# TECHNICAL SUPPORT DOCUMENT

Revisions to Texas State Implementation Plan Relating to Emergency Orders

30 TAC Chapter 35 – Emergency and Tempora ry Orders and Permits; Temporary Suspension or Amendment of Permit Conditions 30 TAC Chapter 116 – Control of Air Polluti on 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. As hley Mohr, United States Environmental Protection Agency Region 6, Air Permits Sectio n (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 Or ders 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 – Em ergency and Temporary Orders and Permits and

Chapter 116 – Control of Air Pollution by Perm its 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 revi sions 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 Perm its for New Construction and Modification.

B. What are we addressing in this action? EPA is addressing porti ons 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 Em ergency Orders; Rule Project No.

2005-070-035-LS.

C. What are we not addressing in this action? As part of this acti on, EPA is reviewing only those portions that are applicable to the issuan ce of air Emergency Orders. Under the Federal Clean Air Act (Act or CAA), SIPs can only in clude provisions addressing criteria pollutants and their precursors, so the portions of the Te xas 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 fi nal action on these SIP submittals? Final action by March 1, 2013, will meet EPA’s obligation on the Emerge ncy and Temporary Orders component of the May 21, 2009, Settlement Agreement betwee n EPA and the BCCA Appeal Group, Texas Association of Business, and Te xas 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 Or ders 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 Subm ittals 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 Re visions 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 Or ders 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 Orders 2 §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 regula tions were replaced with §§35.8 02 through 35.809 an d 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 Or ders 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 introd uctory ¶, ¶¶(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 Te xas 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; Tempor ary Suspension or Amendment of Permit Conditions. These regulations provide the process by which the Texas Commission on Environmental Quality (TCEQ) may issue a Te mporary 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 Or ders 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 ar e 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 f acilities, control equipment, or the repair or replacement of roads, bridges, and other infrastructure when ever 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 Emergenc y Order is an interim authorization for the emissions of air contaminants that are associat ed with the construction or modification of any source or facility in response to a ca tastrophe, as define d in 30 TAC 35.801. In summary, the regulations governing the Emergency Orders Program includes the following:

1. The procedures for applying for an Emergenc y Order, including the information that must be included in the application (§35.802);

2. Public notification a nd public hearing on th e 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 pr ovided 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 revi ewed 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 h earing. Each such plan shall – (A) include enforceable emissions lim itations 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 Or ders 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 w ithin 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 no t approve a revision of a plan if the revision would interfere with any a pplicable requirement concerning attainment and reasonable further progre ss (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 en forceable procedures that enable the State or local agency to determine whet her the construction or modification of a facility, building, structure or installation, or combination of these will result in – (1) A violation of applicable portio ns of the control strategy; or (2) Interference with attainment or maintenance of a national standard in the State in which the proposed source (o r modification) is located or in a neighboring State. (b) Such procedures must include means by which the State or local agency responsible for final decisionma king 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 attain ment or maintenance of a national standard.

4. 40 CFR 51.165 – Permit requirements. The regul atory text of 40 CFR 51.165 is available on line at: http://ecfr.gpoaccess .gov/cgi/t/text/textidx?c=ecfr&sid=feed49ec24fac67402c2bf 6fa403850d&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 Or ders 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 deterior ation of air quality. Th e 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 a nd 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 di scussion the findings of EPA’s evaluation and our conclusions made as a result of our evaluation.

B. The Appendix to this document contains addi tional 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 provi sion 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 fo r an Emergency Order that would “authorize immediate ac tion 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 resp onse to a catastrophe. See 30 TAC 25.801. The issued Emergency Order would be an in terim authorization for the emissions that are associated with the construction or modifica tion of any source or facility in response to a catastrophe. Therefore, the Emerge ncy Orders Program could be use to authorize construction via the issuance of an Order prior to a source submitting an a pplication for a NSR preconstruction permit.

A. Summary of the Federal Pr ogram 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 pr ojects that would be new major stationary sources and projects that would be majo r modifications under the requirements for Prevention of Significant Deterioration (PSD ) under 40 CFR 51.166 and the requirements for Nonattainment Area New Source Re view (NNSR) under 40 CFR 51.165. The requirements for Major NSR apply to the construction or modifi cation of stationary sources which emit, or have th e potential to emit a regulated NSR pollutant at greater than 100 tons per year for most sta tionary 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 Or ders 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 Pe rmitting 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 promulga ted under CAA, and the permit has been subject to public hearing and opportunity fo r interested persons to submit comments. CAA §165(a)(2) and 40 CF R 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 concentrati on for any pollutant in any area in which PSD applies; (2) National Ambient Air Quality Standard; and (3) Any other applicable emission standard or standa rd 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 te chnology. 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 sour ce. CAA §165(a)(6) a nd 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 a nd 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 Progr am 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 categor y 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 Or ders 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 requir ed 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 st andards 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 sour ce 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 an d social costs imposed as a result of its location, constructi on, 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 comme ncing 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 a pplicable Major NSR Program.

B. What is EPA’s Evaluation of th e 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 SI P 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 Orde rs and Permits; Temporary Suspension of Amendment of Permit Conditions. We are propos ing disapproval of th ese revisions because these regulations do not meet certain provisi ons of the Act and EP A’s NSR regulations.

1. Disapproval as not Satisfying the Public Partic ipation Required for NSR at the Time the Emergency Order is Issued. Public participation requirements that are app licable 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 proj ects. Instead, the applicable public participation for Major NSR projects will take place after the issu ance 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 Or der 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 pub lic is not afforded an opportu nity to review and comment on the proposed project (as required under th e CAA and implementing regulations) until after construction has begun; thus the public has not been provided meaningful opportunity to participate pr ior 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 Or ders 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 pa rticipation 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 Em ergency Order is an interim authorization for immediate action, including construction, fo llowing a catastrophe and is not a final issued Major NSR permit. Notwithstanding the f act that the TCEQ c onducts a review of Emergency Order applications, which TCEQ ch aracterized as being equivalent to the technical review of a permit, as discussed above, the technica l review does not include all required preconstruction review elements and th e 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 a ny necessary air permits , including Major NSR permits, within 60 days following the issuan ce of an Emergency Order. See 30 TAC 35.806. These permits are required to be applie d for and issued in accordance with the applicable New Source Review requiremen ts. However, the New Source Review permitting would occur following the commence ment of construction at the source. Therefore, the Emergency Orders Program doe s 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 CF R 51.166(a)(7)(iii). For NNS R 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 o f 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 ab ility to tailor the scope of its Minor NS R 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 Or ders 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 cro ss-walk for each rule, including an underlined and strikethrough annotation of each rule which documen ts 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 discussi on and evaluation. Any extended comments are included in either:

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

matrix; or

 As discussed in the body or the TSD as identi fied 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 comment s 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, adopt ed 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 th e 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, adopt ed 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 or der 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 pe rmanent 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 hea lth 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, adopt ed 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 au thority 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 applicati ons 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, m odify, 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 Register. (b) The executive director may authorize, in writing, a representative to act on the executive 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, adopt ed 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 representa tives, 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 isreturning 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 Commissio n 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, adopt ed 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 ex ecutive 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, adopt ed 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 limit ed 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, adopt ed 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, adopt ed 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 repres entative, 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 by pass 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 nu mber 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 info rmation 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 designat e 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 co rporate 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, produ ction, 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 pr ocedures. Corporate procedures gov erning authority to sign permit applications may provide for assignment to applicab le 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 ra nking elected official. For purposes of this paragraph, a principal executive officer of a fe deral 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 sh all be signed by the executive director or any duly authorized representative. (5) A person other than the executive director or the executive dir ector’s representative signing the application shall make the following certification: “I certify under penalty of law that this document and all attachment were pr epared 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 gatherin g information, the information submitted is, to the best of my knowledge and belief, true, ac curate, 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 ap plications, the owner or operator of a facility must sign the application. (7) For radioactive material license applica tions 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, adopt ed 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 th at an affected person may request an evidentiary hearing on issuance of the emergency order.

(d) Temporary orders require a hearing before i ssuance of the order. No tice of a hearing on a temporary order shall be given no later than the 20 th day before the date for the hearing on the order. This notice of hearing shall provide that an affected person ma y 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 noti ce 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 news paper 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 circ ulation in the county in which the facility is located or proposed to be locate d. 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 th is title (relating to Public Notice) for notice of a hearing on an application for a UIC permit. (4) For nonhazardous solid waste emergency or ders, 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 (rel ating to Public Notice) for notice of a hearing on an application for a nonhazardous waste permit. (5) For hazardous solid waste emergency or ders, 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 co mmission 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 15 th 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 or ders, 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 neares t 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 hearin g or setting procedures for issuance of permits do not apply to a hearing on a emergency order issu ed 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 no tice 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, adopt ed 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 in formation 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, adopt ed 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, adopt ed 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 pers on 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 th e 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 seek s 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, adopt ed 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 th e 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 emerge ncy 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 justiciabl e 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 pr oving its need for an emergency or temporary order, and will have to open and close the evidentia ry parts of the hearing. The fact that an emergency order was issued without a hearing, st anding 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, adopt ed 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. Th e 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 recodificatio n to §35.802 and revisions thereto, adopted November 18, 1998; effective Decembe r 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 fo r an Emergency Order Comments Submitted 8/31/1993 Rev submitted 12/10/1998 §116.411 Ap plication 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 fo r 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 fo r 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 recodificatio n 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 warrante d 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: Revi sions to paragra phs (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 transpor tation 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 re pair 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 para graph, 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: Revi sions to paragra phs (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 Te xas 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 recodificatio n to §35.806 and revisions thereto, adopted November 18, 1998; effective December 10, 1998.

II. Evaluation matrix.
§35.806 – Requirement to Apply fo r 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 provi sions 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 acco rdance 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 Di rector 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 recodifi cation to §35.807 and revisions thereto, adopted November 18, 1998; effective Decembe r 10, 1998. Section was revised as follows:

i. Revisions to introductory para graph, 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: Revi sions to paragra ph (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 preponder ance 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 recodificatio n to §35.808 and revisions thereto, adopted November 18, 1998; effective Decembe r 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 follo ws: 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 Modificati on 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 recodificatio n 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 accordan ce 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 doe s 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 im mediate 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 ac tion 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.