Mr. Dan Tutcher President Enbridge Pipelines, L.L.C. 1 100 ...

U.S. Department 400 Seventh Street,S.W.

of Transportation Washington, D.C. 20590

Pipeline and Hazardous Materials Safety Administration

Mr. Dan Tutcher President Enbridge Pipelines, L.L.C. 1 100 Louisiana, Suite 3300 Houston, TX 77002

Re: CPF No. 36523

Dear Mr. Tutcher:

Enclosed is the Final Order issued by the Associate Administrator for Pipeline Safety in the above-referenced case. It withdraws one of the allegations of violation, makes findings of violation, and assesses a civil penalty of $25,000. It further finds that you have completed the actions specified in the Notice required to comply with the pipeline safety regulations. When the civil penalty is paid, this enforcement action will be closed. Your receipt of the Final Order constitutes service of that document under 49 C.F.R. 5 190.5.

Sincerely,

James Reynolds Pipeline Compliance Registry Office of Pipeline Safety

cc: Mr. Ivan Huntoon Director, Central Region, OPS

Mr. Mark J. Willoughby Compliance Manager Enbridge Pipelines, LLC 1 19 North 2SthStreetjEast Superior, WI 54880

Enclosure

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

DEPARTMENT OF TRANSPORTATION PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION

OFFICE OF PIPELINE SAFETY WASHINGTON, D.C. 20590

-

) In the Matter of )

) Enbridge Pipelines, L.L.C. 1 CPF No. 36523 (formerly Lakehead Pipe Line )

Company, Inc.), ) )

Respondent. )

FINAL ORDER

On the following dates, a representative of the Minnesota Office of Pipeline Safety (MnOPS), as an agent for the Office of Pipeline Safety (OPS) conducted the following investigations and inspections:

Investigation Dates Investigation Issue Issue Date Location

December 14, 15 and 22, failed weld on a December 10, Respondent's 34-inch 1994; February 5, 1996; stopple fitting 1994 line 3, at N1.P. 920 and March 8 and 20, 1996

November 13- 15, 1995; reported leak November 13, Respondent's 34-inch February 5 and 14, 1996; 1995 line 3, at M.P. 856.3 and March 20, 1996

February 8, 14,2 1, and specialized welding 1995 " Respondent's 48-inch 26-28, 1996; and March 8 inspection related to Floodwood Loop and 20, 1996 repairs prompted by

the results of a high resolution internal inspection

As a result of the investigations and inspections, the Director, Central Region, OPS, issued to Respondent, by letter dated December 4, 1996, a Notice of Probable Violation, Proposed Civil Penalty and Proposed Compliance Order. In accordance with 49 C.F.R. 4 190.207, the Notice proposed finding that Respondent had committed violations of 49 C.F.R. Part 195 and proposed assessing a civil penalty of $30,000 for the alleged violations. The Notice also proposed that Respondent take certain measures to correct the alleged violations.

After requesting and receiving an extension of time to respond, Respondent responded to the Notice by letter dated January 17, 1997 (Response). Respondent contested some of the allegations, presented information in mitigation of the proposed penalty, and requested a hearing. In a letter dated August 16,2005, Respondent withdrew its request for a hearing.

FINDINGS OF VIOLATION

Item 1 in the Notice alleged that Respondent violated 49 C.F.R. 5195.214 by failing to follow a qualified welding procedure for performing a fillet weld at M.P. 920 associated with a stopple fitting failure, a fillet weld at M.P. 856.3 during a repair after a reported leak, and a fillet weld during repairs on the 48-inch Floodwood Loop. Respondent's qualified procedure for fillet welds, UF-28, requires fillet weld leg lengths to be a minimum of 1.4 times the carrier wall thickness, plus any gap associated with the fit-up of the sleeve or fittings. In its response, Respondent did not dispute that its personnel had performed fillet welds having leg lengths below the length specified in UF-28 and Respondent acknowledged that its personnel performed a portion of a fillet weld on a downhill pass rather than an uphill pass as specified in its UF-28 procedure. Accordingly, I find that Respondent violated 5 195.214 by failing to follow the specified welding procedure.

Item 2 in the Notice alleged that Respondent violated 49 C.F.R. 5 195.228(a) by failing to adequately inspect welds to ensure that each weld was performed in accordance with the requirements of Subpart D of Part 195. In its response, Respondent contended that the welds were sound as determined by non-destructive testing and complied with ASME B3 1.4 guidelines. The requirements of Subpart D, however, include the requirement that welding follow previously qualified procedures. As noted in Item 1 above, the relevant procedure was not followed. Because the inspections performed by Respondent did not detect the fact that the relevant procedure was not followed and allowed the welds to be placed into service, the inspections were inadequate. Accordingly, I find that Respondent violated 5 195.228(a) by failing to adequately inspect welds to ensure that each weld was performed in accordance with the applicable requirements.

These findings of violation will be considered prior offenses in any subsequent enforcement action taken against Respondent. .

WITHDRAWAL OF ALLEGATION

Item 4 in the Notice alleged that Respondent had violated 49 C.F.R. 5 195.402(c)(3) by failing to establish procedures for welding tight-fitting sleeves that included extending adjacent sleeves or installing sleeves over pipe bends. In its response, Respondent submitted information demonstrating that their existing welding procedures were suitable to these tasks. Based on this information demonstrating compliance with the regulation, I am withdrawing this allegation of violation.

ASSESSMENT OF PENALTY

Under 49 U.S.C. 5 60122 (2000), Respondent is subject to a civil penalty not to exceed $25,000 per violation for each day of the violation up to a maximum of $500,000 for any related series of violations.

49 U.S.C. $ 60122 and 49 C.F.R. 3 190.225 require that, in determining the amount of the civil penalty, I consider the following criteria: nature, circumstances, and gravity of the violation, degree of Respondent's culpability, history of Respondent's prior offenses, Respondent's ability to pay the penalty, good faith by Respondent in attempting to achieve compliance, the effect on Respondent's ability to continue in business, and such other matters as justice may require.

With respect to Item 1, the Notice proposed a civil penalty of $16,000 for Respondent's failure to follow its qualified welding procedure for performing fillet welds. Following qualified welding procedures is an important part of pipeline safety because the any inconsistencies in the quality of welds performed on a pipeline can increase the risk of failures. In its response, explained that it believed that the failure to meet the minimum leg lengths resulted in large part from a misinterpretation by its personnel of the relevant illustration in its UF-28 procedure. Respondent also indicated that it has taken corrective action including providing additional guidance on the UF-28 procedure and additional training to its personnel. Respondent, however, presented no information that would warrant a reduction in the penalty amount proposed in the Notice for this item. Accordingly, having reviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of $16,000 for this violation.

With respect to Item 2, the Notice proposed a civil penalty of $9,000 for Respondent's failure to adequately inspect welds to ensure that each weld was performed in accordance with the requirements of Subpart D of Part 195. Adequate inspection of each weld is an important part of pipeline safety because welds with inadequate leg length are susceptible to longitudinal stresses and may have insufficient thickness to carry the load. Thorough inspection is critical to ensure that such welds are not placed into service. In its response, Respondent explained that the welds were inspected for many characteristics other than leg length and were non-destructively tested. Respondent, however, presented no information that would warrant a reduction in the penalty amount proposed in the Notice for this item. Accordingly, having reviewed the record and considered the assessment criteria, I assess Respondent a civil penalty of $9,000 for this violation.

Accordingly, having reviewed the record and considered the assessment criteria, I assess Respondent a total civil penalty of $25,000.

Payment of the civil penalty must be made within 20 days of service. Federal regulations (49 C.F.R. $ 89.21(b)(3)) require this payment be made by wire transfer, through the Federal Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed instructions are contained in the enclosure. Questions concerning wire transfers should be directed to: Financial Operations Division (AMZ- 120), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25082, Oklahoma City, OK 73 125; (405) 954-4719.

Failure to pay the $25,000 civil penalty will result in accrual of interest at the current annual rate in accordance with 3 1 U.S.C. 5 37 17,3 1 C.F.R. 5 901.9 and 49 C.F.R. 5 89.23. Pursuant to those same authorities, a late penalty charge of six percent (6%) per annum will be charged if payment is not made within 1 10 days of service. Furthermore, failure to pay the civil penalty may result in referral of the matter to the Attorney General for appropriate action in a United States District Court.

COMPLIANCE ORDER

The Notice proposed a Compliance Order with respect to Items 1,2, and 4. Under 49 U.S.C. 5 60 1 18(a), each person who engages in the transportation of hazardous liquids or who owns or operates a pipeline facility is required to comply with the applicable safety standards established under Chapter 601. The Regional Director has indicated that Respondent addressed its welding procedures and developed and executed a system-wide program to investigate and repair where necessary inadequate fillet welds on sleeves and stopple fittings as specified in the Proposed Compliance Order. Accordingly, since compliance has been achieved with respect to these violations, it is unnecessary to include compliance terms in this Order.

WARNING ITEM

This Order does not assess a civil penalty or include a Compliance Order for Item 3 in the Notice. Therefore, this is considered to be a warning item. The warning was for Respondent's failure to backfill an area upstream of the stopple fitting at Mile Post 920 in a manner that provided firm support under the pipe in accordance with 5 195.252. Respondent provided information in its response indicating that it has addressed this item. Respondent is warned that if this item is not fully addressed, enforcement action will be taken if a subsequent inspection reveals a violation.

Under 49 C.F.R. 5 190.2 15, Respondent has a right to submit a petition for reconsideration of this Final Order. Should Respondent elect to do so, the petition must be received within 20 days of Respondent's receipt of this Final Order and must contain a brief statement of the issue(s). The filing of a petition automatically stays the payment of any civil penalty assessed. However if Respondent submits payment for the civil penalty, the Final Order becomes the final administrative decision and the right to petition for reconsideration is waived. The terms and

Date Issued

aa\7US.Deportrnenlcf llonsportolionReseorchondSpeciol ProgromsAdministrqlion

400 Seventh Street, S.W.Washinglon, D.C. 20590

DEC - 3 2002

Mr. Daniel C. TutcherPresidentEnbridge Energy Company, Inc.1100 Louisiana StreetSuite 3300Houston, TX77002-52I7

Re: CPF No. 3-2002-5008M

Dear Mr. Tutcher:

Enclosed is the Order Directing Amendment issued by the Associate Administrator forPipeline Safety in the above-referenced case. It makes a finding of inadequate procedures andrequires that you amend your integrity management program procedures. When the terms of,theOrder are completed, as determined by the Director, Central Region, OPS, this enforcement actionwill be closed. Your receipt of the Order Directing Amendment constitutes service ofthat documentunder 49 C.F.R. $ 190.5.

Pipeline Cornpliance RegistryOffrce of Pipeline Safety

Enclosure

John R. SobojinskiManager, U.S. Compliance & Risk ManagementEnbridge Energy Company, Inc.Lake Superior Place21 West Superior StreetDuluth. MN 55802-2067

Gwendolvn M. Hil

CERTIFIED MAIL - RETURN RECEIPT REOUESTED

DEPARTMENT OF TRANSPORTATIONRESEARCH AND SPECIAL PROGRAMS ADMINISTRATION

OFFICE OF PIPELINE SAFETYWASHINGTON. DC 20590

In the Matter of

Enbridge Energy Company, Inc.

Respondent.

CPF No. 3-2002-5008M

ORDER DIRECTING AMENDMENT

On February 26-27,20}2,pursuant to 49 U.S.C. $ 601 17, representatives of the Central and EasternRegions, Office of Pipeline Safety (OPS), inspected Enbridge Energy Company's (Respondent's)integrity management program at Respondent's facility in Duluth, Minnesota. As a result of theinspection, the Central Regional Director, OPS, issued to Respondent, by letter dated May 15, 2002,a Notice of Amendment (NOA). The NOA alleged inadequacies in Respondent's integritymanagement program and proposed to require amendment of Respondent's procedures to complywith the requirements of 49 C.F.R. $ 195.452(b).

Respondent responded to the NOA by letter dated June 18, 2002, as supplemented by letter datedSeptember 3,2002. Respondent did not contest the allegations set forth in the NOA and did notrequest a hearing, consequently Respondent waived its right to one. However, Respondent describedthe actions it is taking to address the inadequacies in its procedures that were identified in the NOA.

Accordingly, I find that Respondent's integrrty management program procedures are inadequate toensure safe operation of its pipeline system. Pursuant to 49 U.S.C. $ 60108(a) and 49 C.F.R.S 190.237, Respondent is ordered to make the following changes to its integrity managementprogram procedures. Respondent must:

1. Amend its procedures to provide adequate technicaljustification for determining the spillvolume used to identiff pipeline segments that could affect high consequence areasaccounting for Respondent's leak history which includes incidents larger than the 20,000barrel volume used in its original analysis;

2. Amend its procedures to modifu the land flow analysis used to identiff pipeline segmentsthat could affect high consequence areas to account for topographical gradients and otherfactors that could stretch the spill plume geometry beyond the 1,770 feet associated withuniform distribution over a strophoid shaped plume;

2

3. Amend its procedures to provide adequate technical justification for determining theextent of the buffer zone used to identifr natural gas liquid pipeline segments that couldaffect high consequence areas to include an analysis ofpredicted vapor dispersion froma natural gas liquid release;

4. Respondent must amend its procedures within 30 days following receipt of this OrderDirecting Amendment. Submit all amended procedures and technical justificationsdemonstrating compliance with this Order to the Director, Central Region, Offrce ofPipeline Safety,90l Locust Street, Suite 462, Kansas City, MO 64106-2641.

The Director, Central Region, OPS, may grant an extension of time to comply with any of therequired items upon a request by the Respondent demonstrating good cause for an extension.

Failure to comply with this Order Directing Amendment may result in the assessment of civilpenalties of up to $25,000 per violation per day, or in the referral of the case for judicialenforcement. The terms and conditions of this Order are effective upon receipt.

I)EC - 3 2il02

Stacey GerardAssociate Administrator

for Pipeline Safety

Date Issued+^

@U.S. Deportmentof TronsportolionResesrch qndSpeciol ProgromsAdministrolion -

400 Seventh St., S:W.Washington, D,C. 20590

Iuly 5,2002

Mr. Dan C. TutcherPresidentEnbridge Energy Cor-lrpany, Inc.Suite 29501100 LouisianaHouston, TX 77 0A2-7 002.

Re: CPF No. 3-2002-5017t,

.:

Dear Mr. Tutcher:.

Enclosed is a Corrective Action Order issued by the Associate Administrator for Pipeline Safetyin the above-referenced case. Service is.being made by certified mail and telecopy. Your receiptofthe enclosed document constitutes service of that document under 49 C-F.R. $ l90.5" Theterms and conditions of this Corrective Action Order are effective upon receipt.

Gwendolyn M. Hill 'Pipeline Compliance RegistryOfhce of Pipeline Safety

Enclosure

VIA CERTIFIED MAIL (RETURN RECEIPT REOUESTED) AND TELECOPY

DEPARTMENT OF TRANSPORTATIONRESEARCH AND SPECIAL PROGRAMS ADMINISTRATION

WASHINGTON. DC 20590

Inthe Matter ofEnbridge Energy Company, Inc.Respondent. CPF No. 3-2002-5017

CORRECTIVE ACTION ORDDR

Purpose and Backsround

This Corrective Action Order is being issued, under authority of 49 U.S.C. $ 60112 ,to requireEnbridge Energy Company, Inc. @nbridge), to take the necessary corrective action to protect thepublic and environment from potential hazards associated with its 34"-diameter Line 4 pipeline.The pipeline system originates in Gretna, Manitoba, Canada transporting crude oil south toSuperior, Wisconsin. The Office of Pipeline Safety (OPS) has found that corrective action isnecessary to determine the cause, and prevent possible recurrence, of the pipeline failure thatoccurred on July 4,2002.

On July 4,2002, at approximately l:15 AM CDT, a release of approximately 3,000 to G000banels of crude oil occurred from the pipeline at milepost (I\4P) t 003. 1, approximately % milewest of the city of Cohasset, Minnesota. The release was contained in an open marsh aea.

Pursuant to 49 U.S.C. $ 60117, the Central Region, OPS, initiated an investigation of thisinciilent.

Preliminar.v Findinss

. On July 4, 2002, at approximately l:l5AM CDT Enbridge's 34"-diameter Line 4 pipelinefailed at MP 1003.1, approximately %mile west of the city of Cohasset, Minnesnt4 inItasca County. The rupfure location was downstream of the Deer River Pump Station(MP 995.83) in an open marsh area. The release was approximately 1/4 mile west ofPincherry Road, on the west side of Cohasset. The failure resulted in the release ofapproximately 3000 to 6000 banels of crude oil.

. Indications of a pressure drop at l:15 AM CDT on July 4,2002 were noticed atEnbridge's Edmonton Control Center. The leak was confirmedat6,57 AM CDT, and theNRC was notified at 6:59 AM CDT the same dav.

No injuries or fatalities occurred.

o To control the release, the Minnesota Pollution Control Agency initiated a controlledburn, which is ongoing as of the writing of this order.

. The pipeline is owned and operated by Enbridge and transports crude oil from Gretn4Manitoba, Canada, to Superior, Wisconsin

. The Enbridge pipeline was installedinlg6T and traverses througb the city of Superior,Wisconsin. The Superior Terminal is located at MP 1096.95. The pipeline crossesenvironmental areas.

. The release occurred ona49 mile segment of the pipeline that runs from the Deer RiverPump Station to the Floodwood Pump Station (1044.33). This segment is constructedwith 0.312-inch wall thickness, API 5L-X52, double-submerged-arc-welded (DSAW)pipe manufactured by U.S. Steel.

. The Deer River to Floodwood segment has a maximum operating pressure (MOP) of 687psig. The segment was last pressure tested in 1991

' The operating pressure in effect at the time of the release at approximately 1:15 AM CDTon July 4,2002, is unknown.

. The cause of the incident is currently unkrcwn as the investigation is on-going and allfacts have not yet been determined.

. The failed pipe has not yet been viewed by investigators as the site has not been deemedsafe for investigative efforts.

. ,r.

. The pipeline was the subject of a hazardorm facility order in 1991 .

Determination of Necessity for Corrective Action Order and Right to Hearing

Section 60112 of Title 49, United States Code, provides for the issuance of a Corrective ActionOrder, after reasonable notice and the opportunity for a hearing, requiring corrective action,which may include the suspended or restricted use of a pipeline facility, physical inspection,testing, repair, replacement, or other action as appropriate. The basis for making thedetermination that a pipeline facility is hazardoug requiring corrective action, is set forth both inthe above referenced statute and 49 C.F.R. $190.233, a copy of which is enclosed.

Section 60ll2,and the regulations promulgated thereunder, provide for the issuance of aConective Action Order without prior opportunity for notice and hearing upon a finding thatfailure to issue the Order expeditiously will result in likely serious harm to life, property or the

environment. In such cases, an opportunity or a hearing will be provided as soon as practicableafter the issuance of the Order.

After evaluating the foregoing preliminary findings of fact,I find that the continued operation ofthis pipeline without corrective measures would be hazardous to life, property and theenvironment. Additionally, because of the location of the pipeline with respect to populated andenvironmental areas,and the uncertainties as to cause of the failure,I find that a failure to issueexpeditiously this Order, requiring immediate corrective action, would result in likely seriousharm to life, property, and the environment.

Accordingly, this Corrective Action Order mandating needed immediate corrective action isissued without prior notice and opportunity fgr a hearing. The terms and conditions of this Orderare effective upon receipt.

Within l0 days of receipt of this Order, the Respondent may request a hearing, to be held as soonas practicable, by notiffing the Associate Administrator for Pipeline Safety in writing, deliveredpersonally, by mail or by telecopy (at (202) 3664566). Any hearing will be held in Kansas City,Missouri, or Washington, D.C. on a date that is mutually convenient to OPS and the Respondent.

After receiving and analyzing additional data in the course of this investigation, OPS mayidentiff other longer term measures that need to be taken. Respondent will be notified of anyadditional measures required and amendment of this Order will be considered. To the extentconsistent with safety, Respondent will be afforded notice and an opportunity for a hearing priorto the imposition of any additional corrective measures.

Required Corrective Action

Pursuant to 49 U.S.C. $ 60112, I hereby order Enbridge to immediately take the followingconective actions with respect to its 34"- diameter Line 4 pipeline.

With respect to the Deer River Pump Station to the Superior Terminal (MP 1096.95)segment:

1. Do not operate this segment until completing Items 3 and 4.

2. Conduct a detailed metallurgical analysis of the pipe that failed on July 4,2002to determinethe cause and contributing factors. Submit to the Regional Director, Central Region, OPS, withinone week of its receipt by Enbridge Energy Company, lnc.

3. Submit a return-to-service written plan, with a schedule, to veriff the integrity of the line fromthe Deer River Pump Station to the Superior Terminal. The plan must provide integrity testingthat addresses all known or suspected factors in the failure, including if relevant:

A. Internal inspection tool surveys and remedial action. The type of internalinspection tools used shall be technologically appropriate for assessing thesystem based on the type of failure that occurred on July 4,20A2, wfthemphasis on identiffing and evaluating the following: l) anornaliesassociated with dents, gouges and grooves; 2) metal loss due to corrosion;3) the orientation of the longitudinal seam of the pipe;4) pipedeformation, and 5) longitudinal cracks, mill defects and stress corrosioncracking.

B. A detailed description of the inspection and repair criteria that will be usedin the field evaluation of the anomalies that are excavated. This is to includea description ofhow any defects are to be graded and the schedule for repairsor replacement.

C. An evaluation of the line for areas of damaged or disbonded coating,including but not limited to, a close-interval, current intemrpted, pipe-to-soil potential survey.

D. Integration of all available data from internal inspections, metallurgicalanalyses, and historical data, including repair and cathodic protectionrecords.

E. Hydrostatic pressure testing of line segment.

F. A schedule and means for providing the results and data for testingprograms performed to the Central Region.

4. Each element of the plan must be approved by the Director, Central Region, OPS, who mayprovide approvals incrementally. Implement the plan as approved.

5. Submit the plan to Director, Central Region, Offrce of Pipeline Safety, Research and SpecialPrograms Administration,90l Locust Street, Suite 462, Kansas City, MO 64106-2641.

6. The Director, Central Region, OPS, may grant an extension of time for compliance with anyof the terms of this order for good cause. A request for an extension must be in writing.

The procedures for the issuance of this Order are described in Part 190, Title 49, Code of FederalRegulations, $ 190.233, a copy of which is enclosed, is made part of this Order and describe theRespondents' procedural rights relative to this Order.

Failure to comply with this Order may result in the assessment of civil penalties of not more than$25,000 per day and in referral to the Attomey Genaal for appropriate relief in United States District

Court.

Associate Administratorfor Pipeline Safety

July 5,2002Date Issued

;lGit.',n*'"-=,*&;fslA

Reseorch ond Sp€clol progrorns Admlnlshollon, DOTcFR Ch. | (lGt-ooEditton)

each ,violation, aud if arty,i9n.

il a continuiag one,vloratlon consiltutes a sep-

rrson wlo is determtned togq ?4{ _standard or ord.erl.C. 6OtOg shall be subject toIty of tlot- to exceeil $00,000,ty,8baU be in addition tornaltles to-which such per_nbJect uuder paragmpd (a)fa.'son_shall be subject to a' under this section for thea,ny requirement of this

rnd aD -order issueil u.nfle1.279_or Sf90.2B:t if bobh vio_rsed otr the same act.Ua,1. _!Z_,_JSAO, as ametrded by, -FR,82341, Aus:. ?, l9B9; Amdt.515, Apr- 26, 1996; 61 FR,3S40S:

rcaanen t consideratione.iate Admiuistrator, Opg'il. pena,lty under this partrstqenrlg::,ture, circumstences aDd, violation;gree of the responilent'g

rcndeut's histofy of ptrior

ondent's ahiltty to Day'i faith W tteieipSnilntto achieve complianca;

rct on the re*lrqndentle;inue in business; analbher matters as justige

y.,!, tSW, as amended by'R r85r5, Apr.26, 1996l

nent of penalty.for pa5rments exceedingat of a civil penalty pfo_JBetl uDder this subpart

by certified check orontalniDg: the CpF Num-se) payable to ..U.S. De-lbansportation" to tihern Ad.ministration, Mikernautica.l Center, Fh*n-rs Division (AMZ-CZO),D, Oklahoma City, OKre transfer through .thee Comrnunications Sye-to the account of the

. Pa5rrnents exceediEg

s 190.233$0,0m muet be made by wlre trarsfer.Payments, or in the case of wire trang_fers, gotices of payment, must Ue-iiat10 flre Ctief, General AccountinsBrauch _(M-{6-2), Accouatins O;d_atlons Division, Offlce of tne

-SJc_

retarlr, room W, Depa,rtment ofTra.nsport-ation, 400 Sevinth St

""tSW, Washinston, DC 2059{t(b) Payment of a civil penalty as-

l9ryeg.in a flnal oroer iGuiO-;"d""$f90.213 or affimed. in a Oecisionln apetitlon for' reconsiderauon muct bemade wt-tbtn Zt days after receipt of th-rrnan order or decisiou, Failure to do sosill resul.t tn tbe iaitiadon ot cofiec_tion a,otio4 includlng tne accruaf oiG_fe:q.9sq and penalties, in acconlancewith 31 U.S,C. 3?l? aad 49 CFR, part g9.[Amdt. lgtF?, 6l ER, Zflrg:t, Jure B, 1996l

CRIMINA}, FE{AI,IIIDS

!f90*2,19 Cdoiralpen ftico ienerrffv.- (a) A-Ey peraon who willfully a.ndl{ngwingly violates a provlsion- of 49u.9.c. 6010l et seq. or any regulation oromer issued thereunder shall upon coa_victio! be subject for each offe-nse to auae of Dot more thaa ggs.flx) aDd im_prisonment for not morc +.h4n fiveyeaas, or both-

(b) /lny Ferson who willfrlly violatesa- regiulatlot or orrler under-this sub_*tpt_u" issued uader the autnority-if{9 U.S.C. 5101 et se{'. as aDplted to-off_:i919 .S.* gathering linea thal qpncoDvl-ction be subject for each offenseEo_ a file of not more thnn $0S,0(X), tm_prisonment for e term not to exci.O Syearsr, or both.,

(c) .An-y penron who willfully andKDowtngly injures or destroJrE, or at-t-erTpts b inJure or destroy, l"ir iot""-

-st1te traDsmission tacUity ;"--;;vinterstate ptpeline facility tas tUo-s-etrerms are defined iD 49 U.S.C. 60101 e,!!!.) s$tt,_-upon conviction. be ."ti".iror ea,ch olfenge to a fine of not morethau 025,flX), imprlsonment for a termtro_E_to erceed lb years, or both.,

(a) .Any persoD who wiluully and

51_lll"gtv defaces, damages, removea,:c::0rovs - any pipeliue. sign, risht{f-way.-marker, or marine buoy required!y-49 U.S.C. 60101 et seq. or 49 U.S.C.olul e_t 19q., or any regulation or orderrssued thereunder shall, upon consic_tion, be subject for eacl oA"ns" t; a

flne of uot more than $5,000, imprisol_ment for a term not to exceed i ;;;.or both.

(e)_ Ng person shaU be subject tocrtmiual penalties under Ba,ra8iapU f"Io! +.his Eection for violafloln ot-r.i r,lilulation and the violation ot a,nv -orAEr

iy_"-.-q- .lldel $teo.zl?, $leo.fue-;$,f90.&19 if botb violatiotrs

""" toeO ilthe sa,me act.

t{5 FR-A}[13, Mat. tt, 1980, as a,mended bvArndt. 190-2, 5{ F,R, sgr{{, Aug. ?, iatit-Ad;.pt"t, s FR'63zf0, Dec. E, regl ai"el. isri}€,;FR 18516, Atr. 26, fgg6l

t f90.28f Refenal for prrosecution

_ If ?n_ e_mployee of tho Besearch andSpeclal Programs *dmiaistr;ti; b;comes. of any actual or possibleacEvlGy subject to criminal penaltiesF4gr SfSO.U9, tbe emptoyee,."p""d-i;to the Offiee of the Chlef Counief-,-ne_.leaxgh and Special programs Adinitri;tration, tLS.- Department of Ita[sDo;_I39o-r,_ washinstoD, DC 20590. fteChief Couaeel refers tne report io O-fl5fs1 ilvestigation. Upon completion oi.Etl€ lDyeacigation a,trd u appropriate,the _Chlef Counsel reters hj-rep;rititbe Departmeut of Justicb ron cfrminilprosecutloa of the offender.tAmdt. 1s0€.61 I'R, 18515, Apr. 26, tSs6l

SPEcIFIC R.ELmI,

t f90-ZS$ Earqrdos" ireility otderc.-- (a)-Except as provided by paragraph,(b) of _'\ie section. if the Ais6ciat-, IalmPistrator, OpS flnde, a^fter ,""o"_able notice a,:rd opportunity for h;;;i"*rn accord w.itL pa,regnaph (c) of thiEsecGron, a.nd S190.211(a), a particularpipeline faeility to be ha,zard;G 6-liGor property, tJre Assocfab Adminii-trator, OPA shall iisue an order purau_ant to thls section r€quirtng.tUe owneroroperator of the facility to take cor_rective action. Corrective action mayin- ctr-de -srrspended or restr{cted o.E o"fthe faciltty, physical inspecttou, lesiiing, repair, replacement,-or otner ac_tion, as appopriate.^_(bl The Associate Administrator,OPS may waive the requirement

-io-i

n9tic9 and hear'ing under paragrrph i;;of this sectiou before is"uing -an-o"dX

pursuant to this sectiou wheu the Asso_-cjate -Administrator, OpS A'eterrninesthat the failure to do so would

"""ofiio15

49CfRCh. | 00-l-00 Edilon)s190.233the likolibooal of s€rious harm to life o: -(4)

Withtn 48 hours a'fter concluelon

ffi#tfn's""m ffifA ff; "-='fiffii"T"f-ilff""ffiT;? #order a.n oDlprtunttilr- roi learrog

""- ottiil"oOi'tton to tbo 4f6octato Almtn-

sooD as practtcable *tJi i-JGt6" "i

ilr"tor' oPs a"s-'to whetber or aot a

the order- tle proorstffitfi*"si4;h "l*""ab"t fapilttv order" ts rcquired'

6izir-si,ii;*;e..i'#"i:FJli:tyg";m*i!ffi "ffi'ff#fn*ior oDergtor'8 decision Eo^€xcrurno o-uw =;;Jt- nccordance tith paragrapb'an opportnnity for i"-""hs: lbe- Hrr- pnoceed in a€corda'ace r

nose of scch a po"t-oJilG"los d t* tai-th"tGl G) of thic scction' rf t'he

tne lssociato Ao-ior'Jt'laT-",-5pE t" l.tji"*ittt edmtnlsts&tffi' oPB flnds t'be

rleterzrtm whetber tui-f iuoore ""-

t""iW19 be Daca'rdorr to ltfe or lrrotF

main iu effect or tt--"otfoO"O or s-ul'- "ff-;i"

^*ociate Admintetrator' OPS

penrredrnaccord*."'ilH#rtii"rTt*iitl*f :;t";fg;3*T&Ett%K:E* ano !e11rns: --^ .-^--,- :","ii"#"TJ?"1?l"Y"S&ffil:*EIJrHJ*T,*#: ?It: *'qfr f"#rffi-eo-r.r"tn"to"' ops -iua'

Ehau bA s€wed io-iJ"o"a-"t "l* otir* t'nt allegatiols contained in

tffi &:H$is#'#ffir"":'"fr ffigp,'5"mt*"";ro#:ffi;"lil'Ti'#"s.ffi8"ff" "t!=E ii;" a;-F:i*. Admintstrator'circumBta,nc"" "oppo:iF:rg

t'he- issra'nce gi-d -"v finil' a pipeline facilitv to be

of & ..b.za,raou" diiili brder", and ;ii"ddt unoer-pi'ra*radr (a) of ttrts

orovtdtngl the osnerir operator.an ot> gection:

nortunitv for a heering' identttytns the ."4;- tt

"odg q"-- facts anil cir-

iime ara rocagon otrthe hoariner. . "#"t"t-qg{ !h: -]}IPci4te

Adnini+'

(r)A^nowrero"op"E-to""lec-tstoex-i#'t it 'oFsdetgrm'in'S6theparticularerclse his

"n*"-i;;T;;;i;"i"c fiiui; is L"'aroouE tri life or propert'v;

;fr;; rhi" l"-.,irg, by notifyirs the As- o",r, ,, rhe plrpline_ fadltty or a compo-

#r[tf*mmgrrril !:""fi oJii -ir"""6r-n"" to' cinstructed- or

gervice of the ooti#ffi'ora"a -.ioae

ij;t"t"o .ttb anv -eoulgment' mato-

pa.rasrrph rcn!| 9f ufii s€ctilon.or' l-*rf.gs]8""#*,HffiF*l'-mt*^R"""1ilfd"*? ;"d'"" ro rire- "". p-G"iv; ""r":" *:ten aotilicatfon wafves a,D owDer or oI> ffii"t""-fttory99 d9mo*trttes to the

eratot't oppormnrw for a-bearing: and Jiii'Jitlio" oI F Asoclato AdninlE-

allows tue asgoalte earninistrator' ;;;;-ois tlat''uneer tbe Da'rticular

ops to proc€oal t 'ill""

r "u""""e""1 iJii-,i"a.i*umit'arces lnvolved' such

facilttv ordet" ro'?tfttl*-titrt l'tT"rp-""t' -TIF'T*: or trcbnique iE

paragrrBus tol tn"oos;' ot;i thi" r".- ;1".,R;g"fitf;"S##rt"; ."u*t'lon.

(3) a besrrrxs uDder this sect,ion shall p""tis""p[ tol or trrie aectlon' t'he Asso-

be oresiltletl over bv a'n atton€y frorn fi;6-A-dttltistrotor' oPS shall con-

the Office of Cnfei Couns€f' Resea'rd si'ler' lf releva'nt:

aad slpcial rrrgrl-i-ra""ritistrauor, "'iii"il.

"u"t".t'"ti"t'lcs of the piDe

""tiod "" p,""raiff6rii.iar, end _co11 ni*"**-t=W*, ffi,H#r?$H

StF", :S*:" :ffJ rlr"iffi""o# ffi;ffi;;u;; . rr'. v"ib"r n*perties ( in-ciat presents tn" .u'JJ.fiffi;;r"i""d affitd itt ;;iitancc to coEoeion a'nd

in the notice i""o&-il-at" ihls soct'ian' l"t"tlJ"auo")' and' ltbe method of its

tte owner o" o#rffiilfai-"f-f"S"d -"Jlof*tot , constEoctlon or assem-

hasardous fsciutv mav sdbmit' 1nv I?l; blv;

evant informatloo oi naterials' call --i6

T.b" naturc of'lLe materials tran$-

wttnesaes anrl Bresent arguments- on p";1"4 &;A la:ilttv (includlng t'hetr

the icsue ot wneffii-oiiot *. ..trr ;iil""i"i and.ileteriorat'tve quallties)'

ardous facilitv "i;J

JoJJ u" ioo"a' il;;;A;"""" i" wbich such materials

t6

CIR Ctr. I (lFl-m Ed$ton) -

+b uours after co+elwl6.g und.er thls sectioDr theffiolal shall subtnlt a tec'rn to tlre Assoclate Aatrnib-)S as to whether or rot,afacility order" iE reqEileo-$ of bbe recomrneudatitn,;e Administrator, OPS g&allrccordance wtth paragtrdFhB(h) of this section. If the

dministrator, OPS flndp tftele bazardous to life or pf61i.societ,e Aalministfator, OFSr,n ordet in accordeaee wiGh. If thg Associate Adminis-I docs not flnd the faoillwlous to life or ProPeftY, theAdmiuietrator, OPS shallI allegafion+ contjalned in

and promptly notify thererator in writing bY serviced in S1911.5.

Associate Adminlstrator,inrl a pipeltne faeilltY to berrnder paragraph (a) of tlris

nder the facts and otf-r the Associate Admiuis-I deterFines the Partieularezardous to life or PropertY;

ptpeline factlitY or e Qaglpo-of nas been constrneted orrith a,ny equipmeDt, Etatc-bnique whlch the Assooiate,tor, OPS determines i8 h5E-life or propertY, unless t'hewolved demongtrateg tP ther of the Associate Adm!*-is-3 that, under the PagtieElarircumstances i[volved- sue'h, materlal, or tec,hnique iscus to life or Properby.rking' a tleterrnination under(d) of this seetion, the AsEo-rinistrator, OPS shaU con-.evant:charaeterlsties of 'the FiPeequiprrent used in the PiBe-y involved, incluiling its age'rer, plrysical Broperties (h-r resistance to corroeion a,ad.on), and the method of itsre, congtructioD or aasem-

ra,ture of the materials trans-suoh facility (including theirand deteriorative qualities)'rce in which such materials

Reseorch ond Sp€crot Prcgroms Admlnlsfrsllon, DOT I go.2g7

are transported, and the pressure re- to enforce orderg issued under this sec_quired for sucb tra,asportatioD; tlon by approprlate meals.(3) Tbe aapects of t&e areas in which

the plpeliue facility is located, in par-ticular the climatic and geologic condt-tisls (includtng soil characterisilcs)assoclated wlth such areas, anil thepopulation density and, population andsrowth patterus of sucb areas;

(4) Any recommendation of tJre Na-tional Atansportation Safety Boardissued ln conaectlou with a,ny inves-tigatioa conducted by the Board; and

(5) Such otber factors as the Asso-ciate Administrator, OPS may considerappropriate.

(f) lbe order shall coatain the fol-lowing lnformatlon:

(l) A ftniliag tihat the ptDeline facilityls hazand.ous to life or property.

(8) Thc rclevant faets which form thebasie for that lindiae.

(8) The legal basis for the order.(4) The nature and description of par-

tlcular eorrrective action required ofthe respoadent.

(5) Ibe date by whicb. the required.actlon must be taken, or completeda,nd, where a,ppropriate, the duration ofthe order.

(6) Ifa. bearing has been waived pur-sua,nt to paragraph (b) of this section,a statement th.at an opportu[ity for ahearingi is provided. 4t a partieular lo-ca,tion and at a certain time afterlssua,nce of the order

G) The Assoclate Administrator,OPS shall resciDd or suspend. L tla?rardous faciEty order wheriover the As-sociate Administrator. OpS determlnesthat the facility is no longer hazardousto life or property. When appropriate,however, such a resclssion or suspen-sioD may be accompanied by a notice ofprobable vlolation issued under!r90.2n.

(h) At any tlmo after an order issuedunder this section has become effec-tlve, tlre Asaociate Administrator, OpSmay Fequest t&e Attorney Geueral tobring a.n action for approBriate relief inaceordance with $ 190.295.

(i) Upon petttion by the AttorleyGeneral, the District Courts of theUnitod StateB shall bave Jurisdiction,

t45 FB AH$, Mar. 17, lgflt, as ameuded byAmdt. 19G.1, 56 FB 3r@0. Jrrly 9. 1991; Arnrri-lgG{, 61 ER, 185L5, Apr. 26, 1996l

1f90.286 tqftnctive aotiu.Wbenever it appears to the Associa.te

Ad.rnluistrator, OPS that a person hag.engaged, io engaged, or is about to en-Sage h any act or practiee consti-tuting a vlolation of any grovision of {gU.S.C. 60101 et seq. or a,ny regiuladoDsissued tbereunder, tho Adsrintstrator,RSPA, or tbe persoD to whom the au-thority has been delegated, may re-quest the Attorney General to brtug a,aactlon in tbe approDrlate U.S. DlstrictCourt for such relief as is necessaryr ora,pproprlate, tacludiag ma,ndatory orpmhibitive injunctlve relief, iatertmequitable rellef, anal pu[itive rtarnagesas provlded uader 49 U.B.C. fl)UX) and 49u.s.c.5128.

tAmdt. 190-6,6r Fn, 18516, ABr. 26, 19961

19OJ:17 Anendnrent of pkne or pFDce-durer.

(a) A Resional Director begtns a pr(Foeeding to determhe whether an opera-tor's glans or procedurea reqnirealund,er parts l$f, 19:t, lC6, ard lgg ot thissubc,[apter ar,e inad.equate to aosuresofe operation of a piBeliae facitity byissulag a notiee of a,rnendment. Tbe no-tice shall provide a,n oBlrorbunity for aheartag under 9190.211 of tbis part a.udshall speci.fy tlre alleged lnadequaciesand the propoged actloa for reviston ofthe plans or procedures. The notieeshall allow tbe operator i0 days afterrecelpt of the notice to submit writteBcomments or request a hearing. AfterconsideriDgi all material presented inwritlng: or at the hearing, .the Asso-ciate Admiaistrator, OPS shan deter-mine whether the pla.ns or proceduresare iaadequate as alleged and ord.er thereguired amendment if they are inad-equate, or withdraw the aotice if theyare not- In determiniug the aileqnacyof an operator's plans or procedures,the Associate Adrninistrator, OpS sbaltconsider:

(1) Relevant available pipeline safetydata;

(2) Whether tbe plans or procedureoare approprlate for tJle pa,rticula,r type

LT

You are here: EPA Home Compliance and Enforcement ECHO Search Data Search Results

Enforcement Case Report

For Public Release - Unrestricted Dissemination. Report Generated on 02/05/11

US Environmental Protection Agency - Office of Enforcement and Compliance Assurance

Case Number: 04-2003-5037

Case Name: Enbridge Energy Partners, L.P. (Oil SpillSEEP)

Case Type: Administrative - Formal Result of VoluntaryDisclosure?

No

Case Status: Closed Multi-media Case? No

Regional DocketNumber:

CWA-04-2003-5037 Enforcement Type: CWA 311B6B1 AO For Class IPenalty

Relief Sought: No Data Violations: Oil Spill Violation Under CWA/OPA

EnforcementOutcome:

Final Order With Penalty

Penalties:*EPA settles the vast majority of its enforcement actions and almost all of these cases are settled without an admission ofliability. The agreement to pay a penalty as part of a settllement does not necessarily reflect an admission of liability forenvironmental violations by the company.

Total Federal Penalty*Assessed or Agreed To

(not necessarily anadmission of liability)

Total State/LocalPenalty Assessed

Total SEP CostTotal Compliance

Action CostTotal Cost Recovery

$500 $63,000

Case Summary:

7/23/03 - OIL SPILL SEEP ISSUED, ASSESSING A PENALTY OF $500. PENALTY PAID. ON APRIL 27, 2003, RESPONDENT DISCHARGED APPROX. 20 BARRELS OF OIL FROM ITS FACILITY INTO OR UPON AN UNNAMED STREAM TRIBUTARY TO PERRY CREEK FLOWING INTO O'NEIL CREEK TRIBUTARY TO THE YAZOO RIVER AND ADJOININGSHORELINES.

Laws and Sections: Citations:

Law Sections Programs

CWA 311F Spills

Title Part Section

No Data Records Returned

Program Links:

FRS Number Program Program ID

110015748066 ICIS 5415093

Enforcement & Compliance History Online (ECHO)

Facilities:

FRS Number Facility Name Address City Name State Zip SIC CodesNAICCodes

110015748066 OIL SPILL-ENBRIDGEENERGY PARTNERSAT DEFOUR PETRO

SOUTH END TINSLEY OILFIELD

TINSLEY MS 39173

Defendants:

Defendant NameNamed inComplaint

Named inSettlement

ENBRIDGE ENERGY PARTNERS, L.P. Y Y

Case Milestones:

Event Actual Date

Final Order Issued 07/23/2003

Complaint/Proposed Order 07/23/2003

Enforcement Action Closed 07/23/2003

Pollutants:

Pollutant Name Chemical Abstract Number


EnforcementConclusion

1

Enforcement Conclusion Type: Administrative Penalty Order With or Without Injunctive Relief

Enforcement Conclusion Name: Enbridge Energy Partners, L.P. (Oil Spill SEEP)

Facilities in Settlement (FRS ID): 110015748066

Settlement Entered Date: 07/23/2003

Settlement Lodged Date: 07/23/2003

Enforcement Conclusion Dollar Amounts:

Federal PenaltyAssessed or Agreed To

State/Local PenaltyAssessed

SEP CostCompliance Action

CostCost Recovery

$500 $63,000

Pollutant Reductions:

Pollutant Annual Amount Units Media SEP or Comp

OIL 840 gal WAT C

Improvements in Reporting:

Pollutant Average Annual Value Units Media


Complying Actions:

Complying Action Type Text Description

Removal (CERCLA/RCRA/OPA/UST) NA

Supplemental Environmental Projects:

Categories Description


Click here, for a Detailed Facility Information.

This report was generated by the Integrated Data for Enforcement Analysis (IDEA)

system, which updates its information from program databases monthly. The data were

last updated: ICIS: 01/21/2011

Version 12/03/08

EPA Home | Privacy and Security Notice | Contact Us






Case Name: Enbridge Pipeline Texas Gathering LP


No



CWA-06-2004-4539 Enforcement Type: CWA 311B6B1 AO For Class IPenalty - Spill Expedited Settlem

Relief Sought: Penalty Violations: Oil Spill Violation Under CWA/OPA

EnforcementOutcome:








$500 $85,000

Case Summary:

Discharge of oil from its facility caused a sheen upon or discoloration of the surface of Strickland Branch and adjoining shorelines.



CWA 311B Spills

Title Part Section

40 CFR 22 311J

Program Links:


110018934947 ICIS 6681455

Facilities:

NAIC



110018934947 ENBRIDGE PIPELINETEXAS GATHERINGLP

1100 LOUISIANA HOUSTON TX 77002

Defendants:


Named inSettlement

Enbridge Pipeline Texas Gathering LP Y Y

Case Milestones:

Event Actual Date




Pollutants:




1


Enforcement Conclusion Name: Enbridge Pipeline Texas Gathering LP



Settlement Lodged Date: 08/20/2004





CostCost Recovery

$500 $85,000



OIL 462 Gals SWT C




Complying Actions:


Recordkeeping NA

Remediation (Treatmnt-ex-situ,in-situ;containment)

NA

Removal (CERCLA/RCRA/OPA/UST) NA

Training NA








Version 12/03/08


@U.S. Deportmentof TronsporlotionPlpellne ondHqzordous Moleriols sqfelyAdmlnlstrotion

WARNING LETTER

CERTIFIED MAIL - RETUR}{ RECEIPT REOUESTED

Januny23,2007

Mr. TerryL. McGillPresidentEnbridge Energy Parhrers, LP1100 L.ouisiana, Suite 3300Houston, TX77002

cPF 3-2007-1003w

Dear Mr. McGill:

On October 17 -20,2005 and November 20-21,2005, a representative of the Pipeline andHazardous Materials Safety Administration (PHMSA) pursuant to Chapter 601 of 49 UnitedStates Code inspected your records and facilities for Enbridge Energy's Vector Pipeline inIllinois and Indiana.

As a result of the inspection, it appears that you have committed a probable violation of thePipeline Safety Regulations, Title 49, Code of Federal Regulations. The item inspected and theprobable violation is:

1. S192.475 Internal corrosion control: General(b) Whenever any pipe is removed from a pipeline for any reason, the internalsurface must be inspected for evidence ofcorrosion. Ifinternal corrosion is found-

(1) The adjacent pipe must be investigated to determine the extent ofinternal corrosion:

Intemal inspection was performed, but not documented on the Crete Meter Station hot tapoerformed on 3 / | 8 / 2002.

901 Locust Street, Suite ,,{62Kansas City, MO 64106-2641o

Under 49 United States Code, fi 60122, you are subject to a civil penalty not to exceed $ 100,000for each violation for each day the violation persists up to a maximum of $1,000,000 for anyrelated series of violations. We have reviewed the circumstances and supporting documentsinvolved in this case, and have decided not to conduct additional enforcement hction or penaltyassessment proceedings at this time. We advise you to correct the item(s) identified in this letter.Be advised that failure to do so will result in Enbridge Energy being subject to additionalenforcement action.

No reply to this letter is required. If you choose to reply, in your correspondence please rgfer tocPF 3-2007-1003W.

Sincerely,

Ivan A. HuntoonDirector, Central RegionPipeline and Hazardous Materials Safety Administration

Volume 31 Number 27 July 7, 2006 Pages 5423-5504

School children's artwork is used to decorate the front cover and blank filler pages of the Texas Register. Teachers throughout the state submit the drawings for students in grades K-12. The drawings dress up the otherwise gray pages of the Texas Register and introduce students to this obscure but important facet of state government. The artwork featured on the front cover is chosen at random. Inside each issue, the artwork is published on what would otherwise be blank pages in the Texas Register. These blank pages are caused by the production process used to print the Texas Register. Texas Register, (ISSN 0362-4781, USPS 120-090), is published weekly (52 times per year) for $211.00 ($311.00 for first class mail delivery) by LexisNexis Matthew Bender & Co., Inc., 1275 Broadway, Albany, N.Y. 12204-2694. Material in the Texas Register is the property of the State of Texas. However, it may be copied, reproduced, or republished by any person without permission of the Texas Register director, provided no such republication shall bear the legend Texas Register or "Official" without the written permission of the director. The Texas Register is published under the Government Code, Title 10, Chapter 2002. Periodicals Postage Paid at Albany, N.Y. and at additional mailing offices. POSTMASTER: Send address changes to the Texas Register, 136 Carlin Rd., Conklin, N.Y. 13748-1531.

a section of the Office of the Secretary of State P.O. Box 13824 Austin, TX 78711-3824 (800) 226-7199 (512) 463-5561 FAX (512) 463-5569 http://www.sos.state.tx.us [email protected]

Secretary of State – Roger Williams Director - Dan Procter Staff Ada Aulet Leti Benavides Dana Blanton Belinda Bostick Kris Hogan Roberta Knight Jill S. Ledbetter Juanita Ledesma

GOVERNORAppointments.................................................................................5427

ATTORNEY GENERALRequest for Opinions .....................................................................5429Opinions.........................................................................................5429

EMERGENCY RULESTEACHER RETIREMENT SYSTEM OF TEXAS

MEMBERSHIP CREDIT34 TAC §25.21...............................................................................5431

PROPOSED RULESTEXAS FEED AND FERTILIZER CONTROLSERVICE/OFFICE OF THE TEXAS STATE CHEMIST

COMMERCIAL FEED RULES4 TAC §61.61.................................................................................5433

TEXAS BOARD OF PROFESSIONAL ENGINEERSENFORCEMENT

22 TAC §139.35.............................................................................5434

TEXAS REAL ESTATE COMMISSIONPRACTICE AND PROCEDURE

22 TAC §533.34, §533.35..............................................................5434

RULES RELATING TO THE PROVISIONS OF THETEXAS TIMESHARE ACT22 TAC §§543.3, 543.4, 543.12.....................................................5435

DEPARTMENT OF STATE HEALTH SERVICESMATERNAL AND INFANT HEALTH SERVICES

25 TAC §§37.51 - 37.67 ................................................................543725 TAC §§37.51 - 37.65 ................................................................5438

COMPTROLLER OF PUBLIC ACCOUNTSTAX ADMINISTRATION

34 TAC §3.692...............................................................................5442

TEXAS YOUTH COMMISSIONTREATMENT

37 TAC §87.1.................................................................................5442

TEXAS WORKFORCE COMMISSIONGENERAL ADMINISTRATION

40 TAC §800.81.............................................................................544440 TAC §800.151...........................................................................5445

JOB TRAINING PARTNERSHIP ACT RULES40 TAC §§805.101 - 805.106 ........................................................544640 TAC §§805.140 - 805.155 ........................................................5446

40 TAC §§805.160 - 805.165 ........................................................544640 TAC §§805.170 - 805.196 ........................................................544740 TAC §§805.200 - 805.232 ........................................................544740 TAC §§805.240 - 805.249 ........................................................544840 TAC §§805.280 - 805.298 ........................................................5448

WITHDRAWN RULESTEXAS ANIMAL HEALTH COMMISSION

PREMISES AND ANIMAL IDENTIFICATION4 TAC §§50.1 - 50.5 ......................................................................5451

TEXAS REAL ESTATE COMMISSIONGENERAL PROVISIONS

22 TAC §535.223...........................................................................545122 TAC §§535.232 - 535.238 ........................................................5451

ADOPTED RULESTEXAS HEALTH AND HUMAN SERVICESCOMMISSION

REIMBURSEMENT RATES1 TAC §355.781.............................................................................5453

PUBLIC UTILITY COMMISSION OF TEXASSUBSTANTIVE RULES APPLICABLE TO

TELECOMMUNICATIONS SERVICE PROVIDERS16 TAC §26.134.............................................................................5453

TEXAS REAL ESTATE COMMISSIONGENERAL PROVISIONS

22 TAC §535.61, §535.63..............................................................5458

TEXAS DEPARTMENT OF INSURANCE, DIVISION OFWORKERS’ COMPENSATION

GENERAL PROVISIONS APPLICABLE TO ALLBENEFITS28 TAC §126.14.............................................................................5458

TEXAS WORKFORCE COMMISSIONGENERAL ADMINISTRATION

40 TAC §§800.52, 800.71, 800.73 - 800.75 ..................................546840 TAC §800.73, §800.74..............................................................5468

RULE REVIEWProposed Rule ReviewCredit Union Department...............................................................5469

TABLES AND GRAPHICS........................................................................................................5471

IN ADDITION

TABLE OF CONTENTS 31 TexReg 5425

IN THIS ISSUE

Brazos Valley Council of GovernmentsNotice of Release of Request for Proposal for Financial Monitor-ing ..................................................................................................5475

Texas Building and Procurement CommissionRequest for Proposal ......................................................................5475

Coastal Coordination CouncilNotice and Opportunity to Comment on Requests for ConsistencyAgreement/Concurrence Under the Texas Coastal Management Pro-gram ...............................................................................................5475

Comptroller of Public AccountsCerti!cation of the Average Taxable Price of Gas and Oil............5476Notice of Request for Proposals ....................................................5476Notice of Request for Proposals ....................................................5477

Of!ce of Consumer Credit CommissionerNotice of Rate Ceilings..................................................................5477

Texas Commission on Environmental QualityAgreed Orders................................................................................5478Enforcement Orders .......................................................................5479Notice of Public Meeting on August 8, 2006, in Austin, Texas, Con-cerning the Proposed Cox Road Dump State Superfund Site........5483Notice of Water Quality Applications............................................5484Notice of Water Rights Application...............................................5486

Texas Ethics CommissionList of Late Filers...........................................................................5486

Texas Health and Human Services CommissionPublic Notice .................................................................................5487

Department of State Health ServicesNotice of Opportunity for Public Comment ..................................5487

Texas Department of InsuranceNotice of Application by a Small Employer Health Bene!t Plan Issuerto be a Risk-Assuming Health Bene!t Plan Issuer ........................5487Notice of Application by a Small Employer Health Bene!t Plan Issuerto be a Risk-Assuming Health Bene!t Plan Issuer ........................5488Third Party Administrator Applications ........................................5488

Texas Department of Insurance, Division of Workers’CompensationNotice of Public Hearing ...............................................................5488

Texas Lottery CommissionInstant Game Number 668 "Club Casino".....................................5488Instant Game Number 685 "Lucky Millions"................................5494

Texas Public Finance AuthorityRequest for Proposals for Arbitrage Compliance Services............5499

Public Utility Commission of TexasAnnouncement of Amendment to Application for State-Issued Certi!-cate of Franchise Authority............................................................5499Announcement of Amendment to Application for State-Issued Certi!-cate of Franchise Authority............................................................5500Notice of Application for Amendment to Certi!cated Service AreaBoundary........................................................................................5500Notice of Application for Amendment to Service Provider Certi!cateof Operating Authority...................................................................5500Notice of Application to Amend Certi!cated Service Area Boundariesin Wheeler County, Texas .............................................................5500

Texas Council on Purchasing from People with DisabilitiesRequest for Comment Regarding the Management Fee ...............5500Request for Comment Regarding the Services Performed by TIBH In-dustries Inc. ...................................................................................5501

Texas Residential Construction CommissionNotice of Applications for Designation as a "Texas Star Builder" 5501

Texas Department of TransportationAviation Division - Request for Proposal for Aviation Engineering Ser-vices ...............................................................................................5501

Texas A&M University, Board of RegentsRequest for Proposal ......................................................................5502

Texas Workforce CommissionNotice of Available Funds for Fiscal Year 2007 (FY’07) for Appren-ticeship Training Programs from the Texas Workforce Commission un-der the Texas Education Code, Chapter 133..................................5502

TABLE OF CONTENTS 31 TexReg 5426

AppointmentsAppointments for June 26, 2006Appointed to the Governor’s Criminal Justice Advisory Council, pur-suant to Executive Order RP41, for a term to expire at the pleasure ofthe Governor, Senator Florence Shapiro of Plano.Appointed to the Governor’s Criminal Justice Advisory Council, pur-suant to Executive Order RP41, for a term to expire at the pleasure ofthe Governor, Representative Brian McCall of Plano.Appointed to the Governor’s Criminal Justice Advisory Council, pur-suant to Executive Order RP41, for a term to expire at the pleasure ofthe Governor, Representative Jim McReynolds of Lufkin.Appointed to the Deep East Texas Regional Review Committee for aterm to expire January 1, 2008, Martin Nash, Tyler County Commis-sioner of Woodville (replacing Allen Sumner).Appointed to the Deep East Texas Regional Review Committee fora term to expire January 1, 2008, Truman Ray Dougharty, NewtonCounty Judge of Newton (replacing Charles Glover).Appointed to the Deep East Texas Regional Review Committee for aterm to expire January 1, 2008, Willie E. Kitchen, Houston CountyCommissioner of Crockett (replacing R. C. Von Doenhoff).

Appointed to the Texas State Board of Acupuncture Examiners for aterm to expire January 31 , 2011, Raymond J. Graham of El Paso (re-placing Claire Smith of Dallas whose term expired).Appointed to the Texas Mutual Insurance Company Board of Directorsfor a term to expire July 1, 2011, Delia M. Reyes of Dallas (replacingGeorge Wesch of New Braunfels whose term expired).Appointed to the Lavaca-Navidad River Authority for a term to expireMay 1, 2011, David Martin Muegge of Edna (replacing Willard Ul-bricht of Edna whose term expired).Appointed to the Lavaca-Navidad River Authority for a term to expireMay 1, 2011, Kay W. Simons of Edna (replacing Robert Myers of Ednawhose term expired).Appointed to the Lavaca-Navidad River Authority for a term to ex-pire May 1, 2011, Paul Koop Little!eld of Edna (replacing Sharla VeeStrauss of LaWard whose term expired).Rick Perry, GovernorTRD-200603477

GOVERNOR July 7, 2006 31 TexReg 5427

Request for OpinionsRQ-0500-GARequestor:Shirley J. Neeley, Ed.D.Commissioner of EducationTexas Education Agency1701 North Congress AvenueAustin, Texas 78701-1494Re: Financing mechanisms by which school districts may enter intolease-purchase agreements (Request No. 0500-GA)Briefs requested by July 24, 2006For further information, please access the website atwww.oag.state.tx.us. or call the Opinion Committee at (512)463-2110.TRD-200603467Stacey SchiffDeputy Attorney GeneralOf ce of the Attorney GeneralFiled: June 27, 2006

OpinionsOpinion No. GA-0439The Honorable Jeff WentworthChair, Committee on JurisprudenceTexas State SenatePost Of!ce Box 12068Austin, Texas 78711-2068Re: Whether a city building of!cial may rely on a professional engi-neer’s seal and certi!cation that a plat or plan complies with the city’sbuilding codes (RQ-0426-GA)S U M M A R YSection 1001.402, Occupations Code, does not create rights and obli-gations regarding a building of!cial’s duties that are imposed by other

laws, including city ordinances. Under section 1001.402, a buildingof!cial may accept a plat or plan only if it is sealed by a professionalengineer but may "rely" on a professional engineer’s seal only for therepresentations that the plat or plan was prepared by a professional en-gineer who endeavored to comply with all federal, state, and local re-quirements.Opinion No. GA-0440Mr. Michael W. Behrens, P.E.Executive DirectorTexas Department of Transportation125 East 11th StreetAustin, Texas 78701-2483Re: Installation of cameras on state highway rights-of-way to enforcecompliance with traf!c-control signals (RQ-0427-GA)S U M M A R YThe Texas Department of Transportation may install cameras on statehighway rights-of-way to monitor compliance with traf!c-control sig-nals for the purpose of enforcing traf!c laws on state highways. Thedepartment may also permit local authorities to install camera equip-ment in connection with traf!c-control signals on state highway rights-of-way for the same purpose.Opinion No. GA-0441The Honorable Kip AverittChair, Committee on Natural ResourcesTexas State SenatePost Of!ce Box 12068Austin, Texas 78711-2068Re: Authority of a municipality to lease its oil, gas and mineral propertyand the terms under which it may do so (RQ-0432-GA)S U M M A R YWith regard to a municipality’s lease of its mineral property, subchapterA of chapter 71 of the Natural Resources Code irreconcilably con"ictswith section 253.005 of the Local Government Code; and as a result,section 253.005, being the more speci!c enactment, prevails.

ATTORNEY GENERAL July 7, 2006 31 TexReg 5429

For further information, please access the website atwww.oag.state.tx.us or call the Opinion Committee at (512)463-2110.TRD-200603450Stacey SchiffDeputy Attorney GeneralOf ce of the Attorney GeneralFiled: June 27, 2006

31 TexReg 5430 July 7, 2006 Texas Register

TITLE 34. PUBLIC FINANCEPART 3. TEACHER RETIREMENTSYSTEM OF TEXASCHAPTER 25. MEMBERSHIP CREDITSUBCHAPTER B. COMPENSATION34 TAC §25.21The Board of Trustees (Board) of the Teacher Retirement Sys-tem of Texas (TRS or the system) adopts on an emergency basisamendments to §25.21 concerning compensation subject to de-posit and credit. The amended rule provides guidance to publicschool employers regarding the appropriate reporting of com-pensation and the appropriate application of contribution rates tocompensation. The amended rule is adopted on an emergencybasis pursuant to §2001.034 of the Government Code, which al-lows TRS to adopt an emergency rule if a requirement of state orfederal law requires adoption of the rule on fewer than 30 days’notice. The amendments are also adopted in accordance with§2001.006 of the Government Code, which allows TRS to adoptrules and take other administrative action in preparation for theimplementation of legislation that has become law but has nottaken effect in application. The amended section as proposedfor permanent adoption will be published in another issue of theTexas Register.The emergency amendments to the rule allow TRS to implement,in a manner consistent with plan quali!cation requirements,House Bill 1, 79th Legislature, Third Called Session (2006)(House Bill 1), which amends §822.201, Government Code.House Bill 1 became law immediately, to be applied beginningwith the 2006 - 2007 school year. The amended rule is adoptedon an emergency basis to enable TRS to continue to operate asa quali!ed retirement plan and to provide communications thatare necessary and appropriate to ensure proper compensationreporting as TRS members report for work in the 2006 - 2007school year, with some employees reporting to work as earlyas July 2006. Further, the amended rule is adopted on anemergency basis to provide employers and members affectedby House Bill 1 necessary, appropriate, and timely guidanceto use in making informed budget, programming, and otherdecisions before the start of the 2006 - 2007 school year, whichis imminent.House Bill 1 amends Chapter 22, Subchapter D, EducationCode to create a new "health care supplementation" electionto replace the existing compensation supplementation pro-gram. House Bill 1 requires eligible active employees to electin writing, each school year, whether to designate a portionof the employee’s compensation to be used as health caresupplementation. House Bill 1 amends the TRS plan provisionof §822.201(c)(10), Government Code to provide that any

compensation designated as health care supplementation isexcluded from salary and wages for TRS purposes, subjectto an annual limit of $1,000. It is the policy of the State ofTexas, as expressed in §825.506, Government Code that theprovisions of the TRS retirement bene!t plan be construed andadministered in a manner that the retirement system’s bene!tplan will be considered a quali!ed plan under §401(a) of theInternal Revenue Code of 1986 (26 U.S.C. §401). Section825.506, Government Code authorizes the Board to adopt rulesthat modify the retirement plan to the extent necessary for theretirement system to be a quali!ed plan and provides that therules adopted by the Board are to be considered part of the plan.In enacting House Bill 1, the legislature expressed its intent thatTRS take whatever action necessary under §825.506 so that theTRS retirement bene!t plan remains a quali!ed plan under theInternal Revenue Service Code. H.J. OF TEX., 79th Leg., 3dC.S. 331 (2006) (statement of legislative intent by Representa-tive Chisum and Representative Eiland).The emergency amendments to §25.21 are reasonable modi!-cations to the extent necessary for the plan to be a quali!ed plan.TRS contributions will be required on any amounts designatedfor the health care supplement as speci!ed under House Bill1, thereby eliminating an employee’s ability to individually electvarying amounts to contribute to the TRS plan. The amendmentsalso protect the employer pickup of TRS member contributionsas established under §825.409, Government Code, which pro-vides, in conformity with the Internal Revenue Code, that em-ployees do not have the option of choosing to receive the con-tributed amounts directly instead of having them paid by the em-ployer to the retirement system.In addition, the rule amendments conform §25.21 to the lan-guage House Bill 1 uses in amending §822.201(c)(11), Govern-ment Code to distinguish the superseded compensation supple-mentation program from the new health care supplementationprogram created under House Bill 1.Statutory Authority: In addition to §2001.006 and §2001.034,Government Code, as described above, the amended section isadopted on an emergency basis under the following: §825.102,Government Code, which authorizes the Board to adopt rulesfor the administration of the funds of the retirement system;§825.506(a), Government Code, which authorizes the Boardto adopt rules that modify the TRS’s retirement bene!t plan tothe extent necessary for the retirement system to be a quali!edplan and states that the rules adopted by the Board are to beconsidered part of the plan.Cross-reference to Statute: House Bill 1, 79th Legislature, ThirdCalled Session (2006), which amends Chapter 22, SubchapterD, Education Code, relating to compensation supplementationfor school district employees, and §822.201, Government Code,relating to TRS member compensation; and §825.506, Govern-

EMERGENCY RULES July 7, 2006 31 TexReg 5431

ment Code, which requires that the provisions of the TRS retire-ment plan be construed and administered in a manner that theretirement system’s bene!t plan will be considered a quali!edplan under §401(a) of the Internal Revenue Code of 1986 (26U.S.C. §401).§25.21. Compensation Subject to Deposit and Credit.

(a) - (b) (No change.)(c) The following types of monetary compensation are to be

included in annual compensation:(1) - (6) (No change.)(7) a merit salary increase made under Education Code,

§51.962; [and](8) amounts deducted from regular pay for a quali!ed

transportation bene!t under Government Code §659.202; and[.](9) compensation designated as health care supplementa-

tion by an employee under Subchapter D, Chapter 22, Education Code,as amended by House Bill 1, 79th Legislature, Third Called Session.This paragraph modi!es the provision of the retirement plan describedin §822.201, Government Code, as amended by House Bill 1, 79th Leg-islature, Third Called Session, to the extent necessary for the retirementsystem to be a quali!ed plan.

(d) The following are excluded from annual compensation:(1) - (9) (No change.)

(10) active employee health coverage or compensationsupplementation or any other amount received by an employee un-der former Article 3.50-8, Insurance Code; former Chapter 1580,Insurance Code; Subchapter D, Chapter 22, Education Code, as thatsubchapter existed on January 1, 2006; or Rider 9, page III-39, Chapter1330, Acts of the 78th Legislature, Regular Session, 2003 (the GeneralAppropriations Act), regardless of whether the employee receives theamount in cash, uses it for payment of health care coverage, or uses itfor any other option available by law;

(11) - (12) (No change.)(e) - (f) (No change.)

This agency hereby certi!es that the emergency adoption hasbeen reviewed by legal counsel and found to be within theagency’s legal authority to adopt.

Filed with the Of!ce of the Secretary of State on June 20, 2006.TRD-200603386Ronnie G. JungExecutive DirectorTeacher Retirement System of TexasEffective Date: June 20, 2006Expiration Date: October 17, 2006For further information, please call: (512) 542-6438


TITLE 4. AGRICULTUREPART 3. TEXAS FEED AND FERTIL-IZER CONTROL SERVICE/OFFICE OFTHE TEXAS STATE CHEMISTCHAPTER 61. COMMERCIAL FEED RULESSUBCHAPTER H. ADULTERANTS4 TAC §61.61The Texas Feed and Fertilizer Control Service/Of!ce of theTexas State Chemist proposes amendments to Texas Adminis-trative Code, Title 4, Part 3, Commercial Feed Rules, §61.61,concerning Poisonous or Deleterious Substances in subsection(a)(6) and (7). The amendment aligns the Of!ce of the TexasState Chemist’s policy guidelines with those published by theFood and Drug Administration (FDA).Dr. Tim Herrman, State Chemist and Director, Of!ce of the TexasState Chemist, concludes that for the !rst !ve-year period therewill be no !scal implications for state or local government as aresult of enforcing or administering the amended rule.Dr. Herrman has also concluded that the public bene!t as a re-sult of enforcing this amended rule will be to align Of!ce of theTexas State Chemist policy with FDA action levels and guidancedocuments, clarify blending authority, and provide guidance tograin handlers, processors, farmers and risk management insti-tutions pertaining to the disposing of the disposal of rain contain-ing >500 parts per billion (ppb) and oilseed, processed grain, andoilseed meal containing >300 contaminated feed ingredients thatexceed 500 parts per billion (ppb) a"atoxin. There is an antici-pated cost to small businesses of $15.90 per acre to dispose ofgrain using chopping and disking. The Of!ce identi!ed that 1.3%of the 2005 crop (based on a state-wide survey) would incur thiscost.Comments to the proposal may be submitted to Dr. Herrmanby mail at Of!ce of the Texas State Chemist, P.O. Box 3160,College Station, Texas 77841-3160; by fax at (979) 845-1389 orby e-mail at [email protected] amendments are proposed under Texas Agriculture CodeChapter 141, §141.004 which provides Texas Feed and Fertil-izer Control Service/Of!ce of the Texas State Chemist with theauthority to promulgate rules relating to the distribution of com-mercial feeds.The Texas Agriculture Code Chapter 141 of the Texas Commer-cial Feed Control Act, Subchapter A, §141.002 is affected by theproposed amendments.§61.61. Poisonous or Deleterious Substances.

(a) Poisonous or deleterious substances include, but are notlimited to, the following:

(1) - (5) (No change.)(6) grain, oilseeds, processed grain and oilseed meals con-

taining a"atoxin B1, B2, G1, G2 above 20 parts per billion (ppb) in-dividually or total except that with proper labeling as approved by theOf!ce of the Texas State Chemist as follows: #50 ppb [Service lessthan 50ppb] may be distributed when destined for wildlife; #100 ppb[less than 100ppb] may be distributed when destined for breeding cattleand breeding goats not used in production of milk for human consump-tion, breeding swine, mature poultry, and sheep; #200 ppb [less than200ppb] may be distributed when destined for !nishing swine (morethan 100 lbs. body weight); #300 ppb [less than 300ppb] may be dis-tributed when destined for !nishing feed lot [feedlot] cattle in con!ne-ment; grain containing >300 to #500 ppb requires a blending permitissued by the Of!ce of the Texas State Chemist; a"atoxin >500 ppb ingrain and >300 ppb in oilseed, processed grain, and oilseed meal maynot enter commerce and a record of disposition shall a disposal planmust be submitted to the Of!ce of the Texas State Chemist;

(7) grain, oilseeds, processed grain, and oilseed meal con-taining fumonisin above 5 parts per million (ppm) except that withproper labeling as approved by the Of!ce of the Texas State Chemistand targeted for animal species as follows: #20 ppm for swine andcat!sh not to exceed 50% of diet; #30 ppm for breeding ruminants,breeding poultry and breeding mink not to exceed 50% of diet; #60ppm for ruminants >3 months old being raised for slaughter, and minkbeing raised for pelt production not to exceed 50% of diet; #100 ppmfor poultry being raised for slaughter not to exceed 50% of diet; allother species or classes of livestock and pet animals #10 ppm not toexceed 50% of diet except equids and rabbits which should not exceed5 ppm and 20% of diet; >100 ppm requires a blending permit issued bythe Of!ce of the Texas State Chemist [Service less than 15ppm may bedistributed when destined for !nishing swine (more than 100 lbs. bodyweight); less than 50ppm may be distributed when destined for feedlotcattle].

(b) - (d) (No change.)This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 20, 2006.TRD-200603374Dr. Tim HerrmanState Chemist and DirectorTexas Feed and Fertilizer Control Service/Of ce of the Texas StateChemistEarliest possible date of adoption: August 6, 2006For further information, please call: (979) 845-1121

PROPOSED RULES July 7, 2006 31 TexReg 5433

TITLE 22. EXAMINING BOARDSPART 6. TEXAS BOARD OFPROFESSIONAL ENGINEERSCHAPTER 139. ENFORCEMENTSUBCHAPTER C. ENFORCEMENTPROCEEDINGS22 TAC §139.35The Texas Board of Professional Engineers proposes anamendment to §139.35, relating to Sanctions and Penalties.The proposed amendment will clarify the sanctions associatedwith rule modi!cations made to §137.57 and §137.63 by addingsuggested sanctions for care and diligence and misrepresenta-tion by being misleading.The proposed rule change adds a suggested sanction for failureto exercise care and diligence in the practice of engineering anda suggested sanction to the misrepresentation of issuing an oralor written assertion in the practice of engineering that are mis-leading.C.W. Clark, P.E., Director of Compliance and Enforcement forthe board, has determined that for the !rst !ve-year period theproposed amendment is in effect there are no !scal implica-tions for the state or local government as a result of enforcingor administering the section as amended. Mr. Clark has de-termined that there is no additional cost to the agency or to li-censees. There is no effect to individuals required to complywith the amendment as proposed. There is no effect to small ormicro businesses.Mr. Clark also has determined that for the !rst !ve years theproposed amendment is in effect, the public bene!t anticipatedis that a clari!cation of the rule is made and recommended sanc-tions are clearly re"ected for each violation.Comments may be submitted no later than 30 days after the pub-lication of this notice to C.W. Clark, P.E., Director of Complianceand Enforcement, Texas Board of Professional Engineers, 1917IH-35 South, Austin, Texas 78741 or faxed to his attention at(512) 440-5715.The amendment is proposed pursuant to the Texas EngineeringPractice Act, Occupations Code §1001.202, which authorizesthe board to make and enforce all rules and regulations and by-laws consistent with the Act as necessary for the performance ofits duties, the governance of its own, proceedings, and the reg-ulation of the practice of engineering in this state.No other statutes, articles or codes are affected by the proposedamendment.§139.35. Sanctions and Penalties.

(a) (No change.)(b) The following is a table of suggested sanctions the board

may impose against license holders for speci!c violations of the Act orboard rules:Figure: 22 TAC §139.35(b)

(c) - (e) (No change.)

This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 21, 2006.TRD-200603388Dale Beebe Farrow, P.E.Executive DirectorTexas Board of Professional EngineersEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 440-7723

PART 23. TEXAS REAL ESTATECOMMISSIONCHAPTER 533. PRACTICE AND PROCEDURE22 TAC §533.34, §533.35The Texas Real Estate Commission (TREC) proposes amend-ments to §533.34, concerning Disapproval of an Application for aLicense or Registration and §533.35, concerning Revocation orOther Action against a License or Registration. The amendmentto §533.34 clari!es that notice of disapproval will not be providedto a sponsoring broker of an applicant for a salesperson licenseas such licenses are issued as inactive with no sponsoring bro-ker. The amendment to §533.35 clari!es that a hearing concern-ing a revocation or other disciplinary action against a licenseewill be held at a time and place designated by the Commis-sion except in cases involving a violation of §1101.652(a)(3) or(b), Texas Occupations Code. In those cases, the hearing shallbe held pursuant to §1101.657(d) if the licensee requests. Theamendments are proposed in connection with TREC’s on-goingreview of its rules and are generally intended to update and toclarify the rules to be consistent with Chapter 1101, OccupationsCode, and recent revisions thereto.Loretta R. DeHay, General Counsel, has determined that for the!rst !ve-year period the amendments are in effect there will be no!scal implications for the state as a result of enforcing or admin-istering the amended sections. There are no anticipated !scalimplications for units of local government. There is no antici-pated impact on small businesses, micro businesses or local orstate employment as a result of implementing the amended sec-tions.Ms. DeHay also has determined that for each year of the !rst!ve years the amendments as proposed are in effect the publicbene!t anticipated as a result of enforcing the amended sectionswill be consistency with the underlying statutory authority for therule. There is no anticipated economic cost to persons who arerequired to comply with the proposed amendments.Comments on the proposal may be submitted to Loretta R. De-Hay, General Counsel, Texas Real Estate Commission, P.O. Box12188, Austin, Texas 78711-2188.The amendments are proposed under Texas Occupations Code,§1101.151, which authorizes the Texas Real Estate Commissionto make and enforce all rules and regulations necessary for theperformance of its duties and to establish standards of conductand ethics for its licensees in keeping with the purposed andintent of the Act to insure compliance with the provisions of theAct.


The statute affected by this proposal is Texas Occupations Code,Chapter 1101. No other statute, code or article is affected by theproposed amendments.§533.34. Disapproval of an Application for a License or Registra-tion.Notice and hearings relating to disapproval of an application for a li-cense or registration issued by the Texas Real Estate Commission aregoverned by the statute under which the application was!led and by theAdministrative Procedure Act, Texas Government Code, §§2001.001et seq. The commission also will notify a [sponsoring broker or] spon-soring inspector of the disapproval, but a sponsoring broker or spon-soring inspector is not required to request a hearing or to be named oradmitted as a party in the proceeding before the commission. A hearingpursuant to this section will be held at a place designated by the com-mission. Failure to request a hearing timely waives the right to judicialappeal, and the determination becomes !nal and unappealable.§533.35. Revocation or Other Action against a License or Registra-tion.A license or registration issued by the Texas Real Estate Commissionmay not be revoked or other action taken against the license or reg-istration except after notice and opportunity for hearing pursuant tostatutory obligation and these sections. If a real estate salesperson isa respondent, the commission also will notify the salesperson’s spon-soring broker of the hearing. If an apprentice inspector or real estateinspector is a respondent, the commission also will notify the sponsor-ing professional inspector of the hearing. The hearing will be held ata time and place designated by the commission, except as provided by§1101.657, Texas Occupations Code, for a violation of §1101.652(a)(3)or (b) Pursuant to §1101.657, [that] upon the written request of a re-spondent licensed as a Texas real estate broker or[,] real estate salesper-son[, or inspector, or registered as an easement or right-of-way agent,]!led within !ve days after receipt of the notice of hearing, the hearingwill be held in the county where the principal place of business of therespondent is maintained. If the respondent is a licensee or registrantwho does not reside within this state, the hearing may be held in anycounty within this state.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 20, 2006.TRD-200603376Loretta R. DeHayGeneral CounselTexas Real Estate CommissionEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 465-3900

CHAPTER 543. RULES RELATING TO THEPROVISIONS OF THE TEXAS TIMESHAREACT22 TAC §§543.3, 543.4, 543.12The Texas Real Estate Commission (TREC) proposes amend-ments to §543.3, concerning Fees, §543.4, concerning Forms,and proposes new §543.12, concerning Renewal of Registra-tion. The amendments and new rule are proposed to implementrevisions to the Texas Timeshare Act, Chapter 221, Texas Prop-erty Code enacted during the 79th Legislative Session, Regular

Session, by House Bill 1045. The amendments provide for re-newal requirements for registered timeshare properties, includ-ing a renewal form, and renewal fees. The amendments alsopropose to amend the Abbreviated Registration of a TimesharePlan to request additional information from the developer aboutthe jurisdiction in which the plan is already registered and to !xsome typographical errors in the form.Loretta R. DeHay, General Counsel, has determined that for the!rst !ve-year period the amendments and new section are in ef-fect there will be no !scal implications for the state as a resultof enforcing or administering the amendments and new section.There are no anticipated !scal implications for units of local gov-ernment. There is no anticipated impact on small businesses,micro businesses or local or state employment as a result of im-plementing the amendments and new section.Ms. DeHay also has determined that for each year of the !rst!ve years the amendments and new section as proposed are ineffect the public bene!t anticipated as a result of enforcing theamendments and new section will be clari!cation of the renewalrequirements for registered timeshare properties. There is noanticipated economic cost to persons who are required to complywith the proposed amendments and new section.Comments on the proposal may be submitted to Loretta R. De-Hay, General Counsel, Texas Real Estate Commission, P.O. Box12188, Austin, Texas 78711-2188.The amendments and new section are proposed under the TexasProperty Code, §221.024, which authorizes the Texas Real Es-tate Commission to prescribe and publish forms and adopt rulesnecessary to carry out the provisions of The Texas TimeshareAct.The statute which is affected by this proposal is the Texas Prop-erty Code, Chapter 221. No other statute, code or article is af-fected by the proposed amendments and new rule.§543.3. Fees.

(a) - (d) (No change.)(e) A developer of a registered timeshare plan shall pay a fee

of $100 to renew a registration.(f) To reinstate an expired registration of the timeshare plan, a

developer shall pay, in addition to the fee of $100 to renew a timeshareplan, an additional fee of $25 for each month the registration has beenexpired.§543.4. Forms.

(a) - (b) (No change.)(c) The Texas Real Estate Commission adopts by reference

Application for Abbreviated Registration of a Timeshare Plan, FormTSR 3-1 [3-0], approved by the commission in 2006 [2005]. This docu-ment is published by and available from the Texas Real Estate Commis-sion, P.O. Box 12188, Austin, Texas 78711-2188, www.trec.state.tx.us.

(d) - (g) (No change.)(h) The Texas Real Estate Commission adopts by reference

Application to Renew the Registration of a Timeshare Plan, Form TSR8-0, approved by the Commission in 2006. This document is publishedby and available from the Texas Real Estate Commission, P.O. Box12188, Austin, Texas 78711-2188, www.trec.state.tx.us.

(i) [(h)] Applicants may reproduce the forms adopted by thecommission from printed copies and by computer. With the exceptionof the changes to the forms which are permitted by this section, theapplicant shall reproduce the text of the forms verbatim and the spacing,


length of blanks, fonts and placement of text on the page must appearto be substantially similar to that used by the commission in the printedversion of the form.

(j) [(i)] When using the forms, the applicant must comply withthe following:

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

(2) The forms must be printed on letter sized ("8 1/2 by11") paper.

(3) Whether a form is reproduced by computer or ispreprinted by the applicant, the applicant may allocate such spacefor narrative responses where noted as the applicant deems necessaryor may attach additional pages containing narrative responses to theapplication.

(4) The applicant may renumber the pages of a form to cor-respond with any changes made necessary due to adjusting the spacefor narrative responses.

(5) The applicant may not alter the text of a promulgatedapplication form.§543.12. Renewal of Registration.

(a) If a timeshare plan was registered prior to January 15, 2006,the registration expires on the last day of the month 24 months after itslast anniversary date prior to January 15, 2006. For timeshare plansregistered on or after January 15, 2006, the registration expires on thelast day of the month 24 months after the date the plan was registered.

(b) A developer of a timeshare plan may renew the registrationfor a 2-year period by completing an Application to Renew the Regis-tration of a Timeshare Plan, Form TSR 8-0, and paying the appropriate!ling fee.

(c) Three months prior to the expiration of a registration, thecommission shall mail a renewal application form to the developer’slast known permanent mail address as shown in the commission’s com-puterized records.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 20, 2006.TRD-200603377Loretta R. DeHayGeneral CounselTexas Real Estate CommissionEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 465-3900

TITLE 25. HEALTH SERVICESPART 1. DEPARTMENT OF STATEHEALTH SERVICESCHAPTER 37. MATERNAL AND INFANTHEALTH SERVICESSUBCHAPTER D. NEWBORN SCREENINGPROGRAM

The Executive Commissioner of the Health and Human ServicesCommission, on behalf of the Department of State Health Ser-vices (department), proposes the repeal of §§37.51 - 37.67, andnew §§37.51 - 37.65, concerning the Newborn Screening Pro-gram.BACKGROUND AND PURPOSEThe repeal and new sections are necessary to comply withHouse Bill (HB) 790, 79th Legislature, Regular Session, 2005,codi!ed at Health and Safety Code, §§33.004, 33.011, 33.014,33.031, 33.032, and 33.034, mandating the expansion of new-born screening in Texas by November 1, 2006. The repeal andnew sections are necessary for readability, due to substantialediting.Government Code, §2001.039, requires that each state agencyreview and consider for readoption each rule adopted by thatagency pursuant to the Government Code, Chapter 2001 (Ad-ministrative Procedure Act). Sections 37.51 - 37.67 have beenreviewed and the department has determined that reasons foradopting the sections continue to exist because rules on thissubject are needed. However, §37.63, relating to Calculationof Financial Participation Obligation, is being repealed becauseit will be addressed in program policy. Also, §37.67, relating toNondiscrimination Statement, is being repealed as redundant,because federal and state law, as well as department policy, al-ready speci!cally prohibit discrimination in each of the areas ad-dressed by §37.67.SECTION-BY-SECTION SUMMARYNew §§37.51 - 37.65 include editorial changes, provide clari!-cation to the rules, add new de!nitions, and where applicable,change the department name from the legacy name to the newagency name. The new §37.51 changes "Texas Department ofHealth" to "Department of State Health Services," and adds newlanguage to address abnormal screens. The new §37.52 addsnew de!nitions, clari!es other de!nitions, and renumbers de!ni-tions to appear in alphabetical order. The new §37.53 expandsthe list of disorders for which newborn screens are required.The new §37.54 changes the terminology "screening tests" to"screens." The new §37.55 clari!es provider and parental re-sponsibilities. The new §37.56 clari!es timelines for collectingand submitting blood specimens. The new §37.57 adds a ref-erence to "the department designee" concerning screening pro-cedures. The new §37.58 clari!es provider and local health de-partment roles in providing follow-up on abnormal screens. Thenew §37.59 adds language to clarify the roles of the two pro-grams that are addressed: Children With Special Health CareNeeds and Newborn Screening Program. The new §§37.60 -37.62 change language to re"ect the speci!c bene!ts being ad-dressed for speci!c populations, eligibility requirements, and theapplication process. The new §§37.63 - 37.65 concern denial ofapplication, advisory bodies and task forces, and con!dentialityof information.FISCAL NOTEJann Melton-Kissel, Section Director, Specialized Health Ser-vices, has determined that for each year of the !rst-!ve year pe-riod the sections are in effect, there will be !scal implications asa result of administering the rules as proposed. These changeswill result in Medicaid costs at the Health and Human ServicesCommission of $1,347,567 in General Revenue and $2,059,682federal funds in 2008 and $1,347,567 in General Revenue and$2,059,682 Federal Funds in subsequent years. Revenue fromprivate-pay sources will total $2,725,883 in each year beginning


in 2008. The remaining costs for tests will be paid by the depart-ment, totaling $5,259,375 in 2007 (costs for all tests done in !rstyear for validation and testing purposes) and $879,368 in sub-sequent years.There will be no effect on local government.SMALL AND MICRO-BUSINESS IMPACT ANALYSISMs. Melton-Kissel has also determined that there are no antici-pated costs to small businesses or micro-businesses (other thanthose that submit specimens for testing) required to comply withthe sections as proposed. This was determined by interpreta-tion of the rules that small businesses and micro-businesses willnot be required to alter their business practices in order to com-ply with the sections. There are no anticipated economic coststo persons (other than those that submit specimens for testing)who are required to comply with the sections as proposed. Thereis no anticipated negative impact on local employment.PUBLIC BENEFITIn addition, Ms. Melton-Kissel has determined that for each yearof the !rst !ve years the sections are in effect, the public will ben-e!t from adoption of the sections. The public bene!t anticipatedas a result of enforcing or administering the sections is the avail-ability of newborn screens previously unavailable.REGULATORY ANALYSISThe department has determined that this proposal is not a"major environmental rule" as de!ned by Government Code,§2001.0225. "Major environmental rule" is de!ned to mean arule the speci!c intent of which is to protect the environmentor reduce risk to human health from environmental exposureand that may adversely affect, in a material way, the economy,a sector of the economy, productivity, competition, jobs, theenvironment or the public health and safety of a state or asector of the state. This proposal is not speci!cally intended toprotect the environment or reduce risks to human health fromenvironmental exposure.TAKINGS IMPACT ASSESSMENTThe department has determined that the proposed rules donot restrict or limit an owner’s right to his or her property thatwould otherwise exist in the absence of government action and,therefore, do not constitute a taking under Government Code,§2007.043.PUBLIC COMMENTComments on the proposal may be submitted to David R. Mar-tinez, Newborn Screening Branch, Mail Code 1918, Departmentof State Health Services, 1100 West 49th Street, Austin, Texas78756. Comments will be accepted for 30 days following publi-cation of the proposal in the Texas Register.LEGAL CERTIFICATIONThe Department of State Health Services General Counsel,Cathy Campbell, certi!es that the proposed rules have beenreviewed by legal counsel and found to be within the stateagencies’ authority to adopt.

25 TAC §§37.51 - 37.67(Editor’s note: The text of the following sections proposed for repealwill not be published. The sections may be examined in the of!ces ofthe Department of State Health Services or in the Texas Register of!ce,Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

STATUTORY AUTHORITYThe proposed repeals are authorized by Health and SafetyCode, §§33.002(b) and 33.032(b), which require the depart-ment to adopt rules necessary to carry out the program; andGovernment Code, §531.0055, and Health and Safety Code,§1001.075, which authorize the Executive Commissioner of theHealth and Human Services Commission to adopt rules andpolicies necessary for the operation and provision of health andhuman services by the department and for the administration ofHealth and Safety Code, Chapter 1001.The proposed repeals affect the Health and Safety Code, Chap-ters 33 and 1001; and Government Code, Chapter 531.§37.51. Purpose.§37.52. De!nitions.§37.53. Conditions for Which Newborn Screening Tests Are Re-quired.§37.54. Exemption from Screening.§37.55. Responsibilities of Persons Attending a Newborn.§37.56. Blood Specimen Collection for Required Screening Tests.§37.57. Screening Test Procedures To Be Used.§37.58. Follow-up and Recordkeeping on Positive Screens.§37.59. Coordination with Children With Special Health Care NeedsServices Program.§37.60. Scope of Newborn Screening Program Services.§37.61. Eligibility Requirements.§37.62. Application Process.§37.63. Calculation of Financial Participation Obligation.§37.64. Denial of Application; Modi!cation, Suspension, Termina-tion of Program Services.§37.65. Advisory Bodies and Task Forces.§37.66. Con!dentiality of Information.§37.67. Nondiscrimination Statement.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 26, 2006.TRD-200603435Cathy CampbellGeneral CounselDepartment of State Health ServicesEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 458-7111 x6972


25 TAC §§37.51 - 37.65STATUTORY AUTHORITYThe proposed new sections are authorized by Health and SafetyCode, §§33.002(b) and 33.032(b), which require the depart-ment to adopt rules necessary to carry out the program; andGovernment Code, §531.0055, and Health and Safety Code,§1001.075, which authorize the Executive Commissioner of theHealth and Human Services Commission to adopt rules andpolicies necessary for the operation and provision of health andhuman services by the department and for the administration ofHealth and Safety Code, Chapter 1001.The proposed new sections affect the Health and Safety Code,Chapters 33 and 1001; and Government Code, Chapter 531.§37.51. Purpose.These sections describe the Newborn Screening Program administeredby the Department of State Health Services. Each newborn delivered inthe state must be subjected to two screens for multiple disorders to iden-tify the newborn that may be at risk of having phenylketonuria (PKU),other heritable diseases, or hypothyroidism. Abnormal screens are re-ported to the newborn’s health care practitioner. These sections alsoidentify program services which are available to individuals who havea con!rmed diagnosis of a heritable disease or hypothyroidism and es-tablish eligibility criteria, !nancial participation requirements and pro-cedures for the orderly provision of the identi!ed services to eligibleindividuals.§37.52. De!nitions.The following words and terms, when used in these sections, shall havethe following meanings, unless the context clearly indicates otherwise.

(1) 21-hydroxylase de!ciency--An inherited disorder,which if not treated, may lead to serious illness and death.

(2) Amino acid disorder--An inherited disorder, which ifnot treated, may cause mental retardation or death.

(3) Biotidinase de!ciency--An inherited disorder, which ifnot treated, may cause mental retardation, hearing loss, poor musclecontrol, or death.

(4) Bona !de resident--A person who:(A) is physically present within the geographic bound-

aries of the state;(B) has an intent to remain within the state;(C) maintains an abode within the state (i.e., house or

apartment, not merely a post of!ce box);(D) has not come to Texas from another country for the

purpose of obtaining medical care, with the intent to return to the per-son’s native country;

(E) does not claim residency in any other state or coun-try; and

(i) is a minor child residing in Texas whose parent,managing conservator, or guardian is a bona !de resident;

(ii) is a person residing in Texas who is the legallydependent spouse of a bona !de resident; or

(iii) is an adult residing in Texas, including an adultwhose parent, managing conservator, or guardian is a bona !de residentor who is his/her own guardian.

(5) Commissioner--The commissioner of the Departmentof State Health Services or his successor.

(6) Department--The Department of State Health Servicesor its successor.

(7) Diagnostic test--A medical evaluation to con!rm re-sults of a screen.

(8) Fatty acid oxidation disorder--An inherited disorder,which if not treated, may cause mental retardation or death.

(9) Galactose-1-phosphate uridyltransferase de!-ciency--An inherited disorder, which if not treated, may causefatal infection or mental retardation.

(10) Health care practitioner--A registered nurse recog-nized as an advanced practice nurse by the Board of Nurse Examiners,a physician assistant licensed by the Texas State Board of PhysicianAssistant Examiners, a midwife who has met licensing requirementsand standards of the Texas Midwifery Board, or a physician who islicensed by the Texas State Board of Medical Examiners.

(11) Heritable disease--An inherited disease that may resultin mental or physical retardation or death.

(12) Hypothyroidism--A disorder, which if not treated,leads to mental and physical retardation.

(13) Newborn--A child through 30 days of age.(14) Newborn screen--One or more tests to identify a new-

born who may be at risk of having phenylketonuria, other heritablediseases, or hypothyroidism.

(15) Organic acidemia--An inherited disorder, which if nottreated, may cause mental retardation or death.

(16) Physician--A person licensed to practice medicine bythe Texas State Board of Medical Examiners.

(17) Provider--The hospital, birthing facility, health carepractitioner, midwife, clinic, or laboratory that collects and submits thenewborn screen blood specimen.

(18) Satisfactory specimen--A blood specimen obtained byuniform absorption of capillary blood onto a !lter paper target suchthat the target is completely !lled with blood and soaked through fromback to front of the paper. The blood specimen must be completely drybefore shipping and be submitted with the accurate and fully completeddemographic information sheet.

(19) Screen--One or more tests that identify an increasedrisk for a disorder, which must be con!rmed by diagnostic tests. Ascreen may produce false positive or false negative results and shouldnot be relied upon as "diagnostic".

(20) Sickling hemoglobinopathy, including sickle cell ane-mia, hemoglobin S/C disease, and sickle betathalassemia--An inheriteddisorder which, if not treated, may cause fatal infection and interruptedblood supply to vital organs.

(21) Specimen collection form--The specimen collectionform consists of a patient demographic information sheet (original andcarbonless copy) with an attached !lter paper collection device.

(22) Specimen collection kits.(A) Single screen specimen collection kit--a single de-

partment-approved bar-coded, quality controlled !lter paper collectiondevice, demographic information sheet, and envelope which may beused to submit a newborn’s blood specimen for the !rst or secondscreen, repeat or follow-up testing.


(B) Two screen specimen collection kit--two con-nected, department approved bar-coded, quality controlled !lter papercollection devices, demographic information sheets and envelopeswhich allows the !rst and second screens to be linked. The kit isdesigned so that the two collection devices are easily separated suchthat when the !rst specimen is collected, the remaining collectiondevice and an envelope will be given to the mother to take to the !rstdoctor’s visit for collection of the second newborn screening bloodspecimen.§37.53. Disorders for Which Newborn Screens Are Required.Except as permitted in §37.54 of this title (relating to Exemption fromScreens), all newborns delivered in Texas shall receive two screens forthe following disorders:

(1) galactose-1-phosphate uridyltransferase de!ciency;(2) sickling hemoglobinopathies;(3) 21-hydroxylase de!ciency;(4) hypothyroidism;(5) amino acid disorders, including argininosuccinic

acidemia, citrullinemia, homocystinuria, maple syrup urine disease,phenylketonuria, and tyrosinemia type I;

(6) fatty acid oxidation disorders, including carnitine up-take defect, long-chain hydroxyacyl-CoA dehydrogenase de!ciency,medium-chain acyl-CoA dehydrogenase de!ciency, trifunctionalprotein de!ciency, and very-long-chain acyl-CoA dehydrogenasede!ciency;

(7) organic acidemias, including 3-methylcrotonyl-CoAcarboxylase de!ciency, beta-ketothiolase de!ciency, glutaric acidemiatype I, hydroxymethylglutaric aciduria, isovaleric acidemia, methyl-malonic acidemia (Cbl A and Cbl B forms), methylmalonic acidemia(mutase de!ciency form), multiple carboxylase de!ciency, and propi-onic acidemia; and

(8) biotinidase de!ciency, upon the decision of the Com-missioner to include this disorder.§37.54. Exemption from Screens.A newborn may not be screened if the parent, managing conservator,or guardian objects to the screens because the screens con"ict with thereligious tenets or practices of the parent, managing conservator, orguardian.§37.55. Responsibilities of Providers and Parent, Managing Conser-vator, or Guardian.

(a) The nonphysician attending the delivery of a newborn orany physician attending a newborn within the !rst 30 days of life hasthe primary responsibility for causing the screens to be performed ac-cording to these sections and ensuring that a satisfactory blood spec-imen is submitted to the department or the department’s designee ona properly completed specimen collection form obtained from the de-partment. When the baby is an inpatient in the hospital, the hospitalshall ensure that the appropriate screens are done. When the baby isnot in the hospital, the health care practitioner who attends the newbornoutside of the hospital shall be responsible for causing the appropriatescreens to be done.

(b) A capillary blood specimen shall be collected by absorbingthe blood onto target circles on a !lter paper collection device. Otherbody "uids, or blood from the placenta, umbilical cord, or mother arenot acceptable.

(c) Blood specimens must air-dry on a "at surface for at leastfour hours and must be mailed to the department within 24 hours after

collection. Directions for handling blood specimens must be followedto avoid cross-contamination.

(d) The department will determine the method of collection ofthe second screen. If the department determines the appropriate methodof collection is a two-part collection kit, the provider of the !rst screenshall give the second specimen collection kit to the parent, managingconservator, or guardian with instructions to take the kit to a health careprovider for collection of the newborn’s second blood specimen at oneto two weeks of age.

(e) Providers shall ensure that the identifying and demo-graphic information sheet is complete and accurate when submittedto the department. Identifying information shall include contactinformation for the newborn’s health care practitioner to ensure abilityto contact the practitioner in case of an abnormal screen.§37.56. Blood Specimen Collection for Required Screens.

(a) The blood specimen is to be obtained after 24 hours of ageand before 48 hours of age. If the newborn is discharged from the hos-pital or birthing facility before the above criteria are met, the bloodspecimen must be obtained immediately prior to discharge. A secondblood specimen is to be collected between one and two weeks of ageby the newborn’s health care practitioner in accordance with §37.55of this title (relating to Responsibilities of Providers and Parent, Man-aging Conservator, or Guardian). If program data demonstrate to theagency’s satisfaction that the second screen is no longer necessary as amethod of detecting false negative results from the !rst screen, the com-missioner may discontinue the requirement for submission of the sec-ond screen. The commissioner’s decision shall be announced throughmeans deemed appropriate by the commissioner to notify health carepractitioners, providers, and other interested persons. Prior to the ef-fective date of the announced change, the agency’s newborn screeningeducational information will be revised to re"ect the deletion of thesecond screen requirement.

(b) A repeat blood specimen, which may or may not be the sec-ond screen, shall be obtained as instructed by the Newborn ScreeningProgram to verify results or if the initial blood specimen was unsatis-factory.

(c) Transfusions can cause invalid results. The !rst screenshould be collected prior to the !rst transfusion if possible. Transfusednewborns must be retested two to four weeks following transfusion.§37.57. Screening Procedures To Be Used.Analysis of the blood specimens for the required screens must be per-formed by the department or the department designee. The depart-ment or the department designee is responsible for identifying and im-plementing proper laboratory procedures for the screens required in§37.53 of this title (relating to Disorders for Which Screens Are Re-quired).

(1) The analysis of initial blood specimens and the analysisof the follow-up blood specimens are included in these responsibilities.

(2) The criteria for referring a newborn with an abnormalscreen are dependent upon the laboratory procedures employed by thedepartment or the department’s designee in performing the analysis ofthe blood specimens. Therefore, the department is responsible for iden-tifying and implementing the referral criteria based upon the laboratoryprocedures selected by the department for the analysis.

(3) Upon completion of the laboratory determination by thedepartment, laboratory results shall be mailed to the provider who sub-mitted the blood specimen. The department shall establish a writtenpolicy for communicating the laboratory results.§37.58. Follow-up and Record Keeping on Abnormal Screens.


(a) The department shall maintain an active system of fol-low-up for suspected cases of each disorder for which screens arerequired.

(b) Health authorities, public health departments, public healthdistricts, and the department’s health service regions may provide fol-low-up and other needed assistance for individuals at risk from the dis-orders for which screens are required as requested by the department.

(c) The provider submitting the newborn screening specimenshall assist the department with follow-up of individuals at risk for thedisorders listed in §37.53 of this title (relating to Disorders for WhichNewborn Screens are Required).

(d) The department will identify pediatric specialists in thestate who are available to provide consultation to health care practi-tioners regarding the diagnosis and management of newborns with ab-normal screens. When appropriate, Newborn Screening Program staffshall provide the health care practitioner with the names of consultantsin the health care practitioner’s geographic area. The program mayprovide information about the newborn and the abnormal screen to thepediatric specialists who consult with the department.

(e) Health care practitioners shall report to the department allcon!rmed cases of the disorders for which required screens are per-formed that have been detected by other mechanisms.

(f) The department will collect epidemiologic data from infor-mation in the specimen collection kits and other sources to derive inci-dence/prevalence rates for the disorders for which screens are required.The data may enable the department to identify high-risk populationgroups, with the ultimate goal of preventing severe sequelae of the dis-orders.

(g) The department may follow up with a con!rmed casethrough periodic data collection from the health care practitioner orparent, managing conservator, or guardian.

(h) The department shall maintain a registry of children bornin Texas who have been diagnosed as having one of the disorders forwhich screens are required.§37.59. Coordination with Children With Special Health Care NeedsProgram.

(a) All newborns and other individuals under the age of 21years who have an abnormal screen may be referred, if !nancially el-igible, to the department’s Children With Special Health Care Needs(CSHCN) Program.

(b) An individual who is determined to be eligible for CSHCNservices shall be given approved services through that program, includ-ing special dietary formula, unless access to CSHCN health care bene-!ts is restricted according to §38.16 of this title (relating to Proceduresto Address CSHCN Services Program Budget Alignment). An individ-ual who does not meet CSHCN eligibility criteria shall be referred tothe Newborn Screening Program for a determination of eligibility forprogram bene!ts.§37.60. Newborn Screening Bene!ts.In cooperation with the individual’s health care practitioner and withinthe limits of funds appropriated by the legislature for this purpose, theNewborn Screening Program shall provide dietary supplements, medi-cations, vitamins, con!rmatory testing and follow-up care at no cost orreduced cost to individuals approved for program bene!ts who have adisorder detected through the program, and con!rmed with appropriatediagnostic tests, that have been interpreted by a physician recognizedby the department as a specialist in metabolic diseases. Dependent onavailable funding, program bene!ts will be limited to speci!c popu-lations of individuals diagnosed with an inheritable disorder included

in those screened by the department and whose income is at or below350% of the federal poverty income guideline. Dependent on avail-able funding, program bene!ts will be available to the following pop-ulations in this order:

(1) children 0-2;(2) children 3-5;(3) children 6-21;(4) pregnant women;(5) women of child bearing age; and(6) adults (female or male).

§37.61. Eligibility Requirements.

(a) Except as otherwise provided for in these sections, to beeligible to receive bene!ts from the Newborn Screening Program, anindividual must:

(1) have a con!rmed diagnosis of a disorder screened bythe program;

(2) be a bona !de resident of the state;(3) have a family income that is within the !nancial guide-

lines set by these sections;(4) if required, make !nancial participation payments in a

timely manner;(5) upon request from the program provide updated medi-

cal, !nancial, and residency information and/or documentation; and(6) have a parent, managing conservator, or guardian agree

to abide by the requirements in these sections if the individual is aminor.

(b) An individual is not eligible to receive bene!ts from theprogram at no cost or reduced cost to the extent that the individual orthe parent, managing conservator, or other person with a legal obliga-tion to support the individual is eligible for some other bene!t, such asMedicaid, Children With Special Health Care Needs (CSHCN), Chil-dren’s Health Insurance Plan (CHIP) or private insurance, that wouldpay for all or part of the services.§37.62. Application Process.

(a) To be considered for newborn screening bene!ts, a com-plete application for admission to the program must be !led annuallywith the program by mailing to the following address: NewbornScreening Program, Health Screening and Case Management Unit,Mail Code 1918, Department of State Health Services, 1100 West 49thStreet, Austin, Texas 78756.

(b) The application must be signed by one of the following asappropriate:

(1) an adult individual seeking services;(2) the parent, managing conservator, or guardian of a mi-

nor; or(3) the guardian of an adult under a temporary, limited or

general guardianship.(c) An application signed with a mark must be attested to be-

fore a notary public.(d) A complete application for newborn screening bene!ts

shall consist of the following:(1) a properly completed and signed application form;


(2) a statement from the individual or, if the individual is aminor, from the individual’s parent, managing conservator, or guardianthat the individual is a bona !de resident of the state and if requested bythe Newborn Screening Program, documentation of residency status,and proof of income as established in the Newborn Screening Programpolicy; and

(3) information on any other bene!t to which the applicant,recipient, or person with a legal obligation to support the applicant orrecipient may be entitled.

(e) An application shall be deemed incomplete for any one ofthe following reasons:

(1) failure to provide all information requested in the ap-plication form;

(2) lack of supporting documents;(3) failure to provide documentary evidence requested by

the program, including documentation to verify residency or !nancialdata; or

(4) lack of, or improper signatures.(f) An application will be reviewed and will be:

(1) denied if eligibility requirements are not met;(2) returned, if incomplete, with the de!ciencies noted to

the individual or if the individual is a minor or a ward, to the individ-ual’s parent(s), managing conservator(s), or guardian as is appropriate,for completion and resubmission; or

(3) approved if all criteria are met.(g) An individual’s eligibility date shall be considered to be

the date on which the program determines that the application is sub-stantially complete.§37.63. Denial of Application; Modi!cation, Suspension, Termina-tion of Program Bene!ts.

(a) An individual applying for or receiving bene!ts from theNewborn Screening Program may have his/her application denied orhis/her bene!ts modi!ed, suspended, or terminated for any of the fol-lowing reasons.

(1) Bene!ts may be denied, modi!ed, suspended, or termi-nated if:

(A) the individual does not have a con!rmed diagnosisof a disorder for which program bene!ts are available;

(B) the individual is not a bona !de resident of the state;(C) the individual fails or refuses to provide the periodic

information regarding residency and !nancial status when requested bythe program.

(2) Bene!ts may be denied, modi!ed, suspended, or termi-nated if:

(A) the individual submits an application form or anydocument required in support of the application or continued partici-pation in the program which contains an intentional misstatement offact which is material to the program’s determination that the individ-ual is eligible for program bene!ts; or

(B) program funds are curtailed.(b) An individual applying for or receiving bene!ts from the

Newborn Screening Program may not appeal or request an administra-tive hearing concerning adjustments made by the program in povertyincome guidelines to conform to federal poverty income guidelines or

adjustments in the type and amount of program bene!ts available whensuch adjustments are necessary to conform to budgetary limitations.

(1) An individual applying for program bene!ts will be no-ti!ed in writing if their application has been denied. The noti!cationwill outline the reasons for denial.

(2) An individual receiving newborn screening bene!tswill be noti!ed if the bene!ts are to be modi!ed, suspended, orterminated. Noti!cation will be by certi!ed mail to the most recentaddress known to the program.

(3) Within 30 days after receiving notice as speci!ed inparagraph (2) of this subsection, the individual, or if the individual is aminor, the individual’s parent, managing conservator, or guardian, mayappeal the program’s decision to deny, suspend, modify, or terminatethe services to the department and request an administrative hearingbefore the department. Appeals and request for hearings must be inwriting and sent to the following address by certi!ed mail: NewbornScreening Program, Health Screening and Case Management Unit,Mail Code 1918, Department of State Health Services, 1100 West49th Street, Austin, Texas 78756. Failure to respond will be deemed awaiver of the appeal and of the opportunity for a hearing.

(4) Appeals and administrative hearings will be conductedin accordance with the department’s fair hearing rules, §§1.51-1.55 ofthis title (relating to Fair Hearing Procedures).§37.64. Advisory Bodies and Task Forces.

The commissioner may appoint both technical and lay advisory com-mittees to assist in the administration of the Newborn Screening Pro-gram. The commissioner may also convene special task forces to as-sist the program and advisory committees with technical expertise orto address special emotional, social, educational, !nancial, or otherproblems which arise in families having a family member with a con-!rmed diagnosis of phenylketonuria, other heritable disease, or hy-pothyroidism.§37.65. Con!dentiality of Information.

(a) All information required to be submitted by these sectionsmay be veri!ed by the department with or without notice to any in-dividual applying for or receiving newborn screening bene!ts, or tothe providers of program bene!ts. Except as necessary for timely andeffective referral for diagnostic services or to ensure appropriate man-agement for individuals with con!rmed diagnoses, the information re-ceived by the program in the administration of the program is con!-dential to the extent authorized by law.

(b) Information may be disclosed in summary, statistical, orother forms, which do not identify particular individuals.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 26, 2006.TRD-200603436Cathy CampbellGeneral CounselDepartment of State Health ServicesEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 458-7111 x6972

TITLE 34. PUBLIC FINANCE


PART 1. COMPTROLLER OF PUBLICACCOUNTSCHAPTER 3. TAX ADMINISTRATIONSUBCHAPTER Z. COASTAL PROTECTIONFEE34 TAC §3.692The Comptroller of Public Accounts proposes an amendmentto §3.692, concerning de!nitions, reporting requirements andamount of fee. This section is being amended pursuant to Sen-ate Bill 1863, 79th Legislature, 2005. Senate Bill 1863 changedlanguage to reduce the rate of the fee and reduce the maximumand minimum thresholds for the Coastal Protection Fund (Natu-ral Resources Code, §40.155(a), (b)).John Heleman, Chief Revenue Estimator, has determined thatfor the !rst !ve-year period the amendment will be in effect, therewill be no signi!cant revenue impact on the state or units of localgovernment.Mr. Heleman also has determined that for each year of the !rst!ve years the amendment is in effect, the public bene!t antici-pated as a result of enforcing the amended rule will be in pro-viding correct information to fee payers and collectors regardingtheir responsibilities. This rule is adopted under Tax Code, Ti-tle 2, and does not require a statement of !scal implications forsmall businesses. There is no signi!cant anticipated economiccost to individuals who are required to comply with the proposedamendment.Comments on the proposal may be submitted to Bryant K.Lomax, Manager, Tax Policy Division, P.O. Box 13528, Austin,Texas 78711-3528.The amendment is proposed under Tax Code, §111.002 and§111.0022, which provides the comptroller with the authority toprescribe, adopt, and enforce rules relating to the administra-tion and enforcement of the provisions of Tax Code, Title 2, andtaxes, fees, or other charges which the comptroller administersunder other law.The amendment implements Natural Resource Code, §40.155.§3.692. De!nitions, Reporting Requirements and Amount of Fee[(Natural Resources Code, §40.155 and §40.156)].

(a) (No change.)(b) Reporting requirements.

(1) Each marine terminal operator, or owner of crude oilwho is registered with the comptroller to report the fee, shall !le acoastal protection fee report with the comptroller stating the number ofbarrels of crude oil and condensate off-loaded from vessels or loadedonto vessels at marine terminals located in Texas. The volume shall bedetermined by tank tables compiled to show 100% of the full capacityof the tank or by use of industry standard automatic measuring equip-ment, and shall be corrected to 60 degrees Fahrenheit [F]. The volumemay be reduced by a reasonable allowance for basic sediment and wa-ter as determined by tests generally recognized by the industry to beaccurate.

(2) - (3) (No change.)(c) Amount of fee.

(1) Except as provided in paragraphs (2) and (4) of this sub-section, the rate of the fee will be $.01333 [$.02] per barrel of crude oilor condensate.

(2) When the balance in the coastal protection fund hasreached $20 [$25] million, the commissioner of the General Land Of-!ce will certify that fact to the comptroller. The fee will not be collectedor required to be paid on or after the !rst day of the second month fol-lowing the commissioner’s certi!cation to the comptroller.

(3) If the commissioner of the General Land Of!ce certi!esto the comptroller that the balance of the coastal protection fund hasfallen below $10 [$14] million, the fee will again be due at the rate of$.01333 [$.02] per barrel.

(4) The rate of the fee will be $.04 per barrel of crude oilor condensate when:

(A) the commissioner of the General Land Of!ce certi-!es to the comptroller that:

(i) the balance in the coastal protection fund is lessthan $20 [$25] million; and

(ii) - (iii) (No change.)(B) The fee will not be collected or required to be paid

on or after the !rst day of the second month following the commis-sioner’s certi!cation to the comptroller that the balance in the coastalprotection fund has reached:

(i) $20 [$25] million; or(ii) (No change.)

(5) (No change.)(d) (No change.)(e) Penalty. Penalties due on delinquent fees and reports will

be imposed as provided by [the] Tax Code, §111.061.(f) Interest. Interest due on delinquent fees will be imposed as

provided by [the] Tax Code, §111.060.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 20, 2006.TRD-200603372Martin CherryChief Deputy General CounselComptroller of Public AccountsEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 475-0387

TITLE 37. PUBLIC SAFETY AND CORREC-TIONSPART 3. TEXAS YOUTH COMMISSIONCHAPTER 87. TREATMENTSUBCHAPTER A. PROGRAM PLANNING37 TAC §87.1The Texas Youth Commission (the commission) proposes anamendment to §87.1, concerning Case Planning. The amend-


ment to the section will establish new schedules for reviewingand updating individual case plans which correspond to eachyouth’s classi!cation and placement restriction level. Theamendment allows longer intervals between case plan updatesfor youth in high restriction placements.Robin McKeever, Assistant Deputy Executive Director for Finan-cial Support, has determined that for the !rst !ve-year period theamendment is in effect there will be no !scal implications for stateor local government as a result of enforcing or administering theamended section.Neil Nichols, General Counsel, has determined that for eachyear of the !rst !ve years the amendment is in effect the pub-lic bene!t anticipated as a result of enforcing the amended sec-tion will be enabling case managers to produce quality individ-ual case plans and spend more time with each youth. Therewill be no effect on small businesses. There is no anticipatedeconomic cost to persons who are required to comply with theamendment as proposed. No private real property rights are af-fected by adoption of this amendment.Comments on the proposal may be submitted within 30 daysof the publication of this notice to DeAnna Lloyd, Chief ofPolicy Administration, Texas Youth Commission, 4900 NorthLamar, P.O. Box 4260, Austin, Texas 78765, or e-mail [email protected] amendment is proposed under the Human Resources Code,§61.076, which provides the commission with the authority torequire a child to participate in correctional training and activities.The proposed amendment implements the Human ResourcesCode, §61.034.§87.1. Case Planning.

(a) (No change.)(b) De!nitions.

(1) - (2) (No change.)(3) Primary Service Worker (PSW)--the generic title given

to persons at each TYC program who are assigned the primary respon-sibility for the case work for individual youth and for the administrationof the case management standards. The three (3) types of PSW are:

(A) Institutional PSW [Primary Service Worker(PSW)]--person assigned the primary responsibility for casework andadministration of the case management standards in a high restrictionTYC operated facility or contract placement.

(B) Transitional PSW [Primary Service Worker(PSW)]--person assigned the primary responsibility for casework andadministration of the case management standards in a TYC operatedhalfway house or a medium restriction residential contract facility.

(C) (No change.)(c) Case Planning.

(1) An ICP will be developed with and for each youth bythe PSW. [The plan will be updated monthly.] The plan will be de-veloped in accordance with the Resocialization program and identi!edneeds and strengths and must specify measurable objectives, expectedoutcomes and a means to evaluate progress. See §87.2 of this title (re-lating to Resocialization Program). The plan will be updated every:

(A) 90 days for Type A violent and sentenced offendersin high restriction facilities;

(B) 60 days for offenders other than Type A violent andsentenced offenders in high restriction facilities; and

(C) 30 days for all offenders in medium restriction fa-cilities.

(2) - (3) (No change.)(4) The ICP development shall include a review of youth

progress and [monthly] objectives and shall be developed with theyouth and family when possible.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 23, 2006.TRD-200603428Dwight HarrisExecutive DirectorTexas Youth CommissionEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 424-6014

TITLE 40. SOCIAL SERVICES AND ASSIS-TANCEPART 20. TEXAS WORKFORCECOMMISSIONCHAPTER 800. GENERAL ADMINISTRATIONThe Texas Workforce Commission (Commission) proposesamendments to the following sections of Chapter 800, relatingto General Administration:Subchapter C. Performance and Contract Management,§800.81Subchapter E. Sanctions, §800.151PART I. PURPOSE, BACKGROUND, AND AUTHORITYPART II. EXPLANATION OF INDIVIDUAL PROVISIONSPART III. IMPACT STATEMENTSPART IV. COORDINATION ACTIVITIESPART I. PURPOSE, BACKGROUND, AND AUTHORITYThe purpose of the proposed rules amendment is to eliminatereferences in this chapter to Chapter 805, relating to the JobTraining Partnership Act Rules. Chapter 805 of this title is con-currently being proposed for repeal in its entirety because therules are no longer necessary.PART II. EXPLANATION OF INDIVIDUAL PROVISIONS(Note: Minor, nonsubstantive, editorial changes are made thatdo not change the meaning of the rules and, therefore, are notdiscussed in the Explanation of Individual Provisions.)SUBCHAPTER C. PERFORMANCE AND CONTRACT MAN-AGEMENTThe Commission proposes the following amendment:§800.81. Performance


Section 800.81(i) is deleted. Based on the concurrent proposedrepeal of Chapter 805 of this title, the Job Training PartnershipAct Rules, this subsection is obsolete.SUBCHAPTER E. SANCTIONSThe Commission proposes the following amendment:§800.151. Scope and PurposeSection 800.151(d) is deleted. Based on the concurrent pro-posed repeal of Chapter 805 of this title, the Job Training Part-nership Act Rules, this subsection is obsolete.PART III. IMPACT STATEMENTSRandy Townsend, Chief Financial Of!cer, has determined thatfor each year of the !rst !ve years the rules will be in effect, thefollowing statements will apply:There are no estimated additional costs to the state and to localgovernments expected as a result of enforcing or administeringthe rules.There are no estimated reductions in costs to the state and tolocal governments as a result of enforcing or administering therules.There are no estimated losses or increases in revenue to thestate or to local governments as a result of enforcing or admin-istering the rules.There are no foreseeable implications relating to costs or rev-enue of the state or local governments as a result of enforcingor administering the rules.There will be no probable economic costs to persons requiredto comply with this rule, and there will be no adverse economiceffect on small businesses.The Agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the Agency’s legal au-thority to adopt.Mark Hughes, Director of Labor Market Information, has deter-mined that there is no signi!cant negative impact upon employ-ment conditions in the state as a result of the rules.Luis M. Macias, Director, Workforce Development Division, hasdetermined that for each year of the !rst !ve years the rules arein effect, the public bene!t anticipated as a result of enforcingthe proposed rules will be to ensure compliance with federal andstate requirements.PART IV. COORDINATION ACTIVITIESIn the development of these rules for publication and public com-ment, the Commission considered all information gathered in or-der to develop a rule that provides clear and concise directionto all parties involved. Additionally, the Commission providedthe policy concept regarding the concurrent proposed repeal ofChapter 805, relating to the Job Training Partnership Act Rules,to the Boards for consideration and review.Comments on the proposed rules may be submitted to TWC Pol-icy Comments, Workforce and UI Policy, 101 East 15th Street,Room 440T, Austin, Texas 78778; faxed to 512-475-3577; ore-mailed to [email protected]. The Com-mission must receive comments postmarked no later than 30days from the date this proposal is published in the Texas Reg-ister.

SUBCHAPTER C. PERFORMANCE ANDCONTRACT MANAGEMENT40 TAC §800.81The rules are proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The proposed rules affect Title 4, Texas Labor Code, particularlyChapters 301 and 302.§800.81. Performance.

(a) A Board shall meet or exceed performance targets as ref-erenced in contracts with the Agency.

(b) The Commission shall determine the performance targetsbased on federal and state performance standards and by using factorsthat may be necessary to achieve the mission of the Commission andre"ect local conditions. The Commission approves individual Boardperformance targets annually, which may be adjusted based on localconditions including, but not limited to, speci!c economic conditionsand demographic characteristics of the workforce area.

(c) A Board and other subrecipients[subrecipient] shall com-ply with all Commission rules, Workforce Development (WD) Letters,the Financial Manual for Grants and Contracts, [Grants and ContractsManual, the Financial Manual] and guidance letters of the Agency, in-cluding rules contained in other chapters of Part 20 of this title applica-ble to speci!c services and activities performed by a Board and othersubrecipients.

(d) A Board’s achievement of high levels of performance mayresult in the Commission providing incentives for the Board.

(e) A Board’s failure to meet minimum levels of performanceas referenced in the Board’s contract may result in corrective actions,penalties, or sanctions as speci!ed in:

(1) Part 20 of this title (relating to the Texas WorkforceCommission), including Chapter 800, Subchapter E, relating to Sanc-tions;

(2) the Board’s contract with the Commission; or(3) [as otherwise provided for by] federal or state statute or

rule.(f) A Board may submit to the Commission a request for an

adjustment to the minimum levels of performance.(g) The Commission may determine what constitutes a neces-

sary adjustment to local performance targets and may consider speci!ceconomic conditions and demographic characteristics to be served inthe [local] workforce [development] area and other factors the Com-mission deems appropriate including the anticipated impact of the ad-justment on the state’s performance.

(h) The Governor may adopt additional performance incen-tives and sanctions provisions as provided in WIA.

[(i) A Board shall comply with and remain subject to the pro-visions contained in Chapter 805 effective on July 1, 2001, relating toperformance or any other matters addressed in Chapter 805 regardingany funds granted by the Secretary of Labor under the JTPA regula-tions or Act, including NRA and other funds.]This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.


Filed with the Of!ce of the Secretary of State on June 22, 2006.TRD-200603419Reagan MillerDeputy Director for Workforce and UI PolicyTexas Workforce CommissionEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 475-0829

SUBCHAPTER E. SANCTIONS40 TAC §800.151The rules are proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The proposed rules affect Title 4, Texas Labor Code, particularlyChapters 301 and 302.§800.151. Scope and Purpose.

(a) The purpose of this subchapter is to:(1) ensure accountability of Boards [Local Workforce De-

velopment Boards (Boards)] and other subrecipients of the Agency, inmeeting the needs of employers and job seekers;[,]

(2) ensure performance in reaching outcome measures;[,](3) ensure adequate returns on state investments;[,] and(4) support the state in achieving its goals.

(b) The Agency may review !nancial, administrative, and per-formance data to evaluate a Board and subrecipients [subrecipient] ofthe Agency to determine the need for sanctions.

(c) To accomplish the purposes of this subchap-ter[Subchapter], the Agency may require at any point during the yearthat a Board or subrecipients [subrecipient] of the Agency cooperatewith remedial actions, including, but not limited to, entering into aPerformance Improvement Plan and other performance review andassistance activities.

[(d) This rule incorporates by reference the existing rule for theJob Training Partnership Act Program cited in §805.170 - §805.196 ofthis title.]This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.


CHAPTER 805. JOB TRAINING PARTNERSHIPACT RULES

The Texas Workforce Commission (Commission) proposes therepeal of the following sections of Chapter 805, relating to theJob Training Partnership Act (JTPA) rules:Subchapter A, General Provisions:§§805.101 - 805.106Subchapter C, Job Training Plans:§§805.140 - 805.155Subchapter D, Performance Standards:§§805.160 - 805.165Subchapter E, State Monitoring and Sanctions Policies:§§805.170 - 805.196Subchapter F, Financial Management Rules:§§805.200 - 805.232Subchapter G, Eligibility Policies and Procedures:§§805.240 - 805.249Subchapter I, JTPA Grievance Procedures:§§805.280 - 805.298PART I. PURPOSE, BACKGROUND, AND AUTHORITYPART II. IMPACT STATEMENTSPART III. COORDINATION ACTIVITIESPART I. PURPOSE, BACKGROUND, AND AUTHORITYThe purpose of the proposed repeal is to eliminate Chapter 805,relating to the JTPA rules. The Workforce Investment Act re-pealed JTPA and initiated a new delivery system for providingemployment and training services. Therefore, these rules areno longer required.PART II. IMPACT STATEMENTSRandy Townsend, Chief Financial Of!cer, has determined thatfor each year of the !rst !ve years the proposed repeal will be ineffect, the following statements will apply:There are no estimated additional costs to the state and to localgovernments expected as a result of enforcing or administeringthe repeal.There are no estimated reductions in costs to the state and tolocal governments as a result of enforcing or administering therepeal.There are no estimated losses or increases in revenue to thestate or to local governments as a result of enforcing or admin-istering the repeal.There are no foreseeable implications relating to costs or rev-enue of the state or local governments as a result of enforcingor administering the repeal.There will be no probable economic costs to persons required tocomply with this repeal, and there will be no adverse economiceffect on small businesses.The Agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the Agency’s legal au-thority to adopt.


Mark Hughes, Director of Labor Market Information, has deter-mined that there is no signi!cant negative impact upon employ-ment conditions in the state as a result of the repeal.Luis M. Macias, Director, Workforce Development Division, hasdetermined that for each year of the !rst !ve years the proposedrepeal is in effect, the public bene!t anticipated as a result ofenforcing the proposed repeal will be to ensure compliance withfederal and state requirements.PART III. COORDINATION ACTIVITIESIn the development of the proposal for publication and publiccomment, the Commission sought the involvement of each ofTexas’ 28 Boards. The Commission provided the policy conceptregarding the proposed repeal to the Boards for considerationand review.Comments on the proposed repeal may be submitted to TWCPolicy Comments, Workforce and UI Policy, 101 East 15thStreet, Room 440T, Austin, Texas 78778; faxed to (512) 475-3577; or e-mailed to [email protected] Commission must receive comments postmarked no laterthan 30 days from the date this proposal is published in theTexas Register.SUBCHAPTER A. GENERAL PROVISIONS40 TAC §§805.101 - 805.106(Editor’s note: The text of the following sections proposed for repealwill not be published. The sections may be examined in the of!ces ofthe Texas Workforce Commission or in the Texas Register of!ce, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The repeal affects Title 4, Texas Labor Code, particularly Chap-ters 301 and 302.§805.101. Short Title and Purpose.

§805.102. General De!nitions.

§805.103. General Duties of Governor’s Of!ce.

§805.104. General Duties of the Texas Workforce Commission.

§805.105. The Texas Council on Workforce and Economic Competi-tiveness.

§805.106. Implementation of USDOL Final Rule.



SUBCHAPTER C. JOB TRAINING PLANS40 TAC §§805.140 - 805.155(Editor’s note: The text of the following sections proposed for repealwill not be published. The sections may be examined in the of!ces ofthe Texas Workforce Commission or in the Texas Register of!ce, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The repeal affects Title 4, Texas Labor Code, particularly Chap-ters 301 and 302.§805.140. Plan Submission for Review and Approval.§805.141. Standards for Plan Approval or Disapproval.§805.142. Plan Modi!cation or Amendment.§805.143. Criteria for Plan Modi!cation.§805.144. Criteria for Plan Amendment.§805.145. Competency System Development and Approval.§805.146. Submission for State Approval.§805.147. Elements of a Suf!ciently Developed Competency System.§805.148. Substate Plans.§805.149. Carry-Over Funds.§805.150. Services to Displaced Homemakers.§805.151. Rapid Response Grants.§805.152. Certi!cate of Continuing Eligibility.§805.153. Allotment of Dislocated Worker State Reserve Funds.§805.154. Discretionary Fund Distribution Process.§805.155. Waiver of Expenditures for Retraining Services.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.


SUBCHAPTER D. PERFORMANCESTANDARDS40 TAC §§805.160 - 805.165(Editor’s note: The text of the following sections proposed for repealwill not be published. The sections may be examined in the of!ces ofthe Texas Workforce Commission or in the Texas Register of!ce, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.)


The repeal is proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The repeal affects Title 4, Texas Labor Code, particularly Chap-ters 301 and 302.§805.160. De!nitions.

§805.161. Variations to DOL Performance Standards.

§805.162. State Performance Standards.

§805.163. Incentive Grants for Exceeding DOL Performance Stan-dards.

§805.164. Incentive Grants for Exceeding State Standards.

§805.165. Distribution of Any Remaining Incentive Funds.



SUBCHAPTER E. STATE MONITORING ANDSANCTIONS POLICIES40 TAC §§805.170 - 805.196(Editor’s note: The text of the following sections proposed for repealwill not be published. The sections may be examined in the of!ces ofthe Texas Workforce Commission or in the Texas Register of!ce, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The repeal affects Title 4, Texas Labor Code, particularly Chap-ters 301 and 302.§805.170. Purpose and Authority.

§805.171. De!nitions.

§805.172. State Monitoring.

§805.173. The Monitoring Report.

§805.174. Responses to Monitoring Reports.

§805.175. Local Monitoring Plan Development.

§805.176. Subrecipient Roles and Responsibilities.

§805.177. Assessment of Subrecipient Monitoring Functions.

§805.178. PIC Oversight Standards.

§805.179. State Sanctions Policy and Procedures.

§805.180. Sanctions Procedures.§805.181. Repeated Problems or Findings.§805.182. Imposition of Sanctions.§805.183. Technical Assistance and Reorganization.§805.184. Failure To Meet Performance Standards.§805.185. Technical Assistance Plan.§805.186. SDA/SSA Reorganization Plan Due to Consecutive Fail-ure.§805.187. Sanctions for Continued Violations.§805.188. Subrecipient Annual Audit Requirement.§805.189. Audit Costs.§805.190. Competitive Bidding To Procure Auditor.§805.191. Contents of Audit Report.§805.192. Subrecipient Annual Audit Plan.§805.193. Audit Submissions.§805.194. Informal Resolution Process.§805.195. Failure To Submit Audit.§805.196. Appeals from Final Determinations.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.


SUBCHAPTER F. FINANCIAL MANAGE-MENT RULES40 TAC §§805.200 - 805.232(Editor’s note: The text of the following sections proposed for repealwill not be published. The sections may be examined in the of!ces ofthe Texas Workforce Commission or in the Texas Register of!ce, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The repeal affects Title 4, Texas Labor Code, particularly Chap-ters 301 and 302.§805.200. Purpose and Authority.§805.201. General Cash Management.§805.202. Subrecipient Bonding.§805.203. Repayment of Disallowed Costs.§805.204. Historically Underutilized Businesses (HUBs).§805.205. Insurance Requirements.§805.206. Refund Policy.


§805.207. Allowable and Unallowable Costs.§805.208. De!nition of an Obligation.§805.209. Reporting Obligations.§805.210. Voluntary Deobligation.§805.211. Contractor Code of Conduct.§805.212. JTPA Records and Files.§805.213. Methods of Procurement.§805.214. Competitive Negotiation Method.§805.215. Request for Proposal (RFP) Process.§805.216. Statement of Work.§805.217. Noncompetitive Negotiation (Sole Source) Method.§805.218. Processing of Noncompetitive Procurements.§805.219. Cost/Price Analysis.§805.220. Contract Payments.§805.221. Contract Budgets.§805.222. Fixed-unit Price Contracts.§805.223. Nonexpendable Personal Property Management.§805.224. Subrecipient Property Inventory.§805.225. Property Maintenance and Security.§805.226. Shared Use of JTPA Property.§805.227. Disposition of Excess Nonexpendable JTPA Property.§805.228. Reporting Requirements.§805.229. The Closeout Process.§805.230. Resolution of Questioned Costs.§805.231. Subrecipient Time Limitations.§805.232. Variance from Uniform Grant and Contract ManagementStandards.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.


SUBCHAPTER G. ELIGIBILITY POLICIESAND PROCEDURES40 TAC §§805.240 - 805.249(Editor’s note: The text of the following sections proposed for repealwill not be published. The sections may be examined in the of!ces ofthe Texas Workforce Commission or in the Texas Register of!ce, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The repeal affects Title 4, Texas Labor Code, particularly Chap-ters 301 and 302.

§805.240. Purpose and Authority.§805.241. De!nitions.§805.242. Record of Documentation To Verify Eligibility.§805.243. Basic Forms for Eligibility Documentation.§805.244. Information To Establish Income Eligibility.§805.245. Veri!cation by Telephone or Document Inspection.§805.246. Veri!cation by an Applicant Statement.§805.247. Title III/EDWAA Eligibility De!nitions.§805.248. Additional Categories of "Terminated" or "Laid Off".§805.249. Defense Conversion Adjustment Program.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.


SUBCHAPTER I. JTPA GRIEVANCEPROCEDURES40 TAC §§805.280 - 805.298(Editor’s note: The text of the following sections proposed for repealwill not be published. The sections may be examined in the of!ces ofthe Texas Workforce Commission or in the Texas Register of!ce, Room245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The repeal affects Title 4, Texas Labor Code, particularly Chap-ters 301 and 302.§805.280. Purpose and Coverage.§805.281. De!nitions.§805.282. Grievance Filing Procedures at the Local Level.§805.283. Time Limitations at Local Level.§805.284. JTPA Contractor Responsibilities.§805.285. Orientation to Complaint Procedure.§805.286. Local Level Informal Conference Procedure.§805.287. Opportunity and Request for a Hearing.§805.288. Notice of Hearing at Local Level.§805.289. Hearing Of!cer.§805.290. Local Level Hearing Procedure.§805.291. Written Decision.§805.292. Request for Review of a Written Decision.§805.293. Procedure for Review by the Texas Workforce Commis-sion.§805.294. Final Written Decision.§805.295. Optional Forms Available.


§805.296. Appeal of a Commission Action or Decision.§805.297. Formal Hearing Procedure at State Level.§805.298. Final State Action.This agency hereby certi!es that the proposal has been reviewedby legal counsel and found to be within the agency’s legal author-ity to adopt.

Filed with the Of!ce of the Secretary of State on June 22, 2006.

TRD-200603418Reagan MillerDeputy Director for Workforce and UI PolicyTexas Workforce CommissionEarliest possible date of adoption: August 6, 2006For further information, please call: (512) 475-0829


TITLE 4. AGRICULTUREPART 2. TEXAS ANIMAL HEALTHCOMMISSIONCHAPTER 50. PREMISES AND ANIMALIDENTIFICATION4 TAC §§50.1 - 50.5Proposed new §§50.1 - 50.5, published in the December 23,2005, issue of the Texas Register (30 TexReg 8521), are with-drawn. The agency failed to adopt the proposal within six monthsof publication. (See Government Code, §2001.027, and 1 TAC§91.38(d).)

Filed with the Of!ce of the Secretary of State on June 23, 2006.TRD-200603429

TITLE 22. EXAMINING BOARDSPART 23. TEXAS REAL ESTATECOMMISSIONCHAPTER 535. GENERAL PROVISIONSSUBCHAPTER R. REAL ESTATEINSPECTORS22 TAC §535.223

The Texas Real Estate Commission withdraws the proposedamendment to §535.223 which appeared in the May 19, 2006,issue of the Texas Register (31 TexReg 4160).

Filed with the Of!ce of the Secretary of State on June 20, 2006.TRD-200603380Loretta R. DeHayGeneral CounselTexas Real Estate CommissionEffective date: June 20, 2006For further information, please call: (512) 465-3900

22 TAC §§535.232 - 535.238The Texas Real Estate Commission withdraws the proposednew §§535.232 - 535.238 which appeared in the May 19, 2006,issue of the Texas Register (31 TexReg 4161).

Filed with the Of!ce of the Secretary of State on June 20, 2006.TRD-200603378Loretta R. DeHayGeneral CounselTexas Real Estate CommissionEffective date: June 20, 2006For further information, please call: (512) 465-3900

WITHDRAWN RULES July 7, 2006 31 TexReg 5451

TITLE 1. ADMINISTRATIONPART 15. TEXAS HEALTH ANDHUMAN SERVICES COMMISSIONCHAPTER 355. REIMBURSEMENT RATESSUBCHAPTER F. REIMBURSEMENTMETHODOLOGY FOR PROGRAMS SERVINGPERSONS WITH MENTAL ILLNESS ANDMENTAL RETARDATION1 TAC §355.781The Health and Human Service Commission (HHSC) adoptsamended §355.781, concerning the reimbursement methodol-ogy for Rehabilitative Services, in Chapter 355, ReimbursementRates. The amendment is adopted without changes to the pro-posed text as published in the April 14, 2006, issue of the TexasRegister (31 TexReg 3139) and will not be republished.The amended §355.781 identi!es the department (formerlythe Texas Department of Mental Health and Mental Retarda-tion (TDMHMR) or successor agency) as the Department ofState Health Services (DSHS) and removes any referencesto "TDMHMR". Also, due to the restoration of the generalcounseling bene!t to all Medicaid recipients, the reference torehabilitative counseling and psychotherapy is removed fromthe rule. The rule is further amended to allow the provision ofskills training in a group format to a child or adolescent.HHSC did not receive any comments regarding the proposedrule during the comment period.The amendment is adopted under the Texas Government Code,§531.033, which provides the Executive Commissioner of HHSCwith broad rulemaking authority; the Human Resources Code,§32.021, and the Texas Government Code, §531.021(a), whichprovide HHSC with the authority to administer the federal medi-cal assistance (Medicaid) program in Texas; and the Texas Gov-ernment Code, §531.021(b), which provides HHSC with the au-thority to propose and adopt rules governing the determinationof Medicaid reimbursements.This agency hereby certi!es that the adoption has been reviewedby legal counsel and found to be a valid exercise of the agency’slegal authority.

Filed with the Of!ce of the Secretary of State on June 26, 2006.TRD-200603432

Steve AragónChief CounselTexas Health and Human Services CommissionEffective date: September 1, 2006Proposal publication date: April 14, 2006For further information, please call: (512) 424-6900

TITLE 16. ECONOMIC REGULATIONPART 2. PUBLIC UTILITYCOMMISSION OF TEXASCHAPTER 26. SUBSTANTIVE RULESAPPLICABLE TO TELECOMMUNICATIONSSERVICE PROVIDERSSUBCHAPTER F. REGULATION OFTELECOMMUNICATIONS SERVICE16 TAC §26.134The Public Utility Commission of Texas (commission) adoptsnew §26.134, relating to the Market Test to be Applied inDetermining if Markets with Populations Less Than 30,000Should Remain Regulated after January 1, 2007 with changesto the proposed text as published in the March 24, 2006, TexasRegister (31 TexReg 2352). The new rule, implementing PURA§65.052(f), establishes the market test to be applied in deter-mining whether a market with a population of less than 30,000should remain regulated after January 1, 2007. Project Number32169 is assigned to this proceeding.The new section applies to all incumbent local exchange carriers(ILECs). The market test is based upon the number and typeof competitors providing service in the market. In many of themarkets with a population less than 30,000, the rural exemptionas provided for in Section 251(f)(1) "Exemption for Certain RuralTelephone Companies" of the Federal Communications Act of1934 is effective. In those markets, the new rule requires thatexemption to be removed. In addition, the new section providesthe schedule for implementation of the new provisions.The commission received initial comments on the proposed rulefrom Southwestern Bell Telephone, L.P. d/b/a AT&T Texas (AT&TTexas), Verizon Southwest (Verizon), Texas Telephone Associ-ation (TTA), Of!ce of the Attorney General of the State of Texas(State), and Of!ce of Public Utility Counsel (OPC). Additionally,the commission received reply comments from AT&T Texas andthe State. A Public Hearing was held in this matter on May 5,2006. In attendance were representatives of the State, TTA,

ADOPTED RULES July 7, 2006 31 TexReg 5453

AT&T Texas, John Starulakis, Inc. (JSI), OPC, Verizon, andTexas Statewide Telephone Cooperative, Inc.A summary of the stakeholders’ !led comments and commissionresponses are set forth hereafter.In the publication preamble, the commission asked a questionregarding how the commission should account for any situationsin which robust telecommunications competition exists in a mar-ket, but the type of competitors in the market does not completelymirror the types of competitors delineated in subsection (c).Commission ResponseThe State and OPC responded to the commission’s pream-ble query and made speci!c recommendations applicable to§26.134(c) of the proposed rule that addressed their concerns.Given that the responses to the question were speci!c to§26.134(c), the summary of comments and the commission’sresponses appear in that section of the preamble.Subsection 26.134(c) of the new rule outlines the market test forexchanges with populations less than 30,000 (hereinafter some-times referred to as "small markets").Verizon, the State, and OPC commented on the number andtype of competitors required in each market.Verizon commented that, at the very least, the proposed ruleshould be modi!ed to require only two competitors to the ILECto satisfy the market test: a wireless competitor and a facili-ties-based wireline competitor. Verizon justi!ed this proposedmodi!cation by stating that it believed the Legislature intention-ally refused to apply the same test to small markets that it appliedto large markets, thus recognizing that small markets generallyattract fewer competitors, but are still subject to deregulation un-der Senate Bill 5.Commission ResponseThe commission declines to modify the rule based upon Veri-zon’s comment. The commission !nds that a list of two competi-tors does not provide customers with suf!cient choice.The State described the proposed rule as an attempt to modifythe law applicable to mid-sized markets (30,000-100,000 in pop-ulation), which simply required the existence of three different,statutorily established, type competitors in a market to deregu-late it. The State proposed language in subsection (c)(1) to in-crease the number of competitors from three to four or more ofthe types listed in (c), without a speci!c requirement of any par-ticular mix of the four types of competitors listed.Commission ResponseThe commission declines to make either suggested change. TheState’s suggestion could result in deregulation of an exchangewhere there are four competitors of any type. The commission!nds that this approach would provide some customer choice,but because all four of the competitors could be the same type,this approach would not provide suf!cient customer choice tojustify deregulation of that exchange. Customers should havechoice, not only among a certain number of competitors, but alsoamong different types of providers. The commission believesthat the test outlined in the rule, based upon the requirementsfor markets 30,000 to 100,000 in population, is the appropriatemarket test.OPC supported the inclusion in the commission’s proposed ruleof the requirement that at least one of the three competitors bean entity providing residential service using facilities that the en-

tity or its af!liate owns. However, OPC recommended "tighten-ing" this subsection by including the requirement that the facili-ties-based provider either hold a certi!cate of operating authorityor service provider certi!cate of operation authority, or clarifyingthat the facilities-based provider is not to be counted towardsmeeting the criteria of the competitors in subsection (c)(2).Commission ResponseThe commission does not add the requirement suggested byOPC. The commission anticipates that the competitors "provid-ing residential service using facilities that the entity or its af!li-ate owns" often will be cable companies utilizing VOIP technol-ogy. The commission believes that such competitors should becounted in the market test. Depending upon future action bythe Federal Communications Commission, such entities may ormay not be required to hold certi!cates. Therefore, the commis-sion is concerned that requiring certi!cation may preclude theseentities from being considered a competitor for the purposes ofdemonstrating competition within small market areas.OPC commented that the rule is not suf!ciently clear if a sub-section (c)(1) competitor, the facilities based provider, could beconsidered as a competitor for the purposes of subsection (c)(2)as well.Commission ResponseThe commission acknowledges OPC’s concern and revises sub-section (c) to include the word "separate" before competitors toclarify that three separate competitors must exist in the market.Subsection (c)(2)(C) requires that a satellite telecommunicationsprovider, in order to be counted under the market test, must becerti!ed as an eligible telecommunications carrier for the entiremarket pursuant to §26.418 of this chapter.AT&T Texas stated concern with this provision, arguing that be-cause the ETC requirements of §26.418 are probably foreign andburdensome to satellite providers, it is highly unlikely that suchproviders will pursue certi!cation under §26.418. Thus, left aswritten, the rule would require the commission to hold that a com-petitive satellite provider could not be considered a competitor ifthe satellite provider did not seek ETC status. Further, AT&TTexas noted that no such requirements were imposed on ca-ble providers or wireless providers when the Legislature enactedPURA Subchapter B of Chapter 65. AT&T Texas suggested forthe above reasons, the ETC requirements should be removedfrom subsection 26.134 (c)(2)(C) of the proposed rule.In its reply comments, the State noted that both satellite andwireless providers have sought and likely will continue to seekETC designation due to both favorable market conditions and thecurrent existence of universal service subsidies in those areas.The State noted that the ETC designation requirement is a usefulproxy to measure penetration into markets in which only one ortwo competitors are present.Commission ResponseThe commission declines to make the change requested byAT&T Texas. The commission agrees with the comments of theState that the fact that satellite providers have sought ETC des-ignation, the requirements must not be foreign and burdensometo this type of carrier.The commission, however, rejects the State’s argument thatthe ETC designation is a proxy to measure market penetration.Rather, the commission !nds it appropriate to require that asatellite provider be designated as an ETC in order to be counted


in the market test because, unlike other types of providers, asatellite provider could provide service in most areas of the stateand does not have facilities located in one geographic area. TheETC designation requires a provider to advertise its servicesin the geographic area in which it is designated as an ETC.The commission is concerned that eliminating this requirementwould allow a satellite provider to be counted for the market testwhile no potential customers would be aware of that competitivechoice.In contrast to AT&T Texas’s position, both OPC and the Staterecommended extending the ETC requirement to other types ofproviders.OPC proposed a change to subsection (c)(2)(C) to require anytelecommunications provider, not just a satellite telecommunica-tions provider, to be certi!ed as an eligible telecommunicationscarrier for the entire market pursuant to §26.418. OPC main-tained the commission would be ensuring that the carrier wouldeventually be serving the entire market and established servicestandards would be met. According to OPC, this modi!cationwould create a technology neutral rule and might ensure the rulewould not need to be reopened to address any new technologythat was excluded.The State proposed to add additional rule language at subsec-tion (c)(2)(B) that would require commercial mobile service op-erators to be certi!ed as an eligible telecommunications carrierfor the entire market pursuant to §26.418, relating to Designationof Common Carriers as Eligible Telecommunications Carriers toReceive Federal Universal Funds, in order to be considered aqualifying competitor.Commission ResponseThe commission declines to require any telecommunicationsprovider, other than a satellite provider, to be designated asan ETC in order to be counted as a competitor pursuant tothe market test. For providers with facilities in a particulargeographic area, the commission believes that such providerswill generally advertise to sell their services to customers.The State, OPC, and TTA suggested alternative market tests orsigni!cant modi!cations to the proposed market test.In addition to the changes proposed to subsection (c), the Statesuggested an alternate market test would be appropriate for mar-kets that could not meet the !rst test. Such a test would require apublic interest !nding by the commission when the requisite com-petitors are not present, but where there is a ubiquitous presenceby fewer competitors, and which measures, at least to some de-gree, the amount of penetration of competition in small marketswhen fewer competitors are present but there is ubiquitous pres-ence by such competitors.Therefore, the State recommended an additional new markettest as a stand-alone subsection (d) (and the requisite re-let-tering and re-numbering of the ensuing provisions) that wouldderegulate a small market when: (1) one to three competitorsexist, (2) a market penetration test can be met which demon-strates each competitor offers to provide service to at least !ftypercent (50%) of the market, and (3) the commission !nds thatderegulation of such market is in the public interest. The Statesuggested that the market penetration portion of the proposedtest can be determined by using a percentage of total squaremiles, number of wire centers, or number of census blocks asthe denominator, and the square mileage, number of wire cen-

ters, or number of census blocks in the market in which serviceis offered as the numerator.OPC also supported a market penetration test; however, OPCcommented that such a test should be included in subsection (c).OPC commented that a minimum market penetration criterionrequiring each qualifying competitor to serve no less than onepercent of the market and that all three combined provide serviceto no less than 25% of the market.TTA believed that some small markets may never experiencethe conditions described in subsection (c), and argued that thereshould be a mechanism whereby the commission could exer-cise discretionary authority to deregulate such small exchangeswithout a predetermined market test. TTA argued the commis-sion should allow companies within such exchanges to produceevidence demonstrating a suf!cient level of competition. TTA ar-gued that markets served by two providers (including the ILEC),where each is designated as an ETC, should be deregulated be-cause under those conditions the commission will know that thecompetitive ETC offers (and advertises) myriad telecommunica-tions services throughout the market.AT&T Texas, in its reply comments, opined that the Legislatureexpected future deregulation proceedings and argues that Sen-ate Bill 5 provides a clear path to deregulate markets with popu-lations below 30,000, knowing that the commission has the au-thority to re-regulate should that be appropriate under PURA§65.055. The ability to re-regulate, according to AT&T Texasagain, provides a "safety valve" should deregulation harm themarket place. AT&T Texas argues that the timeframes imposedby the legislature--the sequence of timeframes contained in Sub-chapter B of Chapter 65--when combined with PURA §65.055,make it clear that complex tests are unnecessary and contraryto the intent of the Legislature. According to AT&T Texas, giventhe November 30, 2006, statutory deadline, only a simple markettest can be utilized. According to AT&T Texas, complex or vaguetests should be rejected, as the commission and the parties needto know precisely what evidence will be used in the deregulationanalysis. AT&T Texas notes that uncertainty could confuse anddelay the commission’s statutorily-imposed decision-making re-sponsibility and that a clear test will allow the commissioners toreceive and digest the evidence with all deliberate speed.Commission ResponseThe commission agrees with AT&T that complex or vague testsshould be rejected. Therefore, the commission declines to mod-ify the rule to include the additional market penetration test sug-gested by the State, the market penetration test offered by OPC,or the comment from TTA that the market test should, in effect,be discretionary. The commission is concerned about the timeand resource constraints for the parties as well as the commis-sion associated with determining the contentious and complexissues associated with any market penetration test or a morediscretionary know-it-when-you-see-it test.TTA and AT&T Texas argued that this new rule should apply onlyto the markets to be deregulated in 2006.TTA urged that in the event the commission does not believe itcan examine some of these exchanges on a case-by-case basisbefore the statutory deadline of 2006, the commission shouldallow for discretionary deregulation authority after July 1, 2007.AT&T Texas argued in its reply comments that this project shouldbe limited to creating the market test used to meet the require-ments of PURA §65.052(f) and should not limit what evidence


might be appropriate under PURA §65.054(a), which, accord-ing to AT&T Texas, contemplates future dockets. AT&T Texasasserted that as customer choice develops due to advances intechnology, the market test for small and medium-sized marketsmay need to evolve accordingly. Therefore, according to AT&TTexas, the market test developed in this project should not fore-close consideration of additional technology and competitors inthe future.Commission ResponseThe commission has a statutory deadline of November 30, 2006,to make the initial !ndings of whether markets under 30,000 pop-ulation are deregulated. After the initial !nding in 2006 and be-ginning July 1, 2007, ILECs can request that the commissiondetermine the status of the remaining regulated markets. Thecommission declines to make the changes requested by TTAand AT&T Texas. The commission !nds that the market testadopted in this proceeding is the appropriate test. If, at a laterdate, the commission !nds it necessary to modify the markettest, it can do so through another rulemaking proceeding. If aparty believes that the market test should be revised, it can !lea petition for rulemaking. The commission !nds that the mar-ket tests applicable to ILEC requests !led pursuant to PURA§65.054(a) are as follows: (1) for markets with populations be-tween 30,000 and 100,000, the appropriate market test is pro-vided in PURA §65.052 ,and (2) for markets with populationsunder 30,000 population, the appropriate market test is the oneset forth in this rule.AT&T Texas argued that the !rst sentence in proposed§26.134(c), which dictates that "only if" the ILEC "submitsevidence" that meets the substantive requirements shall themarket be deregulated, is contrary to the statutory languagethat gave rise to this rulemaking. AT&T Texas quoted PURA§65.051(b) as stating that a market with a population of lessthan 30,000 "is deregulated" on January 1, 2007, "unless thecommission determines under §65.052(f) that the market shouldremain regulated." According to AT&T Texas, this statute as-signs the commission the responsibility to take af!rmative actionto reach a conclusion with regard to deregulation. AT&T Texasfurther argued that the statute does not authorize the commis-sion to require that any party come forward with evidence as towhether a particular area should be deregulated. Even thoughAT&T Texas noted that it is entitled to and will provide relevantevidence, should that evidence somehow fail to persuade thecommission, it argued that the commission still has the abilityand responsibility to examine whatever information is availableto it and decide whether the area should remain regulated underthe statute.Commission ResponseThe commission notes that the requirement that the ILECs bringforward the necessary evidence to demonstrate that they meetthe market test is not novel. The ILECs, including AT&T Texas,that participated in Docket Number 31831 for the deregulationof markets with populations of 30,000 or more were subject tothe same requirement. The requirement is necessary partly be-cause, as indicated in earlier responses, the commission is facedwith considering and processing a substantial amount of infor-mation in a very limited amount of time. Moreover, the com-mission does not, as AT&T Texas’s comments suggest, possessin any readily available form, the information that would demon-strate that any given market ful!lled the requirements of this test.Simply put, if the burden of proof is on the commission, then thecommission will be compelled to rely on the information it has,

which would indicate at this time that suf!cient competition doesnot exist in any small market.The commission believes a more practical approach is for in-dustry participants seeking to be deregulated in speci!c markets,known only to them, to submit evidence speci!c to those marketsupon which the commission can then decide if the competitivethreshold requirements of the rule have been met. The commis-sion !nds this approach to be the only practicable solution to thisissue, considering the limited time it has to examine and processthe information that will be required to determine the competitivestatus of these small markets.Section 26.134(d) provides that in addition to meeting the re-quirements of subsection (c), an ILEC seeking deregulation ofa market area for which the rural exemption as provided for inSection 251(f)(1) of the Communications Act of 1934 appliesmust meet an additional requirement. The rural exemption ef-fectively prevents certain wireline competitors from entering amarket. Such ILEC seeking deregulation must have that ruralexemption removed by the commission in order for that marketnot to remain regulated.TTA maintained that small markets should be eligible for dereg-ulation without regard to the status of the rural exemption. Itsuggested that most rural ILECs are more subject to inter-modal competition than intramodal competition, such as facili-ties-based providers as prescribed by PURA §65.052(b)(2)(B).Further, TTA pointed out that rural telephone companies withmarkets between 30,000 and 100,000 are allowed to dereg-ulate those markets without regard to the status of the ruralexemption.The State, in both its initial comments as well as its reply com-ments, supported the inclusion of the requirement that any exist-ing exemption be removed prior to deregulation of a market. Inits reply comments, the State opined that it is counterintuitive toderegulate a market but maintain restrictions on wireline marketentry by failing to remove the ILEC’s rural exemption.Commission ResponseThe commission agrees with the State and declines to make thechange requested by TTA. The commission believes that if amarket is deregulated, all market entry barriers should be lifted,including the rural exemption.At the public hearing, a representative of JSI requested that sub-section (d) of the commission’s proposed rule to be modi!ed toclarify that rural exemptions for small markets will be lifted on amarket-by-market basis.Commission ResponseThe commission agrees with the request made by the represen-tative of JSI. The rural exemption pursuant to Section 251(f)(1)applies to all of an ILEC’s markets. The requirement that the ru-ral exemption be lifted should apply only to the markets in whichthe ILEC is seeking deregulation, not to all of the ILEC’s markets.Therefore, the commission has revised its proposed rule to re-"ect its market-by-market approach to lifting the rural exemption.In addition, the commission removes the phrase "!led by theILEC" from section (d). The commission !nds that the operativelanguage is the phrase "approved by the commission" and thatthe entity actually !ling the request is immaterial.Section 26.134(e) sets forth the time frame requirements for sub-mitting evidence for markets deregulated on January 1, 2007and for markets deregulated after January 1, 2007.


AT&T Texas suggested that subsection (e) of the proposed ruleshould be eliminated in its entirety. According to AT&T Texas,eliminating subsection (e)(1) would avoid a situation where thecommission is forced to choose between ignoring evidence andviolating its own rule. AT&T Texas asserted subsection (e)(2)should be eliminated as it unnecessarily ties two events together,i.e., that which must occur before November 30, 2006 and thatwhich may occur after July 1, 2007. According to AT&T Texassince the statutory basis for these two events is different, anyrule based on these statutes should not necessarily be identical.AT&T Texas opined that the commission has the responsibilityto af!rmatively take certain action by November 30, 2006. Ac-cording to AT&T Texas, under PURA §65.054, the commissionshall react to a petition !led with it. According to AT&T Texas,this distinction allows for different treatment of parties’ burdensof providing evidence and, further, according to AT&T Texas, itis unclear that procedural requirements are needed now to ad-dress a petition !led under PURA §65.054. For these reasons,AT&T Texas suggested that subsection (e)(2) be stricken fromthe proposed rule.Commission ResponseThe commission declines to make the changes requested byAT&T Texas. The commission !nds subsection (e) of the ruleprovides instructive guidance necessary for it to successfully ex-amine existing competitive conditions in small markets. Further,the commission believes that AT&T Texas’s arguments here areanother attempt to raise the burden of proof issue, discussedante, and the idea that a different market test would be appropri-ate for proceedings conducted in 2007 and later.The commission disagrees with AT&T Texas for the reasons ar-ticulated in the commission’s response above to the burden ofproof issue.Further, as noted above, the commission disagrees with AT&TTexas that the statutory basis for the proceeding in 2006 is mate-rially different from any proceedings in 2007 or later. The markettests, as outlined above, are applied in either situation. The onlystatutory difference is timing.The commission acknowledges all of the comments !led by theparties and will continue to evaluate the need to conduct a com-prehensive review of service objectives and performance bench-marks for all LECs in Texas.All comments, including any not speci!cally referenced herein,were fully considered by the commission.This rule is adopted under the Public Utility Regulatory Act,Texas Utilities Code Annotated §14.002 (Vernon 1998 & Sup-plement 2005) (PURA) which provides the commission with theauthority to make and enforce rules reasonably required in theexercise of its powers and jurisdiction, §65.003, relating to com-mission authority, §65.004, concerning collection of information,§65.051, regarding deregulation of markets, and §65.052(f),relating to applicable test for deregulation of certain markets.Cross Reference to Statutes: Public Utility Regulatory Act§§14.002, 14.052, 65.003, 65.004, 65.051, and 65.052.§26.134. Market Test to be Applied in Determining if Markets withPopulations Less than 30,000 Should Remain Regulated on or AfterJanuary 1, 2007.

(a) Purpose. The purpose of this section is to establish themarket tests to be applied in determining if markets with populationsless than 30,000 should remain regulated after January 1, 2007.

(b) Application. This section applies to all incumbent localexchange companies (ILECs), as de!ned in §26.5 of this title (relatingto De!nitions).

(c) Market Test. Markets as de!ned in §65.002 of PURA witha population of less than 30,000 shall be deregulated only if the ILECproviding services to such a market submits evidence demonstratingthat the population in the market is less than 30,000 and in addition tothe ILEC there are three separate competitors:

(1) of which at least one competitor is an entity providingresidential telephone service in the market using facilities that the entityor its af!liate owns; and

(2) of which at least two competitors must be from two dif-ferent categories of the following:

(A) a telecommunications provider that holds a certi!-cate of operating authority or service provider certi!cate of operatingauthority and provides residential local exchange telephone service inthe market;

(B) a provider in that market of commercial mobile ser-vice as de!ned by Section 332(d), Communications Act of 1934 (47U.S.C. Section 151 et. Seq.), Federal Communications Commissionrules, and the Omnibus Budget Reconciliation Act of 1993 (Pub. L.No. 103-66), that is not af!liated with the incumbent local exchangecompany; and

(C) a satellite telecommunications provider certi!ed asan eligible telecommunications carrier for the entire market pursuantto §26.418 of this title (relating to Designation of Common Carriersas Eligible Telecommunications Carriers to Receive Federal UniversalService Funds).

(d) Rural Exemption Waiver. In the event that an ILEC seek-ing deregulation of a market area with a population of less than 30,000has a rural exemption as provided for in Section 251(f)(1) "Exemp-tion For Certain Rural Telephone Companies" of the CommunicationsAct of 1934, a petition for the removal of that rural exemption for thatmarket must be approved by the commission in order for the marketin question not to remain regulated. In addition, any such market mustmeet the conditions of the market test set forth in subsection (c) of thissection.

(e) Timing.(1) Markets shall be deregulated on January 1, 2007 only if

the ILEC providing service to such a market(s) submits evidence on orbefore August 1, 2006 in compliance with subsection (c) of this sectionand, if applicable, subsection (d) of this section.

(2) After July 1, 2007 an ILEC petitioning for deregulationof a market with a population of less than 30,000 shall submit with itspetition the evidence in compliance with subsection (c) of this sectionand, if applicable, subsection (d) of this section.This agency hereby certi!es that the adoption has been reviewedby legal counsel and found to be a valid exercise of the agency’slegal authority.

Filed with the Of!ce of the Secretary of State on June 22, 2006.TRD-200603425Adriana GonzalesRules CoordinatorPublic Utility Commission of TexasEffective date: July 12, 2006Proposal publication date: March 24, 2006For further information, please call: (512) 936-7211


TITLE 22. EXAMINING BOARDSPART 23. TEXAS REAL ESTATECOMMISSIONCHAPTER 535. GENERAL PROVISIONSSUBCHAPTER F. EDUCATION, EXPERIENCE,EDUCATIONAL PROGRAMS, TIME PERIODSAND TYPE OF LICENSE22 TAC §535.61, §535.63The Texas Real Estate Commission (TREC) adopts an amend-ment to §535.61, concerning Examinations and an amendmentto §535.63, concerning Education and Experience Require-ments for a License without changes to the proposed text aspublished in the May 19, 2006, issue of the Texas Register (31TexReg 4157) and will not be republished.The amendment to §535.61 authorizes the commission to waivethe national portion of the examination for an applicant who haspassed a comparable national examination that has been cer-ti!ed by a nationally recognized real estate regulator associa-tion. The amendment to §535.63 requires a salesperson subjectto annual education (SAE) requirements to furnish documenta-tion to the commission of successful completion of appropriatecourses 10 business days prior to the day the salesperson re-news the salesperson’s license.The reasoned justi!cation for the amendments to the rules is ac-ceptance of national test results from other states with compa-rable examinations and facile implementation of on-line renewalrequirements.No comments were received regarding the amendments to therules as proposed.The amendments are adopted under Texas Occupations Code,§1101.151, which authorizes the Texas Real Estate Commissionto make and enforce all rules and regulations necessary for theperformance of its duties and to establish standards of conductand ethics for its licensees in keeping with the purpose and intentof the Act to insure compliance with the provisions of the Act.The statute affected by this adoption is Texas Occupations Code,Chapter 1101. No other statute, code or article is affected by theadopted amendments.This agency hereby certi!es that the adoption has been reviewedby legal counsel and found to be a valid exercise of the agency’slegal authority.

Filed with the Of!ce of the Secretary of State on June 20, 2006.TRD-200603379Loretta R. DeHayGeneral CounselTexas Real Estate CommissionEffective date: July 10, 2006Proposal publication date: May 19, 2006For further information, please call: (512) 465-3900

TITLE 28. INSURANCE

PART 2. TEXAS DEPARTMENT OFINSURANCE, DIVISION OF WORKERS’COMPENSATIONCHAPTER 126. GENERAL PROVISIONSAPPLICABLE TO ALL BENEFITS28 TAC §126.14The Commissioner of the Division of Workers’ Compensation,Texas Department of Insurance adopts new §126.14, concerningthe treating doctor examination to de!ne the compensable injury.The new section is adopted with changes to the proposed text aspublished in the February 3, 2006, issue of the Texas Register(31 TexReg 671).The new section is necessary as a result of House Bill 7,79th Legislature, Regular Session, effective September 1,2005, which created Labor Code §408.0042 for the purposeof de!ning an injured employee’s compensable injury. LaborCode §408.0042 requires the injured employee to attend oneexamination per workers’ compensation claim with the injuredemployee’s treating doctor at the request of the insurancecarrier. This examination is a voluntary option for insurancecarriers to utilize as a tool in managing claims. The examina-tion’s purpose is to have the injured employee’s treating doctoridentify the speci!c injuries that were caused or aggravated bythe work-related incident or activities. The insurance carrier willmake a determination as to whether the injuries and diagnosesidenti!ed by the doctor are accepted as part of the compensableinjury. The adopted rules also provide direction for participantsin a workers’ compensation health care network establishedunder Insurance Code Chapter 1305.The rule has been restructured and incorporates editorial andgrammatical changes. Changes have also been made as a re-sult of public comment; however, no substantive changes weremade to the rule as proposed. Proposed subsection (d) hasbeen deleted as a result of concerns regarding electronic report-ing in TXCOMP and accessibility to all appropriate parties, andthe subsections have been relettered appropriately. The variousreferences to TXCOMP in the section have been deleted.Subsection (a) relates to the scheduling of a single examinationto de!ne the compensable injury. An insurance carrier elect-ing to utilize this provision must contact the treating doctor andschedule an appointment for the injured employee. The time pe-riod of 15 days from the date the notice is sent to the date of theexamination was selected to provide ample time for mailing andto inform the injured employee that an examination had beenscheduled. This time period allows adequate time for an injuredemployee to make any scheduling arrangements for the exami-nation to accommodate time off work, transportation, and otheraccommodations.Subsection (b) provides that the insurance carrier shall schedulethe examination with the injured employee’s treating doctor. Theinsurance carrier will need to check with the injured employee,the injured employee’s legal representative (if any), the workers’compensation health care network, and/or the Division to verifythat the doctor with whom the examination is being scheduledis the treating doctor and that no requests for change of treatingdoctor have been received or are pending. If there is a ques-tion, the examination should be delayed until the correct doctoris veri!ed. In paragraph (1), additional changes were made toclarify the penalties associated with an insurance carrier’s failure


to schedule the examination with the injured employee’s treatingdoctor of record. If a change in treating doctor occurs, the timingof the doctor change will impact how the results of the exami-nation will be considered. If a doctor change is requested priorto the examination notice, the results of the examination fromthe previous treating doctor may not be used to de!ne the com-pensable injury. The insurance carrier may make a new requestfor an examination with the correct treating doctor. If the doc-tor change is requested after the examination notice, the exam-ination results may be used because the results came from thetreating doctor at the time the notice was sent.Subsection (c) requires an insurance carrier to send a writtennotice of examination. Minor changes were made to the com-pulsory language based on public comment. Paragraph (4)(A)complies with the requirement to provide injured employees withinformation in plain language and to inform injured employeesthat they are required to attend this examination. Paragraph(4)(B) adds a requirement that the insurance carrier includes thename and phone number of the person to be contacted if thedoctor named in the notice of examination is not the treating doc-tor. The injured employee should not attempt to change treatingdoctors after being informed the insurance carrier has scheduledthis examination. Paragraph (4)(C) adds language informing theinjured employee of the requirement that a rescheduled exami-nation take place within seven days of the originally scheduledexamination or at the treating doctor’s !rst available appointmenttime, if no appointments are available during the seven-day pe-riod.Subsection (d) addresses the rescheduling of the examination ifthe injured employee is unable to attend at the time scheduled bythe insurance carrier. Latitude has been provided for reschedul-ing of the examination if the doctor does not have an availableappointment time during that period. Subsection (e) details theconsequences if the injured employee fails to attend the exami-nation.Subsection (f) provides the minimum required information thatshall be included in the treating doctor’s narrative report. Thisincludes direction for situations where additional testing is re-quired to ascertain the full extent of the injury. New mailing re-quirements have been provided. The subsection also outlineshow compensable injuries and diagnoses are to be identi!ed inthe treating doctor’s narrative. As a result of public comment,subsection (f)(3) requires that the treating doctor explain howthe mechanism of injury caused a worsening of a condition if anaggravation of an ordinary disease of life or a preexisting condi-tion is identi!ed as part of the compensable injury.Subsection (g) clari!es the process when diagnostic testing isrequired to de!ne the compensable injury. Subsection (h) clari-!es the allotted time and distribution requirements for the treatingdoctor to submit the narrative report from this examination.Subsection (i) outlines information regarding the reimbursementassociated with this type of examination. The reimbursementis $350, equivalent to the reimbursement for a required medicalexamination. Since this examination is for administrative pur-poses that require additional documentation and its results havesigni!cant bearing on the claim, it is deserving of a higher re-imbursement than for treatment examinations. Testing neces-sary to de!ne the compensable injury shall be reimbursed in ac-cordance with the Medical Fee Guideline §134.202. Testing fornetwork claims shall be reimbursed in accordance with the con-tract between the health care provider and the network. Testingnecessary to con!rm or rule out a diagnosis shall not be retro-

spectively reviewed for compensability if the treating doctor hasdocumented the necessity for the test in de!ning the injury.Subsection (j) outlines the insurance carrier’s responsibilitiesonce the treating doctor has submitted the narrative reportde!ning the injuries and diagnoses the doctor determines werecaused by the mechanism of injury. Changes were madeto clarify the intent of this subsection as it pertains to otherrules and the Act. The revised process (using PLNs ratherthan TXCOMP) requires that any speci!c diagnoses or injuriesdocumented in the treating doctor’s narrative report that theinsurance carrier does not accept as part of the compensableinjury must be denied in accordance with §124.2. Any injury ordiagnosis documented in the treating doctor’s narrative reportthat is not speci!cally denied via a Plain Language Notice (PLN),PLN-1 or PLN-11 will be considered accepted by the insurancecarrier as part of the compensable injury. The terms "symptomsand conditions" were deleted from subsection (j)(1). Changesto this paragraph also address the concerns of commentersregarding the 60-day waiver period. The language clari!es theintent of the paragraph that the insurance carrier may not usethis examination to diminish an injury established under LaborCode §409.021. Subsection (j)(2) re"ects the requirements of§124.3(e) and Insurance Code §1305.153(e).Subsection (k) informs the injured employee of the right to re-quest a bene!t review conference if the insurance carrier deniesthe compensability of speci!c injuries or diagnoses listed in thetreating doctor’s report.Subsection (l) outlines the preauthorization requirements for anytreatment for an injury or diagnosis identi!ed from this examina-tion and denied by the insurance carrier. Language was addedto the subsection to clarify that the preauthorization requirementcontinues only until an injury or diagnosis denied by the insur-ance carrier is determined through dispute resolution or agree-ment of the parties to be part of the compensable injury.Subsection (m) outlines when a health care provider has the rightto pursue dispute resolution for an injury or diagnosis identi!edfrom this examination that the insurance carrier has denied. Thesubsection was restructured to clarify the circumstances when ahealth care provider may pursue an extent of injury dispute.Subsection (n) indicates that once the insurance carrier acceptsspeci!c injuries and diagnoses as related to the compensableinjury, treatment for these injuries and diagnoses shall not bereviewed for compensability.General Comment: Some commenters expressed concern thatthis rule leaves the door open for the injury to expand and buildwhen it appears the statute was intended to end the cycle wherea clear-cut injury begins to "morph" into other regions of the body.The commenters suggested that the insurance carrier should beable to obtain a commitment from the treating doctor’s !ndings,as to what the injury is and all parties should be bound to thisassessment.Agency Response: The Labor Code §408.0042 has not changedor superseded §409.021. Section 408.0042 provides a tool tothe insurance carrier for de!ning the compensable injury at thetime of the examination. However, injured employees are enti-tled to all health care reasonably required by the nature of theinjury. There are circumstances where a compensable injury le-gitimately progresses beyond the initial diagnosis. Treatment forthese new diagnoses cannot be restricted simply because thediagnosis had not developed at the time of the treating doctor’sexamination. If a carrier does not believe that the new diagnoses


are a legitimate progression of the compensable injury, it can dis-pute the diagnoses using the extent of injury process.Comment: Some commenters believe this rule moves beyondthe direction of Labor Code §408.0042(f), which says the Divi-sion may adopt rules "relating to requirements for a report underthis section." Other commenters suggested the Division not at-tempt to micro-manage the process and only be involved in theprocess when there is a dispute.Agency Response: The rule provisions only address the param-eters of the process to ensure that the mandates of the Act areaccomplished. For the process to operate ef!ciently, it is nec-essary that a uniform process and procedure be put in place toensure all participants are aware of their rights and responsibil-ities, as well as to minimize the likelihood of disputes. The Di-vision is only involved when dispute resolution is requested andthe rule does not insert unnecessary regulatory intervention intothe process. Certain requirements such as timeframes, contentand distribution are necessary to minimize the potential for dis-putes and ensure a timely process. Labor Code §§402.00114(a),402.021 and 402.061 provide the rationale, as well as the author-ity, for development of a uniform process.TXCOMP Comment: Numerous commenters indicated concernabout conducting business in TXCOMP at this point in time, fromconcern over certain participants not having internet or claim-speci!c access, to operational issues when the system is down,as well as con!dentiality issues. Several commenters recom-mended that the Division develop a form that uniformly handlesthe process instead.Agency Response: The Division acknowledges commenters’concerns and will not be implementing the treating doctor exam-ination to de!ne the compensable injury process electronicallyat this time. It is anticipated that as technology advances,this process may be incorporated into an electronic system toreduce paper usage and promote higher levels of service sometime in the future. At this time, a paper process will be used.The Division declines to create a new form, but is specifying inthe rule the information and contents required for the varioussubmissions. This includes compulsory language, minimumrequired information, contents of reports, and distribution re-quirements. The information requested does not include anyinformation that would not have been required by TXCOMP.Subsection (a): Several commenters stated that because ofscheduling restrictions, the insurance carrier will have to paya minimum of 24 days of bene!ts before the examination maytake place making it more cost effective to simply dispute thequestionable portions of the claim or to deny the claim in itsentirety. During this 24-day period, the health care provider maybe providing treatment for non-compensable parts of the injuryfor which the provider may not receive reimbursement, which isnot in keeping with the intent of the statute.Agency Response: The Division disagrees. This examinationdoes not have to occur before an insurance carrier may disputeall or part of an injury. Labor Code §408.0042 is just one toolavailable to insurance carriers to help de!ne the compensableinjury. There are potential advantages and disadvantages theinsurance carrier must weigh to determine when and how to usethis tool. If an insurance carrier identi!es questionable portionsof a claim, it may !le a contest of compensability without theadded expense and delay that may be associated with this ex-amination. The only restriction is the requirement that the injuredemployee be at least eight days post-injury when the examina-

tion is requested. The requirement that an examination not bescheduled to occur earlier than 15 days from when the notice ofexamination is sent is to allow the injured employee time to re-ceive suf!cient notice that an examination has been scheduledto make arrangements for time off work, transportation, or otheraccommodations.Subsection (b): Several commenters requested information onhow an insurance carrier was to know if a change of treating doc-tor had been requested and expressed concern over the abilityto verify the treating doctor. A commenter suggested adding thelanguage included in the preamble of the proposed rule regard-ing use of the examination results.Agency Response: An insurance carrier has the responsibil-ity to communicate with the injured employee, the representa-tive (if any), the injured employee’s network and/or the Division(for non-network claims) to verify if a request to change doctorhas been submitted. The Division concurs with the suggestionand has added language indicating the examination results maybe used to de!ne the compensable injury in situations where achange of treating doctor is requested after the notice of the ex-amination has been sent by the insurance carrier.Comment: Some commenters suggested that the burden shouldbe on the injured employee to notify the insurance carrier of achange to treating doctor when a request for an examination hasbeen sent. Numerous commenters recommended adding a sub-section (b)(3) to re"ect language from the preamble advising theinjured employee not to change doctors during the treating doc-tor examination process. The commenters also suggested clar-ifying that requesting a doctor change after notice of the treatingdoctor examination was sent will not invalidate the examinationsresults and will not be a violation.Agency Response: If the injured employee has requested tochange treating doctors, he/she should notify the insurance car-rier immediately upon receipt of notice of the examination. Otherrules establish the procedures an injured employee must followto change doctors. The Division reminds an insurance carrierthat it remains responsible for exercising due diligence in ascer-taining whether an injured employee has changed doctors priorto scheduling an examination. The Division does not have theauthority to impose a moratorium on treating doctor changes,especially when there is a workers’ compensation health carenetwork involved; however, it has added the recommended lan-guage to the compulsory language required on the notice of ex-amination. Subsection (b)(2) was changed to clarify when thereport of the examination may be used.Subsection (b)(1): Several commenters suggested the Divisionremove the administrative penalty associated with failure to ver-ify the treating doctor, indicating the inability to use the reportshould be suf!cient penalty.Agency Response: Labor Code §408.0042(b) speci!cally pro-vides "A medical examination . . . shall be performed by theemployee’s treating doctor." It is only reasonable that if the ex-amination is to be performed by the treating doctor then it is nec-essary that the insurance carrier schedule the examination withthe treating doctor and the language of subsection (b) has beenchanged to clarify this point. An insurance carrier has the dutyto communicate with the injured employee, the representative(if any), the injured employee’s network and/or the Division (fornon-network claims) to verify if a request to change doctors hasbeen submitted. The Division reminds insurance carriers that ifthe examination is scheduled with a doctor other than the treat-


ing doctor, then the insurance carrier is not in compliance withthe Act as well as the rules and administrative penalties may beassessed. It is not necessary for the Division to specify in thetext of a rule that it can take administrative action against insur-ance carriers for violations of the statute and/or rules and thatlanguage has been removed as unnecessary. The Division hasbeen provided statutory authority to take enforcement action forviolations of the statute and rules, as necessary.Subsection (b)(2): A commenter indicated the word "compens-able" should be inserted before "injury" in the second sentenceof this paragraph since it provides that the results of an improperexamination shall not be used.Agency Response: The Division agrees and has made thechange.Subsection (c)(4)(A): A commenter suggested that the compul-sory language required in the notice of examination be changedto comply with plain language requirements, speci!cally to clar-ify for the injured employee the meaning of "compensable." Thecommenter pointed out this subsection provides compulsory lan-guage that informs the injured employee of rights and respon-sibilities related to this examination. The commenter believesthat since this letter is noti!cation that the examination has beenscheduled, the sentence should be changed to an af!rmative di-rective.Agency Response: The Division agrees and has made the sug-gested changes. The rule has been changed to indicate the ex-amination’s purpose is to de!ne the injuries and diagnoses "thatresulted from the work-related incident or activities."Subsection (c)(4)(C): A commenter pointed out that no penaltyamount is de!ned for an injured employee that fails to attendthis examination without good cause. The commenter questionswhether a speci!c penalty amount should be identi!ed, and if so,who would administer the penalty.Agency Response: The Division will make a determination as towhether there was good cause and will assess any penalty foundto be appropriate based on Labor Code §408.0042, §415.021,and Division rules.Comment: A commenter suggested that language directing thatthe examination be rescheduled within seven days of the origi-nal examination date be included in the notice requirements ofsubsection (c)(4)(C).Agency Response: The Division agrees that the timeframe forrescheduling the examination is an important requirement thatthe injured employee should be made aware of and has madethe suggested change.Subsection (e): A commenter suggested the penalty for failureto attend this examination be consistent with the penalties formissed required medical examinations and designated doctorexaminations, allowing an insurance carrier to stop temporaryincome bene!ts until the injured employee attends.Agency Response: The Division disagrees. Application of thisform of penalty for failing to attend the treating doctor examina-tion to de!ne the compensable injury was not included in thestatute. The Division points out the legislature amended thepenalties associated with failure to attend examinations. Tem-porary income bene!ts may only be stopped if an injured em-ployee fails to attend a designated doctor appointment withoutgood cause. This penalty option was removed from requiredmedical examinations.

Subsection (f)(3): A commenter suggested when a doctor in-cludes a diagnosis that is typically an ordinary disease of life,the doctor must describe how the condition has been worsenedby the compensable injury in his report. Another commenterexpressed favor for requiring a treating doctor to describe themechanism of injury and how the diagnoses and injuries the doc-tor is treating were caused by the mechanism of injury.Agency Response: The Division agrees this will be valuable in-formation and has changed subsection (f)(3) to indicate the re-port shall explain how the mechanism of injury caused a wors-ening or exacerbation of the condition when the doctor identi!esan aggravation of a preexisting condition, which includes an or-dinary disease of life.Comment: A commenter indicated there was no provision in therule that a doctor cannot withhold a known diagnosis or what thepenalty would be if such occurred.Agency Response: Labor Code §408.0042(c) requires a doc-tor to list all injuries and diagnoses related to the compensableinjury. Section 126.14 has been changed to clarify this require-ment in subsection (f)(3). The Division reminds doctors that fail-ure to accurately report all diagnoses identi!able at the time ofthe examination could be an administrative violation.Subsection (g): Some commenters noted that the Division ac-knowledged their concerns regarding the time necessary to or-der and complete diagnostic testing by increasing the testingtimeframe from seven to 10 days in the proposed rule. Someof the commenters recommended the Division consider a longerperiod of 14 days and one recommended 20 days.Agency Response: The Division wishes to clarify that the ruleprovides for 10 working days, which is equivalent to two full busi-ness weeks, for testing to be performed. Changing the period to14 calendar days from 10 working days could shorten rather thanlengthen the period for testing, for example when there are inter-vening holidays. Based on comments received, a period of 10working days appears to be suf!cient time to order and completediagnostic testing.Comment: Some commenters indicated that diagnostic testingunder this provision should adhere to the same preauthorizationstandards as in any other circumstance to determine if the test-ing is clinically indicated and that the insurance carrier will needto be noti!ed of any testing recommendation to provide the au-thorization.Agency Response: The Division disagrees. It is necessary toeliminate the preauthorization requirement for diagnostic testingrequired to de!ne the compensable injury. The treating doctormay require tests to con!rm or rule out suspected diagnoses.Denial of preauthorization for diagnostic testing could preventthe treating doctor from de!ning the injury.Comment: Some commenters expressed concern that doctorsmay include every diagnosis they can think of because it may beneeded later. The commenters feel that this will lead insurancecarriers to dispute more diagnoses on claims that would not nec-essarily have had a dispute arise.Agency Response: The Division reminds participants that thedoctor will need to con!rm the injuries and diagnoses that are be-ing de!ned. A suspected injury or diagnosis cannot be included.The treating doctor shall list only speci!c, con!rmed injuries anddiagnoses that are part of the compensable injury. If the doctordoes document con!rmed injuries, the insurance carrier should


deny any that it feels are not related to the compensable injuryso that the dispute may be resolved earlier in the claim process.Subsection (j): A commenter suggested the language in subsec-tion (j) be changed to state, "within 60 days of the date writtennotice of the injury or diagnosis is received . . ." Another com-menter suggested after "within the later of 60 days of the datewritten notice of the injury" adding "or the date the diagnosis isreceived."Agency Response: The Division declines to make the suggestedchanges. It is not necessarily notice of a speci!c diagnosis thattriggers the 60-day period. It is notice of an injury that triggersthe 60-day period. The insurance carrier shall respond to thetreating doctor’s report within 10 working days of receipt of thetreating doctor’s report unless the 10 working days expires priorto the end of the 60 days after receipt of the written notice ofinjury.Comment: A commenter expressed concern that 60 days is toolong a time to make a determination on what is being acceptedas the compensable injury and questioned if this is in con"ict withsubsection (j)(1) and (2).Agency Response: The Division believes there may have beensome confusion regarding the time period for an insurance car-rier to deny injuries and diagnoses on the treating doctor’s report.It will only be in those cases when the examination is requestedvery early in the claim and the 10 working day period expiresprior to the 60th day after the date written notice of the injurywas received, that the period is extended. The period for re-sponding to the treating doctor’s report is extended to the 60thday so it will not interfere with the statutory timeframe for inves-tigating and accepting the compensability of the claim.There is no con"ict within subsection (j). The Division reads La-bor Code §408.0042 and this rule in concert with §409.021. Akey element of statutory construction is that if various statutescan be read in harmony with each other so that all provisionscan be given effect then that is the interpretation that should beutilized. That is what has been done in this situation. There is nocon"ict between Labor Code §408.0042 and §409.021 and thisrule and full effect can be given to all. Additionally, the subsectionindicates the insurance carrier shall not begin denying medicalpayments on the basis of compensability until it has given writtennotice that it is denying the compensability of the diagnosis forwhich the treatment was rendered, in accordance with §124.3(e)and Insurance Code §1305.153(e).Subsection (j)(1): Some commenters questioned the purpose ofsubsection (j)(1) and suggested deletion. They contend it is in-consistent with the changes made to the statute by House Bill7 and re-creates a "Downs"-like situation (Continental CasualtyCo. v. Downs, 81 S.W. 3d 803 (Tex. 2002)) as well as a dis-incentive for the insurance carrier to use a tool created by theLegislature for them. A commenter suggested that if it was theDivision’s concern that subsection (j)(1) may be used to revivea waived injury, a wording change that simply says, "the insur-ance carrier may not use this examination to circumvent its re-sponsibilities to dispute compensability under §409.021" shouldbe suf!cient. A commenter noted the insurance carrier must befairly informed of the injury it is waiving into before it can be com-pelled to accept that injury under the doctrine of waiver and sug-gested the rule has ignored the ’written notice’ requirement fora more subjective ’reasonably discoverable’ standard. Anothercommenter stated that it was not the insurance carrier’s burdento deny non-discovered, non-reported injuries.

Agency Response: The Division has modi!ed subsection (j)(1)to provide that no injury or diagnosis, established under LaborCode §409.021, can be taken away by a subsequent de!nitionof the injury under this section. The Division disagrees with theassessment that the rule is inconsistent with changes made byHouse Bill 7 because Labor Code §409.021 must be read inconcert with new Labor Code §408.0042. Neither §408.0042 northis section creates a waiver. Although there is no waiver refer-ence in §408.0042, §409.021, which is applicable to §408.0042,states the insurance carrier has speci!c responsibilities anddeadlines with regard to liability for a compensable injury. Thetreating doctor examination to de!ne the compensable injuryprocess may not be used to avoid these responsibilities orcorrect an omission. The Division is not attempting to expandon provisions spelled out in other rules; rather it is merely givingfull effect to the various provisions of the Act and showing howother rules work in concert with this provision. The subsectionclari!es that the intent of the paragraph is to give full effectto both §§409.021 and 408.0042 and the results de!ned bythe treating doctor examination cannot diminish any injuryestablished by a waiver determination. The Division concursthat the insurance carrier must receive written notice of an injuryto trigger its duty to investigate the claim and a reasonableinvestigation would fairly inform the insurance carrier of theinjuries. The commenter is incorrect in stating the insurancecarrier has no duty to investigate the injury.Comment: Some commenters disagreed with the use of thewords "symptoms and conditions" as these words do not qualifyas injuries under the Act and Labor Code §408.0042 addressesonly "injuries and diagnoses." Some commenters recommendedthe rule be con!ned to the scope of the statute and these termsbe removed.Agency Response: The Division has removed the terms "symp-toms and conditions" from subsection (j)(1) but notes that symp-toms and conditions are compensable if they are related to thecompensable injury.Comment: Several commenters stated that subsection (j) im-plies that a causative link between work and the injuries and di-agnoses did not have to be made, exposing insurance carriersto liability for every health condition ever suffered by the injuredemployee. As a result, insurance carriers would be inclined togenerate blanket denials on every claim, which con"icts with theintent of House Bill 7.Agency Response: The Division clari!es that the purpose of sub-section (j)(1) is to clarify that the !ndings of a treating doctor ex-amination do not change compensability established as a resultof waiver under Labor Code §409.021.Subsection (j)(2): Several commenters expressed concern overthe requirement that insurance carriers not deny reimbursementfor medical care on the basis of compensability prior to !linga written denial of compensability. Their concern was not onlyabout making an insurance carrier liable for non-compensablemedical costs, but also that a doctor may increase the amountof treatment provided during this "free" period when it is antic-ipated that the insurance carrier will deny a condition. Severalcommenters suggested insurance carriers be given at least 10days from the date the doctor’s report is received, to evaluate thereport, before the insurance carrier is required to pay for medicaltreatment.Agency Response: An insurance carrier has 10 working daysto evaluate the treating doctor’s report before it must accept all


the injuries or dispute speci!c diagnoses. The insurance carriermust deny the compensability of a diagnosis before it may denyreimbursement for treatment rendered for that diagnosis on thebasis that it is non-compensable. This is consistent with existingrules and statute.Subsection (k): A commenter recommends adding a require-ment that the injured employee has only 30 days after receivingthe denial to request a bene!t review conference to ensure thatdisputes are brought early for resolution.Agency Response: The Division believes it is unnecessary atthis time to address a timeframe for requesting a bene!t reviewconference. The Division also notes that the proposed rule didnot propose a timeframe for this request and it is unable to makethis type of change in the adopted rule.Comment: Some commenters recommended that the insurancecarrier be allowed to notify the treating doctor of any denials ofdiagnoses identi!ed from this examination by any means, suchas by phone, and not provide written notice.Agency Response: The Division disagrees. An insurance car-rier must provide the treating doctor with written notice whenspeci!c injuries or diagnoses, identi!ed in the "exam to de!nethe compensable injury" report, have been denied. The Divisionencourages written notice to be transmitted by facsimile or elec-tronic transmission to the treating doctor when the doctor hasthe means to receive such transmissions.Subsection (l): Several commenters requested clari!cationof the services/treatments that require preauthorization under§§126.14 and 134.600. Speci!cally, the commenters questionedwhether all services listed in §134.600 require preauthorizationregardless of the treating doctor exam; and whether all otherservices not subject to §134.600 require preauthorization under§126.14. One commenter asked the Division to reconsider thisconcept as it may result in signi!cant costs associated withpreauthorization.Agency Response: For non-network claims, all the serviceslisted in §134.600 must be preauthorized regardless of theresults of a treating doctor examination. In network claims,§134.600 is not applicable and each network will establish itsown list of services that require preauthorization. However, inboth network and non-network claims, preauthorization is notrequired for diagnostic tests ordered by the treating doctor toestablish a diagnosis under subsection (g).Regardless of any network af!liation, all services and treatmentsrelated to a denied injury or diagnosis identi!ed in the treat-ing doctor’s examination under §126.14 require preauthoriza-tion. These preauthorization requirements are required by LaborCode §408.0042(d).Comment: A commenter stated that it is not reasonable to pro-vide a preauthorization process for treatment of injuries deniedby the insurance carrier since preauthorization cannot commenton compensability.Agency Response: The statutory provision that precipitated thisrule requires the insurance carrier to accept all diagnoses iden-ti!ed in the examination as related to the compensable injury orto dispute the determination of a speci!c diagnosis. It goes on torequire preauthorization for treatment of any diagnosis that wasdisputed to allow the possibility of care while dispute resolutionis in process. The rule has been written to re"ect the statutorylanguage.

Subsection (m): A commenter suggested that the Division clarifythat the treating doctor cannot later dispute his own assessment.Agency Response: The health care provider may only pursuean extent of injury dispute under Labor Code §408.0042 or as asub-claimant under Labor Code §409.009. There is no provisionthat permits a treating doctor, or a subsequent treating doctor, tochange the contents of a previously !led report, changing thede!nition of the compensable injury. However, in accordancewith §408.021, there can be no provision that keeps additionalinjuries from being established as part of the compensable injury.Comment: A commenter questioned why a provider should beallowed to request a bene!t review conference for an extent ofinjury dispute if the injured employee is not pursuing and theprovider has not incurred charges.Agency Response: Labor Code §408.0042(d) speci!cally allowsan affected health care provider to !le an extent of injury dis-pute if an insurance carrier denies preauthorization because thetreatment is for an injury unrelated to the compensable injury.However, subsection (m)(1) has been changed to clarify that ahealth care provider may not request a bene!t review conferenceto address an extent of injury dispute if the injured employee hasalready requested a bene!t review conference for this issue.Comment: A few commenters suggested a health care providermay only request a bene!t review conference when the insur-ance carrier denies preauthorization based on an extent of injurydispute. The commenters noted that a dispute regarding medi-cal necessity is subject to the provisions of §133.308 not Chapter141.Agency Response: The Division agrees that a health careprovider may only request a bene!t review conference underLabor Code §408.0042(d) to address an extent of injury denial.Questions related to medical necessity are handled throughmedical dispute resolution.Subsection (n): A number of commenters requested the Divisionadd a provision allowing an insurance carrier to contest extent ofinjury of an accepted condition at a later time if newly discoveredevidence was obtained. They suggested the rule was too abso-lute in this area and the statute does not provide the Divisionwith the authority to limit the insurance carrier’s ability to raisean extent issue.Agency Response: The Division clari!es that the insurance car-rier may reopen the issue of compensability for the claim as awhole as provided by Labor Code §409.021, but not for extentof injury issues. Labor Code §408.0042 states treatment for in-juries or diagnoses that have been accepted are not subject toreview for compensability but may be reviewed for medical ne-cessity. Allowing the insurance carrier to contest an injury afteraccepting that injury or diagnosis would negate the intent of theprovision to identify and resolve disputes early in the claim.Comment: A commenter stated that subsection (n) is not man-dated by statute. The commenter asserted that it must be madeclear that while an insurance carrier is liable for accrued medicalbene!ts after the insurance carrier has accepted some or all ofthe injuries or diagnoses in the treating doctor’s report, the in-surance carrier may subsequently dispute those injuries and notbe liable for future treatment.Agency Response: The Division disagrees as the subsectionis mandated by Labor Code §408.0042(e), which provides thatany treatment for an injury or diagnosis that is accepted by theinsurance carrier may not be reviewed for compensability, only


for medical necessity. It is accepted that this also allows reviewfor compliance with fee guidelines. The purpose of this provisionis to give all participants the opportunity to establish the natureof the injury and to resolve disputes over the nature of the injuryearly in the claim. If the insurance carrier had the opportunity tosubsequently dispute accepted conditions, it would negate thepurpose of the provision.For, with changes: Employers Claims Adjustment Services, Inc.;Texas Association of School Boards; Lockheed Martin Aeronau-tics Co.; Hammerman and Gainer; Flahive, Ogden and Latson;Of!ce of Injured Employee Counsel; American Insurance Asso-ciation; Texas Mutual Insurance Co.; The Boeing Co.; InsuranceCouncil of Texas; Medical Equation, Inc.; Property Casualty In-surers of America; Association of Fire and Casualty Insurers ofTexas. Neither for or Against: Texas Medical Association; TIRRSystems; Fair Isaac Corp.; Healthsouth.The new section is adopted under the Labor Code §§408.0042,402.00111, and 402.061. Section 408.0042 provides for a med-ical examination by the treating doctor to de!ne the compens-able injury. Section 402.00111 provides that the Commissionerof Workers’ Compensation shall exercise all executive authority,including rulemaking authority, under the Labor Code and otherlaws of this state. Section 402.061 authorizes the Commissionerto adopt rules necessary to administer the Act.§126.14. Treating Doctor Examination to De!ne the CompensableInjury.

(a) On request of the insurance carrier, an injured employee isrequired to submit to a single examination per workers’ compensationclaim for the purpose of de!ning the compensable injury. The exami-nation:

(1) shall not be requested prior to the eighth day after thedate of injury, and

(2) shall be scheduled to occur no earlier than 15 days andno later than 30 days from the date the notice of examination is sent tothe injured employee.

(b) The insurance carrier shall schedule the examination withthe injured employee’s treating doctor. If a request to change treat-ing doctor has been !led by the injured employee, the insurance car-rier shall not schedule this examination until after the treating doctorchange has been processed.

(1) An insurance carrier that schedules the examinationwith a doctor other than the injured employee’s treating doctor shallbe liable for reimbursement of the examination and testing.

(2) The examination !ndings may only be used to de!nethe compensable injury when provided by the treating doctor of recordat the time the notice of examination was sent to the injured employee.The report by a doctor other than the treating doctor of record at the timethe notice of examination was sent shall not be used for the purpose ofde!ning the compensable injury.

(c) The insurance carrier shall send the injured employee awritten notice of examination. A copy of a notice of examination shallbe sent to the injured employee’s representative (if any). The notice ofexamination, at a minimum, shall include:

(1) general information identifying the claim;(2) the name of the treating doctor;(3) the date, time, and the location of the scheduled exam-

ination with the treating doctor named; and

(4) the following statements in a bold font equal to the fontsize in the main body of the notice:

(A) The insurance carrier requests that you, the injuredemployee, attend a single examination for this workers’ compensationclaim for the sole purpose of de!ning the injuries and diagnoses thatresulted from the work-related incident or activities. Section 408.0042of the Labor Code requires you to attend.

(B) If the doctor named in this notice is not your treatingdoctor, immediately contact the insurance carrier (add name and phonenumber of contact person) or the Texas Department of Insurance, Di-vision of Workers’ Compensation. You are not required to attend thisexamination with a doctor other than your treating doctor, unless thedoctor was your treating doctor on the day the notice of examinationwas sent to you. Once you receive notice of this examination, youshould not request to change treating doctor until after the examinationhas been conducted.

(C) You are responsible for contacting your doctor toreschedule the examination if you have a con"ict with the date andtime that has been scheduled for you. The rescheduled examinationshall take place within seven days of the originally scheduled date orthe doctor’s !rst available appointment date. If you fail to attend theexamination at the time scheduled or rescheduled without good cause,an administrative penalty may be assessed.

(d) If a scheduling con"ict exists, the injured employee shallimmediately contact the treating doctor to reschedule the examination.The examination must be rescheduled to take place within seven work-ing days of the original examination or the doctor’s !rst available ap-pointment date.

(e) An injured employee who fails or refuses to appear at thetime scheduled for an examination may be assessed an administrativepenalty unless good cause exists for such failure. An injured employeewho fails to submit to an examination at the insurance carrier’s requestdoes not commit an administrative violation if the doctor named on thenotice of examination is not the injured employee’s treating doctor.

(f) The treating doctor shall submit a narrative report after theconclusion of the examination. The report shall contain, at a minimum:

(1) general information that identi!es the claim;(2) a description of the mechanism of injury;(3) a list of all speci!c, con!rmed diagnoses, including

ICD-9 codes and the narrative description, that the doctor considers tobe related to the compensable injury. The explanation shall describehow the mechanism of injury is a cause of each diagnosis. If the doctoridenti!es an aggravation of any pre-existing condition, includingan ordinary disease of life, the explanation shall describe how themechanism of injury caused a worsening, acceleration, or exacerbationof that pre-existing condition; and

(4) a list of each diagnostic test performed, if required toestablish a diagnosis, including an explanation of why it was appropri-ate to perform each test to de!ne the compensable injury.

(g) Any diagnostic testing necessary to de!ne the compens-able injury shall be performed no later than 10 working days after theexamination and is not subject to the preauthorization requirements ofeither §134.600 of this title (relating to Preauthorization, ConcurrentReview, and Voluntary Certi!cation of Health Care) or a worker’s com-pensation health care network under Insurance Code Chapter 1305 orChapter 10 of this title (relating to Workers’ Compensation Health CareNetworks).


(h) The treating doctor shall submit a copy of the narrative re-port to the insurance carrier, the injured employee, and the injured em-ployee’s representative (if any) no later than 10 days after the conclu-sion of the examination. If diagnostic testing is required to de!ne thecompensable injury, the !ling of the report is extended to seven daysafter the conclusion of the testing.

(i) A treating doctor may bill, and the insurance carrier shallreimburse, for an examination performed under this section.

(1) Treating doctors shall bill for the examination using theHealthcare Common Procedure Coding System (HCPCS) Level I code,Evaluation and Management Section, for work-related or medical dis-ability evaluation services performed by a treating physician. A Divi-sion modi!er of "TX" shall be added to the Level I code.

(2) Reimbursement for the examination shall be $350. Re-imbursement for the report is included in the examination fee. Doctorsare not required to submit a copy of the report with the bill if the reportwas previously provided to the insurance carrier.

(3) Testing necessary to de!ne the compensable injuryshall be billed using the appropriate billing codes and reimbursedin addition to the examination fee. Reimbursement for testing shallnot be retrospectively reviewed on the basis of compensability if thedoctor has documented a rationale for why the testing was necessaryfor de!ning the compensable injury.

(j) An insurance carrier shall review the injuries and diagnosesidenti!ed in the treating doctor’s report. If a speci!c injury or diagnosisis not accepted as part of the compensable injury, the insurance carriershall !le a denial in accordance with §124.2 of this title (relating toCarrier Reporting and Noti!cation Requirements) within the later of60 days after the date written notice of the injury is received or within10 working days of receipt of the treating doctor’s report. In addition tothe distribution requirements outlined in §124.2 of this title, a copy ofthe written denial shall be sent to the treating doctor by fax or electronictransmission unless the recipient does not have the means to receivesuch transmission in which case the notice shall be personally deliveredor sent by mail.

(1) A compensable injury established as a result of a waiverdetermination under Labor Code §409.021, is not affected by a de!ni-tion of the compensable injury under §408.0042.

(2) The insurance carrier shall not deny reimbursement fortreatment of any injury or diagnosis listed in the treating doctor’s reporton the basis of compensability or relatedness prior to !ling a denial asrequired by §124.2 of this title.

(k) The injured employee may initiate a request for a bene-!t review conference in accordance with Labor Code §410.023 and§141.1 of this title (relating to Requesting and Setting a Bene!t Re-view Conference) upon receiving a denial regarding speci!c injuriesor diagnoses.

(l) If the insurance carrier denies an injury or diagnosis identi-!ed in this examination, all treatment for that injury or diagnosis mustbe preauthorized prior to treatment occurring. For the treating doctor,the insurance carrier’s denial is effective on the date the written noticeof denial is received by the doctor. The preauthorization requirementcontinues until the injury or diagnosis is determined to be part of thecompensable injury through dispute resolution or agreement of the par-ties.

(m) A health care provider may request a bene!t review con-ference, in accordance with §141.1 of this title, to address an extentof injury question if a request for preauthorization has been denied for

treatment of an injury or diagnosis that was denied as unrelated to thecompensable injury under this section; unless:

(1) the injured employee has already requested a bene!treview conference to pursue the extent of injury denial, or

(2) an agreement, !led in accordance with §147.4 of thistitle (relating to Filing Agreements with the Commission, EffectiveDates) has been entered into by the insurance carrier and injured em-ployee establishing the insurance carrier’s liability on the disputed is-sues.

(n) Once the treating doctor has de!ned the compensable in-jury and the insurance carrier has accepted injuries or diagnoses as re-lated, the insurance carrier shall not review treatment of the acceptedinjuries and diagnoses for compensability.This agency hereby certi!es that the adoption has been reviewedby legal counsel and found to be a valid exercise of the agency’slegal authority.

Filed with the Of!ce of the Secretary of State on June 19, 2006.TRD-200603369Norma GarciaGeneral CounselTexas Department of Insurance, Division of Workers’ CompensationEffective date: July 9, 2006Proposal publication date: February 3, 2006For further information, please call: (512) 804-4288

TITLE 40. SOCIAL SERVICES AND ASSIS-TANCEPART 20. TEXAS WORKFORCECOMMISSIONCHAPTER 800. GENERAL ADMINISTRATIONThe Texas Workforce Commission (Commission) adopts the re-peal of the following sections of Chapter 800 relating to GeneralAdministration:Subchapter B. Allocations, §800.73 and §800.74The Commission adopts the following new sections of Chapter800 relating to General Administration:Subchapter B. Allocations, §800.73 and §800.74The Commission adopts amendments to the following sectionsof Chapter 800 relating to General Administration:Subchapter B. Allocations, §§800.52, 800.71, and 800.75PART I. PURPOSE, BACKGROUND, AND AUTHORITYPART II. EXPLANATION OF INDIVIDUAL PROVISIONS WITHCOMMENTS AND RESPONSESPART I. PURPOSE, BACKGROUND, AND AUTHORITYThe purpose of the adopted Chapter 800 rule change is to es-tablish an integrated policy for the deobligation and realloca-tion of Local Workforce Development Board (Board) adminis-tered funds. This policy will further the Commission’s support ofan integrated workforce system and will promote cost bene!tsthrough improved, administrative ef!ciencies in the local work-force development areas (workforce areas).


In addition, amendments are adopted to re"ect changes pur-suant to House Bill (HB) 2604, enacted by the 79th Texas Leg-islature, Regular Session (2005), which directs the transfer ofthe Disabled Veterans’ Outreach Program and Local Veterans’Employment Representative grant from the Agency to the TexasVeterans Commission.The adopted changes ful!ll statutory requirements embodiedin Texas Labor Code §301.001, as amended, establishing theCommission to:(1) operate an integrated workforce development system in thisstate, in particular through the consolidation of job training, em-ployment, and employment-related programs;(2) standardize, simplify, and make more consistent the proce-dure of determining amounts for deobligation and reallocation;(3) streamline and achieve administrative ef!ciency and effec-tiveness in order to foster the integration of workforce develop-ment programs, minimize administrative burdens and costs, andmaximize the proportion of funding available for services; and(4) delete various obsolete provisions, add to various provisionsto make references more accurate and complete, and make var-ious technical corrections.Additionally, Texas Labor Code §302.002 directs the Agency’sexecutive director to:(1) consolidate the administrative and programmatic functions ofthe programs under the authority of the Commission to achieveef!cient and effective delivery of services; and(2) contract with the Boards for program planning and servicedelivery.Based on the Commission’s commitment to an integratedworkforce development system-wherein siloed funding streamsand diverse programs are blended into a functionally uni!edwhole-the Commission requested and received two waiversfrom the U.S. Department of Labor (DOL). The purpose ofthe waivers was to align the policies for the deobligation andreallocation of Board-administered funds. By standardizingand making the procedure of deobligation and reallocationmore consistent, the Commission promotes the integration andadministration of workforce development programs.The waivers allow the Commission to make midyear deobli-gations and reallocations in order to better manage workforcefunding. Based on the approved waivers, the rules have beenamended to allow deobligations based on an evaluation ofa Board’s expenditures, pertinent performance data, and areasonable cost per participant in months !ve through eightof the appropriate program year for each funding source, andto integrate the processes for the reallocation of funds. Thisprocess is more responsive and allows the Commission to betteraddress the changing needs of workforce areas. Should anyrelated federal waivers expire, the Commission will be subjectto federal requirements in effect at that time.The Commission believes that having its actions clearly delin-eated in rule provides the best opportunity for the Boards andthe Commission to have a common understanding of how ex-penditures and performance are reviewed, and the impact of thereview on potential deobligations. Boards have consistently per-formed well, ensuring that services are available throughout theirworkforce areas, but at times the expenditures and performanceindicate that the formula for the allocation may be lagging behindcurrent local economic conditions. The Commission encourages

Boards to resize their program and, where appropriate, makevoluntary deobligations.As noted, Boards’ performance has permitted the Commissionto minimize deobligations. Over the past six years, the Com-mission has deobligated less than two-thirds of one percent ofblock grant allocations to workforce areas. The Commission’srecord of carefully considered, judicious, and extremely modestdeobligations further serves to promote its guiding principle: themost successful deobligation policy results in no deobligations,because services are being provided and funds expended in theworkforce area to which they are allocated.The Commission embraces this concept and supports Boardsin their efforts to meet employers’ needs for quali!ed workers.The adopted rules establish clear standards for potential deobli-gations and reallocations to further foster ongoing and substan-tive communications between the Commission in its oversightrole, and the Boards in their role as stewards of the funds. Theadopted rule establishes a common framework for measuringthe local service delivery system against the needs-based formu-las established by statute and regulation. Moreover, the adoptedrule provides a signi!cant opportunity for the Boards to offer in-formation that informs the Commission about any activities orchanges in the local economy that might mitigate a deobligation.The adopted rules further support the Commission’s goal of anintegrated workforce system and allow for increased ef!ciencyin meeting the workforce development needs of employers andjob seekers.PART II. EXPLANATION OF INDIVIDUAL PROVISIONS(Note: Minor, nonsubstantive editorial changes are madethroughout Subchapter B of this chapter that do not change themeaning of the rules and, therefore, are not discussed in theExplanation of Individual Provisions.)SUBCHAPTER B. ALLOCATIONSGeneral CommentsComment: One commenter thanked the Commission for the op-portunity to comment and expressed support of the rule changes.Response: The Commission appreciates the comment.§800.52. De!nitionsThe Commission adopts new §800.52(10), the de!nition of "rel-ative proportion of the program year."§800.71. General Deobligation and Reallocation ProvisionsThe Commission adopts the amendment of §800.71(b)(7) by re-moving the reference to "Veterans’ Employment and Training"as a category of funding to re"ect the direction of HB 2604.Therefore, §§800.71(b)(8) - 800.71(b)(10) are renumbered asnew §§800.71(b)(7) - 800.71(b)(9), respectively.§800.73. Child Care Match Requirements and DeobligationThe Commission adopts the repeal of §800.73, Expenditure, Lo-cal Match, and Obligation Levels, and adopts new §800.73, ChildCare Match Requirements and Deobligation, which delineatesthe policy to which Boards must adhere for securing local childcare matching funds, as well as the policy for potential deobliga-tions of federal child care funds that remain unmatched after thefourth month of the program year.§800.74. Deobligation of Funds


The Commission adopts the repeal of §800.74 and adopts new§800.74, which establishes an integrated deobligation policy.Currently, with the exception of WIA formula allocated funds,funds may be deobligated at the end of the third and ninthmonths of the program year. Federal Trade Adjustment Assis-tance Act funds have an additional point for deobligation at thesixth month. The Commission believes the current three-monthpoint for deobligation occurs too soon during the program yearto fully analyze the relationship between expenditures, servicedelivery design, and performance-and the ninth month is too latein the program year to adequately align reallocations, servicedelivery design, and enhancements to performance. There-fore, for all Board-administered funds including WIA formulaallocated funds, the Commission adopts the replacement of thecurrent three-month, six-month, and nine-month deobligationpoints with a new midyear deobligation period that begins atthe end of the !fth month and continues through the end of theeighth month in the !rst year of funds availability. The adopteddeobligation of Board-administered funds, if applicable, wouldbe based on expenditures, pertinent performance data, andrelated cost per participant data occurring during the !fth monthand continuing through the eighth month. For WIA formulafunds, the Commission will review data during the !rst programyear of funds availability in the appropriate program year.Comment: One commenter stated that obligations should beconsidered in this rule because often training institutions do notsubmit invoices that align with benchmarks. The commenterasked how the "cost per participant" would be determined,whether Boards would be benchmarked against one another,and how pertinent performance data would be determined. Ad-ditionally, the commenter stated that the "pertinent performancedata" and the "related cost per participant data" is too vague,and stated that the Boards did not have input into the de!nitionor methodology.Response: The Commission appreciates that Boards face chal-lenges with the late billing procedures of many community col-leges. The Commission, however, believes that the rules ad-dress these challenges by allowing Boards to offer supportingdocumentation-such as information regarding obligations, inputon performance issues, and local policies or anomalies affectingthe cost per participant-prior to any action the Commission mighttake regarding a deobligation.Further, the Commission’s intent is not to benchmark one Boardagainst another. The Commission believes that the rule is clearin its description of how a reasonable cost per participant is es-tablished. The rule sets out four criteria for determining reason-ableness of per participant costs, which support an understand-ing of each Board’s service delivery system as well as any re-cent actions that may affect a Board’s formula allocations andrelevant local factors.Because the rule applies to well-de!ned funding streams, whichinclude Child Care, WIA Formula funds, and other Board-con-tracted funds, the rule is clear that the review of pertinent or ap-plicable performance is associated with the funding stream thathas failed to meet the expenditure benchmark.It is the Commission’s intent to establish a clear understandingof the de!nitions and methodology for the recommendations re-garding potential deobligations of certain funding streams. TheCommission further believes that the proposed rules providedBoards with the greatest opportunity to provide critical informa-tion.

Additionally, the adopted rules set forth another deobligationpoint for WIA funds at the end of the !rst year of funds availabil-ity if Boards have not expended 80% of each category of WIAformula funds.Boards will be noti!ed by the Commission of any potential deobli-gations and will be encouraged to voluntarily deobligate any ex-cess funding or provide justi!cation for projected expenditures,as set forth in the adopted rule.For Board-administered funds other than WIA formula allocatedfunds, the Commission will base a potential deobligation on eachBoard’s expenditure of an amount equal to 90% of the corre-sponding proportion of the category of funds for each of the pre-vious three months. For WIA funds, the Commission will base apotential deobligation on each Board’s expenditure of an amountequal to 80% of the corresponding proportion of the categoryof WIA formula allocated funds for each of the previous threemonths.Funds contracted within sixty days prior to a period during whichthe Board may be subject to deobligations will not be subject todeobligation.It is important to note that the Commission currently has estab-lished an incentive for reaching an 80% expenditure benchmarkfor WIA formula allocated funds. Boards that reach the 80% ex-penditure threshold at the end of the !rst program year are eligi-ble to receive the Commission’s Statewide Activity funds, someof the most "exible federal dollars available for unique local ini-tiatives.If a Board fails to meet the 90% or 80% expenditure bench-marks for any three-month period, the Commission will review aBoard’s performance for the appropriate category of funds, andthe reasonableness of the cost per participant for that category offunds. In reviewing a Board’s performance, the Commission willdetermine whether 95% of the applicable performance measurehas been achieved. Additionally, the Commission will determinewhether a Board has achieved a reasonable cost per participant,based upon the factors set forth in §800.74(d)(2)(A) - (E).The adopted rule clari!es that the amount the Commission maydeobligate is no greater than the difference between a Board’sactual expenditures as of the end of the third consecutive monthin which a Board has failed, and the relative proportion of theprogram year’s expected expenditures.Recognizing that an individual workforce area’s service deliverysystem presents unique opportunities and challenges, the Com-mission is permitting an opportunity for Boards to justify theircurrent and projected expenditure levels, pertinent performancedata, and service levels prior to the Commission’s considerationof a potential deobligation of Board-administered funds, includ-ing WIA formula allocated funds.§800.75. Reallocation of FundsCurrently, funds administered by the Commission, with the ex-ception of WIA formula allocated funds, are reallocated to eli-gible workforce areas based on criteria in §800.75(a). A sep-arate method for reallocating WIA formula allocated funds hasbeen employed to address statutory requirements set forth inWIA §128 and §133. Under WIA, all workforce areas not subjectto a deobligation receive amounts available for reallocation. Un-like other Board-administered funds, no consideration has beengiven to a workforce area’s demonstrated need, capacity, or cur-rent or past performance.


A waiver granted by the DOL waives federal requirements setforth in WIA §128 and §133 and authorizes the Commission toreallocate recaptured WIA formula funds to workforce areas us-ing the same procedures and criteria the Commission employsfor other Board-administered funds. The waiver will promotemaximum expenditure of recaptured funds, enabling the Com-mission to streamline administrative practices and further en-hance the Texas workforce system’s effectiveness in meeting theneeds of employers and job seekers.Therefore, the Commission adopts the amendment of§800.75(a) by including WIA formula allocated funds. TheCommission also adopts the removal of §800.75(a)(2) and§800.75(b)(3) because these paragraphs are no longer ap-plicable. The Commission seeks to facilitate the maximumexpenditure of deobligated Board-administered funds throughthe redistribution of WIA funds to workforce areas that haveachieved not only targeted expenditure levels but also have metestablished performance targets. Redistributing funds basedsolely on whether a Board achieves its expenditure target doesnot fully address performance issues-such as whether the Boardhas met employers’ needs for a highly skilled and job-readyworkforce.The Commission also adopts the amendment of §800.75(a) and§800.75(b)(1) by removing the reference to "Veterans’ Employ-ment and Training" funds to re"ect the direction of HB 2604. Ad-ditionally, the Commission adopts §800.75(b)(1) to include WIAformula allocated funds.Effective DateThe Commission adopts that the provisions regarding the deobli-gation of WIA formula allocated funds based upon 80% of the rel-ative proportion of the program year shall be in effect starting withProgram Year 2006 funds (beginning July 1, 2006). The Com-mission further adopts that the provisions regarding the deobli-gation of non-WIA formula allocated funds based upon 90% ofthe relative proportion of the program year shall be in effect start-ing with Program Year 2007 funds (beginning October 1, 2006).COMMENTS WERE RECEIVED FROM:Shawna Chambers, on behalf of Workforce Solutions BrazosValleyJanie Bates, on behalf of Workforce TexomaThe Agency hereby certi!es that the adoption has been reviewedby legal counsel and found to be within the Agency’s legal au-thority to adopt.SUBCHAPTER B. ALLOCATIONS40 TAC §§800.52, 800.71, 800.73 - 800.75

The rules are adopted under Texas Labor Code §301.0015 and§302.002(d), which provide the Texas Workforce Commissionwith the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The adopted rules affect Title 4, Texas Labor Code, particularlyChapters 301 and 302.This agency hereby certi!es that the adoption has been reviewedby legal counsel and found to be a valid exercise of the agency’slegal authority.

Filed with the Of!ce of the Secretary of State on June 22, 2006.TRD-200603421Reagan MillerDeputy Director for Workforce and UI PolicyTexas Workforce CommissionEffective date: July 12, 2006Proposal publication date: April 21, 2006For further information, please call: (512) 475-0829

40 TAC §800.73, §800.74The repeals are adopted under Texas Labor Code §301.0015and §302.002(d), which provide the Texas Workforce Commis-sion with the authority to adopt, amend, or repeal such rules as itdeems necessary for the effective administration of Agency ser-vices and activities.The adopted repeals affect Title 4, Texas Labor Code, particu-larly Chapters 301 and 302.This agency hereby certi!es that the adoption has been reviewedby legal counsel and found to be a valid exercise of the agency’slegal authority.

Filed with the Of!ce of the Secretary of State on June 22, 2006.TRD-200603423Reagan MillerDeputy Director for Workforce and UI PolicyTexas Workforce CommissionEffective date: July 12, 2006Proposal publication date: April 21, 2006For further information, please call: (512) 475-0829


Proposed Rule ReviewCredit Union DepartmentTitle 7, Part 6The Texas Credit Union Commission will review and consider forre-adoption, revision, or repeal Chapter 95, §95.100, Account Insur-ance; §95.200, Appointment of Liquidating Agent; §95.300, Share andDeposit Guaranty Credit Union; §95.301, Authority for a GuarantyCredit Union; §95.302, Powers; §95.303, Subordination of Right,Title, or Interest; §95.304, Accounting for Membership InvestmentShares; §95.305, Audited Financial Statements; Accounting Proce-dures; Reports; and §95.306, Requirements of Member Credit Unionsof Title 7, Part 6 of the Texas Administrative Code in preparation forthe Commission’s Rule Review as required by §2001.039, Govern-ment Code.An assessment will be made by the Commission as to whether the rea-sons for adopting or readopting these rules continue to exist. Each rulewill be reviewed to determine whether it is obsolete, whether the rulere"ects current legal and policy considerations, and whether the rulere"ects current procedures of the Credit Union Department.Comments or questions regarding these rules may be submitted inwriting to, Credit Union Department, 914 East Anderson Lane, Austin,Texas 78752-1699, or electronically to [email protected]. Thedeadline for comments is August 31, 2006.The Commission also invites your comments on how to make theserules easier to understand. For example:

* Do the rules organize the material to suit your needs? If not, howcould the material be better organized?* Do the rules clearly state the requirements? If not, how could the rulebe more clearly stated?* Do the rules contain technical language or jargon that isn’t clear? Ifso, what language requires clari!cation?* Would a different format (grouping and order of sections, use of head-ings, paragraphing) make the rule easier to understand? If so, whatchanges to the format would make the rule easier to understand?* Would more (but shorter) sections be better in any of the rules? If so,what sections should be changed?Any proposed changes to these rules as a result of the rule review willbe published in the Proposed Rules section of the Texas Register. Theproposed rules will be open for public comment prior to !nal adoptionby the Commission.TRD-200603465Harold E. FeeneyCommissionerCredit Union DepartmentFiled: June 27, 2006

RULE REVIEW July 7, 2006 31 TexReg 5469

TABLES AND GRAPHICS July 7, 2006 31 TexReg 5471

TABLES AND GRAPHICS July 7, 2006 31 TexReg 5473

Brazos Valley Council of GovernmentsNotice of Release of Request for Proposal for FinancialMonitoringOn June 28, 2006 the Brazos Valley Council of Governments(BVCOG) and Workforce Solutions Brazos Valley Board (WSBVB)will release a Request for Proposal (RFP) for independent !nancialmonitoring services for the Brazos Valley Workforce DevelopmentArea. Monitoring Services must be conducted by a certi!ed publicaccountant. The workforce center system serves Brazos, Washington,Robertson, Burleson, Madison, Leon, and Grimes counties. Anoriginal and four copies of a written proposal are due to the Board’sof!ces no later than 4:00 p.m. July 28, 2006. No responses will beaccepted after this deadline. Questions may be submitted by email toVonda Morrison at [email protected] or faxed to (979) 595-2810,no later than July 14, 2006. Answers to submitted questions will beposted on the Board’s web page www.bvjobs.org. The contact personfor this RFP is Vonda Morrison, Workforce Solutions Brazos ValleyBoard, P.O. Drawer 4128, Bryan, TX 77805 or by phone at (979)595-2800, or by email at [email protected] WilkinsonExecutive DirectorBrazos Valley Council of GovernmentsFiled: June 26, 2006

Texas Building and Procurement CommissionRequest for ProposalThe Texas Building and Procurement Commission (TBPC), on behalfof the Texas Department of Public Safety (DPS), announces the is-suance of Request for Proposal (RFP) #303-6-11362. TBPC seeks aten (10) year lease of approximately 3,454 square feet of of!ce spacein Abilene, Taylor County, Texas.The deadline for questions is July 6, 2006 and the deadline for propos-als is July 25, 2006 at 3:00 P.M. The anticipated award date is August31, 2006. TBPC reserves the right to accept or reject any or all propos-als submitted. TBPC is under no legal or other obligation to executea lease on the basis of this notice or the distribution of a RFP. Neitherthis notice nor the RFP commits TBPC to pay for any costs incurredprior to the award of a grant.Parties interested in submitting a proposal may obtain information bycontacting TBPC Purchaser Myra Beer at (512) 463-5773. A copy ofthe RFP may be downloaded from the Electronic State Business Dailyat: http://esbd.tbpc.state.tx.us/1380/bid_show.cfm?bidid=65423TRD-200603434Ingrid K. HansenGeneral CounselTexas Building and Procurement CommissionFiled: June 26, 2006

Coastal Coordination CouncilNotice and Opportunity to Comment on Requests forConsistency Agreement/Concurrence Under the Texas CoastalManagement ProgramOn January 10, 1997, the State of Texas received federal approval of theCoastal Management Program (CMP) (62 Federal Register pp. 1439- 1440). Under federal law, federal agency activities and actions af-fecting the Texas coastal zone must be consistent with the CMP goalsand policies identi!ed in 31 TAC Chapter 501. Requests for federalconsistency review were deemed administratively complete for the fol-lowing project(s) during the period of June 16, 2006, through June 22,2006. As required by federal law, the public is given an opportunityto comment on the consistency of proposed activities in the coastalzone undertaken or authorized by federal agencies. Pursuant to 31 TAC§§506.25, 506.32, and 506.41, the public comment period for these ac-tivities extends 30 days from the date published on the Coastal Coor-dination Council web site. The notice was published on the web siteon June 28, 2006. The public comment period for these projects willclose at 5:00 p.m. on July 28, 2006.FEDERAL AGENCY ACTIONS:Applicant: Texas Department of Transportation; Location: Theproject is located in East Bay and adjacent wetlands, on Bolivar Penin-sula, along State Highway (SH) 87 from the Bolivar Ferry landing toSH 124, south of High Island, Galveston County, Texas. The projectcan be located on the U.S.G.S. quadrangle maps entitled: Galveston,Flake, Caplen, Frozen Point, and High Island, Texas. ApproximateUTM Coordinates in NAD 27 (meters) west end: Zone 15; Easting:327683; Northing: 3249490. Approximate UTM Coordinates in NAD27 (meters) east end: Zone 15; Easting: 365320; Northing: 3269659.Project Description: The applicant proposes to conduct maintenanceexcavation within 23 outfall channels and several roadside ditchesalong and perpendicular to SH 87. The project will impact 4.87 acresof wetlands and other waters of the U. S., comprised of 3.98 acres ofwetlands and 0.98 acre of open water. The wetlands impacted includeroadside ditches dominated by facultative wetland species to brackishmarsh dominated by sea-oxeye daisy (Borrichia frutescens), marshhaycordgrass (Spartina patens), salt grass (Distichlis spicata), and glass-wort (Salicornia virginica). The proposed typical cross section of theoutfall channels is a 6-foot bottom width channel approximately 2 feetin depth with 3:1 slopes. Work will be accomplished by excavating thechannels and ditches from mats when necessary utilizing a backhoewithin a 30-foot-wide easement. All excavated material will be hauledto an upland site for placement. The upland placement site has notbeen identi!ed; however, the applicant will be required to specifyplacement area(s) and have them approved prior to beginning con-struction. The applicant has not proposed mitigation for this projectand states that they do not believe it is necessary because the projectis for maintenance. The project also includes the discharge of a totalof 16 cubic yards of !ll for the replacement of culverts at ten of theoutfall channels. CCC Project No.: 06-0319-F1; Type of Application:U.S.A.C.E. permit application #23382(Rev.) is being evaluated under§10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §403).

IN ADDITION July 7, 2006 31 TexReg 5475

Applicant: Michael Morrison; Location: The project is located at1208 Yacht Basin Road, in Gilchrist, Galveston County, Texas. Theproject can be located on the U.S.G.S. quadrangle map entitled: FrozenPoint, Texas. Approximate UTM Coordinates in NAD 27 (meters):Zone 15; Easting: 353499; Northing: 3265829. Project Description:The applicant proposes to place !ll into 0.363 acre of adjacent wet-lands and waters of the U. S. located in "Slip 3" for development insupport of a private residence and horticultural business. The appli-cant proposes to mitigate by enhancing wetland development withina 0.340-acre area known as "Slip 2". CCC Project No.: 06-0323-F1;Type of Application: U.S.A.C.E. permit application #24083(01) is be-ing evaluated under §10 of the Rivers and Harbors Act of 1899 (33U.S.C.A. §403) and §404 of the Clean Water Act (33 U.S.C.A. §1344).Applicant: LLOG Exploration Texas, L.P.; Location: The project islocated approximately 13 miles east-southeast of Port Lavaca, Texas,in the Matagorda Bay Area, State Tract (ST) 103, location numbers 1and 2, in Calhoun County, Texas. The project can be located on theU.S.G.S. quadrangle map entitled: Keller Bay, Texas. ApproximateUTM Coordinates in NAD 27 (meters): Zone 14; Easting: 752384;Northing: 3162618. Project Description: The applicant proposes toinstall and maintain a proposed drilling barge, platform, and appur-tenant structures in order to drill the ST 103 Well Nos. 1 and 2 fromthe same surface location. No dredging is proposed. CCC ProjectNo.: 06-0324-F1; Type of Application: U.S.A.C.E. permit application#24060 is being evaluated under §10 of the Rivers and Harbors Act of1899 (33 U.S.C.A. §403).Applicant: City of Nassau Bay; Location: The project is located inClear Lake, in and around the Nassau Bay area, in Harris and Galve-ston Counties, Texas. The project can be located on the U.S.G.S. quad-rangle map entitled: League City, Texas. Approximate UTM Coor-dinates in NAD 27 (meters): Zone 15; Easting: 299124; Northing:3270642. Project Description: The applicant proposes to hydrauli-cally dredge 25,203 linear feet of channels within Clear Lake. Thetotal amount of cubic yards expected from the dredging of Clear Lakewould be 198,569. The channels can be categorized as: Nassau Bay,Cow Bayou, Tantalus Bay, Clear Creek, South Shore Island, Swan La-goon, and Constellation Point. All the channels will have a width of40 feet and a maximum depth of -8 feet. The dredge material wouldbe placed in an upland area located north of the intersection of FM 270and Barger Street, in Galveston County, Texas. The capacity of thedredged material placement area (DMPA) is 205,492 cubic yards. TheDMPA was delineated and veri!ed under Corps veri!cation numberD-17844. No wetlands will be impacted by the DMPA. The originalpermit, issued in August 1998, authorized the mechanical dredging of1,500 linear feet of channels within Nassau Bay. The channels wereauthorized to be dredged to a depth of 6 feet and a width of 40 feet.Amendment (01), issued in June 2000, added hydraulic dredging to theauthorization. The authorization to perform dredging expired Decem-ber 31, 2001. No work was performed within the project area. CCCProject No.: 06-0325-F1; Type of Application: U.S.A.C.E. permit ap-plication #21060(02) is being evaluated under §10 of the Rivers andHarbors Act of 1899 (33 U.S.C.A. §403).Pursuant to §306(d)(14) of the Coastal Zone Management Act of 1972(16 U.S.C.A. §§1451 - 1464), as amended, interested parties are invitedto submit comments on whether a proposed action is or is not consis-tent with the Texas Coastal Management Program goals and policiesand whether the action should be referred to the Coastal CoordinationCouncil for review.Further information on the applications listed above may be obtainedfrom Ms. Tammy Brooks, Consistency Review Coordinator, CoastalCoordination Council, P. O. Box 12873, Austin, Texas 78711-2873,

or [email protected]. Comments should be sent to Ms.Brooks at the above address or by fax at (512) 475-0680.TRD-200603463Larry L. LaineChief Clerk/Deputy Land Commissioner, General Land Of ceCoastal Coordination CouncilFiled: June 27, 2006

Comptroller of Public AccountsCerti!cation of the Average Taxable Price of Gas and OilThe Comptroller of Public Accounts, administering agency for the col-lection of the Crude Oil Production Tax, has determined that the av-erage taxable price of crude oil for reporting period June 2006, as re-quired by Tax Code, §202.058, is $61.74 per barrel for the three-monthperiod beginning on March 1, 2006, and ending May 31, 2006. There-fore, pursuant to Tax Code, §202.058, crude oil produced during themonth of June 2006, from a quali!ed Low-Producing Oil Lease, is noteligible for exemption from the crude oil production tax imposed byTax Code, Chapter 202.The Comptroller of Public Accounts, administering agency for the col-lection of the Natural Gas Production Tax, has determined that the av-erage taxable price of gas for reporting period June 2006, as requiredby Tax Code, §201.059, is $5.91 per mcf for the three-month periodbeginning on March 1, 2006, and ending May 31, 2006. Therefore,pursuant to Tax Code, §201.059, gas produced during the month ofJune 2006, from a quali!ed Low-Producing Well, is not eligible forexemption from the natural gas production tax imposed by Tax Code,Chapter 201.Inquiries should be directed to Bryant K. Lomax, Manager, Tax PolicyDivision, P.O. Box 13528, Austin, Texas 78711-3528.TRD-200603474Martin CherryChief Deputy General CounselComptroller of Public AccountsFiled: June 28, 2006

Notice of Request for ProposalsPursuant to Chapters 403, 404, 791, and 2256 and Chapter 2156, Sec-tion 2156.121, Texas Government Code, the Comptroller of Public Ac-counts (Comptroller), acting on behalf of the Texas Treasury Safekeep-ing Trust Company (Trust Company), announces its Request for Pro-posals (RFP No. 176b) for investment management and related ser-vices for the Texas Local Government Investment Pool (TexPool &TexPool Prime). The successful respondent or respondents must beable to begin performance of the contract no later than September 1,2006, with transition to services under the new contract completed byDecember 31, 2006. The Comptroller’s current contract for similar ser-vices expires August 31, 2006, unless terminated sooner according toits terms, with two (2) remaining one-year renewals. The Comptrollerreserves the right, in its sole judgment and discretion, to award one ormore contracts as a result of the issuance of this RFP.Contact: Parties interested in submitting a proposal or reviewing theRFP should contact William Clay Harris, Assistant General Counsel,Contracts, Comptroller of Public Accounts, 111 E. 17th St., Rm G-24,Austin, Texas, 78774, telephone number: (512) 305-8673, to obtain acopy of the RFP. The Comptroller will mail copies of the RFP onlyto those speci!cally requesting a copy. The complete RFP will be


available for pick-up at the above-referenced address on Friday, July 7,2006, after 10:00 a.m., Central Zone Time (CZT), and during normalbusiness hours thereafter. The Comptroller will also make the completeRFP available electronically on the Electronic State Business Daily af-ter 10:00 a.m. CZT, on Friday, July 7, 2006.Non-Mandatory Letters of Intent and Questions: All Non-MandatoryLetters of Intent and questions concerning the RFP must be in writ-ing and submitted no later than July 21, 2006, 2:00 p.m. Questionsmust be faxed to (512) 475-0973, Attn: William Clay Harris, Assis-tant General Counsel, Contracts. On or before July 28, 2006, or assoon thereafter as practical, the Comptroller expects to post answersto these written questions as a revision to the electronic notice of theissuance of the RFP. The website address of the Electronic State Busi-ness Daily is: http://esbd.tbpc.state.tx.us. Non-Mandatory Letters ofIntent or Questions received after the deadline will not be considered.Respondents shall be solely responsible for con!rming the timely re-ceipt of Non-Mandatory Letters of Intent and Questions in the IssuingOf!ce.Closing Date: Proposals must be received in the Assistant GeneralCounsel’s Of!ce (Issuing Of!ce) at the address speci!ed above no laterthan 2:00 p.m. (CZT), on Monday, August 7, 2006. Proposals will notbe accepted from respondents that do not submit proposals by the fore-going deadline. Respondents shall be solely responsible for con!rmingthe timely receipt of proposals in the Issuing Of!ce.Evaluation and Award Procedure: All proposals will be subject to eval-uation by a committee based on the evaluation criteria and proceduresset forth in the RFP. The Comptroller will make the !nal decision. TheComptroller and Trust Company reserve the right to accept or rejectany or all proposals submitted. The Comptroller and Trust Companyare under no legal or other obligation to execute a contract on the basisof this notice or the distribution of any RFP. Neither the Comptrollernor the Trust Company shall pay any costs or any other amounts in-curred by any entity in responding to this RFP.The anticipated schedule of events is as follows: Issuance of RFP -July 7, 2006, after 10:00 a.m. CZT; Non-Mandatory Letters of Intent& Questions - July 21, 2006, 2:00 p.m., CZT; Of!cial Answers to Ques-tions Posted - July 28, 2006, or as soon thereafter as practical; ProposalsDue - August 7, 2006, 2:00 p.m. CZT; Contract Execution - September1, 2006, or as soon thereafter as practical; Commencement of Work -September 1, 2006; Transition Complete - December 31, 2006.TRD-200603468Pamela SmithDeputy General Counsel, ContractsComptroller of Public AccountsFiled: June 28, 2006

Notice of Request for ProposalsPursuant to Chapter 2254, Subchapter B, and Section 403.011, TexasGovernment Code, the Comptroller of Public Accounts (Comptroller)announces the issuance of a Request for Proposals (RFP #177a) fromquali!ed, independent !rms to provide consulting services to Comp-troller on a "pooled contract" basis, to assist Comptroller in conduct-ing Local Government Management Reviews (LGMR or Reviews) ofselected cities and counties statewide. The successful respondents willassist Comptroller in conducting the Reviews under master or pooledcontracts, on an as-assigned basis throughout the state. Comptroller re-serves the right to select multiple contractors to participate in conduct-ing the Reviews, as set forth in the RFP. The successful respondent(s)will be expected to begin performance of the contract or contracts, ifany, on or about September 1, 2006, or as soon thereafter as practical.

Contact: Parties interested in submitting a proposal should contactWilliam Clay Harris, Assistant General Counsel, Contracts, Comptrol-ler of Public Accounts, 111 E. 17th St., ROOM G-24, Austin, Texas,78774 (Issuing Of!ce), telephone number: (512) 305-8673, to obtain acopy of the RFP. Comptroller will mail copies of the RFP only to thosespeci!cally requesting a copy. The RFP was made available for pick-upat the above-referenced address on Friday, July 7, 2006, after 10 a.m.,Central Zone Time (CZT), and during normal business hours thereafter.Comptroller also will make the complete RFP available electronicallyon the Electronic State Business Daily at: http://esbd.tbpc.state.tx.usafter 10 a.m. (CZT) on Friday, July 7, 2006.Non-Mandatory Letters of Intent and Questions: All Non-MandatoryLetters of Intent and questions regarding the RFP must be sent via fac-simile to Mr. Harris at: (512) 475-0973, not later than 2:00 p.m. (CZT),on Friday, July 21, 2006. Of!cial responses to questions received bythe foregoing deadline will be posted electronically on the Texas Mar-ketplace no later than Tuesday, July 25, 2006, or as soon thereafter aspractical. Non-Mandatory Letters of Intent or Questions received afterthe deadline will not be considered. Respondents shall be solely re-sponsible for con!rming the timely receipt of Non-Mandatory Lettersof Intent and Questions in the Issuing Of!ce.Closing Date: Proposals must be received in the Assistant GeneralCounsel’s Of!ce at the address speci!ed above (ROOM G-24) no laterthan 2 p.m. (CZT), on Tuesday, August 1, 2006. Proposals receivedafter this time and date will not be considered. Proposals will not beaccepted from respondents that do not submit proposals by the forego-ing deadline. Respondents shall be solely responsible for con!rmingthe timely receipt of proposals in the Issuing Of!ce.Evaluation and Award Procedure: All proposals will be subject to eval-uation by a committee based on the evaluation criteria and proceduresset forth in the RFP. Comptroller will make the !nal decision regardingthe award of master contracts for assignments from the pool selected, ifany. Comptroller reserves the right to award one or more contracts un-der this RFP. Comptroller reserves the right to accept or reject any or allproposals submitted. Comptroller is under no legal or other obligationto execute any contracts on the basis of this notice or the distribution ofany RFP. Comptroller shall not pay for any costs incurred by any entityin responding to this Notice or the RFP.The anticipated schedule of events is as follows: Issuance of RFP - July7, 2006, after 10:00 a.m. CZT; All Non-Mandatory Letters of Intentand Questions Due - July 21, 2006, 2 p.m. CZT; Of!cial Responsesto Questions Posted - July 25, 2006, or as soon thereafter as practical;Proposals Due - August 1, 2006, 2 p.m. CZT; Contract Execution -September 1, 2006, or as soon thereafter as practical; Commencementof Project Activities - September 1, 2006, or as soon thereafter as prac-tical.TRD-200603469Pamela SmithDeputy General Counsel, ContractsComptroller of Public AccountsFiled: June 28, 2006

Of!ce of Consumer Credit CommissionerNotice of Rate CeilingsThe Consumer Credit Commissioner of Texas has ascertained the fol-lowing rate ceilings by use of the formulas and methods described in§§303.003, 303.005, and 303.009, Tex. Fin. Code.


The weekly ceiling as prescribed by §303.003 and §303.009for the period of 07/03/06 - 07/09/06 is 18% for Con-sumer1/Agricultural/Commercial2 credit thru $250,000.The weekly ceiling as prescribed by §303.003 and §303.009 for theperiod of 07/03/06 - 07/09/06 is 18% for Commercial over $250,000.The monthly ceiling as prescribed by §303.0053 for the period of07/01/06 - 07/31/06 is 18% for Consumer/Agricultural/Commercialcredit thru $250,000.The monthly ceiling as prescribed by §303.005 for the period of07/01/06 - 07/31/06 is 18% for Commercial over $250,000.1 Credit for personal, family, or household use.2 Credit for business, commercial, investment, or other similar purpose.3 For variable rate commercial transactions only.TRD-200603448Leslie L. PettijohnCommissionerOf ce of Consumer Credit CommissionerFiled: June 27, 2006

Texas Commission on Environmental QualityAgreed OrdersThe Texas Commission on Environmental Quality (TCEQ or commis-sion) staff is providing an opportunity for written public comment onthe listed Agreed Orders (AOs) in accordance with Texas Water Code(the Code), §7.075, which requires that the commission may not ap-prove these AOs unless the public has been provided an opportunityto submit written comments. Section 7.075 requires that notice of theproposed orders and the opportunity to comment must be published inthe Texas Register no later than the 30th day before the date on whichthe public comment period closes, which in this case is August 7, 2006.Section 7.075 also requires that the commission promptly consider anywritten comments received and that the commission may withhold ap-proval of an AO if a comment discloses facts or considerations thatindicate the proposed AO is inappropriate, improper, inadequate, orinconsistent with the requirements of the Code, the Texas Health andSafety Code (THSC), and/or the Texas Clean Air Act (the Act). Addi-tional notice is not required if changes to an AO are made in responseto written comments.A copy of each proposed AO is available for public inspection at boththe commission’s central of!ce, located at 12100 Park 35 Circle, Build-ing C, 1st Floor, Austin, Texas 78753, (512) 239-1864 and at the ap-plicable regional of!ce listed as follows. Written comments about anAO should be sent to the enforcement coordinator designated for eachAO at the commission’s central of!ce at P.O. Box 13087, Austin, Texas78711-3087 and must be received by 5:00 p.m. on August 7, 2006.Written comments may also be sent by facsimile machine to the en-forcement coordinator at (512) 239-2550. The commission enforce-ment coordinators are available to discuss the AOs and/or the commentprocedure at the listed phone numbers; however, §7.075 provides thatcomments on the AOs should be submitted to the commission in writ-ing.(1) COMPANY: Angelina and Neches River Authority Indus-trial Development Corporation; DOCKET NUMBER: 2006-0305-MWD-E; IDENTIFIER: Regulated Entity Reference Number (RN)RN103019709; LOCATION: Lufkin, Angelina County, Texas; TYPEOF FACILITY: wastewater treatment; RULE VIOLATED: 30 TAC§305.125(1) and (17) and §319.7(d), Texas Pollutant Discharge Elim-

ination System Permit Number 11620001, and the Code, §26.121(a),by failing to comply with permitted ef"uent limits for ammonianitrogen and !ve-day carbonaceous biochemical oxygen demand andby failing to submit the annual sludge report; PENALTY: $4,480;ENFORCEMENT COORDINATOR: Carolyn Lind, (903) 535-5100;REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas77703-1892, (409) 898-3838.(2) COMPANY: Baba Sadiq Investments, Inc. dba Rite Track5; DOCKET NUMBER: 2006-0259-PST-E; IDENTIFIER:RN102242187; LOCATION: Jacksonville, Cherokee County, Texas;TYPE OF FACILITY: convenience store with retail sales of gaso-line; RULE VIOLATED: 30 TAC §334.51(b)(2)(C) and the Code,§26.3475(c)(2), by failing to provide proper over!ll prevention equip-ment; 30 TAC §334.49(c)(2)(C) and (4) and the Code, §26.3475(d),by failing to inspect the impressed current cathodic protection systemand by failing to inspect and test the corrosion protection system foroperability; 30 TAC §334.50(a)(1)(A) and (b)(2)(A)(i)(III) and theCode, §26.3475(c)(1), by failing to have a release detection methodcapable of detecting a release, by failing to test the line leak detec-tors, and by failing to monitor the pressurized piping; and 30 TAC§334.48(c)(5)(C), by failing to conduct effective manual or automaticinventory control procedures and by failing to ensure that a legibletag, label, or marking with the tank number is permanently appliedupon or af!xed to either the top of the !ll tube or to a nonremovablepoint in the immediate area of the !ll tube; PENALTY: $14,732; EN-FORCEMENT COORDINATOR: Shontay Wilcher, (512) 239-2136;REGIONAL OFFICE: 2916 Teague Drive, Tyler, Texas 75701-3756,(903) 535-5100.(3) COMPANY: Cemex, Inc.; DOCKET NUMBER: 2006-0303-AIR-E; IDENTIFIER: RN100213305; LOCATION: Odessa, EctorCounty, Texas; TYPE OF FACILITY: cement manufacturing; RULEVIOLATED: 30 TAC §116.115(a), Permit Number 5296, and THSC,§382.085(b), by failing to comply with permitted opacity limits;PENALTY: $108,750; ENFORCEMENT COORDINATOR: CraigFleming, (512) 239-5806; REGIONAL OFFICE: 3300 North A Street,Building 4, Suite 107, Midland, Texas 79705-5404, (915) 570-1359.(4) COMPANY: Enbridge Pipelines (NE Texas) L.P.; DOCKETNUMBER: 2006-0448-AIR-E; IDENTIFIER: RN100209477; LOCA-TION: Gilmer, Upshur County, Texas; TYPE OF FACILITY: naturalgas processing; RULE VIOLATED: 30 TAC §101.201(a)(1)(B) andTHSC, §382.085(b), by failing to submit an emissions event report;and 30 TAC §116.115(b)(2)(F), New Source Review Permit Number24450, and THSC, §382.085(b), by failing to prevent unauthorizedemissions of carbon monoxide, natural gas, nitrous oxides, and sulfurdioxide; PENALTY: $2,080; ENFORCEMENT COORDINATOR:Trina Grieco, (210) 490-3096; REGIONAL OFFICE: 2916 TeagueDrive, Tyler, Texas 75701-3756, (903) 535-5100.(5) COMPANY: ExxonMobil Oil Corporation; DOCKET NUMBER:2006-0365-AIR-E; IDENTIFIER: RN102579307; LOCATION: Bay-town, Harris County, Texas; TYPE OF FACILITY: re!ning and sup-ply company; RULE VIOLATED: 30 TAC §116.715(a), Permit Num-ber 18287, and THSC, §382.085(b), by failing to prevent an avoid-able emissions event; PENALTY: $10,000; ENFORCEMENT COOR-DINATOR: John Muennink, (361) 825-3100; REGIONAL OFFICE:5425 Polk Avenue, Suite H, Houston, Texas 77023-1486, (713) 767-3500.(6) COMPANY: GSF Energy, L.L.C.; DOCKET NUMBER: 2006-0277-IHW-E; IDENTIFIER: RN100222710; LOCATION: Houston,Harris County, Texas; TYPE OF FACILITY: land!ll gas recovery;RULE VIOLATED: 30 TAC §335.69(a)(1)(B) and 40 Code of Fed-eral Regulations (CFR) §§262.34(a)(1)(ii), 265.192(a), 265.193(f), and265.195(b)(1), by failing to conduct a structural integrity assessment


for a hazardous waste tank, by failing to conduct the annual cathodicprotection operation inspection, and by failing to provide secondarycontainment for underground ancillary equipment; 30 TAC §335.6(c),by failing to update the facility’s notice of registration with accurate in-formation; 30 TAC §335.431(c) and 40 CFR §268.7(a)(2), by failing tohave land disposal restriction documentation for one waste stream; and30 TAC §335.513(c) and 40 CFR §268.7(a)(8), by failing to have wastestream classi!cation documentation for !ve waste streams; PENALTY:$63,360; ENFORCEMENT COORDINATOR: Michael Limos, (512)239-5839; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Hous-ton, Texas 77023-1486, (713) 767-3500.(7) COMPANY: City of Holland; DOCKET NUMBER: 2006-0337-PWS-E; IDENTIFIER: RN102674629; LOCATION: Holland, BellCounty, Texas; TYPE OF FACILITY: public water supply; RULEVIOLATED: 30 TAC §290.44(h)(1)(A), by failing to install back"owprevention assemblies; 30 TAC §290.46(f)(2), (n)(2), and (u), by fail-ing to provide water system records for review during investigations,by failing to maintain and make available an accurate and up-to-datemap of the distribution system, and by failing to test water systemwells at least once every !ve years; 30 TAC §290.42(1), by failing tomaintain a plant operations manual; and 30 TAC §290.45(f)(4) and(5) and THSC, §341.0315(c), by failing to provide a contract with amaximum daily purchase rate plus actual production capacity of thesystem of at least 0.6 gallon per minute (gpm) per connection and byfailing to provide a contract with a maximum hourly purchase rate plusactual service pump capacity of the system of at least 2 gpm per con-nection or provide at least 1,000 gpm and be able to meet peak hourlydemands; PENALTY: $2,182; ENFORCEMENT COORDINATOR:Jorge Ibarra, (817) 588-5800; REGIONAL OFFICE: 6801 SangerAvenue, Suite 2500, Waco, Texas 76710-7826, (254) 751-0335.(8) COMPANY: Innovene USA L.L.C.; DOCKET NUMBER:2006-0242-AIR-E; IDENTIFIER: RN100238708; LOCATION:Alvin, Brazoria County, Texas; TYPE OF FACILITY: chemical man-ufacturing; RULE VIOLATED: 30 TAC §101.20(3) and §116.715(a),Air Permit Numbers 95 PSD-TX-854, and THSC, §382.085(b), byfailing to prevent unauthorized emissions; PENALTY: $21,960; EN-FORCEMENT COORDINATOR: Rebecca Johnson, (713) 767-3500;REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas77023-1486, (713) 767-3500.(9) COMPANY: J. A. Hat!eld, Inc.; DOCKET NUMBER:2006-0492-WQ-E; IDENTIFIER: RN104921853; LOCATION:Colleyville, Tarrant County, Texas; TYPE OF FACILITY: companythat is constructing a custom home; RULE VIOLATED: 30 TAC§281.25(a)(4) and 40 CFR §122.26(c), by failing to obtain authoriza-tion to discharge storm water associated with construction activities;PENALTY: $1,200; ENFORCEMENT COORDINATOR: CraigFleming, (512) 239-5806; REGIONAL OFFICE: 2301 Gravel Drive,Fort Worth, Texas 76118-6951, (817) 588-5800.(10) COMPANY: Fred E. Koricanek; DOCKET NUMBER:2006-0526-AGR-E; IDENTIFIER: RN104796834; LOCATION:Westhoff, DeWitt County, Texas; TYPE OF FACILITY: poultryegg-laying; RULE VIOLATED: 30 TAC §321.33(a), by failing toobtain authorization under a water quality general permit or individualpermit for a concentrated animal feeding operation; PENALTY:$1,440; ENFORCEMENT COORDINATOR: Lynley Doyen, (512)239-1364; REGIONAL OFFICE: 6300 Ocean Drive, Suite 1200,Corpus Christi, Texas 78412-5503, (361) 825-3100.(11) COMPANY: Robert N. Freeman dba Las Aves Country Re-treat; DOCKET NUMBER: 2006-0451-PWS-E; IDENTIFIER:RN104490685; LOCATION: Medina, Bandera County, Texas; TYPEOF FACILITY: public water supply; RULE VIOLATED: 30 TAC

§290.46(e)(4)(A) and THSC, §341.034(b), by failing to provide apublic water supply operator who holds an applicable, valid license;PENALTY: $420; ENFORCEMENT COORDINATOR: Yuliya Dun-away, (210) 490-3096; REGIONAL OFFICE: 14250 Judson Road,San Antonio, Texas 78233-4480, (210) 490-3096.(12) COMPANY: Nova Chemicals Inc.; DOCKET NUMBER:2006-0355-AIR-E; IDENTIFIER: RN100542224; LOCATION:Pasadena, Harris County, Texas; TYPE OF FACILITY: chemicalproduction; RULE VIOLATED: 30 TAC §116.115(c), Permit Number5252, and THSC, §382.085(b), by failing to prevent an avoidableemissions event; PENALTY: $1,000; ENFORCEMENT COORDI-NATOR: Samuel Short, (512) 239-5363; REGIONAL OFFICE: 5425Polk Avenue, Suite H, Houston, Texas 77023-1486, (713) 767-3500.(13) COMPANY: Post Oak Development of Texas, Inc.; DOCKETNUMBER: 2006-0425-PWS-E; IDENTIFIER: RN103172078; LO-CATION: Castroville, Medina County, Texas; TYPE OF FACILITY:public water supply; RULE VIOLATED: 30 TAC §290.39(h)(1),by failing to submit modi!cation plans for the water system’sstorage facilities and obtain commission approval; and 30 TAC§290.41(c)(3)(A), by failing to submit well completion data prior toplacing a public water supply well into service; PENALTY: $171;ENFORCEMENT COORDINATOR: Rebecca Clausewitz, (210)490-3096; REGIONAL OFFICE: 14250 Judson Road, San Antonio,Texas 78233-4480, (210) 490-3096.(14) COMPANY: Racetrac Petroleum, Inc. dba Racetrac512; DOCKET NUMBER: 2006-0378-PWS-E; IDENTIFIER:RN102270121; LOCATION: Houston, Harris County, Texas; TYPEOF FACILITY: convenience store; RULE VIOLATED: 30 TAC§290.109(c)(2)(A)(i) and THSC, §341.033(d), by failing to collectwater samples for bacteriological analysis; 30 TAC §290.122(c)(2)(B),by failing to post public notice of the failure to conduct sampling; and30 TAC §5.702 and §26.0291, by failing to pay outstanding generalpermit storm water fees; PENALTY: $1,200; ENFORCEMENTCOORDINATOR: Cheryl Thompson, (817) 588-5800; REGIONALOFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1486,(713) 767-3500.(15) COMPANY: Waste Works, L.L.C.; DOCKET NUMBER:2006-0368-MSW-E; IDENTIFIER: RN104891718; LOCATION:Whitewright, Grayson County, Texas; TYPE OF FACILITY: transferstation; RULE VIOLATED: 30 TAC §330.9(b), by failing to obtainappropriate registration or other authorization to operate a transferstation; PENALTY: $800; ENFORCEMENT COORDINATOR:Marlin Bullard, (254) 751-0335; REGIONAL OFFICE: 2301 GravelDrive, Fort Worth, Texas 76118-6951, (817) 588-5800.(16) COMPANY: Wholearth Organic Composting, L.L.C.; DOCKETNUMBER: 2006-0501-MSW-E; IDENTIFIER: RN101478071; LO-CATION: Elmendorf, Bexar County, Texas; TYPE OF FACILITY:composting; RULE VIOLATED: 30 TAC §332.47(9), by failing toprovide !nancial assurance; PENALTY: $896; ENFORCEMENT CO-ORDINATOR: Dana Shuler, (512) 239-2505; REGIONAL OFFICE:14250 Judson Road, San Antonio, Texas 78233-4480, (210) 490-3096.TRD-200603449Stephanie Bergeron PerdueDeputy Director, Of ce of Legal ServicesTexas Commission on Environmental QualityFiled: June 27, 2006

Enforcement Orders


An agreed order was entered regarding City of Yorktown, Docket No.2003-0115-MWD-E on 06/20/2006 assessing $25,200 in administra-tive penalties.Information concerning any aspect of this order may be obtained bycontacting Justin Lannen, Staff Attorney, at (817) 588-5927, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding Aristos, Inc. dba Smart Stop,Docket No. 2003-1172-PST-E on 06/20/2006 assessing $2,000 in ad-ministrative penalties.Information concerning any aspect of this order may be obtained bycontacting Kari Gilbreth, Staff Attorney, at (512) 239-1320, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding Uni-Wide Auto Imports, Inc.,Docket No. 2003-1522-MSW-E on 06/20/2006 assessing $11,655 inadministrative penalties.Information concerning any aspect of this order may be obtained bycontacting Laurencia Fasoyiro, Staff Attorney, at (713) 422-8914,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Formosa Plastics Corpora-tion, Texas, Docket No. 2005-0938-AIR-E on 06/20/2006 assessing$34,542 in administrative penalties with $6,908 deferred.Information concerning any aspect of this order may be obtained bycontacting Audra L. Ruble, Enforcement Coordinator, at (361) 825-3126, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding A P G & Z Inc. dba McKinneyFood Store, Docket No. 2002-1016-PST-E on 06/20/2006 assessing$2,000 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Mark Curnutt, Staff Attorney, at (512) 239-0624, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding United States Army Corps ofEngineers, Docket No. 2004-0328-PWS-E on 06/20/2006 assessing$1,715 in administrative penalties with $343 deferred.Information concerning any aspect of this order may be obtained bycontacting Kent Heath, Enforcement Coordinator, at (512) 239-4575,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding City of Huxley, Docket No.2004-0932-PWS-E on 06/20/2006 assessing $1,634 in administrativepenalties with $166 deferred.Information concerning any aspect of this order may be obtained bycontacting Elvia Maske, Enforcement Coordinator, at (512) 239-0789,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Gary P. Jaquess dba Gary’s Hal-tom City Car Wash, Docket No. 2004-1347-PST-E on 06/20/2006 as-sessing $4,280 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Justin Lannen, Staff Attorney, at (817) 588-5927, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.

An agreed order was entered regarding May Carson dba CornudasRestaurant, Docket No. 2005-1347-PWS-E on 06/20/2006 assessing$1,980 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Audra Ruble, Staff Attorney, at (361) 825-3126, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding P & J Industries, Inc., DocketNo. 2004-1369-IHW-E on 06/20/2006 assessing $25,956 in adminis-trative penalties.Information concerning any aspect of this order may be obtained bycontacting Kathleen Decker, Staff Attorney, at (512) 239-6500, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding The Goodyear Tire & Rub-ber Company, Docket No. 2004-1450-AIR-E on 06/20/2006 assessing$204,603 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Laurencia Fasoyiro, Staff Attorney, at (713) 422-8914,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Robert Beltran, Docket No.2004-1904-PST-E on 06/20/2006 assessing $1,000 in administrativepenalties.Information concerning any aspect of this order may be obtained bycontacting Lena Roberts, Staff Attorney, at (512) 239-0019, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding Chevron Phillips Chemi-cal Company, LP dba Cedar Bayou Chemical Plant, Docket No.2005-0007-AIR-E on 06/20/2006 assessing $4,350 in administrativepenalties.Information concerning any aspect of this order may be obtained bycontacting Laurencia Fasoyiro, Staff Attorney, at (713) 422-8914,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Mercedes Independent SchoolDistrict, Docket No. 2005-0588-PST-E on 06/22/2006 assessing$11,000 in administrative penalties with $2,200 deferred.Information concerning any aspect of this order may be obtained bycontacting Rebecca Clausewitz, Enforcement Coordinator, at (210)403-4012, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.A default order was entered regarding Jose A. Menjivar, Sr., DocketNo. 2005-0729-LII-E on 06/20/2006 assessing $1,250 in administra-tive penalties.Information concerning any aspect of this order may be obtained bycontacting Kari Gilbreth, Staff Attorney, at (512) 239-1320, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding City of Baird, Docket No.2005-1043-PWS-E on 06/20/2006 assessing $1,250 in administrativepenalties.Information concerning any aspect of this order may be obtained bycontacting Shana Horton, Staff Attorney, at (512) 239-1088, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.


An agreed order was entered regarding MMR Joint Ventures, Ltd.,Docket No. 2005-1096-EAQ-E on 06/20/2006 assessing $13,950 inadministrative penalties.Information concerning any aspect of this order may be obtained bycontacting Kathleen Decker, Staff Attorney, at (512) 239-6500, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding Star Tex Gasoline & Oil Dis-tributors, Inc., Docket No. 2005-1146-PST-E on 06/20/2006 assessing$2,040 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Shawn Slack, Staff Attorney, at (512) 239-1877, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding Texas Paci!co Transportation,LTD., Docket No. 2005-1152-MLM-E on 06/20/2006 assessing$20,550 in administrative penalties.Information concerning any aspect of this order may be obtainedby contacting Joseph Daley, Enforcement Coordinator, at (817)588-5928, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Brownsville IndependentSchool District, Docket No. 2005-1153-PST-E on 06/20/2006 assess-ing $2,015 in administrative penalties with $403 deferred.Information concerning any aspect of this order may be obtained bycontacting Rebecca Johnson, Enforcement Coordinator, at (713) 422-8931, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.A default order was entered regarding Heart of Texas Investments, Inc.,dba A&A Chevron, Docket No. 2005-1168-PST-E on 06/22/2006 as-sessing $2,600 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Lena Roberts, Staff Attorney, at (512) 239-0019, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.A default order was entered regarding Darren Taylor, Docket No.2005-1205-OSS-E on 06/20/2006 assessing $8,531 in administrativepenalties.Information concerning any aspect of this order may be obtained bycontacting Deanna Sigman, Staff Attorney, at (512) 239-0619, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding Texas Department of Trans-portation, Docket No. 2005-1255-MWD-E on 06/20/2006 assessing$4,470 in administrative penalties with $894 deferred.Information concerning any aspect of this order may be obtainedby contacting Joseph Daley, Enforcement Coordinator, at (817)588-5928, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Gateway Truck Terminal, Inc.,Docket No. 2005-1406-PST-E on 06/20/2006 assessing $6,825 in ad-ministrative penalties.Information concerning any aspect of this order may be obtained bycontacting Mark Curnutt, Staff Attorney, at (512) 239-0624, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.

An agreed order was entered regarding Manville Water Supply District,Docket No. 2005-1435-MLM-E on 06/20/2006 assessing $7,800 inadministrative penalties with $1,560 deferred.Information concerning any aspect of this order may be obtained bycontacting Audra Ruble, Enforcement Coordinator, at (361) 825-3126,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.A default order was entered regarding Diversi!ed Investments, Inc.,dba Courtesy Mart 109, Docket No. 2005-1457-PST-E on 06/20/2006assessing $2,910 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Shawn Slack, Staff Attorney, at (512) 239-1877, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding Town of Mustang, Docket No.2005-1503-MWD-E on 06/20/2006 assessing $13,684 in administra-tive penalties with $2,737 deferred.Information concerning any aspect of this order may be obtained bycontacting Audra Ruble, Enforcement Coordinator, at (361) 825-3126,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Town & Country EnterprisesInc. dba Town & Country Food Mart, Docket No. 2005-1525-PST-Eon 06/22/2006 assessing $2,400 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Deanna Sigman, Staff Attorney, at (512) 239-0619, TexasCommission on Environmental Quality, P. O. Box 13087, Austin,Texas 78711-3087.An agreed order was entered regarding Oak Tree Properties, Inc. dbaOak Tree Deli, Docket No. 2005-1640-PST-E on 06/20/2006 assessing$2,250 in administrative penalties with $450 deferred.Information concerning any aspect of this order may be obtained bycontacting Jason Kemp, Enforcement Coordinator, at (512) 239-5610,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Parmer-McNeil Holdings, Ltd.,Docket No. 2005-1661-EAQ-E on 06/20/2006 assessing $27,000 inadministrative penalties with $5,400 deferred.Information concerning any aspect of this order may be obtained bycontacting Ruben Soto, Enforcement Coordinator, at (512) 239-4571,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding CP Red Oak Partners, Ltd.Docket No. 2005-1733-EAQ-E on 06/20/2006 assessing $33,000 inadministrative penalties with $6,600 deferred.Information concerning any aspect of this order may be obtained bycontacting Dana Shuler, Enforcement Coordinator, at (512) 239-2505,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Hirschfeld Steel Co., Inc.,Docket No. 2005-1864-AIR-E on 06/20/2006 assessing $21,350 inadministrative penalties with $4,270 deferred.Information concerning any aspect of this order may be obtainedby contacting Craig Fleming, Enforcement Coordinator, at (512)239-5806, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.


An agreed order was entered regarding, Syed N. Hyder, Docket No.2005-1895-MWD-E on 06/20/2006 assessing $19,000 in administra-tive penalties with $3,800 deferred.Information concerning any aspect of this order may be obtainedby contacting Tom Greimel, Enforcement Coordinator, at (512)239-5690, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Enterprise Products OperatingL.P., Docket No. 2005-1905-AIR-E on 06/20/2006 assessing $10,950in administrative penalties with $2,190 deferred.Information concerning any aspect of this order may be obtainedby contacting Amy Burgess, Enforcement Coordinator, at (512)239-2540, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Farmers Transport, Inc. dba En-chanted Harbor Utility, Docket No. 2005-1922-PWS-E on 06/20/2006assessing $318 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Tel Croston, Enforcement Coordinator, at (512) 239-5717,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Gil Villa dba Villa Dairy DocketNo. 2005-1969-AGR-E on 06/20/2006 assessing $5,000 in administra-tive penalties with $1,000 deferred.Information concerning any aspect of this order may be obtained bycontacting Suzanne Walrath, Enforcement Coordinator, at (512) 239-2134, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding MPR Investments, LLC dbaOakridge Square Mobile Home Park, Docket No. 2005-2004-PWS-Eon 06/20/2006 assessing $1,733 in administrative penalties with $347deferred.Information concerning any aspect of this order may be obtained bycontacting Sandy VanCleave, Enforcement Coordinator, at (512) 239-2670, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Coast to Coast Investments,Inc., Docket No. 2005-2010-MLM-E on 06/20/2006 assessing $9,690in administrative penalties with $1,938 deferred.Information concerning any aspect of this order may be obtained bycontacting Deana Holland, Enforcement Coordinator, at (512) 239-2504, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Lyondell Chemical Company,Docket No. 2005-2012-AIR-E on 06/20/2006 assessing $7,500 in ad-ministrative penalties.Information concerning any aspect of this order may be obtained bycontacting Miriam Hall, Enforcement Coordinator, at (512) 239-1044,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding City of Lubbock, Docket No.2005-2013-MWD-E on 06/20/2006 assessing $16,425 in administra-tive penalties with $3,285 deferred.Information concerning any aspect of this order may be obtained bycontacting Brent Hurta, Enforcement Coordinator, at (512) 239-6589,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.

An agreed order was entered regarding Overseas Enterprises USA,Inc. dba Gateway Travel Plaza, Docket No. 2005-2064-WQ-E on06/20/2006 assessing $7,500 in administrative penalties with $1,500deferred.Information concerning any aspect of this order may be obtained bycontacting Jorge Ibarra, Enforcement Coordinator, at (817) 588-5890,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Exxon Mobil Corporation,Docket No. 2005-2066-AIR-E on 06/20/2006 assessing $3,525 inadministrative penalties with $705 deferred.Information concerning any aspect of this order may be obtained bycontacting John Muennink, Enforcement Coordinator, at (361) 825-3423, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding City of Morton, Docket No.2005-2075-MWD-E on 06/20/2006 assessing $7,875 in administrativepenalties with $1,575 deferred.Information concerning any aspect of this order may be obtained bycontacting Mike Meyer, Enforcement Coordinator, at (512) 239-4492,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding ExxonMobil Oil Corporation,Docket No. 2006-0007-AIR-E on 06/20/2006 assessing $8,300 in ad-ministrative penalties with $1,660 deferred.Information concerning any aspect of this order may be obtained bycontacting John Barry, Enforcement Coordinator, at (409) 899-8781,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding Hermenegildo Bueno dbaPaisano Truck Stop, Docket No. 2006-0009-PST-E on 06/20/2006assessing $5,100 in administrative penalties with $1,020 deferred.Information concerning any aspect of this order may be obtained bycontacting Shontay Wilcher, Enforcement Coordinator, at (512) 239-2136, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding City of Wichita Falls, DocketNo. 2006-0027-WQ-E on 06/20/2006 assessing $2,280 in administra-tive penalties with $456 deferred.Information concerning any aspect of this order may be obtainedby contacting Pam Campbell, Enforcement Coordinator, at (512)239-4493, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Covenant Health System,Docket No. 2006-0047-MSW-E on 06/20/2006 assessing $6,000 inadministrative penalties with $1,200 deferred.Information concerning any aspect of this order may be obtained bycontacting Jaime Garza, Enforcement Coordinator, at (956) 430-6030,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding K-Yoba, Inc. dba Jedco 21,Docket No. 2006-0053-PST-E on 06/20/2006 assessing $5,600 in ad-ministrative penalties with $1,120 deferred.Information concerning any aspect of this order may be obtained bycontacting Kent Heath, Enforcement Coordinator, at (512) 239-4575,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.


An agreed order was entered regarding City of Edinburg, Docket No.2005-0531-PST-E on 06/20/2006 assessing $8,000 in administrativepenalties with $1,600 deferred.Information concerning any aspect of this order may be obtained bycontacting Jaime Garza, Enforcement Coordinator, at (956) 430-6030,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding City of Overton, Docket No.2006-0089-PWS-E on 06/20/2006 assessing $318 in administrativepenalties.Information concerning any aspect of this order may be obtained bycontacting Cari-Michel Lacaille, Enforcement Coordinator, at (512)239-1387, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Fort Bend County Munic-ipal Utility District No. 124, Docket No. 2006-0101-MWD-E on06/20/2006 assessing $3,000 in administrative penalties with $600deferred.Information concerning any aspect of this order may be obtained bycontacting Catherine Albrecht, Enforcement Coordinator, at (713) 767-3672, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding City of Temple, Docket No.2006-0117-PWS-E on 06/20/2006 assessing $995 in administrativepenalties with $199 deferred.Information concerning any aspect of this order may be obtained bycontacting Cari-Michel Lacaille, Enforcement Coordinator, at (512)239-1387, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Harris County Water Controland Improvement District No. 70, Docket No. 2006-0142-MWD-Eon 06/20/2006 assessing $2,604 in administrative penalties with $521deferred.Information concerning any aspect of this order may be obtained bycontacting Catherine Albrecht, Enforcement Coordinator, at (713) 767-3672, Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.An agreed order was entered regarding ConocoPhillips Pipe Line Com-pany, Docket No. 2006-0157-AIR-E on 06/20/2006 assessing $1,925in administrative penalties with $385 deferred.Information concerning any aspect of this order may be obtained bycontacting Cari-Michel Lacaille, Enforcement Coordinator, at (512)239-1387, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding City of Willis, Docket No.2006-0168-MWD-E on 06/20/2006 assessing $1,815 in administrativepenalties with $363 deferred.Information concerning any aspect of this order may be obtainedby contacting Carolyn Lind, Enforcement Coordinator, at (903)535-5145, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Bontke Brothers ConstructionCompany, Docket No. 2006-0210-WQ-E on 06/20/2006 assessing$900 in administrative penalties with $180 deferred.Information concerning any aspect of this order may be obtainedby contacting Pam Campbell, Enforcement Coordinator, at (512)

239-4493, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An agreed order was entered regarding Buddy’s Testers, Inc., DocketNo. 2006-0248-WQ-E on 06/20/2006 assessing $950 in administrativepenalties with $190 deferred.Information concerning any aspect of this order may be obtainedby contacting Pam Campbell, Enforcement Coordinator, at (512)239-4493, Texas Commission on Environmental Quality, P. O. Box13087, Austin, Texas 78711-3087.An order was entered regarding Sattar Investments, Inc. dba Fuel Dis-tributor, Inc. dba Lorena Fastime, Docket No. 2004-0862-PST-E on06/20/2006 assessing $20,350 in administrative penalties.Information concerning any aspect of this order may be obtained bycontacting Courtney St. Julian, Staff Attorney, at (512) 239-0617,Texas Commission on Environmental Quality, P. O. Box 13087,Austin, Texas 78711-3087.TRD-200603473LaDonna CastañuelaChief ClerkTexas Commission on Environmental QualityFiled: June 28, 2006

Notice of Public Meeting on August 8, 2006, in Austin, Texas,Concerning the Proposed Cox Road Dump State SuperfundSiteThe purpose of the meeting is to obtain public input and informationconcerning the commission’s proposal to delete the site from the stateSuperfund registry because the site has been accepted into the TexasCommission on Environmental Quality Voluntary Cleanup Program.The executive director (ED) of the Texas Commission on Environmen-tal Quality (TCEQ or commission) is issuing this public notice of in-tent to delete the Cox Road Dump state Superfund site (site) from itsproposed-for-listing status on the state Superfund registry. The stateregistry is the list of state Superfund sites which may constitute animminent and substantial endangerment to public health and safety orthe environment due to a release or threatened release of hazardoussubstances into the environment. The commission is proposing thisdeletion because the site has been accepted into the TCEQ VoluntaryCleanup Program. This notice was also published in the Dayton News,Liberty Vindicator, and Cleveland Advocate on July 5, 2006.The site was proposed for listing on the state Superfund registry in theFebruary 10, 2006, issue of the Texas Register (31 TexReg 907). Thesite, including all land, structures, appurtenances, and other improve-ments, is located one mile north of FM 1413 on the east side of CountyRoad 491 (Cox Road), Dayton, Liberty County, Texas. The geographiccoordinates of the site are 29 degrees 58 minutes 30.84 seconds Northlatitude, 94 degrees 56 seconds 12.83 minutes West longitude. The sitealso includes any areas where hazardous substances have come to belocated as a result, either directly or indirectly, of releases of hazardoussubstances from the site.The site has been accepted into the TCEQ Voluntary Cleanup Programand is therefore eligible for deletion from the state registry as providedby 30 TAC §335.344(c).The commission will hold a public meeting to receive comment on theproposed deletion of the site. This public meeting is not a contestedcase hearing under Texas Government Code, Chapter 2001. The publicmeeting is scheduled for 2:00 p.m. on Tuesday, August 8, 2006, at the


Texas Commission on Environmental Quality of!ces, 12100 Park 35Circle, Building C, Room 131, in Austin, Texas.All persons desiring to make comments may do so at the public meet-ing or may submit written comments prior to the public meeting. Writ-ten comments must be received by 5:00 p.m. on August 7, 2006, andshould be mailed to Geoffrey E. Meyer, Senior Project Manager, TexasCommission on Environmental Quality, Remediation Division, MC143, P. O. Box 13087, Austin, Texas 78711-3087 or by facsimile to(512) 239-2450.A portion of the record for this site is available for review during regularbusiness hours at the Jones Public Library, 307 West Houston Street inDayton, Texas, (936) 258-7060. Copies of the complete public record!le may be obtained during regular business hours at the commis-sion’s Records Management Center, Building E, First Floor, RecordsCustomer Service, 12100 Park 35 Circle, Austin, Texas 78753, (512)239-2920. Photocopying of !le information is subject to payment of afee. Parking for persons with disabilities is available on the east sideof Building D, convenient to access ramps that are between BuildingsD and E.Persons who have special communication or other accommodationneeds who are planning to attend the meeting should contact theagency at (800) 633-9363. Requests should be made as far in advanceas possible.For further information regarding this meeting, please call BruceMcAnally, TCEQ Community Relations, at (800) 633-9363, extension2141.TRD-200603462Mary RisnerDirector, Litigation DivisionTexas Commission on Environmental QualityFiled: June 27, 2006

Notice of Water Quality ApplicationsThe following notices were issued during the period of June 8, 2006through June 22, 2006.The following require the applicants to publish notice in the news-paper. The public comment period, requests for public meetings, orrequests for a contested case hearing may be submitted to the Of!ceof the Chief Clerk, Mail Code 105, P. O. Box 13087, Austin, Texas78711-3087, WITHIN 30 DAYS OF THE DATE OF NEWSPAPERPUBLICATION OF THIS NOTICE.BAYOU FOREST VILLAGE, INC. has applied for a renewal ofTPDES Permit No. 12259-001, which authorizes the discharge oftreated domestic wastewater at a daily average "ow not to exceed30,000 gallons per day. The facility is located approximately 2,500 feetsoutheast of the intersection of Aldine Mail Road and Aldine-West!eldRoad at 12500 Aldine-West!eld Road in Harris County, Texas.CITY OF BLOOMING GROVE has applied for a renewal of TPDESPermit No. 11606-001, which authorizes the discharge of treated do-mestic wastewater at a daily average "ow not to exceed 100,000 gal-lons per day. The facility is located on the west bank of Rush Creek, ata point approximately 4,200 feet southeast of the intersection of StateHighway 22 and Farm-to-Market Road 55 in Navarro County, Texas.CITY OF CALLISBURG has applied for a renewal of TPDES Per-mit No. 11840-001, which authorizes the discharge of treated domes-tic wastewater at a daily average "ow not to exceed 120,000 gallonsper day. The facility is located adjacent to and west of Farm-to-Mar-

ket Road 678 approximately 3,000 feet southeast of the intersection ofFarm-to-Market Roads 678 and 2896 in Cooke County, Texas.CANYON REGIONAL WATER AUTHORITY has applied for a re-newal of Permit No. 14126-001, which authorizes the disposal oftreated !lter backwash water at a daily average "ow not to exceed64,000 gallons per day via surface irrigation of 45.1 acres of non-publicaccess land. The permit also authorizes the disposal of water treatmentplant sludge on 40 acres of land located at the plant site at an applica-tion rate not to exceed 2.1 tons per acre per year. This permit will notauthorize a discharge of pollutants into waters in the State. The facil-ity and disposal site and water treatment plant sludge application siteare located on the south bank of the Guadalupe River, approximately1,000 feet southwest of the dam for Lake Dunlap at Dittmar Falls, andapproximately 3,000 feet northeast of the Town of Schumansville inGuadalupe County, Texas.DAEDELUS CORPORATION has applied for a new permit, proposedTexas Pollutant Discharge Elimination System (TPDES) Permit No.WQ0014666001 to authorize the discharge of treated domestic waste-water at a daily average "ow not to exceed 120,000 gallons per day. Thefacility will be located approximately two miles west of the intersec-tion of County Road 1641 and County Road 148 in Kaufman County,Texas.FEDDERS EUBANK COMPANY, INC. has applied for a renewalof TPDES Permit No. 13830-001, which authorizes the dischargeof treated domestic wastewater at a daily average "ow not to exceed3,000 gallons per day. The facility is located on Farm-to-Market Road2011, approximately 2 miles south of Interstate Highway 20 in CreggCounty, Texas.SOUTH FORT WORTH RV RANCH has applied for a new permit,proposed Texas Pollutant Discharge Elimination System (TPDES) Per-mit No. WQ0014680001, to authorize the discharge of treated domes-tic wastewater at a daily average "ow not to exceed 48,000 gallons perday. The facility will be located at 2301 South Interstate Highway 35West, on the east side of Interstate Highway 35 West, approximately 5/8mile north of the intersection of Bethesda Road and Interstate Highway35 West in Johnson County, Texas.INDIVIDUAL CARE OF TEXAS, INC. has applied for a renewal ofPermit No.14236-001, which authorizes the disposal of treated domes-tic wastewater at a daily average "ow not to exceed 0.010 million gal-lons per day (MGD) via subsurface drip irrigation of 4.7 acres of land.This permit will not authorize a discharge of pollutants into waters inthe State. The facility and disposal site are located on Farm-to-MarketRoad 36, approximately 2 miles north of the intersection of Farm-to-Market Road 36 and State Highway 276, approximately 2.4 miles westof the intersection of Sate Highway 34 and State Highway 276 in HuntCounty, Texas.JOHNSON COUNTY FRESH WATER SUPPLY DISTRICT NO. 1has applied for a renewal of TPDES Permit No. 14350-001, which au-thorizes the discharge of treated domestic wastewater at a daily average"ow not to exceed 700,000 gallons per day. The facility is located ap-proximately 2.5 miles northeast of the intersection of State Highway174 and Farm-to-Market Road 917 in the City of Joshua in JohnsonCounty, Texas.TOWN OF LAKEWOOD VILLAGE has applied for a major amend-ment to TPDES Permit No. WQ0010903001 to authorize an increasein the discharge of treated domestic wastewater from a daily average"ow not to exceed 47,000 gallons per day to a daily average "ow not toexceed 100,000 gallons per day. The facility is located approximately700 feet northeast of the north end of the Old Lake Dallas Dam in Den-ton County, Texas.


CITY OF LONE STAR has applied for a renewal of TPDES Permit No.14365-001, which authorizes the discharge of treated domestic waste-water at a daily average "ow not to exceed 440,000 gallons per day.The facility is located approximately 1,500 feet east of U. S. Highway259 on Morris County Road 2315 and approximately 4,000 feet southof the intersection of U. S. Highway 259 and Farm-to-Market Road 729in Morris County, Texas.CITY OF MARSHALL has applied for a renewal of TPDES Permit No.10583-002, which authorizes the discharge of treated domestic waste-water at an annual average "ow not to exceed 8,000,000 gallons perday. The facility is located southeast of the City of Marshall, approx-imately 1,800 feet southeast of the intersection of Interstate Highway20 and Five Notch Road in Harrison County, Texas.CITY OF MIDWAY has applied for a renewal of TPDES Permit No.13378-001, which authorizes the discharge of treated domestic waste-water at a daily average "ow not to exceed 70,000 gallons per day.The facility is located 3,000 feet southeast of the intersection of StateHighway 21 and Farm-to-Market Road 2548 and 2,200 feet east of theintersection of Gin Creek and Farm-to-Market Road 247 and east ofthe City of Midway in Madison County, Texas.CITY OF MURCHISON has applied for a renewal of TPDES PermitNo. 13972-001, which authorizes the discharge of treated domesticwastewater at a daily average"ow not to exceed 80,000 gallons per day.The facility is located approximately 2,800 feet northeast of the inter-section of Farm-to-Market Road 773 and County Road 1616, adjacentto County Road 1616 at the northeast edge of the City of Murchison inHenderson County, Texas.TOWN OF MUSTANG has applied for a renewal of TPDES PermitNo. 11516-001, which authorizes the discharge of treated domesticwastewater at a daily average "ow not to exceed 10,000 gallons perday. The facility is located 800 feet east of the Interstate Highway 45on Farm-to-Market Road 739 in Navarro County, Texas.NORTH ALAMO WATER SUPPLY CORPORATION, c/o NRS Con-sulting Engineers, which proposes to operate the North Cameron Re-gional Water Treatment Plant, has applied for a minor permit amend-ment to Texas Pollutant Discharge Elimination System (TPDES) Per-mit No. WQ0004758000 to authorize grab sampling rather than com-posite sampling. The current permit authorizes the discharge of re-verse osmosis reject wastewater at a daily average "ow not to exceed2,000,000 gallons per day via Outfall 001. The facility is located alongthe north side of State Highway 107, approximately 3.5 miles westof the intersection of State Highway 107 and U. S. Highway 77 inCameron County, Texas.NORTHLAKE PARTNERS, LTD. has applied for a renewal of TPDESPermit No. 14484-001, which authorizes the discharge of treated do-mestic wastewater at a daily average "ow not to exceed 25,000 gallonsper day. The facility is located on the north side of the Northlake Vil-lage Mobile Home Park, approximately 1,350 feet north of Sam LeeRoad, in the Town of Northlake in Denton County, Texas.REGENCY ACQUISITIONS CO., LLC has applied for a renewalof TPDES Permit No. 12982-001, which authorizes the discharge oftreated domestic wastewater at a daily average "ow not to exceed 5,000gallons per day. The facility is located west of Interstate Highway35W, at the intersection of Golden Triangle Boulevard and the westservice road for Interstate Highway 35W in Tarrant County, Texas.SOUTH CENTRAL WATER COMPANY has applied for a new per-mit, Proposed Permit No. WQ0014649001, to authorize the disposalof treated domestic wastewater at a daily average "ow not to exceed430,000 gallons per day via surface irrigation of 170 acres at a golfcourse. This permit will not authorize a discharge of pollutants into

waters in the State. The facility and disposal site are located approxi-mately 1,200 feet northwest of the intersection of Haynie Flat Road andTravis Lakeside Drive in Travis County, Texas, in the drainage basin ofthe Colorado River in Segment No. 1404 of the Colorado River Basin.T&E CONSOLIDATED, L.P. which operates the Holly Sugar Plant, aSugar Beet Processing Plant, has applied for a renewal of Permit No.WQ0001043000, which authorizes the disposal of process wastewater,cooling tower blowdown, boiler blowdown, and storm water at a dailyaverage "ow not to exceed 800,000 gallons per day via evaporation.This permit will not authorize a discharge of pollutants into water inthe State. The facility and treatment ponds site are located 3500 HollySugar Road in the City of Hereford, Deaf Smith County, Texas.UNITED STATES DEPARTMENT OF THE ARMY, which operatesa facility which maintains and rebuilds military vehicles; receives,stores, and ships ammunition, supplies, and materials for army use;maintains, renovates, modi!es, and re-certi!es missile systems;rebuilds tracks and road wheels; and demilitarizes out-of-spec ex-plosive ordnance, has applied for a renewal of TPDES Permit No.WQ0002206000, which authorizes the discharge of the discharge ofcombined wastewater (domestic and industrial waste) from SewerPlant "X" via Outfall 001 at a daily average "ow not to exceed1,500,000 gallons per day; sanitary waste, !lm rinse, and coolingtower blowdown from the oxidation pond ("K" area lagoon system)via Outfall 002 at a daily average "ow not to exceed 50,000 gallons perday; and storm water commingled with previously monitored ef"uents(industrial wastewater from the metals/phosphate treatment facilityvia Outfall 003 at a daily average dry weather"ow not to exceed900,000 gallons per day. The draft permit authorizes the discharge ofsanitary waste, !lm rinse, cooling tower blowdown, and storm waterfrom the oxidation pond ("K" area lagoon system) via Outfall 002 at adaily average "ow not to exceed 50,000 gallons per day. The facilityis located within the Red River Arsenal area which encompasses19,000 acres south of and adjacent to U. S. Highway 82, south of thecommunity of Hooks and approximately 6 miles east of the town ofNew Boston, Bowie County, Texas.CITY OF WELLINGTON has applied for a major amendment to Per-mit No. WQ0010328001, to authorize an increase in the ef"uent limi-tation for pH. The current permit authorizes the disposal of treated do-mestic wastewater at a daily average "ow not to exceed 300,000 gal-lons per day via surface irrigation of 120 acres of non-public accessagricultural land which will remain the same. The facility and disposalsite are located 0.5 mile southwest of the intersection of State High-way 338 (15th Street) and Farm-to-Market Road 1035 (Haskell Street)in Collingsworth County, Texas.Written comments or requests for a public meeting may be submitted tothe Of!ce of the Chief Clerk, at the address provided in the informationsection above, WITHIN 30 DAYS OF THE ISSUED DATE OF THISNOTICE.CITY OF GEORGETOWN has applied for a minor amendment to theTexas Pollutant Discharge Elimination System (TPDES) permit to au-thorize the change in disinfection method from Chlorination to Ultra-violet light. The existing permit authorizes the discharge of treated do-mestic wastewater at an annual average "ow not to exceed 2,500,000gallons per day. The facility is located at 400 Rock Dove Lane, approx-imately 1,000 feet west of County Road 102, approximately 4,000 feetsouth of the intersection of State Highway 29 and County Road 102,and approximately 2.75 miles east of the intersection of State Highway29 and State Highway Spur 418 (South Austin Avenue) in the City ofGeorgetown in Williamson County, Texas.TRD-200603472


LaDonna CastañuelaChief ClerkTexas Commission on Environmental QualityFiled: June 28, 2006

Notice of Water Rights ApplicationNotice issued June 28, 2006APPLICATION NO. 5431A; K & M Andrews Inc., 17261 CountyRoad 4072, Scurry, Texas, 75158, has applied for an amendment toWater Use Permit No. 5431 to extend the term of the appropriation,add two existing on-channel impoundments with bed and banks au-thorizations on Bois D’Arc Creek and an unnamed tributary of BoisD’Arc Creek, Trinity River Basin, one off-channel reservoir, and twoadditional diversion points in Kaufman County. The application wasreceived on December 27, 2002. Additional information was receivedon March 13 and May 2, 2003, September 13, 2004, June 14 and 22,2005 and October 4 and 5, 2005, and April 12, 2006. The applicationwas declared administratively complete and accepted for!ling with theOf!ce of the Chief Clerk on December 7, 2005. Written public com-ments and requests for a public meeting should be received in the Of!ceof Chief Clerk, at the address provided in the information section be-low, within 30 days of the date of newspaper publication of the notice.INFORMATION SECTIONTo view the complete issued notices, view the notices on our web site atwww.tceq.state.tx.us/comm_exec/cc/pub_notice.html or call the Of!ceof the Chief Clerk at (512) 239-3300 to obtain a copy of the completenotice. When searching the web site, type in the issued date rangeshown at the top of this document to obtain search results.A public meeting is intended for the taking of public comment, and isnot a contested case hearing.The Executive Director can consider approval of an application unlessa written request for a contested case hearing is !led. To request a con-tested case hearing, you must submit the following: (1) your name (orfor a group or association, an of!cial representative), mailing address,daytime phone number, and fax number, if any: (2) applicant’s nameand permit number; (3) the statement "[I/we] request a contested casehearing;" and (4) a brief and speci!c description of how you would beaffected by the application in a way not common to the general public.You may also submit any proposed conditions to the requested applica-tion which would satisfy your concerns. Requests for a contested casehearing must be submitted in writing to the TCEQ Of!ce of the ChiefClerk at the address provided in the information section below.If a hearing request is !led, the Executive Director will not issue the re-quested permit and may forward the application and hearing request tothe TCEQ Commissioners for their consideration at a scheduled Com-mission meeting.Written hearing requests, public comments or requests for a publicmeeting should be submitted to the Of!ce of the Chief Clerk, MC 105,TCEQ, P.O. Box 13087, Austin, TX 78711-3087. For information con-cerning the hearing process, please contact the Public Interest Counsel,MC 103, at the same address. For additional information, individualmembers of the general public may contact the Of!ce of Public As-sistance at 1-800-687-4040. General information regarding the TCEQcan be found at our web site at www.tceq.state.tx.us. Si desea informa-ción en Español, puede llamar al 1-800-687-4040.TRD-200603471

LaDonna CastañuelaChief ClerkTexas Commission on Environmental QualityFiled: June 28, 2006

Texas Ethics CommissionList of Late FilersListed below are the names of !lers from the Texas Ethics Commissionwho did not !le reports, or failed to pay penalty !nes for late reports inreference to the listed !ling deadline. If you have any questions, youmay contact Robbie Miller at (512) 463-5800 or (800) 325-8506.Deadline: Semiannual JC/OH Report Due January 18, 2005Morris L. Overstreet, 200 Williams, Prairie View, Texas 77446Deadline: Semiannual JC/OH Report Due July 15, 2005Morris L. Overstreet, 200 Williams, Prairie View, Texas 77446Deadline: Semiannual GPAC/SPAC Report Due January 17, 2006Nathan A. East, San Patricio County Republican Party CEC, P. O. Box1333, Portland, Texas 78374Marcus M. Mpwo, African Coalition Political Action Committee,17807 Scenic Oaks Dr., Richmond, Texas 77469John Osborne, Texas Chapter of the American College of CardiologyHeart PAC, 13140 Coit Rd., Ste. 320, LB 120, Dallas, Texas 75240-5737Deadline: Semiannual JC/OH Report Due January 17, 2006Malcolm Dade, 3521 Oak Lawn Ave., PMB 351, Dallas, Texas 75219James J. McCutcheon, 254 N. Lake St., Axtell, Texas 76624Gary D. Pratt, 10541 Kelburn Dr., Houston, Texas 77016-2750Monte D. West, P. O. Box 1, Montgomery, Texas 77356-0001Deadline: 30-Day Pre-Election Report Due February 6, 2006Heath G. Harris, 4144 N. Central Expy., Ste. 650, Dallas, Texas 75204Daphne Villarreal, Texas Republican Alliance, 11203 Candle Park, SanAntonio, Texas 78249John White, 400 E. Weatherford, Fort Worth, Texas 76102Deadline: 8-Day Pre-Election Report Due February 27, 2006Jack F. Borden, Sr., P. O. Box 191913, Dallas, Texas 75219Michael A. Franks, 602 Koehl St., Wharton, Texas 77488Star Locke, 4929 Cain Dr., Corpus Christi, Texas 78411-4720Tony Mandujano, P. O. Box 241268, San Antonio, Texas 78224Herschel Smith, 10201 Telephone Rd. #45A, Houston, Texas 77075Christina Stone, Associated Builders & Contractors of Greater HoustonPAC, 3910 Kirby Dr, Ste. 131, Houston, Texas 77098John White, 400 E. Weatherford, Fort Worth, Texas 76102Tom Yturri, Texas Academy of Physician Assistants - PAC, 401 W.15th St., Austin, Texas 78701Deadline: Monthly Report Due April 5, 2006Robert B. Aguirre, All Children Matter, Texas, 1504 San Antonio, Ste.200, Austin, Texas 78701


Deadline: 30-Day Pre-Election Report Due April 13, 2006Darwin McKee, Central Texas PAC Centre Development, P. O. Box2513, Austin, Texas 78768Deadline: 8-Day Pre-Election Report Due May 5, 2006Margaret Doescher, Kingwood Area Republican Women’s Club, 2638Pine Cone Dr., Kingwood, Texas 77339Deadline: Monthly Report Due May 5, 2006Robert B. Aguirre, All Children Matter, Texas, 1504 San Antonio, Ste.200, Austin, Texas 78701TRD-200603422David ReismanExecutive DirectorTexas Ethics CommissionFiled: June 22, 2006

Texas Health and Human Services CommissionPublic NoticeThe Texas Health and Human Services Commission announces its in-tent to submit Amendment 16 to the Texas State Plan for the State Chil-dren’s Health Insurance Program (CHIP) under Title XXI of the SocialSecurity Act. The proposed effective date of this amendment is August1, 2006.This amendment increases the amount of time that families enrolledin CHIP have to pay the enrollment fee upon renewal. Under the cur-rent state plan, families renewing coverage have until cut-off of the lastmonth of the current six-month coverage period to pay the enrollmentfee. Cut-off is usually 10-15 days prior to the end of the month. Un-der the amended state plan, families will have until cut-off of the !rstmonth of the new six-month coverage period to pay the enrollment fee.HHSC anticipates that the proposed amendment to the state plan willresult in a neutral !scal impact for state !scal years 2006 and 2007.For additional information, please contact Kimberly Tucker in theAcute Care Policy Development unit for the Medicaid and CHIPDivision by telephone at (512) 491-1161 or by e-mail at [email protected] AragónChief CounselTexas Health and Human Services CommissionFiled: June 27, 2006

Department of State Health ServicesNotice of Opportunity for Public CommentThe federal statute authorizing Community Mental Health BlockGrants requires the Department of State Health Services (department)to submit its plan for providing comprehensive community mentalhealth services for the coming !scal year (FY) 2007 (42 USC 300x-1).The plan must provide for an organized community-based system ofcare for individuals who are either adults with a serious mental illnessor children with a serious emotional disturbance. Federal law requiresthat the department make its plan public so as to facilitate commentfrom interested persons and organizations during the development ofthe plan (42 USC 300x-51).

For this purpose, the draft state plan for FY 2007 is beingmade available for review and comment and can be accessedon the following department website on or about July 7, 2006:http://www.dshs.state.tx.us/cpi/mhbg. A copy of the draft plan mayalso be obtained by contacting Lauren Lace!eld Lewis at (512)206-4747, or at the address re"ected in the following paragraph of thisnotice.Comments regarding the draft plan that are received by 5:00p.m. on Friday, August 4, 2006 will be shared with the MentalHealth Planning and Advisory Council and considered in con-nection with development of the !nal draft. Comments can besubmitted through the website where the draft state plan is posted:http://www.dshs.state.tx.us/cpi/mhbg; or directly to the followingemail address: [email protected]; or by mail to: Lauren Lace-!eld Lewis, Branch Manager, Mental Health Program Services Unit,Community Mental Health and Substance Abuse Section, Departmentof State Health Services, Mail Code 2018, 909 West 45th Street,Austin, Texas 78751.TRD-200603437Cathy CampbellGeneral CounselDepartment of State Health ServicesFiled: June 26, 2006

Texas Department of InsuranceNotice of Application by a Small Employer Health Bene!tPlan Issuer to be a Risk-Assuming Health Bene!t Plan IssuerNotice is given to the public of the application of the listed small em-ployer health bene!t plan issuer to be a risk-assuming health bene!tplan issuer under Insurance Code §1501.312. A small employer healthbene!t plan issuer is de!ned by Insurance Code §1501.002(16) as ahealth bene!t plan issuer offering, delivering, issuing for delivery, orrenewing health bene!t plans subject to the Insurance Code, Chapter1501, Subchapters C-H. A risk-assuming health bene!t plan issuer isde!ned by Insurance Code §1501.301(4) as a small employer healthbene!t plan issuer that does not participate in the Texas Health Rein-surance System. The following small employer health bene!t plan is-suer has applied to be a risk-assuming health bene!t plan issuer:Independence American Insurance Company.The application is subject to public inspection at the of!ces of theTexas Department of Insurance, Legal & Compliance Division - NickHoelscher, 333 Guadalupe, Tower I, Room 920, Austin, Texas.If you wish to comment on the application of Independence AmericanInsurance Company to be a risk-assuming health bene!t plan issuer,you must submit your written comments within 60 days after publi-cation of this notice in the Texas Register to Gene C. Jarmon, Gen-eral Counsel and Chief Clerk, Mail Code 113-2A, Texas Departmentof Insurance, P. O. Box 149104, Austin, Texas 78714-91204. Uponconsideration of the application and comments, if the Commissioner issatis!ed that all requirements of law have been met, the Commissioneror his designee may take action to approve the applicant to be a risk-as-suming health bene!t plan issuer.TRD-200603460Gene C. JarmonChief Clerk and General CounselTexas Department of InsuranceFiled: June 27, 2006


Notice of Application by a Small Employer Health Bene!tPlan Issuer to be a Risk-Assuming Health Bene!t Plan IssuerNotice is given to the public of the application of the listed small em-ployer health bene!t plan issuer to be a risk-assuming health bene!tplan issuer under Insurance Code §1501.312. A small employer healthbene!t plan issuer is de!ned by Insurance Code §1501.002(16) as ahealth bene!t plan issuer offering, delivering, issuing for delivery, orrenewing health bene!t plans subject to the Insurance Code, Chapter1501, Subchapters C-H. A risk-assuming health bene!t plan issuer isde!ned by Insurance Code §1501.301(4) as a small employer healthbene!t plan issuer that does not participate in the Texas Health Rein-surance System. The following small employer health bene!t plan is-suer has applied to be a risk-assuming health bene!t plan issuer:Unicare Life & Health Insurance Company.The application is subject to public inspection at the of!ces of theTexas Department of Insurance, Legal & Compliance Division - NickHoelscher, 333 Guadalupe, Tower I, Room 920, Austin, Texas.If you wish to comment on the application of Unicare Life & Health In-surance Company to be a risk-assuming health bene!t plan issuer, youmust submit your written comments within 60 days after publication ofthis notice in the Texas Register to Gene C. Jarmon, General Counseland Chief Clerk, Mail Code 113-2A, Texas Department of Insurance,P. O. Box 149104, Austin, Texas 78714-91204. Upon consideration ofthe application and comments, if the Commissioner is satis!ed that allrequirements of law have been met, the Commissioner or his designeemay take action to approve the applicant to be a risk-assuming healthbene!t plan issuer.TRD-200603461Gene C. JarmonChief Clerk and General CounselTexas Department of InsuranceFiled: June 27, 2006

Third Party Administrator ApplicationsThe following third party administrator (TPA) applications have been!led with the Texas Department of Insurance and are under considera-tion.Application to change the name of HARRINGTON BENEFIT SER-VICES, INC., to HARRINGTON BENEFIT SERVICES, INC., (us-ing the assumed name of FISERV HEALTH-HARRINGTON), a for-eign third party administrator. The home of!ce is WILMINGTON,DELAWARE.Application to change the name of COMMONWEALTH CLAIMSMANAGEMENT ASSOCIATES, INC., to ALAN GRAY CLAIMSPROCESSING SERVICES, INC., a foreign third party administrator.The home of!ce is BOSTON, MASSACHUSETTS.Application for admission to Texas of HUMANA HEALTH PLAN,INC., a foreign third party administrator. The home of!ce is FRANK-FORT, KENTUCKY.Any objections must be !led within 20 days after this notice is pub-lished in the Texas Register, addressed to the attention of Matt Ray,MC 107-1A, 333 Guadalupe, Austin, Texas 78701.TRD-200603424Gene C. JarmonChief Clerk and General CounselTexas Department of InsuranceFiled: June 22, 2006

Texas Department of Insurance, Division ofWorkers’ CompensationNotice of Public HearingThe Texas Department of Insurance (TDI), Division of Workers’ Com-pensation will hold a public hearing on Wednesday, July 26, 2006 inthe Tippy Foster Room of the Division’s Central Of!ce located at 7551Metro Center Drive, Suite 100 (near the intersection of Highway 71and Riverside Drive) in Austin.The public hearing will begin at 9:30 a.m. and the Division will taketestimony on the following rules:CHAPTER 133. MEDICAL BILLING AND PROCESSINGSUBCHAPTER D. DISPUTE OF MEDICAL BILLS§133.305. Medical Dispute Resolution--General. (Repeal)§133.305. Medical Dispute Resolution--General. (New)§133.307. Medical Dispute Resolution of a Medical Fee Dispute. (Re-peal)§133.307. Medical Dispute Resolution of Fee Disputes. (New)§133.308. Medical Dispute Resolution by Independent Review Orga-nizations. (Repeal)§133.308. Medical Dispute Resolution by Independent Review Orga-nizations. (New)The proposed rules were published in the Texas Register on June 23,2006 (31 TexReg 5042), and may be viewed on the TDI website athttp://www.tdi.state.tx.us/wc/proposedrules/toc.html. Although thecomment period for these rules will close on July 24, 2006, additionalcomments will be accepted at the hearing.TDI offers reasonable accommodations for persons attending meetings,hearings, or educational events, as required by the Americans with Dis-abilities Act. If you require special accommodations, contact IdaliaCantu at (512) 804-4403 at least of two days prior to the hearing date.For further information regarding this notice, contact Kevin Haywoodof the Division’s Legal and Compliance Section at (512) 804-4424.TRD-200603478Norma GarciaGeneral CounselTexas Department of Insurance, Division of Workers’ CompensationFiled: June 28, 2006

Texas Lottery CommissionInstant Game Number 668 "Club Casino"1.0 Name and Style of Game.A. The name of Instant Game No. 668 is "CLUB CASINO". The playstyle for game ROULETTE is "key number match". The play style forgame 7-11 is "add up". The play style for game SLOTS is "key symbolmatch". The play style for game TWO OF A KIND is "key symbolmatch".1.1 Price of Instant Ticket.A. Tickets for Instant Game No. 668 shall be $5.00 per ticket.1.2 De!nitions in Instant Game No. 668.


A. Display Printing - That area of the instant game ticket outside of thearea where the Overprint and Play Symbols appear.B. Latex Overprint - The removable scratch-off covering over the PlaySymbols on the front of the ticket.C. Play Symbol - The printed data under the latex on the front of theinstant ticket that is used to determine eligibility for a prize. EachPlay Symbol is printed in Symbol font in black ink in positive exceptfor dual-image games. The possible black play symbols are: $5.00,$10.00, $20.00, $50.00, $100, $500, $1,000, $5,000, $50,000, 01, 02,03, 04, 05, 06, 07, 08, 09, 10, 11, 12, ONE DICE SYMBOL, TWODICE SYMBOL, THREE DICE SYMBOL, FOUR DICE SYMBOL,FIVE DICE SYMBOL, SIX DICE SYMBOL, CHERRY SYMBOL,LEMON SYMBOL, STACK OF BILLS SYMBOL, CROWN SYM-BOL, HORSESHOE SYMBOL, SHAMROCK SYMBOL, POT OF

GOLD SYMBOL, GOLD BAR SYMBOL, 2 CARD SYMBOL, 3CARD SYMBOL, 4 CARD SYMBOL, 5 CARD SYMBOL, 6 CARDSYMBOL, 7 CARD SYMBOL, 8 CARD SYMBOL, 9 CARD SYM-BOL, 10 CARD SYMBOL, JACK CARD SYMBOL, QUEEN CARDSYMBOL, KING CARD SYMBOL and ACE CARD SYMBOL.D. Play Symbol Caption - The printed material appearing below eachPlay Symbol which explains the Play Symbol. One caption appearsunder each Play Symbol and is printed in caption font in black inkin positive. The Play Symbol Caption which corresponds with andveri!es each Play Symbol is as follows:


E. Retailer Validation Code - Three (3) letters found under the remov-able scratch-off covering in the play area, which retailers use to verifyand validate instant winners. These three (3) small letters are for val-

idation purposes and cannot be used to play the game. The possiblevalidation codes are:

Low-tier winning tickets use the required codes listed in Figure 2. Non-winning tickets and high-tier tickets use a non-required combination ofthe required codes listed in Figure 2 with the exception of∅, which willonly appear on low-tier winners and will always have a slash throughit.F. Serial Number - A unique 13 (thirteen) digit number appearing un-der the latex scratch-off covering on the front of the ticket. There is aboxed four (4) digit Security Number placed randomly within the Se-rial Number. The remaining nine (9) digits of the Serial Number are theValidation Number. The Serial Number is positioned beneath the bot-tom row of play data in the scratched-off play area. The Serial Numberis for validation purposes and cannot be used to play the game. Theformat will be: 0000000000000.G. Low-Tier Prize - A prize of $5.00, $10.00 or $20.00.H. Mid-Tier Prize - A prize of $50.00, $100 or $500.I. High-Tier Prize - A prize of $1,000, $5,000 or $50,000.J. Bar Code - A 22 (twenty-two) character interleaved two (2) of !ve(5) bar code which will include a three (3) digit game ID, the seven(7) digit pack number, the three (3) digit ticket number and the nine(9) digit Validation Number. The bar code appears on the back of theticket.K. Pack-Ticket Number - A 13 (thirteen) digit number consisting of thethree (3) digit game number (668), a seven (7) digit pack number, anda three (3) digit ticket number. Ticket numbers start with 001 and endwith 075 within each pack. The format will be: 668-0000001-001.L. Pack - A pack of "CLUB CASINO" Instant Game tickets contains75 tickets, packed in plastic shrink-wrapping and fanfolded in pages ofone (1). Ticket 001 will be shown on the front of the pack; the back ofticket 075 will be revealed on the back of the pack. All packs will betightly shrink-wrapped. There will be no breaks between the tickets ina pack. Every other book will reverse i.e., reverse order will be: theback of ticket 001 will be shown on the front of the pack and the frontof ticket 075 will be shown on the back of the pack.M. Non-Winning Ticket - A ticket which is not programmed to be awinning ticket or a ticket that does not meet all of the requirementsof these Game Procedures, the State Lottery Act (Texas GovernmentCode, Chapter 466), and applicable rules adopted by the Texas Lotterypursuant to the State Lottery Act and referenced in 16 TAC, Chapter401.N. Ticket or Instant Game Ticket, or Instant Ticket - A Texas Lottery"CLUB CASINO" Instant Game No. 668 ticket.2.0 Determination of Prize Winners. The determination of prizewinners is subject to the general ticket validation requirements setforth in Texas Lottery Rule 401.302, Instant Game Rules, these GameProcedures, and the requirements set out on the back of each instantticket. A prize winner in the "CLUB CASINO" Instant Game is

determined once the latex on the ticket is scratched off to expose61 (sixty-one) Play Symbols. In the game ROULETTE, if a playermatches the YOUR NUMBER play symbol to any ROULETTEWHEEL number play symbols, the player wins the PRIZE shownfor that number. In the game 7-11, if any of YOUR ROLLS playsymbols add up to 7 or 11 within the same ROLL, the player winsPRIZE shown for that ROLL. In the game SLOTS, if a player revealsthree (3) matching play symbols in any one PULL, the player winsthe PRIZE for that PULL. In the game TWO OF A KIND, if a playerreveals (two) 2 matching CARDS in any HAND, the player winsPRIZE shown for that HAND. No portion of the display printing norany extraneous matter whatsoever shall be usable or playable as a partof the Instant Game.2.1 Instant Ticket Validation Requirements.A. To be a valid Instant Game ticket, all of the following requirementsmust be met:1. Exactly 61 (sixty-one) Play Symbols must appear under the latexoverprint on the front portion of the ticket;2. Each of the Play Symbols must have a Play Symbol Caption under-neath, unless speci!ed, and each Play Symbol must agree with its PlaySymbol Caption;3. Each of the Play Symbols must be present in its entirety and be fullylegible;4. Each of the Play Symbols must be printed in black ink except fordual image games;5. The ticket shall be intact;6. The Serial Number, Retailer Validation Code and Pack-Ticket Num-ber must be present in their entirety and be fully legible;7. The Serial Number must correspond, using the Texas Lottery’scodes, to the Play Symbols on the ticket;8. The ticket must not have a hole punched through it, be mutilated,altered, unreadable, reconstituted or tampered with in any manner;9. The ticket must not be counterfeit in whole or in part;10. The ticket must have been issued by the Texas Lottery in an autho-rized manner;11. The ticket must not have been stolen, nor appear on any list ofomitted tickets or non-activated tickets on !le at the Texas Lottery;12. The Play Symbols, Serial Number, Retailer Validation Code andPack-Ticket Number must be right side up and not reversed in any man-ner;13. The ticket must be complete and not miscut, and have exactly 61(sixty-one) Play Symbols under the latex overprint on the front portion


of the ticket, exactly one Serial Number, exactly one Retailer ValidationCode, and exactly one Pack-Ticket Number on the ticket;14. The Serial Number of an apparent winning ticket shall correspondwith the Texas Lottery’s Serial Numbers for winning tickets, and aticket with that Serial Number shall not have been paid previously;15. The ticket must not be blank or partially blank, misregistered, de-fective or printed or produced in error;16. Each of the 61 (sixty-one) Play Symbols must be exactly one ofthose described in Section 1.2.C of these Game Procedures;17. Each of the 61 (sixty-one) Play Symbols on the ticket must beprinted in the Symbol font and must correspond precisely to the artworkon !le at the Texas Lottery; the ticket Serial Numbers must be printedin the Serial font and must correspond precisely to the artwork on !le atthe Texas Lottery; and the Pack-Ticket Number must be printed in thePack-Ticket Number font and must correspond precisely to the artworkon !le at the Texas Lottery;18. The display printing on the ticket must be regular in every respectand correspond precisely to the artwork on !le at the Texas Lottery;and19. The ticket must have been received by the Texas Lottery by appli-cable deadlines.B. The ticket must pass all additional validation tests provided for inthese Game Procedures, the Texas Lottery’s Rules governing the awardof prizes of the amount to be validated, and any con!dential validationand security tests of the Texas Lottery.C. Any Instant Game ticket not passing all of the validation require-ments is void and ineligible for any prize and shall not be paid. How-ever, the Executive Director may, solely at the Executive Director’sdiscretion, refund the retail sales price of the ticket. In the event a de-fective ticket is purchased, the only responsibility or liability of theTexas Lottery shall be to replace the defective ticket with another un-played ticket in that Instant Game (or a ticket of equivalent sales pricefrom any other current Instant Lottery game) or refund the retail salesprice of the ticket, solely at the Executive Director’s discretion.2.2 Programmed Game Parameters.A. Consecutive non-winning tickets within a book will not have iden-tical patterns.B. Game ROULETTE: Players can win up to six (6) times in this playarea.C. Game ROULETTE: No duplicate non-winning ROULETTEWHEEL numbers on a ticket.D. Game ROULETTE: Non-winning prize symbols will not match awinning prize symbol in this play area.E. Game ROULETTE: ROULETTE WHEEL numbers will neverequal the corresponding PRIZE symbol.F. Game ROULETTE: On all tickets, a non-winning prize amount willnever appear more than twice in this play area.G. Game 7-11: Players can win up to six (6) times in this play area.H. Game 7-11: No prize amount will appear more than two (2) timesin this play area except as required on multiple win tickets.I. Game 7-11: Non-winning tickets will never have a total of seven (7)or eleven (11) within the same ROLL.J. Game 7-11: On winning tickets, non-winning rolls will have differ-ent prize amounts from the winning prize amount in this play area.

K. Game SLOTS: There will never be three (3) identical symbols in avertical or diagonal line.L. Game SLOTS: No prize amount will appear more than two (2) timesin this play area except as required on multiple win tickets.M. Game SLOTS: Non-winning tickets will never contain more thanthree (3) of the same play symbols over the entire play area.N. Game SLOTS: Consecutive non-winning tickets within a bookwill not have identical PULLS. For instance if the !rst ticket containsCHERRIES, CROWN, POT OF GOLD in any PULL then the nextticket may not contain CHERRIES, CROWN and POT OF GOLD inany row in any order.O. Game SLOTS: Non-winning tickets will not have identical pulls.For example if PULL 1 is CHERRIES, CROWN, and POT OF GOLDthen PULL 2 through PULL 6 will not contain CHERRIES, CROWN,and POT OF GOLD in any order.P. Game SLOTS: Winning tickets will contain three (3) like Play Sym-bols in a horizontal row.Q. Game SLOTS: Players can win up to six (6) times in this play area.R. Game SLOTS: On winning tickets, non-winning games will havedifferent prize amounts from the winning prize amounts in this playarea.S. Game TWO OF A KIND: Players can win twice in this area.T. Game TWO OF A KIND: Tickets will win with two matchingCARDS within the same HAND.U. Game TWO OF A KIND: On non-winning tickets, all CARDS willbe unique.V. Game TWO OF A KIND: On winning tickets, all non-winning prizeamounts will be different from winning prize amounts in this play area.W. Game TWO OF A KIND: On non-winning games, the two prizeamounts will be unique.2.3 Procedure for Claiming Prizes.A. To claim a "CLUB CASINO" Instant Game prize of $5.00, $10.00,$20.00, $50.00, $100 or $500, a claimant shall sign the back of theticket in the space designated on the ticket and present the winningticket to any Texas Lottery Retailer. The Texas Lottery Retailer shallverify the claim and, if valid, and upon presentation of proper identi-!cation, make payment of the amount due the claimant and physicallyvoid the ticket; provided that the Texas Lottery Retailer may, but isnot, in some cases, required to pay a $50.00, $100 or $500 ticket. Inthe event the Texas Lottery Retailer cannot verify the claim, the TexasLottery Retailer shall provide the claimant with a claim form and in-struct the claimant on how to !le a claim with the Texas Lottery. If theclaim is validated by the Texas Lottery, a check shall be forwarded tothe claimant in the amount due. In the event the claim is not validated,the claim shall be denied and the claimant shall be noti!ed promptly.A claimant may also claim any of the above prizes under the proceduredescribed in Section 2.3.B and Section 2.3.C of these Game Procedures.B. To claim a "CLUB CASINO" Instant Game prize of $1,000, $5,000or $50,000, the claimant must sign the winning ticket and present it atone of the Texas Lottery’s Claim Centers. If the claim is validated bythe Texas Lottery, payment will be made to the bearer of the validatedwinning ticket for that prize upon presentation of proper identi!cation.When paying a prize of $600 or more, the Texas Lottery shall !le theappropriate income reporting form with the Internal Revenue Service(IRS) and shall withhold federal income tax at a rate set by the IRSif required. In the event that the claim is not validated by the Texas


Lottery, the claim shall be denied and the claimant shall be noti!edpromptly.C. As an alternative method of claiming a "CLUB CASINO" InstantGame prize, the claimant must sign the winning ticket, thoroughlycomplete a claim form, and mail both to: Texas Lottery Commission,Post Of!ce Box 16600, Austin, Texas 78761-6600. The risk of send-ing a ticket remains with the claimant. In the event that the claim isnot validated by the Texas Lottery, the claim shall be denied and theclaimant shall be noti!ed promptly.D. Prior to payment by the Texas Lottery of any prize, the Texas Lotteryshall deduct a suf!cient amount from the winnings of a person who hasbeen !nally determined to be:1. delinquent in the payment of a tax or other money collected by theComptroller, the Texas Workforce Commission, or Texas AlcoholicBeverage Commission;2. delinquent in making child support payments administered or col-lected by the Attorney General;3. delinquent in reimbursing the Texas Health and Human ServicesCommission for a bene!t granted in error under the food stamp pro-gram or the program of !nancial assistance under Chapter 31, HumanResources Code;4. in default on a loan made under Chapter 52, Education Code; or5. in default on a loan guaranteed under Chapter 57, Education Code.E. If a person is indebted or owes delinquent taxes to the State, otherthan those speci!ed in the preceding paragraph, the winnings of a per-son shall be withheld until the debt or taxes are paid.2.4 Allowance for Delay of Payment. The Texas Lottery may delaypayment of the prize pending a !nal determination by the ExecutiveDirector, under any of the following circumstances:A. if a dispute occurs, or it appears likely that a dispute may occur,regarding the prize;B. if there is any question regarding the identity of the claimant;C. if there is any question regarding the validity of the ticket presentedfor payment; orD. if the claim is subject to any deduction from the payment otherwisedue, as described in Section 2.3.D of these Game Procedures. No lia-bility for interest for any delay shall accrue to the bene!t of the claimantpending payment of the claim.2.5 Payment of Prizes to Persons Under 18. If a person under the age of18 years is entitled to a cash prize of less than $600 from the "CLUB

CASINO" Instant Game, the Texas Lottery shall deliver to an adultmember of the minor’s family or the minor’s guardian a check or war-rant in the amount of the prize payable to the order of the minor.2.6 If a person under the age of 18 years is entitled to a cash prizeof more than $600 from the "CLUB CASINO" Instant Game, theTexas Lottery shall deposit the amount of the prize in a custodial bankaccount, with an adult member of the minor’s family or the minor’sguardian serving as custodian for the minor.2.7 Instant Ticket Claim Period. All Instant Game prizes must beclaimed within 180 days following the end of the Instant Game orwithin the applicable time period for certain eligible military personnelas set forth in Texas Government Code Section 466.408. Any prize notclaimed within that period, and in the manner speci!ed in these GameProcedures and on the back of each ticket, shall be forfeited.2.8 Disclaimer. The number of prizes in a game is approximate basedon the number of tickets ordered. The number of actual prizes availablein a game may vary based on number of tickets manufactured, testing,distribution, sales and number of prizes claimed. An Instant Gameticket may continue to be sold even when all the top prizes have beenclaimed.3.0 Instant Ticket Ownership.A. Until such time as a signature is placed upon the back portion of anInstant Game ticket in the space designated, a ticket shall be owned bythe physical possessor of said ticket. When a signature is placed on theback of the ticket in the space designated, the player whose signatureappears in that area shall be the owner of the ticket and shall be entitledto any prize attributable thereto. Notwithstanding any name or namessubmitted on a claim form, the Executive Director shall make paymentto the player whose signature appears on the back of the ticket in thespace designated. If more than one name appears on the back of theticket, the Executive Director will require that one of those playerswhose name appears thereon be designated by such players to receivepayment.B. The Texas Lottery shall not be responsible for lost or stolen InstantGame tickets and shall not be required to pay on a lost or stolen InstantGame ticket.4.0 Number and Value of Instant Prizes. There will be approximately5,040,000 tickets in the Instant Game No. 668. The approximate num-ber and value of prizes in the game are as follows:


A. The actual number of tickets in the game may be increased or de-creased at the sole discretion of the Texas Lottery Commission.

5.0 End of the Instant Game. The Executive Director may, at any time,announce a closing date (end date) for the Instant Game No. 668 with-out advance notice, at which point no further tickets in that game maybe sold.6.0 Governing Law. In purchasing an Instant Game ticket, the playeragrees to comply with, and abide by, these Game Procedures for In-stant Game No. 668, the State Lottery Act (Texas Government Code,Chapter 466), applicable rules adopted by the Texas Lottery pursuantto the State Lottery Act and referenced in 16 TAC, Chapter 401, andall !nal decisions of the Executive Director.TRD-200603488Kimberly L. KiplinGeneral CounselTexas Lottery CommissionFiled: June 28, 2006

Instant Game Number 685 "Lucky Millions"1.0 Name and Style of Game.A. The name of Instant Game No. 685 is "LUCKY MILLIONS". Theplay style for Game 1, is "key number match". The play style for Game2 is "beat score". The play style for Game 3 is "beat score". The playstyle for Game 4 is "key symbol match".1.1 Price of Instant Ticket.

A. Tickets for Instant Game No. 685 shall be $30.00 per ticket.1.2 De!nitions in Instant Game No. 685.A. Display Printing - That area of the instant game ticket outside of thearea where the Overprint and Play Symbols appear.

B. Latex Overprint - The removable scratch-off covering over the PlaySymbols on the front of the ticket.C. Play Symbol - The printed data under the latex on the front of theinstant ticket that is used to determine eligibility for a prize. EachPlay Symbol is printed in Symbol font in black ink in positive exceptfor dual-image games. The possible black play symbols are: 1, 2, 3,4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,24, 25, 26, 27, 28, 29, 30 GOLD BAR SYMBOL, COIN SYMBOL,MONEY BAG SYMBOL, STACK OF BILLS SYMBOL, $ SYM-BOL, HORSESHOE SYMBOL, BOOT SYMBOL, HAT SYMBOL,SADDLE SYMBOL, SPUR SYMBOL, HORSE SYMBOL, STARSYMBOL, $1.00, $2.00, $3.00, $4.00, $5.00, $8.00, $10.00, $20.00,$30.00, $40.00, $50.00, $100, $300, $500, $3,000, $30,000 or THRMILL SYMBOL.D. Play Symbol Caption - The printed material appearing below eachPlay Symbol which explains the Play Symbol. One caption appearsunder each Play Symbol and is printed in caption font in black inkin positive. The Play Symbol Caption which corresponds with andveri!es each Play Symbol is as follows:


E. Retailer Validation Code - Three (3) letters found under the remov-able scratch-off covering in the play area, which retailers use to verifyand validate instant winners. These three (3) small letters are for val-idation purposes and cannot be used to play the game. The possiblevalidation codes are:F. Serial Number - A unique 13 (thirteen) digit number appearing un-der the latex scratch-off covering on the front of the ticket. There is aboxed four (4) digit Security Number placed randomly within the Se-rial Number. The remaining nine (9) digits of the Serial Number are theValidation Number. The Serial Number is positioned beneath the bot-tom row of play data in the scratched-off play area. The Serial Numberis for validation purposes and cannot be used to play the game. Theformat will be: 0000000000000.G. Mid-Tier Prize - A prize of $30.00, $40.00, $70.00, $100, $300 or$500.H. High-Tier Prize - A prize of $3,000, $30,000 or $3,000,000.

I. Bar Code - A 22 (twenty-two) character interleaved two (2) of !ve(5) bar code which will include a three (3) digit game ID, the seven(7) digit pack number, the three (3) digit ticket number and the nine(9) digit Validation Number. The bar code appears on the back of theticket.J. Pack-Ticket Number - A 13 (thirteen) digit number consisting of thethree (3) digit game number (685), a seven (7) digit pack number, anda three (3) digit ticket number. Ticket numbers start with 001 and endwith 025 within each pack. The format will be: 685-0000001-001.K. Pack - A pack of "LUCKY MILLIONS" Instant Game tickets con-tains 25 tickets, packed in plastic shrink-wrapping and fanfolded inpages of one (1). The packs will alternate. One will show front ofticket 001 and back of 025 while the other fold will show the back ofticket 001 and front of 025.L. Non-Winning Ticket - A ticket which is not programmed to be awinning ticket or a ticket that does not meet all of the requirementsof these Game Procedures, the State Lottery Act (Texas GovernmentCode, Chapter 466), and applicable rules adopted by the Texas Lotterypursuant to the State Lottery Act and referenced in 16 TAC, Chapter401.M. Ticket or Instant Game Ticket, or Instant Ticket - A Texas Lottery"LUCKY MILLIONS" Instant Game No. 685 ticket.

2.0 Determination of Prize Winners. The determination of prize win-ners is subject to the general ticket validation requirements set forth inTexas Lottery Rule 401.302, Instant Game Rules, these Game Proce-dures, and the requirements set out on the back of each instant ticket. Aprize winner in the "LUCKY MILLIONS" Instant Game is determinedonce the latex on the ticket is scratched off to expose 62 (sixty-two)Play Symbols. GAME 1: If a player matches any of YOUR NUM-BERS play symbols to either of the WINNING NUMBERS play sym-bols, the player wins the prize shown for that number. GAME 2: Ifthe total of YOUR NUMBERS play symbols equals 7 or 11 within arow, the player wins PRIZE shown for that row. GAME 3: If YOURNUMBER play symbol beats THEIR NUMBER play symbol within arow, the player wins PRIZE shown for that row. GAME 4: If a playermatches three (3) symbols across in the same row, the player wins thePRIZE shown for that row. No portion of the display printing nor anyextraneous matter whatsoever shall be usable or playable as a part ofthe Instant Game.2.1 Instant Ticket Validation Requirements.A. To be a valid Instant Game ticket, all of the following requirementsmust be met:1. Exactly 62 (sixty-two) Play Symbols must appear under the latexoverprint on the front portion of the ticket;

2. Each of the Play Symbols must have a Play Symbol Caption under-neath, unless speci!ed, and each Play Symbol must agree with its PlaySymbol Caption;3. Each of the Play Symbols must be present in its entirety and be fullylegible;4. Each of the Play Symbols must be printed in black ink except fordual image games;5. The ticket shall be intact;6. The Serial Number, Retailer Validation Code and Pack-Ticket Num-ber must be present in their entirety and be fully legible;7. The Serial Number must correspond, using the Texas Lottery’scodes, to the Play Symbols on the ticket;

8. The ticket must not have a hole punched through it, be mutilated,altered, unreadable, reconstituted or tampered with in any manner;9. The ticket must not be counterfeit in whole or in part;


10. The ticket must have been issued by the Texas Lottery in an autho-rized manner;11. The ticket must not have been stolen, nor appear on any list ofomitted tickets or non-activated tickets on !le at the Texas Lottery;12. The Play Symbols, Serial Number, Retailer Validation Code andPack-Ticket Number must be right side up and not reversed in any man-ner;13. The ticket must be complete and not miscut, and have exactly 62(sixty-two) Play Symbols under the latex overprint on the front portionof the ticket, exactly one Serial Number, exactly one Retailer ValidationCode, and exactly one Pack-Ticket Number on the ticket;14. The Serial Number of an apparent winning ticket shall correspondwith the Texas Lottery’s Serial Numbers for winning tickets, and aticket with that Serial Number shall not have been paid previously;15. The ticket must not be blank or partially blank, misregistered, de-fective or printed or produced in error;16. Each of the 62 (sixty-two) Play Symbols must be exactly one ofthose described in Section 1.2.C of these Game Procedures;17. Each of the 62 (sixty-two) Play Symbols on the ticket must beprinted in the Symbol font and must correspond precisely to the artworkon !le at the Texas Lottery; the ticket Serial Numbers must be printedin the Serial font and must correspond precisely to the artwork on !le atthe Texas Lottery; and the Pack-Ticket Number must be printed in thePack-Ticket Number font and must correspond precisely to the artworkon !le at the Texas Lottery;18. The display printing on the ticket must be regular in every respectand correspond precisely to the artwork on !le at the Texas Lottery;and19. The ticket must have been received by the Texas Lottery by appli-cable deadlines.B. The ticket must pass all additional validation tests provided for inthese Game Procedures, the Texas Lottery’s Rules governing the awardof prizes of the amount to be validated, and any con!dential validationand security tests of the Texas Lottery.C. Any Instant Game ticket not passing all of the validation require-ments is void and ineligible for any prize and shall not be paid. How-ever, the Executive Director may, solely at the Executive Director’sdiscretion, refund the retail sales price of the ticket. In the event a de-fective ticket is purchased, the only responsibility or liability of theTexas Lottery shall be to replace the defective ticket with another un-played ticket in that Instant Game (or a ticket of equivalent sales pricefrom any other current Instant Lottery game) or refund the retail salesprice of the ticket, solely at the Executive Director’s discretion.2.2 Programmed Game Parameters.A. Consecutive non-winning tickets will not have identical play data,spot for spot.B. Game 1: No duplicate non-winning prize symbols.C. Game 1: No duplicate non-winning YOUR NUMBERS play sym-bols.D. Game 1: No duplicate WINNING NUMBERS play symbols.E. Game 1: Non-winning prize symbols will never be the same as thewinning prize symbol(s).F. Game 1: No prize amount in a non-winning spot will correspondwith the YOUR NUMBER play symbol (i.e. 5 and $5).G. Game 2: No duplicate non-winning rows in the same order.

H. Game 2: No duplicate non-winning prize symbols.I. Game 2: Non-winning prize symbols will never be the same as thewinning prize symbol(s).J. Game 3: No duplicate non-winning rows.K. Game 3: No duplicate non-winning prize symbols.L. Game 3: Non-winning prize symbols will never be the same as thewinning prize symbol(s).M. Game 3: No ties between YOUR NUMBER and THEIR NUMBERwithin a row.N. Game 4: No duplicate non-winning rows in any order.O. Game 4: No duplicate non-winning prize symbols.2.3 Procedure for Claiming Prizes.A. To claim a "LUCKY MILLIONS" Instant Game prize of $30.00,$40.00, $70.00, $100, $300 or $500, a claimant shall sign the back ofthe ticket in the space designated on the ticket and present the winningticket to any Texas Lottery Retailer. The Texas Lottery Retailer shallverify the claim and, if valid, and upon presentation of proper identi-!cation, make payment of the amount due the claimant and physicallyvoid the ticket; provided that the Texas Lottery Retailer may, but is not,in some cases, required to pay a $30.00, $40.00, $70.00, $100, $300or $500 ticket. In the event the Texas Lottery Retailer cannot verifythe claim, the Texas Lottery Retailer shall provide the claimant witha claim form and instruct the claimant on how to !le a claim with theTexas Lottery. If the claim is validated by the Texas Lottery, a checkshall be forwarded to the claimant in the amount due. In the eventthe claim is not validated, the claim shall be denied and the claimantshall be noti!ed promptly. A claimant may also claim any of the aboveprizes under the procedure described in Section 2.3.B and Section 2.3.Cof these Game Procedures.B. To claim a "LUCKY MILLIONS" Instant Game prize of $3,000 or$30,000, the claimant must sign the winning ticket and present it atone of the Texas Lottery’s Claim Centers. If the claim is validated bythe Texas Lottery, payment will be made to the bearer of the validatedwinning ticket for that prize upon presentation of proper identi!cation.When paying a prize of $600 or more, the Texas Lottery shall !le theappropriate income reporting form with the Internal Revenue Service(IRS) and shall withhold federal income tax at a rate set by the IRSif required. In the event that the claim is not validated by the TexasLottery, the claim shall be denied and the claimant shall be noti!edpromptly.C. To claim a "LUCKY MILLIONS" Instant Game prize of $3,000,000,the claimant must sign the winning ticket and present it at the TexasLottery Commission Claim Center. If the claim is validated by theTexas Lottery, payment will be made to the bearer of the validated win-ning ticket for that prize upon presentation of proper identi!cation. TheTexas Lottery shall !le the appropriate income reporting form with theInternal Revenue Service (IRS) and shall withhold federal income taxat a rate set by the IRS if required. In the event that the claim is not val-idated by the Texas Lottery, the claim shall be denied and the claimantshall be noti!ed promptly.D. As an alternative method of claiming a "LUCKY MILLIONS" In-stant Game prize, the claimant must sign the winning ticket, thoroughlycomplete a claim form, and mail both to: Texas Lottery Commission,Post Of!ce Box 16600, Austin, Texas 78761-6600. The risk of send-ing a ticket remains with the claimant. In the event that the claim isnot validated by the Texas Lottery, the claim shall be denied and theclaimant shall be noti!ed promptly.


E. Prior to payment by the Texas Lottery of any prize, the Texas Lotteryshall deduct a suf!cient amount from the winnings of a person who hasbeen !nally determined to be:1. delinquent in the payment of a tax or other money collected by theComptroller, the Texas Workforce Commission, or Texas AlcoholicBeverage Commission;2. delinquent in making child support payments administered or col-lected by the Attorney General;3. delinquent in reimbursing the Texas Health and Human ServicesCommission for a bene!t granted in error under the food stamp pro-gram or the program of !nancial assistance under Chapter 31, HumanResources Code;4. in default on a loan made under Chapter 52, Education Code; or5. in default on a loan guaranteed under Chapter 57, Education Code.F. If a person is indebted or owes delinquent taxes to the State, otherthan those speci!ed in the preceding paragraph, the winnings of a per-son shall be withheld until the debt or taxes are paid.2.4 Allowance for Delay of Payment. The Texas Lottery may delaypayment of the prize pending a !nal determination by the ExecutiveDirector, under any of the following circumstances:A. if a dispute occurs, or it appears likely that a dispute may occur,regarding the prize;B. if there is any question regarding the identity of the claimant;C. if there is any question regarding the validity of the ticket presentedfor payment; orD. if the claim is subject to any deduction from the payment otherwisedue, as described in Section 2.3.D of these Game Procedures. No lia-bility for interest for any delay shall accrue to the bene!t of the claimantpending payment of the claim.2.5 Payment of Prizes to Persons Under 18. If a person under the age of18 years is entitled to a cash prize of less than $600 from the "LUCKYMILLIONS" Instant Game, the Texas Lottery shall deliver to an adultmember of the minor’s family or the minor’s guardian a check or war-rant in the amount of the prize payable to the order of the minor.2.6 If a person under the age of 18 years is entitled to a cash prizeof more than $600 from the "LUCKY MILLIONS" Instant Game, the

Texas Lottery shall deposit the amount of the prize in a custodial bankaccount, with an adult member of the minor’s family or the minor’sguardian serving as custodian for the minor.2.7 Instant Ticket Claim Period. All Instant Game prizes must beclaimed within 180 days following the end of the Instant Game orwithin the applicable time period for certain eligible military personnelas set forth in Texas Government Code Section 466.408. Any prize notclaimed within that period, and in the manner speci!ed in these GameProcedures and on the back of each ticket, shall be forfeited.2.8 Disclaimer. The number of prizes in a game is approximate basedon the number of tickets ordered. The number of actual prizes availablein a game may vary based on number of tickets manufactured, testing,distribution, sales and number of prizes claimed. An Instant Gameticket may continue to be sold even when all the top prizes have beenclaimed.3.0 Instant Ticket Ownership.A. Until such time as a signature is placed upon the back portion of anInstant Game ticket in the space designated, a ticket shall be owned bythe physical possessor of said ticket. When a signature is placed on theback of the ticket in the space designated, the player whose signatureappears in that area shall be the owner of the ticket and shall be entitledto any prize attributable thereto. Notwithstanding any name or namessubmitted on a claim form, the Executive Director shall make paymentto the player whose signature appears on the back of the ticket in thespace designated. If more than one name appears on the back of theticket, the Executive Director will require that one of those playerswhose name appears thereon be designated by such players to receivepayment.B. The Texas Lottery shall not be responsible for lost or stolen InstantGame tickets and shall not be required to pay on a lost or stolen InstantGame ticket.4.0 Number and Value of Instant Prizes. There will be approximately4,080,000 tickets in the Instant Game No. 685. The approximate num-ber and value of prizes in the game are as follows:


A. The actual number of tickets in the game may be increased or de-creased at the sole discretion of the Texas Lottery Commission.5.0 End of the Instant Game. The Executive Director may, at any time,announce a closing date (end date) for the Instant Game No. 685 with-out advance notice, at which point no further tickets in that game maybe sold.6.0 Governing Law. In purchasing an Instant Game ticket, the playeragrees to comply with, and abide by, these Game Procedures for In-stant Game No. 685, the State Lottery Act (Texas Government Code,Chapter 466), applicable rules adopted by the Texas Lottery pursuantto the State Lottery Act and referenced in 16 TAC, Chapter 401, andall !nal decisions of the Executive Director.TRD-200603411Kimberly L. KiplinGeneral CounselTexas Lottery CommissionFiled: June 21, 2006

Texas Public Finance AuthorityRequest for Proposals for Arbitrage Compliance ServicesThe Texas Public Finance Authority (the "Authority") is requestingproposals for arbitrage compliance services. The deadline for proposalsubmission is 5:00 p.m., July 28, 2006.The Board will make its selection based upon demonstrated compe-tence, experience, knowledge and quali!cations, as well as the reason-ableness of the proposed fee for the services to be rendered. By theRequest for Proposal, however, the Board has not committed itself toemploy an arbitrage compliance consultant. The Authority reserves theright to negotiate Individual elements of the !rm’s proposal and to re-ject any and all proposals.

Copies of the Request for Proposal may be obtained by calling or writ-ing the Texas Public Finance Authority, P.O. Box 12906, Austin, Texas78711, (512) 463-5544, attention Paula Hat!eld, or E-mail [email protected] EdwardsExecutive DirectorTexas Public Finance AuthorityFiled: June 23, 2006

Public Utility Commission of TexasAnnouncement of Amendment to Application for State-IssuedCerti!cate of Franchise AuthorityThe Public Utility Commission of Texas received an application onJune 19, 2006, for a state-issued certi!cate of franchise authority(CFA), pursuant to §§66.001-66.016 of the Public Utility RegulatoryAct (PURA). A summary of the application follows.Project Title and Number: Application of Texas and Kansas City Ca-ble Partners, L.P. d/b/a Time Warner Cable for an Amendment to itsState-Issued Certi!cate of Franchise Authority, Project Number 32845before the Public Utility Commission of Texas.Information on the application may be obtained by contacting the Pub-lic Utility Commission of Texas by mail at P.O. Box 13326, Austin,Texas 78711-3326, or by phone at (512) 936-7120 or toll free at 1-888-782-8477. Hearing and speech-impaired individuals with text tele-phone (TTY) may contact the commission at (512) 936-7136 or tollfree at 1-800-735-2989. All inquiries should reference Project Num-ber 32845.TRD-200603431


Adriana GonzalesRules CoordinatorPublic Utility Commission of TexasFiled: June 23, 2006

Announcement of Amendment to Application for State-IssuedCerti!cate of Franchise AuthorityThe Public Utility Commission of Texas received an application onJune 21, 2006, for a state-issued certi!cate of franchise authority(CFA), pursuant to §§66.001-66.016 of the Public Utility RegulatoryAct (PURA). A summary of the application follows.Project Title and Number: Application of Texas and Kansas City Ca-ble Partners, L.P. d/b/a Time Warner Cable for an Amendment to itsState-Issued Certi!cate of Franchise Authority, Project Number 32852before the Public Utility Commission of Texas.Information on the application may be obtained by contacting the Pub-lic Utility Commission of Texas by mail at P.O. Box 13326, Austin,Texas 78711-3326, or by phone at (512) 936-7120 or toll free at 1-888-782-8477. Hearing and speech-impaired individuals with text tele-phone (TTY) may contact the commission at (512) 936-7136 or tollfree at 1-800-735-2989. All inquiries should reference Project Num-ber 32852.TRD-200603438Adriana A. GonzalesRules CoordinatorPublic Utility Commission of TexasFiled: June 26, 2006

Notice of Application for Amendment to Certi!cated ServiceArea BoundaryNotice is given to the public of an application !led on June 16, 2006,with the Public Utility Commission of Texas, for an amendment to acerti!cated service area boundary in Rockwall County, Texas.Docket Style and Number: Application of AT&T Texas to AmendCerti!cate of Convenience and Necessity to Modify the Service AreaBoundaries of its Royse City and Rockwall Exchanges. Docket Num-ber 32836.The Application: The minor boundary amendment is being !led to re-align the boundary between AT&T Texas’s Royse City and Rockwallexchanges. The proposed boundary amendment will transfer a smallarea from the Rockwall exchange to the Royse City exchange to ac-curately re"ect the way service is being provisioned in the Westviewsubdivision.Persons wishing to comment on the action sought or intervene shouldcontact the Public Utility Commission of Texas by July 14, 2006, bymail at P. O. Box 13326, Austin, Texas 78711-3326, or by phone at(512) 936-7120 or toll-free at 1-888-782-8477. Hearing and speech-impaired individuals with text telephone (TTY) may contact the com-mission at (512) 936-7136 or use Relay Texas (toll-free) 1-800-735-2989. All comments should reference Docket Number 32836.TRD-200603440Adriana A. GonzalesRules CoordinatorPublic Utility Commission of TexasFiled: June 26, 2006

Notice of Application for Amendment to Service ProviderCerti!cate of Operating AuthorityOn June 19, 2006, Capital Telecommunications, Inc. !led an appli-cation with the Public Utility Commission of Texas (commission) toamend its service provider certi!cate of operating authority (SPCOA)granted in SPCOA Certi!cate Number 60020. Applicant intends to re-"ect a change in ownership/control to StarVox Communications, Inc.The Application: Application of Capital Telecommunications, Inc. foran Amendment to its Service Provider Certi!cate of Operating Author-ity, Docket Number 32843.Persons wishing to comment on the action sought should contact thePublic Utility Commission of Texas by mail at P.O. Box 13326, Austin,Texas 78711-3326, or by phone at (512) 936-7120 or toll free at 1-888-782-8477 no later than July 12, 2006. Hearing and speech-impairedindividuals with text telephones (TTY) may contact the commission at(512) 936-7136 or toll free at 1-800-735-2989. All comments shouldreference Docket Number 32843.TRD-200603439Adriana A. GonzalesRules CoordinatorPublic Utility Commission of TexasFiled: June 26, 2006

Notice of Application to Amend Certi!cated Service AreaBoundaries in Wheeler County, TexasNotice is given to the public of the !ling with the Public Utility Com-mission of Texas of an application !led on June 21, 2006, for a servicearea exception to amend certi!cated service area boundaries withinWheeler County, Texas.Docket Style and Number: Application of Greenbelt Electric Cooper-ative, Inc. for a Certi!cate of Convenience and Necessity for ServiceArea Exception within Wheeler County. Docket Number 32850.The Application: Greenbelt Electric Cooperative, Inc. seeks to provideservice to a speci!c customer located within the certi!cated servicearea of Southwestern Public Service (SPS). SPS is in full agreementwith the territory amendment.Persons wishing to comment on the action sought or intervene shouldcontact the Public Utility Commission of Texas no later than July 14,2006 by mail at P. O. Box 13326, Austin, Texas 78711-3326, or byphone at (512) 936-7120 or toll-free at 1-888-782-8477. Hearing andspeech-impaired individuals with text telephone (TTY) may contactthe commission at (512) 936-7136 or use Relay Texas (toll-free) 1-800-735-2989. All comments should reference Docket Number 32850.TRD-200603441Adriana A. GonzalesRules CoordinatorPublic Utility Commission of TexasFiled: June 26, 2006

Texas Council on Purchasing from People withDisabilitiesRequest for Comment Regarding the Management FeeRate Charged by TIBH Industries Inc. (Central Nonpro!t Agency)Notice is hereby given that the Texas Council on Purchasing from Peo-ple with Disabilities (Council) will review and approve the manage-


ment fee rate charged by the central nonpro!t agency, TIBH IndustriesInc., for its services to the community rehabilitation programs (CRPs)for Fiscal Year 2007 as required by §122.019(e) of the Texas HumanResources Code. This review will be conducted at the Council’s meet-ing on Friday, September 22, 2006. The Council’s meeting will beheld at Fort Worth Lighthouse for the Blind, 912 West Broadway, FortWorth, Texas. TIBH Industries Inc. has requested that the Council setthe management fee rate at 6.25% of the sales price for products and6% of the contract price for services. The Council seeks public com-ment on TIBH Industries Inc. management fee rate request as requiredby §122.030(a) - (b) of the Texas Human Resources Code.Comments should be submitted in writing on or before Friday, Septem-ber 8, 2006 to Kelvin Moore of the Texas Council on Purchasing fromPeople with Disabilities, 1711 San Jacinto Blvd., Austin, Texas 78711.For all other questions or comments, contact the Texas Council on Pur-chasing from People with Disabilities at (512) 436-3244. In addition,hearing and speech-impaired individuals with text telephones (TTY)may also contact the Council on Purchasing from People with Disabil-ities at (512) 463-3244.TRD-200603491John W. LunaChairmanTexas Council on Purchasing from People with DisabilitiesFiled: June 28, 2006

Request for Comment Regarding the Services Performed byTIBH Industries Inc.Notice is hereby given that the Texas Council on Purchasing from Peo-ple with Disabilities (Council) intends to review the services providedby the central nonpro!t agency, TIBH Industries Inc., for Fiscal Year2006 as required by §122.019(c) of the Texas Human Resources Code.This review will be considered at the next Council meeting on Friday,September 22, 2006. The Council’s meeting will be held at Fort WorthLighthouse for the Blind, 912 West Broadway, Fort Worth, Texas. TheCouncil requests that interested parties submit comments regarding theservices of TIBH Industries Inc. in its operation of the State Use Pro-gram, under §122.019 (a) - (b) of the Texas Human Resources Code.Comments should be submitted in writing on or before Friday, Septem-ber 8, 2006 to Kelvin Moore of the Texas Council on Purchasing fromPeople with Disabilities, 1711 San Jacinto Blvd., Austin, Texas 78711.For all other questions or comments, contact the Texas Council on Pur-chasing from People with Disabilities at (512) 436-3244. In addition,hearing and speech-impaired individuals with text telephones (TTY)may also contact the Council on Purchasing from People with Disabil-ities at (512) 463-3244.TRD-200603490John W. LunaChairmanTexas Council on Purchasing from People with DisabilitiesFiled: June 28, 2006

Texas Residential Construction CommissionNotice of Applications for Designation as a "Texas StarBuilder"The Texas Residential Construction Commission (commission)adopted rules regarding the procedures for designation as a "TexasStar Builder" at 10 TAC §303.300. The rules were adopted pursuant

to §416.011, Property Code (Act effective September 1, 2003), whichprovides that the commission shall establish rules and proceduresthrough which a builder can be designated as a "Texas Star Builder."The commission rules for application for designation can be found onthe commission’s website at www.trcc.state.tx.us.Section §303.300(i)(2) requires the commission to publish in the TexasRegister notice of the application of each person seeking to becomedesignated as a "Texas Star Builder" registered under this subchapter.The commission will accept public comment on each application fortwenty-one (21) days after the date of publication of the notice. In-formation provided in response to this notice will be utilized in eval-uating the applicants for approval. The Texas Star Builder designa-tion requires that a builder or remodeler demonstrate that its education,experience, and commitment to professionalism sets the builder or re-modeler apart from its peers and offers some assurance to its customersthat its quality of service and construction will be above average.Pursuant to 10 TAC §303.300(i)(2) the commission hereby notices theapplication(s) for designation as a "Texas Star Builder" of:Mack Professionals, Inc., dba Beaver Builders, 2970 FM 455, Suite 1,Sanger, Texas 76266. Mack Professionals, Inc., dba Beaver Buildersholds TRCC builder registration #1545. The applicant’s registeredagent is Donald Mack.Homes by Hanes, Inc., 711 Ferris Avenue, Suite 101, Waxahatchie,Texas, 75165. Homes by Hanes, Inc., holds TRCC builder registration#1325. The applicant’s registered agent is Gaylord Hanes.CC Williams Construction Co., 1200 West Park Drive, Livingston,Texas, 77351. CC Williams Construction Co. holds TRCC builder reg-istration # 8640. The applicant’s registered agent is Cathie Williams.Affordable Housing of Parker County, 101 Swan Court, Springtown,TX 76082. Affordable Housing of Parker County holds TRCC builderregistration # 9091. The applicant’s agent is A. G. Swan.Lashante Enterprises, Inc., 2507 Cornerstone Boulevard, Edinburg,TX, 78539. Lashante Enterprises, Inc. hold TRCC builder registration# 2420. The applicant’s registered agent is Alok Maheshwari.Interested persons may send written comments regarding this appli-cation to Susan K. Durso, General Counsel, The Texas ResidentialConstruction Commission, P. O. Box 13144, Austin, TX 78711-3144.Comments regarding this application will be accepted for twenty-onedays following the date of publication of this notice in the Texas Reg-ister. Thereafter, the comments will not be considered as timely !led.TRD-200603470Susan K. DursoGeneral CounselTexas Residential Construction CommissionFiled: June 28, 2006

Texas Department of TransportationAviation Division - Request for Proposal for AviationEngineering ServicesThe City of Lamesa and Dawson County, through their agent the TexasDepartment of Transportation (TxDOT), intend to engage an aviationprofessional engineering !rm for services pursuant to GovernmentCode, Chapter 2254, Subchapter A. TxDOT Aviation Division willsolicit and receive proposals for professional aviation engineeringdesign services described below:Airport Sponsor: City of Lamesa and Dawson County, Lamesa Mu-nicipal Airport. TxDOT CSJ No.:0605LAMES. Scope: Provide engi-


neering/design services to rehabilitation and mark taxiways B, C, D, E,and F, overlay and mark taxiway A, replace medium intensity runwaylights, runway 16-34, rehabilitation and mark runway 16-34, rehabil-itation and mark runway 7-25, rehabilitation apron and rehabilitationand mark hangar access taxiway.The DBE goal is set at 9%. TxDOT Project Manager is Bijan Jamal-abad, P.E.To assist in your proposal preparation the most recent Airport Lay-out Plan, 5010 drawing, and project narrative are available onlineat www.dot.state.tx.us/avn/avninfo/notice/consult/index.htm byselecting "Lamesa Municipal Airport".Interested !rms shall utilize the latest version of Form AVN-550, titled"Aviation Engineering Services Proposal". The form may be requestedfrom TxDOT Aviation Division, 125 E. 11th Street, Austin, Texas78701-2483, phone number, 1-800-68-PILOT (74568). The formmay be emailed by request or downloaded from the TxDOT web site,URL address http://www.dot.state.tx.us/forms/aviation/550.doc.The form may not be altered in any way. All printing must be inblack on white paper, except for the optional illustration page. Firmsmust carefully follow the instructions provided on each page of theform. Proposals may not exceed the number of pages in the proposalformat. The proposal format consists of seven pages of data plustwo optional pages consisting of an illustration page and a proposalsummary page. Proposals shall be stapled but not bound in anyother fashion. PROPOSALS WILL NOT BE ACCEPTED IN ANYOTHER FORMAT. ATTENTION: To ensure utilization of the latestversion of Form AVN-550, !rms are encouraged to download FormAVN-550 from the TxDOT website as addressed above. Utilization ofForm AVN-550 from a previous download may not be the exact sameformat. Form AVN-550 is an MS Word Template.Please note:Seven completed, unfolded copies of Form AVN-550 must be re-ceived by TxDOT Aviation at 150 E. Riverside Drive, 5th Floor, SouthTower, Austin, Texas 78704 no later than Monday, July 31, 2006,4:00 p.m. Electronic facsimiles or forms sent by email will not beaccepted. Please mark the envelope of the forms to the attention ofAmy Slaughter.The consultant selection committee will be composed of localgovernment members. The !nal selection by the committee willgenerally be made following the completion of review of proposals.The committee will review all proposals and rate and rank each.The criteria for evaluating engineering proposals can be found athttp://www.dot.state.tx.us/services/aviation/consultant.htm. All!rms will be noti!ed and the top rated !rm will be contacted to beginfee negotiations. The selection committee does, however, reserve theright to conduct interviews for the top rated !rms if the committeedeems it necessary. If interviews are conducted, selection will bemade following interviews.If there are any procedural questions, please contact Amy Slaughter,Grant Manager, or Bijan Jamalabad, Project Manager for technicalquestions at 1-800-68-PILOT (74568).TRD-200603426Bob JacksonDeputy General CounselTexas Department of TransportationFiled: June 23, 2006

Texas A&M University, Board of Regents

Request for ProposalRFP MAIN 06-0023Texas A&M University seeks proposals from interested !rms to assistthe University in conducting negotiations for Air Carrier Use and Leaseagreements for Easterwood Airport, an airport owned and operated byTexas A&M University, and assist in the annual recalculation and ne-gotiation of air carrier rates and charges with the ongoing support ofthe Passenger Facility Charge Program (PFC).The ongoing support of the PFC Program shall include the following:Amend PFC application #4Prepare application for PFC #5Information may be obtained by contacting:Debi Maeger, C.P.M.Financial Management SupervisorDepartment of Purchasing ServicesTexas A&M UniversityP.O. Box 30013College Station, Texas 77842-0013or e-mail at [email protected] criteria will include overall experience with airport contractnegotiations/methodology, references, quali!cations, and reasonable-ness of price. Proposals must be received on or before 2:00 p.m. cen-tral time on July 25, 2006.TRD-200603446Vickie Burt SpillersExecutive Secretary to the BoardTexas A&M University, Board of RegentsFiled: June 26, 2006

Texas Workforce CommissionNotice of Available Funds for Fiscal Year 2007 (FY’07) forApprenticeship Training Programs from the Texas WorkforceCommission under the Texas Education Code, Chapter 133Filing Authority. The notice of available funds for apprenticeship train-ing programs is authorized under the Texas Education Code, Chapter133.Eligible Applicants. The Texas Workforce Commission (Commission)is requesting preliminary contact-hour estimates from public schooldistricts and state postsecondary institutions for related (apprentice)instruction classes for apprenticeship training programs under TexasEducation Code, Chapter 133.Description. Funds will be available for FY’07 (September 1, 2006-August 31, 2007) to provide funds under the Texas Education Code,Chapter 133. The purpose of the funds is to help pay for classroom in-struction for related (apprentice) instruction classes of apprenticeshiptraining programs registered with the U.S. Department of Labor, Of!ceof Apprenticeship. The planning estimate for FY’07 is $1,628,292 fortotal apprenticeship program funds from the Commission contingentupon the Commission’s adoption of the FY’07 Operating Budget. Fivepercent of the total grant funds will be set aside for apprenticeship train-ing programs and occupations within apprenticeship programs that didnot receive Chapter 133 funds during Fiscal Year 2006.Quali!cations for Funding. To qualify for funding:


1. each apprenticeship training program or occupation within a pro-gram must be certi!ed and registered by the Of!ce of Apprenticeship,no later than August 1, 2006;2. each apprentice must be registered with the Of!ce of Apprenticeshipin Texas before attending the !rst class;3. each apprentice must be a full-time paid employee in the privatesector in Texas;4. the number of related instruction hours per class must be certi!edby the Of!ce of Apprenticeship as veri!ed in the program standards ofthe apprenticeship program;5. a public school district or state postsecondary institution must actas !scal agent for the funds in accordance with a contract between theapprenticeship program sponsor and the district or institution; and6. the related instruction (apprentice) class must start no earlier thanSeptember 1, 2006.Dates of Program. Each class may not start before September 1, 2006,and must end on or before August 31, 2007.Planning Distribution of Funds. The statewide total number of esti-mated contact hours that are submitted to the Commission will be di-vided into the amount of funds available to determine a preliminarycontact-hour rate, not to exceed $4.00 per contact hour. The con-tact-hour rate for the prior three !scal years was $2.86-FY’04; $2.88-FY’05; and $2.638-FY’06. Planning distributions are made to eligibleapplicants based on the preliminary contact-hour rate multiplied by thenumber of estimated contact hours submitted to the Commission.

Use of Funds. Funds can be used only for related instruction costs suchas instructor salaries, instructional supplies, instructional equipment,and other operating expenses. No more than 15 percent may be used bythe eligible applicants for administrative purposes, such as supervisoryand/or secretarial salaries, of!ce supplies, or travel.Requesting the Forms to Submit Preliminary Estimated Contact Hours.An information package explaining the process for submitting prelim-inary contact-hour estimates and the process for submitting an applica-tion may be obtained by contacting the Commission’s ApprenticeshipSupport Program at 101 East 15th Street, Room 440T, Austin, Texas78778-0001; by phone at (512) 936-3059; or by e-mail at [email protected]. For additional information, please contact DesiHolmes at (512) 936-3059.Deadline for Receipt of Preliminary Contact-Hour Estimates. To beconsidered for funding, the Commission’s Apprenticeship Support Pro-gram must receive preliminary contact-hour estimates for FY’07 ap-prenticeship training programs no later than 5:00 p.m., Friday, July 14,2006.TRD-200603427Reagan MillerDeputy Director for Workforce and UI PolicyTexas Workforce CommissionFiled: June 23, 2006


How to Use the Texas RegisterInformation Available: The 14 sections of the Texas

Register represent various facets of state government.Documents contained within them include:

Governor - Appointments, executive orders, andproclamations.

Attorney General - summaries of requests for opinions,opinions, and open records decisions.

Secretary of State - opinions based on the election laws.Texas Ethics Commission - summaries of requests for

opinions and opinions.Emergency Rules- sections adopted by state agencies on

an emergency basis.Proposed Rules - sections proposed for adoption.Withdrawn Rules - sections withdrawn by state agencies

from consideration for adoption, or automatically withdrawn bythe Texas Register six months after the proposal publicationdate.

Adopted Rules - sections adopted following publiccomment period.

Texas Department of Insurance Exempt Filings -notices of actions taken by the Texas Department of Insurancepursuant to Chapter 5, Subchapter L of the Insurance Code.

Texas Department of Banking - opinions and exemptrules filed by the Texas Department of Banking.

Tables and Graphics - graphic material from theproposed, emergency and adopted sections.

Transferred Rules- notice that the Legislature hastransferred rules within the Texas Administrative Code fromone state agency to another, or directed the Secretary of State toremove the rules of an abolished agency.

In Addition - miscellaneous information required to bepublished by statute or provided as a public service.

Review of Agency Rules - notices of state agency rulesreview.

Specific explanation on the contents of each section can befound on the beginning page of the section. The division alsopublishes cumulative quarterly and annual indexes to aid inresearching material published.

How to Cite: Material published in the Texas Register isreferenced by citing the volume in which the documentappears, the words “TexReg” and the beginning page numberon which that document was published. For example, adocument published on page 2402 of Volume 30 (2005) is citedas follows: 30 TexReg 2402.

In order that readers may cite material more easily, pagenumbers are now written as citations. Example: on page 2 inthe lower-left hand corner of the page, would be written “30TexReg 2 issue date,” while on the opposite page, page 3, inthe lower right-hand corner, would be written “issue date 30TexReg 3.”

How to Research: The public is invited to research rules andinformation of interest between 8 a.m. and 5 p.m. weekdays atthe Texas Register office, Room 245, James Earl RudderBuilding, 1019 Brazos, Austin. Material can be found usingTexas Register indexes, the Texas Administrative Code,section numbers, or TRD number.

Both the Texas Register and the Texas AdministrativeCode are available online through the Internet. The address is:http://www.sos.state.tx.us. The Register is available in an .html

version as well as a .pdf (portable document format) versionthrough the Internet. For website subscription information, callthe Texas Register at (800) 226-7199.

Texas Administrative CodeThe Texas Administrative Code (TAC) is the compilation

of all final state agency rules published in the Texas Register.Following its effective date, a rule is entered into the TexasAdministrative Code. Emergency rules, which may be adoptedby an agency on an interim basis, are not codified within theTAC.

The TAC volumes are arranged into Titles and Parts (usingArabic numerals). The Titles are broad subject categories intowhich the agencies are grouped as a matter of convenience.Each Part represents an individual state agency.

The complete TAC is available through the Secretary ofState’s website at http://www.sos.state.tx.us/tac. The followingcompanies also provide complete copies of the TAC: Lexis-Nexis (1-800-356-6548), and West Publishing Company (1-800-328-9352).

The Titles of the TAC, and their respective Title numbersare:1. Administration4. Agriculture7. Banking and Securities10. Community Development13. Cultural Resources16. Economic Regulation19. Education22. Examining Boards25. Health Services28. Insurance30. Environmental Quality31. Natural Resources and Conservation34. Public Finance37. Public Safety and Corrections40. Social Services and Assistance43. Transportation

How to Cite: Under the TAC scheme, each section isdesignated by a TAC number. For example in the citation 1TAC §27.15: 1 indicates the title under which the agencyappears in the Texas Administrative Code; TAC stands for theTexas Administrative Code; §27.15 is the section number ofthe rule (27 indicates that the section is under Chapter 27 ofTitle 1; 15 represents the individual section within the chapter).

How to update: To find out if a rule has changed since thepublication of the current supplement to the TexasAdministrative Code, please look at the Table of TAC TitlesAffected. The table is published cumulatively in the blue-coverquarterly indexes to the Texas Register (January 21, April 15,July 8, and October 7, 2005). If a rule has changed during thetime period covered by the table, the rule’s TAC number willbe printed with one or more Texas Register page numbers, asshown in the following example.

TITLE 40. SOCIAL SERVICES AND ASSISTANCEPart I. Texas Department of Human Services40 TAC §3.704..............950, 1820The Table of TAC Titles Affected is cumulative for each

volume of the Texas Register (calendar year).

U.S. Department of Transportation

8701 South Gessner, Suite 11 10 Houston, TX 77074

Pipeline and Hazardous Materials Satety Administration

NOTICE OF AMENDMENT

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

March 1, 2007

Mr. Dan Tutcher, President Enbridge Energy, Limited Partnership 11 00 Louisiana, Suite 3300 Houston, TX 77002-7002

CPF 4-2007-5006M

Dear Mr. Tutcher:

On May 8-12, 2006, representatives of the Pipeline and Hazardous Materials Safety Administration (PHMSA), NY PSC, and MNOPS pursuant to Chapter 601 of 49 United States Code inspected Enbridge Energy, Limited Partnership (Enbridge) procedures for operations and maintenance in Superior, WI.

On the basis of the inspection, PHMSA has identified the apparent inadequacies found within Enbridge's plan or procedure and are described below:

1. 9195.402 Procedural manual for operations, maintenance, and emergencies

(a)General. Each operator shall prepare and follow for each pipeline system a manual of written procedures for conducting normal operations and maintenance activities and handling abnormal operations and emergencies. This manual shall be reviewed at intervals not exceeding 15 months, but at least once each calendar year, and appropriate changes made as necessary to insure that the manual is effective. This manual shall be prepared before initial operations of a pipeline commence, and appropriate parts shall be kept at locations where operations and maintenance activities are conducted.

(c) Maintenance and normal operations. The manual required by paragraph (a) of this section must include procedures for the following to provide safety during maintenance and normal operations:

(3) Operating, maintaining, and repairing the pipeline system in accordance with each of the requirements of this subpart and subpart H of this part.

A. 9195.402 (C)(13). Periodically reviewing the work done by operator to determine the effectiveness of the procedures used in normal operation and maintenance and taking corrective action where deficiencies are found.

Enbridge Energy procedures did not contain a formal procedure to periodically review the work of personnel to determine the effectiveness of the O&M procedures relating to the pipeline safety regulations. Enbridge needs to amend their procedures to include reviewing the work of personnel to determine the effectiveness of the O&M procedures relating to the pipeline safety regulations.

B. §195.402(f) Safety related condition reports.

Enbridge Energy procedures did not clearly state that employees are trained on an ongoing basis to recognize safety related conditions. Enbridge needs to amend their procedures to state that employees are trained on an ongoing basis to recognize safety related conditions.

C. 9195.403 Emergency Response Training. (c) Each operator shall require and verify that its supervisors maintain a thorough knowledge of that portion of the emergency response procedures established under 195.402 for which they are responsible to ensure compliance.

Enbridge Energy procedures did not clearly state that supervisors are included in the annual training. Enbridge needs to amend their procedures to state that supervisors are included in annual training.

D. 9195.408 Communications. (b) The communication system required by paragraph (a) of this section must, as a minimum, include means for: 3) Conducting two-way vocal communication between a control center and the scene of abnormal operations and emergencies; and,

Enbridge Energy procedures did not fully describe the actual description of two-way communication methods and procedures (e.g. cell phones, landline to radio towers, etc) between the Edmonton Control Center and the scene of abnormal operations or emergencies. Enbridge needs to amend their procedures to describe the actual description of two-way communication methods between the Edmonton Control Center and the scene of abnormal operations or emergencies.

E. 9195.41 0 Line Markers. (a)(l) Except as provided in paragraph (b) of this section, each operator shall place and maintain line markers over each buried pipeline in accordance with the following:

(1) Markers must be located at each public road crossing, at each railroad crossing, and in sufficient number along the remainder of each buried line so that its location is accurately known.

Enbridge Energy procedures did not fully describe the practice of placing a sufficient number of line markers along the right-of-way. Enbridge needs to amend their procedures to describe the practice of placing a sufficient number of line markers along the right-of-way.

F. 5195.428 Overpressure safety devices and overfill protection systems. (a) Except as provided in paragraph (b) of this section, each operator shall, at intervals not exceeding 15 months, but at least once each calendar year, or in the case of pipelines used to carry highly volatile liquids, at intervals not to exceed 7% months, but at least twice each calendar year, inspect and test each pressure limiting device, relief valve, pressure regulator, or other item of pressure control equipment to determine that it is functioning properly, is in good mechanical condition, and is adequate from the standpoint of capacity and reliability of operation for the service in which it is used.

Enbridge Energy procedures did not address how the capacity of the relief valve is determined to be adequate. Flow capacity needs to be verified in light of changing operational parameters since the relief valves were originally installed. Enbridge needs to amend their procedures to describe how the capacity of the relief valve is determined to be adequate. Enbridge procedures need to take into account changing operational parameters for relief valves since they were originally installed.

G. 5195.428 Overpressure safety devices and overfill protection systems. (c) Aboveground breakout tanks that are constructed or significantly altered according to API Standard 2510 after October 2,2000, must have an overfill protection system installed according to section 5.1.2 of API Standard 2510. Other aboveground breakout tanks with 600 gallons (2271 liters) or more of storage capacity that are constructed or significantly altered after October 2,2000, must have an overfill protection system installed according to API Recommended Practice 2350. However, operators need not comply with any part of API Recommended Practice 2350 for a particular breakout tank if the operator notes in the manual required by 5195.402 why compliance with that part is not necessary for safety of the tank.

Enbridge Energy procedures did not fully describe the installation of overfill protection per API RP 2350 on breakout tanks that are significantly altered. Enbridge needs to amend their procedures to describe the installation of overfill protection per API RP 2350 on breakout tanks that are significantly altered.

H. 5195.442 Damage prevention program. (c) The damage prevention program required by paragraph (a) of this section must, at a minimum: (1) Include the identity, on a current basis of persons who normally engage in excavation activities in the area in which the pipeline is located.

Enbridge Energy procedures did not describe how the list of excavators is kept current.

1.9195.442 Damage prevention program. c) The damage prevention program required by paragraph (a) of this section must, at a minimum: (3) Provide a means of receiving and recording notification of planned excavation activities.

Enbridge Energy procedures do not describe how one-call notifications are handled once notifications are received. Enbridge needs to amend their procedures to describe how one-call notifications are handled once notifications are received.

J. 5195.555 What are the qualifications for supervisors?

Enbridge Energy procedures were not clear on the requirement for supervisors to maintain a thorough knowledge of corrosion control procedures, nor did the procedures state how supervisor knowledge of corrosion control was to be verified. Enbridge needs to amend their procedures need be clearly state the requirement for supervisors to maintain a thorough knowledge of corrosion control procedures and these procedures need to state how supervisor knowledge of corrosion control is verified.

K. 9195.567 Which pipelines must have test leads and what must I do to install and maintain the leads?

Enbridge Energy procedures were not clear on how test leads are maintained. Enbridge needs to amend their procedures to state how test leads are maintained.

L. 5195.571 What criteria must I use to determine the adequacy of cathodic protection?

Enbridge Energy procedures did not address IR drop considerations for the (-850 mV) on- criteria. Enbridge needs to amend their procedures to address IR drop considerations.

M. 9195.573 What must I do to monitor external corrosion control? (a) Protected pipelines. You must do the following to determine whether cathodic protection required by this subpart complies with Sec. 195.571:

(2) Identify before December 29,2003 or not more than 2 years after cathodic protection is installed, whichever comes later, the circumstances in which a close- interval survey or comparable technology is practicable and necessary to accomplish the objectives of paragraph 10.1.1.3 of NACE Standard RP0169-96 (incorporated by reference, see Sec. 195.3).

Enbridge Energy procedures did not describe in what circumstances close interval surveys are completed. Enbridge needs to amend their procedures to describe in what circumstances close interval surveys are completed

N. 9195.573 What must I do to monitor external corrosion control? (d) Breakout tanks. You must inspect each cathodic protection system used to control corrosion on the bottom of an aboveground breakout tank to ensure that operation and maintenance of the system are in accordance with API Recommended Practice 651. However, this inspection is not required if you note

in the corrosion control procedures established under Sec. 195.402(~)(3) why compliance with all or certain operation and maintenance provisions of API Recommended Practice 651 is not necessary for the safety of the tank.

Enbridge Energy procedures need to ensure that cathodic protection system maintenance and testing of breakout tanks is in conformance with API 651. Enbridge needs to amend their procedures to ensure that cathodic protection system maintenance and testing of breakout tanks is in conformance with API 651.

0.9195.573 What must I do to monitor external corrosion control? (e) Corrective action. You must correct any identified deficiency in corrosion control as required by Sec. 195.401(b). However, if the deficiency involves a pipeline in an integrity management program under Sec. 195.452, you must correct the deficiency as required by Sec. 195.452(h).

Enbridge Energy procedures did not describe the timing for correction of deficiencies found. Enbridge needs to amend their pr0cedlJres to describe the timing for correction of deficiencies found.

P. 9195.575 Which facilities must I electrically isolate and what inspections, tests, and safeguards are required?

Enbridge Energy procedures need detailed descriptions of electrical isolation installations, inspections, tests, safeguards and when they are required. Enbridge needs to amend their procedures to provide detailed descriptions of electrical isolation installations, inspections, tests, safe guards and when they are required.

0.9195.589 What corrosion control information do I have to maintain?

Enbridge Energy procedures do not specify the retention time for atmospheric corrosion inspections. Enbridge needs to amend their procedures need to specify the retention time for atmospheric corrosion inspections.

Response to this Notice

'This Notice is provided pursuant to 49 U.S.C. 5 601 08(a) and 49 C.F.R. 5 190.237. Enclosed as part of this Notice is a document entitled Response Options for Pipeline Operators in Compliance Proceedings. Please refer to this document and note the response options. Be advised that all material you submit in response to this enforcement action is subject to being made publicly available. If you believe that any portion of your responsive material qualifies for confidential treatment under 5 U.S.C. 552(b), along with the complete original document you must provide a second copy of the document with the portions you believe qualify for confidential treatment redacted and an explanation of why you believe the redacted information qualifies for confidential treatment under 5 U.S.C. 552(b). If you do not respond within 30 days of receipt of this Notice, this constitutes a waiver of your right to contest the allegations in this Notice and authorizes the Associate Administrator for Pipeline Safety to find facts as alleged in this Notice without further notice to you and to issue a Final Order.

If, after opportunity for a hearing, your plans or procedures are found inadequate as alleged in this Notice, you may be ordered to amend your plans or procedures to correct the inadequacies (49 C.F.R. 5 190.237). If you are not contesting this Notice, we propose that you submit your amended procedures to my office within 30 days of receipt of this Notice. This period may be extended by written request for good cause. Once the inadequacies identified herein have been addressed in your amended procedures, this enforcement action will be closed.

In correspondence concerning this matter, please refer to CPF 4-2007-5006M and, for each document you submit, please provide a copy in electronic format whenever possible.

Sincerely,

R.M. Seeley I/ Director, southwest Region Pipeline and Hazardous Materials Safety Administration

Enclosure: Response Options for Pipeline Operators in Compliance Proceedings

101 S. Webster St.Box 7921

Madison, Wisconsin 53707-7921 Telephone 608-266-2621

FAX 608-267-3579

TTY Access via relay - 711

Jim Doyle, GovernorMatthew J. Frank, Secretary

September 14, 2007 Case Track No. 2007-COEE-005

Certified Mail

Return Receipt Requested Mr. Shaun Kavajecz Enbridge Energy, LP 119 N. 25th Street East Superior, WI 54880-5247 Subject: NOTICE OF VIOLATION, Chapters 30 and 281, Wis. Stats., Enbridge Energy, LP, Southern Access Expansion Project, Docket: IP-2006-N10001 through IP-2006-N11489 Dear Mr. Kavajecz: The Department of Natural Resources (the Department) is issuing this Notice of Violation to Enbridge Energy, LP (Enbridge) for failure to follow the November 27, 2006 Dredging, Grading, Bridge/WQC Permit IP-2006-N10001 through IP-2006-N11489 (the permit). Multiple violations of the permit have been documented including: failure to implement erosion control measures; poor maintenance of erosion control measures; improper handling of dewatering discharges; and unauthorized placement of fill in wetlands. The attached table was created from the Independent Environmental Monitor reports and lists specific violations that have been documented to date. The Department is requesting Enbridge cease all new construction activities associated with this project until such a time the Department can be reassured that Enbridge will comply with the conditions of the permit. It appears as if there is a need for Enbridge to provide better oversight at the point of construction to ensure permit compliance. It is imperative for Enbridge and their contractors to stay ahead of environmental issues in order to prevent future non-compliance. On January 26, 2007 a Notice of Noncompliance was issued to Enbridge with a follow-up meeting held on February 5, 2007. On March 16, 2007 a second Notice of Noncompliance was issued and a second meeting was held on March 26, 2007. Despite this significant communication with Enbridge concerning the ongoing noncompliance, violations continue to be documented. The Department is currently evaluating potential enforcement options which may include referring this case to the Department of Justice. Please be advised that Ch. 281.98(1), Wis. Stats., provides for forfeitures of not less than $10 nor more than $5,000 for each violation. Each day of continued violation is considered a separate offense.

wisconsin.gov Printed on

RecycledPaper

Quality Natural Resources Management Through Excellent Customer Service

dnr.wi.gov

Please provide a response to the Department's request to cease construction activities and how Enbridge intends to ensure compliance with permit requirements. In the meantime, please direct questions concerning this letter to me at (608) 261-0779. Sincerely, David Edwards (electronic signature) David Edwards Environmental Enforcement Specialist Bureau of Law Enforcement Encl: Non-compliance Tracking Table Report Types by Week Table c: D. Siebert, Office of Energy - (OE/7) T. Boos, Office of Energy - (OE/7) B. Callan, Office of Energy - (OE/7) W. Sande, ACOE T. Hess, Merjent

2

Noncompliance Compliance Tracking Table

Table last updated: 9/13/2007

Date Printed: 02/05/11, 5:30 PM Page 1 of 18

Noncompliance #

Report

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Description / Action Required Feature Activity Contractor

Chapter 30/

WQC permit

conditions Date Due

1B-JV-002 1/15/07 Jim Van Voorhis X XKent Hoppe informed Jim that Northern Clearing had cleared wooded wetland DO-

W102 to 70 feet instead of to 50 feet. Mr. Hoppe wrote an "Unacceptable report" in

response to this incidence.

Wetland ClearingNorthern

Clearing

10, 16, 78, 90,

103

1BJV-003 1/16/07 Jim Van Voorhis 39.60 X

Bull dozer removing stumps and rutting soils greater than 6" in wetland DO-W123.

Kent Hoppe was called and said he will visit the site and discuss the issue with the

operator.

Issue was resolved the same day: Kent Hoppe stopped the activity and discussed the issue with onsite personnel. See Report 1B-JV-010.

Wetland Clearing 10, 16, 78, 82

1A-DB-004 1/17/07 Dan Beisner 7.40 XNorthern Clearing cleared a wooded portion of wetland DO-W33 north of Huppert

Road. No further wetland clearing will occur until the environmental inspection staff

can verify TWS boundary staking.


Clearing10, 16, 78, 90

1A-DB-005 1/18/07 Dan Beisner 23.90 XInstallation of the Environmentally Sensitive Area DO-1 exclusion fence was completed

and timber/brush clearing proceeded adjacent to the resource.Exclusion Area Fencing 10, 16, 18 N/A

1A-DB-006 1/19/07 Dan Beisner X

Keith Lane (Enbridge, LEI) indicated a previously not delineated, non-forested wetland

temporary workspace between Wetlands DO-W32 and DO-W33 was cleared to 100

feet. Enbridge construction management elected to temporarily suspend clearing

operations for two days (January 20th and January 21st).

Wetland Clearing10, 16, 78, 90,

103N/A


During upland grading adjacent to the previously undelineated drainage between

Woodlawn Road and 42nd Avenue, spoil rolled into drainage. Keith Lane (Enbridge,

LEI) was informed of the problem .Waterbody Grading

1A-DB-007 1/20/07 Dan Beisner22.9

1.54

0.6

XErosion control deficiencies were observed at three locations. Erosion controls were

not installed by the end of the day. Keith Lane was notified and said controls would be

installed.

WetlandErosion

Control

10, 16, 32, 39,

40

1B-JV-007 1/22/07 Jim Van Voorhis 44.90 X

The north end of wetland WA-W17, MP 44.9, was found to be cleared to 70-feet in the

temporary work space instead of 50-feet in a wooded portion of the wetland. This

clearing occurred some time late last week. The problem was discussed with

environmental inspector Kent Hoppe on site.

Issue was resolved the same day: Kent Hoppe stopped the activity and discussed the issue with onsite personnel. Remaining wooded wetland staking was re-verified. See Report 1B-JV-010.


103


Mats were used by clearing crews and the frost driving crew as a temporary clear span

bridge. Mats were sunken into the bank on the south side of the minor tributary.

Issue was resolved the same day: Kent Hoppe contacted NCl, headers were placed under bridge. See Report 1B-JV-010.

Waterbody ClearingNorthern

Clearing10, 16

1A-DB-008 1/23/07 Dan Beisner 1.70 XDuring bore pit excavation in Wetland DO-W9, subsoil spoil was stockpiled on

segregated topsoil.Wetland

1A-DB-009 1/25/07 Dan Beisner 3.00 X

Bridge installation at Bluff Creek: creek banks were excavated below the OHWM. Ice

was removed from the creek and 2 timber mats were installed in creek for bridge

support.

Issue was resolved the same day: Installation was suspended, soil removed from banks was backfilled and straw mulch was spread on disturbed floodway area. See Report for details.

Waterbody 10, 16, 47

1A-DB-009 1/25/07 Dan Beisner XErosion control straw bales at several locations inadequately secured due to frozen

soils.Wetland

Erosion

Control

1A-DB-009 1/25/07 Dan Beisner 11.30 X XKeith Lane indicated that clearing had occurred on an unapproved landowner access

tract on January 24, 2007.Wetland Clearing 10, 16, 78

ENFORCEMENT LETTER SENT WITH MEETING THAT FOLLOWED

1B-JV-010 1/26/07 Jim Van Voorhis 40.70 XTopsoil was partially mixed with subsoil at a 20-inch bore site at wetland WA-W1

(Totagatic Road). Onsite inspectors and the foreman were informed of problem and

need to keep soils separated. Kent Hoppe was also informed of issue by phone.

Wetland Grading

1B-JV-011 1/27/07 Jim Van Voorhis 24.70 XPot-holing crew observed driving across stream associated with wetland DO-W98.

Issue was resolved the same day: Orange safety fencing was installed to direct traffic to the TCSB. See Report for details.

Wetland Grading 10, 16

1A-DB-012 1/29/07 Dan Beisner 0.79 XMud buildup was observed on Bardon Road near the Spread 1A kickoff--Mud was

present on a slope that drains toward the Nemadji River.No runoff from the road was

observed.

Waterbody

1A-DB-013 1/30/07 Dan Beisner 17.50 X

The contractor initiated frost driving in Wetland DO-W77 and light plants were placed in

the wetland. There was no secondary containment beneath the light plants.

Secondary containment was installed beneath the two light plants. See Report 1A-DB-014.

Wetland Other

Noncompliance Category




Noncompliance #

Report


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Chapter 30/

WQC permit

conditions Date Due


2-JV-004 2/2/07 Jim Van Voorhis 84.90 X

A leak occurred in Enbridge’s Line 14, the 24-inch pipeline that was constructed in

1998 and is the closest pipeline to the Southern Access construction. All ground

disturbing activities on spread 2 and 1B were suspended until further notice by

management.

See Report 1B-JV-019 for details.

Other Other Michaels

1B-JV-015 2/3/07 Jim Van Voorhis 49.50 X X

Kent Hoppe wrote an Unacceptable Report for the removal of 2-3 stumps removed

from wetland WA-W22 by a dozer.

Resolution: The activity was stopped and training was given to the crew. See Report 1B-JV-015.

Wetland Clearing 10, 16, 78, 91

1B-JV-015 2/3/07 Jim Van Voorhis25.3

25.5X X

Kent Hoppe wrote an Unacceptable Report for ditch crew activity in wetlands DO-W101

and DO-W103. Upland soil placed in wetlands.Wetland Ditching 10, 16, 78


Kent Hoppe is writing an Unacceptable report for activities in Wetland DO-W124

associated with topsoil mixing and storage.

Resolution: topsoil and subsoil will be separated during backfilling operations. See Report 1B-JV-021.

Wetland Grading 10, 16

1A-DB-023 2/12/07 Dan Beisner 18.33 X Wetland DO-W77; an oil spill was observed on a rock approach leading to wetland. Wetland Grading

1A-DB-023 2/12/07 Dan Beisner 0.70 XNemadji River Trib #2, DO-S2; Gaps were present in the timber mat bridge and tracked

soil was observed in the drainage beneath the structure. Additionally, straw bales near

the bridge were displaced.

Waterbody Grading

1A-DB-025 2/14/07 Dan Beisner 1.83 XAn oil spill was observed in Wetland DO-W11.

The issue was resolved the same day: The impacted soil was removed. See report for details.

Wetland

1A-DB-025 2/14/07 Dan Beisner 17.54 XWetland DO-W77; test excavations were performed near the working side ROW

boundary approximately 30 feet from the nearest ditch line.Wetland Other

1B-JV-022 2/15/07 Jim Van Voorhis 26.20 X XEI Darrin Moe wrote an unacceptable report fot a trenching machine fording the

Tributary to Park Creek in Wetland DO-W108.Wetland Ditching 10, 16


Environmentally Sensitive Area WA-2: the 20-inch line was trenched alongside the

exclusion area without a resource monitor present. Also, exclusion fencing was

knocked down.

Resolution: a resource monitor was sent out and exclusion fencing will be repaired. See Reports 1B-JV-023 and 1B-JV-024.

Exclusion Area Ditching 10, 16, 18


On the north side of Frog Creek Road in the hay field/pasture, little topsoil was

observed stripped from over the 42-inch bore pit with some frozen frost chunks

observed mostly buried in sub-soil. LEI Kent Hoppe was informed of this, and that this

may now be a landowner issue.

Followup: the hay field/pasture where topsoil was not adequately stripped has been cleaned up. See Report #1B-JV-041.

Agriculture Ditching


Erosion controls have not been installed at various wetland/upland boundaries near the

southern portion of Spread S-1A.

Resolution: silt fence was correctly installed and backfilled at upland/wetland boundaries. See Report 1A-DB-034.

WetlandErosion

Control

1A-DB-030 2/20/07 Dan Beisner 2.60 X

Wetland DO-W13; during tie-in installation of 20-inch line topsoil was not segregated

from the ditch line.

Resolution: mixed soils were backfilled and topsoil segregation requirements were provided to tie-in crew. See Report 1A-DB-031.

Wetland Tie-in 10, 16


ECA #6: the temporary clear span bridge at Elder Creek has the bottom runners at

ground level and the bridge has not been anchored. Ken Lupi indicated that he is

waiting for a determination on a Level 3 variance before the bridge can be moved.

See Report 2-JV-012 for details on resolution.

Waterbody


Mr. Lane indicated that the environmental crew attempted to install silt fence near the

south end of Spread 1A, however trenching equipment proved ineffective at penetrating

the frost layer for silt fence installation. Erosion controls remain absent or not

effectively installed throughout the spread.


WetlandErosion

Control

1A-DB-032 2/22/07 Dan Beisner 13.00 X X

Waterbody DO-S14: last week the grade crew graded across the Silver Creek

Tributary 2.

Resolution: Mr. Lane arranged for the contractor to restore the banks, remove spoil from the drainage and install a temporary clear span bridge. See Report 1A-DB-032.

Waterbody Grading 10, 16,61


The status of erosion controls remains the same as yesterday with

wetland/waterbodies not effectively protected from potential sedimentation.


WetlandErosion

Control




Noncompliance #

Report


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Chapter 30/

WQC permit

conditions Date Due


1A-DB-033 2/23/07 Dan Beisner XNo new silt fence installation was observed throughout the spread


WetlandErosion

Control

1A-DB-035 2/26/07 Dan Beisner X No new silt fence installation has occurred since February 24, 2007. WetlandErosion

Control

1A-DB-037 2/28/07 Dan Beisner XExcept for segments between MP 17.4 - 21.75, MP 2.75 - 3.75 and MP 5.00, adequate

erosion controls continue to be absent throughout the spread.Wetland

Erosion

Control


erosion controls continue to be absent throughout the spread. No new silt fence

installation efforts were observed.

WetlandErosion

Control

1A-DB-039 3/5/07 Dan Beisner 18.90 X

Wetland DO-W79: The contractor dewatered a portion of ditch that was left open over

the last four days. Inspection of the structure revealed that sediment laden water was

flowing into the adjacent, off-ROW wetland. The dewatering structure was not of

sufficient size or construction to adequately filter sediment or contain the discharge.

Resolution: Mr. Lane also observed the noncompliant dewatering and pumping was suspended. See Report #1A-DB-039.

WetlandTrench

Dewatering10, 16, 26, 27

1A-DB-039 3/5/07 Dan Beisner 9.70 X

DO-S10, Little Amnicon River: The contractor dewatered the ditch with flow being

diverted into a sedimentfilter bag contained within a strawbale structure. At one time,

the discharge hose was observed outside of the filter bag. Additionally, the straw

bale/geotextile structure did not retain the discharge to appropriately filter ditch

waterand the resulting discharge to the wetland contained suspended solids. No

sediment laden water was observed entering the Little Amnicon River. Mr. Lane was

informed of the problem and indicated ditch dewatering would be suspended.

Resolution: The previously constructed straw bale/geotextile dewatering structure was replaced with a second structure and 25 micron filter bags were installed. See Report #1A-DB-040.

WaterbodyTrench

Dewatering10, 16, 26, 27


erosion controls continue to be absent throughout the spread.Wetland

Erosion

Control

1A-DB-041 3/7/07 Dan Beisner 22.70 X

Wetland DO-W90: An environmental crew was observed installed silt fence at this

wetland/upland boundary. The crew is only installing silt fence on a portion of the

working side with unsecured straw bales being placed on the remaining portion of the

ROW with the exception of the currently utilized, 20-inch pipeline travel lane. It was

indicated the crews working behind the environmental crew have been tearing out silt

fence during relocation of timber mats for installation of the 42-inch pipeline.

WetlandErosion

Control

1A-DB-042 3/8/07 Dan Beisner 10.50 XDuring installation of the railcar bridge at this river crossing, grading wider than the

Enbridge specified 50 foot vegetative buffer was performed.Waterbody Grading

1A-DB-044 3/9/07 Dan Beisner 21.50 XWetlands DO-W86, W88 and W89, DO-W52 and DO-W53: Silt laden snowmelt runoff

was observed flowing into these wetlands from adjacent upland areas. Travel lane

erosion controls are absent between MP 13.3 - 14.4.

WetlandErosion

Control10, 16, 31,39

1B-JV-036 3/9/07 Jim Van Voorhis X

Wetland WA-W10: topsoil stripped from the 20-inch trench was buried with subsoil.

Wetlands WA-W10 and WA-W11: dewatering activities deposited sediment laden

water into wetland WA-W11.

Followup: sediment has been removed and the wetland has been roughed in with topsoil replaced as a croen over the wetland. See Report #1B-JV-041.

WetlandTrench

Dewatering

10, 16, 26, 27,

78

1A-DB-045 3/10/07 Dan Beisner 17.70 XNorth of MP 17.7, adequate erosion controls continue to be absent throughout the

spread.Wetland

Erosion

Control


Wetland WA-W117: water was flowing slowly through ice/frost at the first mat end into

the wetland from the slope leading into the wetland from the south near Highway 77.

Followup: Erosion controls have been installed and no erosion is occurring into the wetland. See Report 1B-JV-041.

WetlandErosion

Control

1A-DB-046 3/11/07 Dan Beisner 3.04 X

Bluff Creek: Due to gaps in the bridge mud buildup was present on the creek ice and

snow. The span bridge consists of one layer of timber mats which is not consistent with

the Span Bridge Typical Drawing.

Resolution: Mud was removed following relocation of the span bridge. Erosion controls were installed at the wetland boundaries. See Report #1A-DB-047.Followup: repairs were made to the bridge at Bluff Creek. See Report # 1A-DB-051.

WaterbodyErosion

Control

1A-DB-046 3/11/07 Dan Beisner 19.75 X

Due to continued pipe stringing activity south of Moose Lake Road (MP 19.75),

previously installed waterbars are in need of repair. An environmental crew was

working in the area, but erosion controls still need to be installed or re-installed

correctly at multiple locations throughout the spread.

WetlandErosion

Control

1B-LK-002 3/11/07 Linda Koon XWetland WA-W39: trees were manually cut within the buffer zone.

Resolution: discussed walkthroughs to locate streams prior to future work. Wetland Clearing




Noncompliance #

Report


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Chapter 30/

WQC permit

conditions Date Due



Kent Hoppe wrote 2 unacceptable reports for activities with the ditch crew on the 20-

inch line. At wetland DO-W106, MP 25.8, a bull-dozer graded the travel path while

working in the area. At wetland DO-W108, MP 26.2, a dozer operator pushed upland

soil into the wetland in an attempt to construct a water bar.

Wetland Grading 10, 16, 78

1A-DB-047 3/12/07 Dan Beisner 5.10 XWetland DO-W25: Ruts in the wetlands and agricultural hay field north of Valley Brook

Road exceeded six inches in depth. Timber mats were not installed in this series of

wetlands. Mr. Lane was informed of the problem.

WetlandErosion

Control

10, 16, 32, 39,

40, 82

1A-DB-047 3/12/07 Dan Beisner 9.70 XWetland DO-S10: Little Amnicon and Amnicon Rivers: Erosion controls installed at both

river crossings and adjacent wetlands are not correctively installed.Waterbody

Erosion

Control

1A-DB-047 3/12/07 Dan Beisner 18.70 X

Wetlands DO-W79, DO-W81, DO-W82, DO-W83, DO-W84, DO-W85, DO-W86, DO-

W87, DO-W88, DO-W89: At multiple locations, upland mud and sediment laden water

was observed in and flowing through wetlands. Mr. Lane was informed of the problem

and indicated work would be suspended.

Resolution: A dozer removed mud from wetland DO-W79. Operations remained suspended from Huray Road to Tom Green Road. See report #1A-DB-048.Followup: Timber mats were installed in wetlands and uplands. See report #1A-DB-050.Followup: Timber mats were installed in wetland and upland areas. Some erosion control devices need attention. See Report #1A-DB-052.

WetlandErosion

Control

10, 16, 32, 39,

40, 78

2-JV-016 3/12/07 Jim Van Voorhis 119.10 XWetland TA-W16: heavily sediment-laden water was observed in the south end of the

wetland. Wetland RU-W39, MP 92.5: sediment laden water was observed flowing

underneath the welded 42-inch pipe and into the wetland.

WetlandErosion

Control

10, 16, 32, 39,

40, 78

2-JV-016 3/12/07 Jim Van Voorhis 88.50 X Wetland RU-W27: cloudy water entered the wetland off the ROW WetlandErosion

Control

10, 16, 32, 39,

40, 78

2-JV-016 3/12/07 Jim Van Voorhis 89.20 XWetland RU-W29: melting show has started running and flowing onto the ROW near

the south end of the wetland.Wetland

Erosion

Control

1A-DB-048 3/13/07 Dan Beisner 3.00 X

Wetland DO-W19/Waterbody DO-S6: Ruts exceeding six inches were observed on

both sides of the Bluff Creek crossing in Wetland DO-W19. Timber mats were

previously installed through the rutted segment, but were removed from the travel lane

and stockpiled on the ROW during frozen soil conditions.

Followup: timber mats were installed in the upland ROW. See Report # 1A-DB-050.

WetlandErosion

Control

10, 16, 32, 39,

40, 78, 82

1A-DB-048 3/13/07 Dan Beisner 5.14 X

Wetlands DO-W25 and DO-W26: construction continued through this wetland and

agricultural hay field following yesterday’s noncompliance report. Timber mats are not

installed through the segment and ruts exceeded six inches in depth.

Followup: work is proceeding through segment, though no timbermats have been installed. The issue was discussed with Keith Lane. See Report # 1A-DB-049.

WetlandErosion

Control10, 16, 32, 82

1A-DB-048 3/13/07 Dan Beisner 5.00 XWetland DO-W24: wetland ruts exceeded 6 inches at the Bluff Creek Trib #1 crossing.


WetlandErosion

Control10, 16, 82

1A-DB-048 3/13/07 Dan Beisner 4.74 X

Wetland DO-W22: Wetland ruts exceeded six inches through this forested wetland

crossing. Timber mats were previously installed across the resource, but were removed

prior to thawing conditions.


WetlandErosion

Control10, 16, 82


Wetland WA-W17: sediment reached the wetland from a combination of melting snow

and equipment and vehicles tracking through the water and turning soils into a slurry.

Followup: Erosion controls have been installed and no erosion is occurring into the

wetland. See Report 1B-JV-041.

WetlandErosion

Control

10, 16, 32, 39,

40, 78


Wetland DO-W123, MP 39.6; WA-W17, MP 44.9; and WA-W38, MP 56.5: upland

materials have been tracked into wetlands.

Resolution: the soils and upland material were removed from the wetland. See Report #1B-JV-046 for details.

WetlandErosion

Control

1A-DB-049 3/14/07 Dan Beisner 3.50 XWetlands DO-W20, DO-W21 and DO-W22, MP 3.5-5.0: Trash was observed

throughout the segment. Some trash was blown off ROW into the adjacent wetland

areas. Keith Lane was informed of the problem.

Wetland Other

1B-JV-040 3/14/07 Jim Van Voorhis 26.20 XAt the Tributary to Park Creek, sand/soil was observed tracked onto the temporary

clear span bridge.Sand was observed bladed into the wetland DO-W108 on the south

edge of the tributary as well.

WaterbodyErosion

Control10, 16, 37, 78

1B-JV-040 3/14/07 Jim Van Voorhis X XKent Hoppe is writing an Un-Acceptable report for the trench crew not separating

topsoil at wetland DO-W98.Wetland Trenching 10, 16

1B-JV-040 3/14/07 Jim Van Voorhis X XKent Hoppe indicated that an Un-Acceptable report was being written for crew leaving

the matted access path in Wetland DO-W103 and rutting in excess of 6-inches.Wetland

Erosion

Control10, 16, 78, 82




Noncompliance #

Report


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Chapter 30/

WQC permit

conditions Date Due


3-DD-003 3/16/07 Dean DiTommaso 217.60 XWaterbodies AD-S7 and AD-S8: Unapproved temporary bridge types were installed at

Tribs # 1 & #2 to Big Roche a Cri Creek. Jack Little was informed of the problem.Waterbody 10, 16

1A-DB-051 3/17/07 Dan Beisner 6.20 XWetland DO-W31: A ditch crew was observed to be partially covering segregated

topsoil with subsoil. Mr. Lane was informed of the problem.Wetland Ditching

1B-JV-041 3/17/07 Jim Van Voorhis 47.30 X XWetland WA-W18: Mr. Hoppe is writing an Un-Acceptable report for a tie-in crew

excavating the 20-inch trench placing sub-soil over the segregated topsoil removed

earlier in frost chunks.

Wetland 10, 16

1B-JV-042 3/19/07 Jim Van Voorhis 47.30 XWetland WA-W18: there was improper topsoil stripping and separation observed at

this wetland. Kent Hoppe was contacted and also visited the site.Wetland 10, 16

1B-JV-042 3/19/07 Jim Van Voorhis 47.50 XWetland WA-W20: subsoil excavated from the ditch was partially covering the

segregated topsoil.Wetland

1B-JV-042 3/19/07 Jim Van Voorhis 23.90 XSensitive Resource Site DWG-125 (Wetland DO-W97): orange exclusion fencing was

knocked over by a dozer pulling a skid trailer.Exclusion Area Fencing

ENFORCEMENT LETTER SENT WITH MEETING THAT FOLLOWED

1A-DB-054 3/21/07 Dan Beisner 6.90 XWetlands DO-W33, DO-W34 and DO-S8: Erosion controls need maintenance and

installation at several locations.Wetland

Erosion

Control

1B-LK-008 3/22/07 Linda Koon 80.50 X XInformed that Gary Zack is writing an Un-Acceptable report for a clearing crew driving

an ATV across streams.Waterbody Clearing 10, 16

1A-DB-058 4/2/07 Dan Beisner 0.70 XDO-S2: Runoff over the past several days further eroded the upland slope above

Tributary #2 to the Nemadji RiverWaterbody

Erosion

Control

1A-DB-058 4/2/07 Dan Beisner 1.20 XDO-W8, Nemadji River floodway: Due to water flow in the river flood plain, timber mats

were observed displaced form their original installation and may have floated off-ROW. Wetland Other

4-DD-001 4/17/07 Dean DiTommaso 262.60 X XJack Little wrote an Unacceptable Report for clearing 70 feet in a forested wetland

without IEM approval.Wetland Clearing

10, 16, 78, 89,

90, 103


LEI Kent Hoppe called to say that a frac-out occurred at the Chippanazie Creek. The

incident was discussed with Hoppe as a possible noncompliance for disturbung the

stream bed during fisheries restriction window--DNR will determine.

Followup: This Communication was escalated to an Incident. See Report 1B-JV-048

for details.

WaterbodyErosion

Control

1B-JV-048 5/9/07 Jim Van Voorhis 25.20 XMP 25.2-26.6: five wetlands had mats removed early and subsidence occurred. A crew

was in these wetlands regrading to the original contour.Wetland Grading 10, 16

1A-JV-007 5/23/07 Jim Van Voorhis 6.80 X XKeith Lane is writing an unacceptable report fo storing subsoil over topsoil in wetlands

DO-W32 (MP 6.8) and DO-W78 (MP 18.4).Wetland Tie-in 10, 16

2-JV-039 5/24/07 Jim Van Voorhis 85.70 X XLEI Kent Hoppe is writing an Unacceptable report for unsatisfactory erosion controls in

several wetlands north of Lone Pine Road.Wetland

Erosion

Control

10, 16, 32, 39,

40

1A-JV-011 5/31/07 Jim Van Voorhis 22.50 XWetland DO-W90: mounded topsoil that was replaced over the 20" pipe was being

mixed with subsoil excavated from the 42" trench.Wetland Ditching 10, 16

2-JV-044 6/1/07 Jim Van Voorhis XElder Creek was trenched May 15th or 16th - during the timing restriction window of

April 1 to June 1. Waterbody Other 10, 16, 29

2-JV-045 6/2/07 Jim Van Voorhis 164.00 XWetland MA-W06: timber mats placed for a haul road through the wetland have been

sinking due to wet conditions from recent rain events.Wetland

Erosion

Control

2-JV-050 6/13/07 Jim Van Voorhis 167.80 XDewatering activities at wetland WO-W04 resulted in cloudy water being discharged

from the woven filter bag.Wetland

Trench

Dewatering

1A-ST-002 6/14/07 Steve Toman X XTalked with LEI Keith Lane about minor wetland rutting that was occurring during

stringing and lowering in activities. Keith is writing an Unacceptable Report about this

issue.

WetlandStringing/ben

dingWelded 10, 16, 82

1A-ST-003 6/15/07 Steve Toman 5.80 X

Talked to LEI Keith Lane about concerns with the sheet pile now in place at Trib #2 to

Bluff Creek. The stream is currently dry, but no space was left in the sheet-pile dam to

allow stream flow should flow conditions change.

Follow-up: Contractor has cut a hole in the sheet pile allowing for cross drainage. See Report 1A-ST-004 for details

Waterbody Trenching

1A-ST-004 6/15/07 Steve Toman 5.00 X X

EI Rob Mickelson is writing an unacceptable report for activities at Trib #1 to Bluff

Creek (DO-W23). Equipment bridge had mud, silt fence not installed around spoil pile,

secondary containment not provided for gas can, and water bar was not constructed on

the south approach to the stream.

WaterbodySteam

Crossing

10, 16, 31, 32,

39, 40

4-DD-006 6/15/07 Dean DiTommaso 211.90 X

A track hoe crossed through Unnamed Waterbody AD-S2 leaving tracks in the channel.

Although the channel is currently dry, equipment must use the equipment bridge to

cross the waterbody. Signs will be placed at waterbody crossings to prevent this from

reoccurring.

Waterbody 10, 16

1B-ST-003 6/19/07 Steve Toman 45.22 XContractors were conducting a dam and pump crossing of Trib to Sink Creek (WA-S2).

The discharge end of the stream pump-around was being pumped into a filter bag

placed outside the stream channel. The problem was corrected.

WaterbodyStream

Crossing




Noncompliance #

Report


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Chapter 30/

WQC permit

conditions Date Due


2-JV-053 6/20/07 Jim Van Voorhis 126.60 XAt Hay Creek #2, the 50-foot vegetated buffer was impacted during mowing or

installation of the temporary clear span bridge.Wetland Clearing

1A-ST-005 6/21/07 Steve Toman 12.90 X

Turbid water was seen entering Silver Creek (DO-S13). LEI Keith Lane had additional

silt fence and sand bags installed to mitigate the turbid water. Water was diverted to a

dewatering structure south of the stream. Keith Lane monitored the stream until water

was clear.

WaterbodyTrench

Dewatering

1A-ST-006 6/22/07 Steve Toman 3.00 X

Talked with LEI Keith Land and learned that non-biodegradable curlex was being

installed at Bluff Creek, DO-S-5. Additionally, curlex previously installed has not been

removed.

See report 1A-ST-007 for resolution information.

Waterbody Restoration

1A-ST-008 6/26/07 Steve Toman 11.60 X

Contractor was dewatering the ditch and poorly flitered trench water surged down the

slope. The contractor failed to construct a dewatering structure or consult with EIs

about proper dewatering locations. LEI Keith Lane shut down the activity and defined

areas where dewatering structures must be build prior to future dewatering activities.

See Report 1A-ST-009 for additional follow-up and resolution information.

WaterbodyErosion

Control

10, 16, 31, 32,

39, 40

2-JV-058 6/29/07 Jim Van Voorhis 88.70 X XWalked several wetlands between MP 88.7 and 92.7 with LEI Kent Hoppe. It appeared

that crews bladed soils over the trench line in several areas. Disturbance minimizaton

to these resources was not practiced and Kent Hoppe is wiring an unacceptable report.

Wetland 10, 16, 35, 36


At Deer Tail Creek a gap was found in the turtle exclusion fencing where turtles may

have been able to crawl underneath. Additional issues with turtle exclusion fencing

were observed in the area. LEI Gary Zack was informed of the noncompliance and

sent an environmental crew to make repairs.

T&E Fencing 10, 16, 18

2-JV-059 7/2/07 Jim Van Voorhis 111.10 XA flail was used to mow the ROW and impacted the soils on the southeast side of

wetland RU-W103. Discussed the issue with EI Tim Carter.Wetland Clearing

1A-ST-010 7/5/07 Steve Toman XDownstream flow was not maintained during the dam and pump crossing of the Little

Amnicon River.Waterbody Trenching

2-JV-061 7/5/07 Jim Van Voorhis 131.70 XSediment reached wetland TA-W68 during yesterday's storm event. Water bars on the

slope north of the wetland appear to have not been repaired prior to the storm event,

and hay bales at the wetland edges were not replaced.

WetlandErosion

Control

10, 16, 31, 32,

39, 40

2-JV-061 7/5/07 Jim Van Voorhis 117.10 XSediment reached Fisher River during 7-3-2007 storm event. The grade crew was shut

down due to lightning in the area and could not repair the water bars on the cut bank

for the haul road

WaterbodyErosion

Control

10, 16, 31, 32,

39, 40

2-JV-061 7/5/07 Jim Van Voorhis 131.50 XSmall amounts of sediment reached wetland TA-W67 (MP 131.5) and wetland TA-W81

(MP 133.8). Water bars were not repaired at wetland TA-W67 and hay bales were not

replaced at wetland TA-W81.

WetlandErosion

Control

4-DD-012 7/5/07 Dean DiTommaso 220.20 XDuring the crossing of Trib to Carter Creek spoil was placed within the 50-ft stream

bufferWaterbody

Erosion

Control10, 16

4-DD-012 7/5/07 Dean DiTommaso 232.30 XSilt fence at MP 232.3 was overwhelmed during a storm event on 7-3-2007 resulting in

sediment being deposited in wetland AD-W36Wetland

Erosion

Control

4-DD-015 7/13/07 Dean DiTommaso 260.40 XWetland and upland spoil were placed side-by-side in a continuous pile at wetland CO-

W8 with the siltfence being buried under the spoil in the processWetland

Erosion

Control

1C-ST-006 7/17/07 Steve Toman 71.60 X XEI Darren Moe is writing an Unacceptable Report concerning the stream bank

disturbance caused by the equipment bridge placed across Summit Creek #2.Waterbody 10, 16, 47

4-DD-016 7/17/07 Dean DiTommaso 220.10 XLoose spoil was placed against segregated topsoil in wetland AD-W19 resulting in

some mixing.Wetland

Erosion

Control

4-DD-018 7/19/07 Dean DiTommaso 219.80 XSpoil was placed in a continuous pile at the wetland/upland boundaries at wetlands AD-

W18 and AD-W19Wetland

Erosion

Control

1C-ST-009 7/23/07 Steve Toman 82.70 XDuring crossing of Alder Creek (SA-S7) and wetland SA-W26, spoil was placed over

the existing siltfence. Spoil was removed and siltfence was repaired. No sediment

was observed in the stream

WaterbodyErosion

Control

1C-ST-009 7/23/07 Steve Toman XThe dewatering structure constructed for the crossing of Alder Creek (SA-S7) only had

3 sides. Limited dewatering occurred into this structure and no silt-laden water flowed

to a wetland or water body.

WaterbodyErosion

Control

1C-ST-009 7/23/07 Steve Toman XDuring the lowering in of the 42 and 20 inch pipe sections at Alder Creek (SA-S7),

downstream flow was not maintained for the crossing. After both pipe sections were

lowered in the pump around was re-established.

Waterbody

2-JV-072 7/24/07 Jim Van Voorhis 165.60 XNorth end of Wetland MA-W11: subsoil was placed on previously excavated topsoil

making recovery difficult or impossible. LEI Gary Zack was informed of the issue and

the operator was given additional training

Topsoil 10, 16

1B-ST-005 7/25/07 Steve Toman XErosion control measures along Sink Creek and Wetlands WA-W15, WA-W16, and WA-

W17 were in poor repair. LEI Keith Lane and Kent Hoppe were informed of the

problems.

WetlandErosion

Control




Noncompliance #

Report


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Chapter 30/

WQC permit

conditions Date Due


4-DD-021 7/27/07 Dean DiTommaso 243.80 X XEI Steve Atkinson notified Dean that he is writing an Unacceptable Report for subsoil

being placed against segregated topsoil in wetland MQ-W10Wetland

Erosion

Control

10, 16, 32, 34,

39, 40

2-JV-076 7/30/07 Jim Van Voorhis 125.50 X XEI Ray Rilogio is writing an Unacceptable Report for topsoil mixing in wetlands RU-

W35 and RU-W37Wetland

Erosion

Control

10, 16, 32, 34,

39, 40

4-DD-022 7/30/07 Dean DiTommaso 243.60 Xthe topsoil was not segregated over the trench line for both pipelines during the

crossing of wetland MQ-W9. The issue was discussed with Jack Little, John Towles

and Steve Atkinson

WetlandErosion

Control

10, 16, 32, 34,

39, 40

4-DD-023 8/1/07 Dean DiTommaso 249.00 XI was not notified of 2 frac-outs that occurred within the southern end of Wetland MQ-

W14 (MP 249.0) during guided bore operations associated with the crossing of Good

Earth Creek MQ-S12

WaterbodyErosion

Control

10, 16, 32, 34,

39, 40

4-DD-023 8/1/07 Dean DiTommaso 214.10 X XEquipment working in Wetland MQ-W10 was not working off equipment mats which

resulted in rutting. John Towles is writing this up as an Unacceptable ReportWetland

Erosion

Control

10, 16, 32, 34,

39, 40

2-JV-079 8/2/07 Jim Van Voorhis 123.60 X X

the frac out that occurred yesterday afternoon was contained by placing a row of sand

bags up-stream across the river to a level near the river level, with a row downstream

as well. When the site was visited this morning the foreman responsible for the

HDD/guided bore informed me when the frac out location was identified for sure, a

smaller containment pit around the site would be constructed.

Waterbody HDD


At the south end of wetland CL-W5, associated with the Black River, a dewatering

structure was built at the edge of the permanent easement west of the existing

pipelines. It appears as if the dewatering pit was used today or yesterday to pump

water from the exit pit at the south side of river. A large percentage of drilling mud

versus water was pumped as well.

WetlandErosion

Control

10, 16, 32, 34,

39, 40

1A-ST-017 8/4/07 Steve Toman 10.90 XLandowner complaint about the cleanup of wetland DO-W41. The landowner claime

that the crown now existing over the trench will not allow his equipment to work

correctly.

WetlandLandowner

Complaint

4-DD-026 8/6/07 Dean DiTommaso 213.80 XEquipment in wetland AD-W8 caused some uprooting in wetland because one set of

trackes was off the equipment matWetland

Erosion

Control

4-DD-027 8/7/07 Dean DiTommaso 267.70 XTemporary slope breakers were not maintained/reinstalled on the slope of wetland CO-

W23. Significant erosion occurred after a rainfall event of 1.5 inches.Wetland

Erosion

Control

10, 16, 32, 34,

39, 40

1C-ST-013 8/8/07 Steve Toman 65.43 XTurtle exclusion fencing was found to be in disrepair at Wetland SA-W12 and Sand

Creek SA-S1. ROW clearing was occurring in the area.T&E Clearing 10, 16, 18

4-DD-029 8/9/07 Dean DiTommaso 289.30 XA recent rain event resulted in sediment knocking down the silt fence at 1 location on

the south side of Trib. #6 to Maunesha River DA-S6 and entering the waterbody. Waterbody

Erosion

Control

4-DD-030 8/10/07 Dean DiTommaso 281.10 XA small gap between the silt fence and a straw bale allowed sediment to enter wetland

CO-W39 after a recent rain event. An environmental crew arrived to repair the eroaion

controls and remove the sediment from the wetland.

WetlandErosion

Control

1A-ST-018 8/14/07 Steve Toman X Trenching activities in wetland DO-W8 caused topsoil-subsoil mixing. Wetland Trenching 10, 16

1A-ST-018 8/14/07 Steve Toman XThere is an equipment bridge located at the Nemadji River that is not part of the river

plan. A Level 3 variance request is required.Waterbody 10, 16

1A-ST-018 8/14/07 Steve Toman X The bridge across the Nemadji River is not anchored and is covered with dirt. Waterbody 10, 16, 49

1C-ST-014 8/15/07 Steve Toman 77.58 X XLEI Kent Hoppe is writing an Unacceptable Report for a clearing contractor crushing

the stream banks of Maple Creek (SA-S11) during equipment bridge installation.

Repair of the stream banks and proper installation of the equipment bridge followed.

Waterbody Clearing 10, 16

1C-ST-014 8/15/07 Steve Toman 77.58 X XLEI Kent Hoppe is writing an Unacceptable Report for a clearing contractor damaging

Maple Creek's buffer zone with heavy equipment. Repair to the buffer zone and

erosion control measure installation occurred.

Waterbody Clearing 10, 16, 54

2-JV-087 8/15/07 Jim Van Voorhis 97.00 X XLEI Kent Hoppe informed Jim that he is writing an Unacceptable Report for a bulldozer

pushing water with some mud into the south end of wetland RU-W60. Some silt fence

was knocked down in the process.

WetlandErosion

Control

10, 16, 32, 34,

39, 40

4-DD-033 8/15/07 Dean DiTommaso 219.80 XSome segregated topsoil at wetland AD-W18 was buried under subsoil when

equipment traveled over the subsoil and forced it on top of the topsoilWetland 10, 16

1C-ST-015 8/17/07 Steve Toman 65.43 XDamaged Turtle Exclusion fencing was found on the south approach to Sand Creek

(SA-S1). LEI Kent Hoppe informed Steve that the fencing was immediately repaired.T&E Fencing

2-JV-089 8/17/07 Jim Van Voorhis 99.00 XLEI Kent Hoppe informed Jim that wetland RU-W71 was cleared prior to receiving the

signed Level 3 variance from the DNR. When the location was visited after clearing

already occurred, no evidence of wetland flagging, or signs, was evident.


90

2-JV-089 8/17/07 Jim Van Voorhis 99.00 X XEI Darin Moe informed Jim that he is writing an Unacceptable Report for NCL chipping

into wetland RU-W71 and disturbing soils. When the location was visited after clearing

already occurred, no evidence of wetland flagging, or signs, was evident.


Clearing10, 16

2-JV-090 8/18/07 Jim Van Voorhis 186.00 X X

EI Joe Stringent will be writing an Unacceptable Report for activities occurring in

wetland WO-W37. Topsoil mixing occurred at the road bore at Oak Road. Near

Jackson Road in the same wetland, dewatering was occurring into a filter bag into the

wetland from a road bore pit.

Wetland 10, 16, 31




Noncompliance #

Report


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Chapter 30/

WQC permit

conditions Date Due


4-DD-036 8/18/07 Dean DiTommaso 218.50 XUnnecessary bank disturbance occurre below the OHWM coinciding with the bridge #2

crossing location at Carter Creek (AD-S9)Waterbody Sheet Piling 10,16, 53

4-DD-036 8/18/07 Dean DiTommaso 221.70 X XEI Steve Atkinson is submitting an Unacceptable Report for sediment from trench

dewatering accumulating in wetland AD-W27 affecting roughly 100 ft2 of wetland.Wetland

Erosion

Control

10, 16, 32, 39,

40, 78

4-DD-036 8/18/07 Dean DiTommaso 225.30 XThe trench walls collapsed just beyond the row of sheet pile on both sides of Trib #2 to

Fordham Creek (AD-S15).Waterbody

1B-ST-008 8/20/07 Steve Toman 49.80 XPumps and gas can used at the Trib #2 to Chippananzie Creek crossing need

attention. Pumps were not contained or only partially contained in its secondary spill

containment.

Waterbody


The dam and pump crossing at the Yellow River was overwhelmed and water flowed

over the upstream dam, through sheet piling, and over the downstream dam. It

appears that erosion from the trench line on at least the north bank may have washed

into the river between the dams as well.

Waterbody10, 16, 31, 36,

39

2-JV-091 8/20/07 Jim Van Voorhis 101.90 XWater entered Deer Tail Creek from the north side of the ROW, discoloring the creek.

Two water bars north of the creek location diverted run-off into vegetation, and then

through two rows of silt fence, prior to entering the creek.

WaterbodyErosion

Control

1B-ST-009 8/21/07 Steve Toman 49.50 XThere are several locations in wetland WA-W22 and in the travel lanes between Trib #1

and Trib #2 to Chippananzie Creek where mats have become excessively smashed

into wetlands.

Wetland

1C-ST-016 8/21/07 Steve Toman XMinor sediment erosion into wetlands RE-W4, RE-W5, RE-W6 occurred. The straw

bale erosion controls are not being dug in or staked down at wetland boundaries. Wetland

Erosion

Control

3-JV-002 8/21/07 Jim Van Voorhis 198.50 X TCSB at Lynn Creek #1 was not cabled off/anchored. Waterbody 10, 16, 49

3-JV-002 8/21/07 Jim Van Voorhis 199.30 X TCSB at Lynn Creek #2 was not cabled off/anchored. Waterbody 10, 16, 49

1C-ST-017 8/22/07 Steve Toman 77.45 X

The equipment bridge across Maple Creek has been in place for several days and was

not anchored. LEI Kent Hoppe informed Steve that the bridge was unsafe and needed

to be replaced. The existing bridge was then removed and replaced with a rail car type

bridge.

Waterbody 10, 16, 49

2-JV-092 8/22/07 Jim Van Voorhis 155.30 X XEI Jeff Barnes is writing an Unacceptable Report for lack of erosion control measures

at wetlands CL-W50 and CL-W58. Sediment washed into both wetlands as a result.Wetland

Erosion

Control

10, 16, 32, 39,

40, 78

2-JV-093 8/23/07 Jim Van Voorhis X X EI Jeff Barnes is writing an Unacceptable Report for mixing soils in wetland CL-W39 WetlandErosion

Control10, 16

4-DD-039 8/23/07 Dean DiTommaso 250.30 XThe contractor grubbed outside of the ditch line within the TWS in wetland MQ-W15

and disrupted root systems resulting in topsoil mixingWetland

Erosion

ControlMichels 10, 16, 78

4-DD-039 8/23/07 Dean DiTommaso X XLEI John Towles is writing an Unacceptable Report for equipment refuling at night in

wetland MQ-W15.Wetland Refueling 10, 16

1A-ST-019 8/24/07 Steve Toman X XEI Rob Mickelson is writing an Unacceptable report for not restoring the south bank of

the Nemadji River immediately after sheet pile was removedWaterbody Restoration 10, 16

1A-ST-019 8/24/07 Steve Toman X XEI Rob Mickelson is writing an Unacceptable report for not anchoring 2 new equipment

bridgesover Silver Creek Trib #3.Waterbody 10, 16, 49

1A-ST-019 8/24/07 Steve Toman X XEI Rob Mickelson is writing an Unacceptable report for topsoil-subsoil mixing in wetland

DO-W49Wetland Trenching 10, 16

3-JV-003 8/24/07 Jim Van Voorhis 192.10 XWetland WO-W51: wetland was rutted by equipment then a dozer back-dragged the

ruts. Also, no apparent wetland flagging or signage was apparent.Wetland

Erosion

Control

10, 16, 78, 81,

82

4-DD-040 8/24/07 Dean DiTommaso 213.80 XWetland AD-W8: Excessive rutting occurred when vehicles were driven off the

equipment mats within the temporary work space.Wetland

Erosion

Control10, 16, 78, 82

1A-ST-020 8/25/07 Steve Toman X XEI Rob Mickelson is writing another Unacceptable report for not anchoring 2 new

equipment bridgesover Silver Creek Trib #3.Waterbody 10, 16, 49

1C-ST-018 8/27/07 Steve Toman 70.12 XHeavy equipment travel across the equipment bridge at Hauer Creek caused the

bridge and flume pipes to sink into the stream bed.Waterbody

4-DD-042 8/27/07 Dean DiTommaso 227.10 X XEI Les Baker informed Dean that an Unacceptable Report is being written for

topsoil/subsoil mixing in wetland AD-W34Wetland

Erosion

Control10, 16

1C-ST-019 8/28/07 Steve Toman 64.48 XWetland SA-W8: erosion control measures were not repaired at the end of the day and

overnight rain washed sediment into the wetlandWetland

Erosion

Control

10, 16, 32, 39,

40, 78

1C-ST-019 8/28/07 Steve Toman 65.43 XWetland SA-W12 and Sand Creek (SA-S1): Overnight rain overwhelmed erosion

control measures and silt and sediment flowed into the wetlandWetland

Erosion

Control

1C-ST-019 8/28/07 Steve Toman 68.45 XTrib to Hauer Creek (SA-S3): Erosion control measures placed across the travel lane

were not maintained and overnight rain caused significant sedimentation into the

stream

WaterbodyErosion

Control

10, 16, 32, 39,

40

1C-ST-019 8/28/07 Steve Toman 68.46 X The equipment bridge over Trib to Hauer Creek was not anchored Waterbody 10, 16, 49

1C-ST-019 8/28/07 Steve Toman 70.05 XHauer Creek, Tribs #1 & 2 to Hauer Creek, Trib #1 to Summit Creek: overnight rain has

all available pumps for the crossing now in use. Waterbody

1C-ST-019 8/28/07 Steve Toman 77.40 XWetland SA-W60: overnight rain has blown out erosion control measures at this

wetland. Runoff clouded water in Maple Creek (SA-S11).Wetland

Erosion

Control




Noncompliance #

Report


mm

un

ica

tio

n

Incid

en

t

Min

or

Pro

ble

m

No

n-c

om

plia

nce

Se

rio

us N

on

-

co

mp

lian

ce

EI

Re

po

rte

d

No

nco

mp

lian

ce


Chapter 30/

WQC permit

conditions Date Due


2-JV-097 8/28/07 Jim Van Voorhis 107.20 XWetland RU-W94: some minor erosion entered the wetland during this morning's storm

eventWetland

Erosion

Control

4-DD-043 8/28/07 Dean DiTommaso 257.10 X XEI Terry Higgenbotham reported a noncomliance regarding silt-laden water from

dewatering entering wetland MQ-W17Wetland Dewatering 10, 16, 26, 32

1A-ST-021 8/29/07 Steve Toman 12.89 X Subsoil was dozed onto topsoil pile at the north approach of the Silver Creek crossing WaterbodyErosion

Control10, 16

1A-ST-021 8/29/07 Steve Toman 12.94 XSouth approach of the Silver Creek stream crossing: topsoil-subsoil mixing continued

to occur after the initial noncomplianceWaterbody

Erosion

Control10, 16

2-JV-098 8/29/07 Jim Van Voorhis 131.20 XWetland TA-W65: sediment was washed into wetlands from recent rain events. Hay

bales were not staked in and it appears that waterbars were not re-established after the

last crew moved through the area

WetlandErosion

Control

10, 16, 32, 39,

40, 78




WetlandErosion

Control

10, 16, 32, 39,

40, 78




WetlandErosion

Control

10, 16, 32, 39,

40, 78

1C-ST-020 8/30/07 Steve Toman 70.81 X Wetland RE-W6: Sediment deposit in wetland, Damaged Water Bar WetlandErosion

Control

10, 16, 32, 39,

40, 78

1C-ST-020 8/30/07 Steve Toman 70.85 X Wetland RE-W6: Sediment deposit in wetland, Damaged Siltfence WetlandErosion

Control

10, 16, 32, 39,

40, 78


Control

10, 16, 32, 39,

40, 78

1C-ST-020 8/30/07 Steve Toman 71.10 X Summit Lake: Sediment Damaged Siltfence along Summit Lake WaterbodyErosion

Control

10, 16, 31, 39,

40

1C-ST-020 8/30/07 Steve Toman 72.26 X Wetland RE-W2: Sediment deposit in wetland, Blown out Siltfence WetlandErosion

Control

10, 16, 32, 39,

40, 78


Control

10, 16, 32, 39,

40, 78

1C-ST-020 8/30/07 Steve Toman 73.10 X Wetland SA-W28: Sediment deposit in wetland, Blown out Siltfence WetlandErosion

Control

10, 16, 32, 39,

40, 78

1C-ST-020 8/30/07 Steve Toman 73.75 X Wetland SA-W33: Damaged Siltfence WetlandErosion

Control

10, 16, 31, 39,

40


Control

10, 16, 32, 39,

40, 78


Control

10, 16, 32, 39,

40, 78

1C-ST-020 8/30/07 Steve Toman 74.80 X Wetland SA-W40: Sediment Clean out behind Siltfence-Straw bales needed WetlandErosion

Control

10, 16, 31, 39,

40

1C-ST-020 8/30/07 Steve Toman 74.82 X SA-S10: Sediment clean up needed along siltfence at stream WaterbodyErosion

Control

10, 16, 31, 39,

40

2-JV-099 8/30/07 Jim Van Voorhis 93.10 XWetland RU-W40: the waterbar across the travel lane washed out during recent rain

events.Wetland

Erosion

Control

2-JV-099 8/30/07 Jim Van Voorhis 94.40 XLEI Kent Hoppe informed Jim of a frac-out at wetland RU-W46 with the Triburaty to the

Thornapple River HDDWetland HDD

2-JV-099 8/30/07 Jim Van Voorhis 105.90 X XLEI Gary Zack informed Jim that an Unacceptable Report is being written for the sheet

piling crew not reestablishing the waterbars prior to leaving Main Creek for the dayWaterbody

Erosion

Control

10, 16, 31, 39,

40

4-DD-045 8/31/07 Dean DiTommaso 296.70 XWaterbars north of wetland JE-W1 apparently failed during the previous week's rain

events resulting in gully erosion on the slope and substantial sediment entering the

wetland.

WetlandErosion

Control

4-DD-046 9/1/07 Dean DiTommaso 265.00 Xan auger rig machine was parked overnight in wetland CO-W20. Additionally the

machine leaked oil, but the oil was confined to the surface of the mats.Wetland Other 10, 16

1C-ST-023 9/6/07 Steve Toman 68.45 XInspection of erosion controls above the Trib to Hauer Creek showed siltfence and

strawbales to be in poor repair, but repairs were made.Wetland

Erosion

Control9/6/07

1C-ST-023 9/6/07 Steve Toman XInspection of sheet piling activities in Wetland RE-W9 by Hauer Creek and Summit

Creek #1 found inadequate erosion controls present at Summit Creek.Waterbody

Erosion

Control

4-DD-048 9/8/07 Dean DiTommaso 251.00 XSpoil overwhelmed the siltfence in Wetland MQ-W15 resulting in spoil up to 4 feet

beyond the eastern edge of the permanent easement for a distance of roughly 10 feet.Wetland

Erosion

Control10, 16, 32

4-DD-048 9/8/07 Dean DiTommaso 251.00 XCrew in wetland MQ-W15 was dewatering in the wetland using a straw bale/silt fence

structure that was in disrepair.Wetland Dewatering 10, 16, 26, 78

4-DD-048 9/8/07 Dean DiTommaso 291.19 XAn ineffective waterbar at the Maunesha River (DA-S8) was breached resulting in

sediment entering the river.Waterbody

Erosion

Control

10, 16, 31, 39,

40

TOTALS 39 15 63 77 2 38 Average Days to Resolve:




Date Resolved

Days Out of

Compliance

1482

1/16/07 0

1/20/07 3

1/20/07 0

1/27/07 7

1/22/07 0

1/22/07 0

1/23/07 0

1/25/07 0

1/25/07 0

1472

1/26/07 0

1/27/07 0

1468

1/31/07 1




Date Resolved

Days Out of

Compliance

2/19/07 17

2/3/07 0

1463

2/13/07 1

1454

1454

2/14/07 0

1452

N/A

2/17/07 0

3/17/07 26

2/24/07 4

2/21/07 1

2/27/07 7

2/24/07 3

2/22/07 0

2/24/07 2




Date Resolved

Days Out of

Compliance

2/24/07 1

1440

1438

1435

3/5/07 0

3/6/07 1

1433

1431

1430

1429

3/17/07 8

1428

3/17/07 7

3/12/07 1

1427

3/11/07 0




Date Resolved

Days Out of

Compliance

1426

1426

1426

3/13/07 1

1426

1426

1426

1425

1425

1425

1425

3/17/07 4

5/4/07 52

1424

1424

1424

1424




Date Resolved

Days Out of

Compliance

1422

1421

1421

1419

1419

1419

1417

1416

1405

1405

4/19/07 2

1369

1368

1354

1353

1346

1345

1344

1333

1332

6/15/07 0

1331

6/15/07 0

6/19/07 0




Date Resolved

Days Out of

Compliance

6/20/07 0

6/21/07 0

6/23/07 1

6/29/07 3

N/A

7/2/07 0

7/2/07 0

7/5/07 0

1311

1311

1311

1311

1311

1303

1299

1299

7/19/07 0

7/23/07 0

7/23/07 0

7/23/07 0

7/24/07 0

1291




Date Resolved

Days Out of

Compliance

1289

N/A

1286

1284

N/A

1283

1282

1281

1279

1278

8/8/07 0

1276

8/10/07 0

1271

N/A

N/A

8/15/07 0

8/15/07 0

1270

1270

8/17/07 0

1268

1268

1267




Date Resolved

Days Out of

Compliance

1267

1267

1267

1265

1265

1265

N/A

1264

1264

1264

1263

1263

1262

1262

1262

1261

1261

1261

1261

N/A

1260

1258

1258

1257

1257

1257

1257

1257

8/28/07 0




Date Resolved

Days Out of

Compliance

1257

1257

1256

1256

1256

1256

1256

1255

1255

1255

1255

1255

1255

1255

1255

1255

1255

1255

1255

1255

1255

1255

1254

1253

0

4

2

2

2

Average Days to Resolve: 849.07

of 3 Generated on 02-05-2011 at 07:30 pm

Wisconsin Circuit Court Access (WCCA)State of Wisconsin vs. Enbridge Energy Limited Partnership

Dane County Case Number 2010CX000048Charge(s)/Sentence(s)

The Defendant was charged with the following offense:CountNo. Statute Cite Description Severity Offense

Date Plea

1 285.87(1) Violate Air Pollution Rules/Orders Forf. U 01-01-2001 Guilty on10-06-2010

On 10-06-2010 there was a finding of:Action Court OfficialGuilty Anderson, Peter C

On 10-06-2010 the following was ordered:Sentence Time Begin Date NotesForfeiture / Fine

Reopen charge on 02-01-2011On 02-01-2011 there was a finding of:Action Court OfficialGuilty Anderson, Peter C

On 02-01-2011 the following was ordered:Sentence Time Begin Date NotesForfeiture / Fine Fine for noncompliant fittings on tank 26.


Date Plea

2 285.60(1)(a)1 Construction of new stationary source without permit Forf. U 06-05-2007

On 10-06-2010 there was a finding of:Action Court OfficialOther Anderson, Peter C


Date Plea

3 440.285(6)(b)4 Failure to timely repair seals & report the repairs Forf. U 09-13-2007



Date Plea

4 420.03(5)(c)1 Failure to conduct timely internal floating roofinspections Forf. U 01-01-2008

Charge Details for 2010CX000048 in Dane County

Page 2 of 3 Generated on 02-05-2011 at 07:30 pm



Date Plea

5 IF3.a.(1) Failure to maintain compliant Stack Dimensions Forf. U 09-05-2007



Date Plea

6 440.285(3)(a)1 Failure to Maintain Compliant Seals on Tanksw/Internal Floating Roofs Forf. U 01-01-2001



Date Plea

7 440.285(3)(a)2 Noncompliant Operation of Automatic Bleeder Vents Forf. U 01-01-2001



Date Plea

8 440.285(3)(a)2 Ungasketed Fittings Forf. U 01-01-2003



Date Plea

9 I.A.1.C.(2) Failure to Maintain Current Tank Design Drawings &Documentation Forf. U 11-26-2007



Date Plea

10 I.A.1.a.(2)(a) Failure to Timely Complete Painting Forf. U 12-08-2008

Charge Details for 2010CX000048 in Dane County

Page 3 of 3 Generated on 02-05-2011 at 07:30 pm



Date Plea

11 285.69(2) Underpayment of Air Emission Fees Forf. U 01-01-2001


Investigation Under the National Energy Board Act

into the Death of Mr. Henri St. Pierre at the

Enbridge Pipelines Inc. Kerrobert Pump Station on

24 March 2008

February 2009

Permission to Reproduce

Materials may be reproduced for personal, educational and/or non-profit activities, in part or in whole and by any means, without charge or further permission from the National Energy Board, provided that due diligence is exercised in ensuring the accuracy of the information reproduced; that the National Energy Board is identified as the source institution; and that the reproduction is not represented as an official version of the information reproduced, nor as having been made in affiliation with, or with the endorsement of the National Energy Board. For permission to reproduce the information in this publication for commercial redistribution, please e-mail: [email protected] Autorisation de reproduction

Le contenu de cette publication peut être reproduit à des fins personnelles, éducatives et/ou sans but lucratif, en tout ou en partie et par quelque moyen que ce soit, sans frais et sans autre permission de l’Office national de l’énergie, pourvu qu’une diligence raisonnable soit exercée afin d’assurer l’exactitude de l’information reproduite, que l’Office national de l’énergie soit mentionné comme organisme source et que la reproduction ne soit présentée ni comme une version officielle ni comme une copie ayant été faite en collaboration avec l’Office national de l’énergie ou avec son consentement. Pour obtenir l’autorisation de reproduire l’information contenue dans cette publication à des fins commerciales, faire parvenir un courriel à : [email protected]

© Her Majesty the Queen in Right of Canada 2009 as represented by the National Energy Board

Cat No. NE23-148/2009E ISBN 978-1-100-11748-5

This report is published separately in both official languages. This publication is available upon request in multiple formats.

Copies are available on request from: The Publications Office National Energy Board 444 Seventh Avenue S.W. Calgary, Alberta, T2P 0X8 E-Mail: [email protected] Fax: 403-292-5576 Phone: 403-299-3562 1-800-899-1265

For pick-up at the NEB office: Library Ground Floor

Printed in Canada

© Sa Majesté la Reine du Chef du Canada 2009 représentée par l’Office national de l’énergie

No de cat. NE23-148/2009F ISBN 978-1-100-90744-4

Ce rapport est publié séparément dans les deux langues officielles. On peut obtenir cette publication sur supports multiples, sur demande.

Demandes d’exemplaires : Bureau des publications Office national de l’énergie 444, Septième Avenue S.-O. Calgary (Alberta) T2P 0X8 Courrier électronique : [email protected] Fax : 403-292-5576 Téléphone : 403-299-3562 1-800-899-1265

Des exemplaires sont également disponibles à la bibliothèque de l’Office (rez-de-chaussée)

Imprimé au Canada

Comments or questions regarding this report may be directed to Mr. Shane Richardson of the National Energy Board Operations Business Unit at (403) 299-3926 or to Ms. Kimberly Maddin of the National Energy Board Operations Business Unit at (403) 299-2763.

i

National Energy Board

Investigation under the National Energy Board Act into the Death of Mr. Henri St. Pierre at the Enbridge Pipelines Inc. Kerrobert Pump Station

on 24 March 2008

Table of Contents List of Tables ................................................................................................................................. ii List of Appendices......................................................................................................................... ii Executive Summary..................................................................................................................... iii 1. Introduction........................................................................................................................1 2. Abbreviations Used in This Report ..................................................................................1 3. Scope and Objectives of the Investigation under the NEB Act .....................................2 4. Incident Investigation Methodology.................................................................................3 5. The Incident........................................................................................................................5

5.1 Post-Incident Site Observations...............................................................................7

6. Applicable Procedures, Standards, Regulations and Legislation................................10 6.1 Enbridge Operations and Maintenance Manuals ...................................................10

6.1.1 Enbridge Operating and Maintenance Procedures Book 2 Safety.............10 6.1.1.1 Hazard Assessment .....................................................................10 6.1.1.2 Lockout .......................................................................................11 6.1.1.3 Electrical Safety ..........................................................................12 6.1.1.4 Personal Protective Equipment ...................................................14

6.2 The National Fire Protection Association Standard NFPA 70E............................14 6.3 Onshore Pipeline Regulations – 1999 (OPR-99) ...................................................14 6.4 Canadian Electrical Code CAN/CSA C-22 ...........................................................16

7. Analysis of Evidence ........................................................................................................16 7.1 Immediate Causes ..................................................................................................16

7.1.1 Pre-job Safety Meeting ..............................................................................16 7.1.2 Hazard Assessment, Safe Work Permit and Task Analysis.......................16 7.1.3 Electrical Equipment Isolation Clearance Form........................................17 7.1.4 Unlocking and Opening of Power Factor Capacitor Cell ..........................17 7.1.5 High Voltage Probe....................................................................................18 7.1.6 Horizontal Communication........................................................................18 7.1.7 Personal Protective Equipment ..................................................................19 7.1.8 Lock and Tag .............................................................................................19 7.1.9 Situational Awareness................................................................................19 7.1.10 Other Immediate Causes ............................................................................20

ii

7.2 Root Causes ...........................................................................................................20 7.2.1 Design ........................................................................................................20 7.2.2 Hazard Assessment, Safe Work Permit, Task Analysis ............................22 7.2.3 Electrical Equipment Isolation/Clearance Form........................................24 7.2.4 Safety Culture and Awareness ...................................................................26 7.2.5 Training......................................................................................................26 7.2.6 Personal Protective Equipment ..................................................................27

7.3 Other Contributing Factors ....................................................................................27 8. Summary...........................................................................................................................28 9. Areas for Corrective Action............................................................................................29

9.1 Corrective Actions Implemented by Enbridge ......................................................29 9.2 Corrective Actions Identified by the Board ...........................................................31

10. NEB Follow-up Requirements ........................................................................................31

List of Tables

Table 4.1: Enbridge Staff in Attendance at 25 March 2008 Investigation at Kerrobert Pump Station ...........................................................................................4

List of Appendices

Appendix I: Documentation and Evidence Gathered...........................................................35 Appendix II: DNV Systematic Causal Analysis Technique..................................................37 Appendix III: Appendix III: Sequence of Events Leading Up To the Incident......................43 Appendix IV: References........................................................................................................47

iii

Executive Summary

On 24 March 2008 Mr. Henri St. Pierre, an electrician employed by Enbridge Pipelines Inc. (Enbridge), died while carrying out electrical work at the Enbridge Kerrobert Pump Station near the town of Kerrobert, Saskatchewan. The National Energy Board conducted an investigation into this incident under the authority of the National Energy Board Act.

Immediately following the incident, Enbridge activated its emergency response procedures. The Board considers that the Enbridge response was quick, appropriate and effective for the nature of the incident and it demonstrated the effectiveness of the emergency training received by the Enbridge and Power Comm Inc. staff that were on-site at the time of the incident. The Board has no concerns about the emergency response conducted for this incident.

The Board notes the Final Autopsy Report and Final Toxicology Results dated 24 June 2008 from the Saskatchewan Ministry of Justice and Attorney General Office of the Chief Coroner (Saskatchewan Coroner). The Saskatchewan Coroner opines that contact with high voltage electricity, as reported in the case of Mr. St. Pierre, would result in essentially instantaneous cardiac arrest. Following the incident, Enbridge filed with the Board two summaries prepared by a medical expert retained by Enbridge. The summaries raise question as to the cause of death of Mr. St. Pierre and suggest that it may not have been the result of electrocution, as opined in the Saskatchewan Coroners report.

Nonetheless, the Board notes that the sequence of events leading up to the incident reveal several immediate errors that were committed prior to the incident, and the investigation revealed that there were several underlying root causes present in the Enbridge safety management system prior to the incident. These immediate and root causes had the effect of placing Mr. St. Pierre in a situation that put his personal safety at great risk immediately prior to his death. Where this report makes reference to the incident, it refers to the hazardous conditions to which Mr. St. Pierre was exposed immediately prior to his death but does not infer or conclude as to the cause of death. Other factors, while not considered to be immediate or underlying root causes, nonetheless contributed to the cause of the incident and are discussed below

The immediate causes related to this incident include:

• No pre-job safety meeting was conducted by Mr. St. Pierre or others involved with the work, as required by Enbridge Operations and Maintenance procedures.

• No hazard assessment of the work was conducted, and therefore no assessment of the need for a safe work permit or task analysis was done.

• No Electrical Equipment Isolation/Clearance form was completed as required by Enbridge Operations and Maintenance procedures.

• Mr. St. Pierre stood in front of the wrong power factor capacitor cell door when he asked Mr. Halter to unlock the door.

• Mr. St. Pierre entered the cell prior to Mr. Halter being able to correctly test the high voltage probe and sweep the inside of the cell.

• There was poor communication between Mr. Halter and Mr. St. Pierre.

iv

• Mr. St. Pierre was not wearing the required personal protective equipment.

• Mr. St. Pierre and Mr. Halter lacked situational awareness.

• Mr. St. Pierre did not conduct a flash test with a hot stick prior to entering the cell or use a hot stick to apply the safety grounds as required by the Enbridge Operations and Maintenance procedures.

The underlying root causes related to this incident include:

• The Hazard/Risk Category assigned by Enbridge to the power factor capacitor cells corresponds to a lower level of personal protective equipment than required in order to protect personnel from being injured from an arc flash.

• The hazard assessment, safe work permit and task analysis procedures were not consistently applied or clearly understood by the Enbridge workers involved in this incident.

• The Electrical Equipment Isolation/Clearance forms filed by Enbridge show that the form is not consistently applied or clearly understood by the Enbridge workers who completed the forms, including those workers involved in this incident.

• There is a lack of safety culture and awareness among the workers involved in this incident.

• There are weaknesses in the Enbridge safety training program provided to the workers involved in this incident.

• There is an inconsistent knowledge and practice among the Enbridge workers involved in this incident on the required personal protective equipment for electrical work.

Other contributing factors include:

• The design of the 4-ESB-1 electrical switchgear building, while meeting the Canadian Electrical Code design standards, provides limited visual guidance between corresponding motor starter cabinets and power factor capacitor cells and does not provide for interlocks between them.

• Identification labels on the starter cabinets and power factor capacitor cells were not conspicuous.

In order to address the immediate and root causes and other factors, the Board will require Enbridge to conduct the following corrective actions and report to the Board:

• Re-evaluate the hazard analysis and risk rating procedures in Enbridge Operations and Maintenance Procedures Book 2 Safety.

• Identify adaptations to the Enbridge Operations and Maintenance Procedures Book 2 Safety and assess the adaptations with the view to revising the procedures.

• Re-assess and revise existing training modules.

• Monitor the use of the Electrical Equipment Isolation/Clearance form and safe work permit procedures to verify correct use.

v

• Demonstrate how the Hazard/Risk Category number 0 was determined for the power factor capacitor cells in 4-ESB-1.

• Re-assess the Hazard/Risk Category number assigned to the cells.

• Evaluate the effectiveness of the hazard assessment process and the suitability of hazard controls.

• Examine the feasibility of installation of Kirk Key interlocks.

• Conduct an inventory of the starter cabinets and power factor capacitor cells currently not in use in 4-ESB-1 at Kerrobert and in ESBs on the Enbridge system in Canada.

• Assess the electrical switchgear design factors in consultation with the Enbridge electricians and area supervisors.

• Assess and redesign the warning labels on the outside of starter cabinets and cell doors.

• Review the Enbridge compliance monitoring initiatives.

• Assess the feasibility of applying changes made in the Kerrobert operations area to other locations on the Enbridge System where racking out and grounding is conducted.

• Report to the Board on the status of completion of the recommendations of the Enbridge investigation.

• Conduct an assessment of the indicators noted in section 7.2.4 of this report, identify any management system factors that underlie these indicators and develop appropriate corrective actions.

As Enbridge works toward addressing the findings identified in this investigation, the Board may require further corrective action from Enbridge or may make a decision or order as necessary in order to promote safe construction, operation and maintenance of the Enbridge system.

1

National Energy Board

Investigation under the National Energy Board Act into the Death of Mr. Henri St. Pierre at the Enbridge Pipelines Inc. Kerrobert Pump Station

on 24 March 2008

1. Introduction

On 24 March 2008 Mr. Henri St. Pierre, an electrician employed by Enbridge Pipelines Inc. (Enbridge), died while conducting electrical work at the Enbridge Kerrobert Pump Station near the town of Kerrobert, Saskatchewan. The death was reported by Enbridge to the Transportation Safety Board (TSB) and the TSB contacted the National Energy Board (Board or NEB). The NEB subsequently deployed two investigators to the Kerrobert Pump Station to conduct concurrent investigations under the National Energy Board Act (NEB Act or Act) and under the Canada Labour Code (CLC). This report presents the evidence, analysis, findings and recommendations of the investigation conducted under the NEB Act.

While the evidence strongly supports the argument that Mr. St. Pierre made contact with electricity, the Board does not make this determination, recognizing that no witness saw him make contact. The facts remain however, that the failures in the Enbridge management system placed Mr. St. Pierre in a very hazardous situation, with a very high potential for making contact with electricity and for receiving serious injury or the loss of his life. Where this report makes reference to the incident, it refers to the hazardous conditions to which Mr. St. Pierre was exposed immediately prior to his death but does not infer or conclude as to the cause of death.

2. Abbreviations Used in This Report

Abbreviation Term or definition

4-ESB-1 Electrical switchgear building 4-ESB-1 located at the Enbridge Kerrobert pump station. Book 2 The Enbridge Operating and Maintenance Procedures Book 2 Safety, version

including updates to 1 December 2007. CLC Canada Labour Code CPR Cardiopulmonary resuscitation DNV Det Norske Veritas ECC Enbridge Control Centre EHS Environment, Health and Safety Enbridge Enbridge Pipelines Inc. ESB Electrical switchgear building HRC Hazard/Risk Category kv kilovolt NEB Act or Act National Energy Board Act NEB or Board National Energy Board OPR-99 Onshore Pipeline Regulations - 1999 PLM Pipeline Maintenance Power Comm Power Comm Inc. PPE Personal protective equipment, including high voltage personal protective equipment. Project Enbridge Southern Access Expansion project stages 2A and 2B RCMP Royal Canadian Mounted Police ROW Right of way SWP Safe Work Permit TSB Transportation Safety Board

2

3. Scope and Objectives of the Investigation under the NEB Act

The scope of the NEB investigation into this incident was restricted to the Board’s mandate as set out in the NEB Act. A concurrent investigation was conducted pursuant to the CLC by a NEB staff member designated as a Health and Safety Officer under the CLC. The NEB staff members conducting the concurrent investigations jointly gathered evidence and conducted site visits and interviews related to the incident. However, the analysis of the evidence, determination of findings and recommendations were conducted independently pursuant to the provisions of the respective legislation. While reference is made in this report to certain requirements of the CLC, no analysis, findings or recommendations are made pursuant to that legislation.

Certain sections of the NEB Act set out the authority of the Board to inquire into any incident and to make regulations as to safety. Section 12 of the NEB Act sets out the jurisdiction of the Board:

12. (1) The Board has full and exclusive jurisdiction to inquire into, hear and determine any matter

(a) where it appears to the Board that any person has failed to do any act, matter or thing required to be done by this Act or by any regulation, certificate, licence or permit, or any order or direction made by the Board, or that any person has done or is doing any act, matter or thing contrary to or in contravention of this Act, or any such regulation, certificate, licence, permit, order or direction; or

(b) where it appears to the Board that the circumstances may require the Board, in the public interest, to make any order or give any direction, leave, sanction or approval that by law it is authorized to make or give, or with respect to any matter, act or thing that by this Act or any such regulation, certificate, licence, permit, order or direction is prohibited, sanctioned or required to be done.

(1.1) The Board may inquire into any accident involving a pipeline or international power line or other facility the construction or operation of which is regulated by the Board and may, at the conclusion of the inquiry, make

(a) findings as to the cause of the accident or factors contributing to it;

(b) recommendations relating to the prevention of future similar accidents; or

(c) any decision or order that the Board can make.

(2) For the purposes of this Act, the Board has full jurisdiction to hear and determine all matters, whether of law or of fact.

In light of the authority of the Board set out under subsection 12.(1) of the Act, the objectives of the NEB investigation are to: gather all evidence related to the incident; conduct an analysis of the evidence; make findings as to the cause of the incident or factors contributing to it; make

3

recommendations relating to the prevention of future similar incidents; and make any decision or order the Board can make, as appropriate, to prevent similar incidents from occurring.

Section 48(2) of the Act also allows that the Board may make regulations as to safety:

(2) The Board may, with the approval of the Governor in Council, make regulations governing the design, construction, operation and abandonment of a pipeline and providing for the protection of property and the environment and the safety and security of the public and of the company's employees in the construction, operation and abandonment of a pipeline.

The requirements of the Onshore Pipeline Regulations, 1999 (OPR-99), in respect to operations and maintenance manuals, safety procedures and training are discussed in section 6.3 of this report.

4. Incident Investigation Methodology

The NEB investigation included the following components:

a) Site observation, photographs and information gathering.

b) Interviews.

c) Documentation.

d) Information Requests.

e) Analysis of evidence.

f) Determination of findings.

g) Recommendations.

h) Report.

i) Follow-up.

On 25 March 2008 the NEB investigators conducted a site visit to the Enbridge Kerrobert Pump Station. The investigators met with Enbridge personnel, underwent the Enbridge safety orientation and then with Enbridge personnel in attendance, inspected the incident site within the 4-ESB-1 electrical switchgear building (4-ESB-1). Photographs were taken inside the 4-ESB-1, some of which are included in this report. Investigators also conducted interviews with witnesses who were inside the 4-ESB-1 at the time of the incident; including Enbridge electrician Mr. Jordan Halter and Power Comm Inc. (Power Comm) employees Mr. Ron Horak, Mr. Ron Grove and Mr. Graham Taylor. Investigators also met with and received information from other Enbridge personnel at the Kerrobert pump station including those listed in the table below.

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Table 4.1: Enbridge Staff in Attendance at 25 March 2008 Investigation at Kerrobert Pump Station

Name Position

Rolf Matsson, P.Eng. Sr. Electrical Engineer, Engineering Services

Dale Burgess, P.Eng. General Manager, Western Region

Stephen J. Wuori Executive Vice President, Liquids Pipelines

Ab Mouallem, P.Eng. Manager, Regional Services and Development Western Region

Michael P. Koby Director, Operations Services for Liquid Pipelines

C. D. (Craig) Sluser, CRSP Senior Safety Coordinator Canadian Operations

Jim Veronelly Maintenance Coordinator, Kerrobert Station

Leon Zupan Vice President Operations

Mr. Art Nordholm, an investigator from the Transportation Safety Board (TSB), was also in attendance at the pump station on 25 March 2008. After a preliminary assessment of the facts surrounding this incident, the TSB determined that it would not conduct an investigation since the incident appeared to be related to occupational safety and health issues and not to a systemic problem posing a threat to public safety, property or the environment. The NEB was therefore able to conduct a full investigation pursuant to the NEB Act.1

The investigators re-visited the Kerrobert Pump Station on 25 June 2008 in order to conduct follow-up interviews and gather additional information. Investigators met with Mr. Jordan Halter, Mr. Jim Veronelly, Mr. Dan Tischler, Ms. Tamara Trull and Mr. Ab Mouallem.

Information Request No. 1 was sent to Enbridge on 7 May 2008 and the Enbridge reply to Information Request No. 1 was filed with the Board on 28 May 2008. Information Request No. 2 was sent to Enbridge on 27 June 2008 the Enbridge reply to Information Request No. 2 was filed with the Board on 17 July 2008. For ease of reference in this report, the Enbridge responses to Information Request No. 1 will be in the numbering format “IR1-xx” and the Enbridge responses to Information Request No. 2 will be in the numbering format “IR2-xx”.

A listing of the documentation and evidence received during the investigation is provided in Appendix I.

1 The Transportation Safety Board (TSB) is an independent agency created to advance transportation safety through the

investigation of occurrences associated with the operation of an aircraft, a ship, a pipeline or rolling stock on a railway to determine cause and contributing factors. If the TSB investigates an occurrence associated with the operation of a pipeline, the NEB can only investigate that occurrence for reasons other than determining cause and contributing factors. In that instance, the NEB would co-ordinate its investigation through the TSB.

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The overall NEB investigation was guided by the procedures established under the Det Norske Veritas (DNV)2 investigation methodology. The DNV loss causation model shows that incidents typically do not occur as a result of one clear factor, but are the result of multiple factors and underlying latent conditions. An incident event will most often occur because of lack of control, underlying root causes and immediate causes which lead to the incident and result in unintended harm or damage (DNV, 2003). The loss causation model was used to guide the NEB investigation towards identification of the factors that contributed to the incident and what must be done to control the causes.

The analysis of the evidence related to the incident was further guided by use of the DNV systematic causal analysis technique. The DNV systematic causal analysis technique is a method of examination and processing of evidence which leads to identification of problems and their significance, and the development of appropriate remedial measures. The analysis is based on the facts of the incident and, where appropriate, on reasonable assumption. The analysis is iterative as the evidence is refined and tested. The DNV causal analysis of the evidence is presented in table format in Appendix II.

5. The Incident

The Enbridge Southern Access Expansion project stages 2A and 2B (Project) were approved by Board Order XO-E101-01-2007 on 25 January 2007. The Project includes the upgrade of four mainline pumps and the addition of one booster pump at the Enbridge Kerrobert pump station. As part of the Kerrobert station pump upgrades, the Unit 4-U-3 pump was to be replaced by a unit with higher horsepower. Prior to removing the Unit 4-U-3 pump, it first needed to be electrically isolated by racking out (switching off) the unit from the 4160 volt power supply and then grounding to eliminate any residual electricity that may be present in the unit. Prior to racking out, the electrical equipment within any of the power factor capacitor cells in use in 4-ESB-1 would be electrically live, carrying 4160 volts. Racking out and grounding was to be conducted by Enbridge electricians on 24 March 2008 from within building 4-ESB-1.

On 24 March 2008 prior to Enbridge personnel and contractors beginning work for the day, Enbridge personnel and contractors conducted a morning meeting at the Enbridge Kerrobert pump station in order to discuss the work schedule and assignments for the week. Mr. Halter and Mr. St. Pierre were present at the meeting. Mr. Halter was originally scheduled to go to Herschel station however, the Maintenance Coordinator asked Mr. Halter to rack out Unit 4-U-3 for a planned outage.

Approximately 15 to 20 minutes after the morning meeting Mr. Halter was in building 4-ESB-1 where he confirmed that pump Unit 4-U-3 was placed on local control. Mr. Halter then racked out and placed a lock on the unit starter for pump Unit 4-U-3, thereby electrically isolating Unit 4-U-3, including the Unit 4-U-3 power factor capacitor cell.

Mr. Halter left building 4-ESB-1 and proceeded towards the storage shed in order to locate a set of safety grounds. He met with Mr. St. Pierre outside building 4-ESB-1 where Mr. St. Pierre had 2 Det Norske Veritas (DNV) is an independent and autonomous worldwide foundation whose objective is to safeguard

life, property and the environment. DNV provides assistance to organizations through training, consultancy, research and development in loss control management, including incident investigation.

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indicated that he too had been unable to locate grounding cables but that he had found a set that would suffice for the grounding work to be done inside building 4-ESB-1. Mr. Halter and Mr. St. Pierre then entered building 4-ESB-1 where they quickly located grounding cables lying on the floor in a corner of the building. Mr. St. Pierre picked up the grounding cables and they both went to the row of power factor capacitor cells.

Mr. Halter commenced a test of the high voltage probe that was to be used to sweep the inside of the Unit 4-U-3 power factor capacitor cell to check for the presence of electrical energy. The sweep is a safety precaution taken before conducting any work within the cell. The voltage probe test involves turning the probe on, setting the appropriate voltage level on the probe, and then holding it in close proximity to a known energized electrical source, in this case the overhead fluorescent lighting (photo 5.2). The probe detects the electric field surrounding the alternating current potential. A successful test of the probe results in a constant audible alarm tone being emitted from the probe while it is held near the known energized source. As the probe is moved away from the known energized source, the constant alarm tone will change to an intermittent tone. If no electrical energy is present, the probe will emit an intermittent tone throughout the test.

Mr. Halter stated to Mr. St. Pierre that he was having difficulty with the test of the voltage probe. Mr. St. Pierre stood in front of a power factor capacitor cell door and as he was still holding the cables he asked Mr. Halter to unlock the door. Mr. Halter unlocked the door that Mr. St. Pierre was standing in front of, and resumed his test of the voltage probe. Mr. Halter could not obtain the appropriate audible tone from the probe and he indicated this to Mr. St. Pierre. In his statement Mr. Halter said “I continued to test the high voltage tester. I held it up to a light, it did not alarm. Henri opened the door. I told him the high voltage tester was not picking up the light.” Mr. St. Pierre acknowledged Mr. Halter by giving him “a look” (statement of Mr. Halter dated 25 March, 2008).

Mr. St. Pierre then opened the unlocked power factor capacitor cell door. Mr. Halter did a sweep inside the cell with the voltage probe which did not emit the appropriate signal indicating the presence of electrical energy. Mr. Halter then proceeded to turn his back to Mr. St. Pierre in order to continue testing the probe by holding it up to the overhead lighting. Mr. Halter did not expect that Mr. St. Pierre would enter the cell. In his statement to the NEB investigators Mr. Halter said “I heard an arc, just a quick buzz and saw Henri back out and looked like he had the wind knocked out of him.” In his statement to the RCMP Mr. Halter said “I did not see Henri enter the cell, I just heard the arc”. In his written statement Mr. Ron Grove said “I heard a bang and turned around. The Enbridge employee staggered back from the equipment”. In his interview statement to the NEB investigators Mr. Ron Grove said he “had his back turned and didn’t see anything, heard the bang, an out of the ordinary sound”. In his interview statement to the NEB investigators Mr. Graham Taylor said “could see their heads and see them checking for voltage and heard the bang/pop and smelled smoke and saw the cell door hit, like Henri walked into it”.

After hearing the arc, Mr. Halter turned to face Mr. St. Pierre. Mr. St. Pierre stood away from the cell briefly, then fell to one knee and collapsed. One part of the grounding cables was inside the cell.

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Immediately after Mr. St. Pierre collapsed, Mr. Halter and other Enbridge and Power Comm employees initiated an emergency response. Mr. Halter immediately moved Mr. St. Pierre to a safe location away from the power factor capacitor cell and initiated cardiopulmonary resuscitation (CPR). A Power Comm worker shouted “man down”, a phone call was made to 911, the station alarm was sounded, workers were evacuated to muster points and the local emergency services arrived within approximately 25 minutes of Mr. St. Pierre being injured. When other Enbridge staff entered the 4-ESB-1 Mr. Halter noticed that the door to Unit 4-U-2 power factor capacitor cell was open, and not the door to Unit 4-U-3. Mr. Halter then made the scene safe for the emergency responders by calling the control centre to shut off power from Unit 4-U-2, racking out the starter for Unit 4-U-2, donning safety gloves, removing part of the grounding cable from Unit 4-U-2 and closing the door to Unit 4-U-2.

The table provided in Appendix III outlines the sequence of events leading up to the incident and the response actions immediately following the incident, as based on the evidence gathered from the investigation.

5.1 Post-Incident Site Observations

The Board notes that the emergency response actions of the Enbridge and Power Comm staff involved in the incident was conducted generally in accordance with the Enbridge emergency response procedures. The Board considers that the response was quick, appropriate and effective for the nature of the incident and it demonstrated the effectiveness of the emergency training received by the Enbridge and Power Comm staff. The Board has no concerns about the emergency response for this incident.

The investigators conducted a site visit with Enbridge personnel wherein several photographs of the scene were taken. Several of these photographs are provided here to assist in clarifying the events leading up to the incident.

Photo 5.1 shows the bank of five unit starters left undisturbed immediately following the incident as required by section 127(1) of the CLC. The unit starters are numbered from 4-U-1 to 4-U-5 in sequence from left to right. The photo shows that starters 4-U-2 and 4-U-3 are in the racked out position (indicated by the red levers in the down position). A lock is applied to starter 4-U-3; however a lock is not applied to starter 4-U-2 due to the emergency nature of racking out this starter immediately following the incident. Starters 4-U-4 and 4-U-5 are extra starters, which were not in use and not connected to equipment at the time of the incident.

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Photo 5.1: Unit starters located in 4-ESB-1 building.

Photo 5.2 shows the relative positions of the five unit starters (left) and the five power factor capacitor cells (right). The grounding cables in use at the time of the incident can be seen lying on the floor in front of the power factor capacitor cells. Also seen in the photo is the overhead lighting that was used by Mr. Halter to test the function of the voltage probe prior to conducting a sweep inside the cell with the probe.

Photo 5.2: Unit starters and power factor capacitor cells.

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Photo 5.3 shows the bank of five power factor capacitor cells. The power factor capacitor cells are numbered from 4-U-1 to 4-U-5 in sequence from left to right.

Photo 5.3: Power factor capacitor cells.

Photo 5.4 shows the inside of power factor capacitor cell 4-U-2. The metal bus bars are labeled A, B and C. After racking out the unit, grounding is accomplished by connecting the three tail ends of the grounding cables to the three bus bars and then the lead end of the grounding cables to a ground point.

Photo 5.4: inside of power factor capacitor cell 4-U-2.

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Photo 5.5: Warning labels on outside of door to power factor capacitor cell 4-U-3. The labeling is common to all power factor capacitor cells in 4-ESB-1.

On 2 July 2008 the Board received copies of the Final Autopsy Report and Final Toxicology Results for Mr. St. Pierre dated 24 June 2008 from the Saskatchewan Ministry of Justice and Attorney General. The Final Autopsy Report states that electrical burns were present on parts of the left hand and opines that contact with high voltage electricity, as reported in the case of Mr. St. Pierre, would result in essentially instantaneous cardiac arrest.

6. Applicable Procedures, Standards, Regulations and Legislation

There are several industry standards, company procedures, Acts and Regulations that apply to Enbridge Pipelines Inc. and that are in place to ensure the health and safety of the company’s employees. While the CLC applies in this case, it is not necessary to discuss the requirements of the CLC in this report as those requirements will be addressed through the CLC investigation and report. The regulations and legislation that apply include the National Energy Board Act and the Onshore Pipeline Regulations – 1999.

6.1 Enbridge Operations and Maintenance Manuals

The Enbridge Operations and Maintenance manuals undergo periodic revision and updating. For the purposes of the investigation, the manuals and procedures described below are those that were in place at the time of the incident.

6.1.1 Enbridge Operating and Maintenance Procedures Book 2 Safety

6.1.1.1 Hazard Assessment

The Enbridge Operating and Maintenance Procedures Book 2 Safety (Book 2) tab 3 sets out the company requirements for conducting a hazard assessment and completion of a safe work permit for work activities at facilities and on the right-of-way.

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Book 2 states that before work begins regions are responsible for:

• Ensuring affected workers are trained in:

a) hazard identification and assessment; and

b) selection and use of personal protective equipment (PPE);

• Conducting a risk assessment of the work activity;

• Where reasonably practicable, involving all workers associated with the work activity in the risk assessment.

As described in Book 2, the hazard assessment process includes the following steps. A risk rating is determined using Figure 1 Book 2 -03-02-01 page 6-7. If the risk rating is determined to be less than 4, the risk is considered low and the task may be completed immediately. A risk rating of 4 to 16 is considered high and a safe work permit must be completed for the work prior to the task being undertaken. Where a safe work permit is required, it is to be completed prior to commencement of the work.

Book 2 requires that hazard assessments must be performed for all high risk activities and must be documented through the completion of a safe work permit; exemptions must be approved by the regional manager at their discretion (Book 2, 03-02-01, page 2-7).

Book 2 also states that the safe work permit is verification that a hazard assessment has been completed and that permit approvers and issuers must not approve or issue any safe work permit until the scope of the work has been (a) defined in sufficient detail to ensure all hazards are identified and controlled, and (b) reviewed with the permit issuer for accuracy, and all potential hazards and controls have been identified. The permit receiver is responsible for reviewing hazards and controls with affected workers and ensuring requirements on the permit are followed.

6.1.1.2 Lockout

Enbridge Book 2, 06-03-01 indicates that lockout is required when there is a risk of unexpected release of stored energy, be it electrical, mechanical, pneumatic or hydraulic. The standard procedures are as follows:

1 Identify and locate all potential energy sources to be isolated

2 Notify affected workers

3 Shut down operating equipment

4 Isolate equipment from its energy source by operating the switch, valve or other energy isolating device

5 Relieve, disconnect or restrain potentially hazardous stored or residual energy

6 Lock and tag the equipment

7 Verify the lockout by confirming that energy sources have been isolated and locked out

8 Proceed with maintenance.

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If the lockout involves electrical equipment, use the Electrical Equipment Isolation/Clearance form where required.

Enbridge Book 2, 07-03-02 also includes steps for lock and tag of High Voltage Equipment. Under the Unit Motor/Unit Pump procedure (page 7-8), step 7 requires a lock and tag upon isolation of the high voltage equipment.

6.1.1.3 Electrical Safety

For high voltage work Book 2 requires that a pre-job meeting be conducted to review potential hazards associated with the work, work procedures, personal protective equipment and safe clearance distances.

Book 2, tab 7 Electrical Safety provides a standard procedure for de-energizing or switching high voltage equipment and several specific procedures for work on various pumps and other electrical equipment. For the racking out and grounding of Unit 4-U-3 the standard procedure and the Unit Motor/Unit Pump procedure would apply (Mr. Veronelly interview). The Standard procedure sets out the following numbered steps:

1 Complete the Electrical Equipment Isolation/Clearance form.

2 Coordinate pending power shutdown with affected users.

3 Review what circuits or cutouts will be switched.

4 Review what circuits or cutouts will be locked out.

5 Identify potential hazards located near the work area (make a single line sketch of the circuit if one is not available.).

6 Ensure all onsite personnel involved in the work sign the form.

7 Shed major loads on the circuit.

8 Lockout necessary equipment.

9 Test for potential.

10 Apply safety grounds.

11 Complete work.

12 Check for clearance of tools and personnel.

13 Remove safety grounds.

14 Ensure all electricians involved with the work initial the form.

15 Ensure the person in charge signs off the form.

16 Re-energize the equipment.

The Unit Motor/Unit Pump procedure sets out the following numbered steps:

1 For electrical maintenance, complete the Electrical Equipment Isolation/Clearance form.

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2 Notify the Control Center, site supervisor, and line operators stating the reason and probable length of time that the unit will be out of service.

a. If the lockout will affect throughput or is part of a major repair, also notify Operations management.

3 Verify off status by checking the motor amps and the breaker/contactor (both contactors if equipped with variable frequency drive [VFD]).

4 Position selector switches to LOCAL and OFF.

5 Press the STOP button

6 Open isolation switch completely; rack out a screw-in type breaker to the test position

7 Lock and tag

8 Visually inspect stabs, shutters and/or indicating levers to ensure an open condition

9 For electrical maintenance:

a. Test circuit conductors with a high-voltage detector on a hot stick

b. Apply safety grounds to conductors

c. Shut off breakers for suction and discharge valves; lock and tag

10 For mechanical maintenance:

a. Close, chain, lock and tag the unit suction and discharge valves

b. Verify isolation and shut off, lock and tag the valve breakers

11 Shut off drain line heaters, and lock and tag as required

12 Shut off motor cooling fan breaker, and lock and tag as required

13 Shut off lube oil pump breaker, and lock and tag as required

14 Disconnect and remove RTDs as required.

a. When air is vapour free, disconnect wires by separating and insulating one wire at a time, avoiding contact with ground.

15 For mechanical maintenance:

a. Drain pressure from pump.

b. Close and isolate the valve used to drain pressure.

c. Observe gauges for any pressure build up.

16 Return the unit to service.

The Electrical Equipment Isolation/Clearance form is completed in stages during the completion of the work. Part of the form applies to the issuance of the clearance prior to transfer of the work to contractors. The form is fully completed at the point of surrender of the clearance and the final check before energizing the equipment. The form also includes a flow diagram of the main tasks associated with the electrical work. The flow diagram leads the electrician(s) through a step by step review of the work.

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6.1.1.4 Personal Protective Equipment

Book 2, tab 3 states that regions are responsible for:

• Ensuring affected workers are trained in:

a) hazard identification and assessment; and

b) selection and use of PPE;

Book 2, tab 13 sets out the Enbridge requirements for personal protective equipment to be worn by employees during the course of work where hazards may be present. For the task of racking out and grounding Unit 4-U-3 conducted by Mr. Halter and Mr. St. Pierre, the minimum PPE required to be worn includes hard hat, safety glasses, fire retardant long sleeve shirt, fire retardant pants and safety footwear. Where work takes place within electrical approach boundaries as defined in the National Fire Protection Association NFPA 70E, certain additional high voltage protective equipment must be worn, as discussed below in section 6.2

6.2 The National Fire Protection Association Standard NFPA 70E

The National Fire Protection Association Standard 70 E (NFPA 70E) addresses the electrical safety requirements for the practical safeguarding of employees in the work place.3 In its Operations and Maintenance Procedures, Enbridge has adopted the NFPA 70E as the standard for electrical safety that it will apply to electrical work on its system.

Article 130 and Annex D of NFPA 70E provides for Flash Hazard Analysis and calculation of the Flash Protection Boundaries and incident energy for electrical equipment and tasks. Table 130.7(C)(9)(a) of NFPA 70E outlines Hazard/Risk Category (HRC) classifications for various tasks conducted on electrical equipment. The HRC classifications are then applied in Table 130.7(C)(10) to determine the appropriate PPE to be worn while conducting tasks on electrical equipment. The task of applying safety grounds ranges from classification HRC-2 for 600 volt class switchgear to HRC-4 for metal clad switchgear, 1 kilovolt (kv) and above, assuming the equipment is energized and work is done within the flash protection boundary.

Table 130.7(C)(10) of NFPA 70E requires that, when working on energized equipment with a HRC-0, protective clothing and equipment will include long sleeve non-melting shirt and pants and safety glasses. However, voltage rated gloves are not required to be worn. HRC-2 to HRC-4 requires that leather gloves be worn as well as the use of other high voltage protective equipment over and above that required for HRC-0.

6.3 Onshore Pipeline Regulations – 1999 (OPR-99)

The Onshore Pipeline Regulations - 1999 (OPR-99), brought into force 1 August 1999, governs the design, construction, operation and abandonment of a pipeline and provides for the protection

3 The National Fire Protection Association (NFPA) is an organization in the United States of America and is responsible

for the creation and maintenance of standards for fire prevention, suppression, training and equipment, including standards for electrical safety.

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of property and the environment and the safety of the public and of a company’s employees during the construction, operation and abandonment of the pipeline.

Among other matters, some of the key related sections of the OPR-99 with regards to the Enbridge incident are as follows:

27. A company shall develop, regularly review and update as required, operation and maintenance manuals that provide information and procedures to promote safety, environmental protection and efficiency in the operation of the pipeline and shall submit them to the Board when required to do so.

28. A company shall inform all persons associated with operation activities on the pipeline of the practices and procedures to be followed and make available to them the relevant portions of the operation and maintenance manuals.

31. (1) A company shall develop a maintenance safety manual and shall submit it to the Board when required to do so.

(2) The company shall keep a copy of the maintenance safety manual or the relevant parts of it at each maintenance site of the pipeline, in a location where it is accessible to every person engaged in maintenance at the site.

36. A company shall

(a) maintain communication facilities for the safe and efficient operation of the pipeline and for emergency situations;

(b) periodically test instruments and equipment at the pipeline stations to verify their proper and safe operation;

46. (1) A company shall develop and implement a training program for any employee of the company who is directly involved in the operation of the pipeline.

(2) The training program shall instruct the employee on

(a) the safety regulations and procedures applicable to the day-to-day operation of the pipeline;

(b) responsible environmental practices and procedures in the day-to-day operations of the pipeline;

(c) the procedures for the proper operation of the equipment that the employee could reasonably be expected to use; and

(d) the emergency procedures set out in the manual developed under section 32 and the procedures for the operation of all emergency equipment that the employee could reasonably be expected to use.

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(3) The company shall use reasonable efforts to ensure that any employee who attends a training program has a working knowledge of the subject-matter of the program at the end of the program.

47. A company shall develop and implement a safety program to anticipate, prevent, manage and mitigate potentially dangerous conditions and exposure to those conditions during all construction, operation and emergency activities.

6.4 Canadian Electrical Code CAN/CSA C-22

The Canadian Electrical Code CAN/CSA C-22 sets the standard for the installation and proper maintenance of electrical equipment in Canada. Given that the work underway by Mr. St. Pierre and Mr. Halter at the time of the incident was not related to new electrical installation or maintenance, the Canadian Electrical Code CAN/CSA C-22 does not apply. However, the standard did apply to the original design and installation of the panel boards and equipment at the Enbridge Kerrobert station, and will apply to any future maintenance or technical modifications of the panel boards.

7. Analysis of Evidence

Examination of the evidence gathered shows that immediate causes and unsafe acts occurred immediately preceding the incident, and root causes (underlying conditions, lack of control and management system causes) were present prior to the incident occurring. Further, other factors were present that, while not considered to be either immediate or root causes, nonetheless had a role in contributing to the incident. The following is a discussion of the immediate and root causes identified through the causal analysis presented in Appendix II and a discussion of other contributing factors to the incident.

7.1 Immediate Causes

7.1.1 Pre-job Safety Meeting

A pre-job safety meeting was not conducted by Mr. St. Pierre and Mr. Halter prior to commencing the racking out and grounding of Unit 4-U-3, as required by Book 2, tab 07-02-02, page 1-3. Nor did the morning meeting conducted by Enbridge staff address the safety aspects of the racking out and grounding of Unit 4-U-3. Book 2 states that the purpose of the pre-job meeting is to review the potential hazards, work procedures, PPE and safe clearance distances. Had a pre-job meeting been conducted in accordance with the Book 2 requirements, with the participation of both Mr. Halter and Mr. St. Pierre, it is reasonable to suppose that potential hazards would have been identified, work procedures reviewed, PPE identified and safe clearances reviewed.

7.1.2 Hazard Assessment, Safe Work Permit and Task Analysis

Mr. St. Pierre and Mr. Halter did not conduct a risk assessment of the work activity before commencement of the racking out and grounding of Unit 4-U-3, as required by Book 2, tab 3.

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This would have determined a risk rating for the work and whether or not a safe work permit would be required. In response to IR1-18a Enbridge stated that a formal risk rating was not conducted for this activity and that some employees understood that a task analysis was required for open system and hot work activities but not for what they considered routine tasks such as racking out and grounding equipment. The Board notes that since a risk rating was not determined, it was not known by Mr. Halter and Mr. St. Pierre whether the work was categorized as high risk or low risk, and therefore whether or not a safe work permit and a task analysis were required to be completed prior to the work commencing.

Although determination of the risk rating would not necessarily have resulted in the completion of the safe work permit or task analysis, the Board considers that not conducting the risk assessment was an unsafe act which reduced the ability of Mr. Halter and Mr. St. Pierre to evaluate the risks associated with the work and the controls to put in place to address the hazards. Further, the Board notes the inconsistent practice and uncertainty among the Enbridge employees in the Kerrobert area around the need for conducting the risk rating, safe work permit and task analysis.

7.1.3 Electrical Equipment Isolation Clearance Form

An Electrical Equipment Isolation/Clearance Form was not completed for the electrical isolation and grounding of Unit 4-U-3 prior to the work commencing, as required by Enbridge Book 2, tab 7 Electrical Safety procedures (Standard, 07-03-01 page 2-8 and Unit Motor/Unit Pump, 07-03-01, page 7-8) and as required by a written statement on the form itself. The Board notes that the Electrical Equipment Isolation/Clearance Form used by Enbridge includes a schematic diagram for planning the work, a box for identifying potential hazards near the work area, and a table titled “Isolation Procedure Steps”.

The Board finds that had the appropriate sections of the Electrical Equipment Isolation/Clearance Form been completed and signed by the person in charge of the work prior to the work commencing, Mr. Halter and Mr. St. Pierre would have had a greater opportunity to plan the work, identify the steps to be taken, identify potential hazards associated with the work area and put appropriate controls in place. While it cannot be known if completion of the form would have prevented the incident, the Board believes that if done, this step would have significantly narrowed the potential for an incident to occur.

7.1.4 Unlocking and Opening of Power Factor Capacitor Cell

Mr. St. Pierre stood in front of the wrong power factor capacitor cell door when he asked Mr. Halter to unlock the door. Neither Mr. St. Pierre nor Mr. Halter observed the door number plate and they did not confirm that they were opening the correct power factor capacitor cell. The Board notes that by standing in front of the 4-U-2 cell door, Mr. St. Pierre provided a visual cue to Mr. Halter when he asked Mr. Halter to unlock the door. The Board finds it reasonable that Mr. Halter would unlock the door in front of which Mr. St. Pierre was standing. These unsafe acts were unintentional errors, unconsciously committed while conducting a routine task.

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7.1.5 High Voltage Probe

Mr. Halter was not familiar with the operation of the high voltage probe that he used at the time of the incident, and therefore was unable to correctly conduct a test of the probe and a sweep of the cell. Mr. St. Pierre entered the cell with the grounding cables prior to receiving confirmation from Mr. Halter that the high voltage probe was operating correctly and prior to the cell being swept with the probe in its proper operating mode. Enbridge provided training to its electricians on the types of high voltage probes that it uses, however, this training did not include instructions on the correct operation of the probes. It was confirmed by Enbridge following the incident that the high voltage probe in use by Mr. Halter was in proper working order.

The Board notes that Enbridge provided training to Mr. Halter and Mr. St. Pierre in the use of safety equipment such as fire extinguishers, respiratory protective equipment, gas detectors, PPE and mobile radios. The Board considers a voltage probe to be an essential piece of safety equipment, such as those noted above, and therefore the proper use of high voltage probes should be included in an Enbridge training module. Section 46 of the OPR-99 requires companies to provide training to their employees on equipment that they could reasonably be expected to use. The Board expects that Enbridge will ensure that training on the correct operation of high voltage probes is provided to its employees that use the high voltage probes, in accordance with the requirements of the OPR-99.

7.1.6 Horizontal Communication

The evidence shows there was a lack of horizontal communications between Mr. St. Pierre and Mr. Halter at the time of the incident regarding the use of the high voltage probe. Mr. Halter told Mr. St. Pierre that the voltage probe was not working properly, whereas Mr. St. Pierre did not verbally respond but gave Mr. Halter “a look”. In his statement Mr. Halter said “I continued to test the high voltage tester. I held it up to a light, it did not alarm. Henri opened the door. I told him the high voltage tester was not picking up the light.”.

There was a lack of horizontal communications regarding roles and the use of PPE. The Enbridge Safety Manual sets out the PPE requirements for employees. Mr. St. Pierre should have been wearing a hard hat in order to be inside the 4-ESB-1 building. Further, in his statement to the NEB investigators, Mr. Halter said that initially he did not know that Mr. St. Pierre would be assisting in this job and that he and Mr. St. Pierre did not discuss the job. He also stated that Mr. St. Pierre should have been wearing hard hat, safety glasses and gloves. However, Mr. Halter and Mr. St. Pierre met outside the 4-ESB-1, they entered the 4-ESB-1, Mr. St. Pierre stood in front of the cell door while holding a set of safety grounds, he asked Mr. Halter to unlock the door, Mr. Halter unlocked the door, Mr. St. Pierre opened the door and Mr. Halter did a sweep with the voltage detector. At this point Mr. St. Pierre was fully participating in the work without wearing the minimum required PPE. Although Mr. Halter was initially unaware that Mr. St. Pierre was to assist him that day, the grounding task commenced with Mr. St. Pierre actively assisting, however there was a lack of horizontal communication between Mr. St. Pierre and Mr. Halter regarding roles and the required PPE. Mr. Halter and the three other electricians in the building did not advise Mr. St. Pierre to put on the minimum required PPE. The Board believes this lack of horizontal communication demonstrates the need for a stronger

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safety culture, where safety is a shared responsibility. The responsibility to improve the Enbridge safety culture is that of Enbridge.

7.1.7 Personal Protective Equipment

At the time of the incident Mr. St. Pierre was not wearing the appropriate PPE as required by Book 2 procedures, Enbridge training requirements, NFPA 70E and as indicated on the warning label on the outside of the power factor capacitor cell door. In addition to the fire protective clothing that Mr. St. Pierre was wearing, he should also have been wearing safety glasses, hard hat and high voltage gloves. The Board notes that in response to IR2-5c, Enbridge included the details of the High Voltage Training module that was provided to Mr. St. Pierre and Mr. Halter. The High Voltage Training module emphasized the need for and the requirement to wear high voltage gloves for applying safety grounds. The evidence also indicates that throughout his work history, Mr. St. Pierre was very diligent about wearing the proper PPE and Enbridge did not have reason to be concerned about Mr. St. Pierre’s compliance with requirements for PPE. Therefore, it may never be known why Mr. St. Pierre did not wear the proper PPE at the time of the incident. PPE was Mr. St. Pierre’s last line of defence when all other systems failed.

7.1.8 Lock and Tag

The procedures require a lock and tag upon electrical isolation of high voltage equipment. Also, the lockout/tag out training module filed by Enbridge in response to IR1-4k states that a properly filled out tag must be used with every lockout and that once the equipment is shut down, apply lockout/tag out devices. The Board notes that Mr. Halter applied a lock to the Unit 4-U-3 starter but not a tag. This was considered accepted procedure at the Kerrobert station for this job as long as the tag was applied prior to handover of the work to the contractor and pipeline maintenance (PLM). The Board notes the discrepancy between the Book 2 requirements, the training and the adopted procedures at Kerrobert and would expect Enbridge to address the discrepancy either by enforcement of the Book 2 procedures and training, or by analysis of the adapted procedure being conducted in the workplace and revisions to Book 2 and training modules as appropriate. As it stands, the acceptance of an ad hoc procedure at the Kerrobert station rather than formal amendment of the documented procedure is indicative of a malfunctioning safety culture at Kerrobert.

7.1.9 Situational Awareness

At the time of the incident Mr. Halter and Mr. St. Pierre lacked situational awareness. There were a series of unsafe conditions that immediately preceded the incident that include:

a) Mr. Halter not being able to operate the voltage probe correctly.

b) Mr. St. Pierre not wearing appropriate PPE.

c) Not communicating effectively about the function of the voltage probe (Mr. St. Pierre giving Mr. Halter “a look”) or roles and PPE requirements

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Further, Mr. Halter and Mr. St. Pierre were likely aware of the Book 2 procedures for the job that were not being followed, including:

a) Conduct a pre-job meeting.

b) Assign a risk rating and, if required, complete a safe work permit and task analysis.

c) Complete an Electrical Equipment Isolation/Clearance form.

d) Use a hot stick or conduct a flash test prior to installing the grounds.

If Mr. St. Pierre and Mr. Halter had recognized the unsafe conditions and the failure to follow procedures as warnings that the work situation was becoming increasingly unsafe, they could have temporarily suspended the work, re-assessed the grounding task and then put the appropriate controls in place to protect themselves from injury. The Board concludes that a lack of situational awareness contributed to putting Mr. St. Pierre’s personal safety at great risk. The Board considers this to be a safety culture issue that could be addressed through leadership and awareness training for those involved in this incident.

7.1.10 Other Immediate Causes

Mr. St. Pierre did not conduct a flash test with a hot stick prior to entering the power factor capacitor cell. The Board notes that since the incident, a flash test is now included in the steps identified in Electrical Equipment Isolation/Clearance forms completed 31 March, 1 and 17 April.

Mr. St. Pierre did not use “an adequately rated and tested hot stick for installing or removing safety ground cables to high voltage equipment and conductors” (Book 2, 07-02-02, Standards, High Voltage Work page 1-3 bottom of page). This suggests that there was lack of safety awareness and Mr. St. Pierre was not following safety procedures.

7.2 Root Causes

7.2.1 Design

The Board notes that Enbridge applies the NFPA 70E Standard for determining the appropriate approach boundaries to live parts, Hazard/Risk Categories (HRC) and corresponding PPE required to be worn for work conducted on or near electrical equipment at its facilities The Board notes that NFPA 70E, paragraph 120.2(A), General, states the following:

(A) General. All electrical circuit conductors and circuit parts shall be considered energized until the source(s) of energy is (are) removed, at which time they shall be considered deenergized. All electrical circuit conductors and circuit parts shall not be considered to be in an electrically safe condition until all sources of energy are removed, the disconnecting means is under lockout/tagout, the absence of voltage is verified by an approved voltage testing device, and, where exposure to energized facilities exists, are temporarily grounded. (See 120.1 for the six-step procedure to establish an electrically safe work condition) Electrical conductors and circuit parts that have been disconnected, but not under lockout/tagout, tested

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and grounded (where appropriate) shall not be considered to be in an electrically safe work condition, and safe work practices appropriate for the circuit voltage and energy level shall be used. Lockout/tagout requirements shall apply to fixed, permanently installed equipment, and to portable equipment.

The Board notes the statement that electrical parts that have been disconnected, but not under lockout/tagout, tested and grounded shall not be considered to be in an electrically safe work condition, and safe work practices appropriate for the circuit voltage and energy level shall be used. Applying this rule to the grounding of Unit 4-U-3, the conductors and busbars within power factor capacitor cell 4-U-3 would not be in an electrically safe condition prior to lockout/tagout, voltage testing and applying safety grounds to the busbars. This rule also implies that appropriate PPE shall be worn for the circuit voltage and energy level that may be present before the equipment is in an electrically safe condition.

The Board notes that Enbridge has assigned flash hazard number HRC-0 to the power factor capacitor cells in the Enbridge 4-ESB-1 building (photograph 5). The Board also notes the requirements of NFPA 170E to conduct a Shock Hazard Analysis, a Flash Hazard Analysis and, through calculations provided in Annex D, to determine Flash Protection Boundaries and incident energy exposure of a worker. However, these calculations do not determine a HRC number for flash protection. The standard allows for determination of the HRC number and PPE requirements using section 130.7(C)(9) in lieu of the detailed flash hazard analysis approach.

In reviewing the tasks listed in Table 130.7(C)(9)(a), the Board notes that the HRC for the task of applying safety grounds, after a voltage test, ranges from HRC-2 for 600 Volt Class Motor Control Centres, to HRC-4 for Metal Clad Switchgear of 1 kV and above. There are no other tasks listed in Table 130.7(C)(9)(a) that correspond to HRC-0 for the task of grounding the busbars in the power factor capacitor cells within 4-ESB-1. Using NFPA70E, Table 130.7(C) (10), HRC-0 requires workers to wear non-melting long sleeve shirt and pants, and safety glasses. However, HRC-2 and HRC-4 require additional PPE that is not required for HRC-0, including, for HRC-4, the use of V-rated gloves.

Applying the rule that electrical conductors and circuit parts that have been disconnected, but not under lockout/tagout, tested and grounded (where appropriate) shall not be considered to be in an electrically safe work condition, and safe work practices appropriate for the circuit voltage and energy level shall be used, the Board questions the appropriateness of the HRC-0 assigned by Enbridge to the power factor capacitor cells in the 4-ESB-1 for flash hazard protection, and the corresponding PPE requirements. The Board further questions how Enbridge calculated or otherwise determined the HRC-0 for the power factor capacitor cells for flash hazard protection. The Board will require follow-up from Enbridge on this matter (Section 10 of the report).

The Board notes that in addition to the HRC-0 flash hazard indicated on the warning labels to the power factor capacitor cells, there is reference to Glove Class 1. The Board interprets this sign to mean that gloves are required to be worn regardless of the PPE requirements indicated by HRC-0. The Board finds this may cause confusion for workers as the HRC-0 does not require high voltage gloves to be worn, but the Glove Class 1 is indicated. The Board also notes that the warning label warns specifically against “Arc Flash and Shock Hazard”, however, the PPE requirements of HRC-0 would not be sufficient to protect against the arc flash and shock hazard

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that may be present within the approach boundaries of the cells. The Board will require Enbridge to address these inconsistencies in labeling.

7.2.2 Hazard Assessment, Safe Work Permit, Task Analysis

Enbridge uses a safe work permit system that was implemented in spring of 2007. Under this system the work performed by Mr. Halter and Mr. St. Pierre on 24 March 2008 required that safe work permit procedures be followed, and where the risk rating assigned to a task is greater than 3, a hazard assessment and safe work permit must be completed. The Board notes that a risk rating for the work was not determined by Mr. Halter and Mr. St. Pierre prior to commencing the racking out and grounding of Unit 4-U-3. The Board also notes that the risk rating procedure provided in Book 2 is subjective in nature and may result in either a low or high risk rating to be assigned to a job depending on factors such as worker experience level and the number of times the worker has done the job before.

In the Enbridge response to IR1-1c the company provided all safe work permits completed by Mr. St. Pierre from 1 April 2007 to 24 March 2008. The Board notes that there are no task analyses included with the safe work permits completed by Mr. St. Pierre. However, in the Enbridge response to IR1-1d, many of the safe work permits completed by other electricians include detailed task analyses. The root of this inconsistent practice may be found in the hazard awareness training module and the Book 2 procedures as explained below.

The Hazard Awareness training received by Mr. St. Pierre on 15 June 2005 (Enbridge response to AVC dated 4 April 2008 and Enbridge response to IR1-4j) provides a different set of steps for the hazard assessment process than provided in Book 2. The training module states that “Work with a risk ranking of less than 4 is considered low risk; a hazard assessment must still be completed to assess the work and identify potential hazards before work begins. This includes completing a hazard assessment utilizing a Task Analysis to record the methods used to control or eliminate the hazards identified.” However, Book 2, section 03-02-01, Safe Work Permit – Hazard Assessment, page 4-7 states under Risk Assessment, item 4 “Take action corresponding with the risk: For a high risk activity, complete a hazard assessment. For a low risk activity, no further action is required.” The updated procedure found in Book 2 does not include the requirement for completion of a task analysis as a tool for conducting a hazard assessment prior to performing work with a risk ranking of less than 4. The Board finds the hazard awareness training and Book 2 procedures to be inconsistent and should be addressed by Enbridge.

The Board also notes that in response to IR1-2 Enbridge provided copies of safe work permits completed at pump stations identified for pump upgrade in Board Order XO-E101-01-2007. The Risk Assessment Model Ranking (number) is not completed on several of these safe work permits, however, the Board notes that the ranking must be assigned for all tasks. Also, almost all of the safe work permits issued for Kerrobert have a risk ranking of 3, which according to the Book 2 procedures does not require that a safe work permit be completed. Whereas almost all the safe work permits issued for Herschel and Milden do not have a risk ranking assigned at all. This inconsistent completion of the safe work permits further indicates that the risk ranking procedure is not fully understood and consistently applied by Enbridge workers at these stations.

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The training records filed by Enbridge for Mr. Halter do not include the Hazard Awareness training module. However, Mr. Halter’s records do include a training module for safe work permits, which included training in how to complete the safe work permit, explanation of hazards and controls and when the permit is to be used for hazard assessment.

The Board also notes that in response to IR1-18, Enbridge stated: “From interviews with employees it appears that some employees understood that a task analysis was required for open system and hot work activities but not for what they considered routine tasks such as racking and grounding of equipment. Therefore, a formal risk rating was not conducted for this specific activity.” Book 2 procedures however, do not make this distinction and state that “Before work begins, regions are responsible for... conducting a risk assessment for the work activity”. The Board also notes that the Directive issued by Enbridge on 31 March 2008 to all electrical workers and supervisors states that high voltage work will be considered a high risk activity and a documented hazard assessment is required.

In response to IR1-12, Enbridge states that “The racking out and grounding of units is a common task which the qualified electricians have a great deal of experience with and have performed a task analysis on in the past for all future jobs. This task analysis was provided to the NEB while on-site after the incident.” The Board notes the two task analyses that were provided to the investigators on site after the incident and which are titled Hazard Analysis Work Sheet, Western Region. The hazard analysis work sheet to rack out the unit contactor provided by Enbridge lists 4 task steps as follows:

a) Notify appropriate personnel of intention to remove a specified unit from service.

b) Isolate Unit.

c) Wear proper PPE.

d) Rack out unit contactor.

The Hazard Analysis Work Sheet for 5 KV Equipment Isolation provided by Enbridge lists 6 task steps as follows:

a) Notify appropriate personnel of intention o 5KV equipment to be isolated.

b) Hold pre-job meeting, with all participating groups, to review the isolation requirements as per the Single Line Drawing.

c) Request approval from operators to isolate equipment.

d) Complete the isolation, and document steps as per the Electrical Isolation/Clearance Form. Ensure all required locks and tags are in place and all Interlock Keys are collected and stored properly. Review Isolation/Clearance form with recipient to ensure he understands, then have him sign it before he accepts the document.

e) When work is complete the isolation/clearance form must be received from the recipient after verifying that the work is complete and is safe to re-energize.

f) Re-energize following the isolation/clearance form procedure.

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While the Hazard Analysis Work Sheet for these tasks appear to be detailed enough to lead the worker through the identification of the tasks, chances of loss, and control measures, the Board finds that since these work sheets are standardized for racking out and grounding of units, it is unlikely that the electricians refer to a copy of the work sheet each time these jobs are done, particularly since some employees understood that a task analysis was required for open system and hot work activities but not for what they considered routine tasks such as racking and grounding of equipment. The Board believes that the intent of the task analysis work sheet should be to lead the worker through a step by step identification of the tasks and identification and assessment of the hazards of the job, before and each time a job is done. This was not done by Mr. St. Pierre and Mr. Halter at the time of the incident.

Finally, the Board notes the safe work permit prepared by Jim Veronelly on 31 March 2008) included the following task steps:

a) Enbridge Control Centre (ECC) approval to proceed.

b) Electrical Isolation Clearance form procedure.

c) Hazard Analysis.

d) Safe work permit.

e) Pre-job meeting.

The Board notes the focus of Mr. Veronelly’s safe work permit on following correct procedures to ensure that hazard analysis is conducted and controls put in place. The Board considers it a good example of how a safe work permit should focus on an effective hazard assessment for the racking out and grounding tasks, and through completion of the safe work permit; the task analysis. The Board considers these to be critical steps to safely completing the racking out and grounding job and should have been completed by Mr. St. Pierre and Mr. Halter prior to conducting their work.

In summary, the Board notes the deficiencies with the risk rating procedures, the inconsistent practice and knowledge around completion of a task analysis, the conflicting task analysis procedures described in Book 2 and in the Western Region Hazard Prevention Program training, and the inconsistent completion of the safe work permit by Enbridge employees at Kerrobert, Milden and Herschel stations. These are significant management system causes that were in place prior to the incident and which contributed to the placement of Mr. St. Pierre in a very hazardous situation. The Board considers these matters to be serious deficiencies in the hazard analysis and safe work permit process that need to be immediately addressed by Enbridge.

7.2.3 Electrical Equipment Isolation/Clearance Form

The clearance form includes a hazard assessment, a flow diagram for the work, and Isolation Procedures Steps for detailing how the electrical isolation would be completed. The Board understands that the intent of preparing the Electrical Equipment Isolation/Clearance form prior to commencement of the work is primarily to plan for the safe conduct and completion of the job, and to establish and confirm a safe state of the electrical switchgear for the transfer of the job to the contract electrical workers. The Electrical Equipment Isolation/Clearance form was

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not completed by Mr. St. Pierre or Mr. Halter for the racking out and grounding of Unit 4-U-3. If the appropriate sections of the form were completed by Mr. St. Pierre and Mr., Halter prior to commencement of the work, it may have allowed for the step by step evaluation and planning of the work procedure and the identification and elimination of hazards, as well as serve to improve communications between them.

The Board also notes that in response to IR2-2, Enbridge indicated that Mr. St. Pierre’s main field work site was Cactus Lake and that this station had undergone pump upgrades included under Board Order XO-E101-01-2007. Enbridge was unable to locate any Electrical Equipment Isolation/Clearance forms completed by Mr. St. Pierre for the work conducted at the Cactus Lake station and was unable to locate any Electrical Equipment Isolation/Clearance forms completed by Mr. St. Pierre for the time period following 1 January 2007.

The Board notes the significant changes since the incident to how the Electrical Equipment Isolation/Clearance form is completed. What was previously 3 steps (form dated19 November 2007 by Doug Croke for the Herschel Station) to rack out and ground the 4-U-3, 4160 volt contactor, has been expanded to 13 and 21 steps respectively (forms dated 31 March 2008 and 1 April 2008 by Jim Veronelly) to isolate Unit 4-U-3 at the Kerrobert Station. In the 31 March 2008 Electrical Equipment Isolation/Clearance form the steps included:

a) Put on proper PPE for the category of arc flash hazard.

b) Verification of correct capacitor/interconnect door.

c) Perform function test on high voltage detector.

d) Use a high voltage detector on a hot stick.

e) Connecting safety grounds using proper PPE and hot-stick.

f) Conducting a flash contact test with a safety ground to each phase.

In the 1 April 2008 Electrical Equipment Isolation/Clearance form the steps included:

a) At this point wear all proper PPE for racking out contactors.

b) Ensure cabinet for unit 4U3 capacitor/interconnect is selected and open.

c) Ensure electrical tester is functioning properly.

d) Test for the presents [sic] of potential at unit 4U3 capacitor/interconnect cabinet.

e) Do a flash test c/w [sic] hot stick of all three phases and install grounds at this location 4U3 capacitor/interconnect cabinet.

The Board notes that the Electrical Equipment Isolation/Clearance forms are not completed in a consistent manner by Enbridge electricians. The form was not completed for the racking out and grounding of Unit 4-U-3 on the day of the incident. Mr. Halter indicated in his statement that after a job is done a clearance form is to be filled out; Mr. Veronelly indicated that the electrical equipment isolation clearance form is completed prior to turnover to the contractor, and Mr. St. Pierre was not diligent about completion of the form for previous work. These inconsistent practices for completion of the form are indicative of a lack of training and management

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oversight and control of this aspect of the electrical work being conducted for the pump station upgrades.

7.2.4 Safety Culture and Awareness

A developed safety culture should lead to effective planning, adherence to procedural requirements, effective communications, clarification of roles, and where required, completion of a safe work permit, hazard assessment and pre-job safety meeting. An effective safety culture means that all employees use their experience, training and communication skills to ensure that they and their co-workers are working safely at all times. It also means that employees actively identify and correct deficient procedures and work practices. The numerous immediate and root causes that preceded the incident are indicators that the safety culture at Enbridge Kerrobert was not adequately developed. The indicators include:

a) Nobody told Mr. St. Pierre to put on his PPE while in the 4-ESB-1.

b) Mr. St. Pierre and Mr. Halter lacked situational awareness immediately prior to the incident and did not stand back to re-assess the job.

c) Book 2 procedures were not being followed.

d) Mr. St. Pierre was not wearing proper PPE.

e) There was poor communications between workers regarding safety, roles and procedure.

f) Because the racking and grounding out were considered routine tasks, there was likely some complacency about the risks associated with the tasks and the controls that should be in place to protect against the hazards.

The Board expects that Enbridge will take into consideration the indicators noted above and develop appropriate corrective actions to address the management system factors that underlie these indicators.

7.2.5 Training

The evidence shows that there has been adequate training of Enbridge electricians with respect to safe work procedures and proper use of personal protective equipment. However, there are some weaknesses in the training program provided to Kerrobert personnel involved in the incident that contributed to the incident. In order to address the weaknesses the Board expects that Enbridge will assess its training needs in the areas of:

a) Enabling employees to better communicate with each other and with supervisory levels about job planning, roles and safety issues.

b) Hazard assessment, determination of risk rating and completion of safe work permits.

c) Completion of Electrical Equipment Isolation/Clearance forms.

d) Use of safety equipment such as the voltage probe.

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e) Appropriate and consistent use of PPE and high voltage protective equipment.

f) Developing a strong safety culture.

7.2.6 Personal Protective Equipment

Enbridge demonstrated to the investigators that historically, Mr. St. Pierre was a safe worker and was fastidious about wearing the required PPE. The Enbridge supervisory staff at Kerrobert were in disbelief that Mr. St. Pierre would be working within the 4-ESB-1 building without wearing the proper PPE. In this regard Enbridge did not have reason to be concerned about Mr. St. Pierre’s use of PPE on the day of the incident.

However, the Board notes that there is an inconsistent approach or understanding among Enbridge employees at Kerrobert on PPE requirements. Although historically he always wore PPE, Mr. St. Pierre did not wear the required PPE for the grounding task. In an interview with Mr. Jim Veronelly, he stated that he has done this same grounding task within 6 months prior to the incident and he would wear hot gloves, hot flash gear, glasses and coveralls. He stated that this was his standard procedure. Also, Mr. Halter indicated to investigators that the arc flash gear was new to the system and was not worn as much as it should have been. The Board notes the inconsistent approach or understanding on the use of PPE at Kerrobert and expects Enbridge to address this management system issue.

7.3 Other Contributing Factors

The investigation identified other factors that contributed to the incident however these factors are not considered to be either immediate errors committed by any person nor are they considered to be root causes or management system errors that were in place before the incident occurred. The Board believes these factors are relevant to the incident and are therefore noted in this report.

While the design of the 4-ESB-1 meets the requirements of the Canadian Electrical Code, certain factors related to design may have contributed to the incident. There is an offset alignment between the row of unit motor starter contactors and the row of power factor capacitor cells which increases the potential for choosing the wrong cell door if a worker is guided by alignment. The unit identification labels on the unit motor starter contactors and the power factor capacitor cell doors are all similar in appearance and are not conspicuous, which may contribute to the mis-identification of a door. There are no interlock mechanisms between the unit motor starter contactors and power factor capacitor cells such that only the corresponding power factor capacitor cell can be opened when the unit motor starter contactor is racked out.

In his statement, Mr. Halter suggested that an additional safety design measure would be the installation of interlocks on the starters and power factor capacitor cells so that once the starter is racked out, only the corresponding cell could be unlocked. In response to IR2-10b Enbridge indicated that the Kirk Key interlocks are included on new starters and cells associated with the Southern Access expansion project and that there are no current plans for retrofitting existing equipment with this exact system. Enbridge stated that it anticipates a formal recommendation

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from a committee of individuals, with experience in this area, to look further into this issue and make a recommendation for the entire Enbridge system.

8. Summary

Examination and analysis of the evidence related to the incident reveals that numerous immediate causes occurred and underlying root causes were in place prior to the incident. The causes relate to human factors and to breakdowns in the defensive layers that were put in place to protect the Enbridge employees.

At the time of the incident, Enbridge had in place multiple defensive layers to ensure the protection of employees. These layers include a corporate wide health and safety policy, Operations and Maintenance manuals, safety procedures, training program, PPE requirements, safety equipment, monitoring, adherence to applicable health and safety legislation and emergency management program. Although there were multiple defenses in place to deal with the potential for an accident, there were sufficient weaknesses such that the layers of mitigation to protect Mr. St. Pierre were not sufficient to prevent his exposure to the hazardous conditions. While no one weakness can be identified as a primary factor, the significance of each weakness cannot be underestimated, as a correction in any one may have been enough to prevent the incident. It is worth summarizing the human factors and defensive breakdowns of this incident in order to fully understand the mechanisms that lead to the incident.

The cabinet was misidentified by Mr. St. Pierre and Mr. Halter, so that rather than opening the de-energized cabinet, a live cabinet was opened. The Board recognizes that a human factor possibly contributed to this misidentification through a concept called visual cueing, where Mr. Halter took the visual queue of Mr. St. Pierre standing in front of a particular cabinet. This failure did not make it inevitable that the incident would occur, but yet another defensive barrier failed. Had Mr. Halter been able to correctly use the voltage probe, it would have been discovered that the cabinet was live. The Board finds this to be a failure in training and in procedure; that a person should not use a piece of equipment that they have not been trained, tested and cleared to use. The next defensive barrier to fail was when several indicators that the work was becoming increasingly unsafe were not recognized, the work was not immediately halted and procedures re-assessed. The Board considers this to be a training and safety culture issue, where the electricians lacked the situational awareness to recognize that their actions could lead to an accident. Further, had Mr. St. Pierre donned the appropriate PPE, including arc flash gloves, prior to attempting to install the ground cables, he would have reduced the risks to which he was exposed. The Board notes that these causes may indicate a safety culture failure. Although a weak safety culture cannot be demonstrated as a system wide problem within Enbridge, through this incident and investigation the Board believes Enbridge should actively and aggressively look for such culture failures as part of its safety programs for each region.

The Board notes that a responsibility of safety managers is to identify and apply additional defenses but with an eye to practicality as well as economic cost and benefit. In other words where a significant hazard and consequence is present, if an effective defensive barrier can be added for reasonable cost and reasonable administrative or functional burden, then it should be added no matter how many barriers are already in place. Where potential defensive mitigation is

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examined and found not to be practicable or reasonable, the decision is documented complete with rationale so that due diligence can be established.

As an example, the type of grounding cables used at Kerrobert station at the time of the incident required that the user directly apply the cables to buses without the use of a hot stick and, based on the HRC number 0, without the requirement for voltage rated gloves. If one does not use the hot stick or voltage rated gloves while installing the cables to energized equipment, it is likely that the user will be seriously injured. Using the principle of applying the maximum practical defensive barriers, the company would examine whether or not it is practical and cost effective to use equipment readily available on the market that isolate the user from the energy source, such as the use of the MT3 Safety ground kit now in use at Kerrobert since the incident.

The Board notes that since the incident, Enbridge has added defensive layers to the racking out and grounding procedures, including:

a) Book 2 revisions: clearly categorizes all work on electrical equipment with circuits and voltages greater than 750 V to be high risk, requiring the completion of a safe work permit and hazard assessment, wear high voltage PPE in accordance with tab 13, use a hot stick for applying safety grounds, use a voltage detector with a hot stick.

b) New safety equipment in use in the Kerrobert area including a telescoping hot stick for use in applying grounds in areas with limited space and a Kirk Key interlock (one key system) on the new equipment.

c) A Directive was issued by Enbridge management to all area supervisors and electricians that identified the safety requirements of electricians when conducting high voltage work and provided revised procedures for racking out and grounding work.

d) The ESP hotliner voltage probe was taken out of service.

Although these added defensive layers have been applied at Kerrobert by Enbridge to address this specific incident, the Board believes Enbridge should assess the need for, and practicality of applying these defensive layers elsewhere on its system where the racking out and grounding tasks are conducted.

9. Areas for Corrective Action

9.1 Corrective Actions Implemented by Enbridge

Enbridge conducted its own investigation in to the death of Mr. St. Pierre. Enbridge identified nine recommendations that it would act upon in order to address the immediate and root causes of the incident that it identified through its investigation. The recommendations and dates for completion are as follows:

a) Review of the Electrical Isolation and Grounding Procedures to ensure they meet the equipment realities at Enbridge locations and industry best practices. 31 December 2008.

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b) Review the minimum electrical maintenance equipment standards for Enbridge locations, including consideration of the use of hot sticks, voltage probes, grounding cables, electrical PPE and Arc Flash equipment. 31 December 2008.

c) Develop and provide updated training on high voltage work and equipment, including the use of the hazard assessment process. 30 May 2009.

d) Develop and implement a safety audit program that will focus on reviewing compliance with safety requirements of Book 2. 31 December 2008.

e) Establish a technical team to review the applicability of Key Interlocks in Enbridge Electrical Switchgear cubicles. 31 March 2009.

f) Review the high voltage training course and content to be sure it meets the intent of Enbridge standards. 30 May 2009.

g) Require that power factor capacitor cells have bolts installed when not being accessed. 30 November 2008.

h) Conduct a Safety Culture Audit. 31 December 2008.

i) Form an Electrical Safety Committee to oversee and provide direction on electrical safety issues within Enbridge. No date.

The Board further notes that since the incident Enbridge has implemented the following changes to its safety management program and procedures in the Western Region:

a) Manuals were updated with revised safety procedures.

b) Enbridge Directive issued on 31 March 2008 to all company electrical workers and supervisors. The Directive identified the safety requirements of electricians when conducting high voltage work.

c) Kerrobert area implemented revised procedures for racking out and grounding which include the use of a hot stick and completion of an Electrical Equipment Isolation/Clearance form and a safe work permit prior to commencement of the work.

d) Kerrobert area purchased new telescoping hot sticks and grounding cables for use when grounding busbars within the power factor capacitor cells.

e) Kerrobert area supervisor and electricians developed revised work schedules in order to coordinate project and maintenance work.

f) ESP Hotliner taken out of service.

g) Progressive Discipline policy and training which will provide people leaders with clear guidelines for levels of discipline associated with employees actions due to safety non-compliance.

The Board accepts that the corrective actions implemented by Enbridge will address many of the immediate and underlying causes that were in place at the time of the incident.

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9.2 Corrective Actions Identified by the Board

The Board has identified areas for corrective action that include:

a) Risk rating, safe work permit and hazard assessment processes need to be fully understood and consistently applied by those Enbridge personnel who are responsible for completion and signing of the safe work permit form.

b) The requirement and procedures for completion of the Electrical Equipment Isolation/Clearance form need to be understood and consistently applied by Enbridge electricians.

c) Hazard Awareness training and Book 2 procedures need to be consistent on the topic of completion of task analysis for low and high risk activities.

d) The requirement for pre-job safety meetings needs to be enforced and the meetings documented.

e) Lockout/tag out procedures need to be enforced.

f) Training to improve the safety culture of Enbridge Kerrobert employees, including effective communications in the workplace and situational awareness.

g) Training in the use of voltage probes.

h) Assessment of the design of electrical switchgear buildings (ESB) to include electrical equipment layout, visual queues and conspicuous labeling.

i) Re-assessment of the HRC number assigned to the power factor capacitor cells.

j) Demonstrate to the Board how the HRC-0 was calculated for the power factor capacitor cells.

k) Consistent and enforced use of PPE and clarification on the use of high voltage PPE.

l) Investigate the feasibility of applying the changes made in the Kerrobert area to other locations on the Enbridge system where racking and grounding tasks are performed, including the use of telescoping hot sticks for voltage testing and applying safety grounds, and conducting a flash test prior to installing grounds.

m) Investigate the feasibility of installing Kirk Key interlocks between motor starter contactors and power factor capacitor cells at all existing and future Enbridge facilities.

10. NEB Follow-up Requirements

In order to address the corrective actions identified, the Board will require Enbridge to conduct the activities listed below. Enbridge shall develop a plan for completing these requirements and shall file with the Board within 30 days of the release of this report a copy of the plan. Unless otherwise indicated in the requirement, the plan shall include a schedule for completion of each of the requirements and for reporting to the Board. The Board requirements are as follows:

a) Re-evaluate and revise as necessary the hazard analysis procedures in Book 2 Safety in order to ensure consistent practice and knowledge of the hazard analysis procedures and to maintain compliance with applicable laws and regulations.

32

b) Re-evaluate and revise the risk rating procedures in Book 2 Safety in order to minimize the subjective nature of completing the rating procedure. The rating procedure should accurately rate all work that may pose a risk for workers, including those jobs that historically may be considered routine by some workers.

c) Identify any adaptations to Book 2 procedures that are in common practice in the Kerrobert area. Evaluate the adapted procedures with regard to maintaining or increasing the level of safety, practicality, cost effectiveness, compliance with applicable requirements and meeting corporate health and safety goals. Where the adapted procedures are found to be an improvement over existing procedures, make the appropriate revisions to Book 2 procedures and provide follow-up training.

d) Re-assess and revise existing training modules or develop new training modules where required for Enbridge employees engaged in electrical work at Kerrobert and at other Enbridge facilities, as necessary, in order to address the following training needs:

• effective knowledge and consistent application of the hazard analysis, risk rating, safe work permit and task analysis procedures,

• consistent application and completion of the Electrical Equipment Isolation/Clearance form by all Enbridge workers that are responsible for completing the form in accordance with Book 2 procedures,

• communications skills between employees with the focus on job planning, roles and safety culture,

• appropriate and consistent use of safety equipment including high voltage probes and hot sticks,

• appropriate and consistent use of PPE and high voltage PPE.

e) Monitor the use of the Electrical Equipment Isolation/Clearance form and safe work permit procedures to verify that they are being used appropriately and in a consistent manner for Enbridge maintenance, operations and construction activities conducted in the Kerrobert, Herschel and Milden areas, and as necessary, in other Enbridge regions.

f) Within 30 days of the issuance of this report, demonstrate to the Board how the HRC-0 was determined for the power factor capacitor cells in 4-ESB-1.

g) Re-assess the HRC number assigned to the power factor capacitor cells within 4-ESB-1 and all other ESBs on the Enbridge system, having consideration for the hazard assessment process, the potential for an energized state to exist, the nature of the tasks that may be completed within the cells, and that the equipment is not considered to be in a safe work condition prior to lockout/tagout, voltage testing and applying safety grounds to the busbars. If the assessment determines that the HRC numbers assigned to the power factor capacitor cells should be revised provide:

• a plan for revising the HRC numbers,

• a description of the training to be provided to electricians on the PPE required for work within the approach boundaries of the power factor capacitor cells.

h) Within one year of the date of issuance of this report, in accordance with Book 2 requirements, 03-02-01 page 2-7, all Enbridge regions in Canada shall evaluate (a) the

33

effectiveness of the hazard assessment process and (b) the suitability of controls based on, but not limited to:

• changes in the workplace conditions or work activities,

• workplace inspection reports,

• injury statistics,

• incident investigations.

i) Report to the Board within one year of the date of issuance of this report on the assessment and recommendations of the Enbridge technical team formed to examine the feasibility of installation of Kirk Key interlocks on existing equipment on the entire Enbridge system. The report shall provide the rationale for any decision(s) made by Enbridge with respect to installation of the interlocks, including the value, reliability, cost and the practicality of installing the interlocks.

j) Conduct site inspections at Kerrobert and other ESBs as well as other work locations on the Enbridge system in Canada with the objective being to ensure that there is a safe, unencumbered work environment for its employees, contractors and visitors. In doing this Enbridge should take into consideration all of its activities undertaken during the operation and maintenance of its facilities. Enbridge will report to the Board within 60 days of the issuance of this report on the results of the inspection. The report will include Enbridge's inspection protocol, the locations inspected, the results of the inspections and a mitigation plan for addressing all issues noted within a reasonable time frame.

k) Review the ESB design factors for the Kerrobert area including electrical equipment layout, visual queues and conspicuous labeling. Consult with Enbridge electricians and area supervisors on practical and appropriate design solutions that will increase protection from electrical hazards within the ESBs while maintaining compliance with applicable legislative requirements and standards.

l) Assess and redesign the warning labels on the outside of the power factor capacitor cell doors at Kerrobert to clarify the hazards and PPE requirements.

m) Review the Enbridge compliance monitoring initiatives in order to identify areas for improvement. The review should examine the effectiveness the compliance monitoring initiatives for the following:

• monitoring and reporting of the occurrence of health and safety incidents within the company,

• evaluation of the immediate and basic causes of all reported incidents,

• compliance with procedures.

Report to the Board within 60 days of issuance of this report with the results of the review.

n) Examine the feasibility of applying the changes made in the Kerrobert area to other locations on the Enbridge system where racking and grounding tasks are performed, including:

• The use of telescoping hot sticks for voltage testing and applying safety grounds,

34

• Conducting a flash test before applying safety grounds.

o) Report to the Board on the status of completion of the recommendations identified in the Enbridge Investigation. The dates for reporting to the Board shall be on or before 30 January 2009 for those Enbridge recommendations to be completed before 31 December 2008 and on or before 30 June 2009 for the remainder of the Enbridge recommendations.

p) Enbridge shall conduct an assessment of the indicators noted in section 7.2.4 of this report, identify any management system factors that underlie these indicators and develop appropriate corrective actions to address the management system factors identified. Enbridge shall report to the Board within 60 days of release of this report on its assessment of the indicators and the corrective actions developed to address the management system factors.

35

Appendix I: Documentation and Evidence Gathered

1 68 photographs taken by the NEB investigator at the Enbridge Kerrobert Pump Station on 25 March 2008.

2 Verbal communications with Enbridge personnel at the Kerrobert Pump Station on 25 March 2008 and 25 June 2008 (identified in section 4 of this report).

3 Enbridge Operating and Maintenance Procedures Book 2, Safety, updates to 1 December 2007.

4 Enbridge Operating and Maintenance Procedures Book 3, Pipeline Facilities, updates to 20 March 2008.

5 Assurance of Voluntary Compliance, File Number 2008-030, provided by Mr. Michael Koby, Director, Operations Services, Enbridge Pipelines Inc., no date.

6 Individual Training History, Jordan Halter, printed 26 March 2008.

7 Individual Training History, Henri St. Pierre, printed 26 March 2008.

8 Excerpt of Book 2, Safety, Section: Standards, Subject: Safe Work Permit – Hazard Assessment, 4 April 2008, Draft.

9 Excerpt of Book 2, Safety, Section: Procedures, Subject: De-energizing or Switching High Voltage Equipment, 8 April 2008, Draft.

10 Excerpt of Book 2, Safety, Section: Procedures, Subject: Safety Grounding High Voltage Equipment, 8 April 2008, Draft.

11 Electrical Equipment Isolation/Clearance, sample form, dated 11 April 2008.

12 Safe Work Permit (Hazard Assessment) sample form, dated June 2007.

13 Floor Plan Diagram, 4-ESB-1, no date

14 March 23-28, 2008, Work Assignments, one page.

15 Excerpts of day planner, Henri-St. Pierre, March 10-16 and March 17-23, 2 pages.

16 Enbridge, Kerrobert Station Electrical Hazardous Area Classification Plot Plan. 23 June 1997.

17 Enbridge, Kerrobert (SK) Station, Station 4, Civil/Structural/Mechanical, Scope of Work, Plot plan, 15 March 2007.

18 Enbridge, Kerrobert (SK) Station, Station 4, 4-SWGR-2 (4160V) One Line Diagram, 92/02/11.

19 Enbridge, Kerrobert (SK) Station, Station 4, 4-ESB-1, Lighting, Cable Tray and Equipment Layout, 21 January 1992.

20 Incident – Kerrobert Station – March 24, 2008, Personnel On-Scene, First Responders, Other Contacts.

21 E-mail from James Veronelly/CNPL/Enbridge to Dale Burgess, Brad Shamla, cc Ab Mouallem, bcc Dan Tischler, Subject: Monday am phone call, dated 03/24/2008, 08:01 am.

36

22 Coping With Trauma – What Can Help. Handout provided to Enbridge Employees following the incident.

23 Statement of Jordan Halter provided to NEB Investigators Karen Duckworth and Shane Richardson, 25 March 2008, 4 pages.

24 Combined interview with Ron Horak, Ron Grove and Graham Taylor conducted by Karen Duckworth and Shane Richardson, 25 March 2008, one page.

25 Statement of Jordan Brett Halter provided to Cst. Julianna Baldwin, 25 March 2008, 5 pages.

26 Statement of Ron Horak of Power Comm, 24 March 2008, one page.

27 Statement of Ron Grove of Power Comm, 24 March 2008, one page.

28 Statement of Graham Taylor of Power Comm, no date, one page.

29 Statement of Jordan Webb, 24 March 2008, one page.

30 Complete Operating Instructions for the ESP Hotliner, Fisher M-Scope, 2 pages, no date.

31 Enbridge response to NEB Information Request number 1, dated 28 May 2008.

32 Enbridge response to NEB Information Request number 2, dated 17 July 2008.

33 Enbridge Directive to all Electrical Workers and Supervisors, High Voltage Work, dated 31 March 2008.

34 Enbridge Preliminary Incident Report , Kerrobert Electrical Incident, Incident No. 1009, dated 4 April 2008

35 Hazard Analysis Work Sheet, Western Region, Task/Job: 5KV Equipment Isolation

36 Hazard Analysis Work Sheet, Western Region, Task/Job: Rack out Unit Contactor

37 Investigation Report, High Voltage Grounding Incident, Enbridge Pipelines Inc. – September 2008.

38 Final Autopsy Report and Final Toxicology Results of Henri Romeo St. Pierre, Office of the Chief Coroner, Saskatchewan Ministry of Justice and Attorney General, 24 June 2008.

39 Review of Final Report and Final Toxicology Results by Dr. Ernest P. Chiodo dated 30 September 2008.

40 Review of 2008 Kerrobert Fatality Investigation Report 09-30-2008.doc by Dr. Ernest P. Chiodo dated 10 October 2008.

37

Appendix II: DNV Systematic Causal Analysis Technique

Event/Evidence Immediate Causes (DNV Systematic Causal Analysis Technique)

Root Causes (DNV Systematic Causal Analysis Technique)

Reference Corrective Action

Mr. St. Pierre was not wearing the required PPE while he was working in the ESB and when he came within the safe limits of approach to the 4160V electrical equipment.

7. Failure to wear PPE properly.

14.4 Inadequate monitoring of compliance.

Statement of Jordan Halter 25 March 2008.

NFPA 70E Limits of Approach, Table 130.2(C), page 70E-25

Worker has responsibility to wear required PPE. Enbridge responsibility to train and enforce.

Enbridge response to IR1 -21 indicates that Enbridge is in the final stages of implementing its new Progressive Discipline policy and training which will provide people leaders with clear guidelines for levels of discipline associated with employees actions due to safety non-compliance.

Substandard or Unsafe Acts

Mr. Halter was not aware that Mr. St. Pierre entered the power factor capacitor cell prior to Mr. Halter confirming the proper function of the high voltage detector and that the cell had been de-energized.

Mr. St. Pierre did not respond verbally to Mr. Halter’s comments that the high voltage detector not working, but rather gave Mr. Halter “a look”.

16.1 Inadequate horizontal communication between peers.


Development of work plan, conduct pre-job meeting, task analysis and identify roles. Training in horizontal communications, safe work planning and safety culture.

38




Mr. Halter and other electricians in the ESB did not tell Mr. St. Pierre to don his PPE.

Mr. St. Pierre stood in front of cell door 4-U-2 rather than 4-U-3 and requested Mr. Halter to unlock the door.

9. Improper position for task.


Conspicuous labeling.

Electrical Isolation Clearance Form not completed for the racking out and grounding of Unit 4-U-3.

16. Failure to follow procedure/policy/practice

Book 2 section 07-02-01 and 07-03-02

Enbridge response to IR1-1(a)

Revision/updating procedures.

Retraining.

Monitoring and enforcement.

A risk rating was not assigned to the task and therefore no hazard assessment of the grounding out procedure was conducted. Enbridge stated that the racking and grounding out are standard procedures that have been done many times before and so a safe work permit was not completed specifically for the racking and grounding out. The racking and grounding out

17. Failure to identify hazard/risk

O&M Manual Book 2 Safety 03-02-01 pages 1 to 7.

Evaluate the risk rating procedure to remove the subjective nature of the rating procedure.

Provide training to ensure consistent and correct completion of the risk rating, hazard assessment and safe work permit process.

39




was included in the safe work permit completed for the PLM work.

No interlocks installed between starters and power factor capacitor cells so that wrong cell cannot be opened.

21. Inadequate guard or barrier


Jim Veronelly 25 June 2008.

Install Kirk Key interlocks.

Kirk Key interlocks installed at Kerrobert.

Mr. Halter could not get the voltage probe to work properly in order to test for energized condition within the cell

Various probes were available and Enbridge expected the electricians to know how the worked, no training provided.

25. Inadequate warning system

5.3 Inadequate initial training


Enbridge response to IR1-8a

Training in proper use of the probe, duty on Enbridge to ensure that employees know how to use safety devices supplied by the company.

ESP Hotliner probes taken out of service by Enbridge following the incident, pending its investigation.

Substandard Conditions

No safe work permit, no Electrical Equipment Isolation/Clearance form, no task analysis, no hazard assessment done.

36. Inadequate preparation/planning

Updated training. Enforcement of pre-job meeting, task analysis and delegation, safe work permit and hazard assessment, electrical equipment isolation clearance form.

40




The racking out and the grounding procedures were considered routine tasks, although not commonly conducted together.

4.4 Routine, monotony, demand for uneventful vigilance


Safety culture Personal Factors

Mr. St. Pierre and Mr. Halter both either did not recognize or did not act on the deteriorating safety conditions and multiple signs that something could go wrong:

! Mr. St. Pierre was not aware that he was standing in front of the wrong power factor capacitor cell door,

! Mr. Halter was not aware that he had unlocked the wrong power factor capacitor cell door,

! they were distracted by looking for cables,

! Mr. Halter’s inability to operate the high voltage detector,

5.6 lack of situational awareness

Safe work permit/hazard assessment.

4.e Critical task procedures/practices updated

15.a Training in personal communication techniques

Safety culture training

41




! Mr. St. Pierre did not communicate effectively to Mr. Halter,

! they had not completed a hazard assessment of the job.

! Mr. St. Pierre was not wearing required PPE, nobody said anything.

! They had not prepared an Electrical Equipment Isolation/Clearance form as required by procedures

Safe work permit and corresponding hazard assessment were not completed as required by Enbridge procedures, Enbridge was aware of adaptations to Book 2 procedures.

6.5 Inadequate review of instruction

9.9 Inadequate identification and evaluation of loss exposures

7.1 improper performance is tolerated.

Book 2, 03-02-01

Enbridge response to IR1-12a.

Statement of Jim Veronelly.

Assess adaptations to procedures and revise Book 2 as necessary and appropriate.

Retraining and enforcement of procedures.

Design of cabinets and floor plan of building. No colour

10.2 Inadequate consideration of

Assess design factors in consultation with electricians

42




or other visual queue such as floor paint to guide or differentiate between cells. Small lettering on cell doors. Cells offset in floor plan.

human factors/ergonomics.

14.2.5 Reinforcing with signs, colour codes and job aids

Safetrak system was new within last year and is not designed to enforce compliance.

10.8 Inadequate evaluation of changes

Assess compliance monitoring initiatives with goal to improving monitoring, enforcement and compliance with procedures.

Mr. St. Pierre gave Mr. Halter “a look”. Lack of verbal confirmation from Mr. St. Pierre regarding a critical equipment test.

16.6 Inadequate communication methods

Training on effective communications techniques between peers.

Mr. St. Pierre did not wait for verification from Mr. Halter that the voltage detector was functioning properly and there was no live voltage within the Power Factor Capacitor cell before entering the cell

16.12 Verification/feedback techniques not used.


43

Appendix III: Appendix III: Sequence of Events Leading Up To the Incident

Date and Time (Where known)

Order of

Events

Description of Event

Reference

8 December 1992 1 Mr. St. Pierre received training in Safe Work Permits.

Individual training history filed by Enbridge 4 April 2008

20 May 1998 2 Mr. St. Pierre completed examination in Issue/Obtain Safe Work Permits – Final (Common).


13 November 2001 3 Mr. St. Pierre received training in Safe Work Permits.


1 June 2005 4 Mr. Halter received training in Safe Work Permits.


15 June 2005 5 Mr. St. Pierre received training in Hazard Awareness.


24 October 2005 to 27 October 2005

6 Mr. St. Pierre and Mr. Halter complete a four-day high voltage training course.

Enbridge Individual Training History - Dated March 26, 2008

1 June 2006 7 Mr. Halter received training in Safe Work Permits.


16 May 2007 8 Mr. St. Pierre and Mr. Halter received training in Safe Work Permits.


Spring 2007 9 Enbridge institutes the Safe Work Permit system.

Enbridge Response to IR1-12a Dated May 28, 2008

Summer 07 10 Mr. St. Pierre underwent triple bypass surgery.

Statements from Enbridge staff, meeting between Enbridge and NEB staff at Kerrobert Station - 25 March 2008

Sep - Oct 07 11 Mr. St. Pierre returned to work.


25 January 2007 12

Enbridge Southern Access expansion project approved, Board Order XO-E-101-01-2007. Project includes greater capacity on line 4 through 4 pumping units. Unit 4-U-3 2500 hp motor to be replaced with 5000 hp package.

Board Order XO-E101-01-2007

22 – 23 March 2008 13 Mr. St. Pierre did not work over the weekend.


24 March 2008 14

Morning meeting to discuss planned work for the week - initially Mr. Halter was to go to Herschel station but was requested to rack out 4-U-3 for a planned outage.

Note book page written by J. Veronelly describing work assignments; J. Halter statement - 25 March 2008

44


Order of

Events


Reference

24 March 2008 15

Unit 4-U-3 was put on local control by Mr. Neufeld and confirmed to be on local by Mr. Halter who referenced the control system interface and the single line sketch for Unit 4-U-3.

J. Halter statement - 25 March 2008

24 March 2008~ 08:17

16 4-U-3 breaker in the ESB was racked out and locked (not tagged) by Mr. Halter.


24 March 2008 17 Mr. Halter left the 4-ESB-1 to look for grounding cables for grounding Unit 4-U-3.


24 March 2008 18 Mr. Halter met Mr. St. Pierre outside the 4-ESB-1 and stated that he couldn't locate the ground cables.


24 March 2008 19

Mr. St. Pierre had already checked the storage shed for the ground cables and, unable to locate the preferred cables, had selected a set of cables that he thought would suffice.


24 March 2008 20

Mr. St. Pierre and Mr. Halter entered the 4-ESB-1 and immediately located the preferred ground cables in a corner on the floor.


24 March 2008 21

Mr. St. Pierre put down the grounding cables that he had taken from the storage shed and picked up the preferred set of cables.


24 March 2008 22 Mr. St. Pierre and Mr. Halter went to the bank of power factor capacitor cells that contain the bus bars.


24 March 2008 23

Mr. Halter began to test the high voltage probe near a light fixture prior to sweeping the inside of the power factor capacitor cell - he was not paying attention to Mr. St. Pierre as he was focused on testing the high voltage probe, which was a model he was not familiar with.


24 March 2008 24

Holding the ground cables, Mr. St. Pierre stood in front of a power factor capacitor cell door and asked Mr. Halter to unlock the door.


24 March 2008 25 Mr. Halter unlocked the power factor capacitor cell door that was in front of Mr. St. Pierre.

J. Halter's Statement - given 25 March 2008

24 March 2008 26

Mr. Halter resumed testing the high voltage probe but could not get a reliable signal. Testing is accomplished by holding the probe up to a live energy source such as a ceiling light, which should result in an audible signal being emitted from the

J. Halter statement - March 25, 2008

45


Order of

Events


Reference

probe. Mr. Halter could not obtain the appropriate signal from the probe it was held up to the ceiling light.

24 March 2008 27 Mr. Halter informed Mr. St. Pierre of his difficulties with the high voltage probe.


24 March 2008 28 Mr. St. Pierre acknowledged these difficulties with "a look".


24 March 2008 29 Mr. St. Pierre opened the cell door unlocked by Mr. Halter.


24 March 2008 30

Mr. Halter performed a sweep of the inside the cell with the high voltage probe which failed to indicate the presence of electricity.


24 March 2008 31

Mr. Halter turned his back to Mr. St. Pierre in order to hold the detector up to a light to attempt a second test of the probe.


24 March 2008 32 Mr. St. Pierre entered the cell with the grounding cables.

J. Halter statement – 25 March 2008

24 March 2008 33

Mr. Halter, back still turned to Mr. St. Pierre, heard the sound of an electrical arc. Mr. Grove heard a bang. Mr. Taylor “saw Henry start and then I heard a bang…then I smelled smoke and saw him drop to the floor”.

J. Halter statement – 25 March 2008 R. Grove statement – 25 March 2008 G. Taylor statement – 25 March 2008

24 March 2008 34 Mr. Halter turned to face Mr. St. Pierre, saw Mr. St. Pierre step back from the cell, fall to one knee and collapse.


24 March 2008 35 Mr. Halter dragged Mr. St. Pierre to a clear, safe area.

J. Halter statement – 25 March 2008

24 March 2008 36 Someone else inside the ESB called man down and Mr. Snell called 911.


24 March 2008 37 The alarm was sounded to evacuate all other personnel from the building.


24 March 2008 38

Mr. Halter commenced CPR on Mr. St. Pierre. Someone came into the ESB and asked what had happened. Mr. Halter looked up to answer and noticed that 4-U-2 power factor capacitor cell door was open, not 4-U-3.


24 March 2008 39 Mr. Kohlman and Mr. Neufeld took over CPR from Mr. Halter.


24 March 2008 40 Mr. Halter called the control centre to shut off power to 4-U-2 and he then racked out Unit 4-U-2.


24 March 2008 41

Mr. Halter donned his arc-flash gloves, removed the tail of the ground cable that was inside the Unit 4-U-2 power factor capacitor cell and closed the


46


Order of

Events


Reference

Unit 4-U-2 cell door so that emergency responders would not be at risk.

24 March 2008 42 Mr. Halter returned to assist Mr. Kohlman and Mr. Neufeld with CPR.


24 March 2008 43

Emergency responders arrived approximately 25 minutes after the incident and took over with paramedical aid. Emergency responders were not able to revive Mr. St. Pierre. Mr. St. Pierre was transported to the Kerrobert hospital and could not be revived at the hospital.

Enbridge Pipelines Inc Preliminary Incident Report - April 4, 2008

31 March 2008 44 Directive issued by Enbridge to all electrical workers and supervisors with regard to high voltage work.

Directive to all Electrical Workers and Supervisors High Voltage Work - March 31, 2008

47

Appendix IV: References

Det Norske Veritas, Incident Investigation, 52630 II a.R01, 2003.

National Fire Protection Code, Standard for Electrical Safety in the Workplace, NFPA 70E, 2004.

Enbridge Operating and Maintenance Procedures Book 2 Safety, 1 December 2007.

Enbridge Operating and Maintenance Procedures Book 3 Pipeline Facilities, 20 March 2008.

Reason, James, Managing the Risks of Organizational Accidents, Ashgate Publishing Company, ISBN 1 84014 105 0, 2000.

Government of Canada, Hazardous Occurrence Investigation and Analysis Techniques, Guide for Drafting the Report, HRSDC Labour Program, March 2004.

ST108

ERCB Monthly Enforcement Action Summary May 2008

Page 19 revised November 12, 2008

ENERGY RESOURCES CONSERVATION BOARD ST108: ERCB Monthly Enforcement Action Summary, May 2008 September 2008 Published by Energy Resources Conservation Board 640 – 5 Avenue SW Calgary, Alberta T2P 3G4 Telephone: 403-297-8311 Fax: 403-297-7040 E-mail: [email protected] Web site: www.ercb.ca

mailto:[email protected]

Contents

High Risk Compliance Category Statistics....................................................................................................1 High Risk Enforcement Action 1 ...................................................................................................................2 High Risk Enforcement Action 2 (Persistent Noncompliance)....................................................................14 High Risk Enforcement Action 3 (Failure to Comply or Demonstrated Disregard).....................................15 Low Risk Enforcement Action – Global REFER Summary.........................................................................17 Legislative/Regulatory Enforcement Action ................................................................................................21 Endnotes .....................................................................................................................................................22

ERCB ST108: ERCB Monthly Enforcement Action Summary, May 2008 ! i

ERCB ST108: ERCB Monthly Enforcement Action Summary, May 2008 ! 1

High Risk Compliance Category Statistics May 2008

ERCB

Compliance Category

Initial Audits/ Inspections

Number of High Risk Noncompliance

Compliance Rate with High Risk Noncompliance

Applications Branch Facilities Applications Group Audit Section

Participant Involvement 65 2 97%

Facilities Technical 22 3 86% Pipelines/Pipeline

Installations Technical 33 1 97%

Wells Technical 31 2 94% Resources Applications Group Enforcement & Surveillance Section and Coal Section

Gas Allowables n/a 2 n/a

Subtotal 151 10 93%

Compliance and Operations Branch

Operations Group Production Operations Section

Production Measurement & Reporting

n/a 1 n/a

Subtotal n/a 1 n/a

Public Safety/Field Surveillance Branch

Drilling Operations 7 0 100% Well Servicing 20 0 100% Oil Facilities 384 12 97% Gas Facilities 154 3 98% Pipelines 116 8 93% Drilling Waste 1 0 100% Well Site Inspections 659 4 99.4% Waste Management 5 0 100% Subtotal 1346 27 98%

Resources Branch Geology and Reserves Group Reserves & Allowables Section

Oil Overproduction 519 2 100%

Subtotal 519 2 99.6%

Total Audit/Inspections High Risk

2016 40 98.0%

Note: Compliance category data are evaluated annually and results presented in ST99 ERCB Provincial Surveillance and Compliance Summary.

http://www.eub.ca/docs/products/STs/st99_current.pdf

http://www.eub.ca/docs/enforcement/riskassessednoncompliances.pdf






http://www.eub.ca/docs/products/STs/st99_current.pdf

If you require further information, contact Customer Contact Centre, 403-297-8311 or [email protected].


High Risk Enforcement Action 11

# Licensee ERCB Group/ Compliance Category

Noncompliance Event

Date of Enforcement Surface Location

ERCB Action(s) and Licensee Response

1 385417 Alberta Ltd.

Field Surveillance/ Oil Facilities

No leak detection and secondary containment where required.

Spill on/off lease not adequately controlled/ cleaned up.

May 1, 2008 02-20-048-02W5

Leduc County

Operations were not suspended as there was no existing or potential impact/hazard to the environment or the public.

Licensee removed the underground tank.

Licensee cleaned up the spill.

Licensee provided a plan to address the noncompliances and prevent future occurrences.

Compliance achieved.

2 Apache Canada Ltd.


Flame type equipment without workable flame arrester less than 25 m from a process vessel.

May 5, 2008 03-03-037-03W4

M.D. of Provost

Operations suspended.

Licensee installed bolts/nuts on the flame arrester. Licensee provided a plan to address the noncompliance and prevent future occurrences.


3 Apache Canada Ltd.

Field Surveillance/ Well Site Inspection

Pumping well within 800 m of public development and does not have a fence.

Surface runoff control – lease not diked where required.

May 27, 2008 06-25-039-23W4

Lacombe County


Licensee installed a fence.

Licensee installed surface runoff control.




ERCB Group/ Noncompliance Date of ERCB Action(s) and Licensee #


Licensee Compliance Category Event Enforcement Surface Location Response

4 Baytex Energy Ltd.

Resources Applications/ Gas Allowables

Production prior to the assignment of a yearly allowable.

May 8, 2008 06-081-19W5

Northern Sunrise County

Operations suspended. Licensee provided a plan to address the noncompliance and prevent future occurrences.


5 Birchcliff Energy Ltd.

Geology and Reserves/ Oil Overproduction

Failure to retire oil overproduction.

May 30, 2008 16-26-072-04W6

County of Grande Prairie


Licensee confirmed the well has been shut in and will remain shut in until all overproduction has been retired.

Licensee was directed to develop and implement a plan to address the noncompliance and prevent future occurrences.

All overproduction retired.

6 Bonavista Petroleum Ltd.


Non compliant with other ERCB requirement. (Release criteria in Directive 055/Directive 058 not met prior to release.)

May 8, 2008 06-11-053-06W4

County of Vermilion River


Licensee made repairs to the dike to prevent surface runoff.

Licensee provided a plan to address the noncompliance and prevent future occurrences.




Pumping well within 800 m of public development and does not have fence.

May 20, 2008 12-15-012-23W4

County of Lethbridge


Licensee installed a fence.









Field Surveillance/ Pipelines

Joining/Inspection and Testing – joining/ radiograph is unsatisfactory.

May 26, 2008 16-16-050-05W4



Licensee implemented a pipeline installation guide for employees.



9 Bonterra Energy Corp.


Marking of existing pipelines inside controlled area is unsatisfactory.

Non compliant with other ERCB requirement (ground disturbance).

May 23, 2008 09-26-047-09W5

Brazeau County




10 Brahma Resources Ltd.


Surface Runoff Control – Release criteria in Directive 055/Directive 058 not met prior to release.

May 2, 2008 14-14-050-02W4



Licensee repaired the dike to prevent surface runoff.



11 Bronco Energy Ltd.


Construction Approval –there is no approval to construct.

Failure to notify appropriate ERCB Field Centre (pipeline leak).

May 14, 2007 12-30-079-22W4

M.D. of Opportunity

Operations were not suspended as the event occurred prior to the inspection. Licensee implemented a pipeline testing checklist. Licensee provided a plan to address the noncompliances and prevent future occurrences.







12 Canadian Natural Resources Limited

Facilities Applications/ Facilities Technical

Failure to acquire the necessary facility licence prior to commencing site preparation, construction and/or operation.

May 1, 2008 09-23-048-01W4

County of Vermillion River

Noncompliance found prior to licence approval.


Approval not issued until noncompliance addressed.

13 Compass Petroleum Inc.


H2S emissions off lease. May 21, 2008 02-31-011-12W4

Cypress County


Licensee repaired the seal that was the cause of the odours.



14 Deepwell Energy Services Ltd.

Facilities Applications/ Participant Involvement

Failure to disclose to the ERCB any outstanding public/industry objections/concerns, whether they are received prior to or after filing of the application or whether the party is inside or outside the minimum contact radius of personal consultation and notification.

May 23, 2008 08-27-087-10W6

M.D. of Clear Hills

Licence cancelled.



15 Echoex Ltd.

Facilities Applications/ Wells Technical

Failure to acquire a mineral lease continuation – No agreement with Department of Energy.

May 13, 2008 12-04-046-02W4

County of Vermillion River

Licence cancelled.








16 Enbridge Midstream Inc.

Facilities Applications/ Pipelines Technical

The valves, flanges, fittings are not suitable for the applied for maximum operating pressure as defined in Canadian Standards Association.

May 1, 2008 01-30-042-09W4

M.D. of Provost

Licence was not cancelled or suspended as the licensee amended the licence.



17 Enerplus Resources Corporation

Operations Group/ Production Measurement & Reporting

Inaccurate accounting and reporting of actual gas production.

May 26, 2008 08-33-017-12W4

County of Newell



Although this has been received and reviewed, volumes reported to the Registry still require further amending and therefore compliance has not been achieved to date.






18 Eng-Land Energy Ltd.


Noncompliant with other ERCB requirement – failure to implement results of decision tree (including meeting performance requirements) as per Directive 060.

Non compliant with other ERCB requirement – no high-level alarm or high-level facility shutdown on knockout drum/flare separator where required as per Directive 060.

Non compliant with other ERCB requirement – exceeding oil and gas well test flaring/ incinerating and venting duration limits without approval as per Directive 060.

May 28, 2008 04-19-048-05W5

Brazeau County


Licensee updated economic evaluation potential on the well.

Licensee installed a high-level shutdown alarm.



19 EOG Resources Canada Inc.


Venting practices not in accordance with Directive 060 or local Field Centre Agreement.

Residents within required radius not notified of flaring or venting.

May 27, 2008 15-08-030-10W4

Special Area 2 (near Richdale)


Licensee implemented an internal standard operating policy for unplanned/planned venting.








20 Husky Oil Operations Limited


Failure to submit a facility license application as "Facilities-technical nonroutine" when required.

May 8, 2008 10-09-051-19W5

Yellowhead County

Licence not suspended or cancelled as mitigative measures are in place.




Field Surveillance/ Gas Facilities

Newly installed tank(s) and associated piping not tested prior to service.

May 28, 2008 13-29-033-21W4 Starland County


Licensee completed integrity testing on the tank.



22 Keyera Energy Ltd.

Geology and Reserves/ Oil Overproduction

Failure to retire oil overproduction.

May 30, 2008 05-33-049-08W5

Brazeau County


Licensee confirmed the well has been shut-in and will remain shut-in until all overproduction has been retired.

Licensee was directed to develop and implement a plan to address the noncompliance and prevent future occurrences.

All overproduction retired.

23 Panwestern Energy Inc.


No operations and maintenance procedures manual or not followed.

May 13, 2008 01-05-037-5W5

Clearwater County









24 Pengrowth Corporation

Resources Applications/ Gas Allowables

Production prior to the assignment of a yearly allowable.

May 9, 2008 01-31-026-13W4 Special Area 2 (near Sunnynook)

04-05-056-15W5 Yellowhead County




25 Pengrowth Corporation


Proper procedures were not followed – ground disturbance activities.

May 22, 2008 07-22-037-20W4

County of Stettler


Licensee cleaned up the spill and repaired the pipeline.



26 Penn West Petroleum Ltd.

Facilities Applications/ Participant Involvement

No attempt at public and/or industry personal consultation and notification prior to filing the application.

May 15, 2008

01-05-037-5W5

M.D. of Clearwater


Licensee addressed the outstanding public concerns.



27 Penn West Petroleum Ltd.


Road Crossing Pipe Specifications – road crossings are unsatisfactory.

May 15, 2008 02-13-061-09W4

M.D. of Bonnyville


Licensee replaced the pipeline that did not meet specifications.








28 Petenco Resources Ltd.


Pipeline sign missing or defaced on both sides of a crossing.

May 22, 2008 08-32-029-04W5

Mountain View County


Licensee installed new signs.



29 Primewest Energy Inc.

Facilities Applications/ Wells Technical

Failure to acquire the rights to the intended formation(s).

May 26, 2008 16-08-042-09-W5

M.D. of Clearwater

Licence cancelled.



30 Redcliffe Exploration


Flame type equipment without workable flame arrester less than 25 m from a process vessel.

May 13, 2008 10-06-039-04W5

Clearwater County


Licensee cleaned the flame arrester.



31 Ridgeback Exploration Ltd.


Failure to meet the spacing requirements in the facility design.

May 15, 2008 01-19-086-24W5

M.D. of Northern Lights

Licence not suspended or cancelled as mitigative measures are in place.








32 Rife Resources Ltd.


Spill on/off lease not adequately controlled/ cleaned up. Release criteria in Directive 055/Directive 058 not met prior to release.

May 14, 2008 16-09-062-04W6

M.D. of Greenview


Licensee cleaned up the spill.

Licensee will test any fluids in the future prior to release.



33 San Juan Resources Inc.


Pit containing produced fluids or process chemicals.

May 16, 2008 10-35-024-13W4

Special Area 2 (near Pollickville)

Operations were not suspended as the noncompliance was corrected immediately. Licensee removed the liquids from the pit. Licensee provided a plan to address the noncompliance and prevent future occurrences.


34 Suncor Energy Inc.

Field Surveillance/ Gas Facilities

Underground tank(s) not tested at the required 3 year frequency/operator cannot demonstrate tank integrity.

May 5, 2008 16-11-054-15W5

Yellowhead County


Licensee conducted integrity testing on the tanks.








35 Wrangler West Energy Corp.


Flame-type equipment without workable flame arrester less than 25 m from a process vessel.

May 1, 2008 10-11-012-13W4

M.D. of Taber


Licensee installed bolts/nuts on the flame arrester.



36 Zargon Oil & Gas Ltd.


H2S emissions off lease.

May 7, 2008 15-36-007-17W4

M.D. of Taber

Operations were not suspended as the noncompliance was corrected immediately.

Licensee repaired the vapour recovery unit.





Flame-type equipment without workable flame arrester less than 25 m from a process vessel.

May 7, 2008 12-21-048-05W5

Brazeau County

Operations were not suspended as the noncompliance was corrected immediately.

Licensee installed bolts/nuts on the flame arrester.










Flame-type equipment without workable flame arrester less than 25 m for a process vessel.

May 28, 2008 14-26-032-25W4 Kneehill County


Licensee repaired the holes in the flame arrester.




High Risk Enforcement Action 2 (Persistent Noncompliance)2


Noncompliance Event



1 Crew Energy Inc. Field Surveillance/ Gas Facilities

H2S emissions off lease.

May 27, 2008 12-11-046-17W5 Yellowhead County


Licensee took the truck out of service that was the cause of the leak.


Licensee met with the ERCB, action plan reviewed and approved.




High Risk Enforcement Action 3 (Failure to Comply or Demonstrated Disregard)3


Noncompliance Event





Pipe is operating but is shown as discontinued or abandoned in ERCB records.

May 27, 2008 07-25-105-01W6 M.D. of Mackenzie


Licensee amended the licence.


Licensee met with the ERCB, action plan reviewed and approved.




High Risk Enforcement Action 3 (Failure to Comply or Demonstrated Disregard)3

ERCB Group/ Noncompliance Date of ERCB Action(s) and Licensee


# Licensee Compliance Category Event Enforcement Surface Location Response

2 S.V.C. Resources Inc.

Environment Group/ Oilfield Waste Receiver Audits

The licensee generating an oilfield waste does not properly characterize and classify the waste material.

Waste facility accepts wastes they are not approved to receive or capable of handling.

May 16, 2008 07-13-022-08W4

Special Area 2 (near Jenner)


Require a plan to address the noncompliances and prevent future occurrences. Licensee continued to fail to comply, resulting in the imposition of the Global Refer status and issuance of Closure Order No. C 1116. In addition, the licensee was also required to

1a) Develop and implement a program to ensure that the facility only receives characterized materials that it is approved to handle.

b) Provide a written action plan as to how S.V.C. Resources Inc. will ensure that all residuals generated by the facility will be properly characterized and classified prior to shipment and disposal.

2) S.V.C. Resources Inc. develops and submits an action plan in writing addressing items 1a and 1b. In addition, S.V.C. must also include a written explanation addressing the failure to respond to ERCB direction and detailing steps to prevent future occurrences.

3) A documented meeting is held with the ERCB to review S.V.C. Resources Inc.’s noncompliant history and action plan.


Low Risk Enforcement Action – Global REFER Summary4


Noncompliance Event


ERCB Action(s) and Licensee Follow-up

1 Arbour Energy Inc.

Corporate Compliance/ Noncompliance with Liability Management Program Requirements

Failure to pay security deposit.

May 6, 2008 10-11-033-10W4

16-11-033-10W4

Special Area 2 (near Richdale)

06-32-028-03W5

M.D. of Rocky View

This is an escalation from a previous enforcement action item initially reported on April 25, 2008. Global Refer status. Issuance of Closure Order No. C 1109. Suspension of well licences. Licensee required to pay the security deposit and provide a written explanation acceptable to the ERCB addressing the failure to respond and detailing steps to prevent future occurrences.

Arbour Energy Inc. failed to comply. Abandonment Order No. AD 2008-7 and Closure/Abandonment Order No. AD 2008-8 issued.

ERCB notified licensee of its intention to have the properties abandoned as a result of the breaching of the Abandonment Orders.






# Licensee Compliance Category Event Enforcement Surface Location Follow-up

2 Cavador Resources Ltd.



May 20, 2008 N/A – Against Licensee Global Refer status. Issuance of Miscellaneous Order No. MISC 2008-7. Licensee required to pay the security deposit and provide a written explanation acceptable to the ERCB addressing the failure to respond and detailing steps to prevent future occurrences. Cavador Resources Ltd. submitted the full security deposit and provided an acceptable action plan. Compliance achieved.

3 Dinas Corporation Corporate Compliance/ Noncompliance with Liability Management Program Requirements


May 6, 2008 N/A – Against Licensee Global Refer status. Issuance of Miscellaneous Order No. MISC 2008-5 Licensee required to pay the security deposit and provide a written explanation acceptable to the ERCB addressing the failure to respond and detailing steps to prevent future occurrences.

Licensee failed to comply. File referred to Alberta Environment as reclamation-only liability remains in the company.






4 Peace West Energy Corporation



May 2, 2008 N/A – Against Licensee Global Refer status. Issuance of Miscellaneous Order No. MISC 2008-4. Licensee required to pay the security deposit and provide a written explanation acceptable to the ERCB addressing the failure to respond and detailing steps to prevent future occurrences.

5 Peace West Energy Corporation



May 21, 2008 01-13-108-19W5 01-18-109-19W5 02-06-109-19W5 13-21-109-19W5 15-31-108-19W5 08-24-108-19W5 01-25-108-19W5 15-33-108-19W5

M.D. of Mackenzie

07-24-073-10W5 05-26-073-10W5

M.D. of Big Lakes

This is an escalation from a previous enforcement action item initially reported on May 2, 2008. Global Refer status. Issuance of Closure Order No. C 1112. Suspension of well licences. Licensee required to pay the security deposit and provide a written explanation acceptable to the ERCB addressing the failure to respond and detailing steps to prevent future occurrences. Peace West Energy Corporation failed to comply. Abandonment Order No. AD 2008-9 was issued.

ERCB notified licensee of its intention to have the properties abandoned as a result of the Abandonment Order breaching.

6 Slate Energy Inc. Corporate Compliance/ Failure to pay security May 20, 2008 N/A – Against Licensee Global Refer status.






Noncompliance with Liability Management Program Requirements

deposit (Directives 001, 006, 024)

Issuance of Miscellaneous Order No. MISC 2008-6. Licensee required to pay the security deposit and provide a written explanation acceptable to the ERCB addressing the failure to respond and detailing steps to prevent future occurrences. Slate Energy Inc. submitted the full security deposit and provided an acceptable action plan to the ERCB. Compliance achieved.




Legislative/Regulatory Enforcement Action5


Noncompliance Event


ERCB Action(s) and Licensee Follow up

1 Petrobank Energy and Resources Ltd.

Corporate Compliance/ Petroleum and Natural Gas Rights Expiry

Failure to prove to the satisfaction of the ERCB that it has a valid entitlement to the right to produce the well.

May 16, 2008 10-26-019-23W4 Vulcan County

Global Refer status. Issuance of Closure Order No. C 1110. Suspension of well licence. Licensee required to complete one of the following:

a) reacquire or reinstate the mineral rights,

b) convert the well for water disposal or injection,

c) transfer the well licence to a viable licensee and link the wellbore to an active mineral agreement, or

d) abandon the well. In addition, licensee required to provide a written explanation acceptable to the ERCB addressing the failure to respond and detailing steps to prevent future occurrences. Petrobank Energy and Resources Ltd. subsequently abandoned the well and provided an acceptable action plan to the ERCB. Compliance achieved.


Endnotes 1 Directive 019 – High Risk Enforcement Action 1 Summary

In accordance with Directive 019: ERCB Compliance Assurance–Enforcement, High Risk Enforcement Action 1 is initiated against a licensee when the ERCB identifies a High Risk noncompliance event. To address High Risk Enforcement Action 1, the licensee must: immediately correct/address the High Risk noncompliance; if necessary, suspend operations (partial or full), when safe to do so, to remove the existing or potential impact/hazard (suspension will not occur if it results in an increased impact/hazard to the environment or public; compliance must be achieved prior to start-up); develop and implement a written action plan within 60 days (or in the time specified by the ERCB group); notify the ERCB group that the High Risk noncompliance has been corrected/addressed in the specified time. In addition, the ERCB will also apply one or more of the following enforcement actions as its authority provides: noncompliance fees; self-audit or inspections; increased audits or inspections; partial or full suspension until the noncompliance is corrected/addressed; suspension and/or cancellation of permit, licence, or approval. 2 Directive 019 – High Risk Enforcement Action 2 (Persistent Noncompliance) Summary

In accordance with Directive 019: ERCB Compliance Assurance–Enforcement, High Risk Enforcement Action 2 is initiated against a licensee who has an unacceptable rate, ratio, percentage or number of noncompliances, either in the same or in different compliance categories. To address High Risk Enforcement Action 2, the licensee must: immediately correct/address the High Risk noncompliance; develop and implement a written action plan within 30 days (or in the time specified by the ERCB group) addressing the root causes of previous noncompliance events and detailing what the licensee will do to prevent future noncompliance events in this compliance category/categories; if operations were suspended, have the action plan approved by the ERCB group before start-up; and review the action plan with the ERCB group in a meeting. In addition, the ERCB will also apply one or more of the following enforcement actions as its authority provides: noncompliance fees; self-audit or inspections; increased audits or inspections; partial or full suspension; suspension and/or cancellation of permit, licence, or approval. 3 Directive 019 – High Risk Enforcement Action 3 Summary

In accordance with Directive 019: ERCB Compliance Assurance–Enforcement, High Risk Enforcement Action 3 is initiated against a licensee who has failed to comply with the requirements of High Risk Enforcement Action 1, 2, or 3, or has demonstrated disregard of ERCB requirements that have been identified as High Risk. To address High Risk Enforcement Action 3, the licensee must: immediately correct/address the High Risk noncompliance; if necessary, suspend operations (partial or full), when safe to do so, to remove the existing or potential impact/hazard (suspension will not occur if it results in an increased impact/hazard to the environment or public); develop and implement a written action plan acceptable to the ERCB group that addresses the root causes of noncompliance events and details what the licensee will do to prevent future noncompliance events in this compliance category; and meet with the ERCB group to review and have the action plan approved before start-up of operations if operations were suspended. The ERCB will also apply one or more of the following enforcement actions as its authority provides: noncompliance fees; self-audit or inspections; third-party audits or inspections; partial or full suspension; suspension and/or cancellation of permit, licence, or approval; issuance of an Order (Miscellaneous, Closure, or Abandonment); “Refer” status: focused or global.

High Risk Enforcement Action 3 with global Refer results in formal orders to comply (Closure, Miscellaneous and Abandonment) and the imposition of the global Refer status against the licensee. The global Refer status indicates a licensee’s inability or unwillingness to comply. The status will be considered by the ERCB when deciding to approve or deny future and pending applications by the licensee to the ERCB. In addition, conditions for continued operation may be applied to the entire company. 4 Directive 019 – Low Risk Enforcement Action – Global Refer Summary

In accordance with Directive 019: ERCB Compliance Assurance–Enforcement, Low Risk Enforcement Action – global Refer is initiated against a licensee who has failed to correct/address a Low Risk noncompliance event in the time specified by the ERCB group. Low Risk Enforcement Action – global Refer enforcement results in the imposition of the global Refer status against the licensee and may result in formal orders to comply (Closure, Miscellaneous and Abandonment). The global Refer status indicates a licensee’s inability or unwillingness to comply. The status will be considered by the ERCB when deciding to approve or deny future and pending applications by the licensee to the ERCB. In addition, conditions of continued operation may be applied to the entire company. To address Low Risk Enforcement Action, the licensee must: immediately correct/address the Low Risk noncompliance within the time specified by the ERCB group; notify the ERCB group that the Low Risk noncompliance has been corrected/addressed in the specified time; and provide a written explanation acceptable to the ERCB group addressing the failure to respond and detailing steps to prevent future occurrences. 5 Legislative/Regulatory Enforcement Action Summary

In accordance with certain legislative authorities, Legislative/Regulatory enforcement results in the imposition of the global Refer status against the licensee and may result in formal orders to comply (Closure, Miscellaneous and Abandonment). The global Refer status indicates a licensee’s inability or unwillingness to comply. The status will be considered by the ERCB when deciding to approve or deny future and pending applications by the licensee to the ERCB. In addition, conditions for continued operation may be applied to the entire company. Enforcement actions that are not administered through Directive 019, but rather through existing legislation, and for which enforcement proceeds directly to a formal order and global Refer are: mineral lease expiry, surface lease expiry, environmental and public safety concerns, and failure to demonstrate the right to the purpose of the wellbore, the right to access the surface, and a working interest ownership in the property.






Case Name: Enbridge Pipelines


No



CWA-06-2008-4378 Enforcement Type: CWA 311B6B1 AO For Class IPenalty - SPCC Expedited Settleme

Relief Sought: Penalty Violations: Failure To Have Adequate SPCC Plan

EnforcementOutcome:








$600 $100

Case Summary:

Failure to develop/implement a/their SPCC Plan.



CWA 311J SPCC

Title Part Section

40 CFR 22 311j

Program Links:


110037085524 ICIS 1000003662

Facilities:


110037085524 ENBRIDGE SOUTH EAST CR 3040 MILDRED TX 75109


110037085524 ENBRIDGEPIPELINES(MILDRED)

SOUTH EAST CR 3040 MILDRED TX 75109

Defendants:


Named inSettlement

Bob Von Hausen Y Y

Case Milestones:

Event Actual Date




Pollutants:




1


Enforcement Conclusion Name: Enbridge Pipelines



Settlement Lodged Date:





CostCost Recovery

$600 $100



Misc. discharges, free oil 8,400 gal SWT C




Complying Actions:


Develop Spill Prevention Plan NA

Recordkeeping NA

Training NA








Version 12/03/08







Case Name: Enbridge Texas Gathering Pipeline


No



CWA-06-2010-4504 Enforcement Type: CWA 311B6B1 AO For Class IPenalty - Spill Expedited Settlem

Relief Sought: Penalty Violations: Oil Spill Violation Under CWA/OPA

EnforcementOutcome:








$500 $110,000

Case Summary:

Respondent's November 19, 2009, discharge of oil from its facility caused a sheen upon or discoloration of the surfaceof the Sandstone Creek and adjoining shorelines and therefore, was in a quantity that has been determined may beharmful.



CWA 311B Spills

Title Part Section

40 CFR 22 311b

Program Links:


110034769043 ICIS 1800046353


Facilities:


110034769043 ENBRIDGE TEXASGATHERINGPIPELINE

1313 NORTH HOBART PAMPA TX 79065

Defendants:


Named inSettlement

Branda Baxter Y Y

Case Milestones:

Event Actual Date




Pollutants:




1


Enforcement Conclusion Name: Enbridge Texas Gathering Pipeline



Settlement Lodged Date:





CostCost Recovery

$500 $110,000



Misc. discharges, free oil 957 Gals SWT C




Complying Actions:


Recordkeeping NA

Removal of spill NA

Training NA








Version 12/03/08


J L1 1 . 2 8 . 5:5984 hl () . () 1 2 8

UNITED STATES ENVIRONMENTAL PROTECTION AGENCYREM OVAL ADM INISTM TIVE ORDER

UNDER SECTION 311(c) OF TI'IE CLEAN WATER ACTREGION 5

IN THE M M -FER OF ENBRIDGE ENEROY PARTNERS, L P.

Dooket Number: CW A 1321-5-10-001

Proceedings under Section 311(c) of the Clean Water Act, 33 U.S.C. j l321(c), as mnended bythe Oi1 Pollution Act of 1990, 33 U.S.C j 2701 et seq.

1. JUIUSDICTION AND GENEKAT. PROVISIONS

l . The United States Envirollmental Protection Agency (USEPA) is issuing this Order to:Enbridge Energy Partners L.P., a Delaware corporation authorized to do business in the State ofMichigan (Respondent). This Order is issued purstmnt to the authority vested in the President ofthe United States by Section 31 l (c) of the Federal Water Pollution Control Act, 33 U.S.C.j 132 1(c), as amended, commonly referred te as the Clean Water Act (CWA). This aatberztyhas been delegated to the Administrator of the USEPA by Executive Order No. 12777, 58 Fe#ltem 54,757 (Oct. 22, 1991), and delegated to the USEPA Regional Administrators by USEPADelegation No. 2-89 and redelegated to On-scene Coordinators by USEPA Region 5 DelegationNo.. 2-89..

2. This Order requires performance of removal actions in connection wit,h a facility locatedat or near 16000 Division Drive in Marshall, M ichiga.n. This Order reqtlires the Respondent toimmediately conduct removal of a discharge or to mitigate or prevent a substantial threat of adiscbarge of oil.

;;. PARTIES 9OUND

3. This Order applies to Respondent. The Order further applies to persons acting on behalfof Respondent, or who succeed to an interest in Respondent.. Any change in ownership orcorporate status of Respondent, including but not limited to a trarlsfer of assets or real orpersonal property will not alter t.he responsibilities under the Order.

4. Respondent must ensure that its contractors, subcontractors, and agents comply with thisOrder. Resgondent will be liable Ibr any violation of tlze Order by its employees, agents,contractors, or subcontractors.

J L1 1 . 2 8 . 5:5984 hl () . () 1 2 8

111. DEFIM TIONS

5. Unless otherwise expressly provided herein, tenns used in this Order which are detined inSection 31 1 of the CWA, 33 I.J.S.C. 5 1321 , or in Section l 001 of the Oil Pollution Act (OPA),33 U.S.C. jj 2701 , shall have the n'tealling assigned to them in the CWA or the ()PA, Whenevertenns listed below are used in this Order, the fbllowing dellnitions shall apply.

6. ''Oil'' shall have the meaning set forth in Section 31 1(a)(1) of the CWA, 33 U.S.C..j 1321(a)(1), for the purposes of the work to be performed tmder this Order, alld Section1001423) of OPA, 33 U..S..C.. # 2701423), for purposes of reimbursement of costs.

7. ''Hazardous substance'' shall have the meanillg set forth in Section 31 1 (a)(14) of theCWA, 33 U.S.C- j 1321(a)(14).

8. ççNavigable waters'' shall have the meaning set forth in Sedion 50247) of the CWA, 33U..S..C. 5 1362(7), Section 1001(21) of OPA, 33 U..S.C.. â 2701(21), and 40 CFR Part 1 10..

9. ''Facility'' sball have t14e meaning set forth i9 Section 31 1(a)(1 0) and (a)(1 1) of the CWA,33 U.S.C. j' j 1321(a)(10) and (a)(1 1), and by Sections 1001(22) and (24) of the OPA, 33 U.S. C.jj 2701 (22) and (24)..

10. ''Discharge'' shail have t.he meanin: set forth in Section 3 l 1(a)(2) of the CWA, 33 U.S.C..5 1321(a)(2) and 40 CFR Part 1 10.1 for purposes of the work to be perlbrmed under this Order,and shall have the meaning set tbrth in Section 1 001(7) of the ()PA, 33 IJ..S.C. 9 2701(7), forpurposes of relmbursement of cost.

''Order'' shall mean this Order

12. ''National Contingency Plan'' or ''NCP'' shall mean the National Oil and HazardousSubstances Pollution Contingency Plan, codilled at 40 CFR Part 300, including, but not limitedto, any amendments thereto.

m FINDINGS OF FACT AND VIOLATIONS

1 3. 'Fhe facility is a pipeline pumping station located at or about l 600() Division Drive inM arshall, M ichigan. The pumping station mld the pipeline are an onshore facility.

14. On July 26, 2010, at 1:33 pm eastern time Respondent notified the National ResponseCenter of an earlier spill at or near Respondent's pump station. Respondent's pipeline (a 30 inch,190,000 barrels per day pipe) began discbarged at least 840,000 gallons of oil to the KalamazooRiver by way olN Talmadge Creek, a ttibutary to the Kalamazoo River and/or the adioiningshorellne accordlng to Respondent. The Kalamcoo Iuver and Talmadge Creek are navigablewaters ofthe United States.

J L1 1 . 2 8 . 5:5984 hl () . () 1 2 8

15. Respondent is the owner and/or operator of the facilitjr or vessel from which thedischarge or substamial threat of a discharge took place.

V. ORDER

Respondent must comply with the following requirementsr

W ork to Be Performed

16. Respondent must perfonn the work necessary to complete the tasks desoribed belûwwithin tlze dates specifed and in accordance with tlw Natjenal Contingency Plan, 40 CFR Pal't300..

17. Respondent must identilày a contact person responsible for the removal within 1 businessday of issumwe of this Order.

18. Respondent must take the following immedlate stabilization and mitigation actions:@ Stop the llow of oi1 into Talmadge Creek and Kalamazoo River by July 28, 2010;* Notify USEPA of the date atld tlme that the flow of oil into Talmadge Creek and

the Kalamc oo River stopped by July 28, 20 10;. Remediate the oi1 and contaminated soils in and around the immediate vicinity of

the zelease by August 27, 20109@ Deploy appropriate oil recovery and containment devices and equipment, e g.

skimmers, vacuum trucks, absorbent/contaimnent booms by July 28, 2010)* Pertbrm air monitoring and sampling as directed by USEPA and public health

offlcials by July 27, 2010 and continuously thereafter ûntil notified by USEPA;* Perform water and sedimelzt sampling of impacted areas as directed by USEPA

by July 27, 2010 and continuously thereafter until notitied by USEPA;@ Remediate aI1 impacted areas (including shoreline) along Talmadge Creek, the

Kalamazoo River, and if impacted M orrow Lalke by September 27, 2010;* Dispose of a1l wastes at USEPA approved disposal facilities; and. Submit a tlnal report to USEPA detailing all work completed including

monitoring and analytical data, disposal records, atld a1l documentation related tothe response by November 27, 2010..

l9. W ithin 2 business days from the effective date of this Order, Respondent must developand submit to USEPA for approval, a work plan (Work Plan) that includes a schedule forcompleting the tasks described below. Respondent must begin work within 1 business day ofUSEPA approval ofthe W ork Plan. The W ork Plan must include the tbllowing tasks:

. Healtlz atld Safety Plml

. Pipeline Repair workplan* Sampling and Analysis Plan. Qapp

J L1 1 . 2 8 . 6:@@8k hl () . () 1 2 8

4

@ Oi1 recovery and containment plan@ Souzce release area remediation plan* Remediation Plan for downstream ilupacted areas# W aste treatment, transportation, and disposal plan

Respondellt must submit the W ork Plan to'

Ralph DollhopfO.S. EPA (ME-W)Superfiznd Response Section 125089 Center Ridge RoadW estlake, Ohio 44145

20.

USEPA will approve, disapprove and require modifications, or modify Rcspondent's W ork PIM ..Once approved or approved wit,h modifications, Respondent's W ork Plan and schcdule becomean enforceable part of this Order..

Reoortinu Recluirements

21. Respondent must submit a written progress report to USEPA concerning actionstmdertaken pursuant to this Order evel'y 7 calendar days after tbe effective date of tMs Order,tmless othem ise directed in writing by USE PA persomzel. These reports must describe a11signiticant developments durin: the preceding period, including work performed and anyproblems encountered, analytical data received during the reportirlg period, and dcvelopmentsanticipated during the next reporting period, incltlding a schedule of work to be performed,arlticipated problems, and plazmed resolutions of past or anticipated problems.

22. Respondent may assert a business confidentiality clalm pursuant to 40 CFR 5 2.203(b)with respect to part or a1l of any information submitted to USEPA pursttant to this Order,provided saeh claim is allowed by Section 308(b)(2) of CWA, 33 U.S.C, j 1 31 8(b)(2). (JSEPAsball only disclose infbrmatlon covered by a business confidentiality claim to tlte extentpem litted by, mzd by means ofthe procedures set forth at 40 CFR. PM 2, Subpart B. Jfno sechclaim accompanies the information when it is recelved by USEPA, USE PA may make itavailable to the public without ftzrtlzer notice to Respondent . Respondent must not assertconlidentialit'y claims with respect to any data or documents related to site condltiops, sampllngor monitoring..

Access to Propertv and Information

23. Respondent must provide access to the facility, to off-site azeas where access is necessat'yto implement this Order, and to a11 documents related to conditions at tlle facility and workconducted under the Order. Respondent must provide this access to USEPA arld the UnitedStates Coast Guard and their contractors and representatives.

J L1 1 . 2 8 . 6:@@8k hl () . () 1 2 8

5

VI. RESERVATION OF RIGHTS AND PENALTIES

24. 'rhis Order shizll not preclude USEPA from taking any action authorized by the CW A, theOPA, the Natiorml Contingency Plan, or mly other applicable law. USEPA reserves the right todirect a1l activities including off-facility shipping, disposal and a11 other matters. Further,nothing herehl shall prevent USEPA from seeking legal or equitable relief to enforce the terms ofthis Order or from taking any other legal or equitable action as it deems approgriate andnecessary, or to reqlzire the Respondent irl the future to perform additional adlvities pursuant totlze CW A, the OPA, or other applicable law.

25. Respondent must notify USEPA of any response actions taken to address tlze dischargedescribed above that are not described in this Order..

26. Violatlon of'any tenn ofthis Order may subjeot Respondent to a civil penalty ofup to$37,500 per day of violation or an amount up to three times the cost incurred by the Oil SpillIaiability Trust Ftmd as a result of such failure under Section 31 1(b)(7)(B) of the CWA, 33U.S.C.. j1321(b)(7)(B), as adjusted by 74 Fei 'ekg's 626 (Jan. 1, 2009) (codified at 40 CFR 19..4)..

27. Respondent may request a conference with USEPA regarding the terms and requirementsof this Order.

VII. EFFECTW E DATE

28. The effective date of this Order shall be the date of the receipt of this Order by theRespondent.

On-scene Coordmator

Received by:Rep'resenting Respondent

N z- l e>D e

Date

.. (sir'} UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ", .,

Enbridge Energy, Limited clo Tom Fridel 1500 West Main Street Griffith , IN 46375

July 31, 2010

Re: U.S. EPA Notice of Disapproval of Enbridge Energy Partners' submissions in response to the Removal Administrative Order issued by U.S. EPA on July 27, 2010, pursuant to §311(c) of the Clean Water Act in Docket No. CWA 1321-5-10-001

Dear Mr. Fridel:

The United States Environmental Protection Agency (U.S. EPA) has completed its initial review of the following documents submitted by Enbridge Energy Partners, Limited (En bridge) on July 29th, pursuant to Paragraph 19 of the above-referenced Order:

Health and Safety Plan

Pipeline Repair Workplan

Sampling and Analysis Plan

Quality Assurance Project Plan ;

Oil Recovery and Containment Plan

Source Release Area Remediation Plan

Remediation Plan for Downstream Impacted Areas

Waste Treatment, Transportation , and Disposal Plan

U.S. EPA disapproves each of these plans due to deficiencies in content and technical details. Specific comments are set forth below and shall be incorporated into the revised plans , pursuant to Paragraph 20 of the EPA Order. As set out below, EPA technical staff have been designated to direct Enbridge's revision of certain plans. In addition , the Incident Commander (IC), Ralph Dollhopf, has directed Enbridge to work with EPA to address a lack of information in several of the plans.

The final plans, as amended, shall be submitted to U.S. EPA by 1700 hours Eastern, August 2, 2010. U.S. EPA IC will then complete a final review. Any additional corrections of and other modifications of the plans will be made by Enbridge as directed by the IC. Enbridge is directed to provide each plan in Microsoft Word format to allow for corrections or modifications to the electronic documents. .

General Comments:

U.S. EPA notes that it was unable to provide comments on certain sections, parts, or plans in their entirety because of significant deficiencies, and reserves the right to disapprove, comment, or modify, as appropriate, upon resubmission. As set out below, the final plans must be comprehensive, detailed, and include standard operating procedures and specifics on types, sizes, and volumes of materials, equipment, supplies and procedures to be utilized and implemented.

Plan-specific Comments:

A. Response to Pipeline Release Remediation Plan for Downstream Impacted Areas

1. First paragraph: add wetlands, floodplain and marshes to the areas included. 2. In the downstream impacted area remediation overview, indicate who will be assessing the downstream impacted areas. 3. Site Assessment Include a description of EPA Shoreline Contamination Assessment Team (SCAT) recommendations. 4. Impacted Area Preparation: explain what is meant by the above description. Pre-removal survey and maintenance of existing boom and skimmer operations are not activities related to sediment removal and remediation . 5. Remedial Actions: in the first sentence: "riverbank remediation", Enbridge will employ the methods recommended by the SCAT teams. Do not limit remedial actions to the two described in this section. There are many techniques that may be employed. Low pressure rinsing: need to discuss booming, collection of oil that was rinsed, etc. 6. Post remedial assessment: who will be assessing the effectiveness of cleaning? Remove the sentence "En bridge believes minimum disturbance of the river banks ... " This is a detemnination that is needed from EPA SCAT teams. 8. The following language should be added to the plan: - Assessment: "SCAT teams will access the river banks, wetlands, flood plains and marsh

areas, and other areas as appropriate and make recommendations on cleanup methods to be used, as well as priorities. It is anticipated that the following techniques will be the main methods used: low pressure rinsing; vegetation removal; vegetation and soil removal; sediment removal." The plan should reference the detailed discussions of these techniques in the National Oceanic & Atmospheric Administrationl US EPA "Options for Minimizing Environmental Impacts of Freshwater Spill Response," a copy of which has been provided to Enbridge.

B. Oil Containment and Recovery Plan

1. The plan has many deficiencies. An example of the required level of detail and organization

is provided below. The plan needs to include a full description of work zones and subzones, as provided in the following example:

Example: A Objective Discussion 1. Remove the ongoing source of crude oil .. ...

This was completed on (date). 2. Remove the ongoing residual source ....

Berm installation (including under flow dams) was initiated on "date"; a total of "number" of berms have been installed as of "date". To meet this objective an additional "number" of berms will be installed by "date"

Include a complete discussion for each objective called out, as shown above.

When the last objective is reached, describe the activity as in the following example:

5. Containment and recovery of recoverable oil in "Creek", "River' ... - begin discussion on strategies, i.e. A zone-based system to strategically recover oil .. .

a. Division A: Leak Site to Downgradient Flume Division A consists of (describe the area) The following resources have been deployed to the Division A site to meet this objective: x boom, x vectra, x sorbent, x personnel, etc.

b. Division B: Flume site to Fourteen Mile Rd. Division B consists of approximately "x" river miles and has been broken up into several sub Divisions (B1, 82, .. .) The following resources have been deployed to Division B to meet this objective: x boom, x sorbenf, x veetra, etc.

C. U.S. EPA Comments on Pipeline Repair Workplan

The Workplan is insufficient. The Plan needs to include a full discussion of work to be performed, the timeframe and a chart for the work to be performed , copies of any Standard Operating Procedures for techniques used and a copy of the PHMSA Order. If this is all in another plan to a different agency, attach that plan with a cover sheet describing it, and cross reference the information U.S. EPA is requesting. The Workplan "schedule", as presented appears to be a listing of documents to be provided to EPA. This did not meet the submission of a plan as directed in the order.

D. U.S. EPA Comments on Enbridge Marshall Response to Pipeline Release Sampling and Analysis Plan (for water and soil)

1. NOTE: This plan wi ll need to be rewritten before it can be reviewed by EPA, as it is insufficient. 2. On line 2, the plan notes that the re lease was confirmed on July 26. 2010. However odor complaints were noted the night before. Your statement must address this information. 3. Chemical and Physical Characterization of Soil: on line 2, change to "verify completeness of remedial activities," on line 5 change to "and other discrete sampling locations ... ". Include an MSDS and an analytical profile of the exact crude in the pipeline so EPA can determine if these parameters cover all constituents specific to this waste. If U.S. EPA determines any parameters have not been represented appropriately, we will require a full scan analytical of product from the source area prior to finalization of this section of the plan . 4. Chemical Characterization of Sediments: Provide Standard Operating Procedures (SOPs) using U.S. EPA sampling guidance and decontamination procedures. If you propose to use

other sampling methods or decontamination procedures, explain why you propose to depart from EPA protocols. This section is insufficient- indicate clearly how cross-contamination will be prevented 5.Chemical Characterization of Groundwater, Surface Water and Potable Water. Add "and Water Column" to the first sentence. Samples from Talmadge Creek, the Kalamazoo River and any downstream lakes including Lake Morrow must include the entire water column as crude droplets or emulsifications may be present in the water column although no sheen is observed and no odors are present. 6. Indude SOPs for low flow sampling methodology. 7. Collect tap water samples prior to use of any filtration device and describe what is meant by "sufficient time prior to sampling". 8. Sample Testing for Waste Characterization: This section is insufficient. List all parameters. 9.Sample Labeling: Need to document locations with photos 10. Quality Assurance/Quality Control:This section needs to reference the QAPP. In the sentence beginning uOne duplicate sample or analysis to verify ... ", delete "or analysis" from this sentence. Include the use of rinsate blanks for non-dedicated equipment. Further direction and clarification will be given in the QAPP review. 11 . Correct spelling errors, you had the word locations misspelled: "Locaitons" 12. Soil: create locations using VSP or similar statistical sampling approach. 13. Sediment: additional sample locations may be added based on the analytical results of these locations- obtain agency input. 14. Potable Water: insert plan for sampling and analysis of potable water here. 15. Sampling locations: include a discussion with rationale for selection of sampling site locations. Include selection criteria for sampling site locations.

The nature of this emergency response effort demands an expedited and efficient review and approval process. U.S. EPA is providing the following three competent and technical resources to ensure that final comprehensive and functional plans for this project can be in place by 1700 hours on August 2, 2010:

For the review, comments, and advice on the Health and Safety plan , U.S. EPA Safety Officer Thomas Crosetto, cell phone number (312) 636-3897, is provided . Mr. Crosetto is on duty during the day shift at the site, generally from 0800 to 2000 hours. If Enbridge wishes to engage work on this plan during night shift as well, please inform U.S. EPA immediately upon determination so the we may provide an additional resource.

QAPP review and technical input will be provided by Tanya Balla, cell phone number (847) 528-2623 , Weston START contractor to U.S. EPA, and will be available during the day shift as wel l. Again, please notify U.S. EPA immediately if additional night shift direction and rewrite facilitation by the agency is required.

All remaining plan input, review and direction will be provided by U.S. EPA On-Scene Coordinator and night shift Deputy Operations Section Chief Stephen Wolfe. Mr. Wolfe is available via cell phone at (440) 241-3620. If sufficient progress is not being made on these plans, notify U.S. EPA immediately upon that determination and we wi ll provide another qualified individual to direct the rewrite of your plan .

U.S. EPA appreciates Enbridge's continued desire to conduct response efforts to the release from your 6B pipeline, but requires that these efforts be conducted safely, promptly, and with appropriate

resources and best technical practices. U.S. EPA will not accept further submissions of deficient plans,

Sincerely,

Ralph Dollhopf Federal On-Scene Coordinator and Incident Commander U.S. EPA, Region 5

cc: L Kirby-Miles, U.S. EPA, ORC J . Kimble, U.S. EPA, Dep. IC, FOSC M. Duma, U.S. EPA, Dep. IC, Section Chief Records Center, USEPA, Reg. V

EXECUTIVE SUMMARY - ENFORCEMENT MATTER Page 1 of 3DOCKET NO.: 2010-0627-AIR-E TCEQ ID: RN1O5093512 CASE NO.: 3953 6

RESPONDENT NAME: Enbridge G & P (North Texas) L.P.

ORDER TYPE:

X 166o AGREED ORDER _FINDINGS AGREED ORDER _FINDINGS ORDER FOLLOWINGSOAH HEARING

_FINDINGS DEFAULT ORDER _SHUTDOWN ORDER _IMMINENT AND SUBSTANTIALENDANGERMENT ORDER

_AMENDED ORDER —EMERGENCY ORDER

CASE TYPE:

X AIR —MULTI-MEDIA (check all that apply) _INDUSTRIAL AND HAZARDOUSWASTE

_PUBLIC WATER SUPPLY _PETROLEUM STORAGE TANKS _OCCUPATIONAL CERTIFICATION

-WATER QUALITY _SEWAGE SLUDGE _UNDERGROUND INJECTIONCONTROL

_MUNICIPAL SOLID WASTE —RADIOACTIVE WASTE _DRY CLEANER REGISTRATION

SITE WHERE VIOLATION(S) OCCURRED: Weatherford Plant, 451 Jones Road, Weatherford, Parker County

TYPE OF OPERATION: Natural gas processing plant

SMALL BUSINESS:

Yes

X No

OTHER SIGNIFICANT MATTERS: There are no complaints. There is no record of additional pending enforcement actionsregarding this facility location.

INTERESTED PARTIES: No one other than the ED and the Respondent has expressed an interest in this matter.

COMMENTS RECEIVED: The Texas Register comment period expired on August 16, 2010. No comments were received.

CONTACTS AND MAILING LIST:TCEQ Attorney/SEP Coordinator: NoneTCEQ Enforcement Coordinator: Ms. Miriam Hall, Enforcement Division, Enforcement Team 4, MC 149, (512)239-1044; Ms. Laurie Eaves, Enforcement Division, MC 219, (512) 239-4495Respondent: Mr. Randall Burdorf, EH&S Manager, Enbridge G & P (North Texas) L.P., P.O. Box 429, Springtown,Texas 76082Mr. Danny Bull, Area Operations Manager, Enbridge G & P (North Texas) L.P., P.O. Box 429, Springtown, Texas 76082Respondent's Attorney: Not represented by counsel on this enforcement matter

execsum/5-23-08/app-26c.doc

RESPONDENT NAME: Enbridge G & P (North Texas) L.P.Page 2 of 3

DOCKET NO.: 2010-0627-AIR-E

VIOLATION SUMMARY CHART:

VIOLATION INFORMATION PENALTY CONSIDERATIONS CORRECTIVE ACTIONSTAKEN/REQUIRED .: .

Type of Investigation:Complaint

Total Assessed: $3,900 Corrective Actions Taken:_

Routine Total Deferred: $78o The Executive Director recognizes thatEnforcement Follow-up X Expedited Settlement the Respondent has implemented the_

X Records Review

Date(s) of Complaints Relating to_Financial Inability to Pay

following corrective measures at thePlant:

this Case: None

Date of Investigation Relating to

SEP Conditional Offset: $o

Total Paid to General Revenue:

a. To correct event reportingdeficiencies:

this Case: November 6, 2009 $3,120 i. On November

2009, trained thePlant Supervisor on emissions event

Date of NOV/NOE Relating to thisCase: December 7, 2009 (NOE)

Site Compliance HistoryClassification

X High _Average _ Poor

reporting procedures; and

ii. On November 11, 2009, reportedBackground Facts: This was arecords review. Person Compliance History

Classification

Incident Nos. 131857 and 131858.

b. On April 2, 200,9, repaired theAIR

1) Failure to submit notification of a

_High

X Average =Poor

Major Source: X Yes _ No

defective process relief valve involvedin Incident No. 13 1.857;

reportable emissions event within 24 c. By June 30, 2009, installed internalhours. Specifically, Incident No. Applicable Penalty Polley: September fans on the main electrical control131857, which occurred on April 2, 2002 panel to prevent it from overheating to2009, was not reported until prevent the recurrence of Incident No.November 11, 2009 [30 TEX. ADMIN.CODE §§ 101.2o1(a)(1)(B) and

131858; and

122.143(4); Federal Operating Permit d. On November 19, 2009, completed("FOP") No. 0-2986, Special Terms construction of an alternate pipeline toand Conditions ("STC") 2.F.; and TEx. allow incoming natural gas, in theHEALTH & SAFETY CODE § 382.085(3)].

2) Failure to submit notification of a

event of a complete Plant shutdown,such as in Incident No. 131858, to:

reportable emissions event within 24 i. Automatically bypass the Slughours. Specifically, Incident No.131858, which occurred on June 10,

Catcher as well as the" rest of the Plant;

2009, was not reported until ii. Be routed around the Plant to theNovember 11, 2009 [30 TEX. ADMIN.CODE §§ 101.201(a)(1)(B) and

discharge pipeline; and

122.143(4); FOP No. 0-2986, STC 2.F.; Continue through the Respondent'sand TEx. HEALTH & SAFETY CODE § pipeline system.382.085(b)].

3) Failure to prevent the unauthorizedrelease of 701.45 pounds ("lbs") ofvolatile organic compounds ("VOC"),377. 53 lbs of nitrogen oxides ("NOx"),and 1,503.56 lbs of carbon monoxide("CO") from the Emergency Flare onApril 2, 2009 during an emissionsevent lasting 40 minutes, which wascaused by a defective process reliefvalve (Incident No. 131857). Becausethe emissions event was not reportedtimely, the demonstrations for an


RESPONDENT NAME: Enbridge G & P (North Texas) L.P.Page 3 of 3

DOCKET NO.: 2010-0627-AIR-E

affirmative defense in 30 TEX. ADMIN.CODE § 101.222 were not met [30 TEX.ADMIN. CODE §§ 116.115(b)(2)(F),116.615(2), and 122.143(4); FOP No. 0-2986, STC lo.B.; and TEx. HEALTH &SAFETY CODE § 382.085(b)].

4) Failure to prevent the unauthorizedrelease of 462.69 lbs of VOC, 247.18 lbsof NOx, and 984.44 lbs of CO from theEmergency Flare on June 10, 2009during an emissions event lasting 30minutes (Incident No. 131858). Theevent was caused by excessive sunlightoverheating the main electrical controlpanel, causing the Plant to shut down,the incoming pipeline to overpressure,and the process relief valve on the SlugCatcher to relieve to the EmergencyFlare. Because these emissions couldhave been foreseen and avoided bygood design and the emissions eventwas not reported timely, thedemonstrations for an affirmativedefense in 30 TEX. ADMIN. CODE §101.222 were not met [30 TEX. ADMIN.CODE §§ 116.115(b)(2)(F), 116.615(2),and 122.143(4); FOP No. 0-2986, STClo.B.; and TEX. HEALTH & SAFETY CODE§ 382.085(b)].

Additional ID No(s).: PCA007G


Penalty Calculation Worksheet (POW2NNW Policy Revision 2 (September 2002)

PCW Revision October30, 2008

aQDATES

AssignedPCW

6-Apr-201015-Apr-2010 Screening

14-Apr-2010

EPA Duel 31-Aug-20101

RESPONDENT/FACILITY INFORMATIONRespondent

Reg. Ent. Ref. No.Facility/Site Region

Enbridge G & P (North Texas) L.P.RN1050935124-DaIIas'Fort Worth

Major/Minor Source Major

CASE INFORMATION[

EnfJCase ID No. 39536 No. of ViolationsDocket No. 2010-0627-AIR-E Order Type •1660

Media Program(s) Air Government/Non-ProfitMulti-Media Enf. Coordinator Miriam Hall

EC's Team Enforcement Team 4Admin. Penalty $ Limit Minimum' $0 'Maximum

$10,000

Penalty Calculation SectionTOTAL BASE PENALTY (Sum of violation base penalties)

ADJUSTMENTS (+/-) TO SUBTOTAL 1:subtotals 2-7 r

1,tv multiplying tl

CCompliance History

Notes

No adjustment due to compliance history.

Good Faith Effort to Comply Total Adjustments

Subtotal 5"

$1,300

t

U

in ii

t,::1 lay0.0% Enhancement

Culpability No 0.0% Enhancement

Notes The Respondent does not meet the culpability criteria.

Subtotal 1

Subtotals 2, 3, & 7

Subtotal 4

Economic Benefitrota) EE .=.maunts

Approx. Ccst cif

pllant a S75,950

0.0% Enhancement'-,Cawed at the Total EB S A:

Subtotal 6 $0$2,349

SUM OF SUBTOTALS 1-7

OTHER FACTORS AS JUSTICE MAY REQUIRE:.educes or enhances the Final Subtotal by the indicated percentage.

0.0%

Notes

Final Subtotal

Adjustment

Final Penalty Amount

$3,900

$0

$3,900'

STATUTORY LIMIT ADJUSTMENT

Final Assessed Penalty'

$3,900

;Reduces the Final Assessed Penalty by the indicted percentage. (Enter number only; e.g. 20 for 20% reducti20.0%DEFERRAL Reduction

v.)Adjustment -$780

Notes

Deferral offered for expedited settlement.

Screening Date 14-Apr-2010

Docket No. 2010-0627-AIR-ERespondent Enbridge G & P (North Texas) L.P.Case ID No. 39536

Reg. Ent. Reference No. RN105093512Media [Statute] Air

Enf. Coordinator Miriam HallCompliance History Worksheet

>> Compliance History Site Enhancement (Subtotal 2)Component Number of...

NOVsWritten NOVs with same or similar violations as those in the current enforcement action(number of NOVs meeting criteria ) 0%

Other written NOVs 0 0%

Orders

Any agreed final enforcement orders containing a denial of liability (number of ordersmeeting criteria ) 0 0%

Any adjudicated final enforcement orders, agreed final enforcement orders without a denialof liability, or default orders of this state or the federal government, or any final prohibitoryemergency orders issued by the commission

0 0%

JudgmentsAny non-adjudicated final court judgments or consent decrees containing a denial of liabilityof this state or the federal government (number of judgements or consent decrees meetingcriteria)

0 0%

and ConsentDecrees Any adjudicated final court judgments and default judgments, or non-adjudicated final court

judgments or consent decrees without a denial of liability, of this state or the federalgovernment

0 0%

Convictions Any criminal convictions of this state or the federal government (number of counts) 0 0%Emissions _Chronic excessive emissions events (number of events) 0 0%

Audits

Letters notifying the executive director of an intended audit conducted under the TexasEnvironmental, Health, and Safety Audit Privilege Act, 74th Legislature, 1995 (number ofaudits for which notices were submitted)

0 0%

Disclosures of violations under the Texas Environmental, Health, and Safety Audit PrivilegeAct, 74th Legislature, 1995 (number of audits for which violations were disclosed) 0%

Environmental management systems in place for one year or more- - No 0%Voluntary on-site. compliance assessments. conducted by the executive director under a No 0%

Other special assistance programParticipation in a voluntary pollution reduction program No 0%Early compliance with, or offer of a product that meets future state or federal government No 0%°environmental requirements

PCWPolicy Revision 2 (September 2002)

PCW Revision October 30, 2008

Compliance History Person Classification (Subtotal 7)Average Performer Adjustment Percentage (Subtotal 7) 0% 1

Repeat Violator (Subtotal 3)Adjustment Percentage (Subtotal 2)

Adjustment Percentage (Subtotal 3) ^ 0%

> Compliance History Summary

No adjustment due to compliance history.Compliance

HistoryNotes

Total Adjustment Percentage (Subtotals 2, 3, &7)I 0%


Docket No. 2010-0627-AIR-ERespondent Enbridge G & P (North Texas) LP.Case ID No. 39536

Ent. Reference No. RN105093512Media [Statute] Air

Enf. Coordinator Miriam Hall Violation Number

Rule Cite(s)

Base Penalty

$10,0001

>> Environmental, Property and Human Health MatrixHarm

Release

Major

Moderate

Minor

>>Programmatic MatrixFs'_tl

r:rPercent

1%

The Respondent met at least 70% of the rule requirement.

Adjustment $9,9001

1

Violation Description

30 Tex. Admin. Code §§ 101.201(a)(1)(B) and 122.143(4); Federal Operating Permit("FOP") No. 0-2986, Special Terms and Conditions ("STC") 2.F.; and Tex. Health &

Safety Code § 382.085(b)

Failed to submit notification of a reportable emissions event within 24 hours. Specifically,Incident No. 131857, which occurred on April 2, 2009, was not reported until November

11, 2009.


PCW Revision October 30, 2008 i

OR

MatrixNotes

1

PotentialllActual

II Percent 0%

Violation Events

mark only onewith an x

ur kh:mocl=ly

L:a NO!

E

annual

223 Number of violation days

Violation Base Penalty

r

One single event is recommended for one late report.

ExtraordinaryOrdinary

N/A

l( rk vith

The Respondent completed corrective actions on November11, 2009.

Good Faith Efforts to Comply 25.0% Reduct i ncBefore NOV NO. T.z

Notes

$25

Economic Benefit (EB) for this violation

Estimated EB Amount $181

Violation Subtotal

Statutory Limit Test

Violation Final Penalty Total

1 $75

$75{ $751This violation Final Assessed Penalty (adjusted for limits)

Economic Benefit Worksheet

Respondent Enbridge G & P (North Texas) L.P.

Case ID No. 39536Reg. Ent. Reference No. RN105093512

Media AirViolation No. 1

Percent Interest Years ofDepreciation

so_ _a

Item CostItem Description No commas or $

Delayed CostsEquipment

BuildingsOther(as needed)

Engineering/constructionLand

Record Keeping System

Training/Sampling

^.Remediation/Disposal

Permit CostsOther(as needed)

Date Required

Final Date

Yrs Interest Saved Onetime Costs

EB Amount

$100 3-Apr-2009 I 1 11-Nov-2009

$500 3-Apr-2009. I 1 10-Nov-2009 0.61

The estimated cost of training the Rant Supervisor on emissions event reporting procedures and the cost ofsubmitting the reports from the due date of the first report to training date and compliance date.

Avoided Costs ANNUALIZE (1] avoided costs before entering item (except for one-time avoided costs)

Disposal ^^ ^^ 0.00 $0 $0

Personnel ^^ ^^ 0.00 $0 $0

Inspection/Reporting/Sampling

I Q (^ 0.00 $0 $0

Supplies/equipment ^^ ^^ 0.00 $0 $0

Financial Assurance [2] ^^ ^^ 0.00 $0 $0

ONE-TIME avoided costs [3] ^^ ^^ 0.00 SO $0

Other (as needed) ^^ ^^ 0.00 $0 $0

Notes for AVOIDED costs

Notes for DELAYED costs

Approx. Cost of Compliance TOTAL

Docket No. 2010-0627-AIR-E

_toss ..

Screening Date 14-Apr-2010Respondent Enbndge G & P (North Texas) L.P.Case ID No. 39536


Enf. Coordinator Miriam Hall Violation Number

Rule Cite(s)




30 Tex. Admin. Code §§ 101.201(a)(1)(B) and 122.143(4); FOP No. 0-2986, STC 2.F.; andTex. Health & Safety Code § 382.085(b)

Failed to submit notification of a reportable emissions event within 24 hours Specifically,Incident No. 131858, which occurred on June 10, 2009, was not reported until November

11, 2009.

Base Penalty

$10,0001

ReleaseActual

Potential Percent 0%

>> Environmental, Property and Human Health MatrixHarm

ModeratelviajoiOR

iviinor

One single event is recommended for one late report.

Good Faith Efforts to Comply

25.0%

I(mark with x)

The Respondent completed corrective actions on November 11,2009.

>>Programrnatic MatrixFalsification Major Moderate Minor

MatrixNotes

Percent P

1%

The Respondent met at least 70% of the rule requirement.

Adjustment

$9,9001

$1001

Number of violation days


$100

Number of Violation Even-

154


dailt,

L 1

monthlyqua^lerly

htinnueann.;a

'1 r;la ever

toss.Rei;u ti n

Before NOV N0.$251


N/A

Notes

,Economic Benefit (EB) for this violation

Estimated EB Amount 1 $01

Violation Subtotal



( $75

$751

This violation Final Assessed Penalty (adjusted for limits)) $751

Economical Benefit Worksheet

Percent Interest Years ofDepreciatiOn . ii

Respondent Enbridge G & P (North Texas) L.P.Case ID No. 39536

q. Ent. Reference No. RN105093512Media Air

Violation No.?_5.0(

15

Item Cost

Date Required

Final bate

Yrs Interest Saved Onetime Costs

EB AmountItem Description

>>mmas or s


BuildingsOther (as needed)


Record Keeping SystemTraining/Sampling

Remediation/Dlsp osalPermit Costs

Other (as needed)

Notes for DELAYED costs The economic benefit is included in Violation No. 1.

Avoided CostsDisposal ....

PersonnelInspection/Reporting/Sampling

Supplies/equipmentFinancial Assurance [2]

ONE-TIME avoided costs [3]Other (as needed)

ANNUALIZE [1].avoided costs before entering item (except for one-time avoided costs)


Approx. Cost of Compliance TOTAL


Docket No. 2010-0627-AIR-E

PCWRespondent Enbridge G & P (North Texas) L.P.

Policy Revision 2 (September 20021

Case ID No. 39536



Enf. Coordinator Miriam HallViolation Number

Rule Cite(s)

Failed to prevent the unauthorized release of 701.45 pounds ("Ibs") of volatile organiccompounds ("VOC"), 377.53 Ibs of nitrogen oxides ("NOx"), and 1,503.56 lbs of carbonmonoxide ("CO") from the Emergency Flare on April 2, 2009 during an emissions eventlasting 40 minutes, which was caused by a defective process relief valve (Incident No.

131857). Because the emissions event was not reported timely, the demonstrations for anaffirmative defense in 30 Tex. Admin. Code § 101.222 were not met.

Base Penalty) $10,000

Percent ; 25%I

330 Tex. Admin. Code §§ 116.115(b)(2)(F), 116.615(2), and 122.143(4); FOP No. 0-2986,

STC 10.B.; and Tex. Health & Safety Code § 382.085(b)


Environmental, Property and Human Health MatrixHarm

Release Major ModerateOR

ActualPotential

Minor

>>Programmatic MatrixFalsification Major

Percent I 0%'MinorModerate

Human health or the environment has been exposed to insignificant emissions which do not exceed levelsthat are protective of human health or environmental receptors as a result of this violation.

Adjustment:

$7,500

Number of violation days


One quarterly event is recommended for the emissions event which occurred on April 2, 2009.

Good Faith Efforts to Comply

25.0%

$6251Before NOV NOV to EDPRP/Settlement Offer

MatrixNotes

Violation Events

Number of Violation Events


dailyweekly

itmonthlyquarterly x

semiannualannual

single eve

$2,500111

$2,5001

x((mark with x)


N/A

NotesThe Respondent completed corrective actions on November 11,

2009.

Violation Subtotal' $1,875



Estimated EB Amount

$01

Violation Final Penalty Total! $1,8751

This violation Final Assessed Penalty (adjusted for limits)

$1,8751

Economic Benefit WorksheetRespondent Enbridge G & P (North Texas) L.P.Case ID No. 39536

Req. Ent. Reference No. RN105093512Media Air

Violation No. 3

Item Cost

Date RequiredItem Description No commas or $

Percent Interest

Years ofDepreciation

5 p

15Final Date

Yrs Interest Saved Onetime Costs EB Amount

Delayed CostsEquipmentBuildings

Other (as needed)Engineering/construction

LandRecord Keeping System

Training/SamplingRemediation/Disposal

Permit CostsOther (as needed)


Avoided CostsDisposal


Supplies/equipmentFinancial Assurance [2]

ONE-TIME avoided costs (3]Other (as needed)


, I

2-Apr-2009

I I

3-Apr-2009 0.00 $0 $0 $0$0 $0 $0II

-

I L 0.00I I

I L 0.00 $0 $0 $0I I

I I 1 0.00 $0 $0 $0I I

I I 1 0.00 $0 n/a $0p

I I 1 0.00 $o n/a $0I I I I 0.00 $0 n/a $0I I

I I 1 0.00 $0 n/a $0I II II 0.00 $0 n/a $0I I I I I 1 0.00 $o n/a $0

The actual cost of repairing the valve which was repaired on the day of the event. Because the affirmativedefense was not met due to late reporting, most of the economic benefit is included in Violation No. 1.

ANNUALIZE [11 avoided costs before entering item (except for one-time avoided costs-II

II

I o.00 $o.. $o $oII

II o.00 $0 $o_ $0II

II

I o.00 $0 $0 $0I_

II

II

1 0.00 $0 $0 $0II

II

1 0.00 $0 $0 $0II

II

I o.oO $0 $0 _ $0II

II

1 0.00 $0 $0 $0

Approx. Cost of Compliance 1 $01TOTAL

Screening Date 14-Apr-2010 Docket No. 2010-0627-AIR-E PCWRespondent Enbridge G & P (North Texas) L.P. Policy Revision 2 ('Spclo ber 2002)

Case ID No. 39536 PCW Revision October 30, 2008Reg. Ent. Reference No. RN105093512

Media [Statute] AirEnf. Coordinator Miriam Hall

430 Tex. Admin. Code §§ 116.115(b)(2)(F), 116.615(2), and 122.143(4); FOP No. 0-2986,

STC 10.B.; and Tex. Health & Safety Code § 382.085(b)Failed to prevent the unauthorized release of 462.69 Ibs of VOC, 247.18 Ibs of NOx, and984.44 Ibs of CO from the Emergency Flare on June 10, 2009 during an emissions eventlasting 30 minutes (Incident No. 131858). The event was caused by excessive sunlight

overheating the main electrical control panel, causing the Plant to shut down, the incomingpipeline to overpressure, and the process relief valve on the Slug Catcher to relieve to theEmergency Flare. Because these emissions could have been foreseen and avoided bygood design and the emissions event was not reported timely, the demonstrations for an

affirmative defense in 30 Tex. Admin. Code § 101.222 were not met.

Base Penalty

$10,000

>> Environmental Property and Human Health Matrix

Release

MajorHarm

Moderate MinorOR

Actual 1 x

iPotential Percent

!

>>Programmatic MatrixFalsification

Major Moderate Minor1 Percent

Human health or the environment has been exposed to insignificant emissions which do not exceed levelsthat are protective of human health or environmental receptors as a result of this violation.

Adjustment! $7,5001

)

$2,5001

Violation Events

Number of Violation Events

1

(

1

! Number of violation days

Violation NumberRule Cite(s)


25%1

0%

MatrixNotes

dailyweeklymonthlyquarterly

semiannusannual

single event

mark only onewith an x Violation Base Penalty $2,5001

One quarterly event is recommended for the emissions event which occurred on June 10, 2009.

Good Faith Efforts to Comply 25.0%Before NOV

Reduction,ssNOV to EDPRkiSettlement Offer


N/A

(x

!

((mark ith x)

$6251

Notes The Respondent completed corrective actions on November 19,2009.


Estimated EB Amount

$2,3311

Violation Subtotal! $1,875)



$1,8751

This violation Final Assessed Penalty (adjusted for limits)

$1,875)

Economic Benefit WorksheetRespondent Enbridge G & P (North Texas) L.P.Case ID No. 39536

Req. Ent. Reference No. RN105093512Media Air

Violation No. 4

Kern Cost

Date Required

Final Date

Yrs Interest SavedItem Description No commas or $

$200 Q

10-Jun-2009

I I

30-Jun-2009 0.05 $0 $1 $1I I

I I

1 0.00 $0 $0 $0I I

I I

I 0.00 $0 $0 $075 000 I

10-Jun-2009

I I

19-Nov-2009

1 0.44 $111 $2,219 $2,330... II I I

I 0.00 $0 n/a $0.. II II 0.00 $0 n/a $0II 11 ; 0.00 $0 n/a $0II II 0.00 $0 n/a $0I I I I

1 0.00 $0 n/a $0I II II

I 0.00 $0 n/a $0

The estimated costs for installing internal fans on the electrical panel and for engineering/construction of analternate pipeline to allow incoming natural gas to automatically bypass the Slug Catcher as well as the rest of theplant in the event of a complete plant shutdown. The incoming natural gas now has the ability to be routed aroundthe plant to the discharge pipeline and continue through the Respondent's pipeline system. The begin date is the

date of the violation and the final date is the date that corrective actions were completed.

ANNUALIZE [1] avoided costs before entering item (except for one-time avoided costsI

11

II

I o.00 $o $0 ._ $o

II

II

I 0.00 $0 $0 $0I

II

II

1 0.00 $0 $0 $0II

,

II

I 0.00 $0 $0 $0II

II 0.00 $0 $0 $0I._

.,

II

II

( 0.00 $0 $0 . $o

II

II 0:00 $0 $0 $0

Approx. Cost of Compliance

$75,200

TOTAL

$2,3311

Years ofPercent Interest Depreciation

Onetime Costs EB Amount


BuildingsOther (as needed)


Record Keeping SystemTraining/Sampling

Re me d iatio n/DisposalPermit Costs

Other (as needed)


Avoided CostsDisposal


Supplies/equipmentFinancial Assurance (2]

ONE-TIME avoided costs [3]Other (as needed)


Compliance History ReportCustomer/Respondent/Owner-Operator. CN603042623

Enbridge G & P (North Texas) L.P.

Classification: AVERAGE Rating: 1.53

Regulated Entity: RN105093512

WEATHERFORD PLANT

Classification: HIGH Site Rating: 0.00

ID Number(s): AIR NEW SOURCE PERMITSAIR NEW SOURCE PERMITS

AFS NUMACCOUNT NUMBER

4836700156PCA007G

AIR NEW SOURCE PERMITS REGISTRATION 81024AIR OPERATING PERMITSAIR EMISSIONS INVENTORY

PERMITACCOUNT NUMBER

2986PCA007G

Location: 451 JONES RD, WEATHERFORD, TX, 76088

TCEQ Region: REGION 04 - DFW METROPLEX

Date Compliance History Prepared: April 08, 2010

Agency Decision Requiring Compliance History: Enforcement

Compliance Period: April 08, 2005 to April 08, 2010

TCEQ Staff Member to Contact for Additional Information Regarding this Compliance History

Name:

Miriam Hall

Phone:

(512) 239-1044

Site Compliance History Components

1. Has the site been in existence and/or operation for the full five year compliance period?

No

2. Has there been a (known) change in ownership/operator of the site during the compliance period?

No

3. If Yes, who is the current owner/operator?

N/A

4. if Yes, who was/were the prior owner(s)/operator(s) ?

5. When did the change(s) in owner or operator occur?

6. Rating Date: 9/1/2009 Repeat Violator: NO

Components (Multimedia) for the Site :

A. Final Enforcement Orders, court judgements, and consent decrees of the state of Texas and the federal government.

N/A

B. Any criminal convictions of the state of Texas and the federal government.

N/A

C.

Chronic excessive emissions events.

N/A

D. The approval dates of investigations. (CCEDS Inv. Track. No.)

1 03/19/2008 (636617)2 03/19/2008 (637808)3 08/27/2008 (688711)4 09/18/2008 (701055)5 09/02/2009 (765720)6 12/04/2009 (781817)7 01/22/2010 (785229)

E. Written notices of violations (NOV). (CCEDS Inv. Track. No.)

N/A

F. Environmental audits.

N/A

G.

Type of environmental management systems (EMSs).

N/A

H. Voluntary on-site compliance assessment dates.

N/A

N/A

N/A

I. Participation in a voluntary pollution reduction program.

N/A

J. Early compliance.

N/A

Sites Outside of TexasN/A

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

IN THE MATTER OF AN

§

BEFORE THEENFORCEMENT ACTION

§CONCERNING

§

TEXAS COMMISSION ONENBRIDGE G & P (NORTH TEXAS)

§L.P.

§RN105093512

§

ENVIRONMENTAL QUALITY

AGREED ORDERDOCKET NO. 2010-0627-AIR-E

T. JURISDICTION AND STIPULATIONS

At its agenda, the Texas Commission on Environmental Quality ("theCommission" or "TCEQ") considered this agreement of the parties, resolving an enforcement actionregarding Enbridge G & P (North Texas) L.P. ("the Respondent") under the authority of TEX. HEALTH &SAFETY Code ch. 382 and TEX. WATER CODE ch. 7. The Executive Director of the TCEQ, through theEnforcement Division, and the Respondent appear before the Commission and together stipulate that:

1. The Respondent owns and operates a natural gas processing plant at 451 Jones Road inWeatherford, Parker County, Texas (the "Plant").

2. The Plant consists of one or more sources as defined in TEX. HEALTH & SAFETY CODE §382.003(12).

3. The Commission and the Respondent agree that the Commission has jurisdiction to enter thisAgreed Order, and that the Respondent is subject to the Commission's jurisdiction.

4. The Respondent received notice of the violations alleged in Section II ("Allegations") on or aboutDecember 12, 2009.

5. The occurrence of any violation is in dispute and the entry of this Agreed Order shall notconstitute an admission by the Respondent of any violation alleged in Section II ("Allegations"),nor of any statute or rule.

6. An administrative penalty in the amount of Three Thousand Nine Hundred Dollars ($3,900) isassessed by the Commission in settlement of the violations alleged in Section II ("Allegations").The Respondent has paid Three Thousand One Hundred Twenty Dollars ($3,120) of the

Enbridge G & P (North Texas) L.P.DOCKET NO.20l0-0627-AIR-EPage 2

administrative penalty and Seven Hundred Eighty Dollars ($780) is deferred contingent upon theRespondent's timely and satisfactory compliance with all the terms of this Agreed Order. Thedeferred amount will be waived upon full compliance with the terms of this Agreed Order. If theRespondent fails to timely and satisfactorily comply with all requirements of this Agreed Order,the Executive Director may require the Respondent to pay all or part of the deferred penalty.

7.

Any notice and procedures, which might otherwise be authorized or required in this action, arewaived in the interest of a more timely resolution of the matter.

8.

The Executive Director of the TCEQ and the Respondent have agreed on a settlement of thematters alleged in this enforcement action, subject to the approval of the Commission.

9.

The Executive Director recognizes that the Respondent has implemented the following correctivemeasures at the Plant:

a.

To correct event reporting deficiencies:

i. On November 10, 2009, trained the Plant Supervisor on emissions event reportingprocedures; and

ii. On November 11, 2009, reported Incident Nos. 131857 and 131858.

b.

On April 2, 2009, repaired the defective process relief valve involved in Incident No.131857;

c.

By June 30, 2009, installed internal fans on the main electrical control panel to prevent itfrom overheating to prevent the recurrence of Incident No. 131858; and

On November 19, 2009, completed construction of an alternate pipeline to allowincoming natural gas, in the event of a complete Plant shutdown, such as in Incident No.131858, to:

i. Automatically bypass the Slug Catcher as well as the rest of the Plant;

ii. Be routed around the Plant to the discharge pipeline; and

iii. Continue through the Respondent's pipeline system.

10. The Executive Director may, without further notice or hearing, refer this matter to the Office ofthe Attorney General of the State of Texas ("OAG") for further enforcement proceedings if theExecutive Director determines that the Respondent has not complied with one or more of theterms or conditions in this Agreed Order.

11.

This Agreed Order shall terminate five years from its effective date or upon compliance with allthe terms and conditions set forth in this Agreed Order, whichever" is later.

12. The provisions of this Agreed Order are deemed severable and, if a 'court of competentjurisdiction or other appropriate authority deems any provision of this Agreed Orderunenforceable, the remaining provisions shall be valid and enforceable.

Enbridge G & P (North Texas) L.P.DOCKET NO.2010-0627-AIR-EPage 3

II. ALLEGATIONS

As owner and operator of the Plant, the Respondent is alleged to have:

1. Failed to submit notification of a reportable emissions event within 24 hours, in violation of 30TEX. ADMIN. CODE §§ 101.201(a)(1)(B) and 122.143(4); Federal Operating Permit ("FOP") No.0-2986, Special Terms and Conditions ("STC") 2.F.; and TEX. HEALTH & SAFETY CODE§ 382.085(b), as documented during a record review conducted on November 6, 2009.Specifically, Incident No. 131857, which occurred on April 2, 2009, was not reported untilNovember 11, 2009.

2. Failed to submit notification of a reportable emissions event within 24 hours, in violation of 30TEX. ADMIN. CODE §§ 101.201(a)(1)(B) and 122.143(4); FOP No. 0-2986, STC 2.F.; and TEx.HEALTH & SAFETY CODE § 382.085(b), as documented during a record review conducted onNovember 6, 2009. Specifically, Incident No. 131858, which occurred on June 10, 2009, was notreported until November 11, 2009.

3.. Failed to prevent the unauthorized release of 701.45 pounds ("lbs") of volatile organic compounds("VOC"), 377.53 lbs of nitrogen oxides ("NO,,"), and 1,503.56 lbs of carbon monoxide ("CO")from the Emergency Flare on April 2, 2009 during an emissions event lasting 40 minutes, whichwas caused by a defective process relief valve (Incident No. 131857), in violation of 30 TEx.ADMIN. CODE §§ 116.115(b)(2)(F), 116.615(2), and 122.143(4); FOP No. 0-2986, STC 10.B.;and TEX. HEALTH & SAFETY CODE § 382.085(b), as documented during a record reviewconducted on November 6, 2009. Because the emissions event was not reported timely, thedemonstrations for an affirmative defense in 30 TEX. ADMIN. CODE § 101.222 were not met.

4. Failed to prevent the unauthorized release of 462.69 lbs of VOC, 247.18 lbs of NO,,, and 984.44lbs of CO from the Emergency Flare on June 10, 2009 during an emissions event lasting 30minutes (Incident No. 131858), in violation of 30 TEX. ADMIN. CODE §§ 116.115(b)(2)(F),116.615(2), and 122.143(4); FOP No. 0-2986, STC 10.B.; and TEX. HEALTH & SAFETY CODE §382.085(b), as documented during a record review conducted on November 6, 2009. The eventwas caused by excessive sunlight overheating the main electrical control panel, causing the Plantto shut down, the incoming pipeline to overpressure, and the process relief valve on the SlugCatcher to relieve to the Emergency Flare. Because these emissions could have been foreseen andavoided by good design and the emissions event was not reported timely, the demonstrations foran affirmative defense in 30 TEX. ADMIN. CODE § 101.222 were not met.

III. DENIALS

The Respondent generally denies each allegation in Section II ("Allegations").

Enbridge G & P (North Texas) L.P.DOCKET NO. 2010-0627-AIR-EPage 4

IV. ORDERING PROVISIONS

1. It is, therefore, ordered by the TCEQ that the Respondent pay an administrative penalty as setforth in Section I, Paragraph 6 above. The payment of this administrative penalty and theRespondent's compliance with all the terms and conditions set forth in this Agreed Order resolveonly the allegations in Section II. The Commission shall not be constrained in any manner fromrequiring corrective action or penalties for violations which are not raised here. Administrativepenalty payments shall be made payable to "TCEQ" and shall be sent with the notation "Re:Enbridge G & P (North Texas) LP., Docket No. 2010-0627-AIR-E" to:

Financial Administration Division, Revenues SectionAttention: Cashier's Office, MC 214Texas Commission on Environmental QualityP.O. Box 13088Austin, Texas 78711-3088

2. The provisions of this Agreed Order shall apply to and be binding upon the Respondent. TheRespondent is ordered to give notice of the Agreed Order to personnel who maintain day-to-daycontrol over the Plant operations referenced in this Agreed Order.

3. This Agreed Order, issued by the Commission, shall not be admissible against the Respondent ina civil proceeding, unless the proceeding is brought by the QAG to: (1) enforce the terms of thisAgreed Order; or (2) pursue violations of a statute within the Commission's ,jurisdiction, or of arule adopted or an order or permit issued by the Commission under such a statute,

This Agreed Order may be executed in multiple counterparts, which together shall constitute asingle original instrument. Any executed signature page to this Agreed Order may be transmittedby facsimile transmission to the other parties, which shall constitute an original signature for allpurposes under this Agreed Order.

5. Under 30 TEX. ADMIN. CODE § 70.10(b), the effective date is the date of hand-delivery of theOrder to the Respondent, or three days after the date on which the Commission mails notice of theOrder to the Respondent, whichever is earlier. The Chief Clerk shall provide a copy of thisAgreed Order to each of the parties.

Enbridge G & P (North Texas) L.P.DOCKET NO. 2010-0627-AIR-EPage 5

SIGNATURE PAGE

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

For the Commission

Datel2j2..or y

I, the undersigned, have read and understand the attached. Agreed Order. I am authorized to agree to theattached Agreed Order on behalf of the entity indicated below my signature, and I do agree to the termsand conditions specified therein. I further acknowledge that the TCEQ, in accepting payment for thepenalty amount, is materially relying on such representation.

I also understand that failure to comply with the Ordering Provisions, if any, in this order and/or failure totimely pay the penalty amount, may result in:• A negative impact on compliance history;• Greater scrutiny of any permit applications submitted;• Referral of this case to the Attorney General's Office for contempt, injunctive relief, additional

penalties, and/or attorney fees, or to a collection agency;• Increased penalties in any future enforcement actions;•

Automatic referral to the Attorney General's Office of any future enforcement actions; and•

TCEQ seeking other relief as authorized by law.In addition, any falsification of any compliance documents may result in criminal prosecution.

6 //OA,Date

B14Name (Printed qr typed)Authorized Representative ofEnbridge G & P (North Texas) L.P.

4^i4^7Praio,1iflA 44 rrTitle

Instructions: Send the original, signed Agreed Order with penalty payment to the Financial Administration Division, RevenuesSection at the address in Section IV, Paragraph 1 of this Agreed Order.

Mr. Dan Tutcher President Enbridge Pipelines, L.L.C. 1 100 ...

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