STATE OF TEXAS 

OFFICE oF THE GovER:-.lOR 

GEORGE W. BUSH 

GOVER. 'lOR 

Mr. Gregg A. Cooke 

Region 6 Administrator 

U.S. Environmental Protection Agency 

1445 Ross A venue 

Dallas, TX 75202-2733 

Dear Mr. Cooke: 

December 10, 1998 

. Enclosed is a proposed revision to Texas' State Implementation Plan (SIP) consisting of amendments that the 

Texas Natural Resource Conservation Commission (Commission) adopted on November 18, 1998. 

The creation of new 30 TAC Chapter 35 (emergency and temporary orders) and amendments to 30 TAC 

Chapter 116 (control of air pollution.by permits for new construction or modificatioil) implement Senate Bill 

1876 (75th Legislature 1997) that consolidated various statutory provisions goveiniog emergency and 

temporary orders. 

Also enclosed is a public hearing certification, a complete record of the public hearing, and the accompanying 

order. I look forward to your expeditious approval of this revision to the Texas SIP. - r •-- \ 

0 r ffi @ ~ ~- W ~l ~ . • 'I I' 'I 

L} ; !_ ' ,.....,....,. .._J ' • -=' l-· . 

I 

I ----' '·-

.___. _____ .. --------

Enclosures 

PosT Orna: Box 12428 AuSTh'l, TEXAS 78711 (512) 463-2000 (VoJcE)/(512) 475-3165 (illD) 
Barry R. McBee, Chainnan 

R. B. "Ralph" Marquez, Commissioner 

John M. Baker, Commissioner 

Jeffrey A. Saitas, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by .Reducing and Preventing Pollution 

THE STATE OF TEXAS § 

COUNTY OF TRAVIS § 

This is to certifY that the attached are true and correct copies of a revision to the Texas 

State Implementation Plan, adopted on November 18, 1998, pursuant to 40 Code of Federal 

Regulations (CFR), §51.104. Prior to the adoption of this revision, a public hearing was held 

pursuant to 40 CFR, §51.102(a), and notice of this hearing was given which conformed to the 

requirements of 40 CFR, §.llJ..OM.d). I am the custodian of the records of the Commission. 

To certifY which, witness my hand and the seal of the Texas Natural Resource 

Conservation Commission, this the 18th day of November, 1998. 

Texas Natural Resource Conservation Commission 

P.O. Box !3087 ° Austin, Texas 78711-3087 ° 5121239-1000 ° Internet address: www.tnrcc.state.tx.us 
/Texas Natural Resource 

Conservation Commission 

Public Hearing 

August 3, 1998 

30 TAC Chapter 35 and Chapter 116 

Emergency and Temporary Orders/Senate Bill 1876 

Rule Log Number 97142-035-AD 
INTRODUCTION 

The commission held a public hearing in Austin on August 3, 1998, to consider an amendment to 

§116.410, concerning emergency orders, and the repeal of §§116.411- 116.418, concerning emergency 

orders. In addition, new Chapter 35, concerning emergency and temporary orders, was considered. The 

amendments to Chapter 116 and new Chapter 35, Subchapters A - C and K were also considered as a 

revision to the State Implementation Plan. The commission adopted the proposed rules to implement 

Senate Bi111876, 75th Legislature, 1997, and to continue its effort to consolidate agency procedural rules 

and make certain processes consistent among different agency programs. 

Written comments were accepted through August 3, 1997. All testimony and comments have been 

reviewed and seriously considered. This volume contains a complete record of the public hearing and is 

divided into the following four sections: 

o Public Notification and Proposal 

o Written and Oral Testimony 

o Evaluation of Testimony 

o Staff Recommendations 

Additional copies of this hearing record are maintained in the Texas Natural Resource Conservation 

Commission's central office at 12100 North IH-35, Austin, Texas 78753. For further information, please 

contact Brian Christian at (512) 239-1760. 
PUBLIC

NOTIFICATION AND

PROPOSAL
PUBLIC NOTIFICATION 

Notification to the public of the proposed revisions was conducted by the following procedures: 

1. Publication of the notice of public hearing in the following newspapers on the dates listed: 

Austin American-Statesman; June 22, 1998 

Beaumont Enterprise-Journal; June 23, 1998 

Fort Worth Star-Telegram; June 25, 1998 

Houston Chronicle; June 26, 1998 

2. Publication of the public hearing notice in the Texas Register on July 3, 1998 (23 TexReg 

7135), and proposed rules in the Texas Register on July 3, 1998 (23 TexReg 6899). 

3. Correspondence forwarding the notice of public hearing to the following officials and agencies: 

Speaker of the House 

Lieutenant Governor 

City of El Paso 

City of Victoria Planning Department 

Dallas Department of Environmental and Health Services 

El Paso City-County Health and Environmental District 

Federal Highway Administration 

Fort Worth Environmental Management Department 

. '· 
Galveston County Health District 

Houston Department of Health and Human Services 

Harris County Pollution Control Department 

Houston;-Galveston Area Council 

North Central Texas Council of Governments 

South East Texas Regional Planning Commission 

Texas Department of Transportation 

Texas Transportation Institute 

Arkansas Department of Pollution Control and Ecology 

Louisiana Department of Environmental Quality 

New Mexico Air Quality Bureau 

Oklahoma Department of Environmental Quality 

U. S. Environmental Protection Agency 
EXAMPLE OF 

NEWSPAPER CLASSIFIED AD 

Houston Chronicle 

June 26, 1998 

NOTICE OF PUBLIC HEARING BY THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION ON PROPOSED REVISIONS TO 30TAC CHAPTER$35,116. 291,297,305,321, AND334 AND THE STATE IMPLEMENTATION PLAN 

Notice is herebY given that under 11M! I'I!Quirements of Texas Heal!h and Safety Code. <382.017; Texas Government Code, Subchapter B. Chapter 2001; and 40 Code of Federal Regulations. !51.102 of liM! United ~ States Environmental Protection Agency (EPA) regulations concern- ' in; State Implementation Plans !SIP), the Texas Natural Resource Conservotion Commission (TNRCC or commission) will conduct a Public hearing to receive testimony concerning revisions to 30 TAC Chapters 35, 116. 291.297, 305. 321. and 334 and 11M! SIP. 

The commission proPOses new Chapter 35 and amendmen!s to the re- moinin; chapters to consolidate the commission rules concerning 

I :r;;;.~si~~~=::ll'c:'~r~~~~isTr:J1'~~. i~~~~i~':r~~e~~si The rules will allow the commission or executive director to ad expe. ditiouslv to address unforeseen circumstances and/or emergencies. A PUblic hearing on the proPOsal will be held August3, 1998, at2:00 p.m. in Room 2210 of TNRCC Building F, located at 12100 ~ark 35 Circle, Austin. The hearing is structured tor tr.e receipt of oral or written com· 

1 =~c~r~~~~~~ ~~~- ~~~~~:,r~."b"~~~~;~ ~~~ cur during the heoring; however, an agency staH member will be available to discuss 11M! ProPOSal 30 minutes t>rior to the hearing and answer auestions before and after the hearing. 

Comments may be submil1ed to Lisa Martin, Office of PolicY and Re;ulotorv Development, MC 205. P.O. Box 13087, Austin, Texas 

I 78711-3087 or taxed to (5121 239·4808. Comnnen!s must be received by 5:00 P.m., August 3. 1998. and should reference Rule L~ Number 97142·035-AD. For further in!Orma~on. !>lease contact Bnan Chris- hn, Policy Research Division, (512) 239·1760. 

Persons with disobilities who have special communication or other ac· commodotioo needs who are planning to al1end the hearing should contoctthe agency at !512) 239·4900. Requets snoulcl be macte as tar In advance as passib'e. 

Issued in Austin, Texas. on June 17, 1m. 

Is/ Kevin MCCaNo Dir.ctor. Legal Division Texl!ls Natural Resource Conservation Commission 
hazardous waste management facility; RULES VIOLATED: 30 TAC 

§335.2(b) by sending containers containing hazardous waste offsite to facilities not authorized to receive hazardous waste; 30 TAC 

§335.10 by shipping hazardous waste off-site without a properly prepared manifest; and 30 TAC §335.12 by receiving hazardous waste 

without an accompanying properly prepared manifest; PENALTY: 

$16,080; STAFF ATTORNEY: Kara Salmanson, Litigation Support 

Division, MC 175, (512)239-1738; REGIONAL OFFICE: 5425 Polk 

Street, Suite H, Houston, Texas, (713)767-3500. 

(13)COMPANY: Mr. Stormy Nation; DOCKET NUMBER: 97-0540-

0SI-E; ENFORCEMENT ID NUMBER: 12453; LOCATION: Cedar 

Creek, Bastrop County, Texas; TYPE OF FACILITY: on-site sewage 

facilities; RULES VIOLATED: 30 TAC §285.107(a)(5) and Texas 

Health and Safety Code, §366.071 by installing an On-Site Sewage 

Facilities system without having obtained the required certification; 

PENALTY: 2,000; STAFF ATTORNEY: Lisa Hernandez, Litigation 

Support Division, MC 175, (512)239-0612; REGIONAL OFFICE: 

1921 Cedar Bend, Suite 150, Austin, Texas 78768-5336; (512)339-

2929. 

TRD-9810073 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Filed: June 24, 1998 

• • • 

Notice of Public Hearing (Emergency and Temporary Orders) 

Notice is hereby given that under the requirements of Texas Health 

and Safety Code, §382.017; Texas Government Code, Subchapter B, 

Chapter 2001; and 40 Code of Federal Regulations, §51.l02 of the 

United States Environmental Protection Agency (EPA) regulations 

concerning State Implementation Plans (SIP), the Texas Natural 

Resource Conservation Commission (TNRCC or commission) will 

conduct a public hearing to receive testimony concerning revisions to 

30 TAC Chapters 35, 116,291,297, 305, 321, and 334 and the SIP. 

The commission proposes new Chapter 35 and amendments to the 

remaining chapters to consolidate the commission rules concerning 

emergency and temporary orders. This action is part of the commission's implementation of Senate Bills I and 1876, 75th Legislature, 

1997. The rules will allow the commission or executive director to 

act expeditiously to address unforeseen circumstances and/or emergencies. 

A public hearing on the proposal will be held August 3, 1998, at 2:00 

p.m. in Room 2210 of TNRCC Building F, located at 12100 Park 

35 Circle, Austin. The hearing is structured for the receipt of oral or 

written comments by interested persons. Individuals may present 

oral statements when called upon in order of registration. Open 

discussion will not occur during the hearing; however, an agency staff 

member will be available to discuss the proposal 30 minutes prior to 

the hearing and answer questions before and after the hearing. 

Comments may be submitted to Lisa Martin, Office of Policy and 

Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas 

78711-3087 or faxed to (512) 239-4808. Comments must be received 

by 5:00 p.m., August 3, 1998, and should reference Rule Log 

Number 97142-035-AD. For further information, please contact Brian 

Christian, Policy Research Division, (512) 239-1760. 

Persons with disabilities who have special communication or other 

accommodation needs who are planning to attend the hearing should 

contact the agency at (512) 239-4900. Requests should be made as 

far in advance as possible. 

TRD-9809894 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Filed: June 19, 1998 

• • • 

Public Notices 

The executive director of the Texas Natural Resource Conservation 

Commission (TNRCC) by this notice is issuing a public notice of 

intent to delete (delist) a facility from the state Superfund registry 

(state Superfund list) of sites which may constitute an imminent 

and substantial endangerment to public health and safety or the 

environment due to a release or threatened release of hazardous 

substances into the environment. 

The site proposed for deletion is the Aztec Mercury State Superfund 

Site (the "site") which was originally placed on the state Superfund 

list on October 16, 1987 (12 TexReg 3538). The site is in Alvin, 

Brazoria County, Texas, at 970 Calloway Drive. The property 

is approximately 3.5 acres in size. Several buildings are on the 

property, including the property owner's residence, a former mercury 

distillation building, a covered work and storage area, and various 

other storage buildings. Drainage ditches are immediately north and 

east of the property. The surrounding area is residential. 

From 1974 and 1979, mercury was recycled at this site. An 

enforcement order issued May 13, 1986, by the Texas Water 

Commission (TWC), predecessor agency to the TNRCC, required 

operations to cease. A partial removal was performed by a private 

party in 1985. 

The TWC conducted a remedial investigation at this site. The 

objectives of the remedial investigation were to characterize and 

identify the contamination at the site. The investigation revealed two 

major areas of soils contamination, between the mercury distillation 

building and the residence, and between the mercury distillation 

building and the covered work area. Other areas with lower mercury 

concentrations were found around the covered work and storage 

area and the excavated pit along the north fenceline. Surface water 

samples collected at the site indicated that storm runoff, which 

carries contaminated sediments, was a continuing source of ditch 

contamination. Results of indoor air monitoring within the residence 

on site indicated no airborne mercury contamination. The risk 

assessment, which measured the degree of hazard at the site, indicated 

that action was necessary to eliminate an imminent and substantial 

endangerment to human health and the environment. 

Soil and sediment removal actions by TNRCC began at the site in 

1997. and were completed in February 1998. Confirmation sampling 

performed after the soils and sediment removal action confirmed 

that no soil or sediment containing mercury above the cleanup level 

remained onsite. The site was then backfilled with clean fill soil, 

graded to promote drainage, and vegetated. 

Due to concentrations of mercury in the shallow ground water beneath 

the site that were found in excess of the Maximum Contaminant 

Level (under the Safe Drinking Water Act), additional ground water 

investigations were conducted in 1996 and 1997. Based on the results 

of this investigation, the ground water beneath the site was found to 

pose no unacceptable excess risk to human health or the environment. 

As a result of the soil and sediment remedial action and the additional 

groundwater investigation, the executive director has determined that 

this site no longer presents an imminent and substantial endangerment 

to public health and safety or the environment and is therefore eligible 

IN ADDITION July 3, 1998 23 TexReg 7135 
Texas Department of Insurance 

Earliest possible date of adoption: August 2, 1998 

For further information, please call: (512) 463-6327 

• • • 

Subchapter I. Financial Requirements 

28 TAC §11.802 

(Editor's note: The text of the following section proposed for repeal 

will not be published. The section may be examined in the offices 

of the Texas Department of Insurance or in the Texas Register office, 

Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) 

Repeal of §§11.1 03, 11.208, 11.303, 11.304." 11.306 and 

11.508 - 11.510, 11.802, and 11.1605 is proposed pursuant 

to Insurance Code Article 20A.22 and Insurance Code, Article 1 .03A. Under the Insurance Code, Article 20A.22, the commissioner shall adopt rules as necessary to implement the Insurance Code, Chapter 20A. Article 1.03A provides that the 

Commissioner of Insurance may adopt rules and regulations to 

execute the duties and functions of the Texas Department of 

Insurance only as authorized by statute. 

The proposed repeal affects regulation pursuant to the following 

statutes: The Insurance Code Chapter 20A. 

§11.802. Deposit Requirements. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State on June 15, 1998. 

TRD-9809524 

Lynda H. Nesenholtz 

Acting General Counsel and Chief Clerk 

Texas Department of Insurance 

Earliest possible date of adoption: August 2, 1998 

For further information, please call: (512) 463-6327 

Subchapter Q. 

28 TAC §11.1605 

• • • 

Other Requirements 

(Editor's note: The text of the following section proposed for repeal 

will not be published. The section may be examined in the offices 

of the Texas Department of Insurance or in the Texas Register office, 

Room 245. James Earl Rudder Building, 1019 Brazos Street, Austin.) 

Repeal of §§11.1 03, 11.208, 11.303, 11.304, 11.306 and 

11.508 - 11.510, 11.802, and 11.1605 is proposed pursuant 

to Insurance Code Article 20A.22 and Insurance Code, Article 1.03A. Under the Insurance Code, Article 20A.22, the commissioner shall adopt rules as necessary to implement the Insurance Code, Chapter 20A. Article 1.03A provides that the 

Commissioner of Insurance may adopt rules and regulations to 

execute the duties and functions of the Texas Department of 

Insurance only as authorized by statute. 

The proposed repeal affects regulation pursuant to the following 

statutes: The Insurance Code Chapter 20A. 

§11.1605. Contracts for Phannaceutical Services. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State on June 15, 1998. 

TRD-9809525 

Lynda H. Nesenholtz 

Acting General Counsel and Chief Clerk 

Texas Department of Insurance 

Earliest possible date of adoption: August 2, 1998 

For further information, please call: (512) 463-6327 

• • • 

TITLE 30. ENVIRONMENTAL QUALITX 

Part I. Texas Natural Resource Conservation Commission 

Chapter 35. Emergency and Temporary Orders 

and Permits; Temporary Suspension or Amendment of Permit Conditions 

The Texas Natural Resource Conservation Commission 

(commission) proposes new §§35.1-35.3, 35.11-35.13, 35.21-

35.30, 35.101' 35.201' 35.202, 35.301-35.303, 35.401' 35.402, 

35.501, 35.502, 35.601, 35.701, 35.801-35.809, and 35.901, 

concerning emergency and temporary orders. This action 

implements Senate Bill (SB) 1876, 75th Legislature, 1997, 

and continues the commission's effort to consolidate agency 

procedural rules and make certain processes consistent among 

different agency programs. This action also includes certain 

changes necessary to implement SB 1, 75th Legislature, 1997, 

which are noted as follows. Finally, certain provisions of the 

rules will constitute a revision to the state implementation plan. 

The new Chapter 35 is largely derived from previously existing rules. Thus, the commission is concurrently proposing 

amendments to emergency and temporary order provisions in 

§§116.410, 291.14, 291.22,291.142,291.143, 305.21, 305.29, 

305.31,305.535, 321.80,321.132,321.134,321.152,321.158, 

321.219, 321.232, 321.239, 321.258, and 334.83. The commission is also proposing the repeal of the following current 

rules relating to emergency and temporary orders: §§ 116.411-

116.418, 291.10, 291.13, 297.57, 305.22-305.28, 305.30, and 

305.32. The commission also proposes new §297.57 and 

§305.30. These changes are published in this edition of the 

Texas Register. 

EXPLANATION OF PROPOSED RULES 

SB 1876 consolidated various statutory provisions governing 

emergency and temporary orders under new Texas Water Code 

(TWC), Chapter 5, Subchapter L. The new statute expressly 

authorizes the commission to issue temporary or emergency 

mandatory, permissive, or prohibitory orders, and issue temporary permits or suspend permit conditions by temporary or 

emergency order. It allows the commission to issue emergency 

orders with or without notice. Additionally, it authorizes the commission to delegate authority to the executive director to receive 

applications and issue emergency orders and authorize representatives to act on his or her behalf. General application, term, 

and hearing requirements applicable to all affected programs 

are included. Finally, specific requirements are listed for specific program areas. The statute will allow the commission or 

the executive director to act expeditiously to address unfore- · 

seen circumstances. 

PROPOSED RULES July 3, 1998 23 TexReg 6899 
These proposed rules conform with the provisions provided in 

TWC, Cha~ter 5, Subc~apter L, and provide procedural requirements for 1mplementat1on. TWC, §5.501, concerning Emergency and Temporary Order or Permit; Temporary Suspension 

or Amendment of Permit Condition, expressly authorizes the 

commission to prescribe rules necessary to carry out and administer Subchapter L. 

The proposed new Chapter 35 contains general provisions that 

are ~pplicable to all affected programs and program-specific 

requirements. The latter are largely derived from emergency 

a~d. temporary order rules that a.lready exist in other chapters 

w1thm T1tle 30 of the Texas Administrative Code (for example, 

Chapter 305, Subchapter B). These provisions have been 

derived from current commission rules and placed into the 

new Chapter 35, and the commission is not proposing many 

substantive changes to these rules as they currently exist. 

However, there are some substantive changes being proposed. 

As authorized by TWC, §5.501, the proposed new Chapter 35 

provides for the delegation of authority to issue certain orders to 

the executive director. Additionally, the commission is proposing 

changes to program-specific requirements that result from the 

passage of SBs 1 and 1876. Finally, the commission proposes 

changes to clarify some notice requirements for temporary and 

emergency orders, and it proposes a fee increase. These 

changes are noted where applicable. 

Propos~d .~ew Subchapter A, concerning Purpose, Applicability, 

and Def1n1t1ons, sets forth certain general provisions necessary 

for administration of the chapter. Proposed new §35.1, concerning. Purpose, provides that the purpose of the new chapter is 

to Implement the commission's authority under TWC, Chapter 

5, Su.bc~apter L, to _is~ue temporary or emergency mandatory, 

perm1ss1ve, or proh1b1tory orders, and by those orders to issue temporary permits or temporarily suspend or amend permit 

co~ditions. 'This provision is in accordance with TWC, §5.501, 

wh1ch contams the statutory authorization for the issuance of 

these orders. 

Proposed new §35.2, concerning Applicability, provides that tRe 

chapter applies to any application under TWC, Chapter 5, Subchapter L, to issue temporary or emergency mandatory permissive, or prohibitory orders. ' 

Proposed new §35.3, concerning Definitions, provides definitions for emergency order, severe property damage, and temP?~ary order. The purpose of this section to provide general defInitions for the chapter and to help administer the provisions of 

TWC, Chapter 5, Subchapter L. An emergency order is defined 

as an order that must be issued immediately in order to protect 

human health and safety or the environment; or for reasons 

specified in proposed new §35.302, concerning Application for 

~mergency and Temporary Orders to Discharge. The definition of severe property damage is the same as that in §305.2, 

concerning Definitions, and is necessary for the requirements 

governing water quality emergency and temporary orders. Temporary order is defined as an order of short-duration which must 

be i~su~d as quickly as possible, or which might allow an authonzatlon for a short-term activity, setting conditions and limitations .that will adequately protect human health or safety or 

the environment, or for the reasons specified in new §35.302. 

P~opose~ new Su~chapter B, concerning Authority of Executive 

D1rector, IS compnsed of three sections and regards delegation 

to the executive director, as authorized by TWC, §5.501. New 

§35.11, concerning Purpose and Applicability, provides that the 

23 TexReg 6900 July 3, 1998 Texas Register 

purpose of Subchapter B is to allow the executive director to 

act on behalf of the commission. 

P~oposed new ~35.12, concerning Authority of the Executive 

D1rector, authonzes the executive director, or a representative 

or represent~tives authorized in writing by the executive director, 

~o act on h1s or her behalf to receive applications for and 

1ssu~ emergency orders. The section also provides notice and 

heanng procedures. 

Propose~ new §35.13, concerning Eligibility of Executive Director, provides for the authority of the executive director or the 

executive .di~ect?r's representative to act on Texas pollutant dlscharge ehmmallon system (TPDES) permits or other TPDESr~lated app~ov~ls if the executive director meets the qualifications spec1f1ed 1n §50.41, concerning Eligibility of Executive Director. 

Pro~osed new Subch~pter C, concerning General Provisions, 

provides general reqUirements for issuing emergency and temporary. or~ers. Propo~ed n7w §35.21, concerning Action by 

CommiSSion or Executive Director, allows the commission or 

executive director to issue temporary or emergency orders and, 

by temporary or emergency order, to issue a temporary permit 

or temporanly suspend or amend a permit condition. The new 

provisions implement TWC, §5.501. 

Proposed new §35.22, concerning Term and Renewal of Orders •.. provid~s that unless otherwise noted by a program-

~pec1flc reqUirement, the term of an emergency order is a maxImum of 180 days, and that an emergency order may be ren~wed once for an additional period of up to 180 days by submittal of a new application. The section also provides that a 

temporary order is limited to a reasonable time specified by 

the order. This provision implements TWC, §5.505, concerning 

Term of Order. 

Proposed new §35.23, concerning Effect of Orders, provides 

~hat an em~rgency or temp?rary order does not vest any rights 

m the perm1t holder or rec1p1ent and expires in accordance with 

its terms. 

Proposed new §35.24, concerning Application for Emergency 

~r Temporary <?rder, specifies requirements governing applicatl~ns .. The sect1on prescribes the necessary contents of the application and requires its filing with the chief clerk. Subsection 

(b) specifies that an application for an emergency or temporary 

order for a bypass of untreated and partially treated wastewater, if the state has national pollutant discharge elimination 

sys.t~m (NPDES) authorization, will constitute prior notice of an 

ant1c1pated bypass, as required by 30 TAC §305.535. Section 

35.24. ~l~o re~uires copies of the application to be provided to 

the diVISio.n d1r~ctor of the appropriate program on behalf of 

the execut1ve d1rector, and to the public interest counsel, at the 

sa~e time it is filed with the chief clerk. Finally, the section prescnbes t~e ~anner in which applications are to be signed. The 

new sect1on Implements TWC, §5.502, concerning Application 

for. Emergency or Temporary Order, and contains procedural reQUirements necessary for implementation. 

Prop?sed new. §35.25, concerning Notice and Opportunity for 

Heanng, prov1des the notice and hearing requirements for 

emergency and temporary orders. The section provides that 

an emergency order can be issued with or without notice and/ 

or opportunity for hearing, and that if one is issued without a 

he~ring, th~ order will set a time and place for a hearing to 

aff1rm, mod1fy, or set aside the order to be held before the 

. '· 
commission or its designee as soon as practicable after the 

order is issued. In addition, the section provides that unless 

otherwise provided by program-specific requirements, notice of 

a hearing for issuance of an emergency order or to affirm, 

modify, or set aside the order must be given not later than the 

tenth day before the date set for the hearing and provide that 

an affected person may request an evidentiary hearing on the 

issuance of the emergency order. The section also provides 

that temporary orders require a hearing before their issuance, 

and that notice must be given not later than the 20th day before 

the hearing and provide that an affected person can request 

an evidentiary hearing on issuance of the temporary order. 

Program-specific notice requirements are also s~t out. Some 

of these notice requirements are not in existing Chapter 305 

and provide clarification of notice requirements. In addition, 

the newspaper notice for air catastrophes replaces the existing 

requirement for notice to be given in the Texas Register. The 

proposed section implements TWC, §5.504. 

Proposed new §35.26, concerning Contents of Emergency 

or Temporary Order, contains the minimum requirements for 

information that must be included in these types of orders. 

The contents are derived from the application requirements 

contained in TWC, §5.502. 

Proposed new §§35.27, 35.28, and 35.29, concerning Hearing Required, Hearing Requests, and Procedures for a Hearing, respectively, provide for hearings, hearing requests, and 

procedures for hearings on emergency and temporary orders. 

The rules provide that hearings will be conducted in accordance with the Administrative Procedure Act and commission 

rules. The hearing procedures implement TWC, §5.115(a), concerning Persons Affected in Commission Hearings, and TWC, 

§5.504, concerning Hearing to Affirm, Modify, or Set Aside Order. 

Proposed new §35.30, concerning Application Fees, provides 

that the application fee for an emergency or temporary order 

under this chapter is $500, plus the actual cost of the required 

notice. TWC, §5.501, authorizes the adoption of fees for administering the program. In addition, the increase is a!Jthorized 

by TWC, §5.235, which establishes fee authority, and by Rider 

9 under the commission's appropriation in Article VI of HB 1, 

75th Legislature, 1997, the General Appropriations Act. The 

commission proposes to increase the current fee from $100 to 

$500 in order to more adequately cover commission expenses 

incurred when issuing these orders. 

Proposed new Subchapter D concerns Emergency Suspension 

of Beneficial Inflows. The subchapter implements TWC, §5.506, 

concerning Emergency Suspension of Permit Condition Relating to Beneficial Inflows to Affected Bays and Estuaries and 

lnstream Uses, and contains previously existing requirements 

that have been moved to the new Chapter 35. 

New §35.1 01, concerning Emergency Suspension of Permit 

Conditions Relating to Beneficial Inflows to Affected Bays and 

Estuaries and lnstream Uses, provides the criteria to be used 

by the commission in its review and action on an application by 

a water right holder for the temporary suspension of conditions 

relating to beneficial inflows to bays and estuaries and instream 

uses during an emergency. The new section is entirely derived 

from current §297.57, concerning Emergency Suspension of 

Permit Conditions, and the commission proposes no substantive 

changes to the requirements as they currently exist in Chapter 

297. 

Proposed new Subchapter E concerns Emergency Orders for 

Utilities. The subchapter implements TWC, §5.507, concerning 

Emergency Order for Operation of Utility that Discontinues 

Operation or is Referred for Appointment of Receiver, and 

§5.508, concerning Emergency Order for Rate Increase in 

Certain Situations. Proposed Subchapter E also includes 

provisions necessary to implement SB 1, and it includes existing 

commission rules from Chapter 291 that have been moved to 

new Chapter 35. While largely derived from current commission 

rules, the commission proposes to allow the executive director 

to issue the orders under this subchapter, as authorized. ,bY 

TWC, §5.501. - . 

Proposed new §35.201, concerning Emergency Order for Operation of Utility that Discontinues Operation or is Referred for 

Appointment of a Receiver, authorizes the commission or executive director to appoint a person by emergency order to 

temporarily manage and operate a utility that has discontinued or abandoned operations, or which has been or is being 

referred to the Attorney General for the appointment of a receiver under TWC, §13.412. This provision implements both 

TWC, §5.508, concerning these types of orders; and TWC, 

§ 13.412, as amended by SB 1, which expanded the definition of abandonment. The proposed new section also authorizes the issuance of an emergency order in accordance with 

current §291.142, concerning Operation of Utility that Discontinues Operation or is Referred for Appointment of a Receiver, 

and §291.143, concerning Operation of a Utility by a Temporary 

Manager. 

Proposed new §35.202, concerning Emergency Order for Rate 

Increase in Certain Situations, authorizes the commission or 

executive director to authorize an emergency rate increase for 

a utility under certain conditions. Specific requirements in the 

section are entirely derived from current §291.22, concerning 

Notice of Intent to Change Rates, that have been moved to the 

new Chapter 35, and the commission proposes no substantive 

changes to those requirements. 

Proposed new Subchapter F concerns Water Quality Emergency and Temporary Orders. The subchapter implements 

TWC, §5.509, concerning Temporary or Emergency Order Relating to Discharge of Waste or Pollutants, and includes existing 

commission rules that have been moved to the new Chapter 35 

from Chapter 305, Subchapter B. While largely derived from 

current commission rules, the commission is proposing to allow 

the executive director to issue the orders under this subchapter, as authorized by TWC, §5.501. The commission takes this 

action in order to provide for the more expeditious issuance of 

emergency and temporary orders. 

Proposed new §35.301, concerning Emergency and Temporary 

Orders Authorized, authorizes the commission or executive 

director to issue emergency orders, and the commission to 

issue temporary orders, for the discharge of waste or pollutants 

into or adjacent to any water in the state when expeditious action 

is necessary. 

Proposed new §35.302, concerning Application for Emergency 

and Temporary Orders to Discharge, contains application requirements that are specific to Subchapter F. In addition to the 

application requirements specified in proposed §35.24, this proposed section requires a person desiring to obtain an emergency or temporary order to provide specific information, including a statement that the order is necessary to enable action to 

be taken more expeditiously than is otherwise provided by TWC, 

PROPOSED RULES July 3, 1998 23 TexReg 6901 
Chapter 26, to effectuate the policy and purposes of that chapter, and statements on the nature of the proposed discharge. 

Additionally, the section reflects a change in the law that provides that amelioration of serious drought conditions can be a 

condition necessitating the issuance of an emergency or temporary order to the extent consistent with state assumption of the 

NPDES program. Further, upon assumption of the NPDES program, a permittee seeking to discharge into state waters must 

address alternatives to a bypass in its application. 

Proposed new §35.303, concerning Emergency Orders and 

Temporary Orders, provides the conditions under which the 

commission or executive director may issue emergency or 

temporary orders. 

Proposed new Subchapter G concerns Solid Waste and Uranium By-product Emergency Orders. It implements TWC, 

§5.511, concerning Emergency Administrative Order Concerning Imminent and Substantial Endangerment, and §5.512, concerning Emergency Order Concerning Activity of Solid Waste 

Management, and contains provisions from existing commission rules. While largely derived from current commission rules, 

the commission is proposing to allow the executive director to 

issue the orders under this subchapter, as authorized by TWC, 

§5.501. 

Proposed new §35.401, concerning Emergency Orders for Nonhazardous Solid Waste Activities and Underground Injection of 

Uranium By-product Materials, authorizes the commission or 

executive director to issue a mandatory or prohibitory emergency order regarding any activity of solid waste management 

within its jurisdiction, whether the activity is covered by permit 

or not, if it determines that an emergency exists. The section 

also provides for terms of these orders. The new section was 

derived from existing §305.29, concerning Emergency Orders 

for Solid Waste Activities. As noted, the commission proposes 

to authorize the executive director to issue these orders, as allowed by statute. In addition, the commission proposes to add 

requirements for underground injection control (UIC) emergency 

orders previously only set out in federal rules. 

Proposed new §35.402 concerns Emergency Actions Concerning Hazardous Waste, and was derived in its entirety from current §305.30, concerning Emergency Actions Concerning Hazardous Waste. As previously noted, the commission proposes 

to allow the executive director to issue orders under the proposed section. 

Proposed Subchapter H concerns Radioactive Substances and 

Materials Emergency Orders. The proposed subchapter implements TWC, §5.516, which authorizes the issuance of emergency orders under Health and Safety Code (HSC), §401.056, 

concerning Emergency Orders. 

Proposed new §35.501, concerning Emergency Orders Relating to Radioactive Substances, provides for commission or executive director action if it is determined that radioactive substances threaten the public health or safety or the environment, 

and that a licensee managing the radioactive substances is unable to remove the threat. The section also provides programspecific notice and hearing requirements, as well as provisions 

relating to financial assurance. The section is entirely derived 

from current §305.31, concerning Emergency Orders Relating 

to Radioactive Substances, but the commission does propose 

modifications. The proposed rule provides for action by the 

executive director. In addition, proposed §35.501 (g), concerning financial assurance, contains changes to what is in current 

23 TexReg 6902 July 3, 1998 Texas Register 

§305.31 (h), to better reflect the relevant statutory language. Additionally, former §305.31 (b) and (c), concerning by-product material, are deleted due to the transfer of jurisdiction over those 

wastes to the Texas Department of Health, under SB 1857, 75th 

Legislature, 1997 (see this edition of the Texas Register). The 

commission proposes no other changes to the rules concerning 

this matter as they currently exist, and the provisions are simply 

incorporated into the new Chapter 35. 

Proposed new §305.502, concerning Emergency Impoundment 

of Radioactive Material, provides for commission and executive 

director action to impound or order the impoundment of radioac- • ~ 

tive material possessed by any person not equipped to observe, 

or failing to observe, the provisions of the Texas Radiation Control Act (TRCA), the rules of 30 TAC Chapter 336 (relating to 

Radioactive Substance Rules), or a license or order issued by 

the commission under TRCA or Chapter 336. The section also 

provides for the disposition of the radioactive material. The 

section is derived from current §305.32, concerning Emergency 

Impoundment of Radioactive Material, and the commission proposes only to provide for action by the executive director. The 

commission proposes no other changes to the rules concerning 

this matter as they currently exist, and the provisions are simply 

incorporated into the new Chapter 35. 

Proposed new Subchapter I concerns Storage Tank Emergency 

Orders. The.subchapter implements TWC, §5.510, which authorizes the issuance of these orders. Proposed §35.601, concerning Emergency Order Concerning Underground or Aboveground Storage Tanks, authorizes the commission or executive 

director to issue an order to the owner or operator of an underground storage tank regulated under TWC, Chapter 26, and 30 

TAC Chapter 334 (relating to Underground and Aboveground 

Storage Tanks). The section contains program-specific requirements concerning the content of the order, and it provides for 

the delivery of the order to people identified in the order. The 

section is derived from current §334.83, concerning Emergency 

Orders. The only significant change proposed by the commission is to provide for action by the commission, as well as the 

executive director, whereas the existing rule provides only for 

action by the executive director. Otherwise, the commission 

proposes no other changes to the rules concerning this matter 

as they currently exist, and the provisions are simply incorporated into the new Chapter 35. 

Proposed new Subchapter J, concerning Imminent and Substantial Endangerment, implements TWC, §5.511, concerning Emergency Administrative Order Concerning Imminent and 

Substantial Endangerment. Proposed §35.701, concerning 

Emergency Orders, allows the commission or the executive director to issue an emergency administrative order under HSC, 

§361.272, in the manner prescribed by proposed Chapter 35. 

ed new Subchapter K, concerning Air Orders, Implements TWC, §5.514 and §5.515, concerning Order Issued Under Air Emergency and Emergency Order Because of Catastrophe, respectively. The proposed rules are derived from current 

Chapter 116, Subchapter E, concerning Emergency Orders. 

The commission proposes changes to make the provisions consistent with SB 1876. This subchapter will also become part of 

the state implementation plan because it replaces the rules currently found in Chapter 116, Subchapter E. 

Proposed new §35.801, concerning Emergency Orders Because of Catastrophe, authorizes the commission or executive 

director to issue an emergency order authorizing immediate ac-
tion for the addition, replacement, or repair of facilities or control 

equipment, and authorizing associated emissions of air contaminants, whenever catastrophic event necessitates such action 

that would otherwise be precluded by the Texas Clean Air Act. 

Catastrophic events are also defined. 

Proposed new §35.802, concerning Application for an Emergency Order, requires the submission of an application in accordance with proposed §35.24. The section also provides the 

information that must be submitted in addition to the general 

application requirements. The section is derived from current 

§ 116.411 , concerning Application for an Emergency Order. 

Proposed new §35.803, concerning Public Notifi9ation, is derived from current §116.412 and contains changes to rules as 

they currently exist in that section. The new section requires the 

commission or executive director to publish notice of the emergency order and the hearing to affirm, modify, or set aside in a 

newspaper of general circulation in the nearest municipality not 

later than the tenth day before the hearing. This is a change 

from current §116.412, which requires Texas Register notice 

as soon as practicable after issuance. The new section also 

contains changes allowing the commission or the executive director to act. 

Proposed new §35.804, concerning Issuance of Order, authorizes the commission or executive director to issue an order 

under this subchapter if certain conditions are found to exist. 

Proposed new §35.805, concerning Contents of an Emergency 

Order, prescribes content requirements that are in addition to 

those specified in §35.38. The provisions are derived entirely 

from current §116.415, concerning Contents of an Emergency 

Order. · -

Proposed new §35.806, concerning Requirement to Apply for 

a Permit or Modification, requires the owner or operator of 

a facility for which an emergency order has been issued to 

submit an application within_ QQ.. days of issuance of the order in 

accordance with statute anacommission rules. The section 

is derived in its entirety from current §116.416, concerning 

Requirement to Apply for a Permit or Modification. 

Proposed new §35.807, concerning Affirmation of an Emergency Order, provides the conditions under which the commission affirms a proposed or issued order. The section is derived 

in its entirety from current § 116.414, concerning Affirmation of 

an Emergency Order. 

Proposed new §35.808, concerning Modification of an Emergency Order, provides the conditions under which an emergency order must be modified. The section is derived from current § 116.417-;-concerning Moaification of an Emergency Order. 

Proposed new §35.809, concerning Setting Aside an Emergency Order, requires a proposed or issued order to be set 

aside if the hearing record does not show that the order should 

be affirmed or modified. The section is derived from current 

§ 116.418, concerning Setting Aside and Emergency Order. 

Proposed Subchapter L, c r mg n-s1 e ewage Disposal 

System, implements TWC, §5.513, which authorizes the issuance of these orders. Proposed §35.901, concerning Emergency Order Concerning On-Site Sewage Disposal System, authorizes the commission to issue an emergency order suspending the registration of an installer of an on-site sewage disposal 

system, regulating an on-site sewage disposal system, or both, 

under certain conditions. 

FISCAL NOTE 

Stephen Minick, Strategic Planning and Appropriations Division, 

has determined that for the first five-year period the sections as 

proposed are in effect, there will be fiscal implications as a result 

of administration or enforcement of the sections. The effect on 

state government will be a small reduction in costs as a result 

of the delegation of certain actions to the executive director 

and the overall simplification and standardization of emergency 

and temporary order provisions. Revenues collected by the 

commission will increase by $400 for each order applied for 

under the provisions of these rules. The effect on lema! 

governments will be an increase of $400 in application fees 

under the proposed increase from $100 to $500. Any other 

implications for units of local government making application for 

orders under these proposed sections will be similar to those 

effects on any applicant. 

PUBLIC BENEFIT 

Mr. Minick has also determined that for the first five years the 

sections as proposed are in effect, the public benefit anticipated 

as a result of enforcement of and compliance with the sections 

will be improved consistency between commission regulations 

and statutory authority for emergency and temporary orders, 

more uniform requirements for such orders, and more costeffective administration and processing of orders. The costs to 

persons, including small businesses, required to comply with the 

sections as proposed are the proposed increase in application 

fee for an order from $100 to $500 and the stipulation that 

an applicant is required to reimburse the commission for any 

costs of public notice incurred by the commission on behalf of 

the applicant. The costs of notice will vary on a case-by-case 

basis with the type of application and the number of parties 

to whom notice for a particular application is required. Some 

minor cost savings from the simplification and standardization of 

emergency and 'temporary orders may also accrue to affected 

parties, but these effects have not been determined and are 

not anticipated to be significant for most applicants. No other 

economic costs are anticipated for any person required to 

comply with the sections as proposed. 

DRAFT REGULATORY IMPACT ANALYSIS 

Staff has reviewed the proposed rulemaking under the regulatory analysis requirements of Texas Government Code, 

§2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of 

a "major environmental rule" as defined in that statute, and it 

does not meet any of the four applicability requirements listed 

in §2001.0225(a). The rules are not major environmental rules 

because their primary intent is to consolidate already existing 

emergency and temporary order rules under one chapter. In 

addition, the applicability requirements do not apply because 

the commission is expressly granted authority by TWC, §5.501. 

The rules also concern procedural requirements of the agency, 

such as delegation of the authority to issue such orders by the 

commission to the executive director, and are a result of the 

commission's continuing regulatory reform effort. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a takings impact assessment 

for these rules under Texas Government Code, §2007.043. 

The following is a summary of that assessment. The specific 

purpose of these rules is to implement the statutory provisions 

of TWC, Chapter 5, Subchapter L. The rules will also provide 

PROPOSED RULES July 3, 1998 23 TexReg 6903 
for the delegation of authority to issue emergency orders by 

the commission to the executive director, consolidate agency 

p~ocedural rules, and make certain processes consistent among 

different agency programs. The rules will substantially advance 

these specific purposes by providing specific provisions on 

these matters. Promulgation and enforcement of these rules 

will not burden private real property which is the subject of the 

rules because they concern commission procedural rules. 

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 

The commission has reviewed the proposed rulemaking and 

found that the proposal is a rulemaking identified in the Coastal 

Coordination Implementation Rules, 31 TAC §505.11, or will affect an action/authorization identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11, and will, therefore, require that applicable goals and policies of the Coastal 

Management Program (CMP} be considered during the rulemaking process. 

The commission has prepared a consistency determination for 

the proposed rules under 31 TAC §505.22, and found that the 

proposed rules are consistent with the applicable CMP goals 

and policies. The following is a summary of that determination. The CMP goal applicable to the proposed rules is the 

goal to protect, preserve, restore, and enhance the diversity, 

quality, quantity, functions, and values of coastal natural resource areas. CMP policies applicable to the proposed rules 

include the administrative policies and the policies for specific 

activities related to: construction and operation or solid waste 

treatment, storage, and disposal facilities; discharge of municipal and industrial wastewater to coastal areas; nonpoint source 

water pollution; and appropriations of water. Promulgation and 

enforcement of these proposed rules is consistent with the applicable CMP goals and policies because the proposed rules 

will establish clear and consistent requirements governing the 

issuance of emergency and temporary orders, as authorized 

by TWC, Chapter 5, Subchapter L. Under the authority granted 

by statute, the commission may issue emergency or temporary 

orders to address unforeseen circumstances, such as drought 

conditions or potential catastrophes. Promulgation and enforcement of these rules will not violate or exceed any standards 

identified in the applicable CMP goals and policies because they 

will allow the commission to take steps to mitigate emergency 

or potential emergency situations, which will result in environmental benefits for the entire state, including coastal areas. 

The commission invites public comment on the consistency of 

the proposed rules. 

PUBLIC HEARING 

A public hearing on this proposal will be held August 3, 

1998, at 2:00 p.m. in Room 221 0 of Texas Natural Resource 

Conservation Commission (TNRCC} Building F. located at 

12100 Park 35 Circle, Austin. The hearing is structured for 

the receipt of oral or written comments by interested persons. 

Individuals may present oral statements when called upon in 

orde~ of registration. Open discussion will not occur during the 

heanng; however, an agency staff member will be available to 

discuss the proposal 30 minutes prior to the hearing and will 

answer questions before and after the hearing. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Lisa Martin, TNRCC Office of 

Policy and Regulatory Development, MC 205, P.O. Box 13087, 

23 TexReg 6904 July 3, 1998 Texas Register 

Austin, Texas, 78711-3087 or faxed to (512} 239-4808. All 

comments should reference Rule Log Number 97142-035-AD. 

Comments must be received by 5:00 p.m., August 3, 1998. 

For further information, please contact Brian Christian, Policy 

Research Division, (512} 239•1760. 

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearings should contact the agency at (512} 239-4900. Requests should be made as far in advance as possible. 

Subchapter A. Purpose, Applicability, and Defini- . 1

. 

tions 

30 TAC §§35.1-35.3 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapter 5, Subcha~ter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commission takes this action 

includ~: §5.1 03, which establishes the commission's general 

authonty to adopt rules; §5.1 05, which establishes the commissio~'s autho~ity to set polic~ by rule; §5.235, as amended by 

Art1cle VI, R1der 9, House B1ll 1, 75th Legislature, 1997, which 

establishes fee authority; §11.148, which establishes the commission's authority to issue orders relating to beneficial inflows 

to affected bays and estuaries and instream uses; §13.041, 

which establishes the commission's authority to adopt rules to 

exercise its jurisdiction over TWC, Chapter 13; §26.011, which 

establishes the commission's authority over water quality in the 

state; §26.351, which establishes the commission's authority 

concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning 

petroleum storage tanks, and §27.019, which establishes the 

commission's authority to adopt rules concerning underground 

injection control. Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority toestablish rules for the control of solid waste; §366.012, which establishes the commission's authority to establish rules for onsite disposal systems; §382.017, which establishes the commission's rulemaking authority; §382.051, which establishes 

the commission's authority to adopt rules concerning air permits; §382.0513, which establishes the commission's authority 

to adopt rules concerning permit conditions; §401.011, which 

establishes the commission's authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive substance disposal. 

The proposed new sections implement TWC, §§5.1 03, 5.1 05, 

5.501-5.517, 11.148, 13.041, 26.011, 26.351, and 26.354; 

and HSC, §§361.011, 361.017, 361.024, 366.D12, 382.017, 

382.051,382.0513,401.011,401.051,401.056, and 401.412. 

§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, pennissive, or prohibitory orders 
and by those orders to issue temporary permits or temporarily suspend 

or amend permit conditions. 

§35.2. Applicability. 

This chapter applies to any application under Texas Water Code, 

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

permissive, or prohibitory orders. 

§35.3. Definitions. 

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

the following meanings, unless the context clearly indicates otherwise. 

ill Emergency order-An order which must be issued 

immediately, in order to protect human health or safety or the 

environment, or for other reasons specified by statute. Specific 

requirements for an emergency order are specified in the rules in 

this chapter relating to each program. 

Ql Severe property damage-Substantial physical damage 

to property, damage to treatment facilities which causes them to 

become inoperable, or substantial and permanent loss of natural 

resources which can reasonably be expected to occur in the absence 

of a discharge. Severe property damage does not mean economic loss 

caused by delays in production. 

ill Temporary order-An order of short duration which 

must be issued as quickly as possible or which might allow 

an authorization for a short term activity, setting conditions and 

limitations that will adequately protect human health or safety or 

the environment, or for the reasons specified in §35.302 of this title 

(relating to Application for Emergency and Temporary Orders to 

Discharge). Specific requirements for a temporary order are specified 

in the rules in this chapter relating to each program. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809858 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter B. Authority of Executive Director 

30 TAC §§35.11-35.13 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commission takes this action 

include: §5.1 03, which establishes the commission's general 

authority to adopt rules; §5.1 05, which establishes the commission's authority to set policy by rule; §5.235, as amended by 

Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, which 

establishes fee authority; § 11.148, which establishes the commission's authority to issue orders relating to beneficial inflows 

to affected bays and estuaries and instream uses; §13.041, 

which establishes the commission's authority to adopt rules to 

exercise its jurisdiction over TWC, Chapter 13; §26.011, which 

establishes the commission's authority over water quality in the 

state; §26.351, which establishes the commission's authority 

concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning 

petroleum storage tanks; and §27.019, which establishes the 

commission's authority to adopt rules concerning underground 

injection control. Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority to establish rules for the control of solid waste; §366.012, which establishes the commission's authority to establish rules for .onsite disposal systems; §382.017, which establishes \he commission's ru1emaking authority; §382.051, which establishes 

the commission's authority to adopt rules concerning air permits; §382.0513, which establishes the commission's authority 

to adopt rules concerning permit conditions; §401.011, which 

establishes the commission's authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive substance disposal. · 

The proposed new sections implement TWC, §§5.1 03, 5.1 05, 

5.501-5.517, 11.148, 13.041, 26.011, 26.351, and 26.354; 

and HSC, §§361.011, 361.017, 361.024, 366.012, 382.017, 

382.051, 382.0513, 401.011, 401.051, 401.056, and 401.412. 

§35.11. Pupose and Applicability. 

The purpose of this subchapter is to delegate authority to the executive 

director and to specify applications for emergency orders on which 

the executive director may take action on behalf of the commission 

under this chapter. 

§35.12. Authority of Executive Director. 

.@2 The executive director may receive applications and issue 

emergency orders under this chapter. If an emergency order is issued 

without notice and a hearing, notice shall be issued and a hearing 

by the commission to affirm, modify, or set aside shall be set. If a 

hearing request is received, and the commission grants the request, 

the commission shall either hold a contested case hearing, or remand 

the case to SOAH. 

(b) The executive director may authorize, in writing, a 

representative or representatives to act on the executive director's 

behalf under this chapter. 

§35.13. Eligibility o(Executive Director. 

Upon assumption of national pollutant discharge elimination system 

permit authority, the executive director, or the executive director's 

representative or representatives, may act under this chapter on Texas 

pollutant discharge elimination system (TPDES) permits or other 

TPDES-related approvals only if he or she meets the qualifications 

set out for the executive director in §50.41 of this title (relating to 

Eligibility of Executive Director). 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809859 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

PROPOSED RULES July 3, 1998 23 TexReg 6905 
Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter C. General Provisions 

30 TAC §§35.21-35.30 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the· TWC under which the commission takes thil> action 

include: §5.1 03, which establishes the commission's general 

authority to adopt rules; §5.105, which establishes the commission's authority to set policy by rule; §5.235, as amended by 

Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, which 

establishes fee authority; § 11.148, which establishes the commission's authority to issue orders relating to beneficial inflows 

to affected bays and estuaries and instream uses; §13.041, 

which establishes the commission's authority to adopt rules to 

exercise its jurisdiction over TWC, Chapter 13; §26.011, which 

establishes the commission's authority over water quality in the 

state; '§26.351, which establishes the commission's authority 

concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning 

petroleum storage tanks; and §27.019, which establishes the 

commission's authority to adopt rules concerning underground 

injection control. Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority to establish rules for the control of solid waste; §366.012, which establishes the commission's authority to establish rules for onsite disposal systems; §382.017, which establishes the commission's rulemaking authority; §382.051, which establishes 

the commission's authority to adopt rules concerning air permits; §382.0513, which establishes the commission's authol'ity 

to adopt rules concerning permit conditions; §401.011, which 

establishes the commission's authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive substance disposal. 

The proposed new sections implement TWC, §§5.103, 5.105, 

5.501-5.517, 11.148, 13.041, 26.011, 26.351, and 26.354; 

and HSC, §§361.011, 361.017, 361.024, 366.012, 382.017, 

382.051, 382.0513, 401.011, 401.051, 401.056, and 401.412. 

§35.21. Action by Commission or Executive Director. 

For the purposes of, and in the manner provided by this chapter, the 

commission may issue a temporary order; and the commission or the 

executive director may issue an emergency, mandatory, permissive, 

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

executive director or commission by emergency order, may: 

ill issue a temporary permit; or 

@ temporarily suspend or amend a permit condition. 

§35.22. Term and Renewal of Orders. 

23 TexReg 6906 July 3, 1998 Texas Register 

Unless otherwise provided by this chapter, an 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 by submittal of a new 

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

specified by the order. 

§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. 

§35.24. Application for Emergency or Temporary Order. 

~ A person wanting an emergency or temporary order under 

this chapter shall submit a written application to the chief clerk. 

Unless the person submitting the application is the executive director 

or the executive director's representative, the application must be 

sworn. 

@ If the State of Texas has been authorized to administer the 

national pollutant discharge elimination system program, and a person 

seeks an emergency or temporary 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 an emergency or temporary order constitutes prior 

notice of an anticipated bypass. Filing of the application for bypass 

shall be done, if possible, at least ten days before the date of the 

bypass. The person must comply with all bypass requirements under 

§305.535 of this title (relating to Bypasses from TPDES Permitted 

Facilities). 

.{9 The application must: 

ill state the name, address, and telephone number of the 

applicant, the person submitting the application on the applicant's 

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

behalf; 

m contain information sufficient to identify the facility 

and location to be affected by the order; 

Q2 describe the condition of emergency or other condition justifying the issuance of the order; 

~ allege facts to support any findings required under 

this chapter; 

ru 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; 

@ describe the action sought and the activity proposed 

to be allowed, mandated, or prohibited; 

Ql include any other statement or information required 

by this chapter; and 

ill be accompanied by payment of any application fees 

required by the commission. 

@ A copy of the application must be provided to the 

division director of the appropriate program on behalf of the executive 

director, and to the public interest counsel, at the same time it is filed 

with the chief clerk. The division director may designate another 

representative of the executive director for this service. 

~ All applications shall be signed as follows. 

ill For a corporation, the application shall be signed by 

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

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

function, or any other person who performs similar policy or decisionmaking functions for the corporation; or the manager of one or 

more manufacturing, production, or operating facilities employing 

more than 250 persons or having gross annual sales or expenditures 

exceeding $25 million (in second-quarter 1980 dollars), if authority 

to sign documents has been assigned or delegated to the manager 

in accordance with corporate procedures. Corporate procedures 

governing authority to sign permit applications may provide for 

assignment or delegation to applicable corporate positions rather than 

to specific individuals. Documentation of authority to sign must be 

provided with the application. 

ill For a partnership or sole proprietorship, the application shall be signed by a general partner or the proprietor, respectively. 

Q.2 For a municipality, state, federal, or other public 

agency, the application shall be signed by either a principal executive 

officer or a ranking elected official. For purposes of this paragraph, 

a principal executive officer of a federal agency includes the chief 

executive officer of the agency, or a senior executive officer having 

responsibility for the overall operations of a principal geographic 

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

Environmental Protection Agency). 

ill For the executive director, the application shall be 

signed by the executive director or any duly authorized representative; 

.{12 A person other than the executive director or the 

executive director's representative signing an application shall make 

the following certification: "I certify under penalty of law that this 

document and all attachments were prepared under my direction or 

supervision in accordance with a system designed to assure that 

qualified personnel properly gather and evaluate the information 

submitted. Based on my inquiry of the person or persons who 

manage the system, or those persons directly responsible for gathering 

the information, the information submitted is, to the best of my 

knowledge and belief, true, accurate, and complete. I am aware there 

are significant penalties for submitting false information, including 

the possibility of fine and imprisonment for knowing violations." 

@ For hazardous solid waste applications, the owner and 

operator of a facility must sign the application. 

ill For radioactive material license applications under 

Chapter 336 of this title (relating to Radioactive Substance Rules), the 

applicant or person duly authorized to act for and on the applicant's 

behalf must sign the application. 

§35.25. Notice and Opportunity for Hearing. 

{!} An emergency order under this chapter may be issued 

with notice and an opportunity for hearing, or without notice and an 

opportunity for hearing, as provided by this chapter. 

.{Q2 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 

designee as soon as practicable 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 not later than the tenth day before the date set 

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

request an evidentiary hearing on issuance of the emergency order. 

@ Temporary orders require a hearing before the issuance 

of the order. Notice of a hearing on a temporary order shall be given 

not later than the 20th day before the hearing on the order. This 

notice of hearing shall provide that an affected person may request 

an evidentiary hearing on issuance of the temporary order. 

~ In addition to the notice requirements provided elsewhere 

in these rules, notice shall be provided as follows. 

ill For water quality temporary orders, notice of a 

hearing that is held before issuance of the order shall be provided: 

® by mail to persons requesting public notice of 

certain applications, in accordance with §39.7 of this title (relating to 

Mailing Lists) and to persons or agencies identified in §39.13 of this 

title (relating to Mailed Notice); • '· 

@ by publication by the applicant in a newspaper of 

largest general circulation that is published in the county in which 

the facility is located or proposed to be located. If a newspaper 

is not published in the county in which the facility is located or 

proposed to be located, the notice must be published in the newspaper 

of general circulation in the county in which the facility is located 

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

the chief clerk certifying facts that constitute compliance with the 

publication requirements. The deadline to file the affidavit is 15 days 

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

constitute compliance with notice requirements creates a rebuttable 

presumption of compliance with the requirement to publish notice; 

and 

{Q at least 20 days before the hearing . 

ill 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 

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

Q.2 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 is required by Chapter 39 of this title (relating 

to Public Notice) for notice of a hearing on an application for a UIC 

permit. 

ill For nonhazardous solid waste emergency orders, 

notice shall be mailed and published not later than the tenth day 

before the hearing to affirm, modify, or set aside the emergency order, 

as is required by Chapter 39 of this title for notice of a hearing on 

an application for a nonhazardous waste permit. 

.{12 For hazardous solid waste emergency orders, including UIC emergency orders, notice shall be mailed and published at 

least 30 days before the hearing to affirm, modify or set aside the 

emergency order, as reguired by Chapter 39 of this title for notice of 

a hearing on an application for a hazardous waste permit. The commission must also give at least 45 days for public comment before 

issuing the order. 

@ 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 affected area not later than 

the 15th day before the hearing to all affected persons. 

ill For water utility emergency orders for operation of a 

utility, notice shall be mailed or hand delivered to the utility not later 

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

(8) For water utility temporary rate increase orders, notice 

shall be mailed or delivered to the affected ratepayers not later than 

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

PROPOSED RULES July 3, 1998 23 TexReg 6907 
m For air catastrophe emergency orders, notice shall 

be published in a newspaper of general circulation in the nearest 

municipality not later than the tenth day before the hearing. 

.(1Q)_ For generalized condition of air pollution emergency 

orders, the timing, method, and recipients of notice shall be as 

practicable under the circumstances. 

U!2 For radioactive substances emergency orders, notice 

shall be provided by personal service or certified mail to those named 

in the order not later than the tenth day before the hearing to affirm, 

modify, or set aside. 

.LJ12 For radioactive material impoundment, notice shall 

be provided by personal service or certified mail to those named in 

the order not later than the tenth day before the hearing to affirm, 

modify, or set aside. 

@ For petroleum storage 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. 

.(1±)_ For imminent and substantial endangerment ernergency orders, notice shall be given by certified mail for 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. 

@ For on-site sewage and disposal system emergency 

orders, notice shall be mailed to those in the order not later than ten 

days before the hearing to affirm, modify, or set aside. 

ill Statutes or rules requiring notice of hearing or setting 

procedures for the issuance of permits do not apply to a hearing on 

an emergency order issued under this chapter unless they specifically 

require notice for an emergency order. 

.{g2 If the commission acts on an application for a temporary 

order, or the commission or executive director acts on an application 

for an emergency order, the chief clerk or the office designated by 

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

the executive director, public interest counsel, and other persons who 

have filed hearing requests or public comment. 

§35.26. Contents of Emergency or Temporary Order. 

An emergency or temporary order issued under this chapter shall 

contain at least the following: 

ill the name and address of the applicant and information 

sufficient to identifY the facility or location affected by the order; 

ru a description of the condition of emergency or other 

condition justifying the issuance of the order; 

(3) any findings of facts required under this chapter; 

{±} a statement of the term 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; 

@ if the order was issued without a hearing. a statement 

to that effect and a provision setting a time and place for a hearing 

before the commission or its designee; and 

23 TexReg 6908 July 3, 1998 Texas Register 

ill any other statement or information required by this 

chapter. 

§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 an emergency order, a hearing 

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

commission or its designee as soon as practicable after the order is 

issued. 

§35.28. Hearing Requests . 

~ The executive director, the applicant, or an affected 

person as defined by Texas Water Code, §5.Il5(a) may request a 

contested case hearing. 

.(Q2 The commission is not required to hold a hearing if it 

determines that the basis of a person's request for a hearing as an 

affected person is not reasonable or is not supported by competent 

evidence. 

1£2 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: 

ill whether the interest claimed is one protected by the 

law under which the application will be considered; 

ill distance restrictions or other limitations imposed by 

law on the affected interest; 

ill whether a reasonable relationship exists between the 

interest claimed and the activity regulated; 

{±l likely impact of the regulated activity on the health, 

safety, and use of property of the person; 

ill likely impact of the regulated activity on use of the 

impacted natural resource by the person; and 

@ for governmental entities, their statutory authority 

over or interest in the issues relevant to the application. 

@ A group or association may request a contested case 

hearing only if the group or association meets all of the following 

requirements: 

ill one or more members of the group or association 

would otherwise have standing to request a hearing in their own right; 

ill the interests the group or association seeks to protect 

are germane to the organization's purpose; and 

ru neither the claim asserted nor the relief requested 

requires the participation of the individual members in the case. 

§35.29. Procedures {or a Hearing. 

~ Hearings before the commission under this chapter shall 

be conducted in accordance with Chapter lO 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). 

.(Q2 If a contested case hearing is reguested on the application, and the commission grants the reguest, the commission shall 

either conduct the contested case hearing or remand the matter to 

SOAH. 

1£2 The commission or judge may. consistent with the 

requirements of the APA. reduce the time periods specified in the 

commission's rules governing contested case hearings. 
i.Q2 For any hearing on a temporary or emergency order, the 

following procedures will apply: 

ill parties will be designated by the commission or judge. 

To be designated as a party, the person seeking party status must 

show a justiciable interest. For each hearing under this section, the 

applicant, the public interest counsel, and the executive director are 

parties by rule; 

ill the testimony of all witnesses will be under oath, 

with an opportunity for questioning by the commission or judge and 

cross-examination by the other parties; 

ru other parties to the hearing will be given an opportunity to present rebuttal evidence and testimony; · 

~ the applicant will have the burden of proving its need 

for an emergency or temporary order, and will have the right to 

open and close the evidentiary parts of the hearing. The fact that 

an emergency order was issued without a hearing, standing alone, 

will not constitute evidence of the need for such authorization; 

ru the commission or judge will have the right to limit 

the number of witnesses; to limit the time for direct questioning or 

cross-examination of a witness; to refuse illustrative and documentary 

evidence; and to limit argument. 

~ 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. 

§35.30. Application Fees. 

The application fee for an emergency or temporary order under this 

chapter is $500 plus the actual cost of the required notice. The fee 

is payable at the time the application is filed, and is not refundable. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809860 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter D. Emergency Suspension of Beneficial Inflows 

30 TAC §35.101 

STATUTORY AUTHORITY 

The new section is proposed under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning 

emergency and temporary orders. Other relevant sections of 

the TWC under which the commission takes this action include: 

§5.1 03, which establishes the commission's general authority to 

adopt rules; §5.1 05, which establishes the commission's authority to set policy by rule; §5.235, as amended by Article VI, Rider 

9, House Bill 1, 75th Legislature, 1997, which establishes fee 

authority; §11.148, which establishes the commission's authority to issue orders relating to beneficial inflows to affected bays 

and estuaries and instream uses; §13.041, which establishes 

the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; §26.011, which establishes the 

commission's authority over water quality in the state; §26.351, 

which establishes the commission's authority concerning corrective action; §26.354, which establishes the commission's authority to issue emergency orders concerning petroleum storage 

tanks; and §27.019, which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, 

which establishes the commission's jurisdiction over municipal 

solid waste; §361.017, which establishes the commission's jurisdiction over industrial hazardous waste; §361.024, which ~stablishes the commission's authority to establish rules for the 

control of solid waste; §366.012, which establishes the commission's authority to establish rules for on-site disposal systems; 

§382.017, which establishes the commission's rulemaking authority; §382.051, which establishes the commission's authority 

to adopt rules concerning air permits; §382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the commission's 

authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and 

§401.412, which establishes the commission's authority concerning licenses for radioactive substance disposal. 

The proposed new section implements TWC, §§5.103, 5.105, 

5.501-5.517, 11.148, 13.041, 26.011, 26.351, and 26.354; 

and HSC, §§361.011, 361.017, 361.024, 366.D12, 382.017, 

382.051,382.0513,401.011,401.051,401.056, and 401.412. 

§35.101. Emergency Suspension of Permit Conditions Relating to 

Bene{icialln(!ows to Affected Bays and Estuaries and lnstream Uses. 

~ The purpose of this section is to set forth the procedures 

and criteria to be used by the commission or the executive director 

in its review and action on an application by a water right holder 

for the temporary suspension of conditions in the water right relating 

to beneficial inflows to bays and estuaries and instream uses during 

an emergency, under Texas Water Code, §5.506 and §11.148. The 

emergency relief provided by this section shall only be used when 

the commission finds that: 

ill emergency conditions exist that present an imminent 

threat to the public health, safety, and welfare and that override the 

necessity to comply with general procedures and criteria for changing 

the conditions in a water right; and 

rn there are no feasible, practicable alternatives to the 

emergency authorization. 

{Ql The commission may approve an application filed by 

the affected water right holder for the temporary suspension of all 

or a part of conditions in a water right relating to beneficial inflows 

to affected bays and estuaries and instream uses if the commission 

finds that an emergency exists and there is no feasible, practicable 

alternative to the suspension. The burden of demonstrating that the 

application should be granted in accordance with this section is on th~ 

applicant. For purposes of this section, an emergency is a condition 

where water supplies available to the applicant have been reduced 

or impaired to such an extent that an imminent peril to the public 

health, safety, or welfare exists. This condition may include, but not 

be limited to: 

ill the reduction of public water supplies to critical levels 

as a result of a severe and sustained drought; 

PROPOSED RULES July 3, 1998 23 TexReg 6909 
ill the failure ·of a dam for a public water supply 

reservoir; 

Q2 the significant contamination of a public water supply; 

or 

ill the failure or destruction of public water supply 

pipelines or other distribution systems. 

~ The application shall be filed in accordance with and 

must contain the information required by §35.24 of this title (relating 

to Application for Emergency or Temporary Order), and the follow-

~ 

ill copies of the affected permits, certificates of adjudication, or certified filings; 

ill a description of the emergency's impact on public 

health, safety, and welfare; 

Q2 a description of all existing and potential water 

supplies available to the applicant and their corresponding uses and 

costs; 

ill a summary of the examination made by the applicant 

of whether feasible, practicable alternatives exist to the suspension of 

permit conditions and reasons why those alternatives do not exist; 

ill the amount of water over and above available supplies 

that are necessary to alleviate emergency conditions; 

@ copies of the water right holder's water conservation 

and drought contingency plans, if any, and a summary of their 

status and implementation, including the reasons why any remaining 

conservation or drought contingency measures provided by the plans 

have not or will not be implemented; 

m a copy of the reservoir operating procedures, if 

applicable; and 

@2 the proposed conditions and trigger levels for the 

suspension and reinstatement of the releases or other affected permit 

conditions. 

@ A copy of the application must be filed by the applict~nt 

with the Texas Parks and Wildlife Department (TPWD) at the same 

time it is filed with the chief clerk. 

~ Upon receipt of the application, the chief clerk shall provide notice of the time and location of the commission's consideration 

of the application to the TPWD, executive director, and public inter· 

est counsel as soon as practicable after receipt of the application, but 

in no event shall the petition be considered less than 72 hours after 

receipt of notice by the TPWD. 

ill The TPWD, executive director, and public interest 

counsel shall be provided an opportunity to submit comments on 

the application before the commission action. The applicant shall be 

afforded opportunity to respond to all comments at the time of the 

commission's consideration of the matter. 

{gl The commission's order shall set out the extent of any 

suspension and any special condition upon which a suspension is 

granted. The commission's initial order may also indicate the referral 

of the matter to SOAH for an expedited hearing under subsection (i) 

of this section. 

lli) Published notice of the initial suspension of water right 

conditions, if granted, shall be provided and paid for by the applicant 

immediately following a favorable commission initial decision by 

publication in a newspaper or newspapers of general circulation in 

the affected area. The published notice may not be smaller than 96.8 

23 TexReg 6910 July 3, 1998 Texas Register 

square centimeters or 15 square inches with the shortest dimension 

at least 7.6 centimeters or three inches. Such published notice must 

contain a summary of the information contained in the application as 

provided by subsection (c) of this section and the time and location 

of the subsequent commission hearing provided by subsection (i) 

of this section. Such publication shall occur not later than seven 

calendar days before this hearing. For the purposes of this rule, the 

affected area shall be each county, in whole or in part, downstream 

of the diversion point or impoundment authorized under the affected 

water right. The applicant shall file with the chief clerk a publisher's 

affidavit as proof that such notice was published in accordance with • '· 

this subsection. 

ill. If the commission initially grants an emergency suspension of permit conditions without a hearing, the commission shall 

hold the hearing required by §35.25 of this chapter (relating to Notice and Opportunity for Hearing) as soon as practicable, but in no 

event later than 15 days after the initial emergency suspension is 

granted to determine whether to affirm, modify, or set aside the initial emergency suspension. Written notice of the hearing shall be 

provided to the TPWD and affected persons not later than ten days 

before the hearing. 

ill An emergency order granted unde·r this section may be 

for a period of not more than 120 days if the commission finds that 

emergency conditions exist that present an imminent threat to public 

health, safety, and welfare and that override the necessity to comply 

with permit conditions and there are no feasible, practicable alternatives to the emergency authorization. This emergency authorization 

may be renewed once for not longer than 60 days. 

ill In determining whether feasible, practicable alternatives 

exist to the suspension of water right conditions, the commission shall 

examine: 

ill the amount and purposes of use for water currently 

being used by the applicant; 

ill all evidence relating to the availability of alternative. 

supplemental water supplies to the applicant; and 

Q2 the applicant's efforts to curtail water use not essential 

for the protection of the public health, safety, and welfare. 

ill If the water right holder has a water conservation plan 

and/or drought contingency plan, the suspension of water right 

conditions may be contingent upon the full implementation of those 

plans and measures corresponding to the staged reduction of releases 

for existing instream uses and beneficial inflows. If the water 

right holder does not have a water conservation plan and drought 

contingency plan in accordance with Chapter 288 of this title (relating 

to Water Conservation Plans, Guidelines, and Requirements), the 

order granting an application under this section shall require the 

permittee to develop and implement those plans within a prescribed 

time period as provided in the order. 

i!!!l In granting an application, all existing instream flows 

shall be passed up to that amount necessary to maintain water quality 

standards for the affected stream. Additional flows necessary to 

protect a species in accordance with the federal Endangered Species 

Act or other species that are considered to be of "high interest" (selfsustaining wild populations that are endemic to the affected stream, 

have significant scientific value, or commercial value) may also be 

required. 

{rr2 In order to assist in the preparation and planning for 

water management during an emergency, the commission may provide 

conditions in a water right necessary for relief consistent with 
applicable portions of this section when the water right is initially 

granted or subsequently amended. These conditions may include, 

but shall not be limited to, a staged approach to the reduction in the 

pass-through amounts that provide for the pass-through of water for 

instream uses and bays and estuaries when it is available, and allow 

water to be captured or diverted for the protection of the public health, 

safety, and welfare during an emergency, subject to the protection 

of stream flows necessary under subsection (m) of this section for 

the maintenance of water quality standards. These conditions may 

also include full implementation by the water right holder of water 

conservation and drought contingency plans as a precondition for 

obtaining relief. 

{Q2 If the applicant's water right already contains provisions 

for the temporary, total, or partial suspension of permit conditions 

for the maintenance of instream flows or freshwater inflows to bays 

and estuaries. further or different relief requested in an application 

submitted under this section generally will be denied unless the 

applicant can show new or changed circumstances or an emergency 

condition not contemplated when the water right condition was issued. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809861 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter E. Emergency Orders for Utilities 

30 TAC §35.201, §35.202 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapte( 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commission takes this action 

include: §5.1 03, which .establishes the commission's general 

authority to adopt rules; §5.1 05, which establishes the commission's authority to set policy by rule; §5.235, as amended by 

Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, which 

establishes fee authority; § 11.148, which establishes the commission's authority to issue orders relating to beneficial inflows 

to affected bays and estuaries and instream uses; § 13.041, 

which establishes the commission's authority to adopt rules to 

exercise its jurisdiction over TWC, Chapter 13; §26.011, which 

establishes the commission's authority over water quality in the 

state; §26.351, which establishes the commission's authority 

concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning 

petroleum storage tanks, and §27.019, which establishes the 

commission's authority to adopt rules concerning underground 

injection control.. Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority to establish rules for the control of solid waste; §366.012, which establishes the commission's authority to establish rules for onsite disposal systems; §382.017, which establishes the commission's rulemaking authority; §382.051, which establishes 

the commission's authority to adopt rules concerning air permits; §382.0513, which establishes the commission's authority 

to adopt rules concerning permit conditions; §401.011, which 

establishes the commission's authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive svbstance disposal. · 

The proposed new sections implement TWC, §§5.1 03, 5.1 05, 

5.501-5.517, 11.148, 13.041, 26.011, 26.351, and 26.354; 

and HSC, §§361.011, 361.017, 361.024, 366.012, 382.017, 

382.051, 382.0513, 401.011, 401.051, 401.056, and 401.412. 

§35.201. Emergency Order (or Operation of Utility that Discontinues 

Operation or is Referred for Appointment of a Receiver. 

~ The commission or executive director may appoint a 

person by emergency order under Texas Water Code, §5.507 and 

§ 13.4132, to temporarily manage and operate a utility that has 

discontinued or abandoned operations, or which is being referred to 

the attorney general for the appointment of a receiver under Texas 

Water Code, §13.412. 

~ An emergency order may be issued under this section 

under the provisions of §291.142 and §291.143 of this title (relating 

to Operation of Utility that Discontinues Operation or is Referred for 

Appointment of a Receiver and Operation of a Utility by a Temporary 

Manager). 

(£2 Notice of an action under this section is adequate if the 

notice is mailed or hand-delivered to the last known address of the 

utility's headquarters. 

§35.202. Emergency Order for Rate Increase in Certain Situations. 

~ The commission or executive director may authorize 

an emergency rate increase under Texas Water Code, §5.508 and 

§ 13.4133 for a utility: 

ill for which a person has been appointed under Texas 

Water Code, § 13.4132; or 

ill for which a receiver has been appointed under Texas 

Water Code, § 13.412; and 

ru when the increase is necessary to ensure the provision 

of continuous and adequate services to the utility's customers. 

{hl Notwithstanding the provisions of §35.22 of this title 

(relating to Term and Renewal of Orders), an emergency rate increase 

may be granted under this section for a period not to exceed 15 

calendar months from the date on which the increase takes effect. 

The commission shall schedule a hearing to establish a final rate 

within that period. 

(£2 A request for an emergency rate increase must be filed 

by the utility in accordance with, and must contain the information 

required by, §35.24 of this title (relating to Application for Emergency 

or Temporary Order) and the following: 

ill the effective date of the rate increase; 

ill sufficient information to support the computation of 

the proposed rates: and 

(3) any other information requested by the executive 

director. 

PROPOSED RULES July 3, 1998 23 TexReg 6911 
§35.601. Emergency Order Concerning Underground or Aboveground Storage Tanks. 

~ The commission or executive director may issue orders 

under Texas Water Code, §5.510, to the owner or operator of an 

underground storage tank (UST) regulated under Texas Water Code, 

Chapter 26, and Chapter 334 of this title (relating to Underground 

and Aboveground Storage Tanks), if it finds that: 

ill there is an actual or threatened release of a regulated 

substance from a UST; and 

ru more expeditious corrective action than is otherwise 

provided for under Texas Water Code, Chapter 26 is necessary to 

protect the public health and safety or the environment. 

ill An order issued under subsection (a) of this section may 

prohibit a person from allowing or continuing a release or threatened 

release and may require the person to take the actions necessary to 

eliminate the release or threatened release. 

~ An emergency order issued under this section must be: 

ill mailed by certifieQ mail, return receipt requested, to 

each person identified in the order; 

ru hand delivered to each person identified in the order; 

or 

Q2 on failure of service by certified mail or hand delivery, 

published one time in the Texas Register, and one time in a newspaper 

with general circulation in each county in which any of the persons 

identified in the order had a last known address. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809866 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 

• • • 

rective action; §26.354, which establishes the commission's authority to issue emergency orders concerning petroleum storage 

tanks; and §27.019, which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, 

which establishes the commission's jurisdiction over municipal 

solid waste; §361.017, which establishes the commission's jurisdiction over industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the 

control of solid waste; §366.012, which establishes the commission's authority to establish rules for on-site disposal syst81}1s; 

§382.017, which establishes the commission's rulemaking authority; §382.051, which establishes the commission's authority 

to adopt rules concerning air permits; §382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the commission's 

authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and 

§401.412, which establishes the commission's authority concerning licenses for radioactive substance disposal. 

The proposed new section implements TWC, §§5.1 03, 5.1 05, 

5.501-5.517, 11.148, 13.041, 26.011, 26.351, and 26.354; 

and HSC, §§361.011, 361.017, 361.024, 366.012, 382.017, 

382.051, 382.0513, 401.011, 401.051, 401.056, and 401.412. 

§35.701. Emergency Orders. 

The commission or the executive director may issue an emergency 

administrative order under Health and Safety Code, §361.272, in the 

manner provided by this chapter. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809867 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 Subchapter J. Imminent and Substantial Endangerment 

30 TAC §35.701 

STATUTORY AUTHORITY 

'\ubchapter K. +Air Orde:s + 

The new section is proposed under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning 

emergency and temporary orders. Other relevant sections of 

the TWC under which the commission takes this action include: 

§5.1 03, which establishes the commission's general authority to 

adopt rules; §5.1 05, which establishes the commission's authority to set policy by rule; §5.235, as amended by Article VI, Rider 

9, House Bill 1, 75th Legislature, 1997, which establishes fee 

authority; § 11.148, which establishes the commission's authority to issue orders relating to beneficial inflows to affected bays 

and estuaries and instream uses; § 13.041 , which establishes 

the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; §26.011, which establishes the 

commission's authority over water quality in the state; §26.351, 

which establishes the commission's authority concerning cor30 TAC §§35.801-35.809 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commission takes this action 

include: §5.1 03, which establishes the commission's general 

authority to adopt rules; §5.1 05, which establishes the commission's authority to set policy by rule; §5.235, as amended by 

Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, which 

establishes fee authority; § 11.148, which establishes the commission's authority to issue orders relating to beneficial inflows 

to affected bays and estuaries and instream uses; §13.041, 

which establishes the commission's authority to adopt rules to 

exercise its jurisdiction over TWC, Chapter 13; §26.011, which 

establishes the commission's authority over water quality in the 

PROPOSED RULES July 3, 1998 23 TexReg 6917 
state; §26.351, which establishes the commission's authority 

concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning 

petroleum storage tanks; and §27.019, which establishes the 

commission's authority to adopt rules concerning underground 

injection control. Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority toestablish rules for the control of solid waste; §366.Q12, which establishes the commission's authority to establish rules for onsite disposal systems; §_38g.Qjl, which establishes the commission's rulemaking alftrlority; 9"382.051 , which establishes 

the commission's authority to adopt rules concerning air permits; §382.0513, which establishes the commission's authority 

to adopt rUles a5ncerning permit conditions; §401.011, which 

establishes the com~slon s authoflty over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive substance disposal. 

The proposed new sections implement TWC, §§5.1 03, 5.1 05, 

5.501-5.517, 11.148, 13.041, 26.011, 26.351, and 26.354; 

and HSC, §§361.011, 361.017, 361.024, 366.D12, 382.017, 

382.051,382.0513,401.011,401.051,401.056, and 401.412. 

§35.80/. Emergency Orders Because of Catastrophe. 

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 catastrophic event necessitates such construction and emissions 

otherwise precluded under the TCAA. For purposes of this section, a 

catastrophic event is an unforeseen event including, but not limited to, 

an 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 

appurtenances inoperable. 

§35.802. Application [or an Emergency Order. 

The owner or operator of a facility desiring to obtain an order under 

this subchapter shall submit an 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 the following: 

ill 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; 

ru a description of the catastrophic event; 

m a statement that there are no practicable alternatives 

to the proposed construction and emissions; 

ill a statement that the emissions will not cause or 

contribute to a condition of air pollution; 

ill a statement that the proposed construction and 

emissions will occur only at the property where the catastrophic event 

occurred or on other property owned by the owner or operator of the 

23 TexReg 6918 July 3, 1998 Texas Register 

damaged facility, which produces the same intermediates, products, 

or by-products, providing that no more than a de minimus increase 

will occur in the predicted concentration of the air contaminants at 

or beyond the property line at such other property; 

@ a description of the proposed construction and the 

type and quantity of air contaminants to be emitted; 

ill an estimate of the dates on which the proposed 

construction and emissions will begin and end; 

@ an estimate of the date on which the facility will begin 

operation; and 

{22 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. 

§35.803. Public Notification. 

The commission or executive director shall publish notice of the 

issuance of an emergency order in the Texas Register as soon as 

practicable 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 of 

any hearing shall be published in a newspaper of general circulation 

in the nearest municipality not later than ten days before the hearing. 

Notice of the issuance and notice of the hearing may be consolidated 

for publication in the newspaper. 

§35.804. Issuance of Order. 

The commission or executive director may issue an order under this 

subchapter if it is found that: 

ill 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; 

ru there are no practicable alternatives to the proposed 

construction and emissions; 

m the emissions will not cause or contribute to a 

condition of air pollution; 

ill the proposed construction or emissions will occur 

(A) at property where the catastrophic event occurred; 

or 

@2 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 than 

a de minimis increase in the predicted concentration of the air 

contaminants at or beyond the property fine at such other property; 

(5) the time limits in the order for the beginning 

and completion of the proposed construction and emissions are 

reasonable; and 

@ the schedule in the order for submission of a complete 

permit application is reasonable. 

§35.805. Contents of an Emergency Order. 

In addition to the requirements of §35.26 of this title (relating to 

Contents of Emergency or Temporary Order), an emergency order <_ 

issued under this subchapter shall contain at least the following: 
ill a description of the emergency construction and 

emissions to be authorized; 

ill reasonable time limits for the beginning and the 

completion of the proposed construction and emissions; 

ru authorization for action only at the property where the 

catastrophic event occurred or on other property owned by the owner 

or operator of the damaged facility, which also produces the same 

intermediates, products, or byproducts, provided there will be no more 

than a de minimis increase in the concentration of air contaminants 

at or beyond the property line at such other property; and 

ill a schedule for submission of a complete construction 

permit application under provisions of TCAA, §382.0518. 

§35.806. Requirement to Apply for a Permit or Modification. 

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 TCAA, §382.063, and in 

accordance with provisions of TCAA, §382.0518, and with Chapter 

116, Subchapter B of this title (relating to New Source Review 

Permits). The application shall be reviewed and acted upon by the 

executive director without regard to 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). 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. 

§35.807. Affirmation of an Emergencv Order. 

The commission shall affirm a proposed or issued order if the 

applicant shows at the hearing, by a preponderance of the evidence, 

that: 

ill 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 ev~nt; 

ill there are no practicable alternatives to the proposed 

construction and emissions; 

ru the emissions will not cause or contribute to a 

condition of air pollution; 

ill the proposed construction or emissions will occur 

{A} at property where the catastrophic event occurred; 

or 

@ 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 than 

a de minimis increase in the predicted concentration of the air 

contaminants at or beyond the property line at such other property; 

ill the time limits in the order for the beginning 

and completion of the proposed construction and emissions are 

reasonable; and 

@ the schedule in the order for submission of a complete 

permit application is reasonable. 

§35.808. Modification of an Emergencv Order. 

The commission shall modify a proposed or issued order if the hearing 

record shows that: 

ill construction and emissions otherwise precluded under 

the TCAA 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; 

ill there is no practicable alternative to such construction 

and emissions; and 

ru modification of certain terms of the proposed or issued 

order is necessary to make the order, construction, and/or emissiQns 

meet the requirements stated in §35.807 of this title (relating· to 

Affirmation of an Emergency Order). 

§35.809. Setting Aside an Emergency Order. 

The commission shall set aside a proposed or issued order if it 

is not shown, in accordance with §35.807 of this title (relating to 

Affirmation of an Emergency Order) or §35.808 of this title (relating 

to Modification of an Emergency Order), that the order should be 

either affirmed or modified and adopted as modified. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809868 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 .tH 

• • • 

Subchapter L. On-site Sewage Disposal System 

30 TAC §35.901 

STATUTORY AUTHORITY 

The new section is proposed under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning 

emergency and temporary orders. Other relevant sections of 

the TWC under which the commission takes this action include: 

§5.1 03, which establishes the commission's general authority to 

adopt rules; §5.1 05, which establishes the commission's authority to set policy by rule; §5.235, as amended by Article VI, Rider 

9, House Bill 1, 75th Legislature, 1997, which establishes fee 

authority; § 11.148, which establishes the commission's authority to issue orders relating to beneficial inflows to affected bays 

and estuaries and instream uses; § 13.041, which establishes 

the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; §26.011, which establishes the 

commission's authority over water quality in the state; §26.351, 

which establishes the commission's authority concerning corrective action; §26.354, which establishes the commission's authority to issue emergency orders concerning petroleum storage 

tanks; and §27.019, which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, 

which establishes the commission's jurisdiction over municipal 

solid waste; §361.017, which establishes the commission's jurisdiction over industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the 

control of solid waste; §366.012, which establishes the commission's authority to establish rules for on-site disposal systems; 

PROPOSED RULES July 3, 1998 23 TexReg 6919 
§382.017, which establishes the commission's rulemaking authority; §382.051, which establishes the commission's authority 

to adopt rules concerning air permits; §382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the commission's 

authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and 

§401.412, which establishes the commission's authority concerning licenses for radioactive substance disposal. 

The proposed new section implements TWC, §§5.1 03, 5.1 05, 

5.501, 5.502, 5.503, 5.504, 5.505, 5.506, 5.507, 5.508; 5.509, 

5.510, 5.511, 5.512, 5.513, 5.514, 5.515, 5.516, 5.517, 11.148, 

13.041, 26.011, 26.351, and 26.354; and HSC, §§361.011, 

361.017, 361.024, 366.012, 382.017, 382.051, 382.0513, 

401.011, 401.051, 401.056, and 401.412. 

§35.901. Emergencv Order Concerning On-site Sewage Disposal 

System. 

The commission may issue an emergency order suspending the registration of the installer of an on-site sewage disposal system, regulating an on-site sewage disposal system, or both, if the commission 

finds that an emergency exists and that the public health and safety 

is endangered because of the operation of an on-site sewage disposal 

system that does not comply with Texas Health and Safety Code, 

Chapter 366, or a rule adopted under that chapter. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809869 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 

• • • 

Chapter 116. Control of Air Pollution by Permits 

for New Construction or Modification 

The Texas Natural Resource Conservation Commission (commission) proposes an amendment to §116.41 0, concerning 

emergency orders. The commission also proposes the repeal 

of §§116.411-116.418, concerning emergency orders. This action also constitutes a revision to the state implementation plan. 

This action is part of the commission's implementation of Senate Bill (SB) 1876, 75th Legislature, 1997, which consolidated 

the commission's emergency and temporary order authority. 

In addition to these amendments and repeals, the commission 

is concurrently proposing to consolidate agency emergency 

and temporary order provisions under a new Chapter 35, 

concerning Emergency and Temporary Orders and Permits; 

Temporary Suspension or Amendment of Permit Conditions. 

The commission is also concurrently proposing amendments 

to emergency and temporary order provisions in §§291.14, 

291.22, 291.142, 291.143, 305.21, 305.29, 305.31, 305.535, 

321.80, 321.132, 321.134, 321.152, 321.158, 321.219, 

321.232, 321.239, 321.258, and 334.83, and the repeal of the 

following rules relating to emergency and temp.orary orders: 

23 TexReg 6920 July 3, 1998 Texas Register 

§§291.1 0, 291.13, 297.57, 305.22-305.28, 305.30, and 305.32. 

The commission is also proposing new §297.57 and §305.30. 

These changes are published in this edition of the Texas 

Register. 

EXPLANATION OF PROPOSED RULES 

SB 1876 consolidated various statutory provisions governing 

emergency and temporary orders under new Texas Water Code 

(TWC), Chapter 5, Subchapter L. The new statute expressly 

authorizes the commission to issue temporary or emergency 

mandatory, permissive, or prohibitory orders, and issue tern- • '· 

porary permits or suspend permit conditions by temporary ·Or 

emergency order. rt allows the commission to issue emergency 

orders with or without notice. Additionally, it authorizes the commission to delegate authority to the executive director to receive 

applications and issue emergency orders and authorize representatives to act on his or her behalf. Finally, general application, term, and hearing requirements that are be applicable to 

all affected programs are included. The statute will allow the 

commission or the executive director to act expeditiously to address unforeseen circumstances. TWC, §5.515, as added by 

SB 1876, expressly authorizes the commission to issue these 

emergency orders. 

The proposed amendments to §116.41 0, concerning Applicability, add a reference to new Chapter 35, make a conformity 

change, and delete thp definition of a catastrophic event, which 

is defined in proposed new §35.801, concerning Emergency 

Orders Because of Catastrophe. 

The proposed repeals concern provisions incorporated into the 

new Chapter 35. These provisions are moved in their entirety 

to proposed new Chapter 35, Subchapter K. In that proposal, 

the commission does propose changes to notice requirements. 

Proposed new §35.803 would require the commission or executive director to publish notice of the emergency order and 

the hearing to affirm, modify, or set aside in a newspaper of 

general circulation in the nearest municipality not later than the 

tenth day before the hearing. This is a change from current 

§116.412, which requires Texas Register notice as soon as 

practicable after issuance. The commission also proposes conforming changes, as well as regulatory reform changes to terminology that were identified during the commission's review of 

Chapter 116 under Article IX, §167, of House Bi111, 75th Legislature, 1997, the General Appropriations Act. 

FISCAL NOTE 

Stephen Minick, Strategic Planning and Appropriations Division, 

has determined that for the first five-year period the sections are 

in effect there will be no significant fiscal implications for state 

or local government as a result of enforcing or administering the 

sections. 

PUBLIC BENEFIT 

Mr. Minick also has determined that for each year of the first five 

years the sections are in effect the public benefit anticipated as 

a result of enforcing the sections will be enhanced consistency 

in the issuance of emergency and temporary orders. The 

sections will also allow the commission or executive director to 

act expeditiously to address unforeseen circumstances. There 

will be no effect on small businesses. There is no anticipated 

economic cost to persons who are required to comply with the 

sections as proposed. 

DRAFT REGULATORY IMPACT ANALYSIS 
The commission has reviewed the proposed rulemaking under 

the regulatory analysis requirements of Texas Government 

Code, §2001.0225, and has determined that the rulemaking 

is not subject to §2001.0225 because it does not meet the 

definition of a "major environmental rule" as defined in that 

statute, and it does not meet any of the four applicability 

requirements listed in §2001.0225(a). The rules are not a major 

environmental rule because their primary intent is to consolidate 

already existing emergency and temporary order rules under 

one chapter. In addition, the applicability requirements do not 

apply because the commission is expressly granted authority by 

TWC, §5.501. The rules also concern procedural requirements 

of the agency, such as delegation of the authority to issue such 

orders by the commission to the executive director, and are a 

result of the commission's continuing regulatory reform effort. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a takings impact assessment 

for these rules under Texas Government Code, §2007.043. 

The following is a summary of that assessment. The specific 

purpose of these rules is to implement the statutory provisions 

of TWC, Chapter 5, Subchapter L, concerning emergency and 

temporary orders. The rules will also consolidate agency 

procedural rules and make certain processes consistent among 

different agency programs. The rules will substantially advance 

these specific purposes by providing specific provisions on 

these matters. Promulgation and enforcement of these rules 

will not burden private real property which is the subject of the 

rules because they concern commission procedural rules. 

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 

The commission has reviewed the proposed rulemaking and 

found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to 

Actions and Rules Subject to the Coastal Management Program, nor will they affect any action/authorization identified 

in Coastal Coordination Act Implementation Rules, 31 TAC 

§505.11. Therefore, the proposed rules are not subj~t to the 

CMP. 

PUBLIC HEARING 

A public hearing on this proposal will be held August 3, 

1998, at 2:00 p.m. in Room 2210 of Texas Natural Resource 

Conservation Commission (TNRCC) Building F, located at 

121 00 Park 35 Circle, Austin. The hearing is structured for 

the receipt of oral or written comments by interested persons. 

Individuals may present oral statements when called upon in 

order of registration. Open discussion will not occur during the 

hearing; however, an agency staff member will be available to 

discuss the proposal 30 minutes prior to the hearing and will 

answer questions before and after the hearing. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Lisa Martin, TNRCC Office of 

Policy and Regulatory Development, MC 205, P.O. Box 13087, 

Austin, Texas, 78711-3087 or faxed to (512) 239-4808. All 

comments should reference Rule Log Number 97142-035-AD. 

Comments must be received by 5:00 p.m., August 3, 1998. 

For further information, please contact Brian Christian, Policy 

Research Division, (512) 239-1760. 

Persons with disabilities who have special communication or 

other accommodation needs who are planning to attend the 

hearing should contact the agency at (512) 239-4900. Requests 

should be made as far in advance as possible. 

Subchapter E. Emergency Orders 

30 TAC §116.410 

STATUTORY AUTHORITY 

The amendment is proposed under TWC, §§5.1 03, 5.1 05, and 

5.501 and Texas Health and Safety Code, §§382.017, 382.051, 

and 382.0513. Section 5.103 establishes the commission's 

general authority to adopt rules. Section 5.1 05 establishe& ~he 

commission's authority to set policy by rule. Section 5.501 establishes the commission's authority to adopt rules to implement the emergency and temporary order provisions of TWC, 

Chapter 5, Subchapter L. Section 382.017 establishes the commission's authority to adopt rules. Section 382.051 establishes 

the power of the commission to adopt rules concerning permits. 

Section 382.0513 establishes the power of the commission to 

establish certain permit conditions. 

The proposed amendment implements TWC, §§5.103, 5.105, 

5.515 and Texas Health and Safety Code, §§382.017, 382.051, 

and 382.0513. 

§116.410. Applicability. 

The owner or operator of a facility may apply to the commission 

or the executive director for an emergency order under Texas Water 

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

Temporary Orders and Permits: Temporary Suspension or Amendment of Permit Conditions), to authorize immediate action for the 

addition, replacement, or repair of facilities or control equipment, 

and authorizing associated emissions of air contaminants, whenever 

a catastrophic event necessitates such construction and emissions otherwise precluded under the Texas Clean Air Act. [J'ef fHlfllOSes ef 

tiH£ seetieH, a satastropfiie e¥eHt i-s an Hflf:ereseen e¥eHt ineleding. ffirt 

net liffltfed £6, ltft aet ef Gee, ftfl aet ef waf; se¥efe weatRef eoRditi OilS, 

explosions, fire.; er etfief simi-lar eeeHffenses 9eyefiEl tl=le reasonable 

eootfeJ e¥ tfie epemter, wlHett fOflders a faeility er its fimetioRally 

reiatee appHrtenanees ineperaele.] 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809874 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 

• • • 

30 TAC §§116.411-116.418 

(Editor's note: The text of the following sections proposedfor repeal 

will not be published. The sections may be examined in the offices of 

the Texas Natural Resource Conservation Commission or in the Texas 

Register office, Room 245, James Earl Rudder Building, 1019 Bra:os 

Street, Austin.) 

STATUTORY AUTHORITY 

The repeals are proposed under Texas Water Code, §§5.1 03, 

5.1 05, and 5.501 and Texas Health and Safety Code, 

§§382.017, 382.051, and 382.0513. Section 5.103 establishes 

the commission's general authority to adopt rules. Section 

PROPOSED RULES July 3, 1998 23 TexReg 6921 
5.1 05 establishes the commission's authority to set policy by 

rule. Section 5.501 establishes the commission's authority 

to adopt rules to implement the emergency and temporary 

order provisions of Texas Water Code, Chapter 5, Subchapter 

L. Section 382.017 establishes the commission's authority 

to adopt rules. Section 382.051 establishes the power of 

the commission to adopt rules concerning permits. Section 

382.0513 establishes the power of the commission to establish 

certain permit conditions. 

The proposed repeals implement Texas Water Code, §§5.1 03, 

5.105, 5.515 and Texas Health and Safety Code, §§382.017, 

382.051, and 382.0513. 

§116.411. Application for an Emergency Order. 

§116.412. Public Notification. 

§116.413. Public Hearing for an Emergency Order. 

§116.414. Affirmation of an Emergency Order. 

§116.415. Contents of an Emergency Order. 

§116.416. Requirement to App/y for a Permit or Modification. 

§116.417. Modification of an Emergency Order. 

§116.418. Setting Aside an Emergency Order. 

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

legal authority to adopt. 

Filed with the Office of the Secretary of State, on June 19, 1998. 

TRD-9809875 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

Proposed date of adoption: September 23, 1998 

For further information, please call: (512) 239-1966 

• • • 

Chapter 291. Water Rates 

The Texas Natural Resource Conservation Commission (commission) proposes the repeal of §291.1 0 and §291.13, concerning procedural rules related to utilities. The commission 

also proposes amendments to §§291.14, 291.22, 291.142, and 

291.143, concerning emergency orders and the operations of 

certain utilities. This action includes certain changes related to 

the operation of certain utilities necessary to implement Senate Bill (SB) 1, 75th Legislature, 1997. This action is also part 

of the commission's implementation of SB 1876, 75th Legislature, 1997, which consolidated the commission's emergency 

and temporary order authority. 

In addition to these amendments, the commission is concurrently proposing to consolidate agency emergency and temporary order provisions under a new Chapter 35, concerning 

Emergency and Temporary Orders and Permits; Temporary 

Suspension or Amendment of Permit Conditions. The commission is also concurrently proposing amendments to emergency 

and temporary order provisions in §§116.410, 305.21, 305.29, 

305.31,305.535, 321.80,321.132,321.134,321.152,321.158, 

321.219, 321.232, 321.239, 321.258, and 334.83, and the repeal of the following rules relating to emergency and temporary 

orders: §§116.411-116.418, 297.57, 305.22-305.28, 305.30, 

and 305.32. The commission also proposes new §297.57 and 

§305.30. These changes are published in this edition of the 

Texas Register. 

23 TexReg 6922 July 3, 1998 Texas Register 

EXPlANATION OF PROPOSED RULES 

SB 1 amended Texas Water Code (TWC), §13.412, to expand 

the definition of abandonment and modified TWC, § 13.4132, 

to allow a person who has been appointed to temporarily 

manage a utility to access all utility system components. The 

commission is proposing changes to Chapter 291 that will make 

the rules conform to these amendments. 

SB 1876 consolidated various statutory provisions governing 

emergency and temporary orders under new TWC, Chapter 5, 

Subchapter L. The new statute expressly authorizes the commission to issue temporary or emergency mandatory, permissive, or prohibitory orders, and issue temporary permits or suspend permit conditions by temporary or emergency order. It allows the commission to issue emergency orders with or without 

notice. Additionally, it authorizes the commission to delegate 

authority to the executive director to receive applications and issue emergency orders and authorize representatives to act on 

his or her behalf. Finally, general application, term, and hearing requirements that are applicable to all affected programs 

are included. The statute will allow the commission or the executive director to act expeditiously to address unforeseen circumstances. TWC, §5.507 and §5.508, as added by SB 1876, 

expressly authorize the commission to issue emergency orders 

for the appointment of a temporary utility manager, and for rate 

increases under certain conditions. 

The proposed repeal of §291.1 0, concerning Request for Public 

Hearing, removes procedural requirements that are duplicative 

of those in Chapter 55, concerning Requests for Contested 

Case Hearings; Public Comment. The commission takes this 

action to continue the consolidation of agency procedural rules. 

The proposed repeal of §291.13, concerning Record of Proceeding, eliminates the requirement that a record be kept of 

all proceedings before the commission. This requirement is duplicative of requirements in current commission procedural rules 

and is therefore unnecessary. 

The proposed amendments to §291.14, concerning Emergency Orders, make nonsubstantive clarifying and conforming 

changes to reference TWC, §5.507 and §5.508, and the new 

Chapter 35. 

The proposed amendment to §291.22, concerning Notice of 

Intent to Change Rates, amends subsection (g) to reference 

the new Chapter 35 and make conformity changes. The 

amendment also eliminates specific requirements governing 

emergency rate increases that have been moved to proposed 

§35.202, concerning Emergency Order for Rate Increase in 

Certain Situations. 

The proposed amendments to §291.142, concerning Operation 

of a Utility that Discontinues Operation or is Referred for 

Appointment of a Receiver, implement both SB 1 and SB 

1876. The section is amended to allow the commission or the 

executive director to authorize a willing person to temporarily 

manage and operate a utility that is being referred to the 

attorney general for appointment of a receiver for having 

expressed an intent to abandon operation of its facilities. 

Additionally, the definition of abandonment is expanded in 

accordance with TWC, § 13.412, as amended by SB 1. Finally, 

the section is amended to reference new Chapter 35 and 

remove the provision that notice of the action is adequate if the 

notice is mailed or hand-delivered to the last known address of 
_Barry R. McBee, Chairman 

R. B. •RaJph~ Marquez, Commissioner 

John M. Baker, Commissioner 

Dan Pearson, Executive Director 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

Protecting Texas by Redudng and Preventing Pollution 

NOTICE OF PUBLIC HEARING BY THE 

TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

ON PROPOSED REVISIONS TO 

30 TAC CHAPTERS 35, 116,291,297, 305, 321, AND 334 

AND THE STATE IMPLEMENTATION PLAN 

Notice is hereby given that under the requirements of Texas Health and Safety Code, §382.017; Texas 

GoVernment Code, Subchapter B, Chapter 2001 ; and 40 Code of Federal Regulations, §51.1 02 of the 

United States Environmental Protection Agency (EPA) regulations concerning State Implementation Plans 

(SIP), the Texas Natural Resource Conservation Commission (TNRCC or commission) will conduct a 

public hearing to receive testimony concerning revisions to 30 TAC Chapters 35, 116, 291, 297, 305, 321, 

and 334 and the SIP. 

The commission proposes new Chapter 35 and amendments to the remaining chapters to consolidate the 

commission rules concerning emergency and temporary orders. This action is part of the commission's 

implementation of Senate Bills 1 and 1876, 75th Legislature, 1997. The rules will allow the commission 

or executive director to act expeditiously to address unforeseen circumstances and/or emergencies. 

A public hearing on the proposal will be held August 3, 1998, at 2:00p.m. in Room 2210 of TNRCC 

Building F, located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt of oral or 

written comments by interested persons. Individual:> may present oral statements when called upon in order 

of registration. Open discussion will not occur during the hearing; however, an agency staff member will 

be available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after 

the hearing. 

Comments may be submitted to Lisa Martin, Office of Policy and Regulatory Development, MC 205, 

P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Comments must be received 

by 5:00p.m., August 3, 1998, and should reference Rule Log Number 97142-035-AD. For further 

information, please contact Brian Christian, Policy Research Division, (512) 239-1760. 

Persons with disabilities who have special communication or other accommodation needs who are 

planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made 

as far in advance as possible. 

Issued in Austin, Texas, on June 17, 1998. 

·~ -~ p •; ".-,. ···-::: 

fj)J(f} 

Kevin McCalla 

Director, Legal Division 

Texas Natural Resource Conservation Commission 

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Texas Natural Resource Conservation Commission 

Chapter 35- Emergency and Temporary Orders and Permits 

Rule Log No. 97142-035-AD 

Page 1 

The Texas Natural Resource Conservation Commission (commission) proposes new §§35.1, 35.2, 

35.3, 35.11-35.13, 35.21-35.30, 35.101, 35.201, 35.202, 35.301-35.303, 35.401, 35.402, 35.501, 

35.502, 35.601, 35.701, 35.801, 35.802-35.809, and 35.901, concerning emergency and temporary 

orders. This action implements Senate Bill (SB) 1876, 75th Legislature, 1997, and continues the 

commission's effort to consolidate agency procedural rules and make certain processes consistent 

among different agency programs. This action also includes certain changes necessary to implement 

SB 1, 75th Legislature, 1997, which are noted as follows. Finally, certain provisions of the rules will 

constitute a revision to the state implementation plan. 

The new Chapter 35 is largely derived from previously existing rules. Thus, the commission is 

concurrently proposing amendments to emergency and temporary order provisions in §§116.410, 

291.14, 291.22, 291.142, 291.143, 305.21, 305.29, 305.31, 305.535, 321.80, 321.132, 321.134, 

321.152, 321.158, 321.219, 321.232, 321.239, 321.258, and 334.83. The commission is also 

proposing the repeal of the following current rules relating to emergency and temporary orders: 

§§116.411-116.418, 291.10, 291.13, 297.57, 305.22-305.28, 305.30, and 305.32. The commission 

also proposes new §297.57 and §305.30. These changes are published in this edition of the Texas 

Register. 

EXPLANATION OF PROPOSED RULES 

SB 1876 consolidated various statutory provisions governing emergency and temporary orders under 

new Texas Water Code (TWC), Chapter 5, Subchapter L. The new statute expressly authorizes the 

commission to issue temporary or emergency mandatory, permissive, or prohibitory orders, and issue 
Texas Natural Resource Conservation Commission 

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Rule Log No. 97142-035-AD 

temporary permits or suspend permit conditions by temporary or emergency order. It allows the 

commission to issue emergency orders with or without notice. Additionally, it authorizes the 

Page 2 

commission to delegate authority to the executive director to receive applications and issue emergency 

orders and authorize representatives to act on his or her behalf. General application, term, and hearing 

requirements applicable _to all affected programs are included. Finally, specific requirements are listed 

for specific program areas. The statute will allow the commission or the executive director to act 

expeditiously to address unforeseen circumstances. 

These proposed rules conform with the provisions provided in TWC, Chapter 5, Subchapter L, and 

provide procedural requirements for implementation. TWC, §5.501, concerning Emergency and 

Temporary Order or Permit; Temporary Suspension or Amendment of Permit Condition, expressly 

authorizes the commission to prescribe rules~necessary to carry out and administer Subchapter L. 

The proposed new Chapter 35 contains general provisions that are applicable to all affected programs 

and program-specific requirements. The latter are largely derived from emergency and temporary 

order rules that already exist in other chapters within Title 30 of the Texas Administrative Code (for 

example, Chapter 305, Subchapter B). These provisions have been derived from current commission 

rules and placed into the new Chapter 35, and the commission is not proposing many substantive 

changes to these rules as they currently exist. 

However, there are some substantive changes being proposed. As authorized by TWC, §5.501, the 

proposed new Chapter 35 provides for the delegation of authority to issue certain orders to the 

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executive director. Additionally, the commission is proposing changes to program-specific 

requirements that result from the passage of SBs 1 and 1876. Finally, the commission proposes 

Page 3 

changes to clarify some notice requirements for temporary and emergency orders, and it proposes a fee 

increase. These changes are noted where applicable. 

Proposed new Subchapter A, concerning Purpose, Applicability, and Definitions, sets forth certain 

general provisions necessary for administration of the chapter. Proposed new §35 .1, concerning 

Purpose, provides that the purpose of the new chapter is to implement the commission's authority under 

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

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

permit conditions. This provision is in accordance with TWC, §5.501, which contains the statutory 

authorization for the issuance of these orderS'. 

Proposed new §35.2, concerning Applicability, provides that the chapter applies to any application 

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

prohibitory orders. 

Proposed new §35.3, concerning Definitions, provides definitions for emergency order, severe 

property damage, and temporary order. The purpose of this section to provide general definitions for 

the chapter and to help administer the provisions of TWC, Chapter 5, Subchapter L. An emergency 

order is defined as an order that must be issued immediately in order to protect human health and safety 

or the environment; or for reasons specified in proposed new §35.302, concerning Application for 
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Page 4 

Emergency and Temporary Orders to Discharge. The definition of severe property damage is the same 

as that in §305.2, concerning Definitions, and is necessary for the requirements governing water 

quality emergency and temporary orders. Temporary order is defined as an order of short-duration 

which must be issued as quickly as possible, or which might allow an authorization for a short-term 

activity, setting conditions and limitations that will adequately protect human health or safety or the 

environment, or for the reasons specified in new §35.302. 

Proposed new Subchapter B, concerning Authority of Executive Director, is comprised of three 

sections and regards delegation to the executive director, as authorized by TWC, §5.501. New §35.11, 

concerning Purpose and Applicability, provides that the purpose of Subchapter B is to allow the 

executive director to act on behalf of the commission. 

Proposed new §35.12, concerning Authority of the Executive Director, authorizes the executive 

director, or a representative or representatives authorized in writing by the executive director, to act on 

his or her behalf to receive applications for and issue emergency orders. The section also provides 

notice and hearing procedures. 

Proposed new §35.13, concerning Eligibility of Executive Director, provides for the authority of the 

executive director or the executive director's representative to act on Texas pollutant discharge 

elimination system (TPDES) permits or other TPDES-related approvals if the executive director meets 

the qualifications specified in §50.41, concerning Eligibility of Executive Director. 
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Page 5 

Proposed new Subchapter C, concerning General Provisions, provides general requirements for issuing 

emergency and temporary orders. Proposed new §35.21, concerning Action by Commission or 

Executive Director, allows the commission or executive director to issue temporary or emergency 

orders and, by temporary or emergency order, to issue a temporary permit or temporarily suspend or 

amend a permit condition. The new provisions implement TWC, §5.501. 

Proposed new §35.22, concerning Term and Renewal of Orders, provides that unless otherwise noted 

by a program-specific requirement, the term of an emergency order is a maximum of 180 days, and 

that an emergency order may be renewed once for an additional period of up to 180 days by submittal 

of a new application. The section also provides that a temporary order is limited to a reasonable time 

specified by the order. This provision implements TWC, §5.505, concerning Term of Order. 

Proposed new §35.23, concerning Effect of Orders, provides that an emergency or temporary order 

does not vest any rights in the permit holder or recipient and expires in accordance with its terms. 

Proposed new §35.24, concerning Application for Emergency or Temporary Order, specifies 

requirements governing applications. The section prescribes the necessary contents of the application 

and requires its filing with the chief clerk. Subsection (b) specifies that an application for an 

emergency or temporary order for a bypass of untreated and partially treated wastewater, if the state 

has national pollutant discharge elimination system (NPDES) authorization, will constitute prior notice 

of an anticipated bypass, as required by 30 TAC §305.535. Section 35.24 also requires copies of the 

application to be provided to the division director of the appropriate program on behalf of the executive 
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Page 6 

director, and to the public interest counsel, at the same time it is filed with the chief clerk. Finally, the 

section prescribes the manner in which applications are to be signed. The new section implements 

TWC, §5.502, concerning Application for Emergency or Temporary Order, and contains procedural 

requirements necessary for implementation. 

Proposed new §35.25, concerning Notice and Opportunity for Hearing, provides the notice and hearing 

requirements for emergency and temporary orders. The section provides that an emergency order can 

be issued with or without notice and/or opportunity for hearing, and that if one is issued without a 

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

held before the commission or its designee as soon as practicable after the order is issued. In addition, 

the section provides that unless otherwise provided by program-specific requirements, notice of a 

hearing for issuance of an emergency order or to affirm, modify' or set aside the order must be given 

not later than the tenth day before the date set for the hearing and provide that an affected person may 

request an evidentiary hearing on the issuance of the emergency order. The section also provides that 

temporary orders require a hearing before their issuance, and that notice must be given not later than 

the 20th day before the hearing and provide that an affected person can request an evidentiary hearing 

on issuance of the temporary order. Program-specific notice requirements are also set out. Some of 

these notice requirements are not in existing Chapter 305 and provide clarification of notice 

requirements. In addition, the newspaper notice for air catastrophes replaces the existing requirement 

for notice to be given in the Texas Register. The proposed section implements TWC, §5.504. 
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Page 7 

Proposed new §35.26, concerning Contents of Emergency or Temporary Order, contains the minimum 

requirements for information that must be included in these types of orders. The contents are derived 

from the application requirements contained in TWC, §5.502. 

Proposed new §§35.27, 35.28, and 35.29, concerning Hearing Required, Hearing Requests, and 

Procedures for a Hearing, respectively, provide for hearings, hearing requests, and procedures for 

hearings on emergency and temporary orders. The rules provide that hearings will be conducted in 

accordance with the Administrative Procedure Act and commission rules. The hearing procedures 

implement TWC, §5.115(a), concerning Persons Affected in Commission Hearings, and TWC, §5.504, 

concerning Hearing to Affirm, Modify, or Set Aside Order. 

Proposed new §35.30, concerning Application Fees, provides that the application fee for an emergency 

or temporary order under this chapter is $500, plus the actual cost of the required notice. TWC, 

§5.501, authorizes the adoption of fees for administering the program. In addition, the increase is 

authorized by TWC, §5.235, which establishes fee authority, and by Rider 9 under the commission's 

appropriation in Article VI of HB 1, 75th Legislature, 1997, the General Appropriations Act. The 

commission proposes to increase the current fee from $100 to $500 in order to more adequately cover 

commission expenses incurred when issuing these orders. 

Proposed new Subchapter D concerns Emergency Suspension of Beneficial Inflows. The subchapter 

implements TWC, §5.506, concerning Emergency Suspension of Permit Condition Relating to 

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Page 8 

Beneficial Inflows to Affected Bays and Estuaries and lnstream Uses, and contains previously existing 

requirements that have been moved to the new Chapter 35. 

New §35.101, concerning Emergency Suspension of Permit Conditions Relating to Beneficial Inflows 

to Affected Bays and Estuaries and lnstream Uses, provides the criteria to be used by the commission 

in its review and action on an application by a water right holder for the temporary suspension of 

conditions relating to beneficial inflows to bays and estuaries and instream uses during an emergency. 

The new section is entirely derived from current §297 .57, concerning Emergency Suspension of Permit 

Conditions, and the commission proposes no substantive changes to the requirements as they currently 

exist in Chapter 297. 

Proposed new Subchapter E concerns Emergency Orders for Utilities. The subchapter implements 

TWC, §5.507, concerning Emergency Order for Operation of Utility that Discontinues Operation or is 

Referred for Appointment of Receiver, and §5.508, concerning Emergency Order for Rate Increase in 

Certain Situations. Proposed Subchapter E also includes provisions necessary to implement SB 1, and 

it includes existing commission rules from Chapter 291 that have been moved to new Chapter 35. 

While largely derived from current commission rules, the commission proposes to allow the executive 

director to issue the orders under this subchapter, as authorized by TWC, §5.501. 

Proposed new §35.201, concerning Emergency Order for Operation of Utility that Discontinues 

Operation or is Referred for Appointment of a Receiver, authorizes the commission or executive 

director to appoint a person by emergency order to temporarily manage and operate a utility that has 
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Page 9 

discontinued or abandoned operations, or which has been or is being referred to the Attorney General 

for the appointment of a receiver under TWC, §13.412. This provision implements both TWC, 

§5.508, concerning these types of orders; and TWC, §13.412, as amended by SB 1, which expanded 

the definition of abandonment. The proposed new section also authorizes the issuance of an emergency 

order in accordance with current §291.142, concerning Operation of Utility that Discontinues 

Operation or is Referred for Appointment of a Receiver, and §291.143, concerning Operation of a 

Utility by a Temporary Manager. 

Proposed new §35.202, concerning Emergency Order for Rate Increase in Certain Situations, 

authorizes the commission or executive director to authorize an emergency rate increase for a utility 

under certain conditions. Specific requirements in the section are entirely derived from current 

§291.22, concerning Notice of Intent to Change Rates, that have been moved to the new Chapter 35, 

and the commission proposes no substantive changes to those requirements. 

Proposed new Subchapter F concerns Water Quality Emergency and Temporary Orders. The 

subchapter implements TWC, §5.509, concerning Temporary or Emergency Order Relating to 

Discharge of Waste or Pollutants, and includes existing commission rules that have been moved to the 

new Chapter 35 from Chapter 305, Subchapter B. While largely derived from current commission 

rules, the commission is proposing to allow the executive director to issue the orders under this 

subchapter, as authorized by TWC, §5.501. The commission takes this action in order to provide for 

the more expeditious issuance of emergency and temporary orders. 
Texas Natural Resource Conservation Commission 

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Page 10 

Proposed new §35.301, concerning Emergency and Temporary Orders Authorized, authorizes the 

commission or executive director to issue emergency orders, and the commission to issue temporary 

orders, for the discharge of waste or pollutants into or adjacent to any water in the state when 

expeditious action .is necessary. 

Proposed new §35.302, concerning Application for Emergency and Temporary Orders to Discharge, 

contains application requirements that are specific to Subchapter F. In addition to the application 

requirements specified in proposed §35.24, this proposed section requires a person desiring to obtain an 

emergency or temporary order to provide specific information, including a statement that the order is 

necessary to enable action to be taken more expeditiously than is otherwise provided by TWC, Chapter 

26, to effectuate the policy and purposes of that chapter, and statements on the nature of the proposed 

discharge. Additionally, the section reflects a change in the law that provides that amelioration of 

serious drought conditions can be a condition necessitating the issuance of an emergency or temporary 

order to the extent consistent with state assumption of the NPDES program. Further, upon assumption 

of the NPDES program, a permittee seeking to discharge into state waters must address alternatives to 

a bypass in its application. 

Proposed new §35.303, concerning Emergency Orders and Temporary Orders, provides the conditions 

under which the commission or executive director may issue emergency or temporary orders. 

Proposed new Subchapter G concerns Solid Waste and Uranium By-product Emergency Orders. It 

implements TWC, §5.511, concerning Emergency Administrative Order Concerning Imminent and 

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Page 11 

Substantial Endangerment, and §5.512, concerning Emergency Order Concerning Activity of Solid 

Waste Management, and contains provisions from existing commission rules. While largely derived 

from current commission rules, the commission is proposing to allow the executive director to issue the 

orders under this subchapter, as authorized by TWC, §5.501. 

Proposed new §35.401, concerning Emergency Orders for Nonhazardous Solid Waste Activities and 

Underground Injection of Uranium By-product Materials, authorizes the commission or executive 

director to issue a mandatory or prohibitory emergency order regarding any activity of solid waste 

management within its jurisdiction, whether the activity is covered by permit or not, if it determines 

that an emergency exists. The section also provides for terms of these orders. The new section was 

derived from existing §305.29, concerning Emergency Orders for Solid Waste Activities. As noted, 

the commission proposes to authorize the executive director to issue these orders, as allowed by statute. 

In addition, the commission proposes to add requirements for underground injection control (UIC) 

emergency orders previously only set out in federal rules. 

Proposed new §35.402 concerns Emergency Actions Concerning Hazardous Waste, and was derived in 

its entirety from current §305.30, concerning Emergency Actions Concerning Hazardous Waste. As 

previously noted, the commission proposes to allow the executive director to issue orders under the 

proposed section. 

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Page 12 

Proposed Subchapter H concerns Radioactive Substances and Materials Emergency Orders. The 

proposed subchapter implements TWC, §5.516, which authorizes the issuance of emergency orders 

under Health and Safety Code (HSC), §401.056, concerning Emergency Orders. 

Proposed new §35.501, concerning Emergency Orders Relating to Radioactive Substances, provides 

for commission or executive director action if it is determined that radioactive substances threaten the 

public health or safety or the environment, and that a licensee managing the radioactive substances is 

unable to remove the threat. The section also provides program-specific notice and hearing 

requirements, as well as provisions relating to financial assurance. The section is entirely derived from 

current §305.31, concerning Emergency Orders Relating to Radioactive Substances, but the 

commission does propose modifications. The proposed rule provides for action by the executive 

director. In addition, proposed §35.501(g), concerning financial assurance, contains changes to what is 

in current §305.31(h), to better reflect the relevant statutory language. Additionally, former 

§305.31(b) and (c), concerning by-product material, are deleted due to the transfer of jurisdiction over 

those wastes to the Texas Department of Health, under SB 1857, 75th Legislature, 1997 (see this 

edition of the Texas Register). The commission proposes no other changes to the rules concerning this 

matter as they currently exist, and the provisions are simply incorporated into the new Chapter 35. 

Proposed new §305.502, concerning Emergency Impoundment of Radioactive Material, provides for 

commission and executive director action to impound or order the impoundment of radioactive material 

possessed by any person not equipped to observe, or failing to observe, the provisions of the Texas 

Radiation Control Act (TRCA), the rules of 30 TAC Chapter 336 (relating to Radioactive Substance 

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Page 13 

Rules), or a license or order issued by the commission under TRCA or Chapter 336. The section also 

provides for the disposition of the radioactive material. The section is derived from current §305.32, 

concerning Emergency Impoundment of Radioactive Material, and the commission proposes only to 

provide for action by the executive director. The commission proposes no other changes to the rules 

concerning this matter as they currently exist, and the provisions are simply incorporated into the new 

Chapter 35. 

Proposed new Subchapter I concerns Storage Tank Emergency Orders. The subchapter implements 

TWC, §5.510, which authorizes the issuance of these orders. Proposed §35.601, concerning 

Emergency Order Concerning Underground or Aboveground Storage Tanks, authorizes the 

commission or executive director to issue an order to the owner or operator of an underground storage 

tank regulated under TWC, Chapter 26, and 30 TAC Chapter 334 (relating to Underground and 

Aboveground Storage Tanks). The section contains program-specific requirements concerning the 

content of the order, and it provides for the delivery of the order to people identified in the order. The 

section is derived from current §334.83, concerning Emergency Orders. The only significant change 

proposed by the commission is to provide for action by the commission, as well as the executive 

director, whereas the existing rule provides only for action by the executive director. Otherwise, the 

commission proposes no other changes to the rules concerning this matter as they currently exist, and 

the provisions are simply incorporated into the new Chapter 35. 

Proposed new Subchapter J, concerning Imminent and Substantial Endangerment, implements TWC, 

§5. 511, concerning Emergency Administrative Order Concerning Imminent and Substantial 
Texas Natural Resource Conservation Commission 

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Page 14 

Endangerment. Proposed §35. 701, concerning Emergency Orders, allows the commission or the 

executive director to issue an emergency. administrative order under HSC, §361.272, in the manner 

prescribed by proposed Chapter 35. 

Proposed new Subchapter K, concerning Air Orders, implements TWC, §5.514 and §5.515, 

concerning Order Issued Under Air Emergency and Emergency Order Because of Catastrophe, 

respectively. The proposed rules are derived from current Chapter 116, Subchapter E, concerning 

Emergency Orders. The commission proposes changes to make the provisions consistent with SB 

1876. This subchapter will also become part of the state implementation plan because it replaces the 

rules currently found in Chapter 116, Subchapter E. 

Proposed new § 35.801, concerning Emergency Orders Because of Catastrophe, authorizes the 

commission or executive director to issue an emergency order authorizing immediate action for the 

addition, replacement, or repair of facilities or control equipment, and authorizing associated emissions 

of air contaminants, whenever catastrophic event necessitates such action that would otherwise be 

precluded by the Texas Clean Air Act. Catastrophic events are also defined. 

Proposed new §35.802, concerning Application for an Emergency Order, requires the submission of an 

application in accordance with proposed §35.24. The section also provides the information that must 

be submitted in addition to the general application requirements. The section is derived from current 

§ 116.411, concerning Application for an Emergency Order. 

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Page 15 

Proposed new §35.803, concerning Public Notification, is derived from current §116.412 and contains 

changes to rules as they currently exist in that section. The new section requires the commission or 

executive director to publish notice of the emergency order and the hearing to affirm, modify, or set 

aside in a newspaper of general circulation in the nearest municipality not later than the tenth day 

before the hearing. This is a change from current §116.412, which requires Texas Register notice as 

soon as practicable after issuance. The new section also contains changes allowing the commission or 

the executive director to act. 

Proposed new §35.804, concerning Issuance of Order, authorizes the commission or executive director 

to issue an order under this subchapter if certain conditions are found to exist. 

Proposed new §35.805, concerning Contents of an Emergency Order, prescribes content requirements 

that are in addition to those specified in §35.38. The provisions are derived entirely from current 

§ 116.415, concerning Contents of an Emergency Order. 

Proposed new §35.806, concerning Requirement to Apply for a Permit or Modification, requires the 

owner or operator of a facility for which an emergency order has been issued to submit an application 

within 60 days of issuance of the order in accordance with statute and commission rules. The section is 

derived in its entirety from current §116.416, concerning Requirement to Apply for a Permit or 

Modification. 

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Page 16 

Proposed new §35.807, concerning Affirmation of an Emergency Order, provides the conditions under 

which the commission affirms a proposed or issued order. The section is derived in its entirety from 

current §116.414, concerning Affirmation of an Emergency Order. 

Proposed new §35.808, concerning Modification of an Emergency Order, provides the conditions 

under which an emergency order must be modified. The section is derived from current § 116.417, 

concerning Modification of an Emergency Order. 

Proposed new §35.809, concerning Setting Aside an Emergency Order, requires a proposed or issued 

order to be set aside if the hearing record does not show that the order should be affirmed or modified. 

The section is derived from current §116.418, concerning Setting Aside and Emergency Order. 

Proposed Subchapter L, concerning On-site Sewage Disposal System, implements TWC, §5.513, 

which authorizes the issuance of these orders. Proposed §35.901, concerning Emergency Order 

Concerning On-Site Sewage Disposal System, authorizes the commission to issue an emergency order 

suspending the registration of an installer of an on-site sewage disposal system, regulating an on-site 

sewage disposal system, or both, under certain conditions. 

FISCAL NOTE 

Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first fiveyear period the sections as proposed are in effect, there will be fiscal implications as a result of 

administration or enforcement of the sections. The effect on state government will be a small reduction 
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in costs as a result of the delegation of certain actions to the executive director and the overall 

Page 17 

simplification and standardization of emergency and temporary order provisions. Revenues collected 

by the commission will increase by $400 for each order applied for under the provisions of these rules. 

The effect on loca_l governments will be an increase of $400 in application fees under the proposed 

increase from $100 to $500. Any other implications for units of local government making application 

for orders under these proposed sections will be similar to those effects on any applicant. 

PUBLIC BENEFIT 

Mr. Minick has also determined that for the first five years the sections as proposed are in effect, the 

public benefit anticipated as a result of enforcement of and compliance with the sections will be 

improved consistency between commission regulations and statutory authority for emergency and 

temporary orders, more uniform requirements for such orders, and more cost-effective administration 

and processing of orders. The costs to persons, including small businesses, required to comply with 

the sections as proposed are the proposed increase in application fee for an order from $100 to $500 

and the stipulation that an applicant is required to reimburse the commission for any costs of public 

notice incurred by the commission on behalf of the applicant. The costs of notice will vary on a caseby-case basis with the type of application and the number of parties to whom notice for a particular 

application is required. Some minor cost savings from the simplification and standardization of 

emergency and temporary orders may also accrue to affected parties, but these effects have not been 

determined and are not anticipated to be significant for most applicants. No other economic costs are 

anticipated for any person required to comply with the sections as proposed. 
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DRAFT REGULATORY IMPACT ANALYSIS 

Page 18 

Staff has reviewed the proposed rulemaking under the regulatory analysis requirements of Texas 

Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 

because it does not meet the definition of a "major environmental rule" as defmed in that statute, and it 

does not meet any of the four applicability requirements listed in §2001.0225(a). The rules are not 

major environmental rules because their primary intent is to consolidate already existing emergency and 

temporary order rules under one chapter. In addition, the applicability requirements do not apply 

because the commission is expressly granted authority by TWC, §5.501. The rules also concern 

procedural requirements of the agency, such as delegation of the authority to issue such orders by the 

commission to the executive director, and are a result of the commission's continuing regulatory reform 

effort. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a takings impact assessment for these rules under Texas Government 

Code, §2007.043. The following is a summary of that assessment. The specific purpose of these rules 

is to implement the statutory provisions of TWC, Chapter 5, Subchapter L. The rules will also provide 

for the delegation of authority to issue emergency orders by the commission to the executive director, 

consolidate agency procedural rules, and make certain processes consistent among different agency 

programs. The rules will substantially advance these specific purposes by providing specific provisions 

on these matters. Promulgation and enforcement of these rules will not burden private real property 

which is the subject of the rules because they concern commission procedural rules. 

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COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 

Page 19 

The commission has reviewed the proposed rulemaking and found that the proposal is a rulemaking 

identified in the Coastal Coordination Implementation Rules, 31 T AC §505 .11, or will affect an 

action/authorization identified in the Coastal Coordination Act Implementation Rules, 31 T AC §505 .11, 

and will, therefore, require that applicable goals and policies of the Coastal Management Program 

(CMP) be considered during the rulemaking process. 

The commission has prepared a consistency determination for the proposed rules under 31 T AC 

§505.22, and found that the proposed rules are consistent with the applicable CMP goals and policies. 

The following is a summary of that determination. The CMP goal applicable to the proposed rules is 

the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values 

of coastal natural resource areas. CMP poliCies applicable to the proposed rules include the 

administrative policies and the policies for specific activities related to: construction and operation or 

solid waste treatment, storage, and disposal facilities; discharge of municipal and industrial wastewater 

to coastal areas; nonpoint source water pollution; and appropriations of water. Promulgation and 

enforcement of these proposed rules is consistent with the applicable CMP goals and policies because 

the proposed rules will establish clear and consistent requirements governing the issuance of emergency 

and temporary orders, as authorized by TWC, Chapter 5, Subchapter L. Under the authority granted 

by statute, the commission may issue emergency or temporary orders to address unforeseen 

circumstances, such as drought conditions or potential catastrophes. Promulgation and enforcement of 

these rules will not violate or exceed any standards identified in the applicable CMP goals and policies 

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because they will allow the commission to take steps to mitigate emergency or potential emergency 

situations, which will result in environmental benefits for the entire state, including coastal areas. 

The commission i~vites public comment on the consistency of the proposed rules. 

PUBLIC HEARING 

A public hearing on this proposal will be held August 3, 1998, at 2:00p.m. in Room 2210 of Texas 

Natural Resource Conservation Commission (TNRCC) Building F, located at 12100 Park 35 Circle, 

Austin. The hearing is structured for the receipt of oral or written comments by interested persons. 

Individuals may present oral statements when called upon in order of registration. Open discussion will 

not occur during the hearing; however, an agency staff member will be available to discuss the 

proposal 30 minutes prior to the hearing and <will answer questions before and after the hearing. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Lisa Martin, TNRCC Office of Policy and Regulatory Development, 

MC 205, P.O. Box 13087, Austin, Texas, 78711-3087 or faxed to (512) 239-4808. All comments 

should reference Rule Log Number 97142-035-AD. Comments must be received by 5:00p.m., August 

3, 1998. For further information, please contact Brian Christian, Policy Research Division, 

(512) 239-1760. 
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Page 21 

Persons with disabilities who have special communication or other accommodation needs who are 

planning to attend the hearings should contact the agency at (512) 239-4900. Requests should be made 

as far in advance as possible. 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapter 5, Subchapter L, which establishes the 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5.105, which establishes the commission's authority to 

set policy by rule; §5.235, as amended by Article VI, Rider 9, House Bill1, 75th Legislature, 1997, 

which establishes fee authority; §11.148, which establishes the commission's authority to issue orders 

relating to beneficial inflows to affected bays~and estuaries and instream uses; §13.041, which 

establishes the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; 

§26.011, which establishes the commission's authority over water quality in the state; §26.351, which 

establishes the commission's authority concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning petroleum storage tanks, and §27.019, 

which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's 

jurisdiction over municipal solid waste; §361.017, which establishes the commission's jurisdiction over 

industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules 

for the control of solid waste; §366.012, which establishes the commission's authority to establish rules 

for on-site disposal systems; §382.017, which establishes the commission's rulemaking authority; 

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§382.051, which: establishes the commission's authority to adopt rules concerning air permits; 

Page 22 

§382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; 

§401.011, which establishes the commission's authority over radioactive substances; §401.051, which 

establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, 

which establishes the commission's authority concerning licenses for radioactive substance disposal. 

The proposed new sections implement TWC, §§5.103, 5.105, 5.501-5.517, 11.148, 13.041, 26.011, 

26.351, and 26.354; and HSC, §§361.011, 361.017, 361.024, 366.012, 382.017, 382.051, 382.0513, 

401.011, 401.051, 401.056, and 401.412. 

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CHAPTER 35 : EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY 

SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS 

SUBCHAPTER A : PURPOSE, APPLICABILITY, AND DEFINITIONS 

§§35.1-35.3 

§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 temporary pennits or temporarily suspend or amend 

permit conditions. 

§35.2. Applicability. 

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

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

§35.3. Definitions. 

The following words and terms. when used in this chapter. shall have the following meanings. 

unless the context clearly indicates otherwise. 
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Page 24 

0) Emereency order- An order which must be issued immediately. in order to 

protect human health or safety or the environment. or for other reasons sPecified by statute. Specific 

requirements for an emergency order are s.pecified in the rules in this chapter relating to each program. 

(2) Severe property damaae- Substantial physical damage to property. damage to 

treatment facilities which causes them to become incwerable. or substantial and permanent Joss 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 adeQYately protect humarr health or safety or the envirorunent. 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. 

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SUBCHAYfER B :AUTHORITY OF EXECUTIVE DIRECTOR 

§§35.11-35.13 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapter 5, Subchapter L, which establishes the 

Page 25 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5.105, which establishes the commission's authority to 

set policy by rule; §5.235, as amended by Article VI, Rider 9, House Bill1, 75th Legislature, 1997, 

which establishes fee authority; §11.148, which establishes the commission's authority to issue orders 

relating to beneficial inflows to affected bays and estuaries and instream uses; §13.041, which 

establishes the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; 

§26.011, which establishes the commission's authority over water quality in the state; §26.351, which 

establishes the commission's authority concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning petroleum storage tanks; and §27.019, 

which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's 

jurisdiction over municipal solid waste; §361. 017, which establishes the commission's jurisdiction over 

industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules 

for the control of solid waste; §366.012, which establishes the commission's authority to establish rules 

for on-site disposal systems; §382.017, which establishes the commission's rulemaking authority; 

§382 .051, which establishes the commission's authority to adopt rules concerning air pennits; 
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Page 26 

§382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; 

§401.011, which establishes the commis~ion's authority over radioactive substances; §401.051, which 

establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, 

which establishes the commission's authority concerning licenses for radioactive substance disposal. 

The proposed new sections implement TWC, §§5.103, 5.105, 5.501-5.517, 11.148, 13.041, 26.011, 

26.351, and 26.354; and HSC, §§361.011, 361.017, 361.024, 366.012, 382.017, 382.051, 382.0513, 

401.011, 401.051, 401.056, and 401.412. 

§35.11. Purpose and Applicability. 

The purpose of this subchapter is to dele2ate authority to the executive director and to specify 

applications for emer2ency orders on which the executive director may take action on behalf of the 

commission under this chapter. 

§35.12. Authority of Executive Director. 

(a) The executive director may receive aJ1plications and issue .emer2ency orders under this 

chapter. If an emer2ency order is issued without notice and a hearin2. notice shall be issued and a 

hearin2 by the commission to affirm. modify. or set aside shall be set. If a hearing request is received. 
Texas Natural Resource Conservation Commission 

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Page 27 

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

remand the case to SOAH. 

Cb) The executive director may authorize. in writing. a representative or representatives to act 

on the executive director's behalf under this chapter. 

§35.13. Eli2ibility of Executive Director. 

Upon assumption of national pollutant discharge elimination system permit authority. the 

executive director. or the executive director's representative or representatives. may act under this 

chapter on Texas pollutant discharge elimination system CTPDES) permits or other TPDES-related 

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

title (relating to Eligibility of Executive Director). 
Texas Natural Resource Conservation Commission 

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SUBCHAPTER C : GENERAL PROVISIONS 

§§35.21-35.30 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapter 5, Subchapter L, which establishes the 

Page 28 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5.105, which establishes the commission's authority to 

set policy by rule; §5.235, as amended by Article VI, Rider 9, House Bill1, 75th Legislature, 1997, 

which establishes fee authority; § 11.148, which establishes the commission's authority to issue orders 

relating to beneficial inflows to affected bays and estuaries and instream uses; §13.041, which 

establishes the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; 

§26.011, which establishes the commission's authority over water quality in the state; §26.351, which 

establishes the commission's authority concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning petroleum storage tanks; and §27.019, 

which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's 

jurisdiction over municipal solid waste; §361.017, which establishes the commission's jurisdiction over 

industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules 

for the control of solid waste; §366.012, which establishes the commission's authority to establish rules 

for on-site disposal systems; §382.017, which establishes the commission's rulemaking authority; 

§382.051, which establishes the commission's authority to adopt rules concerning air permits; 

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Page 29 

§382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; 

§401.011, which establishes the commis~ion's authority over radioactive substances; §401.051, which 

establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, 

which establishes the commission's authority concerning licenses for radioactive substance disposal. 

The proposed new sections implement TWC, §§5.103, 5.105, 5.501-5.517, 11.148, 13.041, 26.011, 

26.351, and 26.354; and HSC, §§361.011, 361.017, 361.024, 366.012, 382.017, 382.051, 382.0513, 

401.011, 401.051, 401.056, and 401.412. 

§35.21. Action by Commission or Executive Director. 

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

temporary order: and the commission or the executive director may issue an emergency. mandatory. 

permissive. or prohibitory order: and the commission by temporary order. or the executive director or 

commission by emergency order. may: 

( 1) issue a temporary permit: or 

(2) temporarily suspend or amend a permit condition. 

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§35.22. Term and Renewal of Orders. 

Page 30 

Unless otherwise provided by this chapter. an emer2ency 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 by submittal of a new application. A 

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

§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. 

§35.24. Application for Emereem;y or Temporary Order. 

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

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

director or the executive director's representative. the application must be sworn. 

(bl If the State of Texas has been authorized to administer the national pollutant discharge 

elimination system program. and a person seeks an emergency or temporary 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 
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Page 31 

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

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

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

(relating to Bypasses from TPDES Permitted Facilities). 

(c) The application must: 

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

submitting the cuwlication on the applicant's behalf. and the person signing the application on the 

applicant's behalf: 

(2) contain information suffieient 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: 

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(6) describe the action souiht and the activity proposed to be allowed. mandated. or 

prohibited: 

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

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

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

pro~ram on behalf of the executive director. and to the public interest counsel. at the same time it is 

filed with the chief clerk. The division director may desi~nate 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 si~ned by a responsible corporate 

officer. For purposes of this paragrcwh. a responsible corporate officer means a president. secretary. 

treasurer. or vice-president of the corporation in charge of a principal business function. or any other 

person who performs similar policy or decision-making functions for the corporation: or the manager 

of one or more manufacturin~. production. or operating facilities employing more than 250 persons or 

having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars). if 

authority to sign documents has been assigned or delegated to the manager in accordance with 

corporate procedures. Corporate procedures governing authority to sign permit cwplications may 
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provide for assignment or delegation to aDPlicable corporate positions rather than to specific 

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

Page 33 

(2) For a partnership or sole proprietorship. the ap_plication 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 or a ranlcing elected official. For purposes of this 

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

agency. or a senior executive officer having responsibility for the overall operations of a principal 

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

Protection Agency). 

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

or any duly authorized representative: 

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

signing an application shall make the following certification: "I certify under penalty of law that this 

document and all attacbments were prepared under my direction or supervision in accordance with a 

system designed to assure that q_ualified personnel prqperly gather and evaluate the information 

submitted. Based on my inquiry of the person or persons who manage the system. or those persons 

directly responsible for gathering the infoonation. the information submitted is. to the best of my 

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knowledge and belief. true. accurate. and complete. I am aware there are significant penalties for 

submitting false information. including the possibility of fine and imprisonment for knowing 

violations. " 

(6) For hazardous solid waste applications. the owner and o.perator of a facility must 

sign the application. 

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

(relating to Radioactive Substance Rules). the applicant or person duly authorized to act for and on the 

swplicant's behalf must sign the swplication. 

§35.25. Notice and Opportunity for Hearig,g. 

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

hearing. or without notice and an 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 designee as soon as practicable 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 not later than the tenth day before the date 
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set for the hearing. This notice shall provide that an affected person may request an evidentiary 

hearing on issuance of the emergency order. 

Page 35 

Cdl Temporary orders reQ.Uire a hearing before the issuance of the order. Notice of a hearing 

on a temporary order shall be given not later than the 20th day before the hearing on the order. This 

notice of hearing shall provide that an affectcrd person may reQ.Uest an evidentiary hearing on issuance 

of the temporary order. 

(e) In addition to the notice reQ.Uirements provided elsewhere in these rules. notice shall be 

provided as follows. 

(1) For water quality tei11Pol"ary orders. notice of a hearing that is held before issuance 

of the order shall be provided: 

(A) by mail to persons requesting public notice of certain applications. jn 

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

§39.13 of this title (relating to Mailed Notice): 

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

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

newspaper is not published in the county in which the facility is located or proposed to be located. the 

notice must be published in the newspaper of general circulation in the county in which the facility is 
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Page 36 

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

facts that constitute compliance with the publication reQYirements. The deadline to file the affidavit is 

15 days after publication of the notice. Filin~ an affidavit certifyini facts that constitute compliance 

with notice requirements creates a rebuttable presumption of compliance with the reQYirement 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 

hearin~ to affirm. set aside. or modify if a hearin~ is held shall be provided in accordance with 

paragraph O)(A) and (C) of this subsection. 

(3) For nonhazardous under~round injection control (UJC) emergency orders. notice 

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

emer~ency order. as is required by Chapter 39 of this title (relatin~ to Public Notice) for notice of a 

hearin~ on an application for a UIC permit. 

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

published not later than the tenth day before the hearin~ to affirm. modify. or set aside the emergency 

order. as is required by Chapter 39 of this title for notice of a hearing on an application for a 

nonhazardous waste permit. 

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(5) For hazardous solid waste emergency orders. including UIC emergency orders. 

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

the emergency order. as reguired by Chapter 39 of this title for notice of a hearing on an application 

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

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 affected area not later 

than the 15th day before the hearing to all affected persons. 

<7) For water utility emergency orders for operation of a utility. notice shall be mailed 

or hand delivered to the utility not later thanthe tenth day before the hearing to affirm modify or set 

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

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

£9) For air catastrophe emergency orders. notice shall be published in a newspaper of 

general circulation in the nearest municipality not later than the tenth day before the hearing. 

(lOl For generalized condition of air pollution emergency orders. the timing. method. 

and recipients of notice shall be as practicable under the circumstances. 

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

Page 38 

personal service or certified mail to tho~ named in the order not later than the tenth day before the 

hearing to affirm. modify. or set aside. 

(12) For radioactive material impoundment. notice shall be provided by personal 

service or certified mail to those named in the order not later than the tenth day before the hearing to 

affinn. modify. or set aside. 

<13) For petroleum storage 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 jmminent and substantial endangerment emergency orders. notice shall be 

given by certified mail for 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. 

0 5) For on-site sewage and disposal system emergency orders. notice shall be mailed 

to those in the order not later than ten days before the hearing to affirm. modify. or set aside. 
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<D Statutes or rules reQuiring notice of hearing or setting procedures for the issuance of 

pennits do not apply to a hearing on an emergency order issued under this chapter unless they 

specifically reQuire notice for an emergency order. 

(g) If the commission acts on an application for a temporacy order. or the commission or 

executive director acts on an application for an emen:ency order. the chief clerk or the office 

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

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

§35.26. Contents of Emereency or Temporary Order. 

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

( 1) the name and address of the applicant and infonnation 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 findings of facts reQYired under this chapter: 

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(4) a statement of the term of the order. includin2 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 a hearing before the commission or its designee: and 

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

§35.27. Hearin& 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 an emergency 

order. a hearing to affirm. modify. or set aside the order shall be held before the commission or its 

designee as soon as practicable after the order is issued. 
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Rule Log No. 97142-035-AD 

§35.28. Hearing Requests. 

Page 41 

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

Code. §5.115Ca) may request a contested case hearing. 

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

person's request for a hearin~ as an affected person is not reasonable or is not supported by competent 

evidence. 

(c) All relevant factors shall be considered in the evaluation of a person's req.uest for a hearjn~ 

as an affected person. includin~. but not limited to. the following: 

Cl) whether the interest claimed is one protected by the law under which the 

application will be considered: 

(2> distance restrictions or other limitations imposed by law on the affected interest: 

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

activity regulated: 

( 4) likely impact of the re~ulated activity on the health. safety. and use of property of 

the person: 
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Page 42 

(5) likely impact of the re~ulated activity on use of the impacted natural resource by 

the person: and 

(6) for ~overnmental entities. their statutory authority over or interest in the issues 

relevant to the application. 

(d) A ~roup or association may req_uest a contested case hearin~ only if the ~roup or 

association meets all of the followin~ req_uirements: 

0) one or more members of the group or association would otherwise have standin~ to 

request a hearin~ in their own right: 

(2} the interests the group or association seeks to protect are germane to the 

organization's purpose: and 

<3) neither the claim asserted nor the relief req_uested req_uires the participation of the 

individual members in the case. 
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§35.29. Procedures for a Hearing. 

Page 43 

(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 awlication. and the commission grants the 

request. the commission shall either conduct the contested ease hearing or remand the matter to SOAH. 

(c) The commission or judge may. consistem with the regyirements of the APA. reduce the 

time periods specified in the commission's rules governing contested case hearings. 

(d) For any hearing on a tel'l1Porary or emergency order. the following procedures will apply: 

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

party. the person seeking party status must show a justiciable interest. For each bearing under this 

section. the wplicant. the public imerest counsel. and the executive director are parties by rule: 

(2) the testimony of all witnesses will be under oath. with an owonunity for 

questioning by the commission or judge and cross-examination by the other parties: 
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(3) other parties to the hearin~ will be ~iven an opportunity to present rebuttal 

evidence and testimony: 

( 4) the applicant will have the burden of provin~ its need for an emer~ency or 

Page 44 

temporary order. and will have the ri~ht to open and close the evidentiary parts of the hearin~. The 

fact that an emergency order was issued without a hearing. standin~ alone. wi!l 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 time for direct questioning or cross-examination of a witness: to 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. 

§35.30. Application Fees. 

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

actual cost of the required notice. The fee is payable at the time the application is file~. and is not 

refundable. 
Texas Natural Resource Conservation Commission 

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Rule Log No. 97142-035-AD 

SUBCHAPTER D : EMERGENCY SUSPENSION OF BENEFICIAL INFLOWS 

§35.101 

STATUTORY AUTHORITY 

Page 45 

The new section is proposed under TWC, Chapter 5, Subchapter L, which establishes the commission's 

authority concerning emergency and temporary orders. Other relevant sections of the TWC under 

which the commission takes this action include: §5.103, which establishes the commission's general 

authority to adopt rules; §5.105, which establishes the commission's authority to set policy by rule; 

§5.235, as amended by Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, which establishes fee 

authority; § 11.148, which establishes the commission's authority to issue orders relating to beneficial 

inflows to affected bays and estuaries and instream uses; §13.041, which establishes the commission's 

authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; §26.0 11, which establishes 

the commission's authority over water quality in the state; §26.351, which establishes the commission's 

authority concerning corrective action; §26.354, which establishes the commission's authority to issue 

emergency orders concerning petroleum storage tanks; and §27.019, which establishes the 

commission's authority to adopt rules concerning underground injection control. Additionally, relevant 

sections of the HSC include: §361.011, which establishes the commission's jurisdiction over municipal 

solid waste; §361.0 17, which establishes the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority to establish rules for the control of solid waste; 

§366.012, which establishes the commission's authority to establish rules for on-site disposal systems; 

§382.017, which establishes the commission's rulemaking authority; §382.051, which establishes the 

commission's authority to adopt rules concerning air permits; §382.0513, which establishes the 
Texas Natural Resource Conservation Commission 

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Page 46 

commission's authority to adopt rules concerning pennit conditions; §401.011, which establishes the 

commission's authority over radioactive_substances; §401.051, which establishes the commission's 

authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive substance disposal. 

The proposed new section implements TWC, §§5.103, 5.105, 5.501-5.517, 11.148, 13.041, 26;011, 

26.351, and 26.354; and HSC, §§361.011, 361.017, 361.~24, 366.012, 382.017, 382.051, 382.0513, 

401.011, 401.051, 401.056, and 401.412. 

§35.101. Emergency Suspension of Permit Conditions Relatinr: to Beneficial Inflows to Affected 

Bays and Estuaries and Instream Uses. 

(a) The purpose of this section is to set forth the procedures and criteria to be used by the 

commission or the executive director in its review and action on an application by a water right holder 

for the temporary sus.pension of conditions in the water right relating to beneficial inflows to bays and 

estuaries and instream uses during an emergency. under Texas Water Code. §5.506 and §11.148. The 

emergency relief provided by this section shall only be used when the commission finds that: 

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Page 47 

(U emergency conditions exist that present an imminent threat to the public health. 

safety. and welfare and that override the necessity to comply with general procedures and criteria for 

changing the conditions in a water right: and 

(2) there are no feasible. practicable alternatives to the emergency authorization. 

(b) The commission may approve an application filed by the affected water right holder for the 

temporary suspension of all or a part of conditions in a water right relating to beneficial inflows to 

affected bays and estuaries and instream uses if the commission finds that an emergency exists and 

there is no feasible. practicable alternative to the suspension. The burden of demonstrating that the 

application should be granted in accordance with this section is on the applicant. For purposes of this 

section. an emergency is a condition where water supplies available to the applicant have been reduced 

or impaired to such an extent that an imminent peril to the public health. safety. or welfare exists. This 

condition may include. but not be limited to: 

(1) the reduction of public water supplies to critical levels as a result of a severe and 

sustained drought: 

(2) the failure of a dam for a public water supply reservoir: 

(3) the significant contamination of a public water supply: or 

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Page 48 

(4) the failure or destruction of public water supply pipelines or other distribution 

systems. 

(c) The application shall be filed in accordance with and must contain the information required 

by §35.24 of this title (relating to Application for Emergency or Temporary Order). and the following: 

(1) copies of the affected permits. certificates of adjudication. or certified filings: 

(2) a description of the emergency's impact on public health. safety. and welfare: 

(3) a description of all existing and potential water supplies available to the applicant 

and their corresponding uses and costs: 

(4) a sumrnaO' of the examination made by the 3l)plicant of whether feasible. 

practicable alternatives exist to the suspension of permit conditions and reasons why those alternatives 

do not exist: 

£5) the apwunt of water over and above available supplies that are necessaO' to 

alleviate emergency conditions: 

C6) copies of the water right holder's water conservation and drought contingency 

plans. if any. and a summaQ' of tbeir status and implementation. including the reasons why any 
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Page 49 

remaining conservation or drought contingency measures provided by the plans have not or will not be 

implemented: 

(7) a copy of the reservoir operating procedures. if applicable: and 

(8) the proposed conditions and trigger levels for the suspension and reinstatement of 

the releases or other affected permit conditions. 

Cd) A copy of the application must be filed by the applicant with the Texas Parks and Wildlife 

Department CTPWD) at the same time it is filed with the chief clerk. 

(e) Upon receipt of the application. the chief clerk shall provide notice of the time and location 

of the commission's consideration of the application to the TPWD. executive director. and public 

interest counsel as soon as practicable after receipt of the application. but in no event shall the petition 

be considered less than 72 hours after receipt of notice by the TPWD. 

(f) The TPWD. executive director. and public interest counsel shall be provided an opportunity 

to submit comments on the application before the commission action. The applicant shall be afforded 

opportunity to respond to all comments at the time of the commission's consideration of the matter. 
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Page 50 

(g) The commission's order shall set out the extent of any suspension and any special condition 

upon which a suspension is granted. The commission's initial order may also indicate the referral of 

the matter to SOAH for an expedited hearing under subsection (i) of this section. 

(h) Published notice of the initial suspension of water right conditions. if granted. shall be 

provided and paid for by the applicant immediately following a favorable commission initial decision 

by publication in a newspaper or newspapers of general circulation in the affected area. The published 

notice may not be smaller than 96.8 sguare centimeters or 15 SQYare inches with the shortest dimension 

at least 7.6 centimeters or three inches. Such published notice must contain a summary of the 

information contained in the ~plication as provided by subsection (c) of this section and the time and 

location of the subseguent commission hearing provided by subsection <i) of this section. Such 

publication shall occur not later than seven calendar days before this hearing. For the purposes of this 

rule. the affected area shall be each county. in whole or in part. downstream of the diversion point or 

impoundment authorized under the affected water right. The applicant shall file with the chief clerk a 

publisher's affidavit as proof that such notice was published in accordance with this subsection. 

(i) If the commission initially grants an emergency suspension of pennit conditions without a 

hearing. the commission shall bold the hearing required by §35.25 of this ch~ter (relating to Notice 

and Opportunity for Hearing) as soon as practicable. but in no event later than 15 days after the initial 

emergency suspension is granted to determine whether to affirm. modify. or set aside the initial 

emergency suspension. Written notice of the hearing shall be provided to the TPWD and affected 

persons not later than ten days before the hearing. 
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(j) An emer~:ency order granted under this section may be for a period of not more than 120 

days if the commission finds that emergency conditions exist that present an imminent threat to public 

health. safety. and welfare and that override the necessity to comply with permit conditions and there 

are no feasible. practicable alternatives to the emer~:ency authorization. This emergency authorization 

may be renewed once for not longer than 60 days. 

(k) In determining whether feasible. practicable alternatives exist to the suspension of water 

right conditions. the commission shall examine: 

( 1) the amount and purposes of use for water currently being used by the applicant: 

(2) all evidence relating to the availability of alternative. supplemental water supplies 

to the applicant: and 

(3) the applicant's efforts to curtail water use not essential for the protection of the 

public health. safety. and welfare. 

(l) If the water right holder has a water conservation plan and/or drought contingency plan. the 

suspension of water right conditions may be contingent upon the full implementation of those plans and 

measures corresponding to the staged reduction of releases for existing instream uses and beneficial 

inflows. If the water right holder does not have a water conservation plan and drought contingency 

plan in accordance with Chapter 288 of this title <relating to Water Conservation Plans. Guidelines. and 

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Chapter 35- Emergency and Temporary Orders and Permits 

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Page 52 

Requirements). the order granting an application under this section shall require the permittee to 

develop and implement those plans within a prescribed time period as provided in the order. 

(m) In granting an application. all existing instream flows shall be passed up to that amount 

necessary to maintain water QJ,Iality standards for the affected stream. Additional flows necessary to 

protect a species in accordance with the federal Endangered Species Act or other species that are 

considered to be of "high interest" {self-sustainin2 wild populations that are endemic to the affected 

stream. have significant scientific value. or commercial vatue) may also be required. 

(n) In order to assist in the preparation and planning for water management during an 

emergency. the commission may provide conditions in a water right necessary for relief consistent with 

applicable portions of this section when the water right is initially granted or subseQJ.lently amended. 

These conditions may include. but shall not be limited to. a staged approach to the reduction in the 

pass-throu~:h amounts that provide for the pass-through of water for instream uses and bays and 

estuaries when it is available. and allow water to be captured or diverted for the protection of the public 

health. safety. and welfare during an emergency. subject to the protection of stream flows necessary 

under subsection {m) of this section for the maintenance of water QYality standards. These conditions 

may also include full implementation by the water right holder of water conservation and drou~ht 

contingency plans as a precondition for obtaining relief. 

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Chapter 35 -Emergency and Temporary Orders and Permits 

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Page 53 

(o) If the applicant's water ri2ht already contains provisions for the temporary. total. or partial 

suspension of permit conditions for the maintenance of instream flows or freshwater inflows to bays 

and estuaries. further or different relief requested in an application submitted under this section 

generally will be denied unless the applicant can show new or changed circumstances or an emergency 

condition not contemplated when the water right condition was issued. 
Texas Natural Resource Conservation Commission 

Chapter 35 - Emergency and Temporary Orders and Permits 

Rule Log No. 97142-035-AD 

SUBCHAPTER K : AIR ORDERS 

§§35.801-35.809 

STATUTORY AUTHORITY 

The new sections are proposed under TWC, Chapter 5, Subchapter L, which establishes the 

Page 54 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5.105, which establishes the commission's authority to 

set policy by rule; §5.235, as amended by Article VI, Rider 9, House Bill1, 75th Legislature, 1997, 

which establishes fee authority; §11.148, which establishes the commission's authority to issue orders 

relating to beneficial inflows to affected bays and estuaries and instrearn uses; §13.041, which 

establishes the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; 

§26.011, which establishes the commission's authority over water quality in the state; §26.351, which 

establishes the commission's authority concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning petroleum storage tanks; and §27.019, 

which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's 

jurisdiction over municipal solid waste; §361.017, which establishes the commission's jurisdiction over 

industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules 

for the control of solid waste; §366.012, which establishes the commission's authority to establish rules 

for on-site disposal systems; §382.017, which establishes the commission's rulemaking authority; 

§382.051, which establishes the commission's authority to adopt rules concerning air permits; 

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Page 55 

§382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; 

§401.011, which establishes the commission's authority over radioactive substances; §401.051, which 

establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, 

which establishes the commission's authority concerning licenses for radioactive substance disposal. 

The proposed new sections implement TWC, §§5.103, 5.105, 5.501-5.517, 11.148, 13.041, 26.011, 

26.351, and 26.354; and HSC, §§361.011, 361.017, 361.W4, 366.012, 382.017, 382.051, 382.0513, 

401.011,401.051, 401.056, and 401.412. 

§35.801. Emera:ency Orders Because of Catastrophe. 

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 catastrqphic event 

necessitates such construction and emissions otherwise precluded under the TCAA. For purposes of 

this section. a catastrQPhic event is an unforeseen event including. but not limited to. an 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 swpurtenances 

inoperable. 
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§35.802. Application for an Emen:ency Order. 

Page 56 

The owner or operator of a facility desirin~ to obtain an order under this subchapter shall 

submit an 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 the 

following: 

(1) a statement that the proposed constructMm 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: 

(2) a description of the catastrophic event: 

(3) a statement that there are no practicable alternatives to the proposed construction 

and emissions: 

(4) a statement that the emissions will not cause or contribute to a condition of air 

pollution: 

(5) a statement that the pro.posed construction and emissions will occur only at the 

property where the catastrophic event occurred or on other propertY owned by the owner or operator of 
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Chapter 35 - Emergency and Temporary Orders and Permits 

Rule Log No. 97142-035-AD 

the damaged facility. which produces the same inteunediates. products. or by-products. providing that 

no more than a de minimus increase will occur in the predicted concentration of the air contaminants at 

or beyond the property line at such other propert;y: 

(6) a description of the proposed construction and the type and quantity of air 

contaminants to be emitted: 

(7) an estimate of the dates on which the proposed construction and emissions will 

begin and end: 

(8) an estimate of the date on which the facility will begin operation: and 

(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 infounation 

regarding the applicability of and compliance with any federal reguirements for new or modified 

sources. 

§35.803. Public Notifi~ion. 

The commission or executive director shall publish notice of the issuance of an emergency 

order in the Texas Re~ister as soon as practicable after issuance of the order. If the order is issued 

prior to a hearing. the order shall fix a time and location for a bearing which is to be held as soon as 

•,_ 
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Chapter 35 - Emergency and Temporary Orders and Permits 

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practicable after the order is issued. Notice of any hearing shall be published in a newspaper of 

Page 58 

general circulation in the nearest municipality not later than ten days before the hearing. Notice of the 

issuance and notice of the hearing may be consolidated for publication in the newspaper. 

§35.804. Issuance of Order. 

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

(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: 

(2) there are no practicable alternatives to the proposed construction and emissions: 

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

(4) the proposed construction or emissions will occur only: 

(A) at property where the catastrophic event occurred: or 

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(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 than 

a de minimis increase in the predicted concentration of the air contaminants at or beyond the property 

line at such other property: 

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

construction and emissions are reasonable: and 

(6) the schedule in the order for submission of a complete permit application is 

reasonable. 

§35.805. Contents of an Emergency Order. 

In addition to the reqyirements of §35.26 of this title (relating to Contents of Emergency or 

Temporary Order). an emergency order issued under this subchapter shall contain at least the 

following: 

(ll 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: 

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Page 60 

(3) authorization for action only at the property where the catastrophic event occurred 

or on other property owned by the owner or operator of the damaged facility. which also produces the 

same intermediates. products. or byproducts. provided there will be no more than a de minimis increase 

in the concentration of air contaminants at or beyond the property line at such other property: and 

(4) a schedule for submission of a complete construction permit fWplication under 

provisions ofTCAA. §382.0518. 

§35.806. Requirement to Apply for a Pennit or Modification. 

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 TCAA. §382.063. 

and in accordance with provisions of TCAA. §382.0518. and with Chapter 116. Subchapter B of this 

title (relating to New Source Review Permits). The application shall be reviewed and acted upon by 

the executive director without reiard to 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). 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. 

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§35.807. Affirmation of an Emereency Order. 

Page 61 

The commission shall affian a proposed or issued order if the applicant shows at the hearing. 

by a preponderance of the evidence. that: 

(1) the prQposed 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: 

(2) there are no practicable alternatives to the prQposed construction and emissions: 

£3) the emissions will not cause or contribute to a condition of air pollution: 

( 4) the proposed construction or emissions will occur only: 

(A) at property where the catastrophic event occurred: or 

(B) at other property owned by the owner or operator of the ctamaged facility 

which produces the same intermediates. products. or by-products. so long as there will be no more than 

a de minimis increase in the predicted concentration of the air contaminants at or beyond the property 

line at such other property: 

. .... 
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{5) the time limits in the order for the beginning and completion of the proposed 

construction and emissions are reasonab~e: and 

(6) the schedule in the order for submission of a complete permit application is 

reasonable. 

§35.808. Modification of an Emereency Order. 

The commission shall modify a proposed or issued order if the hearing record shows that: 

(1) construction and emissions otherwise precluded under the TCAA 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: 

(2) there is no practicable alternative to such construction and emissions: and 

(3) modification of certain terms of the proposed or issued order is necessary to make 

the order. construction. and/or emissions meet the requirements stated in §35.807 of this title (relating 

to Affirmation of an Emergency Order). 

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§35.809. Setting Aside an Emergency Order. 

Page 63 

The commission shall set aside a proposed or issued order if it is not shown. in accordance with 

§35.807 of this title (relatini to Affirmation of an Emergency Order) or §35.808 of this title (relating to 

Modification of an Emergency Order). that the order should be either affirmed or modified and adopted 

as modified. 

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Chapter 116 -Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

Page 64 

The Texas Natural Resource Conservation Commission (commission) proposes an amendment to 

- § 116.410, concerning emergency orders. The commission also proposes the repeal of § § 116.411-

116.418, concerning emergency orders. This action also constitutes a revision to the state 

implementation plan. This action is part of the commission's implementation of Senate Bill (SB) 1876, 

75th Legislature, 1997, which consolidated the commission's emergency and temporary order 

authority. 

In addition to these amendments and repeals, the commission is concurrently proposing to consolidate 

agency emergency and temporary order provisions under a new Chapter 35, concerning Emergency 

and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions. The 

commission is also concurrently proposing amendments to emergency and temporary order provisions 

in §§291.14, 291.22, 291.142, 291.143, 305.21, 305.29, 305.31, 305.535, 321.80, 321.132, 321.134, 

321.152, 321.158, 321.219, 321.232, 321.239, 321.258, and 334.83, and the repeal of the following 

rules relating to emergency and temporary orders: §§291.10, 291.13, 297.57, 305.22-305.28, 305.30, 

and 305.32. The commission is also proposing new §297.57 and §305.30. These changes are 

published in this edition of the Texas Register. 

EXPLANATION OF PROPOSED RULES 

SB 1876 consolidated various statutory provisions governing emergency and temporary orders under 

new Texas Water Code (TWC), Chapter 5, Subchapter L. The new statute expressly authorizes the 

commission to issue temporary or emergency mandatory, permissive, or prohibitory orders, and issue 
Texas Natural Resource Conservation Commission 

Chapter 116 - Concrol of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

Page 65 

temporary permits or suspend permit conditions by temporary or emergency order. It allows the 

' 

commission to issue emergency orders with or without notice. Additionally, it authorizes the 

commission to delegate authority to the executive director to receive applications and issue emergency 

orders and authorize representatives to act on his or her behalf. Finally, general application, term, and . 

hearing requirements that are be applicable to all affected programs are included. The statute will 

allow the commission or the executive director to act expeditiously to address unforeseen 

circumstances. TWC, §5.515, as added by SB 1876, expressly authorizes the commission to issue 

these emergency orders. 

The proposed amendments to §116.410, concerning Applicability, add a reference to new Chapter 35, 

make a conformity change, and delete the definition of a catastrophic evenc, which is defined in 

proposed new §35.801, concerning Emergency Orders Because of Catastrophe. 

The proposed repeals concern provisions incorporated into the new Chapter 35. These provisions are 

moved in their entirety to proposed new Chapter 35, Subchapter K. In that proposal, the commission 

does propose changes to notice requirements. Proposed new §35.803 would require the commission or 

executive director to publish notice of the emergency order and the hearing to affirm, modify, or set 

aside in a newspaper of general circulation in the nearest municipality not later than the tenth day 

before the hearing. This is a change from current §116.412, which requires Texas Register notice as 

soon as practicable after issuance. The commission also proposes conforming changes, as well as 

regulatory reform changes to terminology that were identified during the commission's review of 
Texas Natural Resource Conservation Commission 

Chapter 116 - Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

Chapter 116 under Article IX, §167, of House Bill1, 75th Legislature, 1997, the General 

Appropriations Act. 

FISCAL NOTE 

Page 66 

Stephen Minick, Strategic Planning and Appropriations Division, has determined that forthe first fiveyear period the sections are in effect there will be no significant fiscal implications for state or local 

government as a result of enforcing or administering the sections. 

PUBLIC BENEFIT 

Mr. Minick also has determined that for each year of the first five years the sections are in effect the 

public benefit anticipated as a result of enforcing the sections will be enhanced consistency in the 

issuance of emergency and temporary orders. The sections will also allow the commission or executive 

director to act expeditiously to address unforeseen circumstances. There will be no effect on small 

businesses. There is no anticipated economic cost to persons who are required to comply with the 

sections as proposed. 

DRAFT REGULATORY IMPACT ANALYSIS 

The commission has reviewed the proposed rulemaking under the regulatory analysis requirements of 

Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to 

§2001.0225 because it does not meet the defmition of a "major environmental rule" as defined in that 

statute, and it does not meet any of the four applicability requirements listed in §2001.0225(a). The 

·~ 
Texas Natural Resource Conservation Commission 

Chapter 116 - Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

Page 67 

rules are not a major environmental rule because their primary intent is to consolidate already existing 

emergency and temporary order rules under one chapter. In addition, the applicability requiremepts do 

not apply because the commission is expressly granted authority by TWC, §5.501. The rules also 

concern procedural requirements of the agency, such as delegation of the authority to issue such orders 

by the commission to the executive director, and are a result of the commission's continuing regulatory 

reform effort. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a takings impact assessment for these rules under Texas Government 

Code, §2007 .043. The following is a summary of that assessment. The specific purpose of these rules 

is to implement the statutory provisions of TWC, Chapter 5, Subchapter L, concerning emergency and 

temporary orders. The rules will also consolidate agency procedural rules and make certain processes 

consistent among different agency programs. The rules will substantially advance these specific 

purposes by providing specific provisions on these matters. Promulgation and enforcement of these 

rules will not burden private real property which is the subject of the rules because they concern 

commission procedural rules. 

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 

The commission has reviewed the proposed rulemaking and found that the rules are neither identified in 

Coastal Coordination Act Implementation Rules, 31 T AC §505 .11, relating to Actions and Rules 

Subject to the Coastal Management Program, nor will they affect any action/authorization identified in 
Texas Natural Resource Conservation Commission 

Chapter 116 - Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

Page 68 

Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore, the proposed rules are · ~ 

not subject to the CMP. 

PUBLIC HEARING 

A public hearing on this proposal will be held August 3, 1998, at 2:00p.m. in Room 2210 of Texas 

Natural Resource Conservation Commission (TNRCC) Building F, located at 12100 Park 35 Circle, 

Austin. The hearing is structured for the receipt of oral or written comments by interested persons. 

Individuals may present oral statements when called upon in order of registration. Open discussion will 

not occur during the hearing; however, an agency staff member will be available to discuss the 

proposal 30 minutes prior to the hearing and will answer questions before and after the hearing. 

SUBMITTAL OF COMMENTS 

Comments may be submitted to Lisa Martin, TNRCC Office of Policy and Regulatory Development, 

MC 205, P.O. Box 13087, Austin, Texas, 78711-3087 or faxed to (512) 239-4808. All comments 

should reference Rule Log Number 97142-035-AD. Comments must be received by 5:00p.m., August 

3, 1998. For further information, please contact Brian Christian, Policy Research Division, 

(512) 239-1760. 

Persons with disabilities who have special communication or other accommodation needs who are 

planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made 

as far in advance as possible. 
Texas Natural Resource Conservation Commission 

Chapter 116 - Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

STATUTORY AUTHORITY 

Page 69 

The amendment is proposed under TWC, §§5.103, 5.105, and 5.501 and Texas Health and Safety 

Code, §§382.017, 382.051, and 382.0513. Section 5.103 establishes the commission's general 

authority to adopt rules. Section 5.105 establishes the commission's authority to set policy by rule. 

Section 5.501 establishes the commission's authority to adopt rules to implement the emergency and 

temporary order provisions of TWC, Chapter 5, Subchapter L. Section 382.017 establishes the 

commission's authority to adopt rules. Section 382.051 establishes the power of the commission to 

adopt rules concerning permits. Section 382.0513 establishes the power of the commission to establish 

certain permit conditions. 

The proposed amendment implements TWC, §§5.103, 5.105, 5.515 and Texas Health and Safety 

Code, §§382.017, 382.051, and 382.0513. 
Texas Natural Resource Conservation Commission 

Chapter 116 -Control of Air Pollution by Permits 

for New Construction or Modification 

Page 70 

Rule Log No. 97142-035-AD 

CHAPTER 116 

CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR 

MODIFICATION 

SUBCHAPTER E : EMERGENCY ORDERS 

§116.410 

§116.410. Applicability. 

The owner or operator of a facility may apply to the commission or the executive director for 

an emergency order under Texas Water Code. §5.515. and Chapter 35 of this title (relating to 

Emergency and Temporary Orders and Permits: Temporary Suspension or Amendment of Permit 

Conditions). to authorize immediate action for the addition, replacement, or repair of facilities or 

control equipment, and authorizing associated emissions of air contaminants, whenever a 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, 

an 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 

appurtenances inoperable.] 
Texas Natural Resource Conservation Commission 

Chapter 116 - Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

SUBCHAPTER E : EMERGENCY ORDERS 

§§116.411-116.418 

STATUTORY AUTHORITY 

Page 71 

The repeals are proposed under Texas Water Code, §§5.103, 5.105, and 5.501 and Texas Health and 

Safety Code, §§382.017, 382.051, and 382.0513. Section 5.103 establishes the commission's general 

authority to adopt rules. Section 5.105 establishes the commission's authority to set policy by rule. 

Section 5.501 establishes the commission's authority to adopt rules to implement the emergency and 

temporary order provisions of Texas Water Code, Chapter 5, Subchapter L. Section 382.017 

establishes the commission's authority to adopt rules. Section 382.051 establishes the power of the 

commission to adopt rules concerning permits. Section 382.0513 establishes the power of the 

commission to establish certain permit conditions. 

The proposed repeals implement Texas Water Code, §§5.103, 5.105, 5.515 anq Texas Health and 

Safety Code, §§382.017, 382.051, and 382.0513. 

§116.411. Application for an Emergency Order. 

§116.412. Public Notification. 

§116.413. Public Hearing for an Emergency Order. 

.,_ 
Texas Natural Resource Conservation Commission 

Chapter 291 - Water Rates 

Rule Log No. 97142-035-AD 

§116.414. Affirmation of an Emergency Order. 

§116.415. Contents of an Emergency Order. 

§116.416. Requirement to Apply for a Permit or Modification. 

§116.417. Modification of an Emergency Order. 

§116.418. Setting Aside an Emergency Order. 

Page 72 

. '· 
WRITTEN AND 

ORAL TESTIMONY 
INDEX OF WRITTEN TESTIMONY 

Reference Number 

W-1 

W-2 

Submitted By 

Jole C. Luehrs, U.S. Environmental Protection Agency 

Renea Ryland, U.S. Environmental Protection Agency 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

Mr. Herbert W. Williams, Jr. 

Director 

Air Policy and Regulations Division 

Texas Natural Resource Conservation Commission 

P.O. Box 13087 

Austin, TX 78711-3087 

RE: Comments on Proposed Revisions to Texas Natural Resource· 

Conservation Commission (TNRCC) Chapter 116 - Emergency 

Orders, and Chapter 35, Subchapter K - Emergency and 

Temporary Orders 

Dear Mr. Williams: 

8 

On June 17, 1998, you submitted a proposed revision to the 

Texas regulations. The revisions, received in our office on 

June 29, 1998, contain proposed new Texas Administrative Code 

(TAC) 30 Chapter 35 amendments to 30 TAC, Chapters 116, 291, 297, 

305, 321, and 334 concerning Emergency and Temporary Orders. Our 

review was focused on and our comments are specific to Chapter 

35, Subchapter K: Air Orders. We have made copies and 

distributed them to other Environmental Protection Agency (EPA) 

Region 6 divisions for review of the portions that pertain to 

their specific media. We understand that a hearing will be held 

on August 3, 1998, in Austin. 

Our review indicates that Texas proposes to recodify the 

provisions from Chapter 116, Subchapter E to Chapter 35, 

Subchapter K with no substantive changes. The EPA has previously 

expressed significant concerns and provided comments on 

September 26, 1997. The EPA continues to have major concerns 

with the use of emergency orders to authorize construction under 

the Clean Air Act. Our comments and items of concern follow. 

Item 1. As proposed, Subchapter K: Air Orders would allow a 

source to construct and operate a major source or 

modification subject to Prevention of Significant 

Deterioration (PSD) or Nonattainment New Source Review 

(NNSR) prior to issuance of a permit under the 

applicable permit program. The Clean Air Act plainly 

bars construction of major sources and major 

Recycled/Recyclable • Printed wHh Vegetable 00 Based Inks on 100% Recycled Paper (40% Postconsumer) 
Item 2. 

2 

modifications which are subject to these programs prior 

to the issuance of a permit. To allow a source to 

place "equity in the ground" by commencing construction 

before a permit is issued may compromise the permitting 

authority's discretion to make the decisions affecting 

the air quality or maintenance and attainment of a 

National Ambient Air Quality Standard and limit the 

ability of EPA and citizens to challenge the permit 

that is eventually issued. Applicable policy 

concerning the types of activities allowed 'prior to 

commencement of construction are described in EPA's 

memorandum entitled "Interpretation of 'Constructed' as 

it applies to activities Undertaken Prior to Issuance 

of a PSD Permit" from Edward E. Reich, Director, 

Division of Stationary Source Enforcement, dated 

December 18, 1978, which is enclosed. The EPA affirmed 

this guidance in a proposed rulemaking. In that 

proposed action, EPA requested comment on activities 

which may be allowed prior to issuance of a permit, but 

stated that " .. the regulations and EPA's longstanding 

policy clearly identify the scope of prohibited 

preconstruction activities. The current regulations 

and policies remain in effect regardless of today's 

request for comments." 

Consistent with the above discussion, EPA cannot 

approve a regulation that would allow a source to begin 

construction of a project subject to PSD or NNSR prior 

to issuance of a permit. The TNRCC should ensure that 

any rule allowing for construction activities prior to 

issuance of a PSD or NNSR permit (including Emergency 

orders) meets existing policy as described above. 

The emergency order as proposed could authorize a 

source to add or replace a unit with a unit of higher 

emissions, different design, or different dispersion of 

emissions of air pollutants prior to issuance of a 

preconstruction permit. Again, we are concerned that 

this provision may allow construction to commence 

without adequate review by TNRCC to ensure that the 

applicant meets the provisions of 40 Code of Federal 

Regulations (CFR) Part 51, Subpart I, (40 CFR §§ 

51.160, et seq.) and may preclude the ability of TNRCC 

to prevent construction or modification which violates 

portions of the control strategy or interferes with the 

attainment or maintenance of a National Ambient Air 

Quality Standard. 
Item 3. 

Item 4. 

Item 5. 

3 

Furthermore, General Rule 101.11 already allows the 

Executive Director to make a determination that 

emissions, resulting from major upsets under General 

Rule 101.6 or from startups and shutdowns during 

maintenance periods under General Rule 101.7, may be 

exempt from the allowable emission levels set by other 

rules and regulations (and presumably permits) . If 

these rules for emergency orders go beyond this 

situation, the State should recognize this in the 

preamble and discuss how these rules -- Subchapter K , 

and General Rule 101.11 -- interact. 

This Subchapter would allow an emergency order to be 

issued at a site other than the site at which the 

catastrophic event occurred prior to issuance of a 

preconstruction permit. As stated in Item 2 above, we 

are concerned that this provision may allow 

construction to commence without adequate review by 

TNRCC to ensure that the ppplicant meets the provisions 

of 40 CFR Part 51, Subpart I, and may preclude the 

ability of TNRCC to prevent construction or 

modification which violates portions of the control 

strategy or interferes with the attainment or 

maintenance of a National Ambient Air Quality Standard. 

The rule does not provide for the owner or operator who 

constructs under an emergency order to assume all risks 

associated with the construction prior to issuance of a 

permit. To be approvable by EPA, at a minimum, any 

rule should provide that the owner or operator assumes 

all risks when constructing under an emergency order 

prior to obtaining a preconstruction permit. The owner 

or operator and TNRCC may not consider, refer to, or 

rely upoh any cost borne during such construction in 

any review of the permit application, in the 

preparation of a permit application, evaluation of 

control technology, evaluation of air quality impacts, 

and other elements related to the evaluation of a 

permit application, issuance of a permit, and in any 

hearing of ·other proceeding held in connection with 

such permit. 

The TNRCC states in the preamble (on page 14 of the 

package) that this "subchapter will also become part of 

the State Implementation Plan because it replaces the 

rules currently found in Chapter 116, Subchapter E." 

This implies that the proposed rule will automatically 

revise the State Implementation Plan (SIP) . This is 
Item 6. 

4 

incorrect, since the rules referenced in Subchapter E 

are not now part of the approved SIP. The TNRCC should 

indicate in the preamble that this subchapter will be 

submitted to EPA as a new portion of the SIP . 

All of these proposed multimedia regulations, including 

the air portion found at Sections 35.801 - 35.809, seem 

to be authorized by the Texas Water Code {TWC) . We are 

concerned how something which is not authorized by the 

Texas Clean Air Act (TCAA) can be incorporated into the 

SIP. Note that at the beginning of Rule 101.1 of the 

SIP, there is the statement: 

"Unless specifically defined in the TCAA or in the 

rules of the TNRCC, the terms used by the TNRCC have 

the meanings commonly ascribed to them in the field of 

air pollution control. In addition to the terms which 

are defined by the TCAA, the following terms, when used 

in this chapter, shall h~ve the following meanings 

unless the context clearly indicates otherwise." 

If Texas wishes to submit the emergency order rules as 

a SIP revision, it may be required to submit a revision 

to General Rule 101.1 to include references to the TWC 

as well as the TCAA. 

Thank you for the opportunity to review and provide 

comments. This concludes my office's review of the proposed 

regulation change as received. If you have any questions, please 

call Mr. Reverdie Daron Page of my staff at (214) 655-7222. 

Enclosure 

Sincere~~~ 

~ r;uehrs 

Chief 

Air Permits Section 
r--·· 

I 

UNITE:D STATCS ENVIRON:·.H:NT;\L PROTECTION :,G~'iCY 

WASHINGTON. O.C. 204~0 • 

. 

I ... _ ..... 

DEC a 1s-ra 

• 1: •n • ~ t• S03JC:C'l': Interpret"a.tlon o. "Construct~~ as ~t "~'? :;,..~ .. 3:, :a 

Activities Under tal< en Prior til IssuaLtC:a a.: a =--~ 

PeriDit 

FROf-1: Director 

~ivision of Station~ry Source en~~rc~~ent 

TO: Enforce~ent Di~ision Directors 

Region3 I-X . 

Air and Ja.za.raous Hat'erials oi,rision ::>ir~etors 

Re;ions- I-X 

!4.4. 

. .. 

The i.ssue addres:led in this ce:norandum is t-.'here -~:-: t~e 

e~ntinuu~ ~roQ pla~ninq to 09aration o~ a cajo: e~itti~; 

facility cloes a co~~any or other entit-y viol~te t~e 2j~ 

requlation3 if it. h3s .not yet ree•ived a PSO ?~r~it. (!to is assW-~ed here thc;t. such a· !?er:nit is requira·a ily t~~ ?So 

regulation3.) -:;liS auestion ;la3 arisen sev~ral ti-ne~ ir: 

par.t icular c:ases and ·;ane·r al ;u idar.ce no\-t aj?;ear s ~ecl!s~as-:r. 

The statute and re~ulaticns :o· not ans-e~ this que~ticn. Tht! Clean Air Act statt!s s~::ly t~.:lt, ''ln.i:: ca~·~ra:ittin~ f~cili~y ••• :a7 be construc~~d ••• unl~~s-{li 

a !)er:~it :1.1:: lleen issueci ••• [and V!.riou:; c::~er c:~.::..t:i::o-.!: 

have ceen s.at:isfiec]. • Saction lo3(a). si~lil~rl•t, .:::e :-:;il :-~gulatio:-:s st.ate that, • [n]o oajo: ~t~t:ior:u.r::· s~u::~ o: · 

maja·r modifi'c~t:i.:ln shall b.a c~n:structed unl!l3 ::~~e ('raric.;:s 

?SQ. re-:suire.:uu~ts are oat]. • 40 CFF. 52.21 ( il Cl 1, 43 i:R • "'6"0~ tt- .. ...,. II ' • •• a • ,_. • • 

- ~ ~. ~ons,~~e~lon 1s ae.~~e: ~n ~ne re~~·!~!a~s ~s 

•faoriearion, ~rec~ion, ins~allation, o: ~odtfl~!:~a~ ~E ~ 

source.• o~u Cl:a 52.21(~1 (7), 43 F~ 2640·~. ·rhi::; .:-::orcs 

wi t:h Sect' ion 1 &9 ( 2) (C) of tne i\ct, but' it docs not' ~~~1 i:i.~ !.t 

ansver t:h':! ~ue=:-:t:ion ?CJ.l~ wbove. To our knovlacl:;-:t, tee leqisl~tiv~ hi~torv of ~he Aer doeG not tre~t t~is iss~e. 

Thus the t"~r.a "cons trueted • seems to ce open t:o !ur t'bc:r 

inrer~rctntion by Z~A • . 

. --- .... 
-2-

. Commencement of construction is quite s~ecifically 

dC!fined i:1 both Sect: ion lei~ ( 2) (.l\) of thl! Cle.Jn t\ir t\c:t and 

40 CFR 52.21(~) (o), 43 FR 2640-t. Ho\1ever, t'l~t: dafini:ion 

is for the purposs of deciding th~ thre~hold ~uestion of th~ 

applicability of the PSO re;ulation~. There!ore, ~e ar~ ~ot 

bound by it in deciding •11hat activities ::ay be co·ncucted 

prior to receiving a necessary PSu per~it. 

DSSt's res?onse to date has bel!n that thl! per~ittin; 

authority should rnake the determination on a case-by-ca~e 

basis, after considerin~ ~ll the facts of the individu~l 

situ~tion. For exa::.p-1~, ,.,e said that site cla3ring oi;:u: iJe 

inappropriate for a source proposed to be consrtucted i~ a 

heavily forested Cl~ss I area, but per~issible fo~ a sou::e 

proposed to ce constructed on a junl<-st:e•Jn l~t' i:1 a neav.LlT 

industrialized Class III area. 

After consulting with the Office of Ge~era! Cccnsal, ~a 

are no\1 ~nendin; this policy in order .to aili:'l!.:nize the ad:tinist:r~ti'll! bur:.len on the oer~11ittinq authcrit"l an: t: 

adoot what ·.~e believe no~' to be the bet:.ter legal· i~:er-?rec.atio~. The new policy is :hat certain li~ited ~cti~itias ~ill 

- be all:l~·led in all casl!s. These allo·r~able activities are 

planning, orceri~g of equi~ent an~ materials, sir.e-cle~:ir.;, 

grading, and on-si.te st~raqe of equi-t=--:~ent an.d ::tat:eri.als. 

Any activities'undertaken prior- ~o issuance of a ?SO ~er~it 

would, of C:oursa, be solely at t:he o'-mer's or operator's risk. That is, even if consid~rable ex;ense vera i~c~rred 

in site-clearin-; ancl purchasing equi!'i:lent, fo~ ex.am?la, 

there •t'lould be no quarantee that a P5C C'e~:nit "1ould :e 

forthcomin;. 

All on-site ~ctivi~ies of a oermnnent nature ai=ed .a: 

complatin; a ?SO source for \-lhicil·a ;:er::.i: has yee.to :e obtai~ed are crohiaited under all circu:stances. ~~~se 

prohi:it~d activities include installarion of buil~in~ 

sup;?orr.s and foundeltions, 9avinq, l~?~nq of. uncerq r·ou~d ~ i,::~ 

wor~, ·constructi=n of ~ar.~nene s~oraqe structures, an~ 

activities of a similar nature. 

The ne'-1 poli\:y hols saveral a.cvant.1:;es. Firs~, i~ will 

be e~3Y to ad~inister, sine~ c~se-by-c:ase derer~in~tions 

will not be rP.~uired. ~ioreover, it: aGsures ni1tional consistency 3nJ per.airs no abuse of di:scretion. !'in~lly, it · _ ap~ea~G ro be ~h~ :ost leq~lly correct po~ition. T~o poliey has the undaniablo dis~civantngo of nllO\iinl] .1 goo::i deal ~·! 

• 

e

-':'t ,.. 

·.· 
' 

• 

.

~ .. ,·:~ . 

~i::: 

-3-

ac~ivity at sites which ~ay be highly suseepti~le to environment' ill i:n':lact. ~·i'e facl that on balance, ho.,.ever, the· advanta~es of the ?Olicy outwei~h the disadvant3ge. 

14 .¢. 

If you have any ~uect'ionc, pl9ase feal free to contact 

David Rochlin of my staff, at 755-2542. 

Edward 

~ 

:::. Reich 

cc: ~etar Wyckoff, CGC. 

Richard ~~oadas, OAQPS 

Linda·Murphyr Regi~n I 

Ken !n~, Region II Ji~ Syunor, ~eqion III 

Winston Soith, Re;ion Iv 

Steve Rot~blatt, ?.eqion V 

OOn Harvey, Reo; ion . VI 

Bob Chanslor, Region ~II 

Dave Jose9h, a~ion VIII 

Bill •tlic:C, Region IX ~ixe Johnston, ?.e;ion X 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

-

AUG ~ - .... ~ ... -:-~ , . .., L.-J 

Ms. Lisa Martin 

ThK.CC Ofi1ce ofPoiicy and Regulatory Development 

MC205 

P.O. Box 13087 

Austin, Texas 78711-3087 

Re: Rule Log Number 97142-035-AD 

~ ) ' 

86SL 9 n tl 

v -Jnt.' 

Comments on Proposed Emergency Order/Temporary Order Rules 

Dear Ms. Martin: 

8 

This letter is in reference to the Texas Natural Resource Conservation Commission's 

(TNRCC's) proposed revisions to 30 TAC Chapters 35, 116. 291, 297, 305, 321 and 334 and the 

State Implementation Plan. These comments are specific to those portions of the proposed rules 

dealing with National Pollutant Discharge Elimination System (NPDES)-related issues. Copies of 

the proposed rules have been distributed to other Environmental Protection Agency Region 6 

(EPA) divisions for review of those portions pertaining to other media. You will be receiving 

separate comment, if any, from those divisions. 

The State of Texas submitted a request for approval of the Texas National Pollutant 

Discharee Elimination Svstem (TPDES) pro(.!ram under & 402(b) ofthe \lean Water Act (CWA) . - '.. ' . ·. - .. ·. , ... -· on February 5, 19S8, which it revised with supplements dated February 12, March 16, April15, 

and May 4, 1998. A public hearing was held on the proposed TPDES program on July 27, 1998, 

and EPA is currently taking public comment. As part of its evaluation of whether to approve the 

propo_sed TPDES program, EPA is in the process of reviewing the above-referenced proposed 

Emergency Order/Temporary Order rules for consistency with the requirements for NPDES state 

program approval under CW A § 402 and its implementing regulations. Although we have not yet 

had adequate time to fully evaluate the proposed rules, we did want to alert you to the fact that 

we are examining the proposed rules to determine whether there is any possibility of a conflict 

between the proposed rules and the requirements for NPDES authorization. TNRCC will be·· 

Recycled/Recyclable • Printsdwith Vegetable Oil Based Inks on 100% Recycled Paper(40% Postconsumer) 
contacted as soon as possible with any concerns we might have after we complete our review of 

the proposed rules. 

If you have any questions, please feel free to contact me at (214) 665-2130. 

Sincerely, 

'12-1Lf 

Renea Ryland 

Assistant Regional Counsel 
INDEX OF ORAL TESTIMONY 

Reference Number Submitted by 

No oral testimony was received 
EVALUATION OF 

TESTIMONY 

Chapter 35 
Texas Natural Resource Conservation Commission 

Chapter 35 - Emergency and Temporary Orders and Permits 

Rule Log No. 97142-035-AD 

.Page 1 

The Texas Natural Resource Conservation Commission (commission) adopts new §§35.1-35.3, 35.11-

35.13, 35.21-35.30,35.101, 35.201, 35.202,35.301-35.303,35.401,35.402, 35.501, 35.502, 

35.601, 35.701, 35.801-35.809, and 35.901, concerning emergency and temporary orders. This action 

implements Senate Bill (SB) 1876, 75th Legislature, 1997, and continues the commission's effort to 

consolidate agency procedural rules and make certain processes consistent among different agency 

programs. This action also includes certain changes necessary to implement SB 1, 75th Legislature, 

1997, which are noted as follows. Finally, certain provisions of the rules will constitute a revision to 

the state implementation plan (SIP). Specifically, Chapter-35, Subchapters A, B, C, and K and revised 

§116.410 are adopted as changes to the SIP. This submission replaces the 1993 submission of the rules 

in Chapter 116, Subchapter E that are being revised or repealed in this action. 

Sections 35.302, 35.303, 35.801, 35.802, and 35.804-35.808 are adopted with changes to the proposed 

text as published in the July 3, 1998, issue of the Texas Register (23 TexReg 6899). Sections 35.1-

35.3, 35.11-35.13,35.21-35.30,35.101, 35.201, 35.202, 35.301, 35.401, 35.402, 35.501, 35.502, 

35.601, 35.701, 35.803, 35.809, and 35.901 are adopted without changes and will not be republished. 

The new Chapter 35 is largely derived from previously existing rules. The commission is concurrently 

adopting amendments to emergency and temporary order provisions in 30 TAC §§116.410, 291.14, 

291.22, 291.142, 291.143, 305.21, 305.29, 305.31, 305.535, 321.80, 321.132, 321.134, 321.152, 

321.158, 321.219, 321.232, 321.239, 321.258, and 334.83. The commission is also adopting the 

repeal of the following current rules relating to emergency and temporary orders: 30 TAC §§116.411-

116.418, 291.10, 291.13, 297.57, 305.22-305.28, 305.30, and 305.32. The commission is also 
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adopting new 30 TAC §297.57 and §305.30. These changes are concurrently published in this edition 

of the Texas Register. 

EXPLANATION OF ADOPTED RULES 

SB 1876 consolidated various statutory provisions governing emergency and temporary orders under 

new Texas Water Code (TWC), Chapter 5, Subchapter L. The new statute expressly authorizes the 

commission to issue temporary or emergency mandatory, permissive, or prohibitory orders, and issue 

temporary permits or suspend permit conditions by temporary or emergency order. It allows the 

commission to issue emergency orders with or without notice. Additionally, it authorizes the 

commission to delegate authority to the executive director to receive applications and issue emergency 

orders and authorize representatives to act on his or her behalf. General application, term, and hearing 

requirements applicable to all affected programs are included. Finally, specific requirements are listed 

for specific program areas~ The statute will allow the commission or the executive director to act 

expeditiously to address unforeseen circumstances. 

These adopted rules conform with the provisions provided in TWC, Chapter 5, Subchapter L, and 

provide procedural requirements for implementation. TWC, §5.501, concerning Emergency and 

Temporary Order or Permit; Temporary Suspension or Amendment of Permit Condition, expressly 

authorizes the commission to prescribe rules necessary to carry out and administer Subchapter L. 

The adopted new Chapter 35 contains both general provisions that are applicable to all affected 

programs and program-specific requirements. The latter are largely derived from emergency and 
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temporary order rules that already exist in other chapters within Title 30 of the Texas Administrative 

Code (for example, Chapter 305, Subchapter B). These provisions have been derived from current 

commission rules and placed into the new Chapter 35, and the commission is not adopting many 

substantive changes to these rules as they currently exist. 

However, there are some substantive changes being adopted. As authorized by TWC, §5. 501, the 

adopted new Chapter 35 provides for the delegation of authority to issue certain orders to the executive 

director. Additionally, the commission is adopting changes to program-specific requirements that result 

from the passage of SBs 1 and 1876. Finally, the commission adopts changes to clarify some notice 

requirements for temporary and emergency orders, and is adopting a fee increase. These changes are 

noted where applicable. 

Adopted new Subchapter A, concerning Purpose, Applicability, and Definitions, sets forth certain 

general provisions necessary for administration of the chapter. Adopted new §35 .1, concerning 

Purpose, provides that the purpose of the new chapter is to implement the commission's authority under 

TWC, Chapter 5, Subchapter L, to issue temporary or emergency mandatory, pennissive, or 

prohibitory orders, and by those orders to issue temporary pennits or temporarily suspend or amend 

pennit conditions. This provision is in accordance with TWC, §5.501, which contains the statutory 

authorization for the issuance of these orders. This subchapter will also be submitted to the United 

States Environmental Protection Agency (EPA) as a revision to the SIP. 
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Adopted new §35.2, concerning Applicability, provides that the chapter applies to any application 

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

prohibitory orders. 

Adopted new §35.3, concerning Definitions, provides definitions for emergency order, severe property 

damage, and temporary order. The purpose of this section to provide general definitions for the 

chapter and to help administer the provisions of TWC, Chapter 5, Subchapter L. An emergency order 

is defined as an order that must be issued immediately in order to protect human health and safety or 

the environment; or for reasons specified in adopted new §35.302, concerning Application for 

Emergency and Temporary Orders to Discharge. The definition of severe property damage is the same 

as that in §305.2, concerning Definitions, and is necessary for the requirements governing water 

quality emergency and temporary orders. Temporary order is defined as an order of short-duration 

which must be issued as quickly as possible, or which might allow an authorization for a short-tenn 

activity, setting conditions and limitations that will adequately protect human health or safety or the 

environment, or for the reasons specified in new §35.302. 

Adopted new Subchapter B, concerning Authority of Executive Director, is comprised of three sections 

and regards delegation to the executive director, as authorized by TWC, §5.501. New §35.11, 

concerning Purpose and Applicability, provides that the purpose of Subchapter B is to allow the 

executive director to act on behalf of the commission. This subchapter will also be submitted to EPA 

as a revision to the SIP. 
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Adopted new §35 .12, concerning Authority of the Executive Director, authorizes the executive 

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director, or a representative or representatives authorized in writing by the executive director, to act on 

his or her behalf to receive applications for and issue emergency orders. The section also provides 

notice and hearing procedures. 

Adopted new §35.13, concerning Eligibility of Executive Director, provides for the authority of the 

executive director or the executive director's representative to act on Texas pollutant discharge 

elimination system (TPDES) permits or other TPDES-relared approvals if the executive director meets 

the qualifications specified in §50.41, concerning Eligibility of Executive Director. 

Adopted new Subchapter C, concerning General Provisions, provides general requirements for issuing 

emergency and temporary orders. Adopted new §35.21, concerning Action by Commission or 

Executive Director, allows the commission or executive director to issue temporary or emergency 

orders and, by temporary or emergency order, to issue a temporary permit or temporarily suspend or 

amend a permit condition. The new provisions implement TWC, §5.501. This subchapter will also be 

submitted to EPA as a revision to the SIP. 

Adopted new §35.22, concerning Term and Renewal of Orders, provides that unless otherwise noted 

by a program-specific requirement, the term of an emergency order is a maximum of 180 days, and 

that an emergency order may be renewed once for an additional period of up to 180 days by submittal 

of a new application. The section also provides that a temporary order is limited to a reasonable time 

specified by the order. This provision implements TWC, §5.505, concerning Term of Order. 
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Adopted new §35.23, concerning Effect of Orders, provides that an emergency or temporary order 

does not vest any rights in the permit holder or recipient and expires in accordance with its terms. 

Adopted new §35.24, concerning Application for Emergency or Temporary Order, specifies 

requirements governing applications. The section prescribes the necessary contents of the application 

and requires its filing with the chief clerk. Subsection (b) specifies that an application for an 

emergency or temporary order for a bypass of untreated and partially treated wastewater, if the state 

has national pollutant discharge elimination system (NPDES) authorization, will constitute prior notice 

of an anticipated bypass, as required by §305.535. Section 35.24 also requires copies of the 

application to be provided to the division director of the appropriate program on behalf of the executive 

director, and to the public interest counsel, at the same time it is filed with the chief clerk. Finally, the 

section prescribes the manner in which applications are to be signed. The new section implements 

TWC, §5.502, concerning Application for Emergency or Temporary Order, and contains procedural 

requirements necessary for implementation. 

Adopted new §35.25, concerning Notice and Opportunity for Hearing, provides the notice and hearing 

requirements for emergency and temporary orders. The section provides that an emergency order can 

be issued with or without notice and/or opportunity for hearing, and that if one is issued without a 

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

held before the commission or its designee as soon as practicable after the order is issued. In addition, 

the section provides that unless otherwise provided by program-specific requirements, notice of a 

hearing for issuance of an emergency order or to affirm, modify, or set aside the order must be given 
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not later than the tenth day before the date set for the hearing and provide that an affected person may 

request an evidentiary hearing on the issuance of the emergency order. The section also provides that 

temporary orders require a hearing before their issuance, and that notice must be given not later than 

the 20th day before the hearing and provide that an affected person can request an evidentiary hearing 

on issuance of the temporary order. Program-specific notice requirements are also set out. Some of 

these notice requirements are not in existing Chapter 305 and provide clarification of notice 

requirements. In addition, the newspaper notice for air catastrophes is in addition to the requirement 

for notice to be given in the Texas Register. The adopted Section implements TWC, §5.504. 

Adopted new §35.26, concerning Contents of Emergency or Temporary Order, contains the minimum 

requirements for information that must be included in these types of orders. The contents are derived 

from the application requirements contained in TWC, §5.502. 

Adopted new §§35.27-35.29, concerning Hearing Required, Hearing Requests, and Procedures for a 

Hearing, respectively, provide for hearings, hearing requests, and procedures for hearings on 

emergency and temporary orders. The rules provide that hearings will be conducted in accordance 

with the Administrative Procedure Act and commission rules. The hearing procedures implement 

TWC, §5.115(a), concerning Persons Affected in Commission Hearings, and TWC, §5.504, 

concerning Hearing to Affirm, Modify, or Set Aside Order. 

Adopted new §35.30, concerning Application Fees, provides that the application fee for an emergency 

or temporary order under this chapter is $500, plus the actual cost of the required notice. TWC, 
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§5.501, authorizes the adoption of fees for administering the program. In addition, the increase is 

authorized by TWC, §5.235, which establishes fee authority, and by Rider 9 under the commission's 

appropriation in Article VI of HB 1, 75th Legislature, 1997, the General Appropriations Act. The 

commission is increasing the current fee from $100 to $500 in order to more adequately cover 

commission expenses incurred when issuing these orders. 

Adopted new Subchapter D concerns Emergency Suspension of Beneficial Inflows. The subchapter 

implements TWC, §5.506, concerning Emergency Suspension of Permit Condition Relating to 

Beneficial Inflows to Affected Bays and Estuaries and lnstream Uses, and contains previously existing 

requirements that have been moved to the new Chapter 35. 

New §35.101, concerning Emergency Suspension of Permit Conditions Relating to Beneficial Inflows 

to Affected Bays and Estuaries and lnstream Uses, provides the criteria to be used by the commission 

in its review and action on an application by a water right holder for the temporary suspension of 

conditions relating to beneficial inflows to bays and estuaries and instream uses during an emergency. 

The new section is entirely derived from previous §297 .57, concerning Emergency Suspension of 

Permit Conditions, and the commission adopts no substantive changes to the requirements as they 

existed in Chapter 297. 

Adopted new Subchapter E concerns Emergency Orders for Utilities. The subchapter implements 

TWC, §5.507, concerning Emergency Order for Operation of Utility that Discontinues Operation or is 

Referred for Appointment of Receiver, and §5.508, concerning Emergency Order for Rate Increase in 
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Certain Situations. Adopted Subchapter E also includes provisions necessary to implement SB 1, and it 

includes commission rules from Chapter 291 that have been moved to new Chapter 35. While largely 

derived from preexisting commission rules, the commission is also allowing the executive director to 

issue the orders under this subchapter, as authorized by TWC, §5.501. 

Adopted new §35.201, concerning Emergency Order for Operation of Utility that Discontinues 

Operation or is Referred for Appointment of a Receiver, authorizes the commission or executive 

director to appoint a person by emergency order to temporarily manage and operate a utility that has 

discontinued or abandoned operations, or which has been or is being referred to the attorney general 

for the appointment of a receiver under TWC, §13.412. This provision implements both TWC, 

§5.508, concerning these types of orders; and TWC, §13.412, as amended by SB 1, which expanded 

the definition of abandonment. The adopted new section also authorizes the issuance of an emergency 

order in accordance with current §291.142, concerning Operation of Utility that Discontinues 

Operation or is Referred for Appointment of a Receiver, and §291.143, concerning Operation of a 

Utility by a Temporary Manager. 

Adopted new §35.202, concerning Emergency Order for Rate Increase in Certain Situations, authorizes 

the commission or executive director to authorize an emergency rate increase for a utility under certain 

conditions. Specific requirements in the section are entirely derived from §291.22, concerning Notice 

of Intent to Change Rates, that have been moved to the new Chapter 35, and the commission adopts no 

substantive changes to those requirements as they previously existed. 
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Adopted new Subchapter F concerns Water Quality Emergency and Temporary Orders. The 

subchapter implements TWC, §5.509, concerning Temporary or Emergency Order Relating to 

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Discharge of Waste or Pollutants, and includes existing commission rules that have been moved to the 

new Chapter 35 from Chapter 305, Subchapter B. While largely derived from those preexisting 

commission rules, the rules as adopted allow the executive director to issue the orders under this 

subchapter, as authorized by TWC, §5.501. The commission takes this action in order to provide for 

the more expeditious issuance of emergency and temporary orders. 

Adopted new §35.301, concerning Emergency and Temporary Orders Authorized, authorizes the 

commission or executive director to issue emergency orders, and the commission to issue temporary 

orders, for the discharge of waste or pollutants into or adjacent to any water in the state when 

expeditious action is necessary. 

Adopted new §35.302, concerning Application for Emergency and Temporary Orders to Discharge, 

contains application requirements that are specific to Subchapter F. ·In addition to the application 

requirements specified in adopted §35.24, this adopted section requires a person desiring to obtain an 

emergency or temporary order to provide specific infonnation, including a statement that the order is 

necessary to enable action to be taken more expeditiously than is otherwise provided by TWC, Chapter 

26, to effectuate the policy and purposes of that chapter, and statements on the nature of the adopted 

discharge. Additionally, the section reflects a change in the law that provides that amelioration of 

serious drought conditions can be a condition necessitating the issuance of an emergency or temporary 

order to the extent consistent with state assumption of the NPDES program. Further, since the.state 
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assumed the NPDES program on September 15, 1998, the commission has changed the language of the 

proposed rule to delete references to emergency and temporary orders issued prior to assumption of the 

program. 

Adopted new §35.303, concerning Emergency Orders and Temporary Orders, provides the conditions 

under which the commission or executive director may issue emergency or temporary orders. 

Adopted new Subchapter G concerns Solid Waste and Uranium By-product Emergency Orders. It 

implements TWC, §5.511, concerning Emergency Administrative Order Concerning Imminent and 

Substantial Endangerment, and §5.512, concerning Emergency Order Concerning Activity of Solid 

Waste Management, and contains provisions from existing commission rules. While largely derived 

from preexisting commission rules, the commission is allowing the executive director to issue the 

orders under this subchapter, as authorized by TWC, §5.501. 

Adopted new §35.401, concerning Emergency Orders for Nonhazardous Solid Waste Activitiesand 

Underground Injection of Uranium By-product Materials, authorizes the commission or executive 

director to issue a mandatory or prohibitory emergency order regarding any activity of solid waste 

management within its jurisdiction, whether the activity is covered by permit or not, if it determines 

that an emergency exists. The section also provides for terms of these orders. The new section was 

derived from §305.29, concerning Emergency Otders for Solid Waste Activities. As noted, the 

commission authorizes the executive director to issue these orders, as allowed by statute. In addition, 
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the commission is adding requirements for underground injection control emergency orders previously 

only set out in federal rules. 

Adopted new §35.402 concerns Emergency Actions Concerning Hazardous Waste, and was derived in 

its entirety from previous §305.30, concerning Emergency Actions Concerning Hazardous Waste. As 

previously noted, the commission is allowing the executive director to issue orders under the adopted 

section. 

Adopted Subchapter H concerns Radioactive Substances and Materials Emergency Orders. The 

adopted subchapter implements TWC, §5.516, which authorizes the issuance of emergency orders 

under Health and Safety Code (HSC), §401.056, concerning Emergency Orders. 

Adopted new §35.501, concerning Emergency Orders Relating to Radioactive Substances, provides for 

commission or executive director action if it is determined that radioactive substances threaten the 

public health or safety or the envirorunent, and that a licensee managing the radioactive substances is 

unable to remove the threat. The section also provides program-specific notice and hearing 

requirements, as well as provisions relating to financial assurance. The section is entirely derived from 

§305. 31, concerning Emergency Orders Relating to Radioactive Substances, but the commission does 

adopt the following requirements that were not contained in the preexisting rules. The adopted rule 

provides for action by the executive director. In addition, adopted §35.501(g), concerning financial 

assurance, contains changes to what is in previous §305.3l(h), to better reflect the relevant statutory 

language. Additionally, former §305.31(b) and (c), concerning by-product material, were not moved 
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to new §35.501 due to the transfer of jurisdiction over those wastes to the Texas Department of Health, 

under SB 1857, 75th Legislature, 1997. The commission adopts no other changes to the rules 

concerning this matter as they currently exist, and the provisions are simply incorporated into the new 

Chapter 35. 

Adopted new §35.502, concerning Emergency Impoundment of Radioactive Material, provides for 

commission and executive director action to impound or order the impoundment of radioactive material 

possessed by any person not equipped to observe, or failing to observe, the provisions of the Texas 

Radiation Control Act (TRCA), the rules of 30 TAC Chapter 336 (concerning Radioactive Substance 

Rules), or a license or order issued by the commission under TRCA or Chapter 336. The section also 

provides for the disposition of the radioactive material. The section is derived from §305.32, 

concerning Emergency Impoundment of Radioactive Material, and the only change to the rules as they 

previously existed is to provide for action by the executive director. The commission adopts no other 

changes to the rules concerning this matter as they previously existed, and the provisions are simply 

incorporated into the new Chapter 35. 

Adopted new Subchapter I concerns Storage Tank Emergency Orders. The subchapter implements 

TWC, §5.510, which authorizes the issuance of these orders. Adopted §35.601, concerning 

Emergency Order Concerning Underground or Aboveground Storage Tanks, authorizes the 

commission or executive director to issue an order to the owner or operator of an underground storage 

tank regulated under TWC, Chapter 26, and 30 TAC Chapter 334 (concerning Underground and 

Aboveground Storage Tanks). The section contains program-specific requirements concerning the 
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content of the order, and it provides for the delivery of the order to people identified in the order. The 

section is derived from §334.83, concerning Emergency Orders. The only significant change from the 

previous rules adopted by the commission is to provide for action by the commission, as well as the 

executive director, whereas the existing rule provides only for action by the executive director. 

Otherwise, the commission adopts no other changes to the rules concerning this matter as they 

previously existed, and the provisions are simply incorporated into the new Chapter 35. 

Adopted new Subchapter J, concerning Imminent and SubStantial Endangerment, implements TWC, 

§5.511, concerning Emergency Administrative Order Concerning Imminent and Substantial 

Endangerment. Adopted §35.701, concerning Emergency Orders, allows the commission or the 

executive director to issue an emergency administrative order under HSC, §361.272, in the manner 

prescribed by adopted Chapter 35. 

Adopted new Subchapter K, concerning Air Orders, implements TWC, §5.514 and §5.515, concerning 

Order Issued Under Air Emergency and Emergency Order Because of Catastrophe, respectively. The 

adopted rules are derived from Chapter 116, Subchapter E, concerning Emergency Orders. The 

commission adopts changes to make the provisions consistent with SB 1876. This subchapter will also 

be submitted to EPA as a revision to the SIP. It replaces the rules that were found in Chapter 116, 

Subchapter E. 

Adopted new §35.801, concerning Emergency Orders Because of Catastrophe, authorizes the 

commission or executive director to issue an emergency order authorizing immediate action for the 
... 

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addition, replacement, or repair of facilities or control equipment, and authorizing associated emissions 

of air contaminants, whenever a catastrophe necessitates such action that would otherwise be precluded 

by the Texas Clean Air Act (TCAA). Catastrophe is defined. The commission revised the term 

"catastrophic event" to "catastrophe" to be consistent with the statute. 

Adopted new §35.802, concerning Application for an Emergency Order, requires the submission of an 

application in accordance with adopted §35.24. The section also provides the information that must be 

submitted in addition to the general application requirements. The section is derived from § 116.411, 

concerning Application for an Emergency Order. The commission clarified the proposed rule language 

by providing that the term "facility," as used in Subchapter K, is the same definition of that term in 

TCAA, §382.003. The requirement that the application include a statement that any construction or 

modification will not interfere with the attainment or maintenance of the national ambient air quality 

standards (NAAQS) or violate applicable portions of the control strategy was added, and is consistent 

with expectations in previous emergency orders. These changes were made in response to comments. 

In addition, the commission revised the term "catastrophic event" to "catastrophe" to be consistent with 

the statute. 

Adopted new §35.803, concerning Public Notification, is derived from §116.412 and contains changes 

to rules as they previously existed in that section. In addition to the publication of notlce in the Texas 

Register, the new section requires the commission or executive director to prepare the notice of the 

emergency order and the hearing to affirm, modify, or set aside for the applicant to publish in a· 

newspaper of general circulation in the nearest municipality not later than the tenth day before the 
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hearing. This is a change from prior §116.412, which required only Texas Register noticeas soon as 

practicable after issuance, but not later than the tenth day before the hearing. The new section also 

contains changes allowing either the commission or the executive director to act. 

Adopted new §35.804, concerning Issuance of Order, authorizes the commission or executive director 

to issue an order under this subchapter if certain conditions are found to exist. The requirement that 

the executive director or commission must find that any construction or modification will not interfere 

with the attainment or maintenance of the NAAQS or violate applicable portions of the control strategy 

was added. This change was made in response to comment. In addition, the commission revised the 

term "catastrophic event" to "catastrophe" to be consistent with the statute. 

Adopted new §35.805, concerning Contents of an Emergency Order, prescribes content requirements 

that are in addition to those specified in §35.38. The provisions are derived entirely from §116.415, 

concerning Contents of an Emergency Order. The requirement that the order include the requirement 

that any construction or modification will not interfere with the attainment or maintenance of the 

NAAQS or violate applicable portions of the control strategy was added. This change was made in 

response to comment. In addition, the commission revised the term "catastrophic event" to 

"catastrophe" to be consistent with the statute. 

Adopted new §35.806, concerning Requirement to Apply for a Permit or Modification, requires the 

owner or operator of a facility for which a,n emergency order has been issued to submit an application 

within 60 days of issuance of the order in accordance with statute and commission rules. The section is 
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derived from the previous §116.416, concerning Requirement to Apply for a Permit or Modification. 

The citation to the repealed statute, TCAA, §382.063, has been replaced with the correct citation to the 

TWC. 

Adopted new §35. 807, concerning Affirmation of an Emergency Order, provides the conditions under 

which the commission affirms a adopted or issued order. The section is derived in its entirety from 

§116.414, concerning Affirmation of an Emergency Order. The requirement that the order include the 

requirement that any construction or modification will not ihterfere with the attainment or maintenance 

of the NAAQS or violate applicable portions of the control strategy was added. This change was made 

in response to comment. In addition, the commission revised the term "catastrophic event" to 

"catastrophe" to be consistent with the statute. 

Adopted new §35.808, concerning Modification of an Emergency Order, provides the conditions under 

which an emergency order must be modified. The section is derived from previous §116.417, 

concerning Modification of an Emergency Order. The commission revised the term "catastrophic 

event" to "catastrophe" to be consistent with the statute. 

Adopted new §35.809, concerning Setting Aside an Emergency Order, requires a adopted or issued 

order to be set aside if the hearing record does not show that the order should be affirmed or modified. 

The section is derived from previous §116.418, concerning Setting Aside an Emergency Order. 
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Adopted Subchapter L, concerning On-site Sewage Disposal System, implements TWC, §5.513, which 

authorizes the issuance of these orders. Adopted §35.901, concerning Emergency Order Concerning 

On-site Sewage Disposal System, authorizes the commission to issue an emergency order suspending 

the registration of an installer of an on-site sewage disposal system, regulating an on-site sewage 

disposal system, or both, under certain conditions. 

FINAL REGULATORY IMPACT ANALYSIS 

Staff has reviewed the proposed rulemaking under the regtdatory analysis requirements of Texas 

Government Code, §2001.0225, and has determined that the rulemak.ing is not subject to §2001.0225 

because it does not meet the definition of a "major environmental rule" as defmed in that statute, and it 

does not meet any of the four applicability requirements listed in §2001.0225(a). The rules are not 

major environmental rules because their primary intent is to consolidate already existing emergency and 

temporary order rules under one chapter. In addition, the applicability requirements do not apply 

because the commission is expressly granted authority by TWC, §5.501. The rules also concern 

procedural requirements of the agency, such as delegation of the authority to issue such orders by the 

commission to the executive director, and are a result of the commission's continuing regulatory refonn 

effort. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a takings impact assessment for these rules under Texas Government 

Code, §2007.043. The following is a summary of that assessment. The specific purpose of these rules 

is to implement the statutory provisions of TWC, Chapter 5, Subchapter L. Adoption of these rules 
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will also provide for the delegation of authority to issue emergency orders by the commission to the 

executive director, consolidate agency procedural rules, and make certain processes consistent among 

different agency programs. Adoption of these rules will substantially advance these specific purposes 

by providing specific provisions on these matters. Promulgation and enforcement of these rules will 

not burden private real property which is the subject of the rules because they only establish a new 

procedural mechanism for these types of orders. 

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 

The commission has reviewed the rulemaking and found that the adoption is a rulemaking identified in 

the Coastal Coordination Implementation Rules, 31 TAC §505.11, or will affect an action/authorization 

identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11, and will, therefore, 

require that applicable goals and policies of the Coastal Management Program (CMP) be considered 

during the rulemaking process. 

The commission has prepared a consistency determination for the adopted rules under 31 T AC 

§505.22, and found that the adopted rules are consistent with the applicable CMP goals and policies. 

The following is a summary of that determination. The CMP goal applicable to the adopted rules is the 

goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of 

coastal natural resource areas. CMP policies applicable to the adopted rules include the administrative 

policies and the policies for specific activities related to: construction and operation or solid waste 

treatment, storage, and disposal facilities; discharge of municipal and industrial wastewater to coastal 

areas; nonpoint source water pollution; and appropriations of water. Promulgation and enforcement of 
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these adopted rules is consistent with the applicable CMP goals and policies because the adopted rules 

will establish clear and consistent requirements governing the issuance of emergency and temporary 

orders, as authorized by TWC, Chapter 5, Subchapter L. Under the authority granted by statute, the 

commission may issue emergency or temporary orders to address unforeseen circumstances, such as 

drought conditions or potential catastrophes. Promulgation and enforcement of these rules will not 

violate or exceed any standards identified in the applicable CMP goals and policies because they will 

allow the commission to take steps to mitigate emergency or potential emergency situations, which will 

result in environmental benefits for the entire state, including coastal areas. 

HEARING AND COMMENTERS 

A public hearing regarding the proposed rules was held in Austin on August 3, 1998, and the public 

comment period also closed on August 3, 1998. No oral comments were received at the public 

hearing, but EPA submitted written comments on the proposal. 

ANALYSIS OF TESTIMONY 

EPA expressed concern about how multimedia regulations authorized by the TWC, including the air 

portion in Subchapter K, can be incorporated into the SIP if not authorized by the TCAA. EPA 

suggested that revising 30 TAC § 101.1 by adding a reference to the TWC may be necessary to add the 

emergency order rules to the SIP. 

EPA is correct that Chapter 35 is a compilation of multimedia regulations. These are authorized 

by various statutory authorities, including the TWC and the TCAA. Authority for the rules 
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associated with emergency orders allowing emissions of air contaminants is found in both the 

TWC and the TCAA. The TWC authorizes the commission to protect the state's air quality in 

addition to the authority specifically included in the TCAA, and therefore the TWC and TCAA 

are both appropriate statutory bases for SIP submissions. Therefore, the commission has made 

no change in response to this comment. The commission does not believe that a revision to 

§101.1, concerning Defmitions, is necessary at this time, but the commission will further consider 

this comment in its review of Chapter 101 which is anticipated to begin later this year. 

The remainder of EPA's comments were specifically directed at the air orders in Subchapter K. EPA 

indicated that its understanding is that Chapter 116, Subchapter E has been moved to Chapter 35, 

Subchapter K with no substantive changes. 

Although many of the rules in Subchapter K were moved verbatim from Chapter 116, there are 

provisions in Chapter 35 which are different from the previous rules. Applicable definitions 

have been added to Subchapter A. The authority for the executive director to act is also included 

in Subchapter B. The hearing provisions were moved to Subchapter C. Term limits and 

application fees have been added and are included in Subchapter C. In addition, the requirement 

for notice in a newspaper of general circulation has been added in Subchapter K. 

EPA stated that the rules referenced in Chapter 116, Subchapter E are not now part of the approved 

SIP and that this is implied otherwise in the preamble to the proposed rules. EPA suggested that 'the 

commission clarify that the Chapter 35 rules will be submitted to EPA as a new portion of the SIP. 
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The commission agrees that the sentence used in the preamble gave the impression that 

Page 22 

Subchapter E is currently part of the SIP. Chapter 116, Subchapter E was submitted to the EPA 

as a SIP revision in 1993 and no SIP approval has been given by EPA as of this date. Therefore, 

the commission is withdrawing the 1993 SIP submission of Chapter 116, Subchapter E, and is 

submitting Chapter 35, Subchapters A, B, C, and K, and revised §116.410 as a revision to the 

SIP. The commission has made this clarification. 

EPA expressed concern that allowing a major source or major modification subject to prevention of 

significant deterioration (PSD) or nonattairunent new source review (NNSR) regulations to commence 

construction before a permit is issued may compromise the commission's discretion to make the 

decisions affecting the air quality or maintenance and attainment of the N AAQS. Specifically, the EPA 

wants the commission to ensure that any rule allowing for construction activities prior to issuance of a 

PSD or NNSR permit meets existing EPA policy regarding the scope of preconstruction activities. 

The purpose of the Subchapter K rules is to allow a facility to reconstruct or make significant 

repairs and emit the associated air contaminants necessary for the addition, replacement, or 

repair of facilities or control equipment, necessitated by a catastrophe, where it is essential to 

prevent loss of life, seripus injury; severe property damage, or severe economic loss not 

attributable to the applicant's actions. The review of emergency order applications conducted by 

the commission consists of evaluation of best available control technology and review of potential 

impacts of human health and the environment by use of air dispersion modeling and evaluation 

by the commission's Toxicology and Risk Assessment Section. The review also includes input 
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Page 23 

from the regional office and New Source Review Permits Division in the commission's Office of 

Air Quality, as appropriate. The review will ensure that the construction is subject to current 

and possibly more stringent requirements than were in existence for facilities that are being 

replaced. This technical review process is at least as comprehensive as the conunission's review of 

permit applications. It is possible, although highly unlikely, that construction on the property 

where the catastrophe occurred will result in a significant net emissions increase which meets the 

federal definition of a major source or major modification, as defmed in 40 Code of Federal 

Regulations 51.165, where the purpose of the constructhm is to protect human health and the 

environment. It is critical for the commission to be able to respond to such situations when they 

occur. Therefore, in performing the reviews of the application and issuing orders, the 

commission is not compromising its responsibility to protect air quality or to attain or maintain 

the NAAQS, consistent with applicable portions of the state's control policy. To clarify, the 

commission has added this requirement to §§35.802, 35.804, 35.805, and 35.807. 

EPA expressed concern that these rules could authorize a source to add or replace a unit at a site other 

than the site at which the catastrophe occurred, prior to issuance of a permit and without adequate 

review. 

The commission has made no changes in response to this comment. The statute allows 

construction at another site only under limited conditions. The other property must be owned by 

the owner or operator of the damaged facility; the same intermediates, products, or by-products 

must be produced at this other property; and there will be no more than a de minimis increase in 
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Page 24 

the predicted concentration of the air contaminants at or beyond the property line at such other 

property. These limitations are in addition to the review process discussed previously. The 

review of the application, and issuance of orders, as discussed previously, will ensure that there 

will be no violation of the control strategy or interference with attainment or maintenance of the 

NAAQS. 

EPA expressed concern that the ability of the EPA and citizens to challenge the permit that is 

eventually issued is limited under these rules. 

These rules and the statutes under which they are promulgated do not in any way affect the 

existing requirements for notice of the permit or the opportunity to comment and request a 

contested case hearing under the TWC, TCAA, and the procedural rules of the commission. In 

addition, notice of the emergency order, as well as opportunity for public comment and 

opportunity to challenge the emergency order, are included in Chapter 35. Notice of the 

emergency order must be published in both the Texas Register and a newspaper of general 

circulation in the nearest municipality. The newspaper notice requirement, which was not 

included in previous §116.412, is intended to enhance public notice of these sections. Although 

the statute and emergency orders require an applicant to submit a permit application within 60 

days, there will be cases in which no permit application is filed because the facility may no longer 

be in existence 60 days after the issuance of the emergency order. 

EPA requested that the preamble discuss how the rules in Subchapter K and 30 T AC § 101.11 interact. 
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The conunission notes that there is no direct connection between §101.11, concerning Exemptions 

from Rules and Regulations, and the rules in Subchapter K. Although it is possible that an event 

that is reportable under 30 TAC §101.6 or §101.7, concerning Upset Reporting and 

Recordkeeping Requirements; and Maintenance, Start-up and Shutdown Reporting, 

Recordkeeping, and Operational Requirements, whether or not exempt via §101.11, could be 

associated with an application for an emergency order, the scope of emergency orders is for. 

emissions associated with construction necessitated by a catastrophe. The exemption for certain 

unauthorized emissions in §101.11 covers emissions associated with upsets and maintenance, startup, and shutdown activities. Whether or not an event qualifies for an exemption does not affect 

the issuance of an emergency order. An upset may be caused by a catastrophe, but the emissions 

associated with the repair and replacement of the facility would be subsequent to the upset event. 

Repair or replacement of facilities is beyond the usual interpretation of the term "maintenance," 

which is generally interpreted to mean that the maintenance is performed to meet the requirement 

in §101.7 that all pollution emission capture equipment and abatement equipment be maintained 

in good working order and operated properly during normal facility operations. In addition, no 

construction is authorized by §101.11. 

EPA suggested adding rule language that states that the owner or operator assumes all risks when 

constructing under an emergency order prior to obtaining a permit. 

The statute and §35.805 and §35.806 require that the applicant file an application for a permit 

within 60 days, with no guarantee that such permit will be issued. New §35.22 now places a term 
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Page 26 

limit of up to 180 days on air emergency orders, with one possible 180-day extension, which will 

limit the time in which a facility can operate under the emergency order authorization. The 

commission interprets this as adequate for applicants to understand the risks associated with 

constructing before obtaining a permit and therefore has not made any changes in response to this 

comment. 

EPA recommended that the rules specifically prohibit the owner or operator and the commission from 

considering any information associated with the constructfun under the emergency order in the 

commission's permit review. 

Section 35.806 specifically states that the permit application shall be reviewed and acted upon by 

the executive director without regard to construction activity authorized by the emergency order. 

This means that construction allowed by an emergency order may not be allowed later by the 

permit without additional changes or controls to the facility, and any expense associated with 

those changes will not be considered in the determination of the reasonableness of appropriate 

controls. However, certain information associated with the emergency order, such as emission 

estimates, may also be relevant and should be duplicated in the permit application. The 

commission's independent review of a permit application is based on the information submitted by 

the applicant in the permit application, not what is submitted as an emergency- orde~ application. 
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STATUTORY AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Subchapter L, which establishes the 

Page 27 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5 .1 05, which establishes the commission's authority to 

set policy by rule; §5.235, as amended by Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, 

which establishes fee authority; § 11.148, which establishes the commission's authority to issue orders 

relating to beneficial inflows to affected bays and estuaries. and instream uses; §13.041, which 

establishes the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; 

§26.011, which establishes the commission's authority over water quality in the state; §26.351, which 

establishes the commission's authority concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning petroleum storage tanks, and §27.019, 

which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.0 11, which establishes the commission's 

jurisdiction over municipal solid waste; §361.017, which establishes the commission's jurisdiction over 

industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules 

for the control of solid waste; §366.012, which establishes the commission's authority to establish rules 

for on-site disposal systems; §382.0.17, which establishes the commission's rulemaking authority; 

§382.024 and §382.025 which establish the authority of the commission to issue air orders and what 

factors the commission must consider when issuing such orders; §382.051, which establishes the 

commission's authority to adopt rules concerning air permits; §382.0513, which establishes the 

commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the 
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Page 28 

commission's authority over radioactive substances; §401.051, which establishes the commission's 

authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive substance disposal. 
STAFF 

RECOMMENDATIONS 

Chapter 35
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Page 29 

CHAPTER 35 : EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY 

SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS 

SUBCHAPTER A : PURPOSE, APPLICABILITY, AND DEFINITIONS 

§§35.1-35.3 

1/ t §35.1. Purpose. 

The purpose of this chapter is to implement the cotnmission'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 temporary permits or temporarily suspend or amend 

permit conditions. 

/ §35.2. Applicability. 

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

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

,_/ §35.3. Definitions. 

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

unless the context clearly indicates otherwise. 
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Page 30 

'· (1) Emergency order- An order which must be issued immediately, in order to 

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

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

,/ (2) Severe property damage - Substantial physical damage to property, damage to 

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

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

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

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

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

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

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

Discharge). Specific requirements for a temporary order are specified in the rules in this chapter 

relating to each program. 
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SUBCHAPTER B : AUTHORITY OF EXECUTIVE DIRECTOR 

§§35.11-35.13 

STATUTORY AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Subchapter L, which establishes the 

Page 31 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5.105, which establishes the commission's authority to 

set policy by rule; §5.235, as amended by Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, 

which establishes fee authority; §11.148, which establishes the commission's authority to issue orders 

relating to beneficial inflows to affected bays and estuaries and instream uses; §13.041, which 

establishes the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; 

§26.011, which establishes the commission's authority over water quality in the state; §26.351, which 

establishes the commission's authority concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning petroleum storage tanks, and §27.019, 

which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's 

jurisdiction over municipal solid waste; §361.017, which establishes the commission's jurisdiction over 

industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules 

for the control of solid waste; §366.012, which establishes the commission's authority to establish rules 

for on-site disposal systems; §382.017, which establishes the commission's rulemaking authority; 

§382.024 and §382.025 which establish the authority of the commission to issue air orders and what 
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Page 32 

factors the commission must consider when issuing such orders; §382.051, which establishes the 

commission's authority to adopt rules concerning air pennies; §382.0513, which establishes the 

commission's authority to adopt rules concerning pennit conditions; §401.011, which establishes the 

commission's authority over radioactive substances; §401.051, which establishes the commission's 

authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive substance disposal. 

§35.11. Purpose and Applicability. 

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

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

commission under this chapter. 

§35.12. Authority of Executive Director. 

(a) The executive director may receive applications and issue emergency 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 affinn, modify, or set aside shall be set. If a hearing request is received, 

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

!/",......-·,, ... 

remand the case tot$~ ( 

'J 
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(b) The executive director may authorize, in writing, a representative or representatives to act 

on the executive director's behalf under this chapter. 

§35.13. Eligibility of Executive Director. 

Upon assumption of national pollutant discharge elimination system permit allthority, the . 

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

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

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

title (relating to Eligibility of Executive Director). 
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SUBCHAPTER C : GENERAL PROVISIONS 

§§35.21-35.30 

STATUTORY.AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Subchapter L, which establishes the 

Page 34 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5.105, which establishes the commission's authority to 

set policy by rule; §5.235, as amended by Article VI, Rider 9, House Bill1, 75th Legislature, 1997, 

which establishes fee authority; § 11.148, which establishes the commission's authority to issue orders 

relating to beneficial inflows to affected bays and estuaries and instream uses; §13.041, which 

establishes the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13; 

§26.011, which establishes the commission's authority over water quality in the state; §26.351, which 

establishes the commission's authority concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning petroleum storage tanks, and §27.019, 

which establishes the commission's authority to adopt rules concerning underground injection control. 

Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's 

jurisdiction over municipal solid waste; §361.017, which establishes the commission's jurisdiction over 

industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules 

for the control of solid waste; §366.012, which establishes the commission's authority to establish rules 

for on-site disposal systems; §382.017, which establishes the commission's rulemaking authority; 

§382.024 and §382.025 which establish the authority of the commission to issue air orders and what 
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Page 35 

factors the commission must consider when issuing such orders; §382.051, which establishes the 

commission's authority to adopt rules concerning air permits; §382.0513, which establishes the 

commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the 

commission's authority over radioactive substances; §401.051, which establishes the commission's 

authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and §401.412, which establishes the 

commission's authority concerning licenses for radioactive substance disposal. 

§35.21. Action by Commission or Executive Director. 

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

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

permissive, or prohibitory order; and the commission by temporary order, or the executive director or 

commission by emergency order, may: 

(1) issue a temporary permit; or 

(2) temporarily suspend or amend a permit condition. 
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§35.22. Term and Renewal of Orders. 

Page 36 

Unless otherwise provided by this chapter, an 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 by submittal of a new application. A 

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

§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. 

§35.24. Application for Emergency or Temporary Order. 

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

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

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

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

treated wastewater, as that term is defmed 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 

an emergency or temporary order constitutes prior notice of an anticipated bypass. Filing of the 
... 

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Page 37 

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

person must comply with all bypass requirements under §305.535 of this title (relating to Bypasses 

from TPDES Permitted Facilities). 

(c) The application must: 

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

submitting the application on the applicant's behalf, and the person signing the application on the 

applicant's behalf; 

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

the order; 

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

the order; 

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

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

on which the activity proposed to be allowed, mandated, or prohibited should begin and end; 
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Page 38 

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

prohibited; 

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

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

(d) A copy of the application must be provided to-the division director of the appropriate 

program on behalf of the executive director, and to the public interest counsel, at the same time it is 

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

director for this service. 

(e) All applications shall be signed as follows. 

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

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

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

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

of one or more manufacturing, production, or operating facilities employing more than 250 persons or 

having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars), if 

authority to sign documents has been assigned or delegated to the manager in accordance with 

corporate procedures. Corporate procedures governing authority to sign permit applications may 
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provide for assignment or delegation to applicable corporate positions rather than to specific 

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

Page 39 

(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 or a ranking elected official. For purposes of this 

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

agency, or a senior executive officer having responsibility for the overall operations of a principal 

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

Protection Agency). 

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

or any duly authorized representative; 

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

signing an application shall make the following certification: "I certify under penalty of law that this 

document and all attachments were prepared under my direction or supervision in accordance with a 

system designed to assure that qualified personnel properly gather and evaluate the information 

submitted. Based on my inquiry of the person or persons who manage the system, or those persons 

directly responsible for gathering the information, the information submitted is, to the best of my 
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knowledge and belief, true, accurate, and complete. I am aware there are significant penalties for 

submitting false information, including the possibility of fine and imprisonment for knowing 

violations." 

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

sign the application. 

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

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

applicant's behalf must sign the application. 

§35.25. Notice and Opportunity for Hearing. 

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

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

(b) If an emergency order is issued under this chapter without a he~ring, 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 designee as soon as practicable 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 not later than the tenth day before the date 
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set for the hearing. This notice shall provide that an affected person may request an evidentiary 

hearing on issuance of the emergency order. 

Page 41 

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

on a temporary order shall be given not later than the 20th day before the hearing on the order. This 

notice of hearing shall provide that an affected person may request an evidentiary hearing on issuance 

of the temporary order. 

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

provided as follows. 

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

of the order shall be provided: 

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

accordance with §39. 7 of this title (relating to Mailing Lists) and to persons or agencies identified in 

§39.13 of this title (relating to Mailed Notice); 

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

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

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

notice must be published in the newspaper of general circulation in the county in which the facility is 
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Page 42 

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

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

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

with notice requirements creates a rebuttable presumption of compliance with the requirement to 

publish notice; and 

(C) at least 20 days before the hearing. 

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

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

paragraph (l)(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 is required by Chapter 39 of this title (relating to Public Notice) for notice of a 

hearing on an application for a UIC permit. 

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

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

order, as is required by Chapter 39 of this title for notice of a hearing on an application for a 

nonhazardous waste permit. 
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(5) For hazardous solid waste emergency orders, including UIC emergency orders, 

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

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

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

before issuing the order. 

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

shall be published in a newspaper or newspapers of general circulation in the affected area not later 

than the 15th day before the hearing to all affected persons. 

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

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

aside. 

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

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

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

general circulation in the nearest municipality not later than 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. 
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(11) For radioactive substances emergency orders, notice shall be provided by 

Page 44 

personal service or certified mail to those named in the order not later than the tenth day before the 

hearing to affinn, modify, or set aside. 

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

service or certified mail to those named in the order not later than the tenth day before the hearing to 

affinn, modify, or set aside. 

(13) For petroleum storage 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 affinn, modify, or set aside. 

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

given by certified mail for 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 not later than ten days before the hearing to affirm, modify, or set aside. 
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(f) Statutes or rules requiring notice of hearing or setting procedures for the issuance of 

permits do not apply to a hearing on an emergency order issued under this chapter unless they 

specifically require notice for an emergency order. 

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

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

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

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

§35.26. Contents of Emergency or Temporary Order. 

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

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

facility or location affected by the order; 

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

issuance of the order; 

(3) any findings of facts required under this chapter; 
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(4) a statement of the term 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 a hearing before the commission or its designee; and 

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

§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 an emergency 

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

designee as soon as practicable after the order is issued. 

§35.28. Hearing Requests. 

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

Code, §5.115(a) may request a contested case hearing. 
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(b) The commission is not required to hold a hearing if it determines that the basis of a 

Page 47 

person's request for a hearing as an affected person is not reasonable or is not 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 the law under which the 

application will be considered; 

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

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

activity regulated; 

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

the person; 

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

the person; and 
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(6) for governmental entities, their statutory authority over or interest in the issues 

relevant to the application. 

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

association meets all of the following requirements: 

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

request a hearing in their own right; 

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

organization's purpose; and 

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

individual members in the case. 

§35.29. Procedures for a Hearing. 

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

request, the commission shall either conduct the contested case hearing or remand the matter t~~~~ c;-:-

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

time periods specified in the commission's rules governing contested case hearings. 

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

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

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

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

(2) the test-imony of all witnesses will be under oath, with an opportunity for 

questioning by the commission or judge and cross-examination by the other parties; 

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

evidence and testimony; 

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

temporary order, and will have the right to open and close the evidentiary parts of the hearing. The 

fact that an emergency order was issued without a hearing, standing alone, will not constitute evidence 

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

limit the time for direct questioning or cross-examination of a witness; to 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. 

§35.30. Application Fees. 

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

cost of the required notice. The fee is payable at the time the application is filed, and is not refundable. 
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SUBCHAPTER D : EMERGENCY SUSPENSION OF BENEFICIAL INFLOWS 

§35.101 

STATUTORY AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Subchapter L, which establishes the 

Page 51 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5.105, which establishes the commission's authority to 

set policy by rule; and § 11.148, which establishes the commission's authority to issue orders relating to 

beneficial inflows to affected bays and estuaries and instream uses. 

§35.101. Emergency Suspension of Permit Conditions Relating to Beneficial Inflows to Mfected 

Bays and Estuaries and lnstream Uses. 

(a) The purpose of this section is to set forth the procedures and criteria to be used by the 

commission or the executive director in its review and action on an application by a water right holder 

for the temporary suspension of conditions in the water right relating to beneficial inflows to bays and 

estuaries and instream uses during an emergency, under Texas Water Code, §5.506 and §11.148. The 

emergency relief provided by this section shall only be used when the commission fmds ~hat: 
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(1) emergency conditions exist that present an imminent threat to the public health, 

safety, and welfare and that override the necessity to comply with general procedures and criteria for 

changing the conditions in a water right; and 

(2) there are no feasible, practicable alternatives to the emergency authorization. 

(b) The commission may approve an application filed by the affected water right holder for the 

temporary suspension of all or a part of conditions in a water right relating to beneficial inflows to 

affected bays and estuaries and instream uses if the commission finds that an emergency exists and 

there is no feasible, practicable alternative to the suspension. The burden of demonstrating that the 

application should be granted in accordance with this section is on the applicant. For purposes of this 

section, an emergency is a condition where water supplies available to the applicant have been reduced 

or impaired to such an extent that an imminent peril to the public health, safety, or welfare exists. This 

condition may include, but not be limited to: 

(1) the reduction of public water supplies to critical levels as a result of a severe and 

sustained drought; 

(2) the failure of a dam for a public water supply reservoir; 

(3) the significant contamination of a public water supply; or 
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(4) the failure or destruction of public water supply pipelines or other distribution 

systems. 

(c) The application shall be filed in accordance with and must contain the information required 

by §35.24 of this title (relating to Application for Emergency or Temporary Order), and the following: 

(1) copies of the affected permits, certificates of adjudication, or certified filings; 

(2) a description of the emergency's impact on public health, safety, and welfare; 

(3) a description of all existing and potential water supplies available to the applicant 

and their corresponding uses and costs; 

(4) a summary of the examination made by the applicant of whether feasible, 

practicable alternatives exist to the suspension of permit conditions and reasons why those alternatives 

do not exist; 

(5) the amount of water over and above available supplies that are necessary to 

alleviate emergency conditions; 

(6) copies of the water right holder's water conservation and drought contingency 

plans, if any, and a summary of their status and implementation, including the reasons why any 
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remaining conservation or drought contingency measures provided by the plans have not or will not be 

implemented; 

. (7) a copy of the reservoir operating procedures, if applicable; and 

(8) the proposed conditions and trigger levels for the suspension and reinstatement of 

the releases or other affected pennit conditions. 

(d) A copy of the application must be filed by the applicant with the Texas Parks and Wildlife 

Department (TPWD) at the same time it is filed with the chief clerk. 

(e) Upon receipt of the application, the chief clerk shall provide notice of the time and location 

of the commission's consideration of the application to the TPWD, executive director, and public 

interest counsel as soon as practicable after receipt of the application, but in no event shall the petition 

be considered less than 72 hours after receipt of notice by the TPWD. 

(f) The TPWD, executive director, and public interest counsel shall be provided an opportunity 

to submit comments on the application before the commission action. The applicant shall be afforded 

opportunity to respond to all comments at the time of the commission's consideration of the matter. 
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(g) The commission's order shall set out the extent of any suspension and any special condition 

upon which a suspension is granted. The commission's initial order may also indicate the referral of 

the matter to SOAH for an expedited hearing under subsection (i) of this section. 

(h) Published notice of the initial suspension of water right conditions, if granted, shall be 

provided and paid for by the applicant immediately following a favorable commission initial decision 

by publication in a newspaper or newspapers of general circulation in the affected area. The published 

notice may not be smaller than 96.8 square centimeters or 15 square inches with the shortest dimension 

at least 7.6 centimeters or three inches. Such published notice must contain a summary of the 

information contained in the application as provided by subsection (c) of this section and the time and 

location of the subsequent commission hearing provided by subsection (i) of this section. Such 

publication shall occur not later than seven calendar days before this hearing. For the purposes of this 

rule, the affected area shall be each county, in whole or in part, downstream of the diversion point or 

impoundment authorized under the affected water right. The applicant shall file with the chief clerk a 

publisher's affidavit as proof that such notice was published in accordance with this subsection. 

(i) If the commission initially grants an emergency suspension of permit conditions without a 

hearing, the commission shall hold the hearing required by §35.25 of this title (relating to Notice and 

Opportunity for Hearing) as soon as practicable, but in no event later than 15 days after the initial 

emergency suspension is granted to determine whether to affirm, modify, or set aside the initial 

emergency suspension. Written notice of the hearing shall be provided to the TPWD and affected 

persons not later than ten days before the hearing. 
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(j) An emergency order granted under this section may be for a period of not more than 120 

days if the commission finds that emergency conditions exist that present an imminent threat to public 

health, safety, and welfare and that override the necessity to comply with permit conditions and there 

are no feasible, practicable alternatives to the emergency authorization. This emergency authorization 

may be renewed once for not longer than 60 days. 

(k) In determining whether feasible, practicable alternatives exist to the suspension of water 

right conditions, the commission shall examine: 

(1) the amount and purposes of use for water currently being used by the applicant; 

(2) all evidence relating to the availability of alternative, supplemental water supplies 

to the applicant; and 

(3) the applicant's efforts to curtail water use not essential for the protection of the 

public health, safety, and welfare. 

(I) If the water right holder has a water conservation plan and/or drought contingency plan, the 

suspension of water right conditions may be contingent upon the full implementation of those plans and 

measures corresponding to the staged reduction of releases for existing instream uses and beneficial 

inflows. If the water right holder does not have a water conservation plan and drought contingency 

plan in accordance with Chapter 288 of this title (relating to Water Conservation Plans, Guidelines, and 
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Requirements), the order granting an application under this section shall require the permittee to 

develop and implement those plans within a prescribed time period as provided in the order. 

(m) In granting an application, all existing instream flows shall be passed up to that amount 

necessary to maintain water quality standards for the affected stream. Additional flows necessary to 

protect a species in accordance with the federal Endangered Species Act or other species that are 

considered to be of "high interest" (self-sustaining wild populations that are endemic to the affected 

stream, have significant scientific value, or commercial value) may also be required. 

(n) In order to assist in the preparation and planning for water management during an 

emergency, the commission may provide conditions in a water right necessary for relief consistent with 

applicable portions of this section when the water right is initially granted or subsequently amended. 

These conditions may include, but shall not be limited to, a staged approach to the reduction in the 

pass-through amounts that provide for the pass-through of water for instream uses and bays and 

estuaries when it is available, and allow water to be captured or diverted for the protection of the public 

health, safety, and welfare during an emergency, subject to the protection of stream flows necessary 

under subsection (m) of this section for the maintenance of water quality standards. These conditions 

may also include full implementation by the water right holder of water conservation and drought 

contingency plans as a precondition for obtaining relief. 

(o) lfthe applicant's water right already contains provisions for the temporary, total, or partial 

suspension of permit conditions for the maintenance of instream flows or freshwater inflows to bays 
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and estuaries, further or different relief requested in an application submitted under this section 

Page 58 

generally will be denied unless the applicant can show new or changed circumstances or an emergency 

condition not contemplated when the water right condition was issued. 
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SUBCHAPTER E : EMERGENCY ORDERS FOR UTILITIES 

§35.201, §35.202 

STATUTORY AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Subchapter L, which establishes the 

Page 59 

commission's authority concerning emergency and temporary orders. Other relevant sections of the 

TWC under which the commission takes this action include: §5.103, which establishes the 

commission's general authority to adopt rules; §5.105, which establishes the commission's authority to 

set policy by rule; and §13.041, which establishes the commission's authority to adopt rules to exercise 

its jurisdiction over TWC, Chapter 13. 

§35.201. Emergency Order for Operation of Utility that Discontinues Operation or is Referred 

for Appointment of a Receiver. 

(a) The commission or executive director may appoint a person by emergency order under 

Texas Water Code, §5.507 and §13.4132, to temporarily manage and operate a utility that has 

discontinued or abandoned operations, or which is being referred to the attorney general for the 

appointment of a receiver under TWC, §13.412. 
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(b) An emergency order may be issued under this section under the provisions of §291.142 

and §291.143 of this title (relating to Operation of Utility that Discontinues Operation or is Referred for 

Appointment of a Receiver and Operation of a Utility by a Temporary Manager). 

(c) Notice of an action under this section is adequate if the notice is mailed or hand-delivered 

to the last known address of the utility's headquarters. 

§35.202. Emergency Order for Rate Increase in Certain Situations. 

(a) The conunission or executive director may authorize an emergency rate increase under 

Texas Water Code, §5.508 and §13.4133 for a utility: 

(1) for which a person has been appointed under Texas Water Code, §13.4132; or 

(2) for which a receiver has been appointed under Texas Water Code, §13.412; and 

(3) when the increase is necessary to ensure the provision of continuous and adequate 

services to the utility's customers. 

(b) Notwithstanding the provisions of §35.22 of this title (relating to Term and Renewal of 

Orders), an emergency rate increase may be granted under this section for a period not to exceed 15 
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P..age 61 

calendar months from the date on which the increase takes effect. The commission shall schedule a 

hearing to establish a final rate within that period. 

(c) A request for an emergency rate increase must be filed by the utility in accordance with, 

and must contain the information required by, §35.24 of this title (relating to Application for 

Emergency or Temporary Order) and the following: 

(1) the effective date of the rate increase; ~ 

(2) sufficient information to support the computation of the proposed rates; and 

(3) any other information requested by the executive director. 

(d) The effective date must be the first day of a billing cycle, unless otherwise authorized by 

the commission or the executive director. 

(e) Any emergency rate increase related to charges for actual consumption will be for 

consumption after the effective date. An increase or the portion of an increase which is not related to 

consumption may be billed at the emergency rate on the effective date or the first billing after approval 

by the commission or the executive director. 
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(t) A utility receiving authorization for an emergency rate increase shall provide notice of the 

increase to each ratepayer as soon as possible, but not later than the effective date for the new rate. 

The notice shall contain the following: 

(1) the utility's name and address, the previous rates, the emergency rates, the 

effective date of the rate increase, and the classes of utility customers affected; and 

(2) this statement: "This emergency rate increase has been approved by the Texas 

Natural Resource Conservation Commission under authority granted by the Texas Water Code, §5.508 

and §13.4133, to ensure the provision of continuous and adequate service to the utility's customers. 

The commission is also required to schedule a hearing to establish a final rate within 15 months after 

the date on which the emergency rates take effect. The utility is required to provide notice of the 

hearing to all customers at least 10 days before the date of the hearing. The additional revenues 

collected under this emergency rate increase are subject to refund if the commission finds that the rate 

increase was larger than necessary to ensure continuous and adequate service." 

(g) The utility shall maintain adequate books and records for a period not less than 12 months 

to allow for the determination of a cost of service as set forth in §291.31 of this title (relating to Cost of 

Service). 
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(h) During the pendency of the emergency rate increase, the commission may require that the 

utility deposit all or part of the rate increase into an interest-bearing escrow account as set forth in 

§291.30 of this title (relating to Escrow of Proceeds Received Under Rate Increase). 
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P-age 64 

SUBCHAPTER F : WATER QUALITY E:MERGENCY AND TEMPORARY ORDERS 

§§35.301-35.303 

STATUTORY AUTHORITY 

The new sections are adopted under Texas Water Code (TWC), Chapter 5, Subchapter L, which 

establishes the commission's authority concerning emergency and temporary orders. Other relevant 

sections of the TWC under which the commission takes this action include: §5.103, which establishes 

the commission's general authority to adopt rules; §5.105, which establishes the commission's authority 

to set policy by rule; and §26.011, which establishes the commission's authority over water quality in 

the state. 

§35.301. Emergency and Temporary Orders Authorized. 

The commission may issue temporary orders, and the commission or executive director may 

issue emergency orders, relating to the discharge of waste or pollutants into or adjacent to any water in 

the state under Texas Water Code, §5.509 when necessary to enable action to be taken more 

expeditiously than is otherwise provided by Texas Water Code, Chapter 26 to effectuate the policy and 

purposes of that chapter. 
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§35.302. Application for Emergency and Temporary Orders to Discharge. 

Page 65 

(a) A person desiring to obtain an order to discharge waste into the waters in the state under 

this subchapter shall submit an 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 the following: 

(1) statements that: 

(A) the order is necessary to enable action to be taken more expeditiously than 

is otherwise provided by Texas Water Code, Chapter 26, to effectuate the policy and purposes of that 

chapter; 

(B) the discharge is unavoidable to: 

(i) prevent loss of life, serious injury, or severe property damage; 

(ii) to make necessary and unforeseen repairs to the facility; or 

(iii) to ameliorate serious drought conditions to the extent consistent 

with the requirements of the federal Clean Water Act for authorization of the NPDES program. 
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(C) there is no feasible alternative to the proposed discharge; 

Page 66 

(D) the discharge will not cause significant hazard to human life and health, 

unreasonable damage to property of persons other than the applicant, or unreasonable economic loss to 

persons other than the applicant; and 

(E) the proposed discharge will not present a significant hazard to the uses that 

may be made of the receiving water after the discharge; , 

(2) statements that there are no feasible alternatives to the bypass, such as the use of 

auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of 

equipment downtime. This condition is not satisfied if adequate back-up equipment should have been 

installed in the exercise of reasonable engineering judgment to prevent a bypass from occurring during 

normal periods of equipment downtime or preventive maintenance; 

(3) a statement of the volume and quality of the proposed discharge; 

( 4) an explanation of measures proposed to minimize the volume and duration of the 

discharge; 

(5) an explanation of measures proposed to maximize the waste treatment efficiency of 

units not taken out of service or facilities provided for interim use; and 
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(6) for temporary orders, a list of potentially affected persons in accordance with 

§305.48(a)(2) of this title (relating to Additional Contents for Applications for Wastewater Discharge 

Permits). 

(b) A person desiring to obtain an order to discharge adjacent to waters in the state under this 

subchapter shall submit an application in accordance with §35.24 of this title. The application must 

contain the information required by that section and the following: 

( 1) statements that: 

(A) the order is necessary to enable action to be taken more expeditiously than 

is otherwise provided by Texas Water Code, Chapter 26, to effectuate the policy and purposes of that 

chapter; 

(B) the discharge is unavoidable to: 

(i) prevent loss of life, serious injury, severe property damage, or 

severe economic loss; 

(ii) ameliorate serious drought conditions; or 

(iii) make necessary and unforeseen repairs to a facility; 
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(C) there is no feasible alternative to the proposed discharge; 

Page 68 

(D) the discharge will not cause significant hazard to human life and health, 

unreasonable damage to property of persons other than the applicant, or unreasonable economic loss to 

persons other than the applicant; and 

(E) the proposed discharge will not present a significant hazard to the area of 

or surrounding the discharge; 

(2) a statement of the volume and quality of the proposed discharge; 

(3) an explanation of measures proposed to minimize the volume and duration of the 

discharge; 

(4) an explanation of measures proposed to maximize the waste treatment efficiency of 

units not taken out of service or facilities provided for interim use; and 

(5) for temporary orders, a list of potentially affected persons in accordance with 

§305.48(a)(2) of this title. 
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§35.303. Emergency Orders and Temporary Orders, 

Page 69 

(a) The commission or executive director may issue emergency orders, and the commission 

may issue temporary orders, under this subchapter only if it is found that: 

(1) the order is necessary to enable action to be taken more expeditiously than is 

otherwise provided by Texas Water Code, Chapter 26 to effectuate the policy and purposes of that 

chapter; 

(2) for discharges into water in the state, the discharge is unavoidable to: 

(A) prevent loss of life, serious injury, or severe property damage; or 

(B) to ameliorate serious drought conditions, to the extent consistent with the 

requirements of the federal Clean Water Act for authorization of the NPDES program. 

(3) for discharges adjacent to waters in the state, the discharge is unavoidable to 

prevent loss of life, serious injury, severe property damage, to ameliorate serious drought conditions, 

or to make necessary and unforeseen repairs to a facility; 

(4) there is no feasible alternative to the proposed discharge; 
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(5) the discharge will not cause significant hazard to human life and health, 

Page 70 

unreasonable damage to property of persons other than the applicant, or unreasonable economic loss to 

persons other than the applicant; 

(6) the proposed discharge will not present a significant hazard either to the uses that 

may be made of the receiving water after the discharge, or the area surrounding the discharge; 

(7) the dates on which the proposed discharge will begin and end and the volume and 

quality of the proposed discharge are reasonable and attainable; and 

(8) the measures proposed to minimize the volume and duration of the discharge and 

the measures proposed to maximize the waste treatment efficiency of units not taken out of service or 

facilities provided for interim use are reasonable. 

(b) The issuing authority may issue emergency orders and temporary orders to discharge waste 

or pollutants into water in the state under this subchapter only if the discharge is from an NPDES or 

Texas pollutant discharge elimination system-permitted treatment facility. 
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Page 71 

SUBCHAPTER G: SOLID WASTE AND URANIUM BY-PRODUCT EMERGENCY ORDERS 

§35.401, §35.402 

STATUTORY AUTHORITY 

The new sections are adopted under Texas Water Code (TWC), Chapter 5, Subchapter L, which 

establishes the commission's authority concerning emergency and temporary orders. Other relevant 

sections of the TWC under which the commission takes this action include: §5.103, which establishes 

the commission's general authority to adopt rules; §5.105,- which establishes the commission's authority 

to set policy by rule; and §27.019, which establishes the commission's authority to adopt rules 

concerning underground injection control. Additionally, relevant sections of the HSC include: 

§361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which 

establishes the commission's jurisdiction over industrial hazardous waste; and §361.024, which 

establishes the commission's authority to establish rules for the control of solid waste. 

§35.401. Emergency Orders for Non-hazardous Solid Waste Activities and Underground 

Injection of Uranium By-product Materials. 

(a) The commission or executive director may issue a mandatory or prohibitory emergency 

order under Texas Water Code, §5.512, regarding any activity of solid waste management within its 

jurisdiction, if it determines that an emergency exists requiring immediate action to protect public 

health and safety or the environment. 
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(b) An emergency order issued under this section shall not exceed 90 days, but may be 

renewed once. 

Page 72 

(c) An emergency order affecting an underground injection control permit may be issued for a 

time no longer than that required to prevent the hazard, and may not be renewed. The injection 

authorized by the emergency order may not result in the movement of fluids into underground sources 

of drinking water. 

§35.402. Emergency Actions Concerning Hazardous Waste. 

(a) Whenever there is good reason to believe that the storage, processing, or disposal of 

hazardous waste should be authorized to alleviate an imminent and substantial endangerment to human 

health or safety or the environment; and if there are no alternative, permitted facilities reasonably 

available for the proper management of the waste, the commission or executive director, on its own 

motion, or at the request of the executive director or any other party, may issue an emergency order 

under Texas Water Code, §5.512, authorizing the processing, storage, or disposal of the hazardous 

waste at a nonpermitted facility or at a permitted facility with no authorization under its permit to 

receive the hazardous w.,_ste in need of immediate management. 

(b) In addition to the information required under §35.24 of this title (relating to Application for 

Emergency or Temporary Order) a party, other than the executive director, requesting such an 

emergency order shall include a description of any alternatives investigated. 
Texas Natural Resource Conservation Commission 

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(c) The executive director shall review the request and may require the requesting party to 

supply additional information as may be reasonably required to assist in making the findings set out in 

subsection (a) of this section. 

(d) An emergency order issued under this section: 

(1) shall not exceed 90 days in duration; 

(2) shall clearly specify the hazardous wastes to be received, and the manner and 

location of their processing, storage, or disposal; 

(3) may be terminated by the commission at any time without notice and hearing if it 

determines that termination is appropriate to protect human health or the environment; 

(4) shall incorporate, to the extent possible and not inconsistent with the emergency 

situation, all applicable requirements of this chapter and Chapter 335 of this title (relating to Industrial 

Solid Waste and Municipal Hazardous Waste); and 

(5) for underground injection control permits issued under this section, shall be for no 

longer duration than required to prevent the hazard. The injection authorized may not result in the 

movement of fluids into underground sources of drinking water. 
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(e) Public notice shall accompany the emergency order, shall allow at least 45 days for public 

comment, and shall be given at least 30 days before the hearing on the emergency order. Public notice 

of the order may be given at the same time as public notice and opportunity for comment on the order, 

and the two notices may be combined. The notice shall include: 

(1) the name and address of the applicant; 

(2) the name and location of the hazardous waste management facility; 

(3) a brief description of the wastes involved; 

(4) a brief description of the action authorized or to be authorized, and the reasons for 

authorization; 

(5) the duration of the emergency order; and 

(6) the name and address of the commission (the office granting the order). 
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SUBCHAPTER H: RADIOACTIVE SUBSTANCES AND MATERIALS EMERGENCY 

ORDERS 

§35.501, §35.502 

STATUTORY AUTHORITY 

The new sections are adopted under Texas Water Code (TWC), Chapter 5, Subchapter L, which. 

establishes the commission's authority concerning emergency and temporary orders. Other relevant 

sections of the TWC under which the commission takes thfs action include: §5.103, which establishes 

the commission's general authority to adopt rules; and §5.105, which establishes the commission's 

authority to set policy by rule. Additionally, relevant sections of the Health and Safety Code include: 

§401.011, which establishes the commission's authority over radioactive substances; §401.051, which 

establishes the commission's authority to adopt rules for the control of radiation; §401.056, which 

establishes the commission's authority to issue emergency orders concerning radiation; and §401.412, 

which establishes the commission's authority concerning licenses for radioactive substance disposal. 

§35.501. Emergency Orders Relating to Radioactive Substances. 

(a) When an emergency exists as a result of a matter under the commission's jurisdiction that 

requires immediate action to protect the public health or safety or the environment, the commission or 

executive director may issue an emergency order under Texas Water Code, §5.516, and Texas Health 

and Safety Code, §401.056. 
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(b) The commission or executive director may issue an emergency order directing any action 

or corrective measure needed to correct or remove the threat to public health or safety or the 

environment when the commission or executive director determines that radioactive substances under 

its jurisdiction threatens the public health or safety or the environment and that the licensee managing 

the radioactive substances is unable to remove the threat. 

(c) An emergency order issued under this section takes effect immediately. A person to whom 

an emergency order is directed shall comply immediately with that order. 

(d) The emergency order shall be delivered to the person to whom the order is directed by 

hand delivery or by certified mail, return receipt requested. Affidavit of personal service, proof of 

mailing to the proper address, or the receipt shall be conclusive evidence of service. 

(e) If the commission or executive director issues the emergency order without notice or 

hearing, the commission shall provide the person to whom the order is directed an opportunity for a 

hearing on written request within 30 days of the date of the order. If a hearing is requested, notice of 

the hearing shall be given to the person to whom the order is directed by hand delivery or certified 

mail, return receipt requested, at least ten days before the hearing. A requested hearing shall be held 

not earlier than the 11th day and not later than the 20th day following the date of receipt of the hearing 

request. 
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(f) All provisions of the emergency order shall remain in full force and effect during the 

pendency of a hearing, unless otherwise altered by the commission. At the conclusion of the hearing 

and after the proposal for decision is made, the commission shall make a determination to affirm, 

modify, or revoke the emergency order and may modify, revoke, or suspend the license based on the 

determination made. 

(g) The commission shall use the financial assurance mechanism provided by a licensee to pay 

the costs of actions and corrective measures that are taken ·or that are to be taken under this section. 

The commission shall use this financial assurance mechanism under the procedure set out in Texas 

Health and Safety Code, Chapter 401. 

(h) If the costs of actions and corrective measures require more funds than the financial 

assurance mechanism has provided, the commission shall request the attorney general to seek 

reimbursement from the licensee or person causing the threat. 

(i) The commission shall seek reimbursement through a commission order or shall request the 

attorney general to file suit for reimbursement if the commission uses the funds provided by the 

licensee for security under Texas Health and Safety Code, Chapter 401, to pay for actions or corrective 

measures to remedy spills or contamination by radioactive material resulting from a violation of the 

Texas Radiation Control Act (TRCA), the rules of this chapter, or a license or order issued by the 

commission under the TRCA or this chapter. 
-.. 

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§35.502. Emergency Impoundment of Radioactive Material. 

Page 78 

(a) In the event of an emergency, the commission or the executive director shall have the 

authority to impound or order the impoundment of radioactive material possessed by any person not 

equipped to observe or failing to observe the provisions of the Texas Radiation Control Act (TRCA), 

the rules of Chapter 336 of this title (relating to Radioactive Substance Rules), or a license or order 

issued by the commission under the TRCA or Chapter 336 of this title. 

(b) As determined by the commission, the impounded radioactive material may be: 

(1) returned to a properly licensed owner who did not cause the emergency; 

(2) released as evidence to police or courts; 

(3) returned to a licensee after the emergency conditions have ceased and any 

compliance action is settled; 

(4) sold; 

(5) disposed of at an authorized disposal facility; or 

(6) otherwise appropriately transferred or disposed. 
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(c) If disposition of the impounded radioactive material is necessary to protect the public health 

and safety, no prior notice need be given the owner or possessor. If action is not necessary to protect 

the public health and safety, the commission shall give written notice to the owner and/or possessor of 

the intention to dispose of the material. Notice shall be given by personal service or certified mail, 

return receipt requested. The owner or possessor shall have 30 days from the date of personal service 

or mailing to make a written request for a hearing. If no hearing is requested within that time, the 

commission may take the proposed action. 

(d) Upon disposition of impounded radioactive material, the commission may notify the owner 

and/or possessor of any expense the commission may have incurred during the impoundment and/or 

disposition and request reimbursement. If the amount is not paid within 60 days from the date of 

notice, the commission may request the attorney general to file suit against the owner or possessor for 

the amount requested. If the owner or possessor desires to contest the amount of this charge, he may 

request a hearing. 

(e) If the commission determines from the facts available that impounded radioactive material 

is abandoned, with no reasonable evidence showing the owner or possessor, the commission may make 

such disposition of the material as it sees fit. 
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SUBCHAPTER I: STORAGE TANK EMERGENCY ORDERS 

§35.601 

STATUTORY AUTHORITY 

Page 80 

The new sections are adopted under Texas Water Code (TWC), Chapter 5, Subchapter L, which 

establishes the commission's authority concerning emergency and temporary orders. Other relevant 

sections of the TWC under which the commission takes this action include: §5 .103, which establishes 

the commission's general authority to adopt rules; §5.105,"which establishes the commission's authority 

to set policy by rule; §26.351, which establishes the commission's authority concerning corrective 

action; and §26.354, which establishes the commission's authority to issue emergency orders 

concerning petroleum storage tanks. 

§35.601. Emergency Order Concerning Underground or Aboveground Storage Tanks. 

(a) The commission or executive director may issue orders under Texas Water Code, §5.510, 

to the owner or operator of an underground storage tank (UST) regulated under Texas Water Code, 

Chapter 26, and Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks), if 

it fmds that: 

(1) there is an actual or threatened release of a regulated substance from a UST; and 
Texas Natural Resource Conservation Commission 

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Page 81 

(2) more expeditious corrective action than is otherwise provided for under Texas 

Water Code, Chapter 26 is necessary to protect the public health and safety or the environment. 

(b) An order issued under subsection (a) of this section may prohibit a person from allowing or 

continuing a release or threatened release and may require the person to take the actions necessary to 

eliminate the release or threatened release. 

(c) An emergency order issued under this sectioninust be: 

(1) mailed by certified mail, return receipt requested, to each person identified in the 

order; 

(2) hand delivered to each person identified in the order; or 

(3) on failure of service by certified mail or hand delivery, published one time in the Texas 

Register, and one time in a newspaper with general circulation in each county in which any of the 

persons identified in the order had a last known address. 
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SUBCHAPTER J : IMMINENT AND SUBSTANTIAL ENDANGERMENT 

§35.701 

STATUTORY AUTHORITY 

Page 82 

The new sections are adopted under Texas Water Code (TWC), Chapter 5, Subchapter L, which 

establishes the commission's authority concerning emergency and temporary orders. Other relevant 

sections of the TWC under which the commission takes this action include: §5 .103, which establishes 

the commission's general authority to adopt rules; §5.105;·which establishes the commission's authority 

to set policy by rule. Additionally, relevant sections of the HSC include: §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; and §361.024, which establishes the 

commission's authority to establish rules for the control of solid waste. 

§35. 701. Emergency Orders. 

The commission or the· executive director may issue an emergency administrative order under 

Health and Safety Code, §361.272, in the manner provided by this chapter. 
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SUBCHAPTER K : AIR ORDERS 

§§35.801-35.809 

STATUTORY AUTHORITY 

Page 83 

The new sections are adopted under Texas Water Code (TWC), Chapter 5, Subchapter L, which 

establishes the commission's authority concerning emergency and temporary orders. Other relevant 

sections of the TWC under which the commission takes this action include: §5.103, which establishes 

the commission's general authority to adopt rules; and §5.l'05, which establishes the commission's 

authority to set policy by rule. Additionally, relevant sections of the Health and Safety Code include: 

§382.017, which establishes the commission's rulemaking authority; §382.024 and §382.025 which 

establish the authority of the commission to issue air orders and what factors the commission must 

consider when issuing such orders; §382.051, which establishes the commission's authority to adopt 

rules concerning air permits; and §382.0513, which establishes the commission's authority to adopt 

rules concerning permit conditions. 

§35.801. Emergency Orders Because of Catastrophe. 

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, an act of God, an act of 
.. Texas Natural Resource Conservation Commission 

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Page 84 

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 appurtenances inoperable. 

§35.802. Application for an Emergency Order. 

The owner or operator of a facility, as that term is defined in Texas Health and Safety Code, 

§382.003, desiring to obtain an order under this subchapter shall submit an application in accordance 

with §35.24 of this title (relating to Application for Emersency or Temporary Order). The application 

must contain the information required by that section and the following: 

( 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 catastrophe; 

(2) a description of the catastrophe; 

(3) a statement that there are no practicable alternatives to the proposed construction 

and emissions; 

(4) a statement that the emissions will not cause or contribute to a condition of air 

pollution; 
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(5) a statement that the proposed construction and emissions will occur only 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, providing that no 

more than a de minimis increase will occur in the predicted concentration of the air contaminants at or 

beyond the property line at such other property; 

(6) a description of the proposed construction and the type and quantity of air 

contaminants to be emitted; 

(7) an estimate of the dates on which the proposed construction and emissions will 

begin and end; 

(8) an estimate of the date on which the facility will begin operation; 

(9) a statement 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 

( 10) 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[aliY federal requirement} for new or modified 

l

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sources. ') - <7 c ~·) 'v 0 s· l'r v ,/. ........ 1'--o-c.o--~---·, 
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§35.803. Public Notification. 

Page 86 

The commission or executive director shall publish notice of the issuance of an emergency 

order in the Texas Register as soon as practicable 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 of any hearing shall be published in a newspaper of . 

general circulation in the nearest municipality not later than ten days before the hearing. Notice of the 

issuance and notice of the hearing may be consolidated for publication in the newspaper. 

§35.804. Issuance of Order. 

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

that: 

(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; 

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

(3) the emissions will not cause or contribute to a condition of air pollution; 
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(4) any construction or modification will not interfere with the attainment or 

Page 87 

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

strategy; 

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

(A) at 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 than 

a de minimis increase in the predicted concentration of the air contaminants at or beyond the property 

line at such other property; 

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

construction and emissions are reasonable; and 

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

reasonable. 
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§35.805. Contents of an Emergency Order. 

Page 88 

In addition to the requirements of §35.26 of this title (relating to Contents of Emergency or 

Temporary Order), an emergency order issued under this subchapter shall contain at least the 

following: 

(1) 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; 

(3) authorization for action only at the property where the catastrophe occurred or on 

other property owned by the owner or operator of the damaged facility, which also produces the same 

intermediates, products, or byproducts, provided there will be no more than a de minimis increase in 

the concentration of air contaminants at or beyond the property line at such other property; 

( 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 

(5) a schedule for submission of a complete construction permit application under 

provisions of TCAA, §382.0518. 
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§35.806. Requirement to Apply for a Permit or Modification. 

Page 89 

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; TCAA, §382.0518; and Chapter 116, Subchapter B of this title (relating to New Source 

Review Permits). The application shall be reviewed and acted upon by the executive director without 

regard to 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). 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. 

§35.807. Mfinnation of an Emergency Order. 

The commission shall affirm a proposed or issued order if the applicant shows at the hearing, 

by a preponderance of the evidence, that: 

(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; 

(2) there are no practicable alternatives to the proposed construction and emissions; 
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(3) the emissions will not cause or contribute to a condition of air pollution; 

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

Page 90 

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

strategy; and 

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

(A) at 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 than 

a de minimis increase in the predicted concentration of the air contaminants at or beyond the property 

line at such other property; 

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

construction and emissions are reasonable; and 

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

reasonable. 
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§35.808. Modification of an Emergency Order. 

Page 91 

The commission shall modify a proposed or issued order if the hearing record shows that: 

(1) construction and emissions otherwise precluded under the TCAA 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; 

(2) there is no practicable alternative to such construction and emissions; and 

(3) modification of certain terms of the proposed or issued order is necessary to make 

the order, construction, and/or emissions meet the requirements stated in §35.807 of this title (relating 

to Affirmation of an Emergency Order). 

§35.809. Setting Aside an Emergency Order. 

The commission shall set aside a proposed or issued order if it is not shown, in accordance with 

§35.807 of this title (relating to Affirmation of an Emergency Order) or §35.808 of this title (relating to 

Modification of an Emergency Order), that the order should be either affirmed or modified and adopted 

as modified. 
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SUBCHAPTER L : ON-SITE SEWAGE DISPOSAL SYSTEM 

§35.901 

STATUTORY AUTHORITY 

Page 92 

The new sections are adopted under Texas Water Code (TWC), Chapter 5, Subchapter L, which 

establishes the commission's authority concerning emergency and temporary orders. Other relevant . 

sections of the TWC under which the commission takes this action include: §5.103, which establishes 

the commission's general authority to adopt rules; and §5.105, which establishes the commission's 

authority to set policy by rule. Additionally, relevant sections of the Health and Safety Code include: 

§366.012, which establishes the commission's authority to establish rules for on-site disposal systems. 

§35.901. Emergency Order Concerning On-site Sewage Disposal System. 

The commission may issue an emergency order suspending the registration of the installer of an 

on-site sewage disposal system, regulating an on-site sewage disposal system, or both, if the 

commission finds that an emergency exists and that the public health and safety is endangered because 

of the operation of an on-site sewage disposal system that does not comply with Texas Health and 

Safety Code, Chapter 366, or a ruk adopted under that chapter. 
EVALUATION OF 

TESTIMONY 

Chapter 116 
-.. Texas Natural Resource Conservation Commission 

Chapter 116 -Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

The Texas Natural Resource Conservation Commission (commission) adopts an amendment to 

§116.410, concerning emergency orders. The commission also adopts the repeal of §§116.411-

Page 93 

116.418, concerning emergency orders. The amendment is adopted with changes to the proposed text 

as published in the July 3, 1998, issue of the Texas Register (23 TexReg 6920). The repeals are 

adopted without changes and will not be republished. This action will also be submitted to the United 

States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). 

This action is part of the commission's implementation of Senate Bill (SB) 1876, 75th Legislature, 

1997, which consolidated the commission's emergency and temporary order authority. In addition to 

these amendments and repeals, the commission is concurrently adopting the consolidated agency 

emergency and temporary order provisions under a new Chapter 35, concerning Emergency and 

Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions. The 

commission is also concurrently adopting amendments to emergency and temporary order provisions in 

30 TAC §§291.14, 291.22, 291.142, 291.143, 305.21, 305.29, 305.31, 305.535, 321.80, 321.132, 

321.134, 321.152, 321.158, 321.219, 321.232, 321.239, 321.258, and 334.83, and the repeal of the 

following rules relating to emergency and temporary orders: 30 TAC §§291.10, 291.13, 297.57, 

305.22-305.28, 305.30, and 305.32. The commission is also adopting new 30 TAC §297.57 and 

§305.30. These changes are concurrently published in this edition of the Texas Register. 
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EXPLANATION OF ADOPTED RULES 

Page 94 

SB 1876 consolidated various statutory provisions governing emergency and temporary orders under 

new Texas Water Code (TWC), Chapter 5, Subchapter L. The new statute expressly authorizes the 

commission to issue temporary or emergency mandatory, permissive, or prohibitory orders, and issue 

temporary permits or suspend permit conditions by temporary or emergency order. It allows the 

commission to issue emergency orders with or without notice. Additionally, it authorizes the 

commission to delegate authority to the executive director to receive applications and issue emergency 

orders and authorize representatives to act on his or her behalf. Finally, general application, term, and 

hearing requirements that are applicable to all affected programs are included. The statute will allow 

the commission or the executive director to act expeditiously to address unforeseen circumstances. 

_. TWC, §5.515, as added by SB 1876, expressly authorizes the commission to issue these emergency 

orders. 

The adopted amendments to §116.410, concerning Applicability, add· a reference to new Chapter 35, 

make a conforming change, and delete the definition of a catastrophic event, which now defines 

"catastrophe" in adopted new §35.801, concerning Emergency Orders Because of Catastrophe. This 

amended section will be submitted to the United States Environmental Protection Agency (EPA) as a 

revision to the SIP. The term "catastrophic event" has been changed to "catastrophe" to be consistent 

with the statute. 
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The adopted repeals concern provisions incorporated into the new Chapter 35. These provisions are 

moved in their entirety to new §35.12 and Chapter 35, Subchapter K. In that new subchapter, the 

commission does change notice requirements. Adopted new §35.803 requires the commission or 

executive director to prepare the notice of the emergency order and the hearing to affinn, modify, or 

set aside for the applicant to publish in a newspaper of general circulation in the nearest municipality. 

not later than the tenth day before the hearing, but not later than the tenth day before the hearing. This 

is a change from prior §116.412, which requires only Texas Register notice as soon as practicable after 

issuance. The commission also adopts confonning changes, as well as regulatory refonn changes to 

tenninology that were identified during the commission's review of Chapter 116 under Article IX, 

§ 167, of House Bill 1, 75th Legislature, 1997, the General Appropriations Act. 

FINAL REGULATORY IMPACT ANALYSIS 

Staff has reviewed the proposed rulemaking under the regulatory analysis requirements of Texas 

Government Code, §2001.0225, and has detennined that the rulemalcing is not subject to §2001.0225 

because it does not meet the definition of a "major environmental rule" as defined in that statute, and it 

does not meet any of the four applicability requirements listed in §2001.0225(a). The rules are not 

major environmental rules because their primary intent is to consolidate already existing emergency and 

temporary order rules under one chapter. In addition, the applicability requirements do not apply 

because the commission is expressly granted authority by TWC, §5.501. The rules also concern 

procedural requirements of the agency, such as delegation of the authority to issue such orders by the 
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Page 96 

commission to the executive director, and are a result of the commission's continuing regulatory reform 

effort. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a takings impact assessment for these rules under Texas Government 

Code, §2007.043. The following is a summary of that assessment. The specific purpose of these rules 

is to implement the statutory provisions of TWC, Chapter 5, Subchapter L. Adoption of these rules 

will also provide for the delegation of authority to issue emergency orders by the commission to the 

executive director, consolidate agency procedural rules, and make certain processes consistent among 

different agency programs. Adoption of these rules will substantially advance these specific purposes 

by providing specific provisions on these matters. Promulgation and enforcement of these rules will 

not burden private real property which is the subject of the rules because they only establish a new 

procedural mechanism for these types of orders. 

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 

The commission has reviewed the rulemaking and found that the rules are neither identified in Coastal 

Coordination Act Implementation Rules, 31 TAC §505 .11, relating to Actions and Rules Subject to the 

Coastal Management Program, nor will they affect any action/authorization identified in Coastal 

Coordination Act Implementation Rules, 31 TAC §505.11. Therefore, the adopted rules· are not 

subject to the CMP. 
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HEARING AND COMMENTERS 

Page 97 

A public hearing regarding the proposed rules was held in Austin on August 3, 1998, and the public 

conunent period also closed on August 3, 1998. No oral conunents were received at the public 

hearing, but EPA submitted written conunents on the proposal. 

ANALYSIS OF TESTIMONY 

EPA stated that the rules referenced in Chapter 116, Subchapter E are not now part of the approved 

SIP and that this is implied otherwise in the preamble to the proposed rules. EPA suggested that the 

conunission clarify that the Chapter 35 rules will be submitted to EPA as a new portion of the SIP. 

The commission agrees that the sentence used in the preamble gave the impression that 

Subchapter E is currently part of the SIP. Chapter 116, Subchapter E was submitted to the EPA 

as a SIP revision in 1993 and no SIP approval has been given by EPA as of this date. The 

commission has made this clarification suggested by EPA. 

EPA indicated that its understanding is that Chapter 116, Subchapter E has been moved to Chapter 35, 

Subchapter K with no substantive changes. 

Although many of the rules in Subchapter K were moved verbatim from Chapter 116, there are 

provisions in Chapter 35 which are different from the previous rules. Applicable definitions have 

been added to Subchapter A. The authority for the executive director to act is included in 
Texas Natural Resource Conservation Commission 

Chapter 116- Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

Page 98 

Subchapter B. The hearing provisions are in Subchapter C. Tenn limits and application fees 

have been added and are included in Subchapter C. In addition, the requirement for notice in a 

newspaper of general circulation has been added in Subchapter K. 

STATUTORY AUTHORITY 

The amendment is adopted under TWC, §§5.103, 5.105, and 5.501 and Texas Health and Safety Code, 

§§382.017, 382.051, and 382.0513. Section 5.103 establishes the commission's general authority to 

adopt rules. Section 5.105 establishes the commission's authority to set policy by rule. Section 5.501 

establishes the commission's authority to adopt rules to implement the emergency and temporary order 

provisions of TWC, Chapter 5, Subchapter L. Section 382.017 establishes the commission's authority 

to adopt rules. Sections 382.024 and 382.025 establish the authority of the commission to issue air 

orders and what factors the commission must consider when issuing such orders. Section 382.051 

establishes the authority of the commission to adopt rules concerning permits. Section 3 82.0513 

establishes the authority of the commission to establish certain permit· conditions. 
STAFF 

RECOMMENDATIONS 

Chapter 116
Texas Natural Resource Conservation Commission 

Chapter 116 - Control of Air Pollution by Pennits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

CHAPTER 116 

l?age 99 

CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR 

MODIFICATION 

SUBCHAPTER E : EMERGENCY ORDERS 

§116.410 

§116.410. Applicability. 

The owner or operator of a facility may apply to the commission or the executive director for 

an emergency order under_!exas Water Code. §5.5~5(~~apter 35. of this title (relating to 

Emergency and Temporary Orders and Pennits; Temporary Suspension or Amendment of Pennit 

Conditions), to authorize immediate action for the addition, replacement, or repair of facilities or 

control equipment, and authorizing associated emissions of air contaminants, whenever a catastrophe 

necessitates such construction and emissions otherwise precluded under the Texas Clean Air Act. 
Texas Natural Resource Conservation Commission 

Chapter 116 - Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

SUBCHAPTER E : EMERGENCY ORDERS 

§§116.411-116.418 

STATUTORY AUTHORITY 

Page 100 

The repeals are adopted under Texas Water Code, §§5.103, 5.105, and 5.501 and Texas Health and, 

Safety Code, §§382.017, 382.024, 282.025, 382.051, and 382.0513. Section 5.103 establishes the 

commission's general authority to adopt rules. Section 5.105 establishes the commission's authority to 

set policy by rule. Section 5.501 establishes the commission's authority to adopt rules to implement the 

emergency and temporary order provisions of Texas Water Code, Chapter 5, Subchapter L. Section 

382.017 establishes the commission's authority to adopt rules. Sections 382.024 and 382.025 establish 

the authority of the commission to issue air orders and what factors the commission must consider 

when issuing such orders. Section 382.051 establishes the authority of the commission to adopt rules 

concerning permits. Section 382.0513 establishes the authority of the commission to establish certain 

permit conditions. 

§116.411. Application for an Emergency Order. 

§116.412. Public Notification. 

§116.413. Public Hearing for an Emergency Order. 
Texas Natural Resource Conservation Commission 

Chapter 116 - Control of Air Pollution by Permits 

for New Construction or Modification 

Rule Log No. 97142-035-AD 

§116.414. Afftrmation of an Emergency Order. 

§116.415. Contents of an Emergency Order. 

§116.416. Requirement to Apply for a Permit or Modification. 

§116.417. Modification of an Emergency Order. 

§116.418. Setting Aside an Emergency Order. 

P..age lOl 
• TEXAS NATURAL RESOURCE CONSERVATION COMMISSION 

AN ORDER adopting a revision to the State Implementation Plan concerning 

amendments to 30 TAC Chapters 35 and 116; 

Docket No. 98-0418-RUL. 

\\1IEREAS, on November 18, 1998, the Texas Natural Resource Conservation Commission 

(Commission) considered a revision to the State Implementation Plan (SIP). The amendments to 30 

TAC Chapter 35 and 30 TAC Chapter 116 implement Senate Bill1876, 75th Legislature, 1997, and 

consolidate the Commission's procedural rules and make certain processes consistent among different 

agency programs; and 

\\1IEREAS, pursuant to the Texas Health and Safety Code Annotated, §382.017 (Vernon's 

1992); Texas Government Code Annotated, Subchapter B, Chapter 2001 (Vernon's 1993); and 40 

Code of Federal Regulations, §51.102, the commission staff, after proper notice, conducted a public 

hearing on August 3, 1998, to consider a proposed revision to the SIP; and 

\\1IEREAS, the Commission duly circulated to interested persons, the Regional Administrator 

of the U.S. Environmental Protection Agency (EPA), and all applicable local air pollution control 

agencies, hearing notices of its intended action; and 

\\1IEREAS, interested persons were invited to submit data, views, and recommendations on 

the proposed revisions, either orally or in writing, at the hearing; and 

\\1IEREAS, copies of the proposed amendments were available for public inspection at the 

Commission's central office and regional offices prior to the scheduled hearing; and 

\\1IEREAS, data, views, and recommendations of interested persons were submitted to the 

Commission staff at the hearing and were considered by the Commission staff as reflected in the 

attached analysis of testimony; and 

WHEREAS, the Commission finds that said analysis of testimony includes the names of all 

interested groups or associations offering comment on the amendments and their position concerning 

the proposed amendments; and 

\\·1fEREAS, the Texas.Health and Safety Code Annotated, §382.017, gives the Commission 

authority to make rules and regulations consistent with the policies and purposes of the Texas Clean Air 

Act; and 

WHEREAS, the Commission finds that the reasoned justification and factual bases for the 

proposed amendments are fully set out in the analysis of testimony; and 
I 

\ 

DOCKET NO. 98-0418-RUL 

PAGE TWO 

WHEREAS, the Comffii;sion he;eby certifies that the amendments, as adopted, have been 

reviewed by legal counsel and found to be a valid exercise of the commission's legal authority. 

NOW, THEREFORE, BE IT ORDERED BY THE COMMISSION THAT: 

I. The amendment to the SIP appended to this Order is hereby adopted and promulgated; 

2. On behalf of the Commission, the Chairman should transmit a certified copy of this Order, 

together with the adopted amendments, to the Governor of Texas for submittal to the Regional 

Administrator of the EPA as a proposed revision to the Texas SIP pursuant to the Federal Clean Air 

Act, §110, as amended; and 

3. The Executive Director is instructed to file a certified copy of the adopted amendments to 

30 TAC Chapter 35 and 30 TAC Chapter 116 with the Secretary of State pursuant to the 

Administrative Procedure Act. 

Issued date: NOV 2 3 1998 TEXAS NATURAL RESOURCE 

CONSERVATION COMMISSION 
' .. · -fi?,.- ·: 

For further information, please call: (512) 239-1966 

• • • 

Subchapter C. Consolidated Permit Processing 

30 TAC §§33.41, 33.43, 33.45, 33.47, 33.49, 33.51 

STATUTORY AUTHORITY 

The new sections are adopted under Texas Water Code, 

§5.401 et seq., which establishes the Texas Natural Resource 

Conservation Commission's (commission) authority concerning 

consolidated permit processing. Other relevant-sections under 

which the commission takes this action include: §5.103, which 

establishes the commission's general authority to adopt rules; 

and §5. 105, which establishes the commission's authority to set 

policy by rule. This action is also taken under Texas Health and 

Safety Code, §361.061, which establishes the commission's 

authority to issue permits for solid waste facilities; §361.088, 

which establishes the commission's authority to issue, amend, 

extend, or renew solid waste permits; -and §382.017, which 

establishes the commission's rulemaking authority. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817779 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 17, 1998 

For further information, please call: (512) 239-1966 

• • • 

/Chapter 35. Emergency and Temporary Orders 

and Permits; Temporary Suspension or Amendment of Permit Conditions 

The Texas Natural Resource Conservation Commissio~ (com~ 

mission) adopts new §§35.1-35.3, 35.11-35.13, 35.21-35.30, 

35.101, 35.201, 35.202, 35.301-35.303, 35.401, 35.402, 

35.501, 35.502, 35.601, 35.701, 35.801-35.809, and 35.901, 

concerning emergency and temporary orders. This action im~ 

plements Senate Bill (SB) 1876, 75th Legislature, 1997, and 

continues the commission's effort to consolidate agency procedural rules and make certain processes consistent among 

different agency programs. This action also includes certain 

changes necessary to implement SB 1, 75th Legislature, 1997, 

which are noted as follows. Finally, certain provisions of the 

rules will constitute a revision to the state implementation plan 

(SIP). Specifically, Chapter 35, Subchapters A, B, C, and K 

and revised §116.410 are adopted as changes to the SIP. This 

submission replaces the 1993 submission of the rules in Chapter 116, Subchapter E that are being revised or repealed in 

this action. 

Sections 35.24, 35.302, 35.303, 35.801, 35.802, and 35.804-

35.808 are adopted with changes to the proposed text as 

published in the July 3, 1 998, issue of the Texas Register (23 

TexReg 6899). Sections 35.1-35.3, 35.11-35.13, 35.21-35.23, 

35.25-35.30, 35.101. 35.201, 35.202, 35.301, 35.401, 35.402, 

35.501, 35.502, 35.601, 35.701, 35.803, 35.809, and 35.901 

are adopted without changes and will not be republished . 

The new Chapter 35 is largely derived from previously existing rules. The commission is concurrently adopting amendments to emergency and temporary order provisions in 30 TAG 

§§116.410, 291.1'4, 291.22, 291.142.291.143,305.21. 305.29, 

305.31, 305.535, 321.80, 321.132, 321.134, 321.152, 321.158, 

321.219, 321.232, 321.239, 321.258, and 334.83. The commission is also adopting the repeal of the following current rules relating to emergency and temporary orders: 30 TAG §§ 116.411-

116.418, 291.1 o, 291.13, 297.57, 305.22-305.28, 305.30, and 

305.32. The commission is also adopting new 30 TAG §297.57 

and §305.30. These changes are concurrently published in this 

edition of the Texas Register. 

EXPLANATION OF ADOPTED RULES 

SB 1876 consolidated various statutory provisions governing 

emergency and temporary orders under new Texas Water Code 

(TWC), Chapter 5, Subchapter L. The new statute expressly 

authorizes the commission to issue temporary or emergency 

mandatory, permissive, or prohibitory orders, and issue temporary permits or suspend permit conditions by temporary or 

emergency order. It allows the commission to issue emergency 

orders with or without notice. Additionally, it authorizes the commission to delegate authority to the executive director to receive 

applications and issue emergency orders and authorize representatives to act on his or her behalf. General application, term, 

and hearing requirements applicable to all affected programs 

are included. Finally, specific requirements are listed for specific program areas. The statute will allow the commission or 

the executive director to act expeditiously to address unforeseen circumstances. · 

These adopted rules conform with the provisions provided in 

TWC, Chapter 5, Subchapter L, and provide procedural requirements for implementation. TWC, §5.501, concerning Emergency and Temporary Order or Permit; Temporary Suspension 

or Amendment of Permit Condition, expressly authorizes the 

commission to prescribe rules necessary to carry out and administer Subchapter L. 

The adopted new Chapter 35 contains both general provisions 

that are applicable to all affected programs and program-specific 

requirements. The latter are largely derived from emergency 

and temporary order rules that already exist in other chapters 

within Title 30 of the Texas Administrative Code (for example, 

Chapter 305, Subchapter B). These provisions have been 

derived from current commission rules and placed into the 

new Chapter 35, and the commission is not adopting many 

substantive changes to these rules as they currently exist. 

However, there are some substantive changes being adopted. 

As authorized by TWC, §5.501, the adopted new Chapter 35 

provides for the delegation of authority to issue certain orders to 

the executive director. Additionally, the commission is adopting 

changes to program-specific requirements that result from the 

passage of SBs 1 and 1876. Finally, the commission adopts 

changes to clarify some notice requirements for temporary and 

emergency orders, and is adopting a fee increase. These 

changes are noted where applicable. 

Adopted new Subchapter A, concerning Purpose, Applicability, 

and Definitions, sets forth certain general provisions necessary 

for administration of the chapter. Adopted new §35.1, concerning Purpose, provides that the purpose of the new chapter is 

ADOPTED RULES December 4, 1998 23 TexReg 12413 
to implement the commission's authority under TWC, Chapter 

5, Subchapter L, to issue temporary or emergency mandatory, 

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

conditions. This provision is in accordance with TWC, §5.501, 

which contains the statutory authorization for the issuance of 

these orders. This subchapter will also be submitted to the 

United States Environmental Protection Agency (EPA) as a revision to the SIP. 

Adopted new §35.2, concerning Applicability, provides that the 

chapter applies to any application under TWC, Chapter 5, 

Subchapter L, to issue temporary or emergency mandatory, 

permissive, or prohibitory orders. 

Adopted new §35.3, concerning Definitions, provides definitions 

for emergency order, severe property damage, and temporary 

order. The purpose of this section to provide general definitions 

for the chapter and to help administer the provisions of TWC, 

Chapter 5, Subchapter L. An emergency order is defined as an 

order that must be issued immediately in order to protect human 

health and safety or the environment; or for reasons specified 

in adopted new §35.302, concerning Application for Emergency 

and Temporary Orders to Discharge. The definition of severe 

property damage is the same as that in §305.2, concerning 

Definitions, and is necessary for the requirements governing 

water quality emergency and temporary orders. Temporary 

order is defined as an order of short-duration which must 

be issued as quickly as possible, or which might allow an 

authorization for a short-term activity, setting conditions and 

limitations that will adequately protect human health or safety or 

the environment, or for the reasons specified in new §35.302. 

Adopted new Subchapter B, concerning Authority of Executive 

Director, is comprised of three sections and regards delegation 

to the executive director, as authorized by TWC, §5.501. New 

§35.11, concerning Purpose and Applicability, provides that the 

purpose of Subchapter B is to allow the executive director to 

act on behalf of the commission. This subchapter will also be 

submitted to EPA as a revision to the SIP. 

Adopted new §35.12, concerning Authority of the Executive 

Director, authorizes the executive director, or a representative or 

representatives authorized in writing by the executive director, 

to act on his or her behalf to receive applications for and 

issue emergency orders. The section also provides notice and 

hearing procedures. 

Adopted new §35.13, concerning Eligibility of Executive Director, provides for the authority of the executive director or the 

executive director's representative to act on Texas pollutant discharge elimination system (TPDES) permits or other TPDESrelated approvals if the executive director meets the qualifications specified in §50.41, concerning Eligibility of Executive Director. 

Adopted new Subchapter C, concerning General Provisions, 

provides general requirements for issuing emergency and temporary orders. Adopted new §35.21, concerning Action by Commission or Executive Director, allows the commission or executive director to issue temporary or emergency orders and, by 

temporary or emergency order, to issue a temporary permit or 

temporarily suspend or amend a permit condition. The new 

provisions implement TWC, §5.501. This subchapter will also 

be submitted to EPA as a revision to the SIP. 

Adopted new §35.22, concerning Term and Renewal of Orders, 

provides that unless otherwise noted by a program-specific 

requirement, the term of an emergency order is a maximum 

of 180 days, and that an emergency order may be renewed 

once for an additional period of up to 180 days by submittal of 

a new application. The section also provides that a temporary 

order is limited to a reasonable time specified by the order. This 

provision implements TWC, §5.505, concerning Term of Order. 

Adopted new §35.23, concerning Effect of Orders, provides that 

an emergency or temporary order does not vest any rights in 

the permit holder or recipient and expires in accordance with its 

terms. 

Adopted new §35.24, concerning Application for Emergency 

or Temporary Order, specifies requirements governing applications. The section prescribes the necessary contents of the 

application and requires its filing with the chief clerk. Subsection (b) specifies that an application for an emergency or 

temporary order for a bypass of untreated and partially treated 

wastewater will constitute prior notice of an anticipated bypass, 

as required by §305.535. Section 35.24 also requires copies 

of the application to be provided to the division director of the 

appropriate program on behalf of the executive director, and 

to the public interest counsel, at the same time it is filed with 

the chief clerk. Finally, the section prescribes the manner in 

which applications are to be signed. The new section implements TWC, §5.502, concerning Application for Emergency or 

Temporary Order, and contains procedural requirements necessary for implementation. The section was modified from the 

proposal to reflect the recent delegation of the national pollutant 

discharge elimination system (NPDES) authorization. 

Adopted new §35.25, concerning Notice and Opportunity for 

Hearing, provides the notice and hearing requirements for 

emergency and temporary orders. The section provides that 

an emergency order can be issued with or without notice and/ 

or opportunity for hearing, and that if one is issued without a 

hearing, the order will set a time and place for a hearing to 

affirm, modify, or set aside the order to be held before the 

commission or its designee as soon as practicable after the 

order is issued. In addition, the section provides that unless 

otherwise provided by program-specific requirements, notice of 

a hearing for issuance of an emergency order or to affirm, 

modify, or set aside the order must be given· not later than the 

tenth day before the date set for the hearing and provide that 

an affected person may request an evidentiary hearing on the 

issuance of the emergency order. The section also provides 

that temporary orders require a hearing before their issuance, 

and that notice must be given not later than the 20th day before 

the hearing and provide that an affected person can request 

an evidentiary hearing on issuance of the temporary order. 

Program-specific notice requirements are also set out. Some 

of these notice requirements are not in existing Chapter 305 

and provide clarification of notice requirements. In addition, 

the newspaper notice for air catastrophes is in addition to the 

requirement for notice to be given in the Texas Register. The 

adopted section implements TWC, §5.504. 

Adopted new §35.26, concerning Contents of Emergency or 

Temporary Order, contains the minimum requirements for information that must be included in these types of orders. The contents are derived from the application requirements contained 

in TWC, §5.502. 

23 TexReg 12414 December 4, 1998 Texas Register 
-----~~. -

Adopted new §§35.27-35.29, concerning Hearing Required, 

Hearing Requests, and Procedures for a Hearing, respectively, 

provide for hearings, hearing requests, and procedures for 

hearings on emergency and temporary orders. The rules 

provide that hearings will be conducted in accordance with 

the Administrative Procedure Act and commission rules. The 

hearing procedures implement TWC, §5.115(a), concerning 

Persons Affected in Commission Hearings, and TWC, §5.504, 

concerning Hearing to Affirm, Modify, or Set Aside Order. 

Adopted new §35.30, concerning Application Fees, provides 

that the application fee for an emergency or temporary order 

under this chapter is $500, plus the actual cost of the required 

notice. TWC, §5.501, authorizes the adoption of fees for administering the program. In addition, the increase is authorized 

by TWC, §5.235, which establishes fee authority, and by Rider 

9 under the commission's appropriation in Article VI of HB 1, 

75th Legislature, 1997, the General Appropriations Act. The 

commission is increasing the current tee from $100 to $500 in 

order to more adequately cover commission expenses incurred 

when issuing these orders. 

Adopted new Subchapter D concerns Emergency Suspension 

of Beneficial Inflows. The subchapter implements TWC, §5.506, 

concerning Emergency Suspension of Permit Condition Relating to Beneficial Inflows to Affected Bays and Estuaries and 

lnstream Uses, and contains previously existing requirements 

that have been moved to the new Chapter 35. 

New §35.1 01, concerning Emergency Suspension ol Permit 

Conditions Relating to Beneficial Inflows to Affected Bays and 

Estuaries and lnstream Uses, provides the criteria to be used 

by the commission in its review and action on an application by 

a water right holder for the temporary suspension of conditions 

relating to beneficial inflows to bays and estuaries and instream 

uses during an emergency. The new section is entirely derived 

from previous §297.57, concerning Emergency Suspension of 

Permit Conditions, and the commission adopts no substantive 

changes to the requirements as they existed in Chapter 297. 

Adopted new Subchapter E concerns Emergency Orders for 

Utilities. The subchapter implements TWC, §5.507, concerning 

Emergency Order for Operation of Utility that Discontinues Operation or is Referred for Appointment of Receiver, and §5.508, 

concerning Emergency Order for Rate Increase in Certain Situations. Adopted Subchapter E also includes provisions necessary to implement SB 1, and it includes commission rules from 

Chapter 291 that have been moved to new Chapter 35. While 

largely derived from preexisting commission rules, the commission is also allowing the executive director to issue the orders 

under this subchapter, as authorized by TWC, §5.501. 

Adopted new §35.201, concerning Emergency Order for Operation of Utility that Discontinues Operation or is Referred for 

Appointment of a Receiver, authorizes the commission or executive director to appoint a person by emergency order to 

temporarily manage and operate a utility that has discontinued or abandoned operations, or which has been or is being 

referred to the attorney general for the appointment of a receiver under TWC, § 13.412. This provision implements both 

TWC, §5.508, concerning these types of orders; and TWC, 

§13.412, as amended by SB 1, which expanded the definition of abandonment. The adopted new section also authorizes the issuance of an emergency order in accordance with 

current §291.142, concerning Operation of Utility that Discontinues Operation or is Referred for Appointment of a Receiver, 

and §291.143, concerning Operation of a Utility by a Temporary 

Manager. 

Adopted new §35.202, concerning Emergency Order for Rate 

Increase in Certain Situations, authorizes the commission or 

executive director to authorize an emergency rate increase for 

a utility under certain conditions. Specific requirements in the 

section are entirely derived from §291.22, concerning Notice 

of Intent to Change Rates, that have been moved to the new 

Chapter 35, and the commission adopts no substantive changes 

to those requirements as they previously existed. 

Adopted new Subchapter F concerns Water Quality Emergency 

and Temporary Orders. The subchapter implements TWC, 

§5.509, concerning Temporary or Emergency Order Relating 

to Discharge of Waste or Pollutants, and includes existing 

commission rules that have been moved to the new Chapter 

35 from Chapter 305, Subchapter B. While largely derived from 

those preexisting commission rules, the rules as adopted allow 

the executive director to issue the orders under this subchapter, 

as authorized by TWC, §5.501. The commission takes this 

action in order to provide for the more expeditious issuance 

of emergency and temporary orders. 

Adopted new §35.301, concerning Emergency and Temporary 

Orders Authorized, authorizes the commission or executive 

director to issue emergency orders, and the commission to 

issue temporary orders, for the discharge of waste or pollutants 

into or adjacent to any water in the state when expeditious action 

is necessary. 

Adopted new §35.302, concerning Application for Emergency 

and Temporary Orders to Discharge, contains application requirements that are specific to Subchapter F. In addition to 

the application requirements specified in adopted §35.24, this 

adopted section requires a person desiring to obtain an emergency or temporary order to provide specific information, including a statement that the order is necessary to enable action to 

be taken more expeditiously than is otherwise provided by TWC, 

Chapter 26, to eflectuate the policy and purposes of that chapter, and statements on the nature of the adopted discharge. 

Additionally, the section reflects a change in the law that provides that amelioration of serious drought conditions can be a 

condition necessitating the issuance of an emergency or temporary order to the extent consistent with state assumption of the 

NPDES program. Further, since the state assumed the NPDES 

program on September 15, 1998, the commission has changed 

the language of the proposed rule to delete references to emergency and temporary orders issued prior to assumption of the 

program. 

Adopted new §35.303, concerning Emergency Orders and 

Temporary Orders, provides the conditions under which the 

commission or executive director may issue emergency or 

temporary orders. 

Adopted new Subchapter G concerns Solid Waste and Uranium 

By-product Emergency Orders. It implements TWC, §5.511, 

concerning Emergency Administrative Order Concerning Imminent and Substantial Endangerment, and §5.512, concerning 

Emergency Order Concerning Activity of Solid Waste Management, and contains provisions from existing commission rules. 

While largely derived from preexisting commission rules, the 

commission is allowing the executive director to issue the orders under this subchapter, as authorized by TWC, §5.501. 

ADOPTED RULES December 4, 1998 23 TexReg 12415 
Adopted new §35.401, concerning Emergency Orders for Nonhazardous Solid Waste Activities and Underground Injection of 

Uranium By-product Materials, authorizes the commission or 

executive director to issue a mandatory or prohibitory emergency order regarding any activity of solid waste management 

within its jurisdiction, whether the activity is covered by permit 

or not, if it determines that an emergency exists. The section 

also provides for terms of these orders. The new section was 

derived from §305.29, concerning Emergency Orders for Solid 

Waste Activities. As noted, the commission authorizes the executive director to issue these orders, as allowed by statute. 

In addition, the commission is adding requirements for underground injection control emergency orders previously only set 

out in federal rules. 

Adopted new §35.402 concerns Emergency Actions Concerning Hazardous Waste, and was derived in its entirety from previous §305.30, concerning Emergency Actions Concerning Hazardous Waste. As previously noted, the commission is allowing 

the executive director to issue orders under the adopted section. 

Adopted Subchapter H concerns Radioactive Substances and 

Materials Emergency Orders. The adopted subchapter implements TWC, §5.516, which authorizes the issuance of emergency orders under Health and Safety Code (HSC), §401.056, 

concerning Emergency Orders. 

Adopted new §35.501, concerning Emergency Orders Relating 

to Radioactive Substances, p:ovides for commission or executive director action if it is determined that radioactive substances 

threaten the public health or safety or the environment, and that 

a licensee managing the radioactive substances is unable to 

remove the threat. The section also provides program-specific 

notice and hearing requirements, as well as provisions relating to financial assurance. The section is entirely derived from 

§305.31, concerning Emergency Orders Relating to Radioactive Substances, but the commission does adopt the following 

requirements that were not contained in the preexisting rules. 

The adopted rule provides for action by the executive director. In addition, adopted §35.501 (g), concerning financial assurance, contains changes to what is in previous §305.31 (h), to 

better reflect the relevant statutory language. Additionally, former §305.31 (b) and (c), concerning by- product material, were 

not moved to new §35.501 due to the transfer of jurisdiction 

over those wastes to the Texas Department of Health, under 

SB 1857, 75th Legislature, 1997. The commission adopts no 

other changes to the rules concerning this matter as they currently exist, and the provisions are simply incorporated into the 

new Chapter 35. 

Adopted new §35.502, concerning Emergency Impoundment of 

Radioactive Material, provides for commission and executive director action to impound or order the impoundment of radioactive material possessed by any person not equipped to observe, 

or failing to observe, the provisions of the Texas Radiation Control Act (TRCA), the rules of 30 TAG Chapter 336 (concerning 

Radioactive Substance Rules), or a license or order issued by 

the commission under TRCA or Chapter 336. The section also 

provides for the disposition of the radioactive material. The section is derived from §305.32, concerning Emergency Impoundment of Radioactive Material, and the only change to the rules 

as they previously existed is to provide for action by the executive director. The commission adopts no other changes to the 

rules concerning this matter as they previously existed, and the 

provisions are simply incorporated into the new Chapter 35. 

Adopted new Subchapter I concerns Storage Tank Emergency 

Orders. The subchapter implements TWC, §5.510, which authorizes the issuance of these orders. Adopted §35.601, concerning Emergency Order Concerning Underground or Aboveground Storage Tanks, authorizes the commission or executive 

director to issue an order to the owner or operator of an underground storage tank regulated under TWC, Chapter 26, and 30 

TAG Chapter 334 (concerning Underground and Aboveground 

Storage Tanks). The section contains program-specific requirements concerning the content of the order, and it provides for 

the delivery of the order to people identified in the order. The 

section is derived from §334.83, concerning Emergency Orders. 

The only significant change from the previous rules adopted by 

the commission is to provide for action by the commission, as 

well as the executive director, whereas the existing rule provides only for action by the executive director. Otherwise, the 

commission adopts no other changes to the rules concerning 

this matter as they previously existed, and the provisions are 

simply incorporated into the new Chapter 35. 

Adopted new Subchapter J, concerning Imminent and Substantial Endangerment, implements TWC, §5.511, concerning Emergency Administrative Order Concerning Imminent and 

Substantial Endangerment. Adopted §35. 701, concerning 

Emergency Orders, allows the commission or the executive director to issue an emergency administrative order under HSC, 

§361.272, in the manner prescribed by adopted Chapter 35. 

Adopted new Subchapter K, concerning Air Orders, implements 

TWC, §5.514 and §5.515, concerning Order Issued Under Air 

Emergency and Emergency Order Because of Catastrophe, 

respectively. The adopted rules are derived from Chapter 116, 

Subchapter E, concerning Emergency Orders. The commission 

adopts changes to make the provisions consistent with SB 

1876. This subchapter will also be submitted to EPA as a 

revision to the SIP. It replaces the rules that were found in 

Chapter 116, Subchapter E. 

Adopted new §35.801, concerning Emergency Orders Because 

of Catastrophe, authorizes the commission or executive director to issue an emergency order authorizing 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 action 

that would otherwise be precluded by the Texas Clean Air Act 

(TCAA). Catastrophe is defined. The commission revised the 

term "catastrophic event" to "catastrophe" to be consistent with 

the statute. 

Adopted new §35.802, concerning Application for an Emergency Order, requires the submission of an application in accordance with adopted §35.24. The section also provides the 

information that must be submitted in addition to the general application requirements. The section is derived from §116.411, 

concerning Application for an Emergency Order. The commission clarified the proposed rule language by providing that the 

term "facility," as used in Subchapter K, is the same definition 

of that term in TCAA, §382.003. The requirement that the application include a statement that any construction or modification wifl not interfere with the attainment or maintenance of the 

national ambient air quality standards (NAAQS) or violate applicable portions of the control strategy was added, and is consistent with expectations in previous emergency orders. These 

changes were made in response to comments. In addition, the 

commission revised the term "catastrophic event" to "catastrophe" to be consistent with the statute. 

23 TexReg 12416 December 4, 1998 Texas Register 
-· "' .. 

Adopted new §35.803, concerning Public Notification, is derived 

from §116.412 and contains.changes to rules as they previously 

existed in that section. In addition to the publication of notice in 

the Texas Register, the new section requires the commission or 

executive director to prepare the notice of the emergency order 

and the hearing to affirm, modify, or set aside for the applicant 

to publish in a newspaper of general circulation in the nearest 

municipality not later than the tenth day before the hearing. This 

is a change from prior §116.412, which required only Texas 

Register notice as soon as practicable after issuance, but not 

later than the tenth day before the hearing. The new section 

also contains changes allowing either the commission or the 

executive director to act. 

Adopted new §35.804, concerning Issuance of Order, authorizes the commission or executive director to issue an order 

under this subchapter if certain conditions are found to exist. 

The requirement that the executive director or commission must 

find that any construction or modification will not interiere with 

the attainment or maintenance of the NAAQS or violate applicable portions of the control strategy was added. This change 

was made in response to comment. In addition, the commis· 

sian revised the term "catastrophic event" to "catastrophe" to 

be consistent with the statute. 

Adopted new §35.805, concerning Contents of an Emergency 

Order, prescribes content requirements that are in addition to 

those specified in §35.38. The provisions are derived entirely 

from §116.415, concerning Contents of an Emergency Order. 

The requirement that the order include the requirement that any 

construction or modification will not interfere with the attainment 

or maintenance of the NAAQS or violate applicable portions 

of the control strategy was added. This change was made in 

response to comment. In addition, the commission revised the 

term "catastrophic event" to "catastrophe" to be consistent with 

the statute. 

Adopted new §35.806, concerning Requirement to Apply for a 

Permit or Modification, requires the owner or operator of a fa· 

cility for which an emergency order has been issued to submit 

an application within 60 days of issuance of the order in ac· 

cordance with statute and commission rules. The section is 

derived from the previous §116.416, concerning Requirement 

to Apply for a Permit or Modification. The citation to the re· 

pealed statute, TCAA, §382.063, has been replaced with the 

correct citation to the TWC. 

Adopted new §35.807, concerning Affirmation of an Emergency 

Order, provides the conditions under which the commission af· 

firms a adopted or issued order. The section is derived in its en· 

tirety from §116.414, concerning Affirmation of an Emergency 

Order. The requirement that the order include the requirement 

that any construction or modification will not interfere with the 

attainment or maintenance of the NAAQS or violate applica· 

ble portions of the control strategy was added. This change 

was made in response to comment. In addition, the commis· 

sian revised the term "catastrophic event" to "catastrophe" to 

be consistent with the statute. 

Adopted new §35.808, concerning Modification of an Emergency Order, provides the conditions under which an emergency order must be modified. The section is derived from 

previous §116.417, concerning Modification of an Emergency 

Order. The commission revised the term "catastrophic event" 

to "catastrophe" to be consistent with the statute. 

Adopted new §35.809, concerning Setting Aside an Emergency 

Order, requires a adopted or issued order to be set aside if the 

hearing record does not show that the order should be affirmed 

or modified. The section is derived from previous §116.418, 

concerning Setting Aside an Emergency Order. 

Adopted Subchapter L, concerning On-site Sewage Disposal 

System, implements TWC, §5.513, which authorizes the issuance of these orders. Adopted §35.901, concerning Emer· 

gency Order Concerning On-site Sewage Disposal System, authorizes the commission to issue an emergency order suspend· 

ing the registration of an installer of an on·site sewage disposal 

system, regulating an on-site sewage disposal system, or both, 

under certain conditions. 

FINAL REGULATORY IMPACT ANALYSIS 

Staff has reviewed the proposed rulemaking under the regulatory analysis requirements of Texas Government Code, 

§2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of 

a "major environmental rule" as defined in that statute, and it 

does not meet any of the four applicability requirements listed 

in §2001.0225(a). The rules are not major environmental rules 

because their primary intent is to consolidate already existing 

emergency and temporary order rules under one chapter. In addition, the applicability requirements do not apply because the 

commission is expressly granted authority by TWC, 5.501.The 

rules also concern procedural requirements of the agency, such 

as delegation of the authority to issue such orders by the commission to the executive director, and are a result of the· com· 

mission's continuing regulatory reform effort. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a Takings Impact Assessment 

for these rules under Texas Government Code, §2007.043. The 

following is a summary of that assessment. The specific pur· 

pose of these rules is to implement the statutory provisions of 

TWC, Chapter 5, Subchapter L. Adoption of these rules will also 

provide for the delegation of authority to issue emergency or· 

ders by the commission to the executive director, consolidate 

agency procedural rules, and make certain processes consis· 

tent among different agency programs. Adoption of these rules 

will substantially advance these specific purposes by providing 

specific provisions on these matters. Promulgation and enforce· 

ment of these rules will not burden private real property which 

is the subject of the rules because they only establish a new 

procedural mechanism for these types of orders. 

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 

The commission has reviewed the rulemaking and found that 

the adoption is a rulemaking identified in the Coastal Coordi· 

nation Implementation Rules, 31 TAC §505.11, or will affect an 

action/authorization identified in the Coastal Coordiriation Act 

Implementation Rules, 31 TAC §505.11, and will, therefore, require that applicable goals and policies of the Coastal Management Program (CMP) be considered during the rulemaking 

process. 

The commission has prepared a consistency determination for 

the adopted rules under 31 TAC §505.22, and found that the 

adopted rules are consistent with the applicable CMP goals and 

policies. The following is a summary of that determination. The 

CMP goal applicable to the adopted rules is the goal to protect, 

preserve, restore, and enhance the diversity, quality, quantity, 

ADOPTED RULES December 4, 1998 23 TexReg 12417 
'. 

functions, and values of coastal natural resource areas. CMP 

policies applicable to the adopted rules include the administrative policies and the policies for specific activities related to: 

construction and operation or solid waste treatment, storage, 

and disposal facilities; discharge of municipal and industrial 

wastewater to coastal areas; nonpoint source water pollution; 

and appropriations of water. Promulgation and enforcement of 

these adopted rules is consistent with the applicable CMP goals 

and policies because the adopted rules will establish clear and 

consistent requirements governing the issuance of emergency 

and temporary orders. as authorized by TWC, Chapter 5, Subchapter L. Under the authority granted by statute, the commission may issue emergency or temporary orders to address unforeseen circumstances, such as drought conditions or potential 

catastrophes. Promulgation and enforcement of these rules will 

not violate or exceed any standards identified in the applicable 

CMP goals and policies because they will allow the commission 

to take steps to mitigate emergency or potential emergency situations, which will result in environmental benefits for the entire 

state, including coastal areas. 

HEARING AND COMMENTERS 

A public hearing regarding the proposed rules was held in Austin 

on August 3, 1998, and the public comment period also closed 

on August 3, 1998. No oral comments were received at the 

public hearing, but EPA submitted written comments on the 

proposal. 

ANALYSIS OF TESTIMONY 

EPA expressed concern about how multimedia regulations 

authorized by the TWC, including the air portion in Subchapter 

K, can be incorporated into the SIP if not authorized by the 

TCAA. EPA suggested that revising 30 TAG § 1 01.1 by adding a 

reference to the TWC may be necessary to add the emergency 

order rules to the SIP. 

EPA is correct that Chapter 35 is a compilation of multimedia 

regulations. These are authorized by various statutory authorities, including the TWC and the TCAA. Authority for the rules 

associated with emergency orders allowing emissions of air 

contaminants is found in both the TWC and the TCAA. The 

TWC authorizes the commission to protect the state's air quality in addition to the authority specifically included in the TCAA, 

and therefore the TWC and TCAA are both appropriate statutory bases for SIP submissions. Therefore, the commission has 

made no change in response to this comment. The commission 

does not believe that a revision to §101.1, concerning Definitions, is necessary at this time, but the commission will further 

consider this comment in its review of Chapter 101 which is anticipated to begin later this year. 

The remainder of EPA's comments were specifically directed 

at the air orders in Subchapter K. EPA indicated that its 

understanding is that Chapter 116, Subchapter E has been 

moved to Chapter 35, Subchapter K with no substantive 

changes. 

Although many of the rules in Subchapter K were moved 

verbatim from Chapter 116, there are provisions in Chapter 

35 which are different from the previous rules. Applicable 

definitions have been added to Subchapter A. The authority 

for the executive director to act is also included in Subchapter 

B. The hearing provisions were moved to Subchapter C. Term 

limits and application fees have been added and are included 

in Subchapter C. In addition, the requirement for notice in a 

newspaper of general circulation has been added in Subchapter 

K. 

EPA stated that the rules referenced in Chapter 116, Subchapter 

E are not now part of the approved SIP and that this is 

implied otherwise in the preamble to the proposed rules. EPA 

suggested that the commission clarify that the Chapter 35 rules 

will be submitted to EPA as a new portion of the SIP. 

The commission agrees that the sentence used in the preamble 

gave the impression that Subchapter E is currently part of the 

SIP. Chapter 116, Subchapter E was submitted to the EPA as 

a SIP revision in 1993 and no SIP ap.proval has been given by 

EPA as of this date. Therefore, the commission is withdrawing 

the 1993 SIP submission of Chapter 116, Subchapter E, and is 

submitting Chapter 35, Subchapters A, B, C, and K, and revised 

§116.410 as a revision to the SIP. The commission has made 

this clarification. 

EPA expressed concern that allowing a major source or major 

modification subject to prevention of significant deterioration 

(PSD) or nonattainment new source review (NNSR) regulations 

to commence construction before a permit is issued may 

compromise the commission's discretion to make the decisions 

affecting the air quality or maintenance and attainment of the 

NAAQS. Specifically, the EPA wants the commission to ensure 

that any rule allowing for construction activities prior to issuance 

of a PSD or NNSR permit meets existing EPA policy regarding 

the scope of preconstruction activities. 

The purpose of the Subchapter K rules is to allow a facility to 

reconstruct or make significant repairs and emit the associated 

air contaminants necessary for the addition, replacement, or. 

repair of facilities or control equipment, necessitated by a 

catastrophe, where it is essential to prevent loss of life, serious 

injury, severe property damage, or severe economic loss not 

attributable to the applicant's actions. The review of emergency 

order applications conducted by the commission consists of 

evaluation of best available control technology and review of 

potential impacts of human health and the environment by use 

of air dispersion modeling and evaluation by the commission's 

Toxicology and Risk Assessment Section. The review also 

includes input from the regional office and New Source Review 

Permits Division in the commission's Office of Air Quality, as 

appropriate. The review will ensure that the construction is 

subject to current and possibly more stringent requirements 

than were in existence for facilities that are being replaced. 

This technical review process is at least as comprehensive as 

the commission's review of permit applications. It is possible, 

although highly unlikely, that construction on the property 

where the catastrophe occurred will result in a significant net 

emissions increase which meets the federal definition of a major 

source or major modification, as defined in 40 Code of Federal 

Regulations 51.165, where the purpose of the construction is to 

protect human health and the environment. It is critical for the 

commission to be able to respond to such situations when they 

occur. Therefore, in performing the reviews of the application 

and issuing orders, the commission is not compromising its 

responsibility to protect air quality or to attain or maintain the 

NAAQS, consistent with applicable portions of the state's control 

policy. To clarify, the commission has added this requirement 

to §§35.802, 35.804, 35.805, and 35.807. 

EPA expressed concern that these rules could authorize a 

source to add or replace a unit at a site other than the site 

23 TexReg 12418 December 4, 1998 Texas Register 
'. 

at which the catastrophe occurred, prior to issuance of a permit 

and without adequate review. 

The commission has made no changes in response to this 

comment. The statute allows construction at another site only 

under limited conditions. The other property must be owned 

by the owner or operator of the damaged facility; the same 

intermediates, products, or by-products must be produced at 

this other property; and there will be no more than a de minimis 

increase in the predicted concentration of the air contaminants 

at or beyond the property line at such other property. These 

limitations are in addition to the review process discussed 

previously. The review of the application, and issuance of 

orders, as discussed previously, will ensure that there will be no 

violation of the control strategy or interference with attainment 

or maintenance of the NAAQS. 

EPA expressed concern that the ability of the EPA and citizens 

to challenge the permit that is eventually issued is limited under 

these rules. 

These rules and the statutes under which they are promulgated 

do not in any way affect the existing requirements for notice 

of the permit or the opportunity to comment and request 

a contested case hearing under the TWC, TCAA, and the 

procedural rules of the commission. In addition, notice of the 

emergency order, as well as opportunity for public comment and 

opportunity to challenge the emergency order, are included in 

Chapter 35. Notice of the emergency order must be published in 

both the Texas Register and a newspaper of general circulation 

in the nearest municipality. The newspaper notice requirement, 

which was not included in previous §116.412, is intended to 

enhance public notice of these sections. Although the statute 

and emergency orders require an applicant to submit a permit 

application within 60 days, there will be cases in which no permit 

application is filed because the facility may no longer be in 

existence 60 days after the issuance of the emergency order. 

EPA requested that the preamble discuss how the rules in 

Subchapter K and 30 TAG § 1 01.11 interact. 

The commission notes that there is no direct connection between §101.11, concerning Exemptions from Rules and Regulations, and the rules in Subchapter K. Although it is possible that an event that is reportable under 30 TAG §1 01.6 or 

§1 01.7, concerning Upset Reporting and Recordkeeping Requirements; and Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements, whether or 

not exempt via §101.11, could be associated with an application for an emergency order, the scope of emergency orders 

is for emissions associated with construction necessitated by a 

catastrophe. The exemption for certain unauthorized emissions 

in §101.11 covers emissions associated with upsets and maintenance, start-up, and shutdown activities. Whether or not an 

event qualifies for an exemption does not affect the issuance of 

an emergency order. An upset may be caused by a catastrophe, 

but the emissions associated with the repair and replacement 

of the facility would be subsequent to the upset event. Repair 

or replacement of facilities is beyond the usual interpretation of 

the term "maintenance," which is generally interpreted to mean 

that the maintenance is performed to meet the requirement in 

§101.7 that all pollution emission capture equipment and abatement equipment be maintained in good working order and operated properly during normal facility operations. In addition, no 

construction is authorized by § 101.11. 

EPA suggested adding rule language that states that the owner 

or operator assumes all risks when constructing under an 

emergency order prior to obtaining a permit. 

The statute and §35.805 and §35.806 require that the applicant 

file an application for a permit within 60 days, with no guarantee 

that such permit will be issued. New §35.22 now places a 

term limit of up to 180 days on air emergency orders, with one 

possible 180-day extension, which will limit the time in which a 

facility can operate under the emergency order authorization. 

The commission interprets this as adequate for applicants 

to understand the risks associated with constructing before 

obtaining a permit and therefore has not made any changes 

in response to this comment. 

EPA recommended that the rules specifically prohibit the owner 

or operator and the commission from considering any information aSsociated with the construction under the emergency order 

in the commission's permit review. 

Section 35.806 specifically states that the permit application 

shall be reviewed and acted upon by the executive director without regard to construction activity authorized by the emergency 

order. This means that construction allowed by an emergency 

order may not be allowed later by the permit without additional 

changes or controls to the facility, and any expense associated 

with those changes will not be considered in the determination 

of the reasonableness of appropriate controls. However, certain information associated with the emergency order, such as 

emission estimates, may also be relevant and should be duplicated in the permit application. The commission's independent 

review of a permit application is based on the information submitted by the applicant in the permit application, not what is 

submitted as an emergency order application. 

Subchapter A. Purpose, Applicability, and Definitions 

30 TAC §§35.1-35.3 

STATUTORY AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commission takes this action 

include: §5.103, which establishes the commission's general 

authority to adopt rules; §5.1 05, which establishes the commission's authority to set policy by rule; §5.235, as amended by 

Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, which 

establishes fee authority; § 11.148, which establishes the commission's authority to issue orders relating to beneficial inflows 

to affected bays and estuaries and in stream uses; § 13.041, 

which establishes the commission's authority to adopt rules to 

exercise its jurisdiction over TWC, Chapter 13; §26.011, which 

establishes the commission's authority over water quality in the 

state; §26.351, which establishes the commission's authority 

concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning 

petroleum storage tanks, and §27.019, which establishes the 

commission's authority to adopt rules concerning underground 

injection control. Additionally, relevant sections of the HSC include: §361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority toestablish rules for the control of solid waste; §366.012, which esADOPTED RULES December 4, 1998 23 TexReg 12419 
. '. 

tablishes the commission's authority to establish rules for onsite disposal systems; §382.017, which establishes the com· 

mission's rulemaking authority; §382.024 and §382.025 which 

establish the authority of the commission to issue air orders and 

what factors the commission must consider when issuing such 

orders; §382.051, which establishes the commission's authority 

to adopt rules concerning air permits; §382.0513, which estab· 

lishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the commission's 

authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and 

§401.412, which establishes the commission's authority concerning licenses for radioactive substance disposal. 

This agency hereby certifies that the adoption has been re· 

viewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817745 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter B. Authority of Executive Director 

30 TAC §§35.11-35.13 

STATUTORY AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Sub· 

chapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commission takes this action 

include: §5.1 03, which establishes the commission's general 

authority to adopt rules; §5.1 05, which establishes the commis· 

sion's authority to set policy by rule; §5.235, as amended by 

Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, which 

establishes fee authority; §11.148, which establishes the com· 

mission's authority to issue orders relating to beneficial inflows 

to affected bays and estuaries and instream uses; § 13.041, 

which establishes the commission's authority to adopt rules to 

exercise its jurisdiction over TWC, Chapter 13; §26.011, which 

establishes the commission's authority over water quality in the 

state; §26.351, which establishes the commission's authority 

concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning 

petroleum storage tanks, and §27.019, which establishes the 

commission's authority to adopt rules concerning underground 

injection control. Additionally, relevant sections of the HSC in· 

elude: §361.011, which establishes the commission's jurisdic· 

lion over municipal solid waste; §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority to establish rules for the control of solid waste; §366.D12, which es· 

tablishes the commission's authority to establish rules for onsite disposal systems; §382.017, which establishes the com· 

mission's rulemaking authority; §382.024 and §382.025 which 

establish the authority of the commission to issue air orders and 

what factors the commission must consider when issuing such 

orders; §382.051, which establishes the commission's authority 

to adopt rules concerning air permits; §382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the commission's 

authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and 

§401.412, which establishes the commission's authority con· 

earning licenses for radioactive substance disposal. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817746 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information. please call: (512) 239-1966 

• • • 

Subchapter C. General Provisions 

30 TAC §§35.21-35.30 

STATUTORY AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commission takes this action 

include: §5.1 03, which establishes the commission's general 

authority to adopt rules; §5.1 05, which establishes the commis· 

sion's authority to set policy by rule; §5.235, as amended by 

Article VI, Rider 9, House Bill 1, 75th Legislature, 1997, which 

establishes fee authority; §11.148, which establishes the com· 

mission's authority to issue orders relating to beneficial inflows 

to· affected bays and estuaries and instream uses; § 13.041, 

which establishes the commission's authority to adopt rules to 

exercise its jurisdiction over TWC, Chapter 13; §26.011, which 

establishes the commission's authority over water quality in the 

state; §26.351, which establishes the commission's authority 

concerning corrective action; §26.354, which establishes the 

commission's authority to issue emergency orders concerning 

petroleum storage tanks, and §27.019, which establishes the 

commission's authority to adopt rules concerning underground 

injection control. Additionally, relevant sections of the HSC include: §361 .011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

§361.024, which establishes the commission's authority to establish rules for the control of solid waste; §366.D12, which es· 

tablishes the commission's authority to establish rules for onsite disposal systems; §382.017, which establishes the com· 

mission's rulemaking authority; §382.024 and §382.025 which 

establish the authority of the commission to issue air orders and 

what factors the commission must consider when issuing such 

orders; §382.051, which establishes the commission's authority 

23 TexReg 12420 December 4, 1998 Texas Register 
to adopt rules concerning air permits; §382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the commission's 

authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control of radiation; §401.056, which establishes the commission's 

authority to issue emergency orders concerning radiation; and 

§401.412, which establishes the commission's authority concerning licenses for radioactive substance disposal. 

§35.24. Applicalionfor Emergency or Temporary Order. 

(a) A person wanting an emergency or temporary order under 

this chapter shall submit a written application to the chief clerk. 

Unless the person submitting the application is the executive director 

or the executive director's representative, the application must be 

sworn. 

(b) If a person seeks an emergency or temporary 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 an emergency or temporary 

order constitutes prior notice of an anticipated bypass. Filing of the 

application for bypass shall be done, if possible, at least ten days 

before the date of the bypass. The person must comply with all 

bypass requirements under 9305.535 of this title (relating to Bypasses 

from TPDES Permitted Facilities). 

(c) The application must: 

(I) state the mme, address, and telephone number of the 

applicunt, 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 llndings required under this 

chapter; 

(5) estimate the dates on which the proposed order should 

begjn and end imd the dates on which the activity proposed to be 

allowed, mandated, or prohibited should begin and end; 

(6) describe the action sought and the activity proposed 

to be allowed, mandated, or prohibited; 

(7) include any other statement or information required 

by lhis chapter; and 

(R) be accompanied by payment of any application fees 

required by the commission. 

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

director of the appropriate program on behalf of the executive director, 

and to the public interest counsel, at the same time it is filed 

with the chief clerk. The division director may designate another 

representative of the executive director for this service. 

(c) All applications shall be signed as follows. 

(I) For a corporation. the application shall be signed by 

a responsible corporate officer. For purposes of this paragraph, a 

responsible corporate officer means a president, secretary, treasurer, 

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

function, or any other person who performs similar policy or decisionmaking functions for the corporation; or the manager of one or 

more manufacturing, production, or operating facilities employing 

more than 250 persons or having gross ;:mnual sales or expenditures 

exceeding $25 million (in second-quarter J980 dollars), if authorjty 

to sign documents has been assigned or delegated to the manager 

in accordance with corporate procedures. Corporate procedures 

governing authority to sign permit applications may provide for 

assignment or delegation to applicable corporate positions rather than 

to specific individuals. Documentation of authority to sign must be 

provided with the application. 

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

(3) For a municipality, state, federal, or other public 

agency, the application shall be signed by either a principal executive 

officer or a ranking elected official. For purposes of this paragraph, 

a principal executive ortlcer of a federal agency includes the chief 

executive officer of the agency, or J. senior executive officer having 

responsibility for the overall operations of a principal geographic 

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

EnvironmcntaJ Protection Agency). 

(4) For the executive director, the application shall be 

signed by the executive director or any duly authorized representative; 

(5) A person other than the executive director or the 

executive director's representative signing an application shall make 

the Col/owing certification: "I certify under penalty of law that this 

document and all attachments were prepared under my direction or 

supervision in accordance with a system designed to assure that 

qualitlcd personnel properly gather and evaluate the information 

submitted. Based on my inquiry of the person or persons who 

manage the system, or those persons directly responsible for gathering 

the information, the information submitted is, to the best of my 

knowledge and belief, true, accurate, and complete. I am aware there 

arc significant penalties for submitting false information. including 

the possibility of fine and imprisonment for knowing violations." 

(6) For hazardous solid waste applications, the owner and 

operator of a facility must sign the application. 

(7) For radioactive material license applications under 

Chapter 336 of this title (relating to Radioactive Substance Rules), the 

applicant or person duly authorized to act for and on the applicant's 

behalf must sign the application. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Ollice ol the Secretary of State on November 20, 

1998. 

TRD-9817747 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1 998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter D. Emergency Suspension of Beneficial Inflows 

30 TAC §35.1 01 

STATUTORY AUTHORITY 

ADOPTED RULES December 4, 1998 23 TexReg 12421 
The new section is adopted under TWC, Chapter 5, Subchapter 

L, which establishes the commission's authority concerning 

emergency and temporary orders. Other relevant sections of 

the TWC under which the commission takes this action include: 

§5.103, which establishes the commission's general authority 

to adopt rules; §5.105, which establishes the commission's 

authority to set policy by rule; and §11.148, which establishes 

the commission's authority to issue orders relating to beneficial 

inflows to affected bays and estuaries and instream uses. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817748 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 1 O, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter E. Emergency Orders for Utilities 

30 TAC §35.201, §35.202 

STATUTORY AUTHORITY 

The new sections are adopted under TWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commission takes this action 

include: §5.1 03, which establishes the commission's general 

authority to adopt rules; §5.1 05, which establishes the com· 

mission's authority to set policy by rule; and §13.041, which 

establishes the commission's authority to adopt rules to exercise its jurisdiction over TWC, Chapter 13. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of 1he Secretary of State on November 20, 

1998. 

TRD-9817749 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter F. Water Quality Emergency and 

Temporary Orders 

30 TAC §§35.301-35.303 

STATUTORY AUTHORITY 

The new sections are adopted under Texas Water Code (TWC), 

Chapter 5, Subchapter L, which establishes the commission's 

authority concerning emergency and temporary orders. Other 

relevant sections of the TWC under which the commission takes 

this action include: §5.103, which establishes the commission's 

general authority to adopt rules; §5.1 05, which establishes the 

commission's authority to set policy by rule; and §26.011, which 

establishes the commission's authority over water quality in the 

state. 

.~35.302. Application for Emerxency and Temporary Orders to Discharge. 

(a) A person desiring to obtain an order to discharge waste 

into the waters in the state under this subchapter shall submit 

an 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 the 

following: 

(I) statements that: 

(A) the order is necessary to enable action to be taken 

more expeditiously than is otherwise provided by Texas Water Code, 

Chapter 26, to effectuate the policy and purposes of that chapter; 

(l3) the discharge is unavoidable to: 

(i) prevent loss of life, serious injury, or severe 

property damage; 

(ii) to make necessary and unforeseen repairs to the 

facility; or 

(iii) to ameliorate serious drought conditions to the 

extent consistent with the requirements of the federal Clean Water 

Act for authorization of the NPDES program. 

(C) there is no feasible alternative to the proposed 

discharge: 

(D) the discharge will not cause significant hazard to 

human life and health, unrca~onablc damage to property of pcr~ons 

other than the applicant, or unreasonable economic loss to persons 

other than the applicant; and 

(E) the proposed discharge will not present a significant hazard to the uses that may be made of the receiving water after 

the discharge: 

(2) statements that there are no feasible alternatives to the 

bypass, such as the usc of auxiliary treatment facilities. retention of 

untreated wastes, or maintenance during normal periods of equipment 

downtime. This condition is not satislied if adequate hack-up 

equipment should have heen installed in the exercise of reasonable 

engineering judgment to prevent a bypass from occurring during 

normal periods of equipment downtime or preventive maintenance: 

(3) a statement of the volume and quality of the proposed 

discharge: 

(4) an explanation of measures proposed to minimize the 

volume and duration of the discharge: 

(5) an explanation of measures proposed to maximize the 

waste treatment efficiency of units not taken out of service or facilities 

provided for interim usc: and 

(6) for tcmpor~try orders, u list of potentially affected 

persons in accordance with §305.48(a)(2) of this title (relating 

to Additional Contents for Applications for Wastewater Discharge 

Permits). 

(b) A person desiring to obtain un order to discharge adjacent 

to waters in the state under this subchapter shall submit an application 

23 TexReg 12422 December 4, 1998 Texas Register 
in accordance with ~35.24 of this title. The application must contain 

the information required by that section and the following: 

(I) statements that: 

(A) the order is necessary to enable action to be taken 

more expeditiously than is otherwise provided by Texas Water Code, 

Chapter 26, to ctlCctuate the policy and purposes of that chapter: 

(B) the discharge is unavoidable to: 

(i) prevent loss of life, serious injury, severe property damage, or severe economic loss: 

(if) ameliorate serious drought conditions; or 

(iii) make necessary and unforeseen repairs to a 

facility; 

(C) there is no feasible alternative to the proposed 

dischJrge; 

(D) the discharge will not cause significant hazard to 

human life and health, unreasonable damage to property of persons 

other than the applicant, or unreasonable economic loss to persons 

other than the applicant; and 

(E) the proposed discharge will nol present a significant hazard to the area of or surrounding the discharge; 

(2) a statement of the volume and quality of the proposed 

discharge; 

(3) an explanation of measures proposed to minimize the 

volume and duration of the discharge; 

(4) an explanation of measures proposed to maximize the 

waste treatment eiTiciency of units not taken out of service or facilities 

provided for interim use; and 

(5) for temporary orders, a list of potentially affected 

persons in accordance with ~305.48(a)(2) of this title. 

§35.303. Emerf?ency Orders and Temporary Orders. 

(a) The commission or executive director may issue emergency orders, ami the commission may issue temporary orders, under 

this subchapter only if it is found that: 

(l) the order is necessary to enable action to be taken 

more expeditiously than is otherwise provided by Texas Water Code, 

Chapter 26 to effectuate the policy and purposes of that chapter; 

(2) . for discharges into water in the state, the discharge is 

unavoidable to: 

(A) prevent loss of life, serious injury, or severe 

property damage; or 

(B) to ameliorate serious drought conditions, to the 

extent consistent with the requirements of the federal Clean Water 

Act for authorization of the NPDES program. 

(3) for discharges adjacent to waters in the state, the 

discharge is unavoidable to prevent loss of life, serious injury, severe 

property damage, to ameliorate serious drought conditions, or to make 

necessary and unforeseen repairs to a facility; 

(4) there is no feasible alternative to the proposed discharge; 

(5) the discharge will not cause significant hazard to 

human life and health, unreasonable damage to property of persons 

other than the applicant, or unreasonable economic loss to persons 

other than the applicant; 

(6) the proposed discharge will not present a significant 

hazard either to the uses th<:tt may be made of the receiving water 

after the discharge, or the area surrounding the discharge; 

(7) the dates on which the proposed discharge will begin 

and end and the volume and quality of the proposed discharge are 

reasonable and attainable; and 

(8) the measures proposed to minimize the volume and 

duration of the dist:harge and the measures proposed to maximize 

the waste treatment efficiency of units not taken out of service or 

facilities provided for interim use are reasonable. 

(b) The issuing authority may issue emergency orders and 

temporary orders to discharge waste or pollutants into water in the 

state under this subchapter only if the discharge is from an NPDES 

or Texas pollutant discharge elimination system-permitted treatment 

facility. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817750 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter G. Solid Waste and Uranium ByProduct Emergency Orders 

30 TAC §35.401, §35.402 

STATUTORY AUTHORITY 

The new sections are adopted under Texas Water Code (lWC), 

Chapter 5, Subchapter L, which establishes the commission's 

authority concerning emergency and temporary orders. Other 

relevant sections of the TWC under which the commission takes 

this action include: §5.1 03, which establishes the commission's 

general authority to adopt rules; §5.1 05, which establishes the 

commission's authority to set policy by rule; and §27.019, which 

establishes the commission's authority to adopt rules concerning underground injection control. Additionally, relevant sections 

of the HSC include: §361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which 

establishes the commission's jurisdiction over industrial hazardous waste; and §361.024, which establishes the commission's authority to establish rules for the control of solid waste. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817751 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

ADOPTED RULES December 4, 1998 23 TexReg 12423 
Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239~1966 

• • • 

Subchapter H. Radioactive Substances and Materials Emergency 

30 TAC §35.501, §35.502 

STATUTORY AUTHORITY 

The new sections are adopted under Texas Water Code (TWC), 

Chapter 5, Subchapter L, which establishes the commission's 

authority concerning emergency and temporary or?er~. Other 

relevant sections of the TWC under which the comm1ss1on takes 

this action include: §5.1 03, which establishes the commission's 

general authority to adopt rules; and §5.1 05, which establishes 

the commission's authority to set policy by rule. Add1t1on· 

ally, relevant sections of the Health and Safety Code include: 

§401.011, which establishes the commission's authority over 

radioactive substances; §401.051, wh1ch establishes the commission's authority to adopt rules for the control of radiation; 

§401.056, which establishes the commission's authority to issue 

emergency orders concerning radiation; and §401.412, wh1ch 

establishes the commission's authority concern1ng licenses for 

radioactive substance disposal. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817752 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239~1966 

• • • 

Subchapter I. Storage Tank Emergency Orders 

30 TAC §35.601 

STATUTORY AUTHORITY 

The new section is adopted under Texas Water Code (TWC), 

Chapter 5, Subchapter L, which establishes the commission's 

authority concerning emergency and temporary orders. Other 

relevant sections of the TWC under which the commission takes 

this action include: §5.1 03, which establishes the commission's 

general authority to adopt rules; §5. 105, which establishes the 

commission's authority to set pol1cy by rule; §26.351, wh1ch establishes the commission's authority concerning corrective ac· 

tion; and §26.354, which establishes the commission's authority 

to issue emergency orders concerning petroleum storage tanks. 

This agency hereby certifies that the adopti~m has _been re~ 

viewed by legal counsel and found to be a valid exerc1se of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817753 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239~1966 

• • • • 

Subchapter J. Imminent and Substantial Endangerment 

30 TAC §35.701 

STATUTORY AUTHORITY 

The new section is adopted under Texas Water Code (TWC), 

Chapter 5, Subchapter L, which establishes the commission's 

authority concerning emergency and temporary orders. Other 

relevant sections of the TWC under which the commission takes 

this action include: §5.1 03, which establishes the commission's 

general authority to adopt rules; §5.1 05, which establishes the 

commission's authority to set policy by rule. Additionally, relevant sections of the HSC include: §361.017, which establishes 

the commission's jurisdiction over industrial hazardous waste; 

and §361.024, which establishes the commission's authority to 

establish rules for the control of solid waste. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817754 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

• • 

Subchapter K. Air Orders 

30 TAC §§35.801-35.809 

STATUTORY AUTHORITY 

• 

The new sections are adopted under Texas Water Code (TWC), 

Chapter 5, Subchapter L, which establishes the commission's 

authority concerning emergency and temporary orders. Other 

relevant sections of the TWC under which the commission takes 

this action include: §5.1 03, which establishes the commission's 

general authority to adopt rules; and §5.105, which establishes 

the commission's authority to set policy by rule. Add1t1on· 

ally, relevant sections of the Health and Safety Code include: 

§382.017, which establishes the commission's rulemaking authority; §382.024 and §382.025 which establish the authontyof 

the commission to issue air orders and what factors the commission must consider when issuing such orders; §382.051, which 

establishes the commission's authority to adopt rules concerning air permits; and §382.0513, which establishes the commission's authority to adopt rules concerning permit conditions. 

*35.~01. Emerxency Orders Because of Catastrophe. 

23 TexReg 12424 December 4, 1998 Texas Register 
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 constmction and emissions otherwise 

precluded under the TCAA. For purposes of this section, a catastrophe 

is an unforeseen event including, but not limited to, an 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 appurtenances inoperable. 

§35.802. Application for on Emergency Order. 

The owner or operator of a facility, as that term is defined in Texas 

Health and Safety Code, §382.003, desiring to obtain an order under 

this subchapter shall submit an 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 the following: 

(I) 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; 

(2) .a description of the catastrophe; 

(3) a statement that there are no practicable alternatives 

to the proposed construction and emissions; 

(4) a statement that the emissions will not cause or 

contribute to a condition of air pollution; 

(5) a stutcment that the proposed construction and emissions will occur only 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, providing that no more than a Je minimis increase will 

occur in the predicted concentration of the air contaminants at or beyond the property line <tt such other property; 

(6) a description of the proposed construction and the type 

and quantity of air contaminants to he emitted; 

(7) an estimate of the dates on which the proposed 

construction and cmissio11s will begin and end; 

(8) .:m estimate of the date on which the facility will begin 

operation; 

(9) a statement that any construction or modillcation will 

not interfere with the attainment or maintenance of national ambient 

air quality standards or violate applicable portions of the control 

strategy; and 

(I 0) 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. 

§35.804. Issuance qf Order. 

The commission or executive director may issue an order under this 

subchapter if it is found that: 

(I) 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 

arc nece1-0sary for the addition, replacement, or rep.air of bcilitics or 

control equipment that is necessitated by a catastrophe; 

(2) there arc no practicable alternatives to the proposed 

construction and emissions; 

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

("?(~any construction or modification will not interfere 

with tl';e-attftinment or maintenance of national ambient air quality 

standards or violate applicable p01tions of the control strategy; 

(5) the proposed construction or emissions will occur 

only: 

(A) at property where the catastrophe occurred; or 

(B) <It 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 than 

a de minimis increase in the predicted concentration of the air 

conramimmts at or beyond the property line at such other property; 

(6) the time limits in the order for the beginning and completion of the proposed construction and emissions arc reasonable; 

and 

(7) the schedule in the order for submission of a complete 

permit application is reasonable. 

.935.805. Contents of an Emergency Order. 

In addition to the requirements of §35.26 of this title (relating to 

Contents of Emergency or Temporary Order), an emergency order 

issued under this subchapter shall contain at least the following: 

(I) 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; 

(3) authorization for action only at the property where 

the catastrophe occurred or on other property owned by the owner 

or operator of the damaged facility, which also produces the .same 

intermediates, products, or byproducts, provided there will be no more 

than a de minimis increase in the concentration of air contaminants 

at or beyond the property line at such other property; 

(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 

(5) a schedule for submission of a complete construction 

permit application under provisions of TCAA, §382.0518. 

.935.806. Requirement to Apply for a Permit or Mod(fication. 

The owner or operator of a f.:tciliry for which .:111 emergency order 

has been issued under this subchapter shall submit an application 

within 60 days of issuance of the order under Texas Water Code, 

S5.515; TCAA, §382.0518; and Chapter 116, Subchapter B of this 

title (relating to New Source Review Permits). The application shall 

be reviewed and acted upon by the executive director without regard 

to construction activity authorized by the emergency order. The 

appropriate permit fcc shall be due and payable under §§116.140, 

116.141, and I 16.143 of this title (relating to Permit Fees). 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. 

.\'\]5.807. Affirmation of an Emergenq Order. 

ADOPTED RULES December 4, 1998 23 TexReg 12425 
' -~·· 

The commission shall affirm a proposed or issued order if the 

applicant shows at the hearing, by a preponderance of the evidence. 

that: 

(I) the proposed construction and emissions arc essential 

to prevent loss of life, serious injury, severe property damage, or 

severe economic loss not attributable to the applicant's actions and 

arc necessary for the addition, replacement, or repair of facilities or 

control equipment that is necessitated by a catastrophe; 

(2) there are no practicable alternatives to the proposed 

construction and emissions; 

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

(4) 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 

(5) the proposed construction or emissions will occur 

only: 

(A) at property where the catastrophe occurn.:d; 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 than 

a de minimis increase in the predicted concentration of the air 

contaminants at or beyond the property line at such other property; 

(6) the time limits in the order for the beginning and completion of the proposed construction and emissions arc reasonable; 

and 

(7) the s~;hcdule in the order for submission of a complete 

permit application is reasonable. 

.~35.808. Modification of an Emergency Order. 

The commission shall modify a proposed or issued order if the hearing 

record shows that; 

(I) construction and emissions otherwise precluded under 

the TCAA are essential to prevent loss of life, serious injury, severe 

property damage, or severe economic loss not attributable to the 

applicant's actions and arc necessary for the addition, replacement. 

or repair of facilities or control equipment that is necessitated hy a 

catastrophe; 

(2) there is no practicable alternative to such construction 

and cmission.s; and 

(3) modification of certain terms of the proposed or issued 

order is necessary to make the order, construction. and/or emissions 

meet the requirements stated in §35.807 of this title (relating to 

Affirmation of an Emergency Order). · 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

t998. 

TRD-9817755 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

• • • 

Subchapter L. On-site Sewage Disposal System 

30 TAC §35.901 

STATUTORY AUTHORITY 

The new section is adopted under Texas Water Code (TWC), 

Chapter 5, Subchapter L, which establishes the commission's 

authority concerning emergency and temporary orders. Other 

relevant sections of the TWC under which the commission takes 

this action include: §5.1 03, which establishes the commission's 

general authority to adopt rules; and §5.1 05, which establishes 

the commission's authority to set policy by rule. Additionally, 

relevant sections of the Health and Safety Code include: 

§366.D12, which establishes the commission's authority to 

establish rules for on- site disposal systems. 

This agency hereby certifies that the adoption has been re· 

viewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817756 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

• • • 

Chapter 39. Public Notice 

The Texas Natural Resource Conservation Commission (commission) adopts amendments to §§39.1, 39.5, and 39.251, concerning public notice, and new §39.401, concerning public notice for applications for consolidated permits. The amendments 

and new section are adopted without changes to the proposed 

text as published in the July 17, 1998, issue of the Texas Register(23 TexReg 7353). 

This action is part of the commission's implementation of House 

Bill (HB) 1228, 75th Legislature, 1997, which granted the commission authority to conduct consolidated permit processing 

and issue consolidated permits. It also includes minor corrections and clarifications to preexisting rules. In addition, the 

commission is concurrently adopting a new 30 TAC Chapter 33, 

concerning Consolidated Permit Processing. This action is published in this edition of the Texas Register. 

EXPLANATION OF ADOPTED RULES 

HB 1228 created a new Texas Water Code (TWC), Chapter 

5, Subchapter J. The new statute creates a process for an 

applicant to request consolidated permit processing and the 

issuance of a consolidated permit. Federal operating permits 

are prohibited from consolidation. The statute establishes a 

voluntary program by which a plant, facility, or site can request 

consolidated permit processing. It provides for designation 

of a lead permitting program for coordination of application 

reviews, a consolidated permit hearing on all permits requested 

by the applicant, and issuance of one consolidated permit. It 

also allows the commission to adopt rules to implement the 

23 TexReg 12426 December 4, 1998 Texas Register 
'.; 

pan1graph (l)(A) of this subsection. The function of this working 

group may be delegated to an existing group with similar composition 

and purpose. 

(D) The commission, affected MPOs, affected local 

air quality agencies, and TxDOT shall cooperatively evaluate events 

which wilJ trigger the need for new conformity determinations. New 

conformity determinations may be triggered by events established in 

40 CFR, §93.104 as well as other events, including emergency relief 

projects that require substantial functional, locational, and capacity 

changes, or in the event of any other unforeseeable circumstances. 

(E) The MPO and its governing body, or TxDOT if 

applicable, shall make conformity determinations for all MTPs, TTPs, 

regionally significant projects, and all other events as required by 40 

CFR, Part 93, Subpart A and this section. Upon completion of the 

transportation conformity determination review process, (including 

consultation, public participation, and all other requirements of this 

section), FHWA and FTA will issue a joint conformity finding, 

indicating the transportation conformity status of the document(s) 

under review. The effective date of the conformity determination for 

an area is the date of the joint conformity finding made by FHWAFTA. 

(4) Conflict resolution. 

(A) The commission and the MPO (or TxDOT where 

appropriate) shall make a good-faith effort to address the major 

concerns of the other party in the event they are unable to reach 

agreement on the conformity determination of a proposed MTP or 

TIP. The efforts shall include meetings of the agency executive 

directors, if necessary. 

(B) In the event that the MPO or TxDOT determines 

that every effort has been made to address the commission's concerns, 

and that no further progress is possible, the MPO or TxDOT shall 

notify the commission executive director in writing to this effect. This 

subparagraph shall be cited by the MPO or TxDOT in any notification 

of a conflict which may require action by the Governor, or his or her 

delegate under subparagraph (C) of this paragraph. 

(C) The commission has 14 calendar days from date 

of receipt of notification, as required in subparagraph (B) of this paragraph, to appeal to the Governor. If the commission appeals to the 

Governor, the final conformity determination must then have the concurrence of the Governor. The Governor may delegate his or her role 

in this process, but not to the commission or commission staff, a local 

air quality agency, the Texas Transportation Commission or TxDOT 

staff, or an MPO. This subparagraph shall be cited by the commission in any notification of a conflict which may require action by the 

Governor or his or her delegate. If the commission does not appeal 

to the Governor within 14 calendar days from receipt of written notification, the MPO or TXDOT may proceed with lhe final conformity 

determination. 

(5) Public comment on conformity determinations. Consistent with the requirements of 23 CFR, Part 450, concerning public involvement, the agencies making conformity determinations on 

transportation plans, programs, and projects shall establish a proactive public involvement process which provides opportunity for public 

review and comment. This process shall, at a minimum, provide reasonable public access to technical and policy information considered 

by the agency at the beginning of the public comment period and before taking formal action on conformity determination:-; for all MTPs 

and TIPs, as required by 23 CFR §450.316 (b) and this section. Any 

charges imposed for public inspection and copying should be consistent with the fee schedule contained in 49 CFR §7.95. In addition, 

these agencies shall address in writing any public comment claiming that a non-FHWA/FTA funded. regionally significant project has 

not been properly represented in the conformity determination for 

an MTP or TIP. Finally, these agencies shall· provide opportunity for 

public involvement in conformity determinations for projects where 

otherwise required by law. 

(6) (No change.) 

(c) Effective date. The revisions to this section adopted by 

the commission on November 18, 1998, and filed with the Secretary 

of State on November 23, 1998, shall be in effect on the date of 

EPA approval of the transportation conformity SIP associated with 

this rule. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 23, 

1998. 

TRD-9817908 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 13, 1998 

Proposal publication date: August 14, 1998 

For further information, please call: (512) 239-1970 

• • • 

Chapter 116. Control of Air Pollution by Permits 

for New Construction or Modification 

The Texas Natural Resource Conservation Commission 

(commission) adopts an amendment to §116.410, concerning 

emergency orders. The commission also adopts the repeal 

of §§1 16.411-116.418, concerning emergency orders. The 

amendment is adopted with changes to the proposed text as 

published in the July 3, 1998, issue of the Texas Register (23 

TexReg 6920). The repeals are adopted without changes and 

will not be republished. This action will also be submitted to 

the United States Environmental Protection Agency (EPA) as a 

revision to the state implementation plan (SIP). 

This action is part of the commission's implementation of Senate Bill (SB) 1876, 75th Legislature, 1997, which consolidated 

the commission's emergency and temporary order authority. 

In addition to these amendments and repeals, the commission is concurrently adopting the consolidated agency emer-

' gency and temporary order provisions under a new Chapter 

35, concerning Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions. The commission is also concurrently adopting amendments to emergency and temporary order provisions in 30 

TAG §§291.14, 291.22, 291.142, 291.143, 305.21, 305.29, 

305.31,305.535, 321.80,321.132,321.134,321.152, 321.158, 

321.219, 321.232, 321.239, 321.258, and 334.83, and the repeal of the following rules relating to emergency and temporary orders: 30 TAG §§291. 10, 291.13, 297.57, 305.22-305.28, 

305.30, and 305.32. The commission is also adopting new 30 

TAG §297.57 and §305.30. These changes are concurrently 

published in this edition of the Texas Register: 

EXPLANATION OF ADOPTED RULES 

23 TexReg 12434 December 4, 1998 Texas Register 
',. 

SB 1876 consolidated various statutory provisions governing 

emergency and temporary orders under new Texas Water Code 

(TWC), Chapter 5, Subchapter L. The new statute expressly 

authorizes the commission to issue temporary or emergency 

mandatory, permissive, or prohibitory orders, and issue temporary permits or suspend permit conditions by temporary or 

emergency order. It allows the commission to issue emergency 

orders with or without notice. Additionally, it authorizes the commission to delegate authority to the executive director to receive 

applications and issue emergency orders and authorize repre- · 

sentatives to act on his or her behalf. Finally, general application, term, and hearing requirements that are applicable to 

all affected programs are included. The statute will allow the 

commission or the executive director to act expeditiously to address unforeseen circumstances. TWC, §5.515, as added by 

SB 1876, expressly authorizes the commission to issue these 

emergency orders. 

The adopted amendments to §116.410, concerning Applicability, add a reference to new Chapter 35, ·make a conforming 

change, and delete the definition of a catastrophic event, which 

now defines "catastrophe" in adopted new §35.801, concerning 

Emergency Orders Because of Catastrophe. This amended 

section will be submitted to the United States Environmental 

Protection Agency (EPA) as a revision to the SIP. The term 

"catastrophic event" has been changed to "catastrophe" to be 

consistent with the statute. ' 

The adopted repeals concern provisions incorporated into the 

new Chapter 35. These provisions are moved in their entirety 

to new §35.12 and Chapter 35, Subchapter K. In that new 

subchapter. the commission does change notice requirements. 

Adopted new §35.803 requires the commission or executive 

director to prepare the notice of the emergency order and the 

hearing to affirm, modify, or set aside for the applicant to publish 

in a newspaper of general circulation in the nearest municipality 

not later than the tenth day before the hearing, but not later than 

the tenth day before the hearing. This is a change from prior 

§ 116.412, which requires only Texas Register notice as soon 

as practicable after issuance. The commission also adopts 

conforming changes, as well as regulatory reform changes to 

terminology that were identified during the commission's review 

of Chapter 116 under Article IX, §167, of House Bill 1, 75th 

Legislature, 1997, the General Appropriations Act. 

FINAL REGULATORY IMPACT ANALYSIS 

Staff has reviewed the proposed rulemaking under the regulatory analysis requirements of Texas Government Code, 

§2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of 

a "major environmental rule" as defined in that statute, and it 

does not meet any of the four applicability requirements listed 

in §2001.0225(a). The rules are not major environmental rules 

because their primary intent is to consolidate already existing 

emergency and temporary order rules under one chapter. In 

addition, the applicability requirements do not apply because 

the commission is expressly granted authority by TWC, 5.501. 

The rules also concern procedural requirements of the agency, 

such as delegation of the authority to issue such orders by the 

commission to the executive director, and are a result of the 

commission's continuing regulatory reform effort. 

TAKINGS IMPACT ASSESSMENT 

The commission has prepared a Takings Impact Assessment 

for these rules under Texas Government Code, §2007.043. The 

following is a summary of that assessment. The specific purpose of these rules is to implement the statutory provisions of 

TWC, Chapter 5, Subchapter L. Adoption of these rules will also 

provide for the delegation of authority to issue emergency orders by the commission to the executive director, consolidate 

agency procedural rules, and make certain processes consistent among different agency programs. Adoption of these rules 

will substantially advance these specific purposes by providing 

specific provisions on these matters. Promulgation and enforcement of these rules will not burden private real property which 

is the subject of the rules because they only establish a new 

procedural mechanism for these types of orders. 

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW 

The commission has reviewed the rulemaking and found that 

the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAG §505.11, relating to Actions and 

Rules Subject to the Coastal Management Program, nor will 

they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAG §505.11. Therefore, 

the adopted rules are not subject to the CMP. 

HEARING AND COMMENTERS 

A public hearing regarding the proposed rules was held in Austin 

on August 3, 1998, and the public comment period also closed 

on August 3, 1998. No oral comments were received at the 

public hearing, but EPA submitted written comments on the 

proposal. 

ANALYSIS OF TESTIMONY 

EPA stated that the rules referenced in Chapter 116, Subchapter 

E are not now part of the approved SIP and that this is 

implied otherwise in the preamble to the proposed rules. EPA 

suggested that the commission clarify that the Chapter 35 rules 

will be submitted to EPA as a new portion of the SIP. 

The commission agrees that the sentence used in the preamble 

gave the impression that Subchapter E is currently part of the 

SIP. Chapter 116, Subchapter E was submitted to the EPA as 

a SIP revision in 1993 and no SIP approval has been given by 

EPA as of this date. The commission has made this clarification 

suggested by EPA. 

EPA indicated that its understanding is that Chapter 116, 

Subchapter E has been moved to Chapter 35, Subchapter K 

with no substantive changes. 

Although many of the rules in Subchapter K were moved 

verbatim from Chapter 116, there are provisions in Chapter 

35 which are different from the previous rules. Applicable 

definitions have been added to Subchapter A. The authority 

for the executive director to act is included in Subchapter 

B. The hearing provisions are in Subchapter C. Term limits 

and application fees have been added and are included in 

Subchapter C. In addition, the requirement for notice in a 

newspaper of general circulation has been added in Subchapter 

K. 

Subchapter E. Emergency Orders 

30 TAC § 116.410 

STATUTORY AUTHORITY 

The amendment is adopted under TWC, §§5.1 03, 5.1 05, and 

5.501 and Texas Health and Safety Code, §§382.017, 382.051, 

ADOPTED RULES December 4, 1998 23 TexReg 12435 
and 382.0513. Section 5.103 establishes the commission's 

general authority to adopt rules. Section 5.1 05 establishes 

the commission's authority to set policy by rule. Section 

5.501 establishes the commission's authority to adopt rules to 

implement the emergency and temporary order provisions of 

TWC, Chapter 5, Subchapter L. Section 382.017 establishes 

the commission's authority to adopt rules. Sections 382.024 

and 382.025 establish the authority of the commission to issue 

air orders and what factors the commission must consider 

when issuing such orders. Section 382.051 establishes the 

authority of the commission to adopt rules concerning permits. 

Section 382.0513 establishes the authority of the commission 

to establish certain permit conditions. 

§116.410. Appficabiliiy. 

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 ami Permits: Temporary Suspension or 

Amendment of Permit Conditions), to authorize immediate action for 

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

and authorizing associated emissions of air contaminants, whenever 

a catastrophe necessitates such constmction and emissions otherwise 

precluded under the TCAA. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817757 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective dcite: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

+ + + 

30 TAC §§116.411-116.418 

STATUTORY AUTHORITY 

The repeals are adopted under Texas Water Code, §§5.1 03, 

5.105, and 5.501 and Texas Health and Safety Code, 

§§382.017, 382.024, 282.025, 382.051, and 382.0513. Section 

5.103 establishes the commission's general authority to adopt 

rules. Section 5.1 OS establishes the commission's authority to 

set policy by rule. Section 5.501 establishes the commission's 

authority to adopt rules to implement the emergency and 

temporary order provisions of Texas Water Code, Chapter 5, 

Subchapter L. Section 382.017 establishes the commission's 

authority to adopt rules. Sections 382.024 and 382.025 

establish the authority of the commission to issue air orders 

and what factors the commission must consider when issuing 

such orders. Section 382.051 establishes the authority of 

the commission to adopt rules concerning permits. Section 

382.0513 establishes the authority of the commission to 

establish certain permit conditions. 

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the 

agency's legal authority. 

Filed with the Office of the Secretary of State on November 20, 

1998. 

TRD-9817758 

Margaret Hoffman 

Director, Environmental Law Division 

Texas Natural Resource Conservation Commission 

Effective date: December 10, 1998 

Proposal publication date: July 3, 1998 

For further information, please call: (512) 239-1966 

+ • • 

Chapter 291. Water Rates 

The Texas Natural Resource Conservation Commission (commission) adopts the repeal of §291.10 and §291.13, concerning 

procedural rules related to utilities. The commission also adopts 

amendments to §§291.14, 291.22,291.142, and 291.143, concerning emergency orders and the operations of certain utilities. 

The repeals and amendments are adopted without changes to 

the proposed text as published in the July 3, 1998, issue of the 

Texas Register (23 TexReg 6922) and will not be republished. 

This action includes certain changes related to the operation of 

certain utilities necessary to implement Senate Bill (SB) 1, 75th 

Legislature, 1997. This action is also part of the commission's 

implementation of SB 1876, 75th Legislature, 1997, which 

consolidated the commission's emergency and temporary order 

authority. 

In addition to these amendments, the commission is concurrently adopting the consolidation of agency emergency and 

temporary order provisions under a new Chapter 35, concerning Emergency and Temporary Orders and Permits; Temporary 

Suspension or Amendment of Permit Conditions. The commission is also concurrently adopting amendments to emergency 

and temporary order provisions in 30 TAG §§116.410, 305.21, 

305.29, 305.31, 305.535, 321.80, 321.132, 321.134, 321.152, 

321.158, 321.219, 321.232, 321.239, 321.258, and 334.83, and 

the repeal of the following rules relating to emergency and temporary orders: 30 TAG §§116.411-116.418, 297.57, 305.22-

305.28, 305.30, and 305.32. The commission also adopts new 

30 TAG §297.57 and 305.30. These changes are concurrently 

published in this edition of the Texas Register. 

EXPLANATION OF ADOPTED RULES 

SB 1 amended Texas Water Code (TWC), §13.412, to expand 

the definition of abandonment and modified TWC, §13.4132, 

to allow a person who has been appointed to temporarily 

manage a utility to access all utility system components. The 

commission is adopting changes to Chapter 291 that will make 

the rules conform to these amendments. 

SB 1876 consolidated various statutory provisions governing 

emergency and temporary orders under new TWC, Chapter 5, 

Subchapter L. The new statute expressly authorizes the commission to issue temporary or emergency mandatory, permissive, or prohibitory orders, and issue temporary permits or ~uspend permit conditions by temporary or emergency order. It allows the commission to issue emergency orders with or without 

notice. Additionally, it authorizes the commission to delegate 

authority to the executive director to receive applications and issue emergency orders and authorize representatives to act on 

his or her behalf. Finally, general application, term, and hearing requirements that are applicable to all affected programs 

are included. The statute will allow the commission or the executive director to act expeditiously to address unforeseen circumstances. TWC, §5.507 and §5.508, as added by SB 1876, 

23 TexReg 12436 December 4, 1998 Texas Register