall be prepared for installation of seepage control systems. A quality assurance, testing, and inspection program, which includes supervision by a qualified engineer or scientist, shall be established to assure that specifications are met. If adverse groundwater impacts or conditions conducive to adverse groundwater impacts occur due to seepage, action shall be taken to alleviate the impacts or conditions and restore groundwater quality to levels consistent with those before operations began. The specific seepage control and groundwater protection method, or combination of methods, to be used shall be worked out on a site-specific basis.

(14) In support of a byproduct material disposal system proposal, the applicant/licensee shall supply the following information:

(A) the chemical and radioactive characteristics of the waste solutions;

(B) the characteristics of the underlying soil and geologic formations particularly as they will control transport of contaminants and solutions. This shall include detailed information concerning extent, thickness, uniformity, shape, and orientation of underlying strata. Hydraulic gradients and conductivities of the various formations shall be determined. This information shall be gathered by borings and field survey methods taken within the proposed impoundment area and in surrounding areas where contaminants might migrate to groundwater. The information gathered on boreholes shall include both geologic and geophysical logs in sufficient number and degree of sophistication to allow determining significant discontinuities, fractures, and channeled deposits of high hydraulic conductivity. If field survey methods are used, they should be in addition to and calibrated with borehole logging. Hydrologic parameters such as permeability shall not be determined on the basis of laboratory analysis of samples alone. A sufficient amount of field testing (e.g., pump tests) shall be conducted to assure actual field properties are adequately understood. Testing shall be conducted to make possible estimates of chemisorption attenuation properties of underlying soil and rock; and

(C) location, extent, quality, capacity, and current uses of any groundwater at and near the site.

(15) If ore is stockpiled, methods shall be used to minimize penetration of radionuclides and other substances into underlying soils.

(16) In disposing of byproduct material, licensees shall place an earthen cover over the byproduct material at the end of the facility's operations and shall close the waste disposal area in accordance with a design that provides reasonable assurance of control of radiological hazards to the following:

(A) be effective for 1,000 years to the extent reasonably achievable and, in any case, for at least 200 years; and

(B) limit releases of radon-222 from uranium byproduct materials and radon-220 from thorium byproduct materials to the atmosphere so as not to exceed an average release rate of 20 picocuries per square meter per second (pCi/m 2 s) to the extent practicable throughout the effective design life determined in accordance with subparagraph (A) of this paragraph. This average applies to the entire surface of each disposal area over a period of at least one year, but a period short compared to 100 years. Radon will come from both byproduct materials and cover materials. Radon emissions from cover materials should be estimated as part of developing a closure plan for each site. The standard, however, applies only to emissions from byproduct materials to the atmosphere.

(17) In computing required byproduct material cover thicknesses, moisture in soils in excess of amounts found normally in similar soils in similar circumstances shall not be considered. Direct gamma exposure from the byproduct material should be reduced to background levels. The effects of any thin synthetic layer shall not be taken into account in determining the calculated radon exhalation level. Cover shall not include materials that contain elevated levels of radium. Soils used for near-surface cover shall be essentially the same, as far as radioactivity is concerned, as that of surrounding surface soils. If non-soil materials are proposed as cover materials, the licensee shall demonstrate that such materials will not crack or degrade by differential settlement, weathering, or other mechanisms over the long term.

(18) As soon as reasonably achievable after emplacement of the final cover to limit releases of radon-222 from uranium byproduct material and prior to placement of erosion protection barriers of other features necessary for long-term control of the tailings, the licensee shall verify through appropriate testing and analysis that the design and construction of the final radon barrier is effective in limiting releases of radon-222 to a level not exceeding 20pCi/m2 s averaged over the entire pile or impoundment using the procedures described in Appendix B, method 115 of 40 CFR Part 61, or another method of verification approved by the agency as being at least as effective in demonstrating the effectiveness of the final radon barrier.

(19) When phased emplacement of the final radon barrier is included in the applicable reclamation plan, as defined in subsection (c)(25) [ (c)(26) ] of this section, the verification of radon-222 release rates required in paragraph (30) of this subsection shall be conducted for each portion of the pile or impoundment as the final radon barrier for that portion is emplaced.

(20) Within 90 days of the completion of all testing and analysis relevant to the required verification in paragraphs (30)(C) and (30)(D) of this subsection, the uranium recovery licensee shall report to the agency the results detailing the actions taken to verify that levels of release of radon-222 do not exceed 20 pCi/m 2 s when averaged over the entire pile or impoundment. The licensee shall maintain records documenting the source of input parameters, including the results of all measurements on which they are based, the calculations and/or analytical methods used to derive values for input parameters, and the procedure used to determine compliance. These records shall be maintained until termination of the license and shall be kept in a form suitable for transfer to the custodial agency at the time of transfer of the site to the state or federal government in accordance with subsection (p) [ (r) ] of this section.

(21) Near-surface cover materials may not include waste, rock, or other materials that contain elevated levels of radium. Soils used for near-surface cover shall be essentially the same, as far as radioactivity is concerned, as surrounding surface soils. This is to ensure that surface radon exhalation is not significantly above background because of the cover material itself.

(22) The design requirements for longevity and control of radon releases apply to any portion of a licensed and/or disposal site unless such portion contains a concentration of radium in land averaged over areas of 100 square meters (m 2 ), that, as a result of byproduct material, does not exceed the background level by more than:

(A) 5 picocuries per gram (pCi/g) of radium-226, or in the case of thorium byproduct material, radium-228, averaged over the first 15 centimeters (cm) below the surface; and

(B) 15 pCi/g of radium-226, or in the case of thorium byproduct material, radium-228, averaged over 15-cm thick layers more than 15 cm below surface.

(23) The licensee shall also address the nonradiological hazards associated with the waste in planning and implementing closure. The licensee shall ensure that disposal areas are closed in a manner that minimizes the need for further maintenance. To the extent necessary to prevent threats to human health and the environment, the licensee shall control, minimize, or eliminate post-closure escape of nonradiological hazardous constituents, leachate, contaminated rainwater, or waste decomposition products to groundwater or surface waters or to the atmosphere.

(24) For impoundments containing uranium byproduct materials, the final radon barrier shall be completed as expeditiously as practicable considering technological feasibility after the pile or impoundment ceases operation in accordance with a written reclamation plan, as defined in subsection (c)(25) [ (c)(26) ] of this section, approved by the agency, by license amendment. (The term "as expeditiously as practicable considering technological feasibility" includes "factors beyond the control of the licensee.") Deadlines for completion of the final radon barrier and applicable interim milestones shall be established as license conditions. Applicable interim milestones may include, but are not limited to, the retrieval of windblown byproduct material and placement on the pile and the interim stabilization of the byproduct material (including dewatering or the removal of freestanding liquids and recontouring). The placement of erosion protection barriers or other features necessary for long-term control of the byproduct material shall also be completed in a timely manner in accordance with a written reclamation plan approved by the agency by license amendment.

(25) The agency may approve by license amendment a licensee's request to extend the time for performance of milestones related to emplacement of the final radon barrier if, after providing an opportunity for public participation, the agency finds that the licensee has adequately demonstrated in the manner required in paragraph (18) of this subsection that releases of radon-222 do not exceed an average of 20 pCi/m 2 s. If the delay is approved on the basis that the radon releases do not exceed 20 pCi/m2 s, a verification of radon levels, as required by paragraph (18) of this subsection, shall be made annually during the period of delay. In addition, once the agency has established the date in the reclamation plan for the milestone for completion of the final radon barrier, the agency may by license amendment extend that date based on cost if, after providing an opportunity for public participation, the agency finds that the licensee is making good faith efforts to emplace the final radon barrier, the delay is consistent with the definition of "available technology," and the radon releases caused by the delay will not result in a significant incremental risk to the public health.

(26) The agency may authorize by license amendment, upon licensee request, a portion of the impoundment to accept uranium byproduct material, or such materials that are similar in physical, chemical, and radiological characteristics to the uranium mill tailings and associated wastes already in the pile or impoundment, from other sources during the closure process. No such authorization will be made if it results in a delay or impediment to emplacement of the final radon barrier over the remainder of the impoundment in a manner that will achieve levels of radon-222 releases not exceeding 20 pCi/m 2 s averaged over the entire impoundment. The verification required in paragraph (18) of this subsection may be completed with a portion of the impoundment being used for further disposal if the agency makes a final finding that the impoundment will continue to achieve a level of radon-222 release not exceeding 20 pCi/m 2 s averaged over the entire impoundment. After the final radon barrier is complete except for the continuing disposal area, only byproduct material will be authorized for disposal, and the disposal will be limited to the specified existing disposal area. This authorization by license amendment will only be made after providing opportunity for public participation. Reclamation of the disposal area, as appropriate, shall be completed in a timely manner after disposal operations cease in accordance with paragraph (16) of this subsection. These actions are not required to be complete as part of meeting the deadline for final radon barrier construction.

(27) The licensee's closure plan shall provide reasonable assurance that institutional control will be provided for the length of time found necessary by the agency to ensure the requirements of paragraph (16) of this subsection are met.

(28) Prior to any major site construction, a preoperational monitoring program shall be conducted for one full year to provide complete baseline data on the site and its environs. Throughout the construction and operating phases of the project, an operational monitoring program shall be conducted to measure or evaluate compliance with applicable standards and rules; to evaluate performance of control systems and procedures; to evaluate environmental impacts of operation; and to detect potential long-term effects.

(29) The licensee shall establish a detection monitoring program needed for the agency to set the site-specific groundwater protection standards in paragraph (10)(D) of this subsection. For all monitoring under this paragraph, the licensee or applicant will propose, as license conditions for agency approval, which constituents are to be monitored on a site-specific basis. The data and information shall provide a sufficient basis to identify those hazardous constituents that require concentration limit standards and to enable the agency to set the limits for those constituents and compliance period. They may provide the basis for adjustments to the point of compliance. The detection monitoring program shall be in place when specified by the agency in orders or license conditions. Once groundwater protection standards have been established in accordance with paragraph (10)(D) of this subsection, the licensee shall establish and implement a compliance monitoring program. In conjunction with a corrective action program, the licensee shall establish and implement a corrective action monitoring program to demonstrate the effectiveness of the corrective actions. Any monitoring program required by this paragraph may be based on existing monitoring programs to the extent the existing programs can meet the stated objective for the program.

(30) Systems shall be designed and operated so that all airborne effluent releases are as low as is reasonably achievable. The primary means of accomplishing this shall be by means of emission controls. Institutional controls, such as extending the site boundary and exclusion area, may be employed to ensure that offsite exposure limits are met, but only after all practicable measures have been taken to control emissions at the source.

(A) During operations and prior to closure, radiation doses from radon emissions from surface impoundments of byproduct materials shall be kept as low as is reasonably achievable.

(B) Checks shall be made and logged hourly of all parameters which determine the efficiency of emission control equipment operation. It shall be determined whether or not conditions are within a range prescribed to ensure that the equipment is operating consistently near peak efficiency. Corrective action shall be taken when performance is outside of prescribed ranges. Effluent control devices shall be operative at all times during drying and packaging operations and whenever air is exhausting from the uranium dryer stack. Drying and packaging operations shall terminate when controls are inoperative. When checks indicate the equipment is not operating within the range prescribed for peak efficiency, actions shall be taken to restore parameters to the prescribed range. When this cannot be done without shutdown and repairs, drying and packaging operations shall cease as soon as practicable. Operations may not be restarted after cessation due to off-normal performance until needed corrective actions have been identified and implemented. All such cessations, corrective actions, and re-starts shall be reported to the agency in writing within ten days of the subsequent restart.

(C) To control dusting from byproduct material, that portion not covered by standing liquids shall be wetted or chemically stabilized to prevent or minimize blowing and dusting to the maximum extent reasonably achievable. This requirement may be relaxed if byproduct material are effectively sheltered from wind, as in the case of below-grade disposal. Consideration shall be given in planning byproduct material disposal programs to methods for phased covering and reclamation of byproduct material impoundments. To control dusting from diffuse sources, applicants/licensees shall develop written operating procedures specifying the methods of control that will be utilized.

(D) Uranium recovery facility operations producing or involving thorium byproduct material shall be conducted in such a manner as to provide reasonable assurance that the annual dose equivalent does not exceed 25 millirems (mrem) to the whole body, 75 mrem to the thyroid, and 25 mrem to any other organ of any member of the public as a result of exposures to the planned discharge of radioactive materials to the general environment, radon-220 and its daughters excepted.

(E) Byproduct materials shall be managed so as to conform to the applicable provisions of 40 CFR 440, as codified on January 1, 1983.

(31) Licensees/applicants may propose alternatives to the specific requirements in subsections (m)-(p) [ (o)-(r) ] of this section. The alternative proposals may take into account local or regional conditions including geology, topography, hydrology, and meteorology.

(32) The agency may find that the proposed alternatives meet the agency's requirements if the alternatives will achieve a level of stabilization and containment of the sites concerned and a level of protection for the public health and safety and the environment from radiological and nonradiological hazards associated with the sites, which is equivalent to, to the extent practicable, or more stringent than the level that would be achieved by the requirements of subsections (m)-(p) [ (o)-(r) ] of this section and the standards promulgated by EPA in 40 CFR Part 192, Subparts D and E.

(33) All site-specific licensing decisions based on the criteria in subsections (m)-(p) [ (o)-(r) ] of this section, or alternatives proposed by licensees/applicants shall take into account the risk to the public health and safety and the environment with due consideration to the economic costs involved and any other factors the agency determines to be appropriate.

(34) Any proposed alternatives to the specific requirements in subsections (m)-(p) [ (o)-(r) ] of this section shall meet the requirements of 10 CFR 150.31(d).

(35) No new site shall be located in a 100-year floodplain or wetland as defined in "Floodplain Management Guidelines for Implementing Executive Order 11988."

(p) [ (r) ] Land ownership of byproduct material disposal sites.

(1) These criteria relating to ownership of byproduct material and their disposal sites apply to all licenses terminated, issued, or renewed after November 8, 1981.

(2) Unless exempted by NRC, title to land (including any affected interests therein) that is used for the disposal of byproduct material or that is essential to ensure the long-term stability of the disposal site and title to the byproduct material shall be transferred to the State of Texas or the United States prior to the termination of the license. Material and land transferred shall be transferred without cost to the State of Texas or the United States. In cases where no ongoing site surveillance will be required, surface land ownership transfer requirements may be waived. For licenses issued before November 8, 1981, NRC may take into account the status of the ownership of the land and interests therein, and the ability of a licensee to transfer title and custody thereof to the State.

(3) Any uranium recovery facility license shall contain terms and conditions as the agency determines necessary to assure that, prior to termination of the license, the licensee will comply with ownership requirements of this subsection for sites used for tailings disposal.

(4) For surface impoundments only, the applicant/licensee shall demonstrate a serious effort to obtain severed mineral rights and shall, in the event that fee simple title including all mineral rights cannot be obtained, provide notification in local public land records of the fact that the land is being used for the disposal of radioactive material and is subject to a NRC license prohibiting the disruption and disturbance of the tailings.

(5) If NRC, subsequent to title transfer, determines that use of the surface or subsurface estates, or both, of the land transferred to the state or federal government will not endanger the public health and safety or the environment, NRC may permit the use of the surface or subsurface estates, or both, of such land in a manner consistent with the provisions of this section. If NRC permits the use of such land, it will provide the person who transferred the land with the first refusal with respect to the use of such land.

(q) [ (s) ] Maximum values for use in groundwater protection. The following is a list of the maximum concentration values to be used for groundwater protection.

Figure: 25 TAC §289.260(q)

[ Figure: 25 TAC §289.260(s) ]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2004.

TRD-200402063

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: May 2, 2004

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


Chapter 337. WATER HYGIENE

Subchapter B. DESIGN STANDARDS FOR PUBLIC SWIMMING POOL CONSTRUCTION

25 TAC §§337.71 - 337.96

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Health (department) proposes the repeal of §§337.71 - 337.96, concerning the design standards for public swimming pool construction. The repeal is necessary in order to eliminate duplication of design standards for public swimming pools rules, which are being adopted into a more appropriate section in the Texas Administrative Code (TAC), §§337.71 - 337.96, was adopted pursuant to Health and Safety Code, §341.064, Swimming Pools and Bathhouses.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections §§337.71 - 337.96 have been reviewed, and the department has determined that the reasons for adopting the sections no longer exist. In a companion rulemaking, applicable public swimming pool design and construction standards from this chapter are being incorporated into 25 TAC, Part 1, Chapter 265, Subchapter L, Standards for Public Pools and Spas.

The department published a Notice of Intent to Review for §§337.71 - 337.96, in the March 29, 2002, issue of the Texas Register (27 TexReg 2541). No comments were received following publication of the notice.

Elias Briseno, Director, General Sanitation and Product Safety Division, has determined that for each year of the first five years the repeal is in effect there will be no fiscal impact on state or local governments as a result of enforcing or administering the repeal as proposed because obsolete rules will be eliminated.

Mr. Briseno, has also determined that for each year of the first five years the repeal is in effect, the anticipated public benefits will be the elimination of obsolete rules from the Texas Administrative Code. Because applicable rules in Chapter 337 will be adopted into Chapter 265 and obsolete rules from Chapter 337 will be eliminated, there will be no additional fiscal impact on micro-businesses or small businesses. This determination was based on a careful evaluation of micro-businesses, small businesses and large businesses associated with the public pool and spa industry. There are no costs to persons who are affected by the repeal. There will be no impact on local employment.

Comments on the proposal may be submitted to Elias Briseno, Director, General Sanitation and Product Safety Division, Bureau of Environmental Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, phone (512) 834-6600, by fax to (512) 834-6635 or by e-mail to katie.moore@tdh.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register .

The repeals are proposed under Health and Safety Code, §341.002, which provides the Texas Board of Health (board) with the authority to adopt rules consistent with the establishment of standards and procedures for the management and control of sanitation and health protection measures; Health and Safety Code §341.064 that authorizes standards for public swimming pools and bathhouses; and Health Safety Code, §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health.

The repeals affect Health and Safety Code, Chapters 341 and 12. The review of the rules implements Government Code, §2001.039.

§337.71.Definitions.

§337.72.Purpose.

§337.73.Examination and Approval of Plans.

§337.74.Plans and Specifications.

§337.75.Engineering Report

§337.76.Water Supply.

§337.77.Sewer System.

§337.78.Swimming Pool Construction Materials.

§337.79.Design Detail and Structural Stability.

§337.80.Depth Markings and Lines.

§337.81.Inlets and Outlets.

§337.82.Slope of Bottom.

§337.83.Side Walls.

§337.84.Overflow Gutters.

§337.85.Skimmers.

§337.86.Recirculation Systems.

§337.87.Sand Type Filters.

§337.88.Diatomaceous Earth-Type Filters.

§337.89.Ladders, Recessed Treads, and Stairs.

§337.90.Decks and Walkways.

§337.91.Diving Areas.

§337.92.Disinfectant and Chemical Feeders.

§337.93.Lighting, Ventilation, and Electrical Requirements.

§337.94.User Loading.

§337.95.Bathhouses, Toilets, and Showers.

§337.96.Safety Requirements--Lifesaving Equipment.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 22, 2004.

TRD-200402067

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: May 2, 2004

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