(a) The person seeking to obtain a FOA has the burden of providing sufficient evidence to the executive director that the following criteria have been met.      
        (1) The facility must be an operational chemical or petroleum manufacturing plant with North American Industrial Classification System code numbers 325 or 324, respectively, which is actively in production of a product stream.       
        (2) The facility must be subject to a hazardous waste permit or commission corrective action order. Facilities that are in operation but that have not received a hazardous waste permit as of the effective date of this rule shall obtain authorization for a FOA by means of a corrective action order.       
        (3) The facility must restrict access to the FOA such that only workers and authorized visitors who have been provided appropriate training or are subject to controls on their activities are permitted to enter the FOA.       
        (4) The facility must conduct a worker health and safety program. The facility must be able to document that the worker health and safety program meets or exceeds requirements of the Occupational Safety and Health Administration (OSHA) as demonstrated by:                  (A) its OSHA compliance history, or                   (B) results of evaluation by a third party certified industrial hygienist and safety specialist.         
        (5) the facility must have an average of both lost workday injury case rates and injury incidence rates for the most recent three-year period at or below the most recent specific industry national average published by the Bureau of Labor Statistics.       
        (6) The facility must have an audit of its health and safety programs by the Occupational Safety and Health Administration or a third party certified professional industrial hygienist and safety specialist anytime there is a significant change to the health and safety program, or at a minimum of every three years, the results of which indicate the program is satisfactory.       
        (7) The facility must have a program to protect workers within the FOA from environmental media having concentrations of COCs greater than PCLs or action levels based on the health and safety program.       
        (8) The facility must have a pollution prevention program that has as a goal the prevention of releases of COCs to environmental media within the FOA. The facility can satisfy this criterion with one or more of the following options:                  (A) conduct a program to inspect and maintain on an appropriate frequency the physical integrity of structures used for the manufacturing, storage and conveyance of products or feed stocks so as to prevent or, if detected, to abate unauthorized releases of COCs to environmental media. These procedures are to be applied within the FOA to all structures with potential to release COCs not already addressed by commission rules for hazardous waste management facilities (e.g., secondary containment systems for tanks);                   (B) some other spill prevention approach for which the facility can demonstrate equivalent performance with the program of subparagraph (A) of this paragraph; or                   (C) acceptance of the facility into a commission-sponsored multi-media voluntary pollution prevention program, such as Clean Industries Plus or a program deemed equivalent by the executive director.         
        (9) The facility must not have any significant outstanding non-compliance issues resulting from inspections for compliance with its Resource Conservation and Recovery Act permit or any commission order.       
        (10) The facility must be able to meet requirements for financial assurance in accordance with Chapter 37 of this title (relating to Financial Assurance).       
      (b) Other criteria that may be considered include, but are not limited to, the risk to human health and the environment that would be presented by the granting of a FOA, the compliance history of the facility determined in accordance with Chapter 60 of this title (relating to Compliance History), as amended, and any other pertinent information.     
     Source Note:        The provisions of this §350.134 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526