TECHNICAL SUPPORT DOCUMENT 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary 

Suspension or Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction 

and Modification 

Revisions Submitted on August 31, 1993; December 10, 1998; February 1, 2006; and July 17, 2006 

January 28, 2012

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Mohr, United States Environmental 

Protection Agency Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue, Dallas, Texas, 75202-

2733, (214) 665-7289
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

2 

 Discussion of Revisions to Chapter 35 – Emergency and Temporary Orders and Permits and 

Chapter 116 – Control of Air Pollution by Permits for New Construction and Modification 

I. Introduction.

A. Overview. This Technical Support Document (TSD) is a technical evaluation of submitted 

revisions to the Texas State Implantation Plan (SIP) that relate to Emergency Orders. 

Specifically, this is an evaluation of SIP revisions to the following Chapters under Title 30 of 

the Texas Administrative Code (30 TAC) that relate to Emergency Orders: 

 Chapter 35 – Emergency and Temporary Orders and Permits; and 

 Chapter 116 – Control of Air Pollution by Permits for New Construction and Modification. 

B. What are we addressing in this action? EPA is addressing portions of the SIP revisions 

identified below that include provisions relating to Emergency Orders. Additional 

information is included in Tables 1 and 2 in section II, and in the Appendix.1

 Submitted August 31, 1993. Original Recodification of Chapter 116. 

 Submitted December 10, 1998. Emergency and Temporary Orders; Rule Project No. 

97142-035-PD. 

 Submitted February 1, 2006. Federal New Source Review Permit Rules Reform; Rule 

Project No. 2005-010-116-PR. 

 Submitted July 17, 2006. Revisions to Provisions for Emergency Orders; Rule Project No. 

2005-070-035-LS. 

C. What are we not addressing in this action? As part of this action, EPA is reviewing only 

those portions that are applicable to the issuance of air Emergency Orders. Under the Federal 

Clean Air Act (Act or CAA), SIPs can only include provisions addressing criteria pollutants 

and their precursors, so the portions of the Texas submittals related to non-air orders cannot 

be included in the SIP. Therefore, EPA is returning the non-air portions of the 

aforementioned submittals to the State. 

D. What is the date for taking final action on these SIP submittals? Final action by March 1, 

2013, will meet EPA’s obligation on the Emergency and Temporary Orders component of 

the May 21, 2009, Settlement Agreement between EPA and the BCCA Appeal Group, Texas 

Association of Business, and Texas Oil and Gas Association. 

 

1

 The revisions submitted August 31, 1993, and February 1, 2006, include other rules that are severable from the rule that 

relate to Emergency Orders, many which have been, or will be taken in separate actions. This action only addressed the rules 

that relate to Emergency Orders. 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

3 

II. Overview of the Submitted Revisions to Chapters 35 and 116.

A. Are any of the rules and regulations which relate to Emergency Orders currently SIPapproved? The rules and regulations which relate to Emergency Orders are not currently 

SIP-approved. 

B. What are we reviewing for this action? The pending SIP revisions are summarized in Tables 

1 and 2 below. See the Appendix for further details on the specific changes that were 

submitted. 

Table 1. Summary of Pending SIP Submittals Addressed in this Action 

Description of SIP 

Submittal 

Date 

Submitted 

to EPA 

Date 

Adopted 

by State 

Date 

Effective as 

State Rule 

Sections Related to Emergency Orders 

Original Recodification 

of Chapter 116 

8/31/1993 8/16/1993 9/13/1993 Chapter 116: Submittal of §§116.410 through 

116.418 

Emergency and 

Temporary Orders 

12/10/1998 11/18/1998 12/10/1998 Chapter 35: Submittal of §§35.1-35.3, 35.11-

35.13, 35.21-35-30, and 35.801-35.809 

Chapter 116: Revisions to §116.410; Repeal of 

§§116.411-116.418, which were replaced by 

§§35.802-35.809 

Federal New Source 

Review Permits Rules 

2/1/2006 1/11/2006 2/1/2006 Chapter 116: Recodification of §116.410 to 

§116.1200 

Revision to Provisions 

for Emergency Orders 

7/17/2006 6/28/2006 7/19/2006 Chapter 35: Revisions to §§35.801, 35.802, 

35.804, 35.805, 35,807, and 35.808 

Table 2. Summary of the Individual Revisions to Each Section Evaluated 

Section - Title Date 

Submitted 

to EPA 

Adopted by 

State 

Effective as 

State Rule 

Comments 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of 

Permits Conditions

Subchapter A – Purpose, Applicability, and Definitions

§35.1 – Purpose 12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.2 – Applicability 12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.3 – Definitions 12/10/1998 11/18/1998 12/10/1998  Initial adoption 

Subchapter B – Authority of the Executive Director

§35.11 – Purpose and 

Applicability 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.12 – Authority of the 

Executive Director 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.13 – Eligibility of the 

Executive Director 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

Subchapter C – General Provisions

§35.21 – Action by the 

Commission or Executive 

Director 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.22 – Term and Renewal 

of Orders 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

4 

Section - Title Date 

Submitted 

to EPA 

Adopted by 

State 

Effective as 

State Rule 

Comments 

§35.23 – Effect of Orders 12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.24 – Application for 

Emergency or Temporary 

Orders 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.25 – Notice and 

Opportunity for Hearing 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.26 – Contents of 

Emergency or Temporary 

Orders 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.27 – Hearing Required 12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.28 – Hearing Requests 12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.29 – Procedures for a 

Hearing 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

§35.30 – Application Fees 12/10/1998 11/18/1998 12/10/1998  Initial adoption 

Subchapter K – Air Orders2

§35.801 – Emergency 

Orders Because of 

Catastrophe 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

7/17/2006 6/28/2006 7/19/2006  Revisions to §35.801 

§§35.802 – Application for 

an Emergency Order 

8/31/1993 8/16/1993 9/13/1993  Initial adoption as §116.411 

12/10/1998 11/18/1998 12/10/1998  Redesignated to §35.802; 

Revisions to introductory ¶; 

Revisions to ¶¶(1) – (8); 

New ¶(9); and 

Redesignate former ¶(9) to ¶(10) w/ revisions 

7/17/2006 6/28/2006 7/19/2006  Revisions to introductory ¶(1) and ¶(5). 

§35.803 – Public 

Notification 

8/31/1993 8/16/1993 9/13/1993  Initial adoption as §116.412 

12/10/1998 11/18/1998 12/10/1998  Redesignated to §35.803; and 

Revisions to introductory ¶ 

§35.804 – Issuance of an 

Emergency Order 

12/10/1998 11/18/1998 12/10/1998  Initial adoption 

7/17/2006 6/28/2006 7/19/2006  Revision to ¶¶(1) and (1)(C) 

 

 

2

 On August 18, 1993, §§116.411 through 116.418 were adopted under Chapter 116, Subchapter E – Emergency Orders. On 

November 18, 1998, these regulations were replaced with §§35.802 through 35.809 and placed in Chapter 35, Subchapter K. 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

5 

Section - Title Date 

Submitted 

to EPA 

Adopted by 

State 

Effective as 

State Rule 

Comments 

§35.805 – Contents of an 

Emergency Order 

8/31/1993 8/16/1993 9/13/1993  Initial adoption as §116.415 

12/10/1998 11/18/1998 12/10/1998  Redesignated to §35.805; and 

Revision to introductory ¶ and ¶¶(1) – (4) 

7/17/2006 6/28/2006 7/19/2006  Reorganization of ¶(3) to ¶¶(3), (3)(A), and 

(3)(B); 

 New ¶(3)(C); 

 New; and 

 Redesignation of existing ¶(4) to ¶(5) w/ 

revisions 

§35.806 – Requirement to 

Apply for a Permit or 

Modification 

8/31/1993 8/16/1993 9/13/1993  Initial adoption as §116.416 

12/10/1998 11/18/1998 12/10/1998  Redesignated to §35.806; and 

 Revisions to introductory ¶ 

§35.807 – Affirmation of an 

Emergency Order 

8/31/1993 8/16/1993 9/13/1993  Initial adoption as §116.414 

12/10/1998 11/18/1998 12/10/1998  Redesignated to §35.807; and 

 Revisions to the introductory ¶, ¶¶(1)-(3); 

 New ¶(4); 

 Redesignation of former (4)-(5) to ¶¶(5)-

(6) w/ revisions 

7/17/2006 6/28/2006 7/19/2006  Revisions to ¶¶(1) 

 Reorganization of ¶(5) into ¶¶(5), (5)(A), 

and (5)(B); and 

 New ¶(5)(C) 

§35.808 – Modification of 

an Emergency Order 

8/31/1993 8/16/1993 9/13/1993  Initial adoption as §116.417 

12/10/1998 11/18/1998 12/10/1998  Redesignated to §35.808; and 

 Revisions to ¶¶(1)-(3) 

7/17/2006 6/28/2006 7/19/2006  Revision to ¶(1) 

§35.809 – Setting Aside an 

Emergency Order 

8/31/1993 8/16/1993 9/13/1993  Adopted as §116.418 

12/10/1998 11/18/1998 12/10/1998  Redesignated to §35.809; and 

 Revision to introductory ¶ 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction or Modification 

Subchapter K– Emergency Orders

§116.1200 – Applicability 8/31/1993 8/16/1993 9/13/1993  Initial adoption as §116.410 

12/10/1998 11/18/1998 12/10/1998  Revised introductory ¶ 

2/1/2006 1/11/2006 2/1/2006  Redesignated to §116.1200 

III. Summary of the Texas Emergency Orders Program 

A. General Description of the Texas Emergency Orders Program, In general the regulations 

governing the Emergency Orders Program are located in 30 TAC Chapter 35 – Emergency 

and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit 

Conditions. These regulations provide the process by which the Texas Commission on 

Environmental Quality (TCEQ) may issue a Temporary Order, Emergency Order, Mandatory 

Order, Permissive Order, and Prohibitory Order. 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

6 

B. Summary of Emergency Orders that are Issued under the Air Quality Program. The TCEQ 

may issue an Emergency Order under its air quality program which authorizes immediate 

action for the addition, replacement, or repair of facilities, control equipment, or the repair or 

replacement of roads, bridges, and other infrastructure whenever a catastrophe necessitates 

such construction and emissions otherwise precluded under the Texas Clean Air Act. See 30 

TAC 35.801. Therefore, the Emergency Orders Program could be used to authorize 

construction via the issuance of an Order prior to a source submitting an application for a 

NSR preconstruction permit. The issued Emergency Order is an interim authorization for the 

emissions of air contaminants that are associated with the construction or modification of any 

source or facility in response to a catastrophe, as defined in 30 TAC 35.801. 

In summary, the regulations governing the Emergency Orders Program includes the 

following: 

1. The procedures for applying for an Emergency Order, including the information that 

must be included in the application (§35.802); 

2. Public notification and public hearing on the issuance of an Emergency Order (§35.803); 

3. The procedure for issuing an Emergency Order (§35.804); 

4. The contents of an Emergency Order (§35.805); 

5. A requirement to apply for a permit or modification of the changes authorized by an 

Emergency Order (§35.806); 

6. The process for affirmation of an Emergency Order (§35.807); 

7. The process for modification of an Emergency Order (§35.808); and 

8. The process for setting aside and Emergency Order (§35.809). 

Additional information on these regulations is provided in section V and the Appendix of this 

TSD. 

IV. General Discussion of EPA’s Evaluation of these Regulations. 

A. The SIP revisions that relate to Emergency Orders are reviewed for compliance with the 

requirements of the CAA and 40 CFR part 51 – Requirements for Preparation, Adoption, and 

Submittal of Implementation Plans. These requirements include, but are not limited to, the 

following:

1. §110(a)(2)(A) and (C) of the CAA which provides:

(a)(2) Each implementation plan submitted by a State under this Act shall 

be adopted by the State after reasonable notice and public hearing. Each such 

plan shall – 

(A) include enforceable emissions limitations and other control measures, 

means, or techniques (including economic incentives such as fees, marketable 

permits, and auctions of emissions rights), as well as schedules and timetables 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

7 

for compliance, as may be necessary or appropriate to meet the requirement of 

this Act; 

* * * * * 

(C) include a program to provide for the enforcement of the measures 

described in subparagraph (A), and regulation of the modification and 

construction of any stationary source within the areas covered by the plan as 

necessary to assure that national ambient air quality standards are achieved, 

including a permit program as required in parts C and D;

2. §110(l) of the CAA which provides:

Plan Revisions. – Each revision to an implementation plan submitted by a 

State under this Act shall be adopted by such State after reasonable notice and 

public hearing. The Administrator shall not approve a revision of a plan if the 

revision would interfere with any applicable requirement concerning 

attainment and reasonable further progress (as defined in section 171), or any 

other applicable requirement of this Act.

3. 40 CFR 51.160(a) through (b) which provides:

(a) Each plan must set forth legally enforceable procedures that enable the 

State or local agency to determine whether the construction or modification of 

a facility, building, structure or installation, or combination of these will result 

in – 

(1) A violation of applicable portions of the control strategy; or 

(2) Interference with attainment or maintenance of a national standard in 

the State in which the proposed source (or modification) is located or in a 

neighboring State. 

(b) Such procedures must include means by which the State or local 

agency responsible for final decisionmaking on an application for approval to 

construct or modify will prevent such construction or modification if – 

(1) It will result in a violation of applicable portions of the control 

strategy; or 

(2) It will interfere with the attainment or maintenance of a national 

standard. 

4. 40 CFR 51.165 – Permit requirements. The regulatory text of 40 CFR 51.165 is available 

on line at: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=feed49ec24fac67402c2bf6fa403850d&rgn=div8&view=text&node=40:

2.0.1.1.2.6.8.6&idno=40.
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

8 

5. 40 CFR 51.166 – Prevention of significant deterioration of air quality. The regulatory text 

of 40 CFR 51.166 is available on line at: 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=0dbbe52d31085f8454d6cbf1412e1557&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.7&idno=40.

6. Other applicable requirements of the CAA and 40 CFR part 51 (including implementing 

guidance documents, when applicable) will be identified in the evaluation where 

appropriate.

Section V of this TSD includes a general discussion the findings of EPA’s evaluation and 

our conclusions made as a result of our evaluation. 

B. The Appendix to this document contains additional information of each rule, including a 

cross-walk of each submittal of each rule, including a underlined and strikeout annotation of 

each rule which documents how the rule has changed with each submitted revision. It also 

includes a line-by-line evaluation of each provision of the regulations relating to Emergency 

Orders. 

V. Do the State’s Submittals Meet the Applicable Federal Requirements?

Under the Emergency Orders Program, an owner or operator can apply for an Emergency Order 

that would “authorize immediate action for the addition, replacement, or repair of facility or 

control equipment, or the repair or replacement of road, bridges, or other infrastructure, and 

authorizing associated emissions of air contaminants” in response to a catastrophe. See 30 TAC 

25.801. The issued Emergency Order would be an interim authorization for the emissions that 

are associated with the construction or modification of any source or facility in response to a 

catastrophe. Therefore, the Emergency Orders Program could be use to authorize construction 

via the issuance of an Order prior to a source submitting an application for a NSR 

preconstruction permit. 

A. Summary of the Federal Program and Associated Requirements for Major NSR

The requirements for Major NSR are in Title I, Parts C and D of the CAA and in 40 CFR 

51.165 and 51.166 and apply to the construction and modification of major stationary 

sources. The Major NSR requirements apply to projects that would be new major stationary 

sources and projects that would be major modifications under the requirements for 

Prevention of Significant Deterioration (PSD) under 40 CFR 51.166 and the requirements for 

Nonattainment Area New Source Review (NNSR) under 40 CFR 51.165. 

The requirements for Major NSR apply to the construction or modification of stationary 

sources which emit, or have the potential to emit a regulated NSR pollutant at greater than 

100 tons per year for most stationary sources. See CAA §302(j).3

 Major NSR is required 

under two programs as described below: 

 

3

 In certain nonattainment areas, the CAA specifies lower thresholds based upon the degree of nonattainment. See CAA at 

§§182(c), (d), and (d); 187(c)(1); and 189(b)(3). See 40 CFR 51.165(a)(1)(iv). Also, in a PSD area, under the CAA §169(1), a 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

9 

Prevention of Significant Deterioration. The requirements for PSD are under the CAA Title 

I, Part C and under 40 CFR 51.166. PSD applies to the construction and modification of 

major stationary sources for the emissions of any pollutant for which the region (or portion 

thereof) is designated attainment or unclassifiable. See CAA at §161 and 40 CFR 

51.166(a)(7)(i). Requirements of the PSD Permitting Program include the following: 

 The PSD permit must be issued prior to commencement of construction and set forth 

emission limitations which conform to the CAA. CAA §165(a)(1) and 40 CFR 

51.166(a)(7). 

 The proposed permit has been subject to review in accordance with CAA 

requirements and the regulations promulgated under CAA, and the permit has been 

subject to public hearing and opportunity for interested persons to submit comments. 

CAA §165(a)(2) and 40 CFR 51.166(a)(7) & (q). 

 The emissions from the construction or operation of the source will not cause, or 

contribute to, air pollution in excess of the following: (1) Maximum allowable 

increase or maximum allowable concentration for any pollutant in any area in which 

PSD applies; (2) National Ambient Air Quality Standard; and (3) Any other 

applicable emission standard or standard of performance under the Act. CAA 

§165(a)(3) and 40 CFR 51.166(c). 

 The source is subject to best available control technology and the permitted emissions 

represent that technology. CAA §165(a)(4) and 51.166(j). 

 The requirements for protection of Class I areas have been met by the source. CAA 

§165(a)(5) and 40 CFR 51.166(p). 

 There has been an analysis of the air quality impacts projected to occur as the result 

of growth associated with the source. CAA §165(a)(6) and 40 CFR 51.166(o). 

 Monitoring has been conducted, as necessary, to determine the effect which 

emissions from any such facility may have, or is having, on air quality in any area 

which may be affected by emissions from such source. CAA §165(a)(7) and 40 CFR 

51.166(m). 

 Specific requirements applicable to source proposed to be located in Class III areas 

have been met by the source. CAA §165(a)(8). 

Nonattainment New Source Review. The requirements for NNSR are under the CAA Title I, 

Part D and under 40 CFR 51.165. NNSR applies to the construction and modification of 

major stationary sources for the emissions of any pollutant for which the region (or portion 

thereof) is designated nonattainment. See CAA at §172(c)(5) and 40 CFR 51.165(a)(2)(i). 

Requirements of the NNSR Program include the following: 

 Emission increases must be offset by reductions that are greater than the increase. 

CAA §173(a)(1). 

 major stationary source is either 100 tons per year or more if the source belongs to a category identified in the definition, 

otherwise it is major if it emits or has the potential to emit 250 tons per year or more. See 40 CFR 51.166(b)(1). 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

10 

 The proposed source is required to comply with lowest achievable emission rate. 

CAA §173(a)(2). 

 The owner or operator must demonstrate that all major stationary sources owned by 

such person (or entity) are in compliance, or on a schedule for compliance, with all 

applicable emission limitations and standards under the Act. CAA §173(a)(3). 

 EPA has not determined that the State is not adequately implementing the SIP for the 

nonattainment area in which the proposed source is to be constructed or modified. 

CAA §173(a)(4). 

 An analysis of alternative sites, sizes, production processes, and environmental 

control techniques for such proposed source demonstrates that benefits of the 

proposed source significantly outweigh the environmental and social costs imposed as 

a result of its location, construction, or modification. CAA §173(a)(5). 

 The PSD and NNSR Programs each require a new major stationary source or major 

modification to obtain a preconstruction permit prior to commencing construction. 

For PSD see CAA at §165(a)(1) and 40 CFR 51.166(a)(7)(iii). For NNSR see CAA 

§172(c)(5) and 40 CFR 51.165(a)(2)(i)-(iii). Accordingly, a new or modified major 

stationary source or major modification may not be constructed without a permit that 

meets the requirements of the applicable Major NSR Program. 

B. What is EPA’s Evaluation of the Texas Emergency Orders Program

We are proposing disapproval of the revisions to the SIP for the State of Texas that related to 

Emergency Orders. This includes portions of SIP revisions that related to Emergency Orders 

that were submitted by Texas on August 31, 1993; December 10, 1998; February 1, 2006; 

and July 17, 2006. In general, the regulations governing the Emergency Orders Program are 

found in 30 TAC Chapter 35 – Emergency Orders and Permits; Temporary Suspension of 

Amendment of Permit Conditions. We are proposing disapproval of these revisions because 

these regulations do not meet certain provisions of the Act and EPA’s NSR regulations. 

1. Disapproval as not Satisfying the Public Participation Required for NSR at the Time the 

Emergency Order is Issued.

Public participation requirements that are applicable to projects that are subject to Major 

NSR are not met prior to the issuance of the Emergency Order, which would authorize 

the construction of such projects. Instead, the applicable public participation for Major 

NSR projects will take place after the issuance of the Emergency Order when the 

applicant submits their application for a Major NSR permit. The source has 60 days 

following the issuance of the Emergency Order to submit the permit application. See 30 

TAC 35.806. Meanwhile, the applicant is authorized by the Emergency Order to begin 

construction of the Major NSR project prior to permit application submission and permit 

issuance. Consequently, the public is not afforded an opportunity to review and comment 

on the proposed project (as required under the CAA and implementing regulations) until 

after construction has begun; thus the public has not been provided meaningful 

opportunity to participate prior to commencement of construction of the Major NSR 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

11 

project. See 40 CFR 51.161 and 51.166(q). It is important to note, that while we are 

evaluating the Emergency Orders Program against the Major NSR requirements, the 

Minor NSR Program also requires public participation as part of the construction 

permitting process.4

2. Disapproval as not Meeting the Requirements that a NSR Permit Be Issued Prior to the 

Commencement of Construction of a Major Source.

The CAA contemplates a Major NSR permit that is issued as a final authorization that 

certifies that the Major NSR permit meets all the requirements of PSD and NNSR. See 

CAA at section 165(a) and 173(a) and 40 CFR 51.165(a)(2)(i) through (ii), and 

51.166(a)(7)(i) through (v). In contrast, the Emergency Order is an interim authorization 

for immediate action, including construction, following a catastrophe and is not a final 

issued Major NSR permit. Notwithstanding the fact that the TCEQ conducts a review of 

Emergency Order applications, which TCEQ characterized as being equivalent to the 

technical review of a permit, as discussed above, the technical review does not include all 

required preconstruction review elements and the issued order is an interim authorization 

and not a final issued Major NSR permit. The Emergency Orders Program does require 

that a source submit an application for any necessary air permits, including Major NSR 

permits, within 60 days following the issuance of an Emergency Order. See 30 TAC 

35.806. These permits are required to be applied for and issued in accordance with the 

applicable New Source Review requirements. However, the New Source Review 

permitting would occur following the commencement of construction at the source. 

Therefore, the Emergency Orders Program does not meet the CAA requirement that the 

Major NSR permit be issued prior to a source commencing construction. For PSD see 

CAA at §165(a)(1) and 40 CFR 51.166(a)(7)(iii). For NNSR see CAA §172(c)(5) and 40 

CFR 51.165(a)(2)(i)-(iii). 

 

 

4

 The Minor NSR requirements for public participation are found at 40 CFR 51.161, and require prior to construction or 

modification the availability for public inspection of information regarding the construction (including the State's analysis of 

the effect on air quality), a 30-day period for submittal of public comment, and a notice by prominent advertisement in the 

area affected. EPA recognizes a state's ability to tailor the scope of its Minor NSR program as necessary to achieve and 

maintain the NAAQS. See 77 FR 74140. 
Technical Support Document 

Revisions to Texas State Implementation Plan Relating to Emergency Orders 

30 TAC Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

30 TAC Chapter 116 – Control of Air Pollution by Permits for New Construction and 

Modification 

12 

General Description of the Annotation and Evaluation of the Regulations. This Appendix includes 

additional information of each rule, including a cross-walk for each rule, including an underlined and 

strikethrough annotation of each rule which documents how the rule has changed with each submitted 

revision. It also includes a line-by-line evaluation of each provision of the regulations relating to 

Emergency Orders. The evaluation of each regulation is organized as follows: 

I. Background. This section includes a history of the current SIP and each revision that was 

submitted to EPA for SIP approval. 

II. Evaluation matrix. This section includes a table which sets forth the text of each submitted SIP 

revision, and an annotation of the changes of each SIP revision. The revise text is annotated as 

follows: 

 new text is underlined and 

 deleted text is struck out. 

The right hand column includes any discussion and evaluation. Any extended comments are 

included in either: 

 Section III, following the evaluation matrix, as “additional comments” which follows the 

matrix; or 

 As discussed in the body or the TSD as identified in the right-hand column of the Table. 

III. Additional Comments. When necessary, this section includes additional comments related to 

EPA’s evaluation of the provision, including any extended comments related to information in 

the right hand column of the evaluation matrix. 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter A – Purpose, Applicability, and Definitions 

§§35.1, 35.2, and 35.3 

13 

§35.1 – Purpose 

I. Background of 30 TAC 35.1. 

A. Current SIP. §35.1 is not currently approved as part of the Texas SIP. 

B. Submitted SIP Revisions to §35.1 Reviewed in this Action

1. December 10, 1998. Texas submitted new §35.1, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.1 – Purpose Comments 

Submitted 12/10/1998

§35.1 Purpose

The purpose of this chapter is to implement the commission’s authority under Texas Water 

Code, Chapter 5, Subchapter L, to issue temporary or emergency mandatory, permissive, or 

prohibitory orders and by those orders to issue permits or temporarily suspend or amend permit 

conditions.

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

§35.2 – Applicability 

I. Background of 30 TAC 35.2. 

A. Current SIP. §35.2 is not currently approved as part of the Texas SIP. 

B. Submitted SIP Revisions to §35.1 Reviewed in this Action

1. December 10, 1998. Texas submitted new §35.2, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.2 – Applicability Comments 

Submitted 12/10/1998

§35.2 Applicability

This chapter applies to any application under the Texas Water Code, Chapter 5, Subchapter L, 

to issue temporary or emergency mandatory, permissive, or prohibitory orders.

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter A – Purpose, Applicability, and Definitions 

§§35.1, 35.2, and 35.3 

14 

§35.3 – Definitions 

I. Background of 30 TAC 35.3 . 

A. Current SIP. §35.3 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.3, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.3 – Definitions Comments 

Submitted 12/10/1998

§35.3 Definitions

The following definitions and terms, when used in this chapter, shall have the following 

meanings, unless the context clearly indicates otherwise.

Disapproval 

See discussion in 

section V of the TSD 

and in section II.A.2 

of the Federal 

Register. 

 

(1) Emergency order – An order which must be issued immediately, in order to protect 

human health or safety or the environment, or for other reasons specified by statute. Specific 

requirements for an emergency order are specified in the rules in this chapter relating to each 

program.

(2) Severe property damage – Substantial physical damage to property, damage to treatment 

facilities which causes them to become inoperable, or substantial and permanent loss of natural 

resources which can reasonably be expected to occur in the absence of a discharge. Severe 

property damage does not mean economic loss caused by delays in production.

(3) Temporary order – An order of short duration which must be issued as quickly as 

possible or which might allow an authorization for a short term activity, setting conditions and 

limitations that will adequately protect human health or safety or the environment, or for the 

reasons specified in §35.302 of this title (relating to Application for Emergency and Temporary 

Orders to Discharge). Specific requirements for a temporary order are specified in the rules in 

this chapter relating to each program.
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter B – Authority of the Executive Director 

§§35.11, 35.12, and 35.13 

15 

§35.11 – Purpose and Applicability 

I. Background of 30 TAC 35.11. 

A. Current SIP. §35.11 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.11, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.11 – Purpose and Applicability Comments 

Submitted 12/10/1998

§35.11 – Purpose and Applicability

The purpose of this subchapter is to delegate authority to the executive director and to specify 

applications for emergency orders on which the executive director may take action on behalf of 

the commission under this chapter.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

§35.12 – Authority of the Executive Director 

I. Background of 30 TAC 35.12. 

A. Current SIP. §35.12 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.12, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.12 – Authority of the Comments 

Submitted 12/10/1998 

§35.12 Authority of the Executive Director

(a) The executive director may receive applications and issue orders under this chapter. If an 

emergency order is issued without notice and a hearing, notice shall be issued and a hearing by 

the commission to affirm, modify, or set aside shall be set. If a hearing request is received, and 

the commission grants the request, the commission shall either hold a contested case hearing, or 

recommend the case to SOAH.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

(b) The executive director may authorize, in writing, a representative to act on the executive Register. 

director’s behalf under this chapter.
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter B – Authority of the Executive Director 

§§35.11, 35.12, and 35.13 

16 

§35.13 – Eligibility of the Executive Director 

I. Background of 30 TAC 35.13. 

A. Current SIP. §35.13 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.13, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.13 – Eligibility of the Executive Director Comments 

Submitted 12/10/1998

§35.13 Eligibility of the Executive Director

Upon assumption of national discharge elimination system permit authority, the executive 

director, or the executive director’s representative or representatives, may act under this chapter 

on Texas Pollutant discharge elimination system (TPDES) permits or other TPDES-related 

approvals only if he or she meets the qualifications set out for the executive director in §50.41 of 

this title (relating to Eligibility of the Executive Director).

Outside the scope of 

the SIP. 

As discussed in 

section I.C, EPA is 

returning the nonair portions of the 

submittal and will 

take no action on 

this section. 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

17 

§35.21 – Action by the Commission or Executive Director 

I. Background of 30 TAC 35.21. 

A. Current SIP. §35.21 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.21, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.21 – Action by the Commission or Executive Director Comments 

Submitted 12/10/1998

§35.21 – Action by the Commission or Executive Director

For purposes of, and in the manner provided by this chapter, the commission may issue a 

temporary order; and the commission or the executive director may issue an emergency, 

mandatory, permissive, or prohibitory order; and the commission by temporary order, or the 

executive director by emergency order, may:

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

(1) issue a temporary permit; or 

(2) temporarily suspend or amend a permit condition. 

§35.22 – Term and Renewal of Orders 

I. Background of 30 TAC 35.22. 

A. Current SIP. §35.22 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.22, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix.

§35.22 – Term and Renewal of Orders Comments 

Submitted 12/10/1998 

§35.22 Term and Renewal of Orders

Unless otherwise provided by this chapter, and emergency order issued under this chapter is 

limited to a reasonable time specified by the order, which may not exceed 180 days and may be 

renewed once for an additional period not to exceed 180 days of submittal of a new permit 

application. A temporary order must be limited to a reasonable time specified by the order.

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

18 

§35.23 – Effect of Orders 

I. Background of 30 TAC 35.23. 

A. Current SIP. §35.23 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.23, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.23 – Effect of Orders Comments 

Submitted 12/10/1998

§35.23 – Effect of Orders

An emergency or temporary order issued under this chapter does not vest any rights in the 

permit holder or recipient and expires in accordance with its terms.

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

§35.24 – Application for Emergency or Temporary Orders 

I. Background of 30 TAC 35.24. 

A. Current SIP. §35.24 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.24, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.24 – Application for Emergency or Temporary Orders Comments 

Submitted 12/10/1998 

§35.24 Application for Emergency or Temporary Orders

(a) A person wanting an emergency order under this chapter shall submit a written 

application to the chief clerk. Unless the person submitting the application is the executive 

director or the executive director’s representative, the application must be sworn.

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

(b) If a person seeks an emergency order or order for a bypass of untreated or partially 

treated wastewater, as that term is defined in §305.2 of this title (relating to Definitions), from a 

facility that is subject to a Texas pollutant discharge elimination system permit, the filing of the 

application for a emergency or temporary order constitutes prior notice of the anticipated 

bypass. Filing of the application shall be done, if possible, at least ten days before the date of 

the bypass. The person must comply with all bypass requirements under §305.535 of this title 

(relating to Bypassed from TPDEA Permitted Facilities).

Outside the scope of the 

SIP 

As discussed in section 

I.C, EPA is returning 

the non-air portions 

of the submittal and 

will take no action on 

subsection (b). 

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

19 

Submitted 12/10/1998

(c) The application must: Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register.

(1) state the name, address, and telephone number of the applicant, the person submitting 

the application on the applicant’s behalf, and the person signing the application on the 

applicant’s behalf;

(2) contain information sufficient to identify the facility and location to be affected by the 

order;

(3) describe the condition of emergency or other condition justifying the issuance of the 

order;

(4) allege facts to support any findings required under this chapter;

(5) estimate the dates on which the proposed order should begin and end and the dates on 

which the activity proposed to be allowed, mandated, or prohibited should begin and end;

(6) describe the action sought and the activity proposed to be allowed, mandated, or 

prohibited;

(7) include any other statement or information required by this chapter; and

(8) be accompanied by payment of any application fees required by the commission.

(d) A copy of the application must be provided to the division of the appropriate program on 

behalf of the executive director, and to the public interest counsel, at the time it is filed with the 

chief clerk. The division director may designate another representative of the executive director 

for this service.

(e) All applications shall be signed as follows:

(1) For a corporation, the application shall be signed by a responsible corporate officer. 

For purposes of this paragraph, a responsible corporate officer means a president, secretary, 

treasurer, or vice-president of the corporation in charge of a principal business function, or 

other person who performs similar policy or decision-making functions for the corporation; or 

the manager of one or more manufacturing, production, or operating facilit6ies employing more 

than 250 persons or having gross annual sales exceeding $25 million (in second quarter 1980 

dollars), if authority to sign documents has been assigned or delegated to the manager in 

accordance with corporate procedures. Corporate procedures governing authority to sign permit 

applications may provide for assignment to applicable corporate positions rather than to specific 

individuals. Documentation of authority to sign must be provided with the application.

(2) For a partnership or sole proprietorship, the application shall be signed by a general 

partner or the proprietor, respectively.

(3) For a municipality, state, federal, or other public agency, the application shall be signed 

by either a principal executive officer of a ranking elected official. For purposes of this 

paragraph, a principal executive officer of a federal agency includes the chief executive officer, 

a senior executive officer having responsibility for overall operations of a general geographic 

unit of the agency (e.g., regional administrator of the United States Environmental Protection 

Agency).

(4) For the executive director, the application shall be signed by the executive director or 

any duly authorized representative. 

(5) A person other than the executive director or the executive director’s representative 

signing the application shall make the following certification: “I certify under penalty of law 

that this document and all attachment were prepared under my direction or supervision in 

accordance with a system designed to assure that qualified personnel gather and evaluate the 

information submitted. Based on my inquiry of the person or persons who manages the system, 

or those persons directly responsible for gathering information, the information submitted is, to 

the best of my knowledge and belief, true, accurate, and complete. I am aware there are 

significant penalties for submitting false information, including the possibility of fine and 

imprisonment for knowing violations.”
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

20 

Submitted 12/10/1998

(6) For hazardous solid waste applications, the owner or operator of a facility must sign the 

application.

(7) For radioactive material license applications under Chapter 336 of this title(relating to 

Radioactive Substance Rules), the applicant or person duly authorized to act for and on the 

applicant’s behalf must sign the application.

(e)(6)-(7) outside scope 

of the SIP. 

As discussed in section 

I.C, EPA is returning 

the non-air portions 

of the submittal and 

will take no action on 

paragraphs (e)(6)-(7). 

§35.25 – Notice and Opportunity for Hearing 

I. Background of 30 TAC 35.25. 

A. Current SIP. §35.25 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.25, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix.

§35.25 – Notice and Opportunity for Hearing Comments 

Submitted 12/10/1998

35.25 – Notice and Opportunity for Hearing Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(a) An emergency order under this chapter may be issued with notice and opportunity for 

hearing, or without notice and opportunity for hearing, as provided by this chapter.

(b) If an emergency order is issued under this chapter without a hearing, the order shall set a 

time and place for a hearing to affirm, modify, or set aside the order to be held before the 

commission or its designed as soon as possible after the order is issued.

(c) Except as otherwise provided by this chapter, notice of a hearing to affirm, modify, or set 

aside an emergency order under this chapter shall be given no later than the tenth day before the 

date for the hearing. This notice shall provide that an affected person may request an evidentiary 

hearing on issuance of the emergency order.

(d) Temporary orders require a hearing before issuance of the order. Notice of a hearing on a 

temporary order shall be given no later than the 20th day before the date for the hearing on the 

order. This notice of hearing shall provide that an affected person may request an evidentiary 

hearing on issuance of the temporary order.
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

21 

§35.25 – Notice and Opportunity for Hearing Comments 

Submitted 12/10/1998

(e) In addition to the notice requirements provided elsewhere in these rules, notice shall be 

provided as follows:

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(1) For water quality temporary orders, notice of a hearing that is held before the issuance 

of the order shall be provided:

Outside scope of SIP 

 As discussed in section 

I.C, EPA is 

returning the non-air 

portions of the 

submittal and will 

take no action on 

paragraphs (e)(1)-(8) 

(A) by mail to persons requesting public notice of certain applications in accordance with 

§39.7 of this title (relating to Mailing Lists) and to persons or agencies identified in §39.13 of 

this title (relating to Mailed Notice).

(B) by publication by the applicant in a newspaper of largest general circulation that is 

published in the county in which the facility is located or proposed to be located. If a newspaper 

is not published in the county in which the facility is located or proposed to be located, the notice 

shall be published in a newspaper of general circulation in the county in which the facility is 

located or proposed to be located. The applicant must file an affidavit with the chief clerk 

certifying facts that constitute compliance with the publication requirements. The deadline to file 

the affidavit is 15 days after publication of the notice. Filing an affidavit certifying facts that 

constitute compliance with notice requirements creates a rebuttable presumption of compliance 

with the requirement to publish notice; and

(C) at least 20 days before the hearing.

(2) For water quality emergency orders, notice of the issuance of the order and the hearing 

to affirm, set aside, or modify if a hearing is held shall be provided in accordance with paragraph 

(1)(A) and (C) of this subsection.

(3) For nonhazardous underground injection control (UIC) emergency orders, notice shall 

be mailed and published at least 30 days before the hearing to affirm, modify, or set aside the 

emergency order, as required by chapter 39 of this title (relating to Public Notice) for notice of a 

hearing on an application for a UIC permit.

(4) For nonhazardous solid waste emergency orders, notice shall be mailed and published 

not later than the tenth day before the hearing to affirm, modify, or set aside the emergency 

order, as required by chapter 39 of this title (relating to Public Notice) for notice of a hearing on 

an application for a nonhazardous waste permit.

(5) For hazardous solid waste emergency orders, including UIC emergency orders, notice 

shall be mailed and published at least 30 days before the hearing to affirm, modify, or set aside 

the emergency order, as required by chapter 39 of this title for notice of a hearing on an 

application for a hazardous waste permit. The commission must also give at least 45 days for 

public comment before issuing the order.

(6) For suspension of beneficial inflows under Texas Water Code, §11.148, notice shall be 

published in a newspaper or newspapers of general circulation in the area not later that the 15th

day before the hearing to all affected persons.

(7) For water utility emergency orders for operation of a utility, notice shall be mailed or 

hand delivered to the utility not later than the tenth day before the hearing to affirm, modify, or 

set aside.

(8) For water utility temporary rate increase orders, notice shall be mailed or delivered to 

the affected ratepayers not later than the tenth day before the hearing to affirm, modify, or set 

aside.

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

22 

Submitted 12/10/1998

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(9) For air catastrophe emergency orders, notice shall be shall be published in a newspaper 

or newspapers of general circulation in the nearest municipality not later that the tenth day before 

the hearing.

(10) For generalized condition of air pollution emergency orders, the timing, method, and 

recipients of notice shall be as practicable under the circumstances.

(11) For radioactive substances emergency orders, notice shall be provided by personal 

service or certified mail to those named in the order no later than the tenth day before the hearing 

to affirm, modify, or set aside.

Outside scope of SIP 

As discussed in section 

I.C, EPA is 

returning the non-air 

portions of the 

submittal and will 

take no action on 

paragraphs (e)(11)-

(15) 

(12) For radioactive material impoundment, notice shall be provided by personal service or 

certified mail to those named in the order no later than the tenth day before the hearing to affirm, 

modify, or set aside.

(13) For petroleum tank emergency orders, notice shall be provided by certified mail, hand 

delivery, or if that fails, one time in the Texas Register or published once in the county 

newspaper not later than the tenth day before the hearing to affirm, modify, or set aside.

(14) For imminent and substantial endangerment emergency orders, notice shall be provided 

by certified mail or hand delivery to the person named in the order, and if that fails, published 

once in the Texas Register and once in the newspaper of general circulation not later than the 

tenth day before the hearing to affirm, modify, or set aside.

(15) For on-site sewage and disposal system emergency orders, notice shall be mailed to 

those in the order no later than ten days before the hearing to affirm, modify, or set aside

(f) Statutes or rules requiring notice of hearing or setting procedures for issuance of permits do 

not apply to a hearing on a emergency order issued under this chapter unless they specifically 

require notice for an emergency order.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(g) If the commission acts on an application for a temporary order, of the commission or 

executive director acts on an application for an emergency order, the chief clerk or the office 

designated by the executive director, shall mail notice of the action to the applicant, the executive 

director, public interest counsel, and other persons who have filed hearing requests or public 

comments.

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

23 

§35.26 – Contents of Emergency or Temporary Orders 

I. Background of 30 TAC 35.26. 

A. Current SIP. §35.26 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.26, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.26 – Contents of Emergency or Temporary Orders Comments 

Submitted 12/10/1998

§35.26 Contents of Emergency or Temporary Orders Disapproval 

See discussion in 

section V of the TSD 

and in section II.A.2 

of the Federal 

Register. 

An emergency or temporary order issued under this chapter shall contain at least the following:

(1) the name and address of the applicant and information sufficient to identify the facility or 

location affected by the order;

(2) a description of the condition of emergency or other condition justifying the issuance of 

the order;

(3) any finding of facts under this chapter;

(4) a statement of the terms of the order, including the dates on which it shall begin and end 

and the dates on which the activity proposed to be allowed, mandated, or prohibited shall begin 

and end;

(5) a description of the action sought and the activity proposed to be allowed, mandated, or 

prohibited;

(6) if the order was issued without a hearing, a statement to that effect and a provision 

setting a time and place for the hearing before the commission or its designed; and

(7) any other statement or information required by this chapter.

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

24 

§35.27 – Hearing Required 

I. Background of 30 TAC 35.27. 

A. Current SIP. §35.27 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.27, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix.

§35.27 – Hearing required Comments 

Submitted 12/10/1998

§35.27 – Hearing Required

A hearing shall be held before the issuance of each temporary order and either before or after 

the issuance of each emergency order. If no hearing is held before the issuance of any 

emergency order, a hearing to affirm, modify, or set aside the order shall be held before the 

commission of its designed or its designee as soon as practicable after the order is issued.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

§35.28 – Hearing Requests 

I. Background of 30 TAC 35.28. 

A. Current SIP. §35.28 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.28, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.28 – Hearing Requests Comments 

Submitted 12/10/1998

§35.28 Hearing Requests

(a) The executive director, the applicant, or an affected person as defined by the Texas Water 

Code, §5.551(a) may request a contested case hearing.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(b) The commission is not required to hold a hearing if it determines that the basis of a 

person’s request for a hearing as an affected person is not reasonable or supported by competent 

evidence.

(c) All relevant factors shall be considered in the evaluation of a person’s request for a hearing 

as an affected person, including, but not limited to, the following:

(1) whether the interest claimed is one protected by law under which the application will be 

considered;

(2) distance restrictions of other limitations imposed by law on the affected interest;

(3) whether a reasonable relationship exists between the interest claimed and the activity 

regulated;
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

25 

§35.28 – Hearing Requests Comments 

(4) likely impact of the regulated activity on the health, safety, and use of property of the 

person;

Submitted 12/10/1998

(5) likely impact of the regulated activity on use of the impacted natural resource by the 

person; and

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(6) for general entities, their statutory authority over or interest in the issues relevant to the 

application.

(d) A group or association may request a contested case hearing only if the group or 

association meets all of the following requirements:

(1) one or more members of the group or association would otherwise have standing to 

request a hearing in their own right;

(2) the interests the group or association seeks to protect are germane to the organization’s 

purpose; and

(3) neither the claim asserted nor the relief requested requires the participation of the 

individual members in the case.

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

26 

§35.29 – Procedures for a Hearing 

I. Background of 30 TAC 35.29. 

A. Current SIP. §35.29 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.29, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix. 

§35.29 – Procedures for a Hearing Comments 

Submitted 12/10/1998

§35.29 – Procedures for a Hearing Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(a) Hearings before the commission under this chapter shall be conducted in accordance with 

Chapter 10 of this title (relating to Commission Meetings). Contested case hearings shall be 

conducted under the APA and Chapter 80 of this title (relating to Contested Case Hearings).

(b) If a contested case hearing is requested on the application, and the commission grants the 

request, the commission shall either conduct the contested case hearing or remand the matter to 

SOAH.

(c) The commission or judge may, consistent with the requirements of the APA, reduce the 

time periods specified in the rules governing contested case hearings.

(d) For any hearing on a temporary or emergency order, the following procedures will apply:

(1) parties will be designated by the commission or judge. To be designated as a party, the 

person seeking party status must show a justiciable interest. For each hearing under this section, 

the applicant, the public interest counsel, and the executive director are parties by rule.

(2) the testimony of all witnesses will be under oath, with an opportunity for questioning by 

the commission or judge and cross-examination by other parties.

(3) other parties to the hearing will be given opportunity to present rebuttal evidence and 

testimony;

(4) the applicant will have the burden of proving its need for an emergency or temporary 

order, and will have to open and close the evidentiary parts of the hearing. The fact that an 

emergency order was issued without a hearing, standing alone, will not constitute evidence of the 

need for such authorization;

(5) the commission or judge will have the right to limit the number of witnesses; to limit the 

times for direct questioning or cross-examination of a witness; or refuse illustrative and 

documentary evidence; and to limit argument.

(e) If a hearing request is denied, the procedures contained in §80.271 and §80.273 of this title 

(relating to Motion for Rehearing; and Decision Final and Appealable) apply.

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter C – General Provisions 

§§35.21, 35.22, 35.23, 35.24, 35.25, 35.26, 35.27, 35.28, 35.29, and 35.30 

27 

§35.30 – Application Fees 

I. Background of 30 TAC 35.30. 

A. Current SIP. §35.30 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.30, adopted November 18, 1998; effective 

December 10, 1998. 

II. Evaluation matrix.

§35.30 – Application Fees Comments 

Submitted 12/10/1998

§35.30 Application Fees

The application fee for an emergency or temporary order under this chapter is $500 plus the 

cost of the required notice. The fee is payable at the time the application is filed, and is not 

refundable.

Disapproval 

See discussion in 

section V of the TSD 

and in section II.A.2 

of the Federal 

Register. 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

28 

Subchapter K – Air Orders 

§35.801 – Emergency Orders Because of Catastrophe 

I. Background of 30 TAC 35.801. 

A. Current SIP. §35.801 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.801, adopted November 18, 1998; effective 

December 10, 1998. 

2. July 17, 2006. Submittal of revisions to §35.801. 

II. Evaluation matrix. 

§35.801 – Emergency Orders Because of Catastrophe Comments 

Submitted 12/10/1998

§35.801 Emergency Orders Because of Catastrophe

Submitted 12/10/1998 Submitted 7/17/2006 

The commission or executive director may 

issue emergency orders under Texas Water 

Code, §5.515, to authorize immediate action 

for the addition, replacement, or repair of 

facilities or control equipment, and authorizing 

associated emissions of air contaminants, 

whenever a catastrophe necessitates such 

construction and emissions otherwise 

precluded under the TCAA. For purposes of 

this section, a catastrophe is an unforeseen 

event including, but not limited to, and act of 

God, an act of war, severe weather conditions, 

explosions, fire, or other similar occurrences 

beyond the reasonable control of the operator, 

which renders a facility or its functionally 

related appurtences inoperable.

The commission or executive director may 

issue emergency orders under Texas Water 

Code, §5.515, to authorize immediate action 

for the addition, replacement, or repair of 

facilities or control equipment, or the repair or

replacement of roads, bridges, and other 

infrastructure, and authorizing associated 

emissions of air contaminants, whenever a 

catastrophe necessitates such construction and 

emissions otherwise precluded under the Texas 

Clean Air Act TCAA. For purposes of this 

section, a catastrophe is an unforeseen event 

including, but not limited to, and act of God, 

an act of war, severe weather conditions, 

explosions, fire, or other similar occurrences 

beyond the reasonable control of the operator, 

which renders a facility or its functionally 

related appurtences inoperable. 

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

29 

§35.802 – Application for an Emergency Order 

I. Background of 30 TAC 35.802. 

A. Current SIP. §35.802 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. August 31, 1993. Originally submitted as §116.411 as adopted August 16, 1993; effective 

September 13, 1993. 

2. December 10, 1998. Texas submitted recodification to §35.802 and revisions thereto, 

adopted November 18, 1998; effective December 10, 1998. Section was revised as follows: 

i. Revised introductory paragraph; 

ii. Revised paragraphs (1)-(8); 

iii. New paragraph (9); 

iv. Renumbered former paragraph (9) to paragraph (10) with revisions. 

3. July 17, 2006. Submittal of further revisions to §35.802, adopted June 28, 2006; effective July 

17, 2006. Section was revised as follows: Revised paragraphs (1) and (5). 

II. Evaluation Matrix. 

§35.802 – Application for an Emergency Order Comments 

Submitted 8/31/1993 Rev submitted 12/10/1998

§116.411 Application for an Emergency 

Order

§35.802 §116.411 Application for an 

Emergency Order 

The owner of a facility who applies for an 

emergency order shall submit a sworn

application which contains all of the following.

The owner of a facility who applies for an 

emergency order as that term is defined in 

Texas Health and Safety Code, §382.003, 

desiring to obtain an order under this 

subchapter shall submit an a sworn application 

in accordance with §35.24 of this title (relating 

to Application for emergency or Temporary 

Order). The application must contain the 

information required by that section and which 

contains all of the following.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the 

Federal Register. 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

30 

§35.802 – Application for an Emergency Order Comments 

Submitted 8/31/1993 Rev submitted 12/10/1998 Rev submitted 7/17/2006 

(1) A statement that the 

proposed construction and 

emissions are essential to 

prevent loss of life, serious 

injury, severe property 

damage, or severe economic 

loss not attributable to the 

applicant’s actions, and are 

necessary for the addition, 

replacement, or repair of 

facilities or control equipment 

necessitated by a catastrophic 

event.

(1) a A statement that the 

proposed construction and 

emissions are essential to 

prevent loss of life, serious 

injury, severe property 

damage, or severe economic 

loss not attributable to the 

applicant’s actions, and are 

necessary for the addition, 

replacement, or repair of 

facilities or control equipment 

necessitated by a catastrophe

catastrophic event. 

(1) a statement that the 

proposed construction and 

emissions are essential to 

prevent loss of life, serious 

injury, severe property 

damage, loss of a critical 

transportation thoroughfare,

or severe economic loss not 

attributable to the applicant’s 

actions, and are necessary for 

the addition, replacement, or 

repair of facilities or control 

equipment, or repair or 

replacement of roads, bridges, 

or other infrastructure,

necessitated by a catastrophe. 

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the 

Federal Register. 

Submitted 8/31/1993 Rev submitted 12/10/1998

(2) A description of the catastrophic 

event.

(2) a A description of the catastrophe

catastrophic event.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the 

Federal Register. 

(3) A statement that there were no 

practical alternatives to the proposed 

construction and emissions

(3) a A statement that there were no 

practical alternatives to the proposed 

construction and emissions 

(4) A statement that the emissions will 

not cause or contribute to a condition of air 

pollution. ... 

(4) a A statement that the emissions will 

not cause or contribute to a condition of air 

pollution. 

Submitted 8/31/1993 Rev submitted 12/10/1998 Rev submitted 7/17/2006

(5) A statement that the 

proposed construction and 

emissions will occur only at 

...

(5) a A statement that the 

proposed construction and 

emissions will occur only at 

...

(5) a statement that the 

proposed construction and 

emissions will occur only: at

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the 

Federal Register. 

... the property where 

the catastrophic event 

occurred or ... 

... the property where 

the catastrophe catastrophic 

event occurred or ... 

(A) on the property 

where the catastrophe 

occurred; or

... on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products, providing no 

more than no more than a de 

minimis increase will occur in 

the predicted concentration of 

the air contaminant at or 

beyond the property line at 

such other property;

... on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products, providing no 

more than no more than a no 

more that a de minimis

increase will occur in the 

predicted concentration of the 

air contaminant at or beyond 

the property line at such other 

property; 

(B) on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products, providing that

no more than a de minimis

increase will occur in the 

predicted concentration of the 

air contaminant at or beyond 

the property line at such other 

property; or
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

31 

§35.802 – Application for an Emergency Order Comments 

Rev submitted 7/17/2006

(C) for public works projects needed to rebuild or repair damaged roads, bridges, or other 

infrastructure destroyed during a catastrophe;

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the 

Federal Register. 

Submitted 8/31/1993 Rev submitted 12/10/1998 Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the 

Federal Register. 

(6) A description of the proposed 

construction and the type and quantity of air 

contaminants to be emitted;

(6) a A description of the proposed 

construction and the type and quantity of air 

contaminants to be emitted;

(7) An estimate of the date on which the 

proposed construction and emissions will 

begin and end;

(7) an An estimate of the date on which 

the proposed construction and emissions will 

begin and end; 

(8) An estimate of the dates on which the 

facility will begin operation; and

(8) an An estimate of the dates on which 

the facility will begin operation; and

Rev submitted 12/10/1998

(9) a statement that any construction or modification will not interfere with attainment or 

maintenance of national ambient air quality standards or violate applicable portions of the control 

strategy; and

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the 

Federal Register. 

Submitted 8/31/1993 Rev submitted 12/10/1998

(9) Any other information or item the 

Executive Director may require to support or 

explain the need for, or to expedite the 

issuance of, an emergency order; including 

information regarding the applicability of and 

compliance with any federal requirements for 

new or modified sources.

(10) any (9) Any other information or 

item the executive director Executive Director

may require to support or explain the need for, 

or to expedite the issuance of, an emergency 

order; including information regarding the 

applicability of and compliance with any 

federal requirements for new or modified 

sources.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the 

Federal Register. 

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

32 

§35.803 – Public Notification 

I. Background of 30 TAC 35.803. 

A. Current SIP. §35.803 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. August 31, 1993. Originally submitted as §116.412 as adopted August 16, 1993; effective 

September 13, 1993. 

2. December 10, 1998. Texas submitted recodification to §35.803 and revisions thereto, 

adopted November 18, 1998; effective December 10, 1998. 

II. Evaluation matrix. 

§35.803 – Public Notification Comments 

Submitted 8/31/1993 Revision Submitted 12/10/1998 

§116.412 Public Notification §35.803 §116.412 Public Notification

The Texas Air Control Board (TACB) shall 

publish notice of the issuance of the 

emergency order in the Texas Register as soon 

as practical after issuance of the order. If the 

order is issued prior to a hearing, the order 

shall fix a time and location for a hearing 

which is to be held as soon as practicable after 

the order is issued. The TACB shall publish 

notice or any hearing in the Texas Register not 

later than the tenth day prior to the date set for 

the hearing, plus give any other general notice 

determined by the Executive Director to be 

warranted and practicable under the 

circumstances. Notice of the issuance and 

notice of the hearing may be consolidated for 

publication in the Texas Register.

The commission or executive director Texas 

Air Control Board (TACB) shall publish 

notice of the issuance of the emergency order 

in the Texas Register as soon as practical after 

issuance of the order. If the order is issued 

prior to a hearing, the order shall fix a time 

and location for a hearing which is to be held 

as soon as practicable after the order is issued. 

Notice The TACB shall publish notice of any 

hearing shall be published in a newspaper of 

general circulation in the nearest municipality

in the Texas Register not later than ten days 

before the hearing. the tenth day prior to the 

date set for the hearing, plus give any other 

general notice determined by the Executive

Director to be warranted and practicable under 

the circumstances. Notice of the issuance and 

notice of the hearing may be consolidated for 

publication in the newspaper Texas Register. 

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

33 

§35.804 – Issuance of an Emergency Order 

I. Background of 30 TAC 35.804. 

A. Current SIP. §35.804 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. December 10, 1998. Texas submitted new §35.804, adopted November 18, 1998; effective 

December 10, 1998. 

2. July 17, 2006. Submittal of revisions as adopted June 28, 2006; effective July 17, 2006. 

Section was revised as follows: Revisions to paragraphs (1) and (5). 

II. Evaluation matrix. 

§35.804 – Issuance of emergency Order Comments 

Rev Submitted 12/10/1998

§35.804 Issuance of an Emergency Order

The commission or executive director may issue an order under this subchapter if it is found 

that: 

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

Rev Submitted 12/10/1998 Rev Submitted 7/17/2006

(1) the proposed construction and 

emissions are essential to prevent loss of life, 

serious injury, severe property damage, or 

severe economic loss not attributable to the 

applicant’s actions, and are necessary for the 

addition, replacement, or repair of facilities or 

control equipment that is necessitated by a 

catastrophe.

(1) the proposed construction and 

emissions are essential to prevent loss of life, 

serious injury, severe property damage, loss of 

a critical transportation thoroughfare, or severe 

economic loss not attributable to the 

applicant’s actions, and are necessary for the 

addition, replacement, or repair of facilities or 

control equipment, or repair or replacement or 

roads, bridges, or other infrastructure that is 

necessitated by a catastrophe.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

Rev Submitted 12/10/1998

(2) there are no practical alternatives to the proposed construction and emissions; Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

Rev Submitted 12/10/1998

(3) the emissions will not cause or contribute to a condition or air pollution;

(4) Any construction will not interfere with the attainment or maintenance of national 

ambient air quality standards or violate portions of the applicable control strategy;
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

34 

§35.804 – Issuance of emergency Order Comments 

Rev Submitted 12/10/1998 

(5) the proposed construction or emissions will occur only: Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

Rev Submitted 12/10/1998 Rev Submitted 7/17/2006

(A) at the property where the 

catastrophe occurred; or

(A) at the property where the 

catastrophe occurred; or

(B) at other property owned by the 

owner or operator of the damaged facility, 

which produces the same intermediates, 

products, or by-products, so long as there will 

be no more that no more than a de minimis

increase will occur in the predicted 

concentration of the air contaminant at or 

beyond the property line at such other 

property;

(B) at other property owned by the 

owner or operator of the damaged facility, 

which produces the same intermediates, 

products, or by-products, so long as there will 

be no more that no more than a de minimis

increase will occur in the predicted 

concentration of the air contaminant at or 

beyond the property line at such other 

property; or

Rev Submitted 7/17/2006

(C) for public works projects needed to rebuild or repair damaged roads, bridges, or other 

infrastructure destroyed during a catastrophe.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

Rev Submitted 12/10/1998

(6) the time limits in the order for beginning and completion of the proposed construction 

and emissions are reasonable; and

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(7) the schedule in the order for submission of a complete permit application is reasonable.

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

35 

§35.805 – Contents of an Emergency Order 

I. Background of 30 TAC 35.805. 

A. Current SIP. §35.805 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. August 31, 1993. Originally submitted as §116.415 as adopted August 16, 1993; effective 

September 13, 1993. 

2. December 10, 1998. Texas submitted recodification to §35.805 and revisions thereto, adopted 

November 18, 1998; effective December 10, 1998. Section was revised as follows: 

i. Revisions to introductory paragraph, paragraphs (1)-(3); 

ii. New paragraph (4); and 

iii. Renumbered former paragraph (4) to new paragraph (5) with revisions. 

3. July 17, 2006. Submittal of revisions as adopted June 28, 2006; effective July 17, 2006. 

Section was revised as follows: Revisions to paragraphs (3) and (5). 

II. Evaluation matrix. 

§35.805 – Contents of an Emergency Order Comments 

Submitted 8/31/1993 Rev Submitted 12/10/1998

§116.415 Contents of an Emergency Order §35.805 §116.415 Contents of an 

Emergency Order

An emergency order issued by the 

Executive Director shall contain at least the 

following:

In addition to the requirements of §35.26 of 

this title (relating to Contents of Emergency or 

Temporary Order), an An emergency order 

issued under this subchapter by the Executive 

Director shall contain at least the following: 

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

(1) A description of the emergency 

construction and emissions to be authorized,

(1) a A description of the emergency 

construction and emissions to be authorized, 

(2) reasonable time limits for the 

beginning and the completion of the proposed 

construction and emissions,

(2) reasonable Reasonable time limits for 

the beginning and the completion of the 

proposed construction and emissions, 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

36 

§35.805 – Contents of an Emergency Order Comments 

Submitted 8/31/1993 Rev Submitted 12/10/1998 Rev Submitted 7/17/2006

(3) authorization for 

action only ...

(3) authorization

Authorization for action only

(3) authorization for 

action only:

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

...at the property 

where the catastrophic event 

occurred or ... 

...at the property 

where the catastrophe

catastrophic event occurred or 

... 

(A) on at the property 

where the catastrophe 

occurred or 

...on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products, so long as 

there will be no more that no 

more than a de minimis

increase will occur in the 

predicted concentration of the 

air contaminant at or beyond 

the property line at such other 

property, and

...on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products, so long as 

there will be no more that no 

more than a de minimis

increase will occur in the 

predicted concentration of the 

air contaminant at or beyond 

the property line at such other 

property, and 

(B) on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products, so long as 

there will be no more that no 

more than a de minimis

increase will occur in the 

predicted concentration of the 

air contaminant at or beyond 

the property line at such other 

property, or and

Rev Submitted 7/17/2006

(C) for public works projects needed to rebuild or repair damaged roads, bridges, or 

other infrastructure destroyed during a catastrophe;

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

Rev Submitted 12/10/1998

(4) the requirement that any construction or modification will not interfere with the 

attainment or maintenance of national ambient air quality standards or violate applicable 

portions of the control strategy; and

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

Submitted 8/31/1993 Rev Submitted 12/10/1998 Rev Submitted 7/17/2006

(4) A schedule for 

submission of a complete 

construction permit 

application under the 

provisions of the Texas Clean 

Air Act, §382.518.

(5) a (4) A schedule for 

submission of a complete 

construction permit 

application under the 

provisions of the TCAA

Texas Clean Air Act, 

§382.518.

(5) a schedule for 

submission of a complete 

construction permit 

application under the 

provisions of the Texas Clean 

Air Act, Chapter 382 TCAA, 

§382.518.

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

37 

§35.806 – Requirement to Apply for a Permit or Modification 

I. Background of 30 TAC 35.806. 

A. Current SIP. §35.806 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. August 31, 1993. Originally submitted as §116.416 as adopted August 16, 1993; effective 

September 13, 1993. 

2. December 10, 1998. Texas submitted recodification to §35.806 and revisions thereto, 

adopted November 18, 1998; effective December 10, 1998. 

II. Evaluation matrix. 

§35.806 – Requirement to Apply for a Permit or Modification Comments 

Submitted 8/31/1993 Rev Submitted 12/10/1998

§116.416 Requirement to Apply for a 

Permit or Modification

§35.806 §116.416 Requirement to Apply 

for a Permit or Modification

The owner or operator of a facility for 

which an emergency order has been issued 

shall submit an application within 60 days of 

issuance of the order pursuant to the Texas 

Clean Air Act (TCAA), §382.063, and in 

accordance with the provisions of the TCAA, 

§382.0518, and with Subchapter B of this 

chapter (relating to New Source Review 

Permits). The application shall be reviewed 

and acted upon by the Executive Director 

without regard to the construction activity 

authorized by the emergency order. The 

appropriate permit fee shall be due and 

payable pursuant to the undesignated head 

Permit Fees in Subchapter B of this chapter. 

Costs and expenses related to additions, 

replacement, or repair of facilities or control 

equipment shall not be a consideration in any 

determination in the review of this application.

The owner or operator of a facility for 

which an emergency order has been issued 

under this subchapter shall submit an 

application within 60 days of issuance of the 

order under Texas Water Code, §5.515;

pursuant to the Texas Clean Air Act (TCAA), 

§382.063, and in accordance with the 

provisions of the TCAA, §382.0518;, and with

Chapter 116, Subchapter B of this title chapter

(relating to New Source Review Permits). 

The application shall be reviewed and acted 

upon by the Executive Director without regard 

to the construction activity authorized by the 

emergency order. The appropriate permit fee 

shall be due and payable under §§116.140, 

116.141, and 116.143 of this title (relating to 

Permit Fees) pursuant to the undesignated 

head Permit Fees in Subchapter B of this 

chapter. Costs and expenses related to 

additions, replacement, or repair of facilities 

or control equipment shall not be a 

consideration in any determination in the 

review of this application. 

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

38 

§35.807 – Affirmation of an Emergency Order 

I. Background of 30 TAC 35.807. 

A. Current SIP. §35.807 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. August 31, 1993. Originally submitted as §116.414 as adopted August 16, 1993; effective 

September 13, 1993. 

2. December 10, 1998. Texas submitted recodification to §35.807 and revisions thereto, 

adopted November 18, 1998; effective December 10, 1998. Section was revised as follows: 

i. Revisions to introductory paragraph, paragraphs (1)-(3); 

ii. New paragraph (4); and 

iii. Former paragraph (4) renumbered to paragraph (5) with revisions. 

3. July 17, 2006. Submittal of revisions as adopted June 28, 2006; effective July 17, 2006. 

Section was revised as follows: Revisions to paragraph (1) and (5). 

II. Evaluation matrix. 

§35.807 – Affirmation of an Emergency Order Comments 

Submitted 8/31/1993 Rev Submitted 12/10/1998

§116.414 Affirmation of an Emergency 

Order

§35.807 §116.414 Affirmation of an 

Emergency Order

The board shall affirm a proposed order if 

the applicant shows at the hearing, by 

preponderance of the evidence, that:

The commission board shall affirm a 

proposed order if the applicant shows at the 

hearing, by preponderance of the evidence, 

that: 

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

Submitted 8/31/1993 Rev Submitted 12/10/1998 Rev Submitted 7/17/2006

(1) The proposed 

construction and emissions 

are essential to prevent loss of 

life, serious injury, severe 

property damage, or severe 

economic loss not attributable 

to the applicant’s actions, and 

are necessary for the addition, 

replacement, or repair of 

facilities or control equipment 

that is necessitated by a 

catastrophic event.

(1) the The proposed 

construction and emissions 

otherwise precluded under the 

Texas Clean Air Act are 

essential to prevent loss of 

life, serious injury, severe 

property damage, or severe 

economic loss not attributable 

to the applicant’s actions, and 

are necessary for the addition, 

replacement, or repair of 

facilities or control equipment 

that is necessitated by a 

catastrophe catastrophic 

event.

(1) the proposed 

construction and emissions 

otherwise precluded under the 

Texas Clean Air Act are 

essential to prevent loss of 

life, serious injury, severe 

property damage, loss of a 

critical thoroughfare, or 

severe economic loss not 

attributable to the applicant’s 

actions, and are necessary for 

the addition, replacement, or 

repair of facilities or control 

equipment or repair of roads, 

bridges, or other 

infrastructure that is 

necessitated by a catastrophe.

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

39 

§35.807 – Affirmation of an Emergency Order Comments 

Submitted 8/31/1993 Rev Submitted 12/10/1998

(2) There are no practical alternatives to 

the proposed construction and emissions;

(2) there There are no practical 

alternatives to the proposed construction and 

emissions;

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

(3) The emissions will not cause or 

contribute to a condition or air pollution;

(3) the The emissions will not cause or 

contribute to a condition or air pollution; 

Rev Submitted 12/10/1998

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

(4) Any construction will not interfere with the attainment or maintenance or national 

ambient air quality standards or violate portions of the applicable control strategy; and

Submitted 8/31/1993 Rev Submitted 12/10/1998 Rev Submitted 7/17/2006

(4) The proposed 

construction or emissions will 

occur only ...

(5) the (4) The

proposed construction or 

emissions will occur only ...

(5) the proposed 

construction or emissions will 

occur only:

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

... at the property where 

the catastrophic event 

occurred or ... 

... at the property where 

the catastrophic event 

occurred or ... 

(A) on at the property 

where the catastrophic event 

occurred; or

... on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products , providing no 

more that no more than a de 

minimis increase will occur in 

the predicted concentration of 

the air contaminant at or 

beyond the property line at 

such other property;

... on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products , providing no 

more that no more than a de 

minimis increase will occur in 

the predicted concentration of 

the air contaminant at or 

beyond the property line at 

such other property; 

(B) on other property 

owned by the owner or 

operator of the damaged 

facility, which produces the 

same intermediates, products, 

or by-products , providing no 

more that no more than a de 

minimis increase will occur in 

the predicted concentration of 

the air contaminant at or 

beyond the property line at 

such other property; or

Rev Submitted 7/17/2006

(C) for public works projects needed to rebuild or repair damaged roads, bridges, or 

other infrastructure destroyed during a catastrophe;

Disapproval 

See discussion in section 

V of the TSD and in 

section II.A.2 of the 

Federal Register. 

 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

40 

§35.808 – Modification of an Emergency Order 

I. Background of 30 TAC 35.808. 

A. Current SIP. §35.808 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. August 31, 1993. Originally submitted as §116.417 as adopted August 16, 1993; effective 

September 13, 1993. 

2. December 10, 1998. Texas submitted recodification to §35.808 and revisions thereto, 

adopted November 18, 1998; effective December 10, 1998. Section was revised as follows: 

Revised introductory paragraph, and paragraphs (1)-(3). 

3. July 17, 2006. Submittal of revisions as adopted June 28, 2006; effective July 17, 2006. 

Section was revised as follows: Revised paragraph (1). 

II. Evaluation matrix 

 §35.808 – Modification of an Emergency Order Comments 

Submitted 8/31/1993 Rev Submitted 12/10/1998

§116.417 Modification of an Emergency 

Order

§35.808 §116.417 Modification of an 

Emergency Order

The Board shall modify a proposed or 

issued order if the hearing record shows that:

The commission Board shall modify a 

proposed or issued order if the hearing record 

shows that: 

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

Submitted 8/31/1993 Rev Submitted 12/10/1998 Rev Submitted 7/17/2006

(1) Construction and 

emissions otherwise precluded 

under the Texas Clean Air Act 

are essential to prevent loss of 

life, serious injury, severe 

property damage, or severe 

economic loss not attributable 

to the applicant’s actions, and 

are necessary for the addition, 

replacement, or repair of 

facilities or control equipment 

that is necessitated by a 

catastrophic event.

(1) construction

Construction and emissions 

otherwise precluded under the 

TCAA Texas Clean Air Act

are essential to prevent loss of 

life, serious injury, severe 

property damage, or severe 

economic loss not attributable 

to the applicant’s actions, and 

are necessary for the addition, 

replacement, or repair of 

facilities or control equipment 

that is necessitated by a 

catastrophic event.

(1) construction and 

emissions otherwise precluded 

under the TCAA are essential 

to prevent loss of life, serious 

injury, severe property 

damage, loss of critical 

transportation thoroughfare,

or severe economic loss not 

attributable to the applicant’s 

actions, and are necessary for 

the addition, replacement, or 

repair of facilities or control 

equipment or repair or 

replacement of roads, bridges, 

or other infrastructure that is 

necessitated by a catastrophic 

event.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 
Technical Support Document 

Appendix A 

Chapter 35 – Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions 

Subchapter K – Air Orders 

§§35.801, 35.802, 35.803, 35.804, 35.805, 35.806, 35.807, 35.808, and 35.809 

41 

 §35.808 – Modification of an Emergency Order Comments 

Submitted 8/31/1993 Rev Submitted 12/10/1998

(2) There are no practical alternatives to 

the proposed construction and emissions; and

(2) there There are no practical 

alternatives to the proposed construction and 

emissions; and 

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 

(3) Modification of certain terms of the 

proposed or issued order is necessary to make 

the order, construction, and/or emissions meet 

the requirement stated in §116.414 of this title 

(relating to Affirmation of an Emergency 

Order).

(3) Modification Modification of certain 

terms of the proposed or issued order is 

necessary to make the order, construction, 

and/or emissions meet the requirement stated 

in §35.807 §116.414 of this title (relating to 

Affirmation of an Emergency Order).

§35.809 – Setting Aside an Emergency Order 

I. Background of 30 TAC 35.809. 

A. Current SIP. §35.809 is not currently approved as part of the Texas SIP. 

B. Pending SIP Revisions Reviewed in this Action.

1. August 31, 1993. Originally submitted as §116.418 as adopted August 16, 1993; effective 

September 13, 1993. 

2. December 10, 1998. Texas submitted recodification to §35.809 and revisions thereto, 

adopted November 18, 1998; effective December 10, 1998. 

II. Evaluation matrix. 

§35.809 – Setting Aside an emergency Order Comments 

Submitted 8/31/1993 Submitted 12/10/1998 

§116.418 – Setting Aside an Emergency 

Order

§35.809 §116.418 – Setting Aside an 

Emergency Order

The Board shall set aside a proposed or 

issued order if the hearing record does not 

show, in accordance with §116.414 of this title 

(relating to Affirmation of an Emergency 

Order) or §116.417 of this title (relating to 

Modification of an Emergency Order), that the 

order should be either affirmed or modified 

and adopted as modified.

The commission Board shall set aside a 

proposed or issued order if it is not shown the 

hearing record does not show, in accordance 

with §35.807 §116.414 of this title (relating to 

Affirmation of an Emergency Order) or 

§35.808 §116.417 of this title (relating to 

Modification of an Emergency Order), that the 

order should be either affirmed or modified 

and adopted as modified. 

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register. 
SIP Approved Permits Regulations 

Texas Chapter 116 - Control of Air Pollution by Permits for New Construction or Modification 

Subchapter K – Emergency Orders 

42 

§116.1200 – Applicability 

I. Background of 30 TAC 116.1200. 

A. August 31, 1993. Submittal as §116.410 under Subchapter E – Emergency Orders. 

B. December 10, 1998. Texas submitted revisions to §35.410, adopted November 18, 1998; 

effective December 10, 1998. 

C. February 1, 2006. Submittal of recodification to 30 TAC 116.1200 under Subchapter K – 

Emergency Orders, adopted January 11, 2006; effective February 1, 2006. No changes were 

made to the regulatory text. 

II. Evaluation matrix. 

§116.1200 -- Applicability Comments 

Submitted 8/31/1993 Rev sub 2/1/2006 

§116.410 Applicability §116.1200 §116.410 Applicability

Submitted 8/31/1993 Rev sub 12/19/1998

The owner or operator of a facility may apply 

to the executive director for an emergency 

order to authorize immediate action for the 

addition, replacement, or repair of facilities or 

control equipment, and authorizing associated 

emissions of air contaminants, whenever a 

catastrophic event necessitates such 

construction and emissions otherwise 

precluded under the Texas Clean Air Act. For 

purposes of this section, a catastrophic event is 

an unforeseen event including, but not limited 

to, and act of God, and act of war, severe 

weather conditions, explosions, fire, or other 

similar occurrences beyond the control of the 

owner or operator, which renders a facility or 

its functionally related appurtances inoperable.

The owner or operator of a facility may apply 

to the commission or the executive director for 

an emergency order under Texas Water Code, 

§5.515, and Chapter 35 of this title (relating to 

Emergency and Temporary Orders and 

Permits; Temporary Suspension or 

Amendment of Permit Conditions), to 

authorize immediate action for the addition, 

replacement, or repair of facilities or control 

equipment, and authorizing associated 

emissions of air contaminants, whenever a 

catastrophe necessitates such construction and 

emissions otherwise precluded under the Texas 

Clean Air Act. For purposes of this section, a 

catastrophic event is an unforeseen event 

including, but not limited to, and act of God, 

and act of war, severe weather conditions, 

explosions, fire, or other similar occurrences 

beyond the control of the owner or operator, 

which renders a facility or its functionally 

related appurtances inoperable.

Disapproval 

See discussion in 

section V of the 

TSD and in section 

II.A.2 of the Federal 

Register.