STATE OF TEXAS OFFICE oF THE GovER:-.lOR GEORGE W. BUSH GOVER. 'lOR

Mr. GreggA. Cooke Region 6Administrator U.S. EnvironmentalProtectionAgency 1445RossAvenue Dallas,TX 75202-2733 DearMr. Cooke: December 10, 1998



## . EnclosedisaproposedrevisiontoTexas' StateImplementationPlan(SIP)consistingofamendmentsthatthe TexasNaturalResourceConservationCommission(Commission) adoptedonNovember 18, 1998. Thecreationofnew30TACChapter35(emergencyandtemporaryorders) andamendmentsto30TAC Chapter 116 (controlofairpollution.bypermitsfornewconstructionormodificatioil)implementSenateBill 1876(75thLegislature 1997)thatconsolidatedvarious statutoryprovisionsgoveiniogemergencyand 

### temporary orders. Alsoenclosed isa publichearingcertification, a completerecordofthepublichearing,andtheaccompanying order. Ilookforward toyourexpeditious approvalofthisrevisiontotheTexasSIP.

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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 JeffreyA. Saitas,ExecutiveDirector 

## TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Protecting Texas by.ReducingandPreventingPollution



### THE STATE OF TEXAS § 

### COUNTY OF TRAVIS §



### This is to certifY that the attached are true and correct copies ofa 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 ofthis revision, a public hearing was held pursuant to 40 CFR, §51.102(a), and notice ofthis hearing was given which conformed to the requirements of40 CFR, §.llJ..OM.d). I am the custodian ofthe records ofthe Commission.

To certifY which, witness my hand and the seal of the Texas Natural Resource ConservationCommission, this the 18thday ofNovember, 1998.

Texas Natural Resource Conservation Commission

P.O. Box !3087 

### ° Austin, Texas 78711-3087 

### ° 5121239-1000 

### ° Internetaddress: www.tnrcc.state.tx.us/Texas Natural Resource Conservation Commission Public Hearing August 3, 1998 30TAC Chapter 35 and Chapter 116 Emergency and Temporary Orders/Senate Bill 1876 Rule Log Number 97142-035-ADINTRODUCTION

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. Inaddition, new Chapter35, concerningemergency andtemporary orders, wasconsidered. 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 SenateBi111876, 75thLegislature, 1997, andto continue its effortto consolidateagencyproceduralrules and make certainprocesses 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 acomplete record ofthe public hearing and is divided into the following four sections:

o Public Notification and Proposal
o Written and Oral Testimony
o Evaluation ofTestimony
o StaffRecommendations

Additional copies ofthis hearing record are maintained in the Texas Natural Resource Conservation Commission'scentralofficeat 12100NorthIH-35, Austin, Texas78753. Forfurther information, please contactBrian Christian at (512) 239-1760.

# PUBLIC NOTIFICATION AND PROPOSALPUBLIC NOTIFICATION

Notificationto the public ofthe proposed revisions was conductedby the following procedures:

1. Publicationofthe notice ofpublic hearing in the following newspapers onthe dates listed:

Austin American-Statesman; June 22, 1998 Beaumont Enterprise-Journal; June 23, 1998 FortWorth Star-Telegram; June 25, 1998 HoustonChronicle; June 26, 1998

2. Publication ofthe public hearing notice in the Texas RegisteronJuly 3, 1998 (23 TexReg 7135), and proposed rules in the Texas Registeron July 3, 1998 (23 TexReg 6899).

3. Correspondence forwarding the notice ofpublic hearing to the following officials and agencies:
Speaker ofthe House Lieutenant Governor City ofEl Paso City ofVictoria Planning Department Dallas DepartmentofEnvironmental and Health Services El Paso City-County Health and Environmental District Federal Highway Administration FortWorthEnvironmental Management Department 

# . '·Galveston County Health District Houston Department ofHealth and HumanServices Harris CountyPollutionControl Department Houston;-Galveston AreaCouncil North Central Texas Council ofGovernments SouthEast Texas Regional Planning Commission Texas Department ofTransportation Texas Transportation Institute Arkansas DepartmentofPollutionControl and Ecology Louisiana Department ofEnvironmental Quality New Mexico Air Quality Bureau OklahomaDepartment ofEnvironmental Quality U. S. Environmental Protection AgencyEXAMPLE OF NEWSPAPER CLASSIFIED AD HoustonChronicle

June 26, 1998

NOTICEOF PUBLIC HEARINGBYTHE TEXAS NATURALRESOURCE CONSERVATION COMMISSION ON PROPOSED REVISIONSTO 30TACCHAPTER$35,116.291,297,305,321, AND334

ANDTHESTATE 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. Chapter2001; and40 Codeof Federal Regulations. !51.102ofliM! 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 Chapters35, 116. 291.297, 305. 321. and334and 11M!SIP. The commission proPOsesnew Chapter35 and amendmen!sto there- moinin; chapters to consolidate the commission rules concerning 

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The rules will allowthecommissionorexecutivedirectorto adexpe. ditiouslvtoaddressunforeseencircumstancesand/oremergencies. A PUblic hearingontheproPOsal willbeheldAugust3, 1998, at2:00p.m. in Room 2210 of TNRCC Building F, located at 12100**~ark** 35 Circle, Austin.Thehearing isstructuredtortr.e receiptoforalorwrittencom· 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 answerauestionsbeforeand afterthehearing. Comments may be submil1ed to Lisa Martin, Office of PolicY and Re;ulotorv Development, MC 205. P.O. Box 13087, Austin, Texas 

### I78711-3087 ortaxed 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. Personswithdisobilitieswho havespecialcommunicationorotherac· commodotioo needs who are planning to al1end the hearing should contocttheagency at !512) 239·4900. Requetssnoulcl bemacteastarIn advance aspassib'e. Issued inAustin, Texas. onJune17, 1m. Is/ KevinMCCaNo Dir.ctor. Legal Division Texl!ls Natural ResourceConservationCommissionhazardous 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 aproperly 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; DOCKETNUMBER: 97-0540- 0SI-E; ENFORCEMENTID NUMBER: 12453; LOCATION: Cedar Creek, Bastrop County, Texas; TYPE OFFACILITY: 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 ofPublic Hearing (Emergency and Temporary Orders) Notice is hereby given that under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Subchapter B, Chapter 2001; and 40 Code of Federal Regulations, §51.l02 ofthe 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 ofthe commission's implementation ofSenate 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. Apublic 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 oforal or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not occurduring 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 bereceived by 5:00 p.m., August 3, 1998, and should reference Rule Log Number97142-035-AD. Forfurther information, pleasecontactBrian 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 ofthe 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 ofindoor air monitoring within the residence on site indicated no airborne mercury contamination. The risk assessment, which measured the degree ofhazard 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. Duetoconcentrationsofmercury in the shallow ground waterbeneath 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 ofthis investigation, the ground water beneath the site was found to pose no unacceptable excess risk to human health orthe environment. As aresult ofthe soil and sedimentremedial action and the additional groundwater investigation, the executive director has determined that this siteno longerpresents an imminentand substantial endangerment to public health and safety ortheenvironmentand is thereforeeligible


### INADDITION July 3, 1998 23 TexReg 7135Texas 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 ofthefollowing sectionproposedfor repeal will not be published. The section may be examined in the offices ofthe Texas Department ofInsurance or in the Texas Registeroffice, Room 245, James Earl RudderBuilding, 1019Brazos Street, Austin.) Repeal of §§11.103, 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 Commissionerof 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 pursuantto thefollowing statutes: The Insurance Code Chapter20A. §11.802. DepositRequirements. 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 ofthe SecretaryofStateon 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 Forfurther information, please call: (512) 463-6327 

### Subchapter Q. 28 TAC §11.1605

# • • • Other Requirements (Editor's note: The text ofthefollowing sectionproposedfor repeal will not be published. The section may be examined in the offices ofthe Texas Department ofInsurance or in the Texas Registeroffice, Room 245. James Earl RudderBuilding, 1019Brazos Street, Austin.) Repeal of §§11.103, 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. Contractsfor PhannaceuticalServices. 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 ofthe 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 Forfurther 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 ofPermit 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 consistentamong 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 temporaryorders under new TexasWaterCode (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 orderswith orwithout notice. Additionally, itauthorizesthe commission to delegate authoritytothe executive directorto receive applications and issue emergency orders and authorize representatives to acton his or herbehalf. 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 6899These 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 Chapter35 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 substantivechanges being proposed. As authorized by TWC, §5.501, the proposed new Chapter 35 providesforthe delegation ofauthorityto issue certain ordersto 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**  SubchapterA, concerning Purpose, Applicability, and Def1n1t1ons, sets forth certain general provisions necessary foradministration ofthechapter. 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 ortemporarily suspend oramend 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, providesthat tRe chapterapplies to any application underTWC, 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 tem**P?~ary** order. The purposeofthis sectionto provide generaldefInitions for the chapter and to help administer the provisions of TWC, Chapter 5, Subchapter L. An emergency order is defined as an orderthat must be issued immediately in orderto 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 waterqualityemergency and temporary orders. Temporaryorderis defined as an orderof 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, orfor the reasons specified in new §35.302.**P~opose~** new**Su~chapter** B, concerning Authorityof 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 TexReg6900 July 3, 1998 Texas Register purpose of Subchapter B is to allow the executive director to act on behalf ofthe 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 bythe executivedirector,**~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 onTexas pollutant dlscharge ehmmallon system (TPDES) permits or other TPDES**r~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 directorto issue temporaryoremergency orders and, by temporary oremergency order, to issue a temporary permit ortemporanly suspend or amend a permit condition. The new provisions implementTWC, §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 re**n~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 implementsTWC, §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 mthe perm1t holderor rec1p1ent and expires in accordance with its terms. Proposed new §35.24, concerning Application for Emergency**~r** Temporary <?rder, specifies requirements governing applica**tl~ns**.. The sect1on prescribesthe necessary contents ofthe application and requires its filing with the chief clerk. Subsection (b) specifies that an application for an emergency ortemporary 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 orTemporary 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 laterthan 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 aircatastrophes replaces the existing requirement for notice to be given in the Texas Register. The proposed section implementsTWC, §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 implementTWC, §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 Dconcerns Emergency Suspension of Beneficial Inflows. The subchapter implementsTWC, §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 current §297.57, concerning Emergency Suspension of PermitConditions, andthe 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 implementsTWC, §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 necessaryto implementSB 1, and it includesexisting commission rules from Chapter 291 that have been moved to new Chapter35. While largelyderivedfrom 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 aTemporary Manager. Proposed new §35.202, concerning Emergency Order for Rate Increase in Certain Situations, authorizes the commission or executive directorto 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 Chapter35 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 oradjacenttoanywaterin thestatewhen expeditiousaction 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 emergencyortemporaryorderto provide specific information, including a statement that the order is necessary to enable action to betaken more expeditiouslythan is otherwise provided byTWC,


### PROPOSED RULES July 3, 1998 23 TexReg 6901Chapter 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 issuanceof an emergencyortemporary order to the extent consistent with state assumption of the NPDES program. Further, upon assumption ofthe 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 largelyderivedfrom current commission rules, the commission is proposing to allow the executive director to issuethe orders under this subchapter, as authorized by TWC, §5.501. Proposed new §35.401, concerning EmergencyOrders 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 requirementsforunderground 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 Hconcerns 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 orsafety orthe 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 reflectthe 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 totheTexas Departmentof Health, under SB 1857, 75th Legislature, 1997 (see this edition of the Texas Register). The commission proposes no otherchangestothe rules concerning this matterasthey currently exist, and the provisions aresimply incorporated into the new Chapter 35. Proposed new §305.502, concerning Emergency Impoundment of Radioactive Material, provides for commission and executive directoractionto impoundororderthe impoundment of radioac- •**~** tive material possessed by any person notequippedto observe, orfailing 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 underTRCA or Chapter 336. The section also provides for the disposition of the radioactive material. The section is derivedfrom 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 otherchangestothe rules concerning this matteras they currently exist, and the provisions are simply incorporated into the new Chapter 35. Proposed new Subchapter Iconcerns StorageTank Emergency Orders. The.subchapter implements TWC, §5.510, which authorizes the issuance ofthese orders. Proposed §35.601, concerning Emergency Order Concerning Underground or Aboveground Storage Tanks, authorizes the commission or executive directorto issue an ordertothe owner or operator of an underground storage tank regulated underTWC, Chapter26, and 30 TAC Chapter 334 (relating to Underground and Aboveground StorageTanks). 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 orthe 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 UnderAir 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 directorto issue an emergencyorder authorizing immediate ac-tion for the addition, replacement, or repair offacilities orcontrol equipment, and authorizingassociated emissions of aircontaminants, 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 thatsection. The newsection requires the commission or executive director to publish notice ofthe 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 orthe executive director to act. Proposed new §35.804, concerning Issuance of Order, authorizes the commission or executive director to issue an order underthis 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 ofthe 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 ofan 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 ordersuspending 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 forthe first five-year period the sections as proposed are in effect, therewill befiscal implicationsas a result of administration orenforcement 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 implicationsfor 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 benefitanticipated 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, requiredto complywith 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 minorcost savingsfromthe simplification and standardizationof 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 thatthe rulemaking is notsubject 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 6903for the delegation of authority to issue emergency orders by the commission to the executive director, consolidate agency**p~ocedural** rules, and makecertain processesconsistent 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, orwill 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 ofthese 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. Underthe authority granted by statute, the commission may issue emergency or temporary orders to address unforeseen circumstances, such as drought conditions orpotential catastrophes. Promulgation and enforcement of these rules will not violate or exceed any standards identified in the applicable CMPgoalsand policies becausethey 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 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**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 STATUTORYAUTHORITY The new sections are proposed under TWC, Chapter 5, Sub**cha~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~:** §5.103, which establishes the commission's general authonty to adopt rules; §5.105, which establishes the commis**sio~'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 overwater 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, §§5.103, 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. §35.1. 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 ordersand bythose orders to issuetemporary permits ortemporarily suspend or amend permit conditions. §35.2. Applicability. This chapter applies to any application under Texas Water Code, Chapter5, Subchapter L, to issue temporary oremergency mandatory, permissive, or prohibitory orders. §35.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unlessthe contextclearly indicatesotherwise. 

### 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 Severeproperty 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 ofadischarge. Severepropertydamagedoes 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 ofthis title (relating to Application for Emergency and Temporary Orders to Discharge). Specific requirements for a temporary orderare 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 Secretaryof State, on June 19, 1998. TRD-9809858 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: September23, 1998 Forfurther information, please call: (512) 239-1966 

# • • 

# • Subchapter B. Authority ofExecutive 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: §5.103, 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 overwater 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, §§5.103, 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. Pupose andApplicability. Thepurpose ofthis subchapteris to delegate authoritytotheexecutive director and to specify applications for emergency orders on which the executive director may take action on behalf ofthe commission under this chapter. §35.12. Authority ofExecutive Director. .@2 The executive director may receive applications and issue emergency orders under this chapter. Ifan 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. Ifa 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 behalfunder 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 chapteron 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 ofExecutive 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 Officeofthe Secretaryof State, on June 19, 1998. TRD-9809859 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission 

### PROPOSED RULES July 

### 3, 1998 23 TexReg 6905Proposed date of adoption: September23, 1998 Forfurther information, please call: (512) 239-1966 

# • • • Subchapter C. 

### General Provisions 30TAC §§35.21-35.30 STATUTORYAUTHORITY 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 ofthe·TWC underwhich the commission takes thil> action include: §5.103, which establishes the commission's general authorityto 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 overwater 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 ofsolid 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 orExecutive Director. Forthe purposes of, and in the manner provided by this chapter, the commission may issue a temporary order; and the commission orthe 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 andRenewal ofOrders.



### 23 TexReg 6906 July 

### 3, 1998 Texas Register Unless otherwise provided by this chapter, an emergency orderissued 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 ofOrders. 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. Applicationfor Emergency or Temporary Order.**~** A person wanting an emergencyortemporaryorderunder 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.@ Ifthe StateofTexas has been authorizedto administerthe national pollutantdischargeelimination systemprogram, and aperson 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 ortemporary 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 ofthe 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 estimatethedates on whichtheproposedordershould 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 directoroftheappropriate programonbehalfofthe 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, aresponsible corporate·officer means a president, secretary, treasurer, or vice-president ofthe corporation in charge ofa principal business function, orany otherperson whoperforms similarpolicy ordecisionmaking 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 ordelegation to applicable corporate positions ratherthan to specific individuals. Documentation of authority to sign must be provided with the application. 

### ill For a partnership or sole proprietorship, the application shallbe signed by ageneral partnerorthe proprietor,respectively. Q.2 For a municipality, state, federal, or other public agency, the application shall be signed by either aprincipal executive officer or a ranking elected official. For purposes ofthis 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 ofthe 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 directororany 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 managethe system, orthosepersonsdirectly 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 offine and imprisonment for knowing violations." @ For hazardous solid waste applications, the owner and operator ofa facility must sign the application. 

### ill For radioactive material license applications under Chapter336ofthis 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 Opportunityfor 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 Ifan emergencyorderis issuedunderthis chapterwithout a hearing, the order shall set a time and place for a hearing to affirm, modify, or set aside the orderto 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 ofa 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 ofthe order. Notice ofa 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 ofthe 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 ofthe order shall be provided: 

### ® by mail to persons requesting public notice of certain applications, in accordance with §39.7 ofthis title (relating to Mailing Lists) and to persons or agencies identified in §39.13 ofthis 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 afterpublication ofthe 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) ofthis 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 ofa 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 beforethe hearing to affirm, modify, orset asidethe 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 ofthis 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 orhand delivered to the utility not later than the tenth day before the hearing to affirm modify or set aside. (8) Forwaterutility temporaryrateincreaseorders, 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)_ Forgeneralized condition ofairpollution emergency orders, the timing, method, and recipients of notice shall be as practicable under the circumstances. U!2 Forradioactive substancesemergency orders, notice shall be providedby personal service orcertified mail to those named in the ordernot 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. @ Forpetroleum storagetankemergencyorders, notice shall be provided by certified mail, hand delivery, or ifthat fails, one time inthe Texas Registerorpublished oncein 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 ifthat fails, published once in the Texas Register and once in the newspaper ofgeneral 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 ofpermits do not apply to a hearing on an emergency order issued under this chapter unless they specifically require notice for an emergency order. .{g2 Ifthe 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 ofthe action to the applicant, the executive director, public interest counsel, and otherpersons who have filed hearing requests or public comment. §35.26. Contents ofEmergency or Temporary Order. An emergency or temporary order issued under this chapter shall contain at least the following: 

### ill the name and addressofthe applicant and information sufficient to identifYthe facility or location affected by the order; 

## ru a description ofthe condition ofemergency or other condition justifying the issuance of the order; (3) any findings offacts 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; @ ifthe 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 ofeach temporary order andeitherbefore or after the issuance ofeach emergency order. Ifno 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 ofproperty ofthe 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 requesta hearing in theirownright; 

### 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 ofthe 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 ofthis title (relating to Commission Meetings). Contested case hearings shall be conducted underthe APA and Chapter80 ofthis title (relatingto 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 oremergency order, the following procedures will apply: 

### ill partieswill be designatedby thecommissionorjudge. 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 ofproving 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 ofthe need for such authorization; 

## ru the commission or judge will have the right to limit the number of witnesses; to limitthe time for direct questioning or cross-examinationofa witness; to refuseillustrative and documentary evidence; and to limit argument.**~** Ifa hearing request is denied, the procedures contained in §80.271 and §80.273 ofthis title (relatingtoMotionfor 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 Officeofthe Secretaryof State, on June 19, 1998. TRD-9809860 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: September23, 1998 Forfurther information, please call: (512) 239-1966 

# • 

# • 

# • SubchapterD. Emergency Suspension ofBeneficial Inflows 30 TAC §35.101 STATUTORYAUTHORITY The new section is proposed underTWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC under which the commissiontakes this action include: §5.103, which establishes the commission's general authorityto adopt rules; §5.105, which establishesthecommission'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 authorityto issue emergencyorders concerning petroleumstorage 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'sjurisdiction over industrial hazardous waste; §361.024, which**~s** tablishes the commission's authority to establish rules for the control ofsolid waste; §366.012, which establishesthe 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 establishesthe commission's authorityto 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 ofPermit Conditions Relating to Bene{icialln(!ows to AffectedBays andEstuaries andlnstream Uses.**~** The purpose ofthis 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 ofconditions 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 waterright; 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 ofconditions 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 ofpublic water supplies to critical levels as a result ofa 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 significantcontamination ofa public watersupply; 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 ofthis title (relating to Application for Emergency or Temporary Order), and the follow-**~** 

### ill copies ofthe affected permits, certificates ofadjudication, 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 ofthe examination made by the applicant ofwhetherfeasible, practicable alternatives existto the suspension of permit conditions and reasons why those alternatives do not exist; 

### ill the amount ofwaterover and above available supplies that are necessary to alleviate emergency conditions; @ copies ofthe 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 orwill 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 ofthe releases orother affected permit conditions. @ A copy ofthe 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 chiefclerk.**~** Upon receipt ofthe application, the chiefclerk shall provide noticeofthe timeand location ofthe commission'sconsideration ofthe application to the TPWD, executive director, and public inter· est counsel as soon as practicable after receipt ofthe application, but in no event shall the petition be considered less than 72 hours after receipt ofnotice 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 ofthe commission's consideration ofthe matter. {gl The commission's order shall set out the extent of any suspension and any special condition upon which a suspension is granted. Thecommission's initialorder may also indicatethereferral ofthe matter to SOAH for an expedited hearing under subsection (i) ofthis section. lli) Published notice ofthe initial suspension ofwater right conditions, ifgranted, 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 TexReg6910 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 ofthe information contained in the application as provided by subsection (c) ofthis 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 ofthe diversion point or impoundment authorized under the affected water right. The applicant shall file with the chiefclerk a publisher's affidavit as proofthat such notice was published in accordance with •'· this subsection. 

### ill. Ifthe commission initially grants an emergency suspension of permit conditions without a hearing, the commission shall hold the hearing required by §35.25 ofthis 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 existtothe suspensionofwaterright 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 ofalternative. supplemental water supplies to the applicant; and Q2 the applicant's effortsto curtail wateruse not essential for the protection ofthe 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 ofthose plans and measures corresponding to the staged reduction ofreleases for existing instream uses and beneficial inflows. If the water right holder does not have a water conservation plan and drought contingencyplan in accordance with Chapter 288 ofthis 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 watermanagementduring anemergency, the commission may provide conditions in a water right necessary for relief consistent withapplicable 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 waterto becapturedordivertedfor the protectionofthe publichealth, 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 Ifthe applicant's water right already contains provisions for the temporary, total, or partial suspension of permit conditions for the maintenance ofinstream flows or freshwater inflows to bays and estuaries. further or different reliefrequested in an application submitted under this section generally will be denied unless the applicant can show new or changed circumstances or an emergency condition notcontemplated when thewaterrightcondition 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 Officeofthe Secretaryof State, on June 19, 1998. TRD-9809861 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: September23, 1998 For further information, please call: (512) 239-1966 

# • • 

# • Subchapter E. Emergency Orders for Utilities 30 TAC §35.201, §35.202 STATUTORYAUTHORITY 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 ofthe TWC under which the commission takes this action include: §5.103, which .establishes the commission's general authorityto 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 overwater 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 authorityconcerning licenses for radioactive svbstance 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. §35.201. Emergency Order(or OperationofUtility thatDiscontinues Operation or is ReferredforAppointmentofaReceiver.**~** 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 ofthis title (relating to Operation ofUtility that Discontinues Operation oris Referred for AppointmentofaReceiver and Operation ofaUtility by aTemporary 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 Orderfor 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 underTexas WaterCode, §13.412; and 

## ru when the increase is necessary to ensure the provision ofcontinuous and adequate services to the utility's customers. {hl Notwithstanding the provisions of §35.22 of this title (relating to Term and Renewal ofOrders), 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 requiredby, §35.24ofthis title (relating to Application for Emergency or Temporary Order) and the following: 

### ill the effective date ofthe 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 orthreatened release ofa 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) ofthis section may prohibit a person from allowing or continuing a release orthreatened 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 onfailure ofservice by certifiedmailorhanddelivery, published onetimein the Texas Register, andonetimein 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 Officeofthe Secretaryof State, onJune 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 authorityto issueemergencyordersconcerning petroleumstorage 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 solidwaste; §366.012, which establishesthe 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 establishesthe commission's authorityto 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, 366.012, 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 Officeof the Secretaryof 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 30TAC §35.701 STATUTORY AUTHORITY 

### '\ubchapterK. +Air Orde:s +
The new section is proposed underTWC, Chapter5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC underwhich the commission takes this action include: §5.103, which establishes thecommission's general authorityto adopt rules; §5.105, which establishes thecommission's authorityto 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 cor30TAC §§35.801-35.809 STATUTORYAUTHORITY 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 underwhich 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


### PROPOSED RULES July 3, 1998 23 TexReg 6917state; §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, §§5.103, 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. §35.80/. Emergency Orders Because ofCatastrophe. The commission or executive director may issue emergency orders under Texas Water Code, §5.515, to authorize immediate action for the addition, replacement, orrepairoffacilities 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 ofthis section, a catastrophic event is an unforeseen eventincluding, 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 subchaptershall 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 forthe addition,replacement, or repair offacilities or control equipment necessitated by acatastrophic event; 

## ru a description ofthe 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 ofthe


### 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 ofair contaminants to be emitted; 

### ill an estimate of the dates on which the proposed construction and emissions will begin and end; @ an estimateofthe dateonwhichthefacility 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 ofthe order. Ifthe order is issued prior to a hearing, the order shall fix a time and location for a hearing which is to beheld as soon as practicable afterthe orderis issued. Notice of any hearing shall be published in a newspaper ofgeneral circulation in the nearest municipality not later than ten days before the hearing. Notice ofthe issuance and notice ofthe hearing may be consolidated for publication in the newspaper. §35.804. Issuance ofOrder. The commission orexecutive director may issue an order under this subchapter ifit 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 offacilities 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 ofair 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 orderfor submissionofacomplete 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 wherethe catastrophic event occurred or on other property owned by the owner or operator of the damaged facility, which also produces the same intermediates,products,orbyproducts,providedtherewill be no more than a de minimis increase in the concentration of air contaminants at orbeyond the property line at such other property; and 

### ill a schedule for submission of a complete construction permit application under provisions ofTCAA, §382.0518. §35.806. Requirement to Applyfor aPermitorModification. The owneroroperatorofa facility for which an emergency orderhas 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 ofTCAA, §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 ofthis title (relating to Permit Fees). Costs andexpensesrelated to additions,replacement, orrepairoffacilities orcontrol equipment shall not be aconsideration in any determination in the review ofthis application. §35.807. Affirmation ofan 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 thecatastrophic eventoccurred; or @ at otherproperty 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 orderfor submission ofa complete permit application is reasonable. §35.808. Modification of an Emergencv Order. Thecommission shall modify aproposed orissued orderifthe hearing record shows that: 

### ill constructionand emissionsotherwiseprecluded 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 thereis no practicable alternative to such construction and emissions; and 

# ru modification ofcertain terms ofthe proposed orissued order is necessary to make the order, construction, and/or emissiQns meet the requirements stated in §35.807 of this title (relating· to Affirmation ofan Emergency Order). §35.809. SettingAside 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 ofan Emergency Order) or §35.808 ofthis 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 Officeofthe SecretaryofState, 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 underTWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC underwhich the commission takes this action include: §5.103, which establishes the commission's general authorityto adopt rules; §5.105, which establishes thecommission's authorityto 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 overwater quality in the state; §26.351, which establishes the commission's authority concerning corrective action; §26.354, which establishes the commission's authorityto issueemergencyordersconcerning 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 establishesthe commission's authorityto 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, 5.502, 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 ofthe installer of an on-site sewage disposal system, regulating an on-site sewage disposal system, or both, ifthe commission finds that an emergency exists and that the public health and safety is endangered because ofthe operation ofan 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 Officeofthe Secretaryof State, onJune 19, 1998. TRD-9809869 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Proposed date of adoption: September23, 1998 For further information, please call: (512) 239-1966 

# • 

# • • Chapter 116. Control ofAir Pollution by Permits for New Construction or Modification 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 temp.orary orders:


### 23 TexReg6920 July 3, 1998 Texas Register §§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 temporaryorders under newTexas 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 orwithout notice. Additionally, itauthorizes the commission to delegate authoritytothe executive directorto 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 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 thatforthe first five-year periodthe sections are in effect there will be no significant fiscal implications for state or local government as a result of enforcing oradministeringthe sections. PUBLIC BENEFIT Mr. Minickalso has determinedthat foreach year ofthe 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 ANALYSISThe 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 becausetheirprimary intent isto consolidate already existing emergency and temporary order rules under one chapter. In addition, the applicability requirements do not apply becausethe commission is expressly granted authority by TWC, §5.501. The rules also concern procedural requirements ofthe agency, such as delegation of the authorityto issue such orders by the commission to the executive director, and are a result ofthe 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 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 afterthe 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 hearingshould contacttheagency at (512) 239-4900. Requests should be made as far in advance as possible. 

### Subchapter E. Emergency Orders 30TAC §116.410 STATUTORY AUTHORITY The amendment is proposed underTWC, §§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 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, Chapter5, Subchapter L. Section 382.017 establishes the commission's authority to adopt rules. Section 382.051 establishes the power ofthe 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 ofthis 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 catastrophicevent necessitates suchconstruction and emissionsotherwise precluded under the Texas Clean Air Act. [J'ef fHlfllOSes ef tiH£seetieH,a satastropfiie e¥eHti-sanHflf:ereseen e¥eHtineleding. ffirt netliffltfed£6, ltftaetefGee, ftflaetefwaf; se¥efeweatRefeoRditiOilS, 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 Officeofthe Secretaryof 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 

# • • • 30TAC §§116.411-116.418 (Editor's note: The text ofthefollowing sectionsproposedfor repeal will not bepublished. The sectionsmay be examined in the offices of the Texas Natural Resource Conservation Commission orin the Texas Registeroffice, Room 245, James Earl RudderBuilding, 1019Bra:os Street, Austin.) STATUTORY AUTHORITY 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 

### PROPOSED RULES July 3, 1998 23 TexReg 

### 69215.105 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 and Texas Health and Safety Code, §§382.017, 382.051, and 382.0513. §116.411. Applicationforan Emergency Order. §116.412. PublicNotification. §116.413. PublicHearingfor an Emergency Order. §116.414. Affirmation of an Emergency Order. §116.415. Contents of an Emergency Order. §116.416. RequirementtoApp/yfora Permit orModification. §116.417. Modification of an Emergency Order. §116.418. SettingAsidean 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 withthe Officeofthe 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 Forfurther information, please call: (512) 239-1966 

# • • • Chapter 291. Water Rates The Texas Natural Resource Conservation Commission (commission) proposes the repeal of §291.10 and §291.13, concerning procedural rules related to utilities. The commission also proposes amendmentsto §§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 orAmendment 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 changesto Chapter291 thatwill 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 tothe executive directorto 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 §291.10, 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 ofthe action is adequate if the notice is mailed or hand-delivered to the last known address of_BarryR.McBee, Chairman R. B.**•RaJph~**Marquez, Commissioner JohnM. Baker, Commissioner DanPearson, ExecutiveDirector 

## TEXAS NATURAL RESOURCE CONSERVATION COMMISSION Protecting Texas byRedudngandPreventingPollution NOTICE OFPUBLIC HEARINGBYTHE TEXASNATURAL RESOURCE CONSERVATION COMMISSION ON PROPOSEDREVISIONSTO 30TAC CHAPTERS35, 116,291,297, 305, 321, AND 334 AND THESTATEIMPLEMENTATIONPLAN Notice is hereby given that under the requirements ofTexas Health and Safety Code, §382.017; Texas GoVernment Code, Subchapter B, Chapter 2001; and 40 Code ofFederal Regulations, §51.102 ofthe United States Environmental ProtectionAgency (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 partofthe commission's implementation ofSenate Bills 1and 1876, 75th Legislature, 1997. The rules will allow the commission orexecutive director to act expeditiously to address unforeseen circumstances and/oremergencies. A public hearing on the proposal will be held August 3, 1998, at 2:00p.m. in Room 2210 ofTNRCC Building F, located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt oforal or writtencommentsby interestedpersons. Individual:> maypresentoral statements whencalledupon in order ofregistration. Open discussion will not occur during the hearing; however, an agency staffmember 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 ofPolicy 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, onJune 17, 1998.**·~ -~**  p •; ".-,. ···-::: 

# fj)J(f} Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission**·~**

### 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 effortto consolidate agency procedural rules and make certain processes consistent among different agency programs. This action also includes certainchanges necessary to implement SB 1, 75th Legislature, 1997, which are noted as follows. Finally, certainprovisions ofthe rules will constitute arevisionto the state implementationplan.

The new Chapter 35 is largely derived from previously existing rules. Thus, the commission is concurrently proposing amendments to emergency and temporary orderprovisions 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 ofthe following currentrules 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 ofthe 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, SubchapterL. The new statute expressly authorizes the commission to issue temporary or emergency mandatory, permissive, orprohibitory orders, and issueTexas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD

temporary permits or suspendpermit conditions by temporary oremergency order. It allows the commissionto issue emergency orders with orwithout notice. Additionally, it authorizes the Page 2

commission to delegate authority to the executive directorto receive applications and issue emergency orders and authorize representatives to act on his orherbehalf. 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 orthe executive directorto act expeditiously to address unforeseen circumstances.

These proposed rules conform with the provisions provided in TWC, Chapter 5, SubchapterL, and provide procedural requirements for implementation. TWC, §5.501, concerning Emergency and Temporary OrderorPermit; Temporary Suspension orAmendment ofPermit Condition, expressly authorizes the commissionto 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 andprogram-specific requirements. The latter are largely derived from emergency and temporary orderrules that already exist in otherchapters within Title 30 ofthe 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 ofauthority to issue certain orders to the •,_Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD

executive director. Additionally, the commission is proposing changes to program-specific requirements that result from the passage ofSBs 1and 1876. Finally, the commissionproposes 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 SubchapterA, concerning Purpose, Applicability, and Definitions, sets forth certain general provisions necessary for administration ofthe chapter. Proposed new §35.1, concerning Purpose, provides that the purpose ofthe new chapter is to implementthe commission's authority under TWC, Chapter 5, SubchapterL, to issue temporary oremergency mandatory, permissive, or prohibitory orders, and by those orders to issue temporary permits ortemporarily suspend oramend permit conditions. This provision is in accordance with TWC, §5.501, which contains the statutory authorizationfor the issuance ofthese orderS'.
Proposed new §35.2, concerning Applicability, provides that the chapter applies to any application under TWC, Chapter 5, Subchapter L, to issue temporary oremergency mandatory, permissive, or prohibitory orders.
Proposed new §35.3, concerning Definitions, provides definitions for emergency order, severe property damage, and temporary order. The purpose ofthis sectionto provide general definitions for the chapter and to help administerthe provisions ofTWC, Chapter 5, Subchapter L. An emergency order is defined as an orderthat mustbe issued immediately in orderto protect human health and safety
or the environment; orfor reasons specified in proposed new §35.302, concerning Application forTexas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 4

Emergency and Temporary Orders to Discharge. The definition ofsevere 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 orderofshort-duration which mustbe issued as quickly as possible, orwhich might allow an authorization for a short-term activity, setting conditions and limitations that will adequately protecthumanhealth or safety or the environment, or for the reasons specified in new §35.302.
Proposed new SubchapterB, concerning Authority ofExecutive Director, is comprised ofthree sections and regards delegationto the executive director, as authorized by TWC, §5.501. New §35.11, concerning Purpose and Applicability, provides that the purpose ofSubchapter Bis to allow the executive director to act onbehalfofthe commission.
Proposed new §35.12, concerning Authority ofthe Executive Director, authorizes the executive director, ora representative orrepresentatives authorized in writing by the executive director, to act on his orherbehalfto receive applications for and issue emergency orders. The section also provides notice and hearing procedures.
Proposed new §35.13, concerning Eligibility ofExecutive Director, provides for the authority ofthe executive director or the executive director's representative to act onTexas pollutant discharge elimination system (TPDES) permits orother TPDES-related approvals ifthe executive director meets the qualifications specified in §50.41, concerning Eligibility ofExecutive Director.Texas Natural Resource Conservation Commission Chapter 35

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Proposed new SubchapterC, 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 orexecutive directorto issue temporary oremergency orders and, by temporary oremergency order, to issue atemporary permitortemporarily suspend or amend apermitcondition. The new provisions implementTWC, §5.501.
Proposed new §35.22, concerning Term and Renewal ofOrders, provides that unless otherwise noted by aprogram-specific requirement, the term ofan emergency order is amaximum of 180 days, and that an emergency ordermay be renewed once for an additional period ofup to 180 days by submittal ofa 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 ofOrder.
Proposed new §35.23, concerning Effect ofOrders, provides that an emergency ortemporary order does not vest any rights in the permitholder orrecipient and expires in accordance with its terms.
Proposed new §35.24, concerning Application for Emergency orTemporary Order, specifies requirements governing applications. The sectionprescribes the necessary contents ofthe application and requires its filing withthe chiefclerk. Subsection (b) specifies that an application for an emergency ortemporary orderfor a bypassofuntreated and partially treated wastewater, ifthe state has national pollutant discharge elimination system (NPDES) authorization, will constitute priornotice ofan anticipated bypass, as required by 30 TAC §305.535. Section 35.24 also requires copies ofthe application to be provided to the division director ofthe appropriate programon behalfofthe executiveTexas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 6

director, and to the public interest counsel, at the same time it is filed with the chiefclerk. Finally, the sectionprescribes the manner in which applications are to be signed. The new section implements TWC, §5.502, concerning Application for Emergency orTemporary 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 sectionprovides that an emergency ordercan be issued with orwithout notice and/or opportunity for hearing, and that ifone is issued without a hearing, the order will set atime and place for ahearing to affirm, modify, or set aside the orderto be heldbefore the commission or its designee as soon as practicable afterthe order is issued. In addition, the sectionprovidesthat unless otherwise provided by program-specific requirements, notice ofa hearing for issuance ofan emergency orderorto affirm, modify' or set aside the ordermust be given not later than the tenth daybefore the date set for the hearing and provide that an affected person may request an evidentiary hearing onthe issuance ofthe emergency order. The section also provides that temporary orders require ahearingbefore their issuance, and that notice must be given not later than the 20th day before the hearing and provide that anaffected person canrequest an evidentiary hearing
on issuance ofthe temporary order. Program-specific notice requirements are also set out. Some of these notice requirements are not in existing Chapter 305 and provide clarification ofnotice requirements. In addition, the newspaper notice for aircatastrophes replaces the existing requirement for notice to be given in the Texas Register. The proposed section implements TWC, §5.504.Texas Natural Resource Conservation Commission Chapter 35

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Proposed new §35.26, concerning Contents ofEmergency orTemporary Order, contains the minimum requirements for informationthat mustbe included in these types oforders. 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 commissionrules. The hearing procedures implementTWC, §5.115(a), concerning Persons Affected in CommissionHearings, and TWC, §5.504, concerning Hearingto Affirm, Modify, or SetAside Order.
Proposed new §35.30, concerning Application Fees, provides that the application fee for an emergency
or temporary orderunderthis chapter is $500, plus the actual cost ofthe required notice. TWC, §5.501, authorizes the adoption offees for administering the program. In addition, the increase is authorized by TWC, §5.235, which establishes fee authority, and by Rider 9under the commission's appropriation in Article VI ofHB 1, 75th Legislature, 1997, the General Appropriations Act. The commissionproposes to increasethe 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 ofBeneficial Inflows. The subchapter implements TWC, §5.506, concerning Emergency Suspension ofPermit ConditionRelating to •,_Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 8

Beneficial Inflows to Affected Bays and Estuaries and lnstreamUses, and containspreviously existing requirements that have been moved to the new Chapter 35.

New §35.101, concerning Emergency Suspension ofPermit Conditions Relating to Beneficial Inflows to Affected Bays and Estuaries and lnstreamUses, providesthe 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 ofPermit 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 Orderfor Operation ofUtility that Discontinues Operationor is Referred for Appointment ofReceiver, and §5.508, concerning Emergency Orderfor Rate Increase in Certain Situations. Proposed SubchapterE 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 commissionproposes to allow the executive director to issue the orders under this subchapter, as authorized by TWC, §5.501.
Proposed new §35.201, concerning Emergency Orderfor Operation ofUtility that Discontinues Operationoris Referred for Appointment ofaReceiver, authorizes the commission or executive director to appoint a person by emergency orderto temporarily manage and operate autility that hasTexas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Lcig No. 97142-035-AD Page 9

discontinued orabandoned operations, orwhich has been or is being referred to the Attorney General for the appointment ofa receiverunderTWC, §13.412. This provision implements both TWC, §5.508, concerning these types oforders; and TWC, §13.412, as amended by SB 1, which expanded the definition ofabandonment. Theproposed new section also authorizes the issuance ofan emergency order in accordance with current §291.142, concerning Operation ofUtility that Discontinues Operation oris Referred for Appointment ofa Receiver, and §291.143, concerning Operation ofa Utility by aTemporary Manager.
Proposed new §35.202, concerning Emergency Orderfor Rate Increase in Certain Situations, authorizes the commission orexecutive 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 ofIntent to Change Rates, that have beenmoved to the new Chapter 35, and the commission proposes no substantive changes to those requirements.
Proposed new SubchapterF concernsWater Quality Emergency and Temporary Orders. The subchapter implements TWC, §5.509, concerning Temporary or Emergency Order Relating to Discharge ofWaste orPollutants, and includes existing commission rules thathave beenmoved to the
new Chapter 35 from Chapter 305, SubchapterB. While largely derived from currentcommission rules, the commission is proposing to allow the executive directorto issue the orders under this subchapter, as authorized by TWC, §5.501. The commission takes this action in orderto provide for the more expeditious issuance ofemergency and temporary orders.Texas Natural Resource Conservation Commission Chapter 35

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Proposed new §35.301, concerning Emergency and Temporary Orders Authorized, authorizes the commission orexecutive directorto issue emergency orders, and the commission to issue temporary orders, for the discharge ofwaste orpollutants into oradjacent 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 additionto the application requirements specified in proposed §35.24, this proposed section requires aperson desiring to obtain an emergency ortemporary orderto provide specific information, including a statement that the order is necessary to enable actionto be taken more expeditiously than is otherwise provided by TWC, Chapter 26, to effectuate the policy and purposes ofthat chapter, and statements onthe nature ofthe proposed discharge. Additionally, the section reflects

# achange inthe law thatprovides that amelioration of serious drought conditions can be acondition necessitating the issuance ofan emergency ortemporary orderto the extent consistent with state assumption ofthe NPDES program. Further, upon assumption ofthe NPDES program, apermittee 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 commissionorexecutive director may issue emergency ortemporary orders.
Proposed new Subchapter G concerns SolidWaste and Uranium By-product Emergency Orders. It implements TWC, §5.511, concerning Emergency Administrative Order Concerning Imminent and 

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Substantial Endangerment, and §5.512, concerning Emergency Order Concerning Activity ofSolid Waste Management, and contains provisions from existing commissionrules. While largely derived from currentcommission rules, the commission is proposing to allow the executive directorto issue the orders underthis subchapter, as authorizedby TWC, §5.501.
Proposed new §35.401, concerning Emergency Orders for Nonhazardous Solid Waste Activities and Underground Injection ofUranium By-product Materials, authorizes the commission orexecutive director to issue a mandatory orprohibitory emergency order regarding any activity ofsolid waste management within itsjurisdiction, whetherthe activity is coveredby permit ornot, ifit determines that an emergency exists. The section also provides for terms ofthese orders. The new section was derived from existing §305.29, concerning Emergency Orders for Solid Waste Activities. As noted, the commissionproposes to authorize the executive directorto issue these orders, as allowed by statute. In addition, the commissionproposes to add requirements for underground injection control (UIC) emergency orderspreviously 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 commissionproposes to allow the executive director to issue orders under the proposed section. 

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Proposed SubchapterH concerns Radioactive Substances and Materials Emergency Orders. The proposed subchapterimplements TWC, §5.516, which authorizes the issuance ofemergency orders underHealth and Safety Code (HSC), §401.056, concerning Emergency Orders.
Proposed new §35.501, concerning Emergency Orders Relating to Radioactive Substances, provides for commissionorexecutive director action ifit is determined that radioactive substances threatenthe public health or safety orthe 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 actionby the executive director. In addition, proposed §35.501(g), concerning financial assurance, contains changes to what is in current §305.31(h), to betterreflect the relevant statutory language. Additionally, former §305.31(b) and (c), concerningby-productmaterial, are deleted due to the transfer ofjurisdictionover those wastes to the Texas DepartmentofHealth, under SB 1857, 75th Legislature, 1997 (see this edition ofthe 

### Texas Register). The commissionproposes 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 ofRadioactive Material, provides for commission and executive director actionto impound ororderthe impoundment ofradioactive material possessed by any person not equipped to observe, orfailing to observe, the provisions ofthe Texas Radiation Control Act (TRCA), the rules of30TAC Chapter 336 (relating to Radioactive Substance**·~**Texas Natural Resource ConservationCommission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 13

Rules), ora license ororder issued by the commissionunderTRCA or Chapter 336. The section also provides for the disposition ofthe radioactive material. The section is derived from current §305.32, concerning Emergency Impoundment ofRadioactive Material, and the commissionproposes only to provide for action by the executive director. The commissionproposes 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 SubchapterI concerns Storage TankEmergency Orders. The subchapter implements TWC, §5.510, which authorizes the issuance ofthese orders. Proposed §35.601, concerning Emergency OrderConcerning Underground orAboveground Storage Tanks, authorizes the commission orexecutive director to issue an orderto the owner oroperator ofan underground storage tank regulated under TWC, Chapter 26, and 30TAC Chapter 334 (relating to Underground and Aboveground Storage Tanks). The section containsprogram-specific requirements concerning the content ofthe order, and itprovides for the delivery ofthe order to people identified inthe 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 actionby the executive director. Otherwise, the commissionproposes 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 SubchapterJ, concerning Imminent and Substantial Endangerment, implements TWC, §5.511, concerning Emergency Administrative OrderConcerning Imminent and SubstantialTexas Natural Resource ConservationCommission Chapter 35

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Endangerment. Proposed §35.701, concerning Emergency Orders, allows the commission or the executive director to issue anemergency.administrative orderunderHSC, §361.272, in the manner prescribedby proposed Chapter 35.
Proposed new Subchapter K, concerning Air Orders, implements TWC, §5.514 and §5.515, concerning Order Issued Under AirEmergency and Emergency Order Because ofCatastrophe, respectively. The proposed rules are derived from currentChapter 116, SubchapterE, concerning Emergency Orders. The commissionproposes changes to make the provisions consistent with SB 1876. This subchapter will also becomepart ofthe state implementationplanbecause it replaces the rules currentlyfound in Chapter 116, SubchapterE.
Proposed new §35.801, concerning Emergency Orders Because ofCatastrophe, authorizes the commission orexecutive director to issue anemergency order authorizing immediate action for the addition, replacement, orrepair offacilities or control equipment, and authorizing associated emissions ofair 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 Applicationfor an Emergency Order, requires the submission ofan application in accordance with proposed §35.24. The section also provides the information that must be submitted in additionto the general application requirements. The section is derived from current §116.411, concerning Applicationfor an Emergency Order. 

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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 ofthe emergency orderand the hearing to affirm, modify, or set aside in a newspaper ofgeneral circulation in the nearest municipality not later than the tenth day before the hearing. This is a change from current §116.412, which requires 

### TexasRegisternotice as
soon as practicable after issuance. The new section also contains changes allowing the commission or the executive directorto act.
Proposed new §35.804, concerning Issuance ofOrder, authorizes the commission or executive director to issue anorderunder this subchapter ifcertain conditions are found to exist.
Proposed new §35.805, concerning Contents ofan 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 ofan Emergency Order.
Proposed new §35.806, concerning Requirement to Apply for aPermit orModification, requires the
owner oroperator ofa facility for which anemergency orderhas been issued to submit an application within 60days ofissuance ofthe order in accordance with statute and commission rules. The section is derived in its entirety from current §116.416, concerning Requirementto Apply for a Permit or Modification.**·~**Texas Natural Resource Conservation Commission Chapter 35

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Proposed new §35.807, concerning Affirmation ofan Emergency Order, provides the conditions under which the commission affirms aproposed orissued order. The section is derived in its entirety from current §116.414, concerning Affirmation ofan Emergency Order.
Proposed new §35.808, concerning Modification ofanEmergency Order, provides the conditions under which an emergency order mustbe modified. The section is derived from current §116.417, concerning Modification ofan Emergency Order.
Proposed new §35.809, concerning Setting Aside an Emergency Order, requires a proposed orissued orderto be set aside ifthe hearing record does not show that the order shouldbe affirmed ormodified. The sectionis derived from current §116.418, concerning Setting Aside and Emergency Order.
Proposed SubchapterL, concerning On-site Sewage Disposal System, implements TWC, §5.513, which authorizes the issuance ofthese orders. Proposed §35.901, concerning Emergency Order Concerning On-Site Sewage Disposal System, authorizes the commission to issue an emergency order suspending the registration ofan installer ofan on-site sewage disposal system, regulating an on-site sewage disposal system, orboth, under certainconditions.

FISCALNOTE StephenMinick, 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 ofthe sections. The effect on state government will be a small reductionTexas Natural Resource ConservationCommission Chapter 35

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in costs as a result ofthe delegation ofcertain actions to the executive director and the overall Page 17

simplification and standardizationofemergency and temporary orderprovisions. Revenues collected by the commissionwill increaseby $400 for each order appliedfor under the provisions ofthese rules. The effect on loca_l governmentswill be an increase of$400 in application fees under the proposed increase from $100 to $500. Any other implications for units oflocal government making application for orders under these proposed sections will be similarto those effects on any applicant.

PUBLIC BENEFIT Mr. Minickhas also determined that for the first five years the sections as proposed are in effect, the public benefit anticipated as a result ofenforcement ofand compliance with the sections will be improved consistency between commission regulations and statutory authority for emergency and temporary orders, more uniformrequirements for such orders, and more cost-effective administration and processing oforders. The costs to persons, including small businesses, required to comply with the sections as proposed arethe proposed increase in applicationfee for an orderfrom $100 to $500 and the stipulationthat an applicantis required to reimburse the commission for any costs ofpublic notice incurred by the commission onbehalfofthe applicant. The costs ofnotice will vary on a caseby-case basis with the type ofapplication and the number ofparties 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 othereconomic costs are anticipated for any person required to comply with the sections as proposed.Texas Natural Resource Conservation Commission Chapter 35

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DRAFT REGULATORY IMPACT ANALYSIS Page 18

Staffhas reviewed the proposed rulemaking underthe regulatory analysis requirements ofTexas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meetthe definition ofa "major environmental rule" as defmed in that statute, and it does not meet any ofthe 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 ofthe agency, such as delegation ofthe authority to issue such orders by the commission to the executive director, and are a result ofthe commission's continuing regulatory reform effort.

TAKINGS IMPACT ASSESSMENT The commissionhas prepared a takings impact assessment for these rules under Texas Government Code, §2007.043. The following is a summary ofthat assessment. The specific purpose ofthese rules is to implement the statutory provisions ofTWC, Chapter 5, Subchapter L. The rules will also provide for the delegation ofauthority to issue emergency orders by the commission to the executive director, consolidate agency procedural rules, and make certainprocesses consistent among different agency programs. The rules will substantially advance these specificpurposes by providing specific provisions
on these matters. Promulgation and enforcement ofthese rules will not burdenprivate real property which is the subject ofthe rules because they concern commissionprocedural 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 CoordinationImplementationRules, 31 TAC §505.11, orwill affect an action/authorization identified in the Coastal CoordinationAct ImplementationRules, 31 TAC §505.11, and will, therefore, require that applicable goals and policies ofthe 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 thatthe proposed rules are consistent withthe applicable CMP goals and policies. The following is a summary ofthatdetermination. The CMP goal applicable to the proposed rules is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values ofcoastal natural resource areas. CMPpoliCies applicable to the proposed rules include the administrative policies and the policies for specific activities related to: constructionand operation or solid waste treatment, storage, and disposal facilities; discharge ofmunicipal and industrial wastewater to coastal areas; nonpoint source waterpollution; and appropriations ofwater. Promulgation and enforcement ofthese proposed rules is consistent with the applicable CMP goals and policies because the proposed rules will establish clear and consistent requirements governing the issuance ofemergency and temporary orders, as authorized by TWC, Chapter 5, SubchapterL. Under the authority granted by statute, the commission may issue emergency ortemporary orders to address unforeseen circumstances, such as drought conditions orpotential catastrophes. Promulgation and enforcement of these rules will not violate orexceed any standards identified in the applicable CMP goals and policies 

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because they will allow the commissionto take steps to mitigate emergency orpotential emergency situations, which will result inenvironmental benefits for the entire state, including coastal areas.

The commission**i~vites** publiccomment onthe consistency ofthe proposed rules.

PUBLIC HEARING Apublic hearing onthis proposal will be held August 3, 1998, at 2:00p.m. inRoom 2210 ofTexas Natural Resource Conservation Commission (TNRCC) Building F, located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt oforal or written comments by interestedpersons. Individuals may present oral statements when called upon in order ofregistration. Opendiscussion will not occurduring the hearing; however, an agency staffmember will be available to discuss the proposal 30 minutes priorto the hearing and<will answer questions before and after thehearing.

SUBMITTAL OFCOMMENTS Comments may be submitted to Lisa Martin, TNRCC Office ofPolicy and Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas, 78711-3087 orfaxed to (512) 239-4808. All comments should reference Rule Log Number 97142-035-AD. Comments mustbe receivedby 5:00p.m., August 3, 1998. Forfurther information, please contactBrian Christian, Policy Research Division, (512) 239-1760.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 21

Persons with disabilities who have special communicationorother 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. Otherrelevant sections ofthe TWC under which the commissiontakes 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 policyby 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 instreamuses; §13.041, which establishes the commission's authority to adopt rules to exercise itsjurisdictionover 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 ofthe HSC include: §361.011, which establishes the commission's jurisdictionover municipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the control ofsolid 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 airpermits; Page 22

§382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the commission's authority overradioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control ofradiation; §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 implementTWC, §§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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CHAPTER35 :EMERGENCYAND TEMPORARYORDERSAND PERMITS; TEMPORARY SUSPENSIONORAMENDMENT OFPERMITCONDITIONS SUBCHAPTERA : PURPOSE, APPLICABILITY, ANDDEFINITIONS §§35.1-35.3

§35.1. 

### Purpose.

The purpose ofthis chapter is to implementthe commission's authority under Texas Water Code. Chapter 5. Subchapter L. to issue temporary or emergency mandatory. permissive. or prohibitory orders and bythose orders to issue temporarypennits ortemporarily suspend or amend permit conditions.
§35.2. Applicability.

This chapter applies to any applicationunder Texas Water Code. Chapter 5. Subchapter L. to issue temporary or emergency mandatory. permissive. orprohibitory 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.Texas Natural Resource Conservation Commission Chapter 35

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0) 

### Emereencyorder- Anorderwhich mustbe issued immediately. in orderto protect humanhealth orsafety orthe environment. orfor other reasons sPecifiedby statute. Specific requirements for anemergency orderare s.pecified inthe rules in this chapterrelating to eachprogram.
(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 reasonablybe expected to occurin the absence ofa discharge. Severe property damage does not mean economic loss causedby delays inproduction.
(3) 

### Temporary order

- An order ofshortduration which must be issued as quickly as possible orwhich might allow an authorization for a short term activity. setting conditions and limitations that will adeQYately protect humarrhealth or safety orthe envirorunent. orfor the reasons specified in §35.302 ofthis title (relating to Applicationfor Emergency and Temporary Orders to Discharge). Specific requirements for a temporary order are specified in the rules in this chapter relating to eachprogram. 

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SUBCHAYfERB :AUTHORITYOFEXECUTIVEDIRECTOR §§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 ofthe TWCunder which the commissiontakes 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 affectedbays and estuaries and instream uses; §13.041, which establishes the commission's authority to adopt rules to exercise itsjurisdiction 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 ofthe HSC include: §361.011, which establishes the commission's jurisdiction over municipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the control ofsolid waste; §366.012, which establishesthe 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 airpennits;Texas Natural Resource Conservation Commission Chapter 35

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§382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishesthe**commis~ion's** authority overradioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control ofradiation; §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 implementTWC, §§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. PurposeandApplicability.

The purpose ofthis subchapter is to dele2ate authority to the executive director and to specify applications for emer2ency orders on which the executive director may take action onbehalfofthe commissionunder this chapter.


### §35.12. Authority ofExecutiveDirector.
(a) The executive directormay receive aJ1plications and issue .emer2ency orders under this chapter. Ifanemer2ency order is issued without notice and ahearin2. notice shall be issued and a hearin2 by the commissionto affirm. modify. or set aside shall be set. Ifa hearing request is received.Texas Natural Resource ConservationCommission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 27

and the commission grants the request. the commission shall eitherhold 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'sbehalfunder this chapter.


### §35.13. Eli2ibility ofExecutive Director.
Upon assumption ofnational pollutantdischarge elimination system permit authority. the executive director. orthe executive director's representative or representatives. may act under this chapter on Texas pollutantdischarge elimination system CTPDES) permits or other TPDES-related approvals only ifhe or she meets the qualifiqations set outfor the executive director in §50.41 ofthis title (relating to Eligibility ofExecutive Director).Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD

SUBCHAPTER C : GENERAL PROVISIONS §§35.21-35.30

STATUTORY AUTHORITY The new sections areproposed underTWC, Chapter 5, SubchapterL, which establishes the Page 28

commission's authority concerning emergency and temporary orders. Other relevant sections ofthe 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 amendedby 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 tobeneficial inflows to affected bays and estuaries and instream uses; §13.041, which establishes the commission's authority to adopt rules to exercise itsjurisdiction overTWC, Chapter 13; §26.011, which establishes the commission's authority over waterquality 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 concerningunderground injectioncontrol. Additionally, relevant sections ofthe HSC include: §361.011, which establishes the commission's jurisdictionovermunicipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the control ofsolid 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;**·~**Texas Natural Resource ConservationCommission Chapter 35

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§382.0513, which establishes the commission's authority to adopt rules concerning permit conditions; §401.011, which establishes the**commis~ion's** authority overradioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control ofradiation; §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 implementTWC, §§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 orExecutiveDirector.

For the purposes of. and in the mannerprovided by this chapter. the commission may issue a temporary order: and the commission or the executive director may issue an emergency. mandatory. permissive. orprohibitory order: and the commission by temporary order. orthe executive director or commissionby emergency order. may:
(1) issue a temporarypermit: or
(2) temporarily suspend or amend apermitcondition. 

# .**~**Texas Natural Resource ConservationCommission Chapter 35

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### §35.22. Term and Renewal ofOrders. Page 30

Unless otherwiseprovided by this chapter. an emer2ency order issuedunderthis 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 ofa new application. A temporary ordermust be limitedto a reasonable time specified by the order.


### §35.23. Effect ofOrders.

An emergency ortemporary order issued under this chapterdoes not vest any rights in the permitholder or recipient and expires in accordance with its terms.


### §35.24. Application for Emereem;y or Temporary Order.
(a) Aperson wanting anemergency or temporary orderunder this chapter shall submit a written application to the chiefclerk. Unless the person submitting the application is the executive directororthe executive director's representative. the application mustbe sworn.
(bl Ifthe State ofTexas has been authorized to administer the national pollutant discharge elimination systemprogram. and a person seeks an emergency ortemporary orderfor abypass of untreated orpartially treated wastewater. as that term is defined in §305.2 ofthis title (relating to Definitions). from a facility that is subject to aTexas pollutantdischarge elimination system permit. theTexas Natural Resource Conservation Commission Chapter 35

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filing ofthe application for an emergency or temporary orderconstitutes priornotice ofan anticipated bypass. Filing ofthe application for bypfiSS shall be done. ifpossible. at least ten days before the date ofthe bypass. The personmust comply with all bypass reQJ.Iirements under §305.535 ofthis title (relating to Bypasses from TPDES Permitted Facilities).
(c) The applicationmust:

(1) state the name. address. and telephone number ofthe applicant. the person submitting the cuwlication onthe applicant's behalf. and the person signing the application onthe applicant's behalf:
(2) contain information suffieient to identify the facility and location to be affected by the order:
(3) describe the condition ofemergency orother conditionjustifyingthe issuance of the order:
(4) allege facts to support any findings required under this chapter:
(5) estimate the dates onwhich the proposed order should begin and end and the dates
on which the activity proposed to be allowed. mandated. orprohibited should begin and end:**·~**

### Texas Natural Resource Conservation Commission Chapter 35

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(6) describe the action souihtand the activity proposed to be allowed. mandated. or prohibited:

(7) 

### include any other statement or information required by this chapter: and
(8) be accompaniedbypayment ofany application fees required by the commission.
(d) Acopy ofthe application mustbe provided to the divisiondirector ofthe appropriate**pro~ram** 

### onbehalfofthe executive director. and to the public interestcounsel. at the same time it is filed with the chiefclerk. The division directormay**desi~nate** 

### another representative ofthe executive director for this service.
(e) All applications shallbe signed as follows.

(1) 

### For a corporation. the application shall be**si~ned** 

### by a responsible corporate officer. Forpurposes ofthis paragrcwh. a responsible corporate officermeans apresident. secretary. treasurer. orvice-president ofthe corporation in charge ofaprincipal business function. or any other personwho performs similarpolicy ordecision-making functions for the corporation: or the manager ofone ormore**manufacturin~.** 

### production. oroperating facilities employing more than 250 persons or having gross annual sales orexpenditures 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. Corporateprocedures governing authority to signpermit cwplications mayTexas Natural Resource ConservationCommission Chapter 35

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provide for assignment ordelegation to aDPlicable corporatepositions rather than to specific individuals. Documentation ofauthoriU: to sign mustbe provided withthe application. Page 33

(2) Forapartnership or soleproprietorship. the ap_plication shall be signedby a general partner orthe proprietor. respectively.
(3) Fora municipality. state. federal. orotherpublic agency. the application shall be signed by either aprincipal executive officer or a ranlcing elected official. Forpurposes ofthis paragraph. aprincipal executive officer ofa federal agency includes the chiefexecutive officer ofthe agency. ora seniorexecutive officerhaving responsibility for the overall operations ofaprincipal geographic unit ofthe agency (e.g
.. regional administrator ofthe United States Environmental ProtectionAgency).
(4) Forthe executive director. the application shall be signed by the executive director
or any duly authorized representative:
(5) A person otherthan the executive director orthe executive director's representative signing an application shall make the following certification: "I certifyunder penalty oflaw that this document and all attacbments were prepared undermy direction orsupervision in accordance with a system designed to assure that q_ualified personnel prqperly gather and evaluate the information submitted. Based onmy inquiry ofthe personorpersons who manage the system. orthose persons directly responsible for gathering the infoonation. the information submitted is. to the best ofmy 

# .**~**Texas Natural Resource Conservation Commission Chapter 35

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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 offine and imprisonment for knowing violations."
(6) Forhazardous solid waste applications. the owner and o.perator ofa facility must signthe application.

(7) For radioactive material license applications under Chapter 336 ofthis title (relating to Radioactive Substance Rules). the applicant orpersonduly authorized to act for and onthe swplicant's behalfmust sign the swplication.


### §35.25. Notice andOpportunityfor 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) Ifan 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 orderto 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 ofahearing to affirm. modify. or set aside an emergency orderunder this chapter shall be given not laterthan the tenth day before the dateTexas Natural Resource ConservationCommission Chapter 35

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set for the hearing. This notice shall provide that an affected personmay request an evidentiary hearing on issuance ofthe emergency order. Page 35

Cdl Temporary orders reQ.Uire ahearing before the issuance ofthe order. Notice ofa hearing
on a temporary order shall be givennot laterthan the 20th day before the hearing onthe order. This notice ofhearing shall provide that an affectcrd personmay reQ.Uest an evidentiary hearing on issuance ofthe temporary order.
(e) In additionto the notice reQ.Uirements provided elsewhere in these rules. notice shall be provided as follows.

(1) Forwater quality tei11Pol"ary orders. notice ofahearing that is held before issuance ofthe order shall be provided:
(A) by mail to persons requesting public notice ofcertainapplications. jn accordance with §39.7 ofthis title (relating to Mailing Lists) and to persons or agencies identified in §39.13 ofthis title (relating to Mailed Notice):

(B) by publicationby the applicant in a newspaper oflargest general circulation that is published in the county in which the facility is located orproposedto be located. Ifa newspaper is not published in the county in which the facility is located orproposedto be located. the notice must be published in the newspaper ofgeneral circulation in the county in which the facility isTexas Natural Resource ConservationCommission Chapter 35

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located orproposedto be located. The applicant must file an affidavit with the chiefclerk**certifyin~** facts thatconstitute compliancewith the publication reQYirements. The deadline to file the affidavit is 15 days afterpublicationofthe notice.**Filin~** anaffidavit certifyini facts that constitute compliance with notice requirements creates a rebuttable presumptionofcompliance withthe reQYirement to publish notice: and

(C) at least 20 days before the hearing.
(2) Forwater quality emergency orders. notice ofthe issuance ofthe order and the**hearin~** to affirm. set aside. ormodify ifa**hearin~** is held shall be provided in accordance with paragraph O)(A) and (C) ofthis subsection.

(3) Fornonhazardous**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 ofthis title**(relatin~** to Public Notice) for notice ofa**hearin~** on an application for a UIC permit.

(4) Fornonhazardous solid waste emergency orders. notice shall be mailed and published not later thanthe tenth day before the**hearin~** to affirm. modify. or set aside the emergency order. as is required by Chapter 39 ofthis title for notice ofahearing on an application for a nonhazardous waste permit.**·~**Texas Natural Resource Conservation Commission Chapter 35

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(5) Forhazardous solid waste emergency orders. including UIC emergency orders. notice shall be mailed andpublished at least 30 daysbefore the hearing to affirm. modify or set aside the emergency order. as reguiredby Chapter 39 ofthis title for notice ofa hearing onan application for a hazardous waste permit. The commissionmust also give at least45 days for public couunent before issuing the order.
(6) For suspension ofbeneficial inflows under TexasWater Code. §11.148. notice shall be published in a newspaperornewspapers ofgeneral circulation in the affected area not later than the 15thday beforethe hearing to all affected persons.

<7) For water utility emergency orders for operation ofautility. 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) Forair 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 conditionofair pollution emergency orders. the timing. method. and recipients ofnotice shall be as practicable under the circumstances. •,,Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD

(11) Forradioactive substances emergency orders. notice shall be providedby Page 38

personal service orcertified mail to**tho~** named inthe order not laterthan the tenth day before the hearing to affirm. modify. or set aside.
(12) Forradioactive material impoundment. notice shall be provided by personal service or certified mail tothose named in the ordernot laterthan the tenth day before the hearing to affinn. modify. or set aside.
<13) Forpetroleum storage tankemergency orders. notice shall be provided by certified mail. hand delivery. orifthat fails. one time in the 

### TexasRegisterorpublished once in the county newspaper not later than the tenth day before the hearing to affirm. modify. or set aside.
(14) Forjmminent and substantial endangerment emergency orders. notice shall be givenby certified mail for hand delivery to the person named in the order. and ifthat fails. published
once in the 

### Texas Registerand once in the newspaper ofgeneral 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.Texas Natural Resource Conservation Commission Chapter 35

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## <D Statutes orrules reQuiring notice ofhearing orsettingprocedures for the issuance of pennits do not apply to ahearing onanemergency order issuedunder this chapterunless they specifically reQuire notice for an emergency order.
(g) Ifthe commission acts on an application for atemporacy order. orthe commission or executive director acts on an application for an emen:ency order. the chiefclerk orthe office designated by the executive director shall mail notice ofthe action to the applicant. the executive director. public interest counsel. and otherpersons who have filed hearing requests orpublic comment.



### §35.26. ContentsofEmereency orTemporaryOrder.

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

( 1) the name and address ofthe applicant and infonnation sufficient to identify the facility orlocation affected by the order:
(2) a description ofthe condition ofemergency orother conditionjustifying the issuance ofthe order:
(3) any findings offacts reQYired under this chapter: 

# . '·

### Texas Natural Resource Conservation Commission Chapter 35

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(4) a statement ofthe term ofthe order. includin2 the dates onwhich it shall begin and end and the dates on which the activityproposed to be allowed. mandated. orprohibited shall begin and end: (5) adescription ofthe action sought and the activity proposed to be allowed. mandated. or prohibited:
(6) ifthe order was issued without a hearing. a statementto that effect and aprovision setting a time and place for a hearing before the commissionorits designee: and

(7) 

### any other statement or information required by this chapter.


### §35.27. Hearin& Required.

A hearing shallbe heldbefore the issuance ofeach temporary order and eitherbefore or after the issuance ofeach emergency order. Ifno hearing is held before the issuance ofan emergency order. a hearing to affirm. modify. orset aside the order shall be heldbefore the commission orits designee as soon as practicable afterthe orderis issued.Texas Natural Resource ConservationCommission Chapter 35

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### §35.28. Hearing Requests. Page41

(a) The executive director. the applicant. or an affectedperson as defined byTexas Water Code. §5.115Ca) may request a contested case hearing.
(b) The commission is not reg,uired to hold ahearing ifit determines that the basis ofa 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 ofa 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 protectedby the law under which the application will be considered:
(2> distance restrictions orother limitations imposedby law onthe affected interest:
(3) whether a reasonable relationship existsbetweenthe interest claimed and the activity regulated:
( 4) likely impact ofthe**re~ulated** activity onthe health. safety. and use ofproperty of the person:Texas Natural Resource ConservationCommission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 42

(5) likely impact ofthe**re~ulated** activity onuse ofthe impacted natural resourceby the person: and
(6) for**~overnmental** entities. their statutory authority over or interest in the issues relevant to the application.
(d) A**~roup** orassociationmay req_uest a contestedcase**hearin~** only ifthe**~roup** or association meets all ofthe**followin~** req_uirements:
0) one ormore members ofthe group or associationwould 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'spurpose: and

<3) neither the claim asserted nor the reliefreq_uested req_uires the participation ofthe individual members inthe case.Texas Natural Resource Conservarion Commission Chapter 35

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### §35.29. Proceduresfor a Hearing. Page43

(a) Hearings before the commissionunder this chapter shall be conducted in accordance with Chapter 10 ofthis title (relating to Commission Meetings). Contested case hearings shall be conducted under the APA and Chapter 80 ofthis title (relating to Contested Case Hearings).
(b) Ifa contested case hearing is requested on the awlication. and the commission grants the request. the commission shall eitherconduct the contested ease hearing orremand the matter to SOAH.
(c) The commission orjudge may. consistem with the regyirements ofthe APA. reduce the time periods specified in the commission's rules governing contested case hearings.
(d) Forany hearing on atel'l1Porary oremergency order. the following procedures will apply:

(1) parties will be designated by the commission orjudge. To be designated as a party. the person seekingparty status must show ajusticiable interest. Foreach bearing under this section. the wplicant. the public imerest counsel. and the executive director arepartiesbyrule:
(2) the testimony ofall witnesses will beunder oath. with an owonunityfor questioning by the commissionorjudge and cross-examinationbythe otherparties:Texas Natural Resource Conservation Commission Chapter 35

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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 burdenof**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 ofthe**hearin~.** The fact that an emergency order was issued without a hearing.**standin~** alone. wi!l not constitute evidence ofthe need for such authorization:
(5) the commission orjudge will have the right to limit the number ofwitnesses: to limit the time for direct questioning or cross-examinationofa witness: to refuse illustrative and documentary evidence: and to limit argument.
(e) Ifa hearing request is denied. the procedures contained in §80.271 and §80.273 ofthis title (relating to Motion for Rehearing: and Decision Final and Appealable ) apply.


### §35.30. Application Fees.

The applicationfee for an emergency or temporary orderunder this chapter is $500 plus the actual cost ofthe required notice. The fee is payable at the time the applicationis**file~.** and is not refundable.Texas Natural Resource Conservation Commission Chapter 35

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SUBCHAPTERD :EMERGENCY SUSPENSION OFBENEFICIALINFLOWS 

### §35.101

STATUTORY AUTHORITY Page 45

The new section is proposedunderTWC, Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections ofthe TWC under which the commissiontakes 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 instreamuses; §13.041, which establishes the commission's authority to adopt rules to exercise itsjurisdictionoverTWC, Chapter 13; §26.011, which establishes the commission's authority overwaterquality inthe 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 injectioncontrol. Additionally, relevant sections ofthe HSC include: §361.011, which establishes the commission'sjurisdictionovermunicipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the control ofsolid 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 theTexas Natural Resource Conservation Commission Chapter 

### 35

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### 97142-035-AD Page

### 46

commission's authority to adopt rules concerning pennitconditions; 

### §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 ofradiation; 

### §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 ofPermitConditionsRelatinr:toBeneficialInflowstoAffected Bays and EstuariesandInstream

## Uses.

(a) The purpose ofthis section is to set forth the procedures and criteria to be usedby the commissionorthe executive director in its review and action on an applicationby a water right holder for the temporary sus.pension ofconditions in the water right relating to beneficial inflows to bays and estuaries and instreamuses during an emergency. underTexas Water Code. 

### §5.506 and 

### §11.148. The emergency reliefprovidedby this section shall only be used when the commissionfinds that: •,_Texas Natural Resource Conservation Commission Chapter 35 -Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 47

(U emergency conditions existthat 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 commissionmay approve an applicationfiled by the affected water right holder for the temporary suspension ofall orapart ofconditions in a water right relating to beneficial inflows to affectedbays and estuaries and instreamuses ifthe commission finds that an emergency exists and there is no feasible. practicable alternative to the suspension. The burdenofdemonstrating that the application shouldbe granted in accordance with this section is onthe applicant. Forpurposes ofthis section. an emergency is a condition where water supplies available to the applicanthavebeenreduced
or impaired to such an extentthat an imminentperil to the public health. safety. orwelfare exists. This condition may include. butnot be limited to:

(1) the reduction ofpublic water supplies to critical levels as a result ofa severe and sustaineddrought:
(2) the failure ofa dam for a public water supply reservoir:
(3) the significant contamination ofapublic water supply: or 

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(4) the failure or destruction ofpublic water supply pipelines or other distribution systems.
(c) The application shall be filed in accordance with and must containthe information required by §35.24 ofthis title (relating to Application for Emergency or Temporary Order). and the following:
(1) copies ofthe affected permits. certificates ofadjudication. or certified filings:
(2) a description ofthe emergency's impact on public health. safety. and welfare:
(3) a description ofall existing andpotential water supplies available to the applicant and their corresponding uses and costs:
(4) a sumrnaO' of

### the examination made by the 3l)plicantofwhether feasible. practicable alternatives existto the suspension ofpermit conditions and reasons why those alternatives do not exist:
£5) the apwunt ofwater over and above available supplies that are necessaO' to alleviate emergency conditions:


### C6) copies ofthe water right holder's water conservation and drought contingency plans. ifany. and a summaQ' oftbeir status and implementation. including the reasons why anyTexas Natural Resource Conservation Commission Chapter 35

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remaining conservation ordrought contingency measures provided bythe plans have not orwill not be implemented:

(7) a copy ofthe reservoir operating procedures. ifapplicable: and
(8) the proposed conditions and trigger levels for the suspension and reinstatement of the releases orother affected permit conditions.
Cd) Acopy ofthe application must be filed by the applicant with the Texas Parks and Wildlife Department CTPWD) at the same time it is filed with the chiefclerk.
(e) Upon receipt of

### the application. the chief clerkshallprovidenotice ofthe time and location ofthe commission's considerationofthe application to the TPWD. executivedirector. and public interest counsel as soon as practicable after receipt ofthe application. but in no event shall the petition be considered less than 72 hours after receipt ofnotice by the TPWD.

(f) The TPWD. executive director. andpublic interestcounsel shall beprovided an opportunity to submitcomments onthe applicationbefore the commission action. The applicant shall be afforded opportunity to respond to all comments atthe time ofthe commission'sconsiderationofthe matter.Texas Natural Resource Conservation Commission Chapter 35

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(g) The commission's order shall set outthe extent ofany suspension and any special condition upon which a suspension is granted. The commission's initial order may also indicate the referral of the matterto SOAH for an expedited hearing under subsection (i)ofthis section.
(h) Published notice ofthe initial suspension ofwater right conditions. ifgranted. shall be provided and paid for by the applicant immediately following a favorable commission initial decision by publication in a newspaper or newspapers ofgeneral circulation in the affected area. Thepublished notice may not be smaller than 96.8 sguare centimeters or 15 SQYare inches with the shortest dimension at least 7.6centimeters orthree inches. Suchpublished notice must contain a summary ofthe information contained in the**~plication** as provided by subsection (c) ofthis section and the time and location ofthe subseguent commissionhearing providedby subsection <i) ofthis section. Such publication shall occur not later than sevencalendar days before this hearing. For the purposes ofthis rule. the affected area shall be eachcounty. in whole or in part. downstream ofthe diversionpoint or impoundment authorized underthe affected water right. The applicant shall file with the chiefclerk a publisher's affidavit as proofthat such notice was published in accordance withthis subsection.

(i) Ifthe commission initially grants anemergency suspension ofpennitconditions without a hearing. the commission shall bold the hearing requiredby §35.25 ofthis**ch~ter** (relating to Notice and Opportunity for Hearing) as soon as practicable. but in no event laterthan 15 days afterthe initial emergency suspension is grantedto determine whether to affirm. modify. or set aside the initial emergency suspension. Writtennotice ofthe hearing shall be providedto the TPWD and affected persons not laterthanten days before the hearing.Texas Natural Resource Conservation Commission Chapter 35

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(j) An**emer~:ency** order grantedunderthis sectionmay be for aperiod ofnot more than 120 days ifthe commission finds that emergency conditions exist that present an imminentthreat to public health. safety. and welfare and that override the necessity to comply with permit conditions and there
are no feasible. practicable alternativesto the**emer~:ency** authorization. This emergency authorization may be renewed once for not longer than 60 days.
(k) In determining whether feasible. practicable alternatives existto the suspension ofwater right conditions. the commission shall examine:

( 1) the amount and purposes ofuse for watercurrentlybeingused by the applicant:
(2) all evidence relating to the availability ofalternative. supplemental water supplies to the applicant: and
(3) the applicant's efforts to curtail wateruse not essential for the protection ofthe public health. safety. and welfare.

(l) Ifthe water right holderhas a water conservationplanand/ordrought contingencyplan. the suspension ofwater right conditions may be contingentuponthe full implementationofthose plans and
measurescorresponding to the staged reduction ofreleases for existing instreamuses and beneficial inflows. Ifthe water right holder does not have a water conservationplan and drought contingency plan in accordance with Chapter288 ofthis title <relating to Water ConservationPlans. Guidelines. and 

## .**~**Texas Natural Resource ConservationCommission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 52

Requirements). the order granting an applicationunder this section shall require the permittee to develop and implement those plans within aprescribed time period as provided in the order.
(m) In granting an application. all existing instream flows shall bepassed 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 "highinterest" {self-sustainin2 wild populations that are endemicto the affected stream. have significant scientific value. orcommercial vatue) may also be required.
(n) In orderto assist in the preparationand planning for watermanagement during an emergency. the commissionmay provide conditions in awater right necessary for reliefconsistent with applicable portions ofthis 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 inthe**pass-throu~:h** amounts that provide for thepass-through ofwater for instream uses and bays and estuaries when it is available. and allow water to be captured ordiverted for the protection ofthe public health. safety. and welfare during anemergency. subjectto the protectionofstreamflows necessary under subsection {m) ofthis section for the maintenance ofwater QYality standards. These conditions may also include full implementationbythe water right holderofwater conservation and**drou~ht** contingency plans as a preconditionfor obtaining relief. 

# . '.Texas Natural Resource Conservation Commission Chapter 35 -Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 53

(o) Ifthe applicant's water ri2ht already contains provisions for the temporary. total. orpartial suspension ofpermit conditions for the maintenance ofinstream flows orfreshwater inflows to bays and estuaries. further ordifferent reliefrequested in an application submitted under this section generally will be denied unless the applicant can show new orchanged circumstances or an emergency condition not contemplated whenthe water right condition was issued.Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD

SUBCHAPTERK : AIRORDERS §§35.801-35.809

STATUTORY AUTHORITY The new sections are proposedunderTWC, Chapter 5, Subchapter L, which establishes the Page 54

commission's authority concerning emergency and temporary orders. Other relevant sections ofthe TWC underwhichthe 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 amendedby 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 itsjurisdictionoverTWC, Chapter 13; §26.011, which establishes the commission's authority overwater quality in the state; §26.351, which establishes the commission's authority concerning corrective action; §26.354, which establishesthe commission's authority to issue emergency orders concerning petroleum storage tanks; and §27.019, which establishes the commission's authority to adopt rules concerning undergroundinjection control. Additionally, relevant sections ofthe HSC include: §361.011, which establishes the commission's jurisdictionovermunicipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the control ofsolid 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 authorityto adopt rules concerning airpermits; 

# .**~**Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Pennits Rule Log No. 97142-035-AD Page 

### 55

§382.0513, which establishes the commission's authority to adopt rules concerningpermit conditions; §401.011, which establishes the commission's authority over radioactive substances; §401.051, which establishes the commission's authority to adoptrules for the control ofradiation; §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.

Theproposed 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 ofCatastrophe.

The commission orexecutive directormay issue emergency orders under Texas Water Code. §5.515. to authorize immediate actionfor the addition. replacement. orrepair offacilities orcontrol equipment. and authorizing associated emissions ofaircontaminants. whenever a catastrqphic event necessitates suchconstruction and emissions otherwiseprecludedunder the TCAA. Forpurposes of this section. a catastrQPhic event is an unforeseen event including. but not limitedto. anact ofGod. an act ofwar. severe weatherconditions. explosions. fire. orother similar occurrences beyond the reasonable control ofthe operator. which renders afacility orits functionally related swpurtenances inoperable.Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD


### §35.802. Application for anEmen:ency Order. Page 56

The owner oroperator ofafacility**desirin~** to obtain an orderunderthis subchapter shall submit an application in accordance with §35.24 ofthis title (relating to Application for Emergency or Temporary Order). The application must containthe informationrequired by that section and the following:
(1) a statementthat the proposed constructMm and emissions are essential to prevent loss oflife. serious injury. severe propertY damage. orsevere economic loss not attributable to the applicant's actions. and are necessary for the addition. replacement. orrepair offacilities orcontrol equipment necessitated by acatastrophic event:
(2) a description ofthe 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 orcontribute to a condition ofair pollution:

(5) a statementthat the pro.posed constructionand emissions will occuronly atthe property wherethe catastrophic event occurred oronotherpropertY ownedby the owner or operator ofTexas Natural Resource Conservation Commission Page 57 Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD

the damaged facility. which produces the same inteunediates. products. orby-products. providing that
no more than a

### de minimus increase will occur in the predicted concentration ofthe air contaminants at
or beyond the property line 

### at such otherpropert;y:
(6) a description ofthe proposed construction and the type and quantity ofair contaminants to be emitted:
(7) anestimate ofthe dates onwhich the proposed construction and emissions will begin and end:

(8) an estimate ofthe date on which the facility will begin operation: and

(9) any other information oritem the executive director may require to support or explain the need for. orto expedite the issuance of. an emergency order: including infounation regarding the applicability ofand compliance with any federal reguirements for new ormodified
sources.


### §35.803. Public**Notifi~ion.**
The commission orexecutive director shallpublish notice ofthe issuance ofanemergency order in the 

### Texas**Re~ister** as soonas practicable after issuance ofthe order. Ifthe order is issued prior to a hearing. the ordershall fix a time and location for abearing which is to be held as soon as •,_Texas Natural Resource Conservation Commission Chapter 35

- Emergency andTemporary Orders and Permits Rule Log No. 97142-035-AD
practicable after the order is issued. Notice ofany hearing shall bepublished in a newspaper of Page 58

general circulation inthe nearestmunicipality not laterthanten days before the hearing. Notice ofthe issuance and notice ofthe hearing may beconsolidated for publication inthe newspaper.


### §35.804. Issuance ofOrder.

The commissionorexecutivedirector may issue an orderunder this subchapter ifit is found

(1) theproposed construction and emissions are essential to preventloss oflife. 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 offacilities orcontrol equipmentthat is necessitatedby a catastrophic event:
(2) there are no practicable alternatives to the proposed constructionandemissions:

(3) the emissions will notcause orcontribute to a conditionofairpollution:
(4) the proposed constructionoremissions will occuronly:

(A) atproperty where the catastrophic event occurred: or 

# . '·Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 59

(B) at otherproperty owned by the owner oroperator ofthe damaged facility which produces the same intermediates. products. orby-products. so long as there will be no more than
ade minimis increase in the predicted concentration ofthe air contaminants at orbeyond the property line at such otherproperty:

(5) the time limits in the orderfor the beginning and completionofthe proposed construction and emissions are reasonable: and

(6) the schedule in the order for submission ofacompletepermit application is reasonable.


### §35.805. Contents of

## an Emergency Order.

In addition to the reqyirements of§35.26 ofthis title (relating to Contents ofEmergency or Temporary Order). an emergency order issued underthis subchapter shall contain at least the following:
(ll a description ofthe emergency constructionand emissions to be authorized:
(2) reasonable time limits for the beginning and the completionofthe proposed construction and emissions: 

## ··.Texas Natural Resource ConservationCommission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 60

(3) authorizationfor action only at the property where the catastrophic event occurred
or on otherproperty ownedby the owner or operator ofthe damaged facility. which also produces the
same intermediates. products. orbyproducts. provided there will be no more than a de 

### minimis increase in the concentration ofair contaminants at orbeyond the property line at such other property: and
(4) a schedule for submission ofa complete constructionpermit fWplication under provisions ofTCAA. §382.0518.


### §35.806. Requirement to Apply

### for a Pennit or Modification.

The owner or operator ofa facility for which an emergency orderhas been issued under this subchapter shall submit an application within 60 days ofissuance ofthe orderunder TCAA. §382.063. and in accordance withprovisions ofTCAA. §382.0518. and with Chapter 116. Subchapter Bofthis title (relating to New Source Review Permits). The application shall be reviewed and acted uponby the executive director withoutreiardto construction activity authorizedby the emergency order. The appropriate permit fee shall be due and payable under §§116.140. 116.141. and 116.143 ofthis title (relating to Permit Fees). Costs and exPenses related to additions. replacement. orrepair offacilities
orcontrol equipment shall not be aconsideration in any determination in the review ofthis application. • i.Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD


### §35.807. Affirmation of

### an Emereency Order. Page 61

The commission shall affian a proposed orissued order ifthe applicant shows at the hearing. by apreponderance ofthe evidence. that:

(1) the prQposed construction and emissions are essential to preventloss oflife. serious injury. severe property damage. orsevere economic loss not attributable to the applicant's actions and
are necessary for the addition. replacement. orrepair offacilities orcontrol 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 orcontribute to a conditionofairpollution:
( 4) the proposed constructionoremissions will occuronly:
(A) atproperty where the catastrophic eventoccurred: or

(B) at otherproperty ownedby the owner oroperator ofthe ctamaged facility whichproduces the same intermediates. products. orby-products. so long as there will be no more than
a

### de minimis increase in the predicted concentrationofthe air contaminants at orbeyond theproperty line at such otherproperty: 

# . ....Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Pennits Rule Log No. 97142-035-AD Page 62

{5) the time limits in the order for the beginning and completion ofthe proposed construction and emissions are**reasonab~e:** and
(6) the schedule in the orderfor submission ofacomplete permit application is reasonable.


### §35.808. Modification ofan Emereency Order.

The commission shall modify aproposed or issued order ifthe hearing record shows that:

(1) construction and emissions otherwise precluded under the TCAA are essential to prevent loss oflife. serious injury. severe propertydamage. orsevere economic loss not attributable to the applicant's actions and are necessary for the addition. replacement. or repair offacilities orcontrol equipment that is necessitatedby a catastrophic event:
(2) there is no practicable alternative to suchconstruction and emissions: and
(3) modificationofcertainterms ofthe proposed or issued order is necessary to make the order. construction. and/or emissions meet the requirements stated in §35.807 ofthis title (relating to Affirmation ofanEmergency Order).**·~**Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD


### §35.809. Setting Aside an Emergency Order. Page 63

The commission shall set aside aproposed orissued order ifit is not shown. in accordance with §35.807 ofthis title (relatini to Affirmation ofan Emergency Order) or §35.808 ofthis title (relating to Modification ofan Emergency Order). that the order should be either affirmed or modified and adopted
as modified. 

# . '·Texas Natural Resource Conservation Commission Chapter 116 -Control ofAir Pollution by Permits

for New Construction orModification 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 partofthe commission's implementation ofSenate 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 orderprovisions under a new Chapter 35, concerning Emergency and Temporary Orders and Permits; Temporary SuspensionorAmendment ofPermit Conditions. The commission is also concurrently proposing amendments to emergency and temporary orderprovisions 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 ofthe following rules relating to emergency and temporary orders: §§291.10, 291.13, 297.57, 305.22-305.28, 305.30, and 305.32. Thecommission is also proposing new §297.57 and §305.30. These changes are published in this edition ofthe 

### Texas Register.

EXPLANATION OFPROPOSED RULES SB 1876 consolidatedvarious statutory provisions governing emergency and temporary orders under
new Texas WaterCode (TWC), Chapter 5, Subchapter L. The new statute expressly authorizes the commission to issue temporary oremergency mandatory, permissive, orprohibitory orders, and issueTexas Natural Resource ConservationCommission Chapter 116

- Concrol ofAir Pollutionby Permits

for New ConstructionorModification Rule Log No. 97142-035-AD Page 65

temporary permits or suspendpermitconditions 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 directorto receive applications and issue emergency orders and authorize representatives to act on his orherbehalf. Finally, general application, term, and
. hearing requirements that are be applicable to all affectedprograms are included. The statute will allow the commission orthe executive director to actexpeditiously to address unforeseen circumstances. TWC, §5.515, as addedby SB 1876, expressly authorizes the commissionto 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 definitionofa catastrophic evenc, which is defined in proposed new §35.801, concerning Emergency Orders Because ofCatastrophe.

The proposed repeals concern provisions incorporated into the newChapter 35. These provisions are moved in their entirety to proposed new Chapter 35, Subchapter K. Inthat proposal, the commission does propose changes to notice requirements. Proposed new §35.803 would require the commissionor executive director to publishnotice ofthe emergency order and the hearing to affirm, modify, or set aside in a newspaper ofgeneral circulation inthe nearest municipality not later thanthe tenth day before the hearing. This is a change from current §116.412, which requires 

### Texas Registernotice as
soon as practicable after issuance. The commissionalso proposes conforming changes, as well as regulatory reform changes to terminology thatwere identified during the commission's review ofTexas Natural Resource ConservationCommission Chapter 116

- Control ofAir Pollutionby Permits

for New ConstructionorModification Rule Log No. 97142-035-AD
Chapter 116 under Article IX, §167, ofHouse Bill1, 75thLegislature, 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 effectthere will be no significant fiscal implications for state or local government as a result ofenforcing or administering the sections.

PUBLIC BENEFIT Mr. Minick also has determined that for eachyear ofthe first five years the sections are ineffectthe public benefit anticipated as a result ofenforcing the sections will be enhanced consistency in the issuance ofemergency and temporary orders. The sections will also allow the commission or executive directorto act expeditiouslyto address unforeseen circumstances. There will be no effect on small businesses. There is no anticipated economic costto persons who are required to comply with the sections as proposed.

DRAFTREGULATORYIMPACT ANALYSIS The commissionhas reviewed the proposed rulemaking under the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subjectto §2001.0225 because it does not meetthe defmition ofa "major environmental rule" as defined in that statute, and itdoes not meet any ofthe four applicability requirements listed in §2001.0225(a). The**·~**Texas Natural Resource Conservation Commission Chapter 116

- Control ofAir Pollution by Permits

for New Construction orModification 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
concernprocedural requirements ofthe agency, such as delegation ofthe authority to issue such orders by the commission to the executivedirector, and are a result ofthe commission's continuing regulatory reform effort.

TAKINGS IMPACT ASSESSMENT The commission has prepared atakings impact assessment for these rules underTexas Government Code, §2007.043. The following is a summary ofthat assessment. The specific purpose ofthese rules is to implement the statutoryprovisions ofTWC, Chapter5, Subchapter L, concerning emergency and temporary orders. The rules will also consolidate agency procedural rules and make certainprocesses consistent among different agencyprograms. The rules will substantially advance these specific purposesbyproviding specific provisions on these matters. Promulgation and enforcement ofthese rules will notburdenprivate real property which is the subject ofthe rules because they concern commissionprocedural rules.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commissionhas reviewed theproposed rulemaking and found that the rules are neither identified in Coastal CoordinationAct ImplementationRules, 31 TAC §505.11, relating to Actions and Rules Subject to the Coastal ManagementProgram, nor 

### will they affect any action/authorization identified inTexas Natural Resource Conservation Commission Chapter 116

- Control ofAir 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 Apublic hearing onthis proposal will be held August 3, 1998, at 2:00p.m. in Room 2210 ofTexas Natural Resource ConservationCommission (TNRCC) Building F, located at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt oforal or writtencomments by interested persons. Individuals may present oral statements when called upon in order ofregistration. Opendiscussion will not occur during the hearing; however, an agency staffmember will be available to discuss the proposal 30minutes priorto the hearing and will answerquestions before and after the hearing.

SUBMITTAL OF COMMENTS Comments may be submittedto Lisa Martin, TNRCC Office ofPolicy and Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas, 78711-3087 orfaxed to (512) 239-4808. All comments should reference Rule Log Number 97142-035-AD. Comments mustbe received by 5:00p.m., August 3, 1998. Forfurther information, please contact BrianChristian, Policy Research Division, (512) 239-1760.

Persons with disabilities who have special communicationor 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 ConservationCommission Chapter 116

- Control ofAir Pollutionby Permits

for New Construction orModification 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. Section5.103 establishes the commission's general authority to adopt rules. Section 5.105 establishes the commission's authority to setpolicy by rule. Section 5.501 establishes the commission's authority to adopt rules to implement the emergency and temporary orderprovisions ofTWC, Chapter 5, Subchapter L. Section 382.017 establishes the commission's authority to adopt rules. Section 382.051 establishes the power ofthe commissionto adoptrules concerning permits. Section 382.0513 establishes the power ofthe commission to establish certainpermit conditions.

The proposed amendmentimplements 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 ofAir Pollutionby Permits

for New Construction or Modification Page 70
Rule Log No. 97142-035-AD

CHAPTER 116 CONTROL OFAIR POLLUTION BY PERMITS FORNEW CONSTRUCTION OR MODIFICATION SUBCHAPTER E :EMERGENCY ORDERS §116.410

§116.410. Applicability.

The owner oroperator ofa facility may apply to the commission orthe executive director for
an emergency order under Texas Water Code. §5.515. and Chapter 35 ofthis title (relating to Emergency and Temporary Orders andPermits: Temporary Suspensionor Amendment ofPermit Conditions). to authorize immediate action for the addition, replacement, orrepair offacilities or control equipment, and authorizing associated emissions ofair contaminants, whenever a catastrophic eventnecessitates such construction and emissions otherwise precluded under the Texas Clean Air Act. [Forpurposes ofthis section, a catastrophic event is an unforeseen event including, but not limited to,
an act ofGod, an actofwar, severe weather conditions, explosions, fire, orother similar occurrences beyond the reasonable control ofthe operator, which renders a facility orits functionally related appurtenances inoperable.]Texas Natural Resource ConservationCommission Chapter 116

- Control ofAir 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 underTexasWaterCode, §§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 setpolicy by rule. Section 5.501 establishes the commission's authority to adopt rules to implement the emergency and temporary orderprovisions ofTexasWater Code, Chapter 5, Subchapter L. Section 382.017 establishes the commission's authority to adopt rules. Section 382.051 establishes the powerofthe commission to adopt rules concerning permits. Section 382.0513 establishes the power ofthe commissionto establish certainpermit conditions.

The proposed repeals implementTexas WaterCode, §§5.103, 5.105, 5.515 anq Texas Health and Safety Code, §§382.017, 382.051, and 382.0513.


### §116.411. Application for anEmergency Order.
§116.412. Public Notification.
§116.413. Public Hearing for an Emergency Order. 

### .,_Texas Natural Resource Conservation Commission Chapter291

- Water Rates Rule Log No. 97142-035-AD


### §116.414. Affirmation ofanEmergency Order.
§116.415. Contents ofanEmergency Order.
§116.416. RequirementtoApply for a PermitorModification.
§116.417. Modification ofanEmergency Order.
§116.418. SettingAside anEmergency Order. Page 72



## . '·

# WRITTEN AND ORAL TESTIMONYINDEX OFWRITTEN TESTIMONY

Reference Number W-1 W-2 Submitted 

### By Jole C. Luehrs, U.S. Environmental Protection Agency Renea Ryland, U.S. Environmental Protection AgencyUNITED 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 00Based 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 Sectionr--·· I 

### UNITE:D STATCS ENVIRON:·.H:NT;\L PROTECTION

### :,G~'iCY WASHINGTON. O.C.**204~0** •



## . I 

# ...

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# a.: a**=--~** 

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### oi,rision**::>ir~etors** 

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### if it. h3s 

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## statute and**re~ulaticns** 

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### Act 

## statt!s**s~::ly t~.:lt,**  

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### ••• :a7 be**construc~~d** 

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### 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 wit: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~**  

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## . 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.a**

### tio~. 

## 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** 

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## 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 XUNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733



## A -UG**~** 

## - ....**~**

## ...**-:-~** , . .., L.-J



### Ms. LisaMartin ThK.CC Ofi1ce ofPoiicyandRegulatoryDevelopment MC205 P.O. Box 13087 Austin, Texas 78711-3087 Re: RuleLogNumber97142-035-AD**~** ) ' 

## 86SL 9n tl v 

### -Jnt.'

Comments onProposedEmergencyOrder/TemporaryOrderRules DearMs. Martin: 

# 8

ThisletterisinreferencetotheTexasNaturalResource ConservationCommission's (TNRCC's)proposed revisionsto 30 TAC Chapters 35, 116. 291, 297, 305, 321 and 334 and the StateImplementationPlan. These comments are specifictothoseportions oftheproposedrules dealing withNationalPollutantDischargeElimination System (NPDES)-relatedissues. Copies of theproposed rules havebeendistributedto otherEnvironmentalProtectionAgencyRegion 6 (EPA) divisionsforreview ofthoseportionspertainingto othermedia. Youwillbereceiving separatecomment, ifany, fromthose divisions. The State ofTexas submitted arequestfor approval oftheTexasNationalPollutant DischareeElimination Svstem (TPDES) pro(.!ramunder &

### 402(b) ofthe\leanWater Act (CWA)

. 

# - '..

' . ·. 

# - .. ·. , ... -· 

### onFebruary 5, 19S8, whichitrevisedwith supplements datedFebruary 12, March 16, April15, andMay 4, 1998. Apublic hearingwasheld ontheproposedTPDES programonJuly27, 1998, andEPAis currentlytakingpublic comment. As partofitsevaluationofwhethertoapprovethe propo_sedTPDES program, EPAisintheprocessof reviewingthe above-referencedproposed EmergencyOrder/TemporaryOrderrulesfor consistencywiththerequirementsforNPDES state program approvalunderCWA 

### §402 anditsimplementingregulations. Althoughwe havenotyet had adequatetimetofully evaluatethe proposedrules, we didwanttoalertyoutothefact that we are examiningtheproposedrulesto determinewhetherthereis anypossibilityofaconflict betweentheproposed rules andtherequirementsforNPDESauthorization. TNRCC willbe··

Recycled/Recyclable • Printsdwith Vegetable OilBasedInks on 100% Recycled Paper(40% Postconsumer)

### contactedas soon as possiblewithanyconcernswemight have afterwecomplete ourreviewof the proposedrules. Ifyou have anyquestions, pleasefeel free to contactme at (214) 665-2130. Sincerely, 

# '12-1Lf
ReneaRyland AssistantRegional CounselINDEX OF ORAL TESTIMONY

Reference Number Submittedby

No oraltestimony 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 certainprocesses 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, certainprovisions ofthe rules will constitute a revision to the state implementationplan (SIP). Specifically, Chapter-35, Subchapters A, B, C, and K and revised §116.410 are adopted as changesto the SIP. This submissionreplaces the 1993 submission ofthe rules in Chapter 116, SubchapterE 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 ofthe 

### TexasRegister(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 notbe republished.

The new Chapter 35 is largely derived from previously existing rules. The commission is concurrently adopting amendments to emergencyand temporary orderprovisions 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 ofthe following currentrules relating to emergency and temporary orders: 30TAC §§116.411- 116.418, 291.10, 291.13, 297.57, 305.22-305.28, 305.30, and 305.32. Thecommission is alsoTexas Natural Resource Conservation Conunission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD -Page2

adopting new 30 TAC §297.57 and §305.30. These changes are concurrently published in this edition ofthe 

### Texas Register.

EXPLANATION OF ADOPTED RULES SB 1876 consolidated various statutory provisions governing emergency and temporary orders under
new Texas Water Code (TWC), Chapter5, Subchapter 

### L. The new statute expressly authorizes the commission to issue temporary or emergency mandatory, permissive, orprohibitory orders, and issue temporary permits or suspend permit conditions by temporary oremergency order. Itallows the commission to issue emergency orders with orwithout notice. Additionally, it authorizes the commissionto delegate authority to the executive director to receive applications and issue emergency orders and authorize representatives to actonhis orherbehalf. 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 orthe executivedirector to act expeditiously to address unforeseencircumstances.

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 orAmendment ofPermit Condition, expressly authorizes the commission to prescribe rules necessary to carry out and administer Subchapter 

### L.

The adopted new Chapter 35 contains both generalprovisions that are applicable to all affected programs andprogram-specific requirements. The latter are largelyderived from emergency and

### Texas Natural Resource ConservationCommission Chapter 35

- Emergency and Temporary Orders and Pennits Rule Log No. 97142-035-AD .Page 3

temporary order rules that already exist in other chapters within Title 30 ofthe Texas Administrative Code (for example, Chapter 305, Subchapter B). These provisions have beenderived from current commission rules andplaced 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 ofauthority to issue certain orders to the executive director. Additionally, the commission is adopting changes to program-specific requirements that result from the passage ofSBs 1and 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 ofthe chapter. Adopted new §35.1, concerning Purpose, provides that the purpose ofthe 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 ortemporarily suspend oramend pennitconditions. This provision is in accordance with TWC, §5.501, which contains the statutory authorization for the issuance ofthese orders. This subchapter will also be submitted to the United States Environmental Protection Agency (EPA) as a revision to the SIP.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Pennits Rule Log No. 97142-035-AD -Page 4

Adopted new §35.2, concerning Applicability, provides that the chapter applies to any application underTWC, Chapter 5, SubchapterL, to issue temporary oremergency mandatory, permissive, or prohibitory orders.
Adopted new §35.3, concerning Definitions, provides definitions for emergency order, severeproperty damage, and temporary order. Thepurpose ofthis sectionto providegeneral definitions for the chapter and to help administer the provisions ofTWC, Chapter 5, Subchapter

### L. Anemergency order is defined as an orderthat must be issued immediately in orderto protecthuman health and safety or the environment; orfor reasons specified in adopted new §35.302, concerning Applicationfor Emergency and Temporary Orders to Discharge. The definition ofsevere 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 orderofshort-duration which must be issued as quickly as possible, or which might allow an authorizationfor a short-tenn activity, setting conditions and limitations that will adequately protecthuman health orsafety orthe environment, or for the reasons specified in new §35.302.
Adopted new SubchapterB, concerning Authority ofExecutive Director, is comprised ofthree 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 ofSubchapter B is to allow the executivedirectorto act onbehalfofthe commission. This subchapterwill also be submitted to EPA
as a revision to the SIP.

### Texas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD
Adopted new §35.12, concerning Authority ofthe Executive Director, authorizes the executive .Page5

director, ora representative orrepresentatives authorized in writing by the executive director, to act on his orherbehalfto receive applications for and issue emergency orders. The section also provides notice and hearing procedures.
Adopted new §35.13, concerning Eligibility ofExecutive Director, provides for the authority ofthe executive director orthe executive director's representative to act on Texas pollutantdischarge elimination system (TPDES) permits or other TPDES-relared approvals ifthe executive director meets the qualifications specified in §50.41, concerning Eligibility ofExecutive 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 commissionorexecutive directorto issue temporary oremergency orders and, by temporary oremergency order, to issue atemporarypermit ortemporarily suspend or amend apermit condition. The new provisions implementTWC, §5.501. This subchapter will also be submitted to EPA as a revision to the SIP.
Adopted new §35.22, concerning Term and Renewal ofOrders, provides thatunless otherwise noted by aprogram-specific requirement, the term ofan emergency order is amaximum of 180 days, and that anemergency ordermay be renewed once for anadditional period ofup to 180 days by submittal ofa new application. The section also provides that a temporary order is limited to a reasonable time specifiedby the order. This provision implements TWC, §5.505, concerning Term ofOrder.Texas Natural Resource Conservation Commission Chapter35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD -Page6

Adopted new §35.23, concerning Effect ofOrders, provides that an emergency ortemporary order does not vest any rights inthe permit holder or recipient and expires in accordance with its terms.
Adopted new §35.24, concerning Application for Emergency orTemporary Order, specifies requirements governing applications. The sectionprescribes the necessary contents ofthe application and requires its filing with the chiefclerk. Subsection(b) specifies that an application for an emergency ortemporary orderfor abypass ofuntreated and partially treated wastewater, ifthe state has nationalpollutantdischarge elimination system (NPDES) authorization, will constitute prior notice ofan anticipatedbypass, as requiredby §305.535. Section 35.24 also requires copies ofthe application to be provided to the division directorofthe appropriateprogramonbehalfofthe executive director, and to the public interest counsel, at the same time it is filed with the chiefclerk. Finally, the sectionprescribes the manner in which applications are to be signed. The new section implements TWC, §5.502, concerning Applicationfor Emergency orTemporary 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 sectionprovides that anemergency ordercan be issued with or without notice and/oropportunity for hearing, and that ifone is issued without a hearing, the order will set a time and place for ahearing to affirm, modify, or set aside the order to be held before the commissionorits designee as soon as practicable after the order is issued. In addition, the sectionprovides that unless otherwise provided by program-specific requirements, notice ofa hearing for issuance ofan emergency order or to affirm, modify, or set aside theorder must begivenTexas Natural Resource ConservationCommission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD -Page7

not later than the tenth day beforethe date set for the hearing and provide that anaffectedperson may request an evidentiary hearing onthe issuance ofthe emergency order. The section also provides that temporary orders require a hearing before their issuance, and that notice mustbe given not later than the 20th day before the hearing andprovide that an affected personcanrequest an evidentiary hearing
on issuance ofthe temporary order. Program-specific notice requirements are also set out. Some of these notice requirements are not in existing Chapter 305 and provide clarificationofnotice requirements. In addition, the newspaper notice for air catastrophes is in additionto the requirement for notice to be given in the 

### TexasRegister. The adopted Section implements TWC, §5.504.
Adopted new §35.26, concerning Contents ofEmergency orTemporary Order, contains the minimum requirements for informationthat must be included in these types oforders. 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 Proceduresfor a Hearing, respectively, provide for hearings, hearing requests, andprocedures for hearings on emergency and temporary orders. Therules provide that hearings will be conducted in accordance with the Administrative Procedure Act and commissionrules. The hearing procedures implement TWC, §5.115(a), concerning Persons Affected in CommissionHearings, andTWC, §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
ortemporary orderunder this chapter is $500, plus the actual costofthe required notice. TWC,Texas Natural Resource ConservationCommission Chapter 35

- Emergency andTemporary Orders and Permits Rule Log No. 97142-035-AD -Page 8

§5.501, authorizes the adoption offees for administering the program. In addition, the increase is authorized by TWC, §5.235, which establishes fee authority, and by Rider 9under the commission's appropriation in Article VI ofHB 1, 75thLegislature, 1997, the General Appropriations Act. The commission is increasing the current fee from $100 to $500 inorderto more adequately cover commission expenses incurred when issuing these orders.
Adopted new SubchapterD concerns Emergency Suspension ofBeneficial Inflows. The subchapter implements TWC, §5.506, concerning Emergency Suspension ofPermitConditionRelating to Beneficial Inflows to Affected Bays and Estuaries and lnstreamUses, and containspreviously existing requirements that have beenmoved to the new Chapter 35.

New §35.101, concerning Emergency SuspensionofPermit 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 applicationby a water right holder for the temporary suspension of conditions relating to beneficial inflows to bays and estuaries and instream uses during anemergency. The new section is entirely derived fromprevious §297.57, concerning Emergency Suspensionof Permit Conditions, and the commission adopts no substantive changes to the requirements as they existed inChapter297.
Adopted new SubchapterEconcerns Emergency Orders for Utilities. The subchapter implements TWC, §5.507, concerning Emergency Order for Operation ofUtility that Discontinues Operationoris Referred for Appointment ofReceiver, and §5.508, concerning Emergency Orderfor Rate Increase inTexas Natural Resource Conservation Commission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD -Page 9

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 commissionrules, the commission is also allowing the executive director to issue the ordersunder this subchapter, as authorized by TWC, §5.501.
Adopted new §35.201, concerning Emergency Orderfor OperationofUtility that Discontinues Operation or is Referred for Appointment ofaReceiver, authorizes the commission orexecutive director to appoint a personby emergency order to temporarily manage and operate autility that has discontinued or abandoned operations, orwhich has been oris being referred to the attorney general for the appointment ofa receiver under TWC, §13.412. This provision implements both TWC, §5.508, concerning these types oforders; and TWC, §13.412, as amended by SB 1, which expanded the definition ofabandonment. The adopted new section also authorizes the issuance ofan emergency order in accordance with current §291.142, concerning OperationofUtility that Discontinues Operation or is Referred for Appointment ofa Receiver, and §291.143, concerning Operation ofa Utility by a Temporary Manager.
Adopted new §35.202, concerning Emergency Orderfor Rate Increase in Certain Situations, authorizes the commissionorexecutive directorto authorize an emergency rate increase for autility under certain conditions. Specific requirements in the section are entirelyderived from §291.22, concerning Notice ofIntent to Change Rates, that have been moved to the new Chapter 35, and the commission adopts no substantive changes to those requirements as they previouslyexisted.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Pennits Rule Log No. 97142-035-AD
Adopted new Subchapter F concernsWater Quality Emergency and Temporary Orders. The subchapter implements TWC, §5.509, concerning TemporaryorEmergency Order Relating to Page 10

Discharge ofWaste orPollutants, and includes existing commission rules that have beenmoved to the
new Chapter 35 from Chapter305, Subchapter B. While largely derived from those preexisting commission rules, the rules as adopted allow the executive director to issue the orders underthis subchapter, as authorizedby TWC, §5.501. The commissiontakes this action in order to provide for the more expeditious issuance ofemergency and temporary orders.
Adopted new §35.301, concerning Emergency and Temporary Orders Authorized, authorizes the commission orexecutive director to issue emergency orders, and the commission to issue temporary orders, for the discharge ofwaste orpollutants into oradjacent to any water inthe state when expeditious action is necessary.
Adopted new §35.302, concerning Applicationfor Emergency and TemporaryOrders 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 apersondesiring to obtain an emergency ortemporary 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 andpurposes ofthat chapter, and statements onthe nature ofthe adopted discharge. Additionally, the sectionreflects a change in the law thatprovides that amelioration of serious drought conditions canbe a conditionnecessitating the issuance ofan emergency ortemporary orderto the extent consistentwith state assumption ofthe NPDES program. Further, since the.stateTexas Natural Resource Conservation Commission Chapter 35 -Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 11

assumed the NPDES program onSeptember 15, 1998, the commission has changed the language ofthe proposed rule to delete references to emergency and temporary orders issued priorto assumption ofthe 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 OrderConcerning Activity ofSolid 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 UndergroundInjectionofUraniumBy-product Materials, authorizes the commissionorexecutive director to issue a mandatory orprohibitory emergency order regarding any activity ofsolid waste management within itsjurisdiction, whether the activity is covered by permit or not, ifit determines that an emergency exists. The section also provides for terms ofthese orders. The new section was derived from §305.29, concerning Emergency Otdersfor Solid Waste Activities. As noted, the commission authorizes the executive director to issue these orders, as allowed by statute. In addition,Texas Natural Resource ConservationCommission Chapter 35

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the commission is adding requirements for underground injection control emergency orders previously only set out infederal rules.
Adopted new §35.402 concerns Emergency Actions Concerning HazardousWaste, and was derived in its entirety from previous §305.30, concerning Emergency Actions Concerning HazardousWaste. As previously noted, the commission is allowing the executive director to issue orders under the adopted section.
Adopted SubchapterH concerns Radioactive Substances and Materials Emergency Orders. The adopted subchapterimplements TWC, §5.516, which authorizes the issuance ofemergency orders underHealth and Safety Code (HSC), §401.056, concerning Emergency Orders.
Adopted new §35.501, concerning Emergency Orders Relating to Radioactive Substances, provides for commissionorexecutive director action ifit is determined that radioactive substances threatenthe public health or safety orthe 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, butthe commissiondoes adopt the following requirements that were notcontainedinthe preexisting rules. The adopted rule provides for actionby the executive director. In addition, adopted §35.501(g), concerning financial assurance, contains changes to what is inprevious §305.3l(h), to betterreflectthe relevant statutory language. Additionally, former §305.31(b) and (c), concerning by-productmaterial, were notmovedTexas Natural Resource ConservationCommission Chapter 35

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to new §35.501 due to the transfer ofjurisdictionover those wastes to the Texas Department ofHealth, under SB 1857, 75thLegislature, 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 ofRadioactive Material, provides for commission and executive director action to impound ororderthe impoundment ofradioactive material possessed by any personnot equipped to observe, orfailing to observe, the provisions ofthe Texas Radiation Control Act (TRCA), the rules of30TAC Chapter 336 (concerning Radioactive Substance Rules), or a license or order issued by the commissionunderTRCA orChapter 336. The section also provides for the dispositionofthe radioactive material. The section is derived from §305.32, concerning Emergency Impoundment ofRadioactive Material, and the only change to the rules as they previously existed is to provide for actionby the executive director. The commission adopts no other changes to the rules concerning this matter as theypreviously 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 ofthese orders. Adopted §35.601, concerning Emergency OrderConcerning Underground orAboveground Storage Tanks, authorizes the commissionorexecutive directorto issue anorderto the owner or operator ofan underground storage tank regulated under TWC, Chapter26, and 30TAC Chapter 334 (concerning Underground and Aboveground StorageTanks). The sectioncontains program-specific requirements concerning theTexas Natural Resource Conservation Commission Chapter 35

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content ofthe order, and itprovides for the delivery ofthe orderto 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 SubchapterJ, 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 orthe executive director to issue anemergency administrative orderunder HSC, §361.272, in the manner prescribed by adopted Chapter 35.
Adopted new Subchapter K, concerning Air Orders, implements TWC, §5.514and §5.515, concerning Order Issued Under Air Emergency and Emergency Order Because ofCatastrophe, 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 ofCatastrophe, authorizes the commissionorexecutive directorto issue an emergency order authorizing immediate action for the

### ... Texas Natural Resource Conservation Commission Chapter 35

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addition, replacement, orrepair offacilities orcontrol equipment, and authorizing associated emissions ofair 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 submissionofan application in accordance with adopted §35.24. The section also provides the informationthat must be submitted in addition to the general application requirements. The section is derived from §116.411, concerning Application for an Emergency Order. The commissionclarified the proposed rule language byprovidingthat the term "facility," as used in Subchapter K, is the same definition ofthat term in TCAA, §382.003. The requirement that the application include a statement that any constructionor modification will not interfere with the attainment ormaintenance ofthe national ambient air quality standards (NAAQS) orviolate applicable portions ofthe 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 publicationofnotlce in the Texas Register, the new section requires the commissionorexecutive directorto preparethe notice ofthe emergency order and the hearing to affirm, modify, orset aside for the applicant to publish in a· newspaper ofgeneral circulation in the nearest municipality not later thanthe tenth daybefore theTexas Natural Resource ConservationCommission Chapter 35

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hearing. This is a change from prior §116.412, which required only 

### TexasRegisternoticeas soon as practicable after issuance, but not later than the tenthday before the hearing. The new section also contains changes allowing either the commission orthe executive director to act.
Adopted new §35.804, concerning Issuance ofOrder, authorizes the commission orexecutive director to issue anorderunderthis subchapter ifcertainconditions are found to exist. The requirement that the executive director orcommissionmust find that any construction or modification will not interfere with the attainment ormaintenance ofthe NAAQS orviolate applicable portions ofthe control strategy
was added. This change was made in response to comment. In addition, the commissionrevised the term "catastrophic event" to "catastrophe" to be consistent with the statute.
Adopted new §35.805, concerning Contents ofanEmergency Order, prescribes content requirements that are in additionto those specified in §35.38. The provisions are derived entirely from §116.415, concerning Contents ofan Emergency Order. The requirement that the order include the requirement that any constructionor modification will not interfere with the attainment ormaintenance ofthe NAAQS orviolate applicableportions ofthe control strategy was added. This change was made in response to comment. In addition, the commission revised the term "catastrophic event" to "catastrophe" to beconsistent with the statute.
Adopted new §35.806, concerning Requirement to Apply for a Permitor Modification, requires the
owner or operator ofa facility for which a,n emergency order has been issued to submit an application within 60 days ofissuance ofthe orderin accordance with statute and commissionrules. The section isTexas Natural Resource Conservation Commission Chapter 35

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derived from the previous §116.416, concerning Requirement to Apply for aPermit orModification. The citation to the repealed statute, TCAA, §382.063, has beenreplaced with the correct citation to the TWC.
Adopted new §35.807, concerning Affirmation ofan Emergency Order, provides the conditions under which the commission affirms a adopted orissued order. The section is derived in its entirety from §116.414, concerning Affirmation ofan Emergency Order. The requirement that the order include the requirement that any construction or modification will not ihterfere with the attainment ormaintenance ofthe NAAQS orviolate applicable portions ofthe 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 ofan Emergency Order, provides the conditions under which an emergency ordermust be modified. The section is derived from previous §116.417, concerning Modification ofan 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 orissued order to be set aside ifthe hearing record does not show that the order should be affirmed ormodified. The section is derived fromprevious §116.418, concerning Setting Aside an Emergency Order.Texas Natural Resource Conservation Commission Chapter 35

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Adopted Subchapter L, concerning On-site Sewage Disposal System, implements TWC, §5.513, which authorizes the issuance ofthese orders. Adopted §35.901, concerning Emergency Order Concerning On-site Sewage Disposal System, authorizes the commission to issue anemergency order suspending the registration ofan installer ofan on-site sewage disposal system, regulating an on-site sewage disposal system, orboth, under certain conditions.

FINALREGULATORY IMPACT ANALYSIS Staffhas reviewed the proposed rulemaking under the regtdatory analysis requirements ofTexas Government Code, §2001.0225, and has determined that the rulemak.ing is not subject to §2001.0225 because it does not meet the definitionofa "majorenvironmental rule" as defmed in that statute, and it does not meet any ofthe four applicability requirements listed in §2001.0225(a). The rules are not major environmental rules because theirprimary intent is to consolidate already existing emergency and temporary orderrules underone 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 ofthe agency, such as delegationofthe authority to issue such ordersby the commissionto the executive director, and are a result ofthe commission's continuing regulatory refonn effort.

TAKINGS IMPACT ASSESSMENT The commissionhasprepared a takings impact assessment for these rules underTexas Government Code, §2007.043. The following is a summary ofthat assessment. The specificpurpose ofthese rules is to implementthe statutory provisions ofTWC, Chapter 5, Subchapter L. Adoptionofthese rulesTexas Natural Resource Conservation Commission Chapter 35

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will also provide for the delegation ofauthority to issue emergency orders by the commission to the executive director, consolidate agency procedural rules, and make certainprocesses consistent among different agency programs. Adoption ofthese rules will substantially advance these specific purposes by providing specific provisions onthese matters. Promulgation and enforcement ofthese rules will not burdenprivate real property which is the subject ofthe rules because they only establish a new procedural mechanismfor these types oforders.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has reviewed the rulemaking and found that the adoption is a rulemaking identified in the Coastal Coordination ImplementationRules, 31 TAC §505.11, or will affect an action/authorization identified in the Coastal CoordinationActImplementationRules, 31 TAC §505.11, and will, therefore, require that applicable goals and policies ofthe Coastal Management Program (CMP) be considered during the rulemaking process.

The commission has prepared a consistency determinationfor 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 ofthat 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. CMPpolicies applicable to the adopted rules include the administrative policies and the policies for specific activities related to: construction and operationor solid waste treatment, storage, and disposal facilities; discharge ofmunicipal and industrial wastewaterto coastal areas; nonpoint source waterpollution; and appropriations ofwater. Promulgation and enforcementofTexas Natural Resource Conservation Commission Chapter 35

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these adoptedrules is consistent with the applicable CMPgoals andpolicies because the adopted rules will establish clear and consistent requirements governing the issuance ofemergency and temporary orders, as authorizedby TWC, Chapter 5, Subchapter L. Under the authority grantedby statute, the commission may issue emergency ortemporary orders to address unforeseen circumstances, such as drought conditions orpotential catastrophes. Promulgation and enforcement ofthese 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 orpotential emergency situations, whichwill result in environmentalbenefits for the entire state, including coastal areas.

HEARING AND COMMENTERS A public hearing regarding the proposed rules was held inAustin on August 3, 1998, and the public commentperiod also closedonAugust 3, 1998. No oralcomments were received at the public hearing, but EPA submittedwrittencomments onthe proposal.

ANALYSIS OF TESTIMONY EPA expressed concern about how multimediaregulations authorizedby theTWC, including the air portion inSubchapterK, can beincorporated into the SIP ifnot authorizedby the TCAA. EPA suggested that revising 30TAC §101.1 by adding a referenceto the TWC may be necessary to add the emergency orderrules to the SIP.

EPA

### is correct that Chapter 35 is a compilation ofmultimedia regulations. These areauthorized by various statutory authorities, including the TWC andthe TCAA. Authority for the rulesTexas Natural Resource ConservationCommission Chapter 35

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### associated with emergency ordersallowing emissions ofaircontaminants is 

### found in boththe TWC andthe TCAA. TheTWC authorizesthecommissionto protectthestate'sair

### quality in additionto theauthority specifically included in

### theTCAA, andthereforetheTWC andTCAA
arebothappropriatestatutorybases for SIPsubmissions. Therefore, the commission has made
no change in

### responsetothis comment. Thecommission does notbelieve that a revisionto §101.1, concerningDefmitions, is 

### necessary atthistime, butthecommission will 

### further consider this comment in

### itsreview ofChapter 101 which is 

### anticipatedtobegin laterthisyear.

The remainder ofEPA's comments were specifically directed at the air orders in SubchapterK. EPA indicatedthat its understanding is that Chapter 116, Subchapter E has beenmoved to Chapter 35, Subchapter K with no substantive changes.


### Althoughmany oftherules in

### Subchapter K were movedverbatimfromChapter 116, there are provisions in 

### Chapter35 whicharedifferentfromthepreviousrules. Applicable definitions havebeen addedto SubchapterA. The authority fortheexecutivedirectortoact is 

### also included in SubchapterB. Thehearingprovisions weremovedto SubchapterC. Termlimits and application fees havebeenaddedandareincludedin SubchapterC. 

### Inaddition, therequirement for notice in a newspaper ofgeneralcirculationhasbeen addedin SubchapterK.

EPA stated that the rules referenced in Chapter 116, Subchapter E are not now part ofthe approved SIP and that this is implied otherwise in the preamble to the proposed rules. EPA suggested that'the commissionclarify thatthe Chapter 35 rules will be submitted to EPA as a new portion ofthe SIP.Texas Natural Resource Conservation Commission Chapter 35

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### Thecommission agrees thatthesentenceused inthepreamblegavetheimpression that Page 22



### SubchapterE is 

### currentlypartofthe SIP. Chapter 116, SubchapterE was submittedto theEPA
as a SIPrevision in 1993 andno SIPapproval has beengiven byEPAas ofthis date. Therefore, thecommission is 

### withdrawing the 1993 SIP submission ofChapter 116, SubchapterE, andis submitting Chapter35, Subchapters A, B, C, andK, andrevised §116.410 as a revision to the SIP. Thecommissionhas madethis clarification.

EPA expressed concern that allowing a major source ormajor modification subject to prevention of significant deterioration (PSD) or nonattairunent new source review (NNSR) regulations to commence constructionbefore apermit is issued may compromisethe commission's discretionto make the decisions affecting the air quality or maintenance and attainment ofthe NAAQS. Specifically, the EPA wants the commission to ensure that any rule allowing for construction activities priorto issuance ofa PSD orNNSRpermit meets existing EPApolicy regarding the scope ofpreconstruction activities.



### ThepurposeoftheSubchapterK rules is 

### to allow a facility to reconstructormake significant repairs andemit theassociated air

### contaminantsnecessary for the addition, replacement, or repairoffacilities orcontrolequipment, necessitatedby acatastrophe,whereitis 

### essentialto preventloss oflife, seripusinjury; severeproperty damage, orsevereeconomicloss not attributableto theapplicant's actions. Thereviewofemergency orderapplications conductedby thecommissionconsists ofevaluation ofbest available controltechnology andreview ofpotential impacts ofhumanhealth andtheenvironmentby use ofairdispersionmodeling andevaluation bythecommission'sToxicology andRiskAssessment Section. The review also includes inputTexas Natural Resource ConservationCommission Chapter 35

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### from theregional office andNew Source Review PermitsDivisioninthecommission's Office of Air Quality, as appropriate. Thereview will

### ensurethatthe constructionis subjectto current andpossiblymore stringentrequirementsthanwere in existence for facilities thatarebeing replaced. Thistechnical review processis atleast as comprehensive as theconunission'sreview of permitapplications. Itis possible, although highly unlikely, thatconstruction on the property where the catastropheoccurredwill

### resultin a significantnetemissionsincrease which meets the federal definition ofa majorsourceormajormodification, as defmedin40 Code ofFederal Regulations51.165, where the purpose ofthe constructhmis to protecthumanhealth andthe environment. It

### is criticalfor the commissiontobe abletorespondto suchsituations whenthey
occur. Therefore, in performingthe reviews oftheapplication andissuing orders, the commissionis not compromisingits responsibilitytoprotect airquality orto attainormaintain the NAAQS, consistent with applicableportions ofthestate'scontrolpolicy. To clarify, the commission has addedthisrequirementto §§35.802, 35.804, 35.805, and35.807.

EPA expressed concern that these rules could authorize a source to add or replace aunit at a site other than the site at which the catastrophe occurred, priorto issuance ofapermit and without adequate review.



### The commission hasmadeno changesinresponsetothis comment. Thestatuteallows construction atanother site only underlimited conditions. The otherpropertymustbe ownedby the owner oroperatorofthedamaged facility; thesameintermediates, products, orby-products mustbeproducedatthis otherproperty; andtherewill

### benomorethana de minimis

### increaseinTexas Natural Resource ConservationCommission Chapter 35

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### thepredictedconcentrationofthe aircontaminants atorbeyondthepropertyline at such other property. Theselimitations arein additiontothereview process discussed previously. The review oftheapplication, andissuanceoforders, as discussed previously, will

### ensurethatthere will be no violation ofthe control strategy orinterferencewith attainment ormaintenance ofthe NAAQS.

EPA expressed concernthat the ability ofthe EPA and citizens to challenge the permit that is eventually issued is limited underthese rules.



### Theserules andthe statutesunderwhich they arepromulgated do notinany way affectthe existingrequirements for notice ofthe permitortheopportunitytocomment andrequest a contestedcasehearingundertheTWC, TCAA, andtheproceduralrulesofthecommission. In addition, notice oftheemergency order, as well as opportunityfor public comment and opportunitytochallengetheemergency order, areincludedin Chapter35. Notice ofthe emergency ordermustbe publishedinboththe Texas Register

### anda newspaperofgeneral circulationinthenearestmunicipality. Thenewspapernotice requirement, which wasnot includedin previous §116.412,is intendedtoenhance publicnotice ofthesesections. Although thestatuteandemergencyordersrequireanapplicantto submita permitapplication within 60 days, there will

### becases in whichnopermitapplication is filed becausethefacility maynolonger beinexistence60 days aftertheissuance oftheemergencyorder.

EPA requested that the preamble discuss how the rules in Subchapter K and 30TAC §101.11 interact.Texas Natural Resource Conservation Commission Chapter 35

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### Theconunission notes thatthereis 

### no direct connectionbetween §101.11, concerningExemptions from Rules andRegulations, andtherulesin SubchapterK. Although it is 

### possible thatanevent that is 

### reportableunder30TAC §101.6 or §101.7, concerningUpset Reporting and RecordkeepingRequirements; andMaintenance, Start-upandShutdownReporting, Recordkeeping, andOperationalRequirements, whether ornotexemptvia §101.11, couldbe associated with an applicationfor anemergency order, thescope ofemergency ordersis 

### for. emissions associated withconstructionnecessitatedby a catastrophe. The exemption for certain unauthorizedemissions in §101.11 covers emissions associated withupsets andmaintenance, startup, andshutdownactivities. Whetherornotanevent qualifies for anexemptiondoes not affect the issuance ofanemergencyorder. An

### upsetmaybecausedby a catastrophe,buttheemissions associated withthe repairandreplacement ofthe facility would be subsequentto the upsetevent. Repair orreplacementoffacilities is 

### beyondtheusual interpretation oftheterm "maintenance," which is 

### generally interpretedtomeanthatthemaintenance is 

### performedtomeet the requirement in §101.7 thatallpollutionemission captureequipmentandabatementequipmentbemaintained ingood working orderandoperatedproperlyduringnormal facility operations. Inaddition, no constructionis 

### authorizedby §101.11.

EPA suggested adding rule language that states that the owneroroperator assumes all risks when constructing under an emergency orderprior to obtaining apermit.



### The statute and §35.805 and §35.806requirethatthe applicantfile anapplication for a permit within 60 days, with noguaranteethatsuchpermitwill

### be issued. New §35.22now places a termTexas NaturalResource ConservationCommission Chapter 35

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### limit ofup to 180 days on airemergency orders, with one possible 180-dayextension, which will 

### limit thetimeinwhich a facility canoperateundertheemergency orderauthorization. The commissioninterpretsthis as adequatefor applicantsto understandtherisks associated with constructingbefore obtaining a permitandthereforehas not made any changesinresponsetothis comment.

EPArecommended that the rules specifically prohibit the owner oroperator and the commissionfrom considering any informationassociated with the constructfununder the emergency order inthe commission's permit review.



### Section 35.806 specificallystatesthatthe permit application shallbereviewed andacteduponby theexecutive directorwithoutregardtoconstructionactivity authorizedbythe emergency order. Thismeansthatconstructionallowed by anemergency ordermay notbe allowedlaterbythe permit without additionalchanges orcontrolsto thefacility, andany expense associated with thosechanges will

### notbeconsideredinthe determinationofthe reasonableness ofappropriate controls. However, certaininformationassociated withthe emergency order, suchas emission estimates, may also berelevant andshould be duplicatedinthepermit application. The commission'sindependentreview ofa permit application is 

### based ontheinformationsubmittedby the applicantinthepermitapplication, not what is 

### submittedas anemergency-**orde~** 

### application.Texas Natural Resource Conservation Commission Chapter 35

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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. Otherrelevant sections ofthe TWC under which the commissiontakes this action include: §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authority to setpolicy 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 affectedbays and estuaries.and instream uses; §13.041, which establishes the commission's authority to adopt rules to exercise itsjurisdictionoverTWC, 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 ofthe HSC include: §361.011, which establishes the commission's jurisdictionovermunicipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the control ofsolid 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 ofthe 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 airpermits; §382.0513, which establishes the commission's authority to adopt rules concerning permitconditions; §401.011, which establishes theTexas Natural Resource Conservation Commission Chapter 35

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commission's authority over radioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control ofradiation; §401.056, which establishes the commission's authorityto issue emergencyorders concerning radiation; and §401.412, which establishes the commission's authority concerning licenses for radioactive substance disposal.

# STAFF RECOMMENDATIONS Chapter 35Texas Natural Resource Conservation Commission Chapter 35

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CHAPTER35 : EMERGENCYAND TEMPORARYORDERSAND PERMITS; TEMPORARY SUSPENSIONORAMENDMENT OFPERMITCONDITIONS SUBCHAPTERA : PURPOSE, APPLICABILITY, AND DEFINITIONS §§35.1-35.3 

## 1/ t §35.1. Purpose.

The purpose ofthis chapter is to implement the cotnmission's authority under Texas Water Code, Chapter 5, Subchapter L, to issue temporary oremergency mandatory, permissive, or prohibitory orders and by those orders to issue temporary permits ortemporarily suspend or amend permit conditions.

/ §35.2. Applicability.

This chapter applies to any applicationunder Texas Water Code, Chapter 5, Subchapter L, to issue temporary oremergency mandatory, permissive, orprohibitory orders.

,_/ §35.3. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the contextclearly indicates otherwise.Texas Natural Resource Conservation Commission Chapter 35

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'· (1) 

### Emergency order- An orderwhich must be issued immediately, in orderto protect humanhealth or safety orthe environment, orfor otherreasons specifiedby statute. Specific requirements for an emergency order are specified in the rules in this chapter relating to eachprogram.
,/(2) 

### Severe propertydamage

- Substantial physical damage to property, damage to treatmentfacilities which causes them to become inoperable, or substantial and permanent loss of natural resources which canreasonably be expected to occur in the absence ofa discharge. Severe property damage does not mean economic loss caused by delays in production.
(3) 

### Temporaryorder

- An order ofshortduration which mustbe issued as quickly as possible orwhich might allow an authorizationfor a short tenn activity, setting conditions and limitations that will adequately protect humanhealth or safety orthe environment, orfor the reasons specified in §35.302 ofthis title (relating to Applicationfor Emergency and Temporary Ordersto Discharge). Specific requirements for a temporary orderare specified in the rules 

### inthis chapter relating to eachprogram.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD

SUBCHAPTERB : AUTHORITY OFEXECUTIVEDIRECTOR §§35.11-35.13

STATUTORY AUTHORITY The new sections are adopted underTWC, Chapter 5, Subchapter L, which establishes the Page 31

commission's authority concerning emergency and temporary orders. Otherrelevant sections ofthe 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 itsjurisdictionoverTWC, 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 ofthe HSC include: §361.011, which establishes the commission's jurisdictionover municipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the control ofsolid 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 ofthe commission to issue air orders and whatTexas Natural Resource Conservation Commission Chapter 35

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factors the commission must consider when issuing such orders; §382.051, which establishes the commission's authority to adopt rules concerning airpennies; §382.0513, which establishes the commission's authority to adopt rules concerning pennitconditions; §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 ofradiation; §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. PurposeandApplicability.

The purpose ofthis subchapter is to delegate authority to the executive director and to specify applications for emergency orders on which the executive directormay take action on behalfofthe commissionunder this chapter.


### §35.12. Authority ofExecutiveDirector.
(a) The executive director may receive applications and issue emergency orders under this chapter. Ifan emergency order is issued without notice and ahearing, notice shall be issued and a hearing bythe commissionto affinn, modify, or set aside shallbe set. Ifa hearing request is received, and the commission grants the request, the commissionshall either hold a contested casehearing, or !/",......-·,,
... remand the case

### tot$~ ( 'JTexas Natural Resource Conservation Commission Chapter 35

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(b) The executive director may authorize, in writing, a representative or representatives to act
onthe executive director's behalfunder this chapter.


### §35.13. Eligibility ofExecutiveDirector.
Upon assumption ofnational pollutantdischarge elimination systempermit allthority, the
. executive director, orthe executive director's representative orrepresentatives, may actunder this chapter onTexas pollutantdischarge elimination system (TPDES) permits orotherTPDES-related approvals only ifhe orshe meets the qualifications setoutfor the executive director in §50.41 ofthis title (relating to Eligibility ofExecutive Director).Texas Natural Resource Conservation Commission Chapter 35

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### SUBCHAPTER C :GENERAL PROVISIONS §§35.21-35.30

STATUTORY.AUTHORITY The new sections are adopted under TWC, Chapter5, Subchapter L, which establishes the Page 34

commission's authority concerning emergency and temporary orders. Other relevant sections ofthe TWC under which the commissiontakes 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 itsjurisdictionoverTWC, 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 ofthe HSC include: §361.011, which establishes the commission's jurisdictionover municipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; §361.024, which establishes the commission's authority to establish rules for the control ofsolid waste; §366.012, which establishes the commission's authority to establishrules for on-site disposal systems; §382.017, which establishes the commission's rulemaking authority; §382.024 and §382.025 which establishthe authority ofthe commissionto issue airorders and whatTexas Natural Resource Conservation Commission Chapter 35

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factors the commission must consider when issuing such orders; §382.051, which establishes the commission's authority to adopt rules concerning airpermits; §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 ofradiation; §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.

Forthe purposes of, and in the mannerprovided by this chapter, the commission may issue a temporary order; and the commission or the executive director may issue an emergency, mandatory, permissive, orprohibitory order; and the commission by temporary order, orthe executive director or commissionby emergency order, may:

(1) issue a temporary permit; or
(2) temporarily suspend oramend apermit condition.Texas Natural Resource Conservation Commission Chapter 35

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### §35.22. Term and Renewal ofOrders. Page 36

Unless otherwise provided by this chapter, an emergency orderissued 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 ofa new application. A temporary order must be limited to areasonable time specified by the order.


### §35.23. Effect ofOrders.

Anemergency or temporary order issued underthis chapter does not vest any rights in the permit holder orrecipient and expires in accordance with its terms.


### §35.24. Application for Emergency or Temporary Order.
(a) Apersonwanting an emergency ortemporary orderunderthis chapter shall submit a written application to the chiefclerk. Unless the person submitting the application is the executive director orthe executive director's representative, the application mustbe sworn.
(b) Ifaperson seeks an emergency ortemporary orderfor abypass ofuntreated orpartially treated wastewater, as that term is defmed in §305.2 ofthis title (relating to Definitions), from a facility that is subjectto aTexas pollutant discharge elimination systempermit, the filing ofthe application for
an emergency ortemporary order constitutes priornotice ofan anticipated bypass. Filing ofthe

### ... Texas Natural Resource Conservation Commission Chapter 35

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application for bypass shall be done, ifpossible, at least ten days before the date ofthe bypass. The person must comply with all bypass requirements under §305.535 ofthis title (relating to Bypasses from TPDES Permitted Facilities).
(c) The application must:
(1) state the name, address, and telephone number ofthe applicant, the person submitting the application onthe applicant's behalf, and the person signing the application on the applicant's behalf;
(2) contain information sufficient to identify the facility and locationto be affected by the order;
(3) describe the condition ofemergency or other conditionjustifying 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 shouldbeginand end and the dates
on which the activity proposedto be allowed, mandated, orprohibited should begin and end;Texas Natural Resource Conservation Commission Chapter 35

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(6) describe the action sought and the activity proposed to be allowed, mandated, or prohibited;
(7) include any other statement orinformationrequiredby this chapter; and
(8) be accompaniedby payment ofany application fees required by the commission.
(d) A copy ofthe applicationmustbe provided to-the division director ofthe appropriate program onbehalfofthe executive director, and to the public interest counsel, at the same time it is filed with the chiefclerk. The division director may designate another representative ofthe executive director for this service.
(e) All applications shall be signed as follows.
(1) For a corporation, the application shallbe signedby a responsible corporate officer. Forpurposes ofthis paragraph, aresponsible corporate officer means apresident, secretary, treasurer, orvice-presidentofthe corporation in charge ofaprincipalbusiness function, or any other personwho performs similar policy ordecision-making functions for the corporation; or the manager ofone ormore manufacturing, production, oroperating facilities employingmore than 250persons or having gross annual sales orexpenditures exceeding $25 million (in second-quarter 1980 dollars), if authority to sign documentshas been assigned ordelegated to the manager in accordance with corporateprocedures. Corporateprocedures governing authority to signpermit applications mayTexas Natural Resource Conservation Commission Chapter 35

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provide for assignment ordelegationto applicable corporate positions rather than to specific individuals. Documentation ofauthority to sign must be provided with the application. Page 39

(2) For apartnership or sole proprietorship, the application shallbe signed by a general partner or the proprietor, respectively.
(3) For amunicipality, state, federal, orotherpublic agency, the application shall be signed by either a principal executive officer ora ranking elected official. Forpurposes ofthis paragraph, aprincipal executive officerofa federal agency includes the chiefexecutive officer ofthe agency, ora senior executive officerhaving responsibility for the overall operations ofaprincipal geographic unit ofthe agency (e.g., regional administrator ofthe United States Environmental Protection Agency).
( 4) Forthe executive director, the application shall be signed by the executive director
orany duly authorized representative;
(5) Aperson other than the executive director orthe executive director's representative signing an application shall make the following certification: "I certifyunder penalty oflaw that this document and all attachments were preparedunder my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based onmy inquiry ofthe personorpersons who manage the system, orthose persons directly responsible for gathering the information, the information submitted is, to the best ofmyTexas Natural Resource ConservationCommission Chapter 35

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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 offine and imprisonment for knowing violations."
(6) Forhazardous solid waste applications, the ownerand operator ofa facility must signthe application.
(7) Forradioactive material license applications under Chapter 336 ofthis title (relating to Radioactive Substance Rules), the applicant orperson duly authorized to act for and on the applicant's behalfmust sign the application.


### §35.25. Notice andOpportunityfor Hearing.
(a) Anemergency orderunder this chaptermay be issued with notice and an opportunity for hearing, orwithout notice and an opportunity for hearing, as providedby this chapter.
(b) Ifanemergency order is issued under this chapterwithout a**he~ring,** the order shall set a time and place for a hearing to affirm, modify, or set aside the orderto be held before the commission
orits designee as soonas practicable afterthe orderis issued.
(c) Except as otherwiseprovided by this chapter, notice ofahearing to affirm, modify, or set aside anemergency orderunderthis chapter shall be given not laterthan the tenthday before the dateTexas Natural Resource ConservationCommission Chapter 35

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set for the hearing. This notice shall provide that an affected person may request an evidentiary hearing onissuance ofthe emergency order. Page 41

(d) Temporary orders require ahearing before the issuance ofthe order. Notice ofa hearing
ona temporary order shall be given not later than the 20th day before the hearing onthe order. This notice ofhearing shall providethat an affected personmay request an evidentiary hearing on issuance ofthe temporary order.
(e) In additionto the notice requirements provided elsewhere in these rules, notice shall be provided as follows.
(1) For water quality temporary orders, notice ofa hearing that is held before issuance ofthe order shall be provided:
(A) by mail to persons requesting public notice ofcertain applications, in accordance with §39.7 ofthis title (relating to Mailing Lists) and to persons or agencies identified in §39.13 ofthis title (relating to Mailed Notice);
(B) by publication by the applicant in a newspaper oflargest general circulation that is published in the county in which the facility is located orproposed to be located. Ifa newspaper is not published in the county in which the facility is located orproposed to be located, the notice must be published inthe newspaper ofgeneral circulation in the county in which the facility isTexas Natural Resource Conservation Commission Chapter 35

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located or proposed to be located. The applicant must file an affidavit with the chiefclerk certifying facts that constitute compliance with the publication requirements. The deadline to file the affidavit is 15 days afterpublicationofthe notice. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption ofcompliance with the requirement to publish notice; and
(C) at least 20days before the hearing.
(2) For water quality emergencyorders, notice ofthe issuance ofthe order and the hearing to affirm, set aside, ormodify ifahearing is held shall be provided in accordance with paragraph (l)(A) and (C) ofthis subsection.
(3) Fornonhazardous underground injection control (UIC) emergency orders, notice shall be mailed and published at least 30days before the hearing to affirm, modify, or set aside the emergency order, as is required by Chapter 39 ofthis title (relating to Public Notice) for notice ofa hearing on an application for a UIC permit.
(4) For nonhazardous solid waste emergencyorders, 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 ofthis title for notice ofahearing on an applicationfor a nonhazardous waste permit.Texas Natural Resource Conservation Commission Chapter 35

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(5) Forhazardous solid waste emergency orders, including UIC emergency orders, notice shall be mailed and published at least 30 days before the hearingto affirm, modify, or set aside the emergency order, as required by Chapter 39 ofthis title for notice ofahearing on an application for ahazardous waste permit. The commission must also give at least45 days for public comment before issuing the order.
(6) For suspension ofbeneficial inflows underTexas Water Code, §11.148, notice shall be published in a newspaper or newspapers ofgeneral circulation in the affected area not later than the 15th day before the hearing to all affected persons.
(7) Forwaterutility emergency orders for operation ofautility, notice shall be mailed
orhand delivered to the utility not later than the tenth day before the hearing to affirm modify or set aside.
(8) For waterutilitytemporary rate increase orders, notice shall be mailed ordelivered to the affected ratepayers not later than the tenth day before the hearingto affirm, modify, or set aside.
(9) For air catastrophe emergency orders, notice shall be published in anewspaper of general circulation inthe nearest municipality not laterthan the tenth day before the hearing.
(10) Forgeneralized conditionofairpollution emergency orders, the timing, method, and recipients ofnotice shall be as practicable underthe circumstances.Texas Natural Resource Conservation Commission Chapter 35

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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 laterthan the tenth day before the hearing to affinn, modify, or set aside.
(12) Forradioactive material impoundment, notice shall be provided by personal service orcertified mail to those named in the order not later than the tenth day before the hearing to affinn, modify, or set aside.
(13) Forpetroleum storage tank emergency orders, notice shall be provided by certified mail, hand delivery, orifthat fails, one time in the 

### TexasRegisterorpublished once in the county newspapernot laterthan the tenth day before the hearing to affinn, modify, or set aside.
(14) For imminent and substantial endangerment emergencyorders, notice shall be given by certified mail for hand delivery to the personnamed in the order, and ifthatfails, published
once in the 

### Texas Registerand once inthe newspaper ofgeneral circulationnot 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.Texas Natural Resource Conservation Commission Chapter 35 -Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 45

(f) Statutes orrules requiring notice ofhearing or setting procedures for the issuance of permits do not apply to a hearing on an emergency order issued underthis chapterunless they specifically require notice for an emergency order.
(g) Ifthe commission acts on an application for atemporary order, orthe commission or executive director acts on an application for an emergency order, the chiefclerkorthe office designated by the executive director shall mail notice ofthe action to the applicant, the executive director, public interest counsel, and otherpersons who have filed hearing requests orpublic comment.
§35.26. Contents ofEmergency or Temporary Order.

An emergency or temporary orderissuedunderthis chapter shall contain at leastthe following:

(1) the name and address ofthe applicant and information sufficient to identify the facility or location affectedby the order;
(2) a description ofthe condition ofemergency orotherconditionjustifying the issuance ofthe order;
(3) any findings offacts required under this chapter;Texas Natural Resource ConservationCommission Chapter 35

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(4) a statement ofthe term ofthe order, including the dates on which it shall begin and end and the dates onwhichthe activity proposed to be allowed, mandated, orprohibited shall begin and end; (5) a description ofthe action sought and the activity proposed to be allowed, mandated, orprohibited;
(6) ifthe order was issued without a hearing, a statement to that effect and aprovision setting a time and place for ahearing 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 ofeachtemporary order and eitherbefore or after the issuance ofeach emergency order. Ifno hearing is held before the issuance ofan emergency order, ahearing to affirm, modify, or set aside the order shall beheld 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 acontested case hearing.Texas Natural Resource Conservation Commission Chapter 35

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(b) The commission is not required to hold ahearing ifit determines that the basis ofaPage 47

person's request for a hearing as an affectedperson is not reasonable oris not supportedby competent evidence.
(c) All relevant factors shall be considered in the evaluationofa person's request for a hearing
as an affectedperson, 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 orother limitations imposed by law onthe affected interest;
(3) whether a reasonable relationship exists between the interestclaimed and the activity regulated;
( 4) likely impact ofthe regulated activity onthe health, safety, and use ofproperty of the person;
(5) likely impact ofthe regulated activity onuse ofthe impacted natural resource by the person; andTexas Natural Resource Conservation Commission Chapter 35

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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 casehearing only ifthe group or association meets all ofthe following requirements:

(1) one ormore members ofthe 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 reliefrequested requires the participationofthe individual members in the case.


### §35.29. Proceduresfor aHearing.
(a) Hearings before the commissionunder this chapter shall be conducted in accordance with Chapter 10 ofthis title (relating to CommissionMeetings). Contested case hearings shall be conducted under the APA and Chapter 80 ofthis title (relating to Contested Case Hearings).Texas Natural Resource Conservation Commission Chapter 35

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(b) Ifa contested case hearing is requested onthe application, and the commission grants the request, the commission shall either conductthe contested case hearing or remandthe matter**t~~~~** c;-:-
(c) The commission orjudge may, consistent with the requirements ofthe APA, reduce the time periods specified in the commission's rules governing contested case hearings.
(d) For any hearing on atemporary oremergency order, the following procedures will apply:
(1) parties will be designated by the commission orjudge. To be designated as a party, the person seeking party status must show ajusticiable interest. Foreach hearing under this section, the applicant, the public interest counsel, and the executive director are parties by rule;
(2) the test-imony ofall witnesses will be underoath, with an opportunity for questioning by the commissionorjudge and cross-examinationby the other parties;
(3) otherparties to the hearing will be given an opportunity to present rebuttal evidence and testimony;
( 4) the applicant will have the burdenofproving its need for an emergency or temporary order, and will have the rightto open and close the evidentiary parts ofthe hearing. The fact that an emergency orderwas issued withouta hearing, standing alone, will not constituteevidence ofthe need for such authorization;Texas Natural Resource Conservation Commission Chapter 35

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(5) the commission orjudge will have the right to limit the number ofwitnesses; to limit the time for directquestioning orcross-examination ofa witness; to refuse illustrative and documentary evidence; and to limit argument.
(e) Ifa hearing request is denied, the procedures contained in §80.271 and §80.273 ofthis title (relating to Motion for Rehearing; and Decision Final and Appealable) apply.


### §35.30. Application Fees.

The application fee for anemergency ortemporary orderunder this chapter is $500 plus the cost ofthe required notice. The fee is payable at the time the application is filed, and is not refundable.Texas Natural Resource ConservationCommission Chapter 35

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### SUBCHAPTERD :EMERGENCYSUSPENSION OFBENEFICIAL INFLOWS §35.101

STATUTORY AUTHORITY The new sections are adopted underTWC, Chapter 5, Subchapter L, which establishes the Page 51

commission's authority concerning emergency and temporary orders. Otherrelevant sections ofthe TWC under which the commissiontakes this action include: §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authority to setpolicyby rule; and §11.148, which establishes the commission's authority to issue orders relating to beneficial inflows to affected bays and estuaries and instreamuses.


### §35.101. Emergency SuspensionofPermit ConditionsRelatingto BeneficialInflowstoMfected Bays andEstuaries andlnstreamUses.
(a) The purpose ofthis section is to set forth the procedures and criteria to be used by the commission orthe executive director in its review and action onanapplicationby a water right holder for the temporary suspension ofconditions 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 reliefprovided by this sectionshall onlybe used whenthe commission fmds**~hat:**Texas Natural Resource ConservationCommission Chapter 35

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(1) emergencyconditions 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 commissionmay approve an application filed by the affected water right holder for the temporary suspensionofall orapart ofconditions in a waterright relating to beneficial inflows to affected bays and estuaries and instreamuses ifthe commissionfinds that anemergency exists and there is no feasible, practicable alternative to the suspension. The burdenofdemonstrating that the application should be granted in accordance with this section is on the applicant. Forpurposes ofthis section, an emergency is a condition where water supplies available to the applicant have been reduced
orimpaired to such an extentthat an imminent peril to the public health, safety, orwelfare exists. This condition may include, but not be limited to:

(1) the reductionofpublic water supplies to critical levels as aresult ofa severe and sustained drought;
(2) the failure ofa dam for a public water supply reservoir;
(3) the significant contaminationofa public water supply; orTexas Natural Resource Conservation Commission Chapter 35

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(4) the failure or destruction ofpublic water supply pipelines or other distribution systems.
(c) The application shall be filed in accordance with and must containthe information required by §35.24 ofthis title (relating to Applicationfor Emergency orTemporary Order), and the following:
(1) copies ofthe affected permits, certificates ofadjudication, orcertified filings;
(2) a description ofthe emergency's impact onpublic health, safety, and welfare;
(3) a description ofall existing andpotential water supplies available to the applicant and their corresponding uses and costs;
(4) a summary ofthe examinationmade by the applicant ofwhether feasible, practicable alternatives exist to the suspension ofpermit conditions and reasons why those alternatives do not exist;
(5) the amount ofwater over and above available supplies that are necessaryto alleviate emergency conditions;
(6) copies ofthe water right holder's water conservation and drought contingency plans, ifany, and a summary oftheir status and implementation, including the reasons why anyTexas Natural Resource Conservation Commission Chapter 35

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remaining conservationordrought contingency measures provided by the plans have not or 

### will not be implemented;

.(7) a copy ofthe reservoir operatingprocedures, ifapplicable; and
(8) the proposedconditions and trigger levels for the suspension and reinstatement of the releases or other affected pennitconditions.
(d) A copy ofthe applicationmustbe filed by the applicant with the Texas Parks and Wildlife Department (TPWD) at the same time it is filed withthe chiefclerk.
(e) Upon receipt ofthe application, the chiefclerk shall provide notice ofthe time and location ofthe commission's consideration ofthe applicationto the TPWD, executive director, and public interest counsel as soon as practicable after receipt ofthe application, but in no event shall the petition be considered less than 72 hours afterreceipt ofnotice by the TPWD.
(f) The TPWD, executive director, and public interest counsel shall be provided an opportunity to submit comments onthe applicationbefore the commission action. The applicant shall be afforded opportunity to respond to all comments atthe time ofthe commission's considerationofthe matter.Texas Natural Resource ConservationCommission Chapter 35

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(g) The commission's order shall set out the extent ofany suspension and any special condition upon which a suspension is granted. The commission's initial ordermay also indicate the referral of the matter to SOAH for an expedited hearing under subsection (i) ofthis section.
(h) Published notice ofthe initial suspension ofwater right conditions, ifgranted, shall be provided and paid for by the applicant immediately following a favorable commission initial decision by publication in a newspaper ornewspapers ofgeneral circulation in the affected area. The published notice may not be smallerthan 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 ofthe informationcontained inthe application as providedby subsection (c) ofthis section and the time and location ofthe subsequent commissionhearing providedby subsection (i) ofthis section. Such publication shall occur not later than sevencalendar days before this hearing. Forthe purposes ofthis rule, the affected area shall beeach county, in whole or in part, downstream ofthe diversionpoint or impoundment authorized under the affected water right. The applicant shall file with the chief clerk a publisher's affidavit as proofthat such notice was published in accordance with this subsection.
(i) Ifthe commission initially grants an emergency suspension ofpermitconditions without a hearing, the commission shall hold the hearing required by §35.25 ofthis title (relating to Notice and Opportunity for Hearing) as soon as practicable, but in no event later than 15 days afterthe initial emergency suspension is granted to determine whether to affirm, modify, or set asidethe initial emergency suspension. Written notice ofthe hearing shallbe provided to the 

### TPWD and affected persons not later than ten days before the hearing.Texas Natural Resource ConservationCommission Chapter 35

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(j) An emergency order grantedunderthis sectionmay be for a period ofnot more than 120 days ifthe commission finds that emergency conditions exist thatpresent an imminent threat to public health, safety, and welfare and that override the necessity to comply with permitconditions 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 ofwater right conditions, the commission shall examine:
(1) the amount and purposes ofuse for water currently being used by the applicant;
(2) all evidence relating to the availability ofalternative, supplemental water supplies to the applicant; and
(3) the applicant's efforts to curtail water use not essential for the protection ofthe public health, safety, and welfare.
(I) 

### Ifthe water right holderhas a water conservationplanand/or drought contingency plan, the suspension ofwater right conditions may be contingent upon the full implementation ofthose plans and
measurescorresponding to the staged reductionofreleases for existing instream uses and beneficial inflows. 

### Ifthe water right holderdoes not have awater conservationplan and droughtcontingency plan in accordance with Chapter 288 ofthis title (relating to Water Conservation Plans, Guidelines, andTexas Natural Resource Conservation Commission Chapter 35

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Requirements), the order granting an applicationunderthis section shall require the permittee to develop and implement those plans within aprescribed time period as provided in the order.
(m) In granting an application, all existing instream flows shall be passedup 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, orcommercial value) may also be required.
(n) In orderto assist in the preparation and planning for water management during an emergency, the commission may provide conditions in a water right necessary for reliefconsistent with applicable portions ofthis section when the water right is initially granted orsubsequently 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 ofwater for instreamuses and bays and estuaries when it is available, and allow water to be captured or diverted for the protectionofthe public health, safety, and welfare during an emergency, subject to the protectionofstreamflows necessary under subsection (m) ofthis sectionfor the maintenance ofwater quality standards. These conditions may also include full implementationby the waterright holder ofwaterconservation and drought contingency plans as a precondition for obtaining relief.
(o) lfthe applicant's water right already contains provisions for the temporary, total, orpartial suspension ofpermit conditions for the maintenance ofinstream flows orfreshwater inflows to baysTexas Natural Resource Conservation Conunission Chapter 35

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and estuaries, further ordifferent reliefrequested in an application submitted under this section Page 58

generally will be denied unless the applicant can show new orchangedcircumstances oran emergency condition not contemplated when the water right condition was issued.Texas Natural Resource Conservation Commission Chapter 35

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SUBCHAPTERE :EMERGENCY ORDERS FORUTILITIES §35.201, §35.202

STATUTORY AUTHORITY The new sections are adopted underTWC, Chapter 5, Subchapter L, which establishes the Page 59

commission's authority concerning emergency and temporary orders. Otherrelevant sections ofthe TWC under which the commissiontakes this action include: §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authority to setpolicy by rule; and §13.041, which establishes the commission'sauthority to adopt rules to exercise itsjurisdictionover TWC, Chapter 13.

§35.201. Emergency Orderfor Operation ofUtility that Discontinues Operation oris Referred for Appointment ofa Receiver.
(a) The commission or executive director may appoint apersonby emergency order under TexasWaterCode, §5.507 and §13.4132, to temporarily manage and operate a utility that has discontinued orabandoned operations, orwhich is being referred to the attorney general for the appointment ofa receiverunderTWC, §13.412.Texas Natural Resource Conservation Commission Chapter 35

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(b) An emergency ordermay be issued under this section under the provisions of§291.142 and §291.143 ofthis title (relating to Operation ofUtility that Discontinues Operationoris Referred for Appointment ofa Receiver and Operation ofa Utility by aTemporary Manager).
(c) Notice ofan actionunder this section is adequate ifthe notice is mailed orhand-delivered to the last known address ofthe utility's headquarters.

§35.202. 

### EmergencyOrderfor Rate Increase in

### CertainSituations.
(a) The conunission or executive directormay authorize an emergency rate increase under TexasWaterCode, §5.508 and §13.4133 for a utility:
(1) for which a personhas been appointed underTexas WaterCode, §13.4132; or
(2) for which a receiverhas been appointed under TexasWaterCode, §13.412; and
(3) when the increase is necessary to ensure the provision ofcontinuous and adequate services to the utility's customers.
(b) Notwithstanding the provisions of§35.22ofthis title (relating to Term and Renewal of Orders), an emergencyrate increase maybe granted underthis section for aperiod not to exceed 15Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD P..age 61

calendarmonths fromthe 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 mustbe filed by the utility in accordance with, and must containthe information requiredby, §35.24 ofthis title (relating to Applicationfor Emergency orTemporary Order) and the following:

(1) the effective date ofthe rate increase;**~**
(2) sufficient informationto support the computation ofthe proposed rates; and
(3) any other information requested by the executive director.
(d) The effective date mustbe the first day ofabilling cycle, unless otherwise authorizedby the commission or the executivedirector.
(e) Any emergency rate increase related to charges for actual consumption will be for consumption after the effectivedate. An increase orthe portion ofanincrease which is not related to consumptionmay be billed at the emergency rate onthe effective date orthe first billing after approval by the commissionor the executive director.Texas Natural Resource Conservation Commission Chapter 35

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(t) Autility receiving authorization for an emergency rate increase shall provide notice ofthe increase to each ratepayer as soon as possible, but not later than the effective date for the new rate. The notice shall containthe following:
(1) the utility's name and address, the previous rates, the emergency rates, the effective date ofthe rate increase, and the classes ofutility customers affected; and
(2) this statement: "This emergency rateincreasehas been approved by the Texas Natural Resource Conservation Commissionunder authority granted by the Texas WaterCode, §5.508 and §13.4133, to ensure the provisionofcontinuous and adequate service to the utility's customers. The commission is also required to schedule ahearing to establishafinal rate within 15 months after the date on which the emergency rates take effect. The utility is required to provide notice ofthe hearing to all customers at least 10days before the date ofthe hearing. The additional revenues collected under this emergency rate increase are subject to refund ifthe commissionfinds that the rate increase was larger thannecessary to ensure continuous and adequate service."
(g) The utility shall maintain adequate books and records for aperiod not less than 12 months to allow for the determination ofa cost ofservice as set forth in §291.31 ofthis title (relatingto Cost of Service).Texas Natural Resource Conservation Commission Chapter 35

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(h) During the pendency ofthe emergency rate increase, the commission may require that the utility deposit all orpart ofthe rate increase into an interest-bearing escrow account as set forth in §291.30 ofthis title (relating to Escrow ofProceeds Received Under Rate Increase).Texas Natural Resource Conservation Commission Chapter 35

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SUBCHAPTER F :WATER QUALITYE:MERGENCY AND TEMPORARY ORDERS §§35.301-35.303

STATUTORY AUTHORITY The new sections are adopted underTexasWater Code (TWC), Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections ofthe TWC under which the commissiontakes this action include: §5.103, which establishes the commission's general authority to adopt rules; §5.105, whichestablishes the commission's authority to set policyby rule; and §26.011, which establishes the commission's authority over water quality in the state.
§35.301. Emergency andTemporary OrdersAuthorized.

The commission may issue temporary orders, and the commissionor executive director may issue emergency orders, relating to the discharge ofwaste orpollutants into oradjacent to any water in the state under Texas Water Code, §5.509 when necessary to enable action to be takenmore expeditiously than is otherwiseprovidedby TexasWater Code, Chapter26 to effectuate the policy and purposes ofthat chapter.Texas Natural Resource Conservation Commission Chapter 35

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### §35.302. ApplicationforEmergency andTemporary Ordersto Discharge. Page 65

(a) Aperson desiring to obtain an orderto discharge waste into the waters in the state under this subchapter shall submit an application in accordance with §35.24 ofthis title (relating to Applicationfor Emergency orTemporary Order). The application must containthe 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 providedby TexasWater Code, Chapter26, to effectuate the policy and purposes ofthat chapter;
(B) the discharge is unavoidable to:
(i) preventloss oflife, 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 extentconsistent with the requirements ofthe federal CleanWater Act for authorization ofthe NPDES program.Texas Natural Resource Conservation Commission Chapter 35

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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 ofpersons otherthan the applicant, orunreasonable economic loss to persons other than the applicant; and
(E) the proposed discharge will not present a significanthazard to the uses that may be made ofthe receiving water afterthe discharge; ,
(2) statements that there are no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention ofuntreated wastes, ormaintenance during normal periods of equipment downtime. This condition is not satisfied ifadequate back-up equipment should have been installed in the exercise ofreasonable engineeringjudgmentto prevent abypass from occurring during normal periods ofequipmentdowntime orpreventive maintenance;
(3) a statement ofthe volume and quality ofthe proposed discharge;
( 4) anexplanationofmeasures proposed to minimize the volume and duration ofthe discharge;
(5) an explanation ofmeasures proposed to maximize the waste treatment efficiency of units not taken outofservice or facilities provided for interimuse; andTexas Natural Resource Conservation Commission Chapter 35

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(6) for temporary orders, a list ofpotentially affected persons in accordance with §305.48(a)(2) ofthis title (relating to Additional Contents for Applications for Wastewater Discharge Permits).
(b) Apersondesiring to obtain an order to discharge adjacent to waters in the state under this subchapter shall submit an application in accordance with §35.24 ofthis 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 andpurposes ofthat chapter;
(B) the discharge is unavoidable to:
(i) prevent loss oflife, serious injury, severe property damage, or
severe economic loss;

(ii) ameliorate serious drought conditions; or
(iii) make necessary and unforeseenrepairs to a facility;Texas Natural Resource Conservation Commission Chapter 35

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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 ofpersons other than the applicant, orunreasonable 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 ofthe volume and quality ofthe proposeddischarge;
(3) an explanation ofmeasures proposed to minimize the volume and duration ofthe discharge;
(4) an explanation ofmeasures proposed to maximize the waste treatment efficiency of units not taken out ofservice orfacilities provided for interimuse; and
(5) for temporary orders, a list ofpotentially affectedpersons in accordance with §305.48(a)(2) ofthis title.

### Texas Natural Resource Conservation Commission Chapter 35

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### §35.303. Emergency Orders andTemporaryOrders, Page 69

(a) The commissionor executive director may issue emergency orders, and the commission may issue temporary orders, underthis subchapter only ifit is found that:

(1) 

### the order is necessary to enable action to be taken more expeditiously than is otherwise providedby Texas Water Code, Chapter 26 to effectuate the policy and purposes ofthat chapter;
(2) for discharges into water in the state, the discharge is unavoidable to:
(A) prevent loss oflife, serious injury, or severe property damage; or
(B) to ameliorate serious drought conditions, to the extent consistent withthe requirements ofthe federal CleanWater Actfor authorization ofthe NPDES program.
(3) for discharges adjacent to waters inthe state, the discharge is unavoidable to prevent loss oflife, serious injury, severe propertydamage, to ameliorate serious drought conditions,
orto make necessary and unforeseenrepairs to afacility;
(4) there is no feasible alternative to the proposed discharge;Texas Natural Resource Conservation Commission Chapter 35 -Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD
(5) the discharge will not cause significanthazard to human life and health, Page 70

unreasonable damage to property ofpersons other than the applicant, orunreasonable 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 ofthe receiving water afterthe discharge, orthe area surrounding the discharge;
(7) the dates on which the proposed discharge will begin and end and the volume and quality ofthe proposed discharge are reasonable and attainable; and
(8) the measures proposed to minimize the volume and duration ofthe discharge and the measures proposed to maximize the waste treatment efficiency ofunits not taken out ofservice or facilities provided for interimuse are reasonable.
(b) The issuing authority may issue emergency orders and temporary orders to discharge waste
orpollutants into water in the state under this subchapter only ifthe discharge is from an NPDES or Texas pollutantdischarge elimination system-permitted treatment facility.Texas Natural Resource Conservation Commission Chapter 35

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SUBCHAPTER G: SOLIDWASTEAND URANIUM BY-PRODUCTEMERGENCY 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 ofthe TWC under which the commissiontakes 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 ofthe HSC include: §361.011, which establishes the commission'sjurisdictionovermunicipal solid waste; §361.017, which establishes the commission'sjurisdictionover industrial hazardous waste; and §361.024, which establishes the commission's authority to establish rules for the control ofsolid waste.
§35.401. Emergency Ordersfor Non-hazardous SolidWasteActivities andUnderground Injection ofUraniumBy-productMaterials.
(a) The commission orexecutive directormay issue a mandatory orprohibitory emergency orderunderTexas Water Code, §5.512, regarding any activity ofsolid waste management within its jurisdiction, ifit determines that an emergency exists requiring immediate action to protect public health and safety orthe environment.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD
(b) An emergency order issued under this section shall not exceed 90 days, butmay be renewed once. Page 72

(c) An emergency orderaffecting an underground injection control permitmay be issued for a time no longer than that required to prevent the hazard, and may not be renewed. The injection authorized by the emergencyordermay not result in the movement offluids into underground sources ofdrinking water.


### §35.402. Emergency Actions ConcerningHazardousWaste.
(a) Wheneverthere is good reason to believe that the storage, processing, ordisposal of hazardous waste should be authorized to alleviate an imminent and substantialendangerment to human health orsafety orthe environment; and ifthere are no alternative, permitted facilities reasonably available for the propermanagement ofthe waste, the commission orexecutive director, on its own motion, or at the request ofthe executivedirector orany otherparty, may issue an emergency order under Texas Water Code, §5.512, authorizing the processing, storage, or disposal ofthe hazardous waste at a nonpermitted facility or at a permitted facility with no authorizationunder its permitto receive the hazardous w.,_ste in need ofimmediate management.
(b) Inadditionto the informationrequired under §35.24 ofthis title (relating to Applicationfor Emergency orTemporary Order) aparty, otherthan the executive director, requesting such an emergency order shall include a description ofany alternatives investigated.Texas Natural Resource Conservation Commission Chapter 35

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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) ofthis 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 oftheir processing, storage, ordisposal;
(3) may be terminated by the commission at any time without notice and hearing ifit determines that termination is appropriate to protect human health or the environment;
(4) shall incorporate, to the extentpossible and not inconsistent with the emergency situation, all applicable requirements ofthis chapter and Chapter 335 ofthis 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 durationthan required to prevent the hazard. The injection authorized may not result in the movement offluids into underground sources ofdrinking water.Texas Natural Resource ConservationCommission Chapter 35

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(e) Public notice shall accompany the emergency order, shall allow at least45 days for public comment, and shall be given at least 30 days before the hearing onthe emergency order. Public notice ofthe order may be given at the same time as public notice and opportunity for comment onthe order, and the two notices may be combined. The notice shall include:
(1) the name and address ofthe applicant;
(2) the name and location ofthe hazardous waste management facility;
(3) a briefdescriptionofthe wastes involved;
(4) a briefdescription ofthe action authorized orto be authorized, and the reasons for authorization;
(5) the duration ofthe emergency order; and
(6) the name and address ofthe commission (the office granting the order).Texas Natural Resource Conservation Commission Chapter 35

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SUBCHAPTERH: RADIOACTIVE SUBSTANCES AND MATERIALSEMERGENCY 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. Otherrelevant sections ofthe TWC under which the commissiontakes thfs action include: §5.103, whichestablishes the commission's general authority to adopt rules; and §5.105, which establishes the commission's authority to setpolicy by rule. Additionally, relevant sections ofthe Health and Safety Code include: §401.011, which establishes the commission's authority overradioactive substances; §401.051, which establishes the commission's authority to adopt rules for the control ofradiation; §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. EmergencyOrdersRelatingto Radioactive Substances.
(a) When an emergency exists as a resultofa matterunder the commission'sjurisdictionthat requires immediate action to protect the public health orsafety orthe environment, the commissionor executive director may issue an emergency orderunderTexas WaterCode, §5.516, and Texas Health and Safety Code, §401.056.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 76

(b) The commission orexecutive director may issue anemergency order directing any action
orcorrective measure needed to correct or remove the threatto public health or safety orthe environment when the commission or executive director determines that radioactive substancesunder itsjurisdictionthreatens the public health or safety orthe environment and that the licensee managing the radioactive substances is unable to remove the threat.
(c) An emergency orderissued under this sectiontakes effect immediately. Aperson to whom
an emergency order is directed shall comply immediately with that order.
(d) The emergency order shall be delivered to the personto whom the order is directed by hand delivery orby certified mail, returnreceipt requested. Affidavit ofpersonal service, proofof mailing to the proper address, or the receipt shall be conclusive evidence ofservice.
(e) Ifthe commissionorexecutive 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 ofthe date ofthe order. Ifa hearing is requested, notice of the hearing shall be given to the personto whom the order is directedbyhanddelivery 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 thanthe 20th day following the date ofreceiptofthe hearing request.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 77

(f) All provisions ofthe emergency order shall remain in full force and effect during the pendency ofa hearing, unless otherwise altered by the commission. At the conclusion ofthe hearing and after the proposal for decision is made, the commission shall make a determinationto affirm, modify, orrevoke the emergency order and may modify, revoke, or suspend the license based on the determination made.
(g) The commission shall use the financial assurance mechanismprovided by a licensee to pay the costs ofactions 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, Chapter401.
(h) Ifthe costs ofactions 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 orpersoncausing the threat.
(i) The commission shall seek reimbursement through a commission orderorshall request the attorney general to file suit for reimbursement ifthe commissionuses the funds provided by the licensee for security underTexas Health and Safety Code, Chapter401, to pay for actions or corrective
measures to remedy spills orcontaminationby radioactive material resulting from a violation ofthe Texas Radiation Control Act (TRCA), the rules ofthis chapter, or a license ororder issued by the commissionunderthe TRCA orthis chapter.

### - 

## .. Texas Natural Resource Conservation Commission

Chapter 35

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§35.502. Emergency Impoundment ofRadioactive Material. Page 78

(a) In the event ofan emergency, the commission orthe executive director shall have the authority to impound or order the impoundment ofradioactive materialpossessed by any personnot equippedto observe or failing to observe the provisions ofthe Texas Radiation Control Act (TRCA), the rules ofChapter 336ofthis title (relating to Radioactive Substance Rules), or a license or order issued bythe commissionunder the TRCAor Chapter 336 ofthis title.

(b) As determined by the commission, the impounded radioactive material may be:
(1) returned to aproperly licensed owner who did not cause the emergency;
(2) released as evidence to police or courts;
(3) returned to a licensee afterthe emergency conditions have ceasedand any compliance action is settled;
(4) sold;
(5) disposed ofat an authorized disposal facility; or
(6) otherwise appropriately transferred or disposed.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 79

(c) Ifdisposition ofthe impounded radioactive material is necessary to protect the public health and safety, no prior notice needbe giventhe owner orpossessor. Ifaction 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 ofthe material. Notice shall be givenby personal service or certified mail, return receipt requested. The owner orpossessor shall have 30days from the date ofpersonal service
ormailing to make a written request for a hearing. Ifno hearing is requested within that time, the commission may take the proposed action.
(d) Upondisposition ofimpounded radioactive material, the commission may notify the owner and/orpossessor ofany expense the commissionmay have incurred during the impoundment and/or disposition and request reimbursement. Ifthe 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 orpossessor for the amount requested. Ifthe owner orpossessordesires to contestthe amount ofthis charge, he may request a hearing.
(e) Ifthe commissiondetermines from the facts available that impounded radioactive material is abandoned, with no reasonable evidence showing the ownerorpossessor, the commission maymake suchdisposition ofthe material as it sees fit.Texas Natural Resource ConservationCommission Chapter 35

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SUBCHAPTERI: STORAGE TANKEMERGENCY ORDERS §35.601

STATUTORY AUTHORITY Page 80

The new sections are adopted underTexas Water Code (TWC), Chapter 5, Subchapter L, which establishes the commission's authority concerningemergency and temporary orders. Other relevant sections ofthe 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 OrderConcerningUnderground orAboveground Storage Tanks.
(a) The commission orexecutive directormay issue orders underTexas Water Code, §5.510, to the owner or operator ofanunderground storage tank (UST) regulated under Texas WaterCode, Chapter26, and Chapter 334 ofthis title (relating to Underground and Aboveground Storage Tanks), if it fmds that:
(1) there is an actual orthreatened release ofa regulated substance from a UST; andTexas Natural Resource Conservation Commission Chapter 35

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(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) ofthis sectionmay prohibit aperson from allowing or continuing a release or threatened release and may require the personto take the actions necessary to eliminate the release orthreatened release.
(c) Anemergency order issued under this sectioninustbe:
(1) mailed by certified mail, return receipt requested, to each person identified in the order;
(2) hand delivered to eachperson identified in the order; or
(3) onfailure ofservice by certified mail orhand delivery, published one time in the 

### Texas Register, and one time in a newspaper with general circulation in eachcounty in which any ofthe persons identified in the orderhad a last known address.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD



### SUBCHAPTERJ :

### IMMINENT AND SUBSTANTIAL ENDANGERMENT §35.701

STATUTORY AUTHORITY Page 82

The new sections are adopted under Texas Water Code (TWC), Chapter5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Otherrelevant sections ofthe TWC under which the commission takes this action include: §5.103, which establishes the commission's general authority to adopt rules; §5.105;·whichestablishes the commission's authority to setpolicy by rule. Additionally, relevant sections ofthe HSC include: §361.017, which establishes the commission'sjurisdictionover industrialhazardous waste; and §361.024, whichestablishes the commission's authority to establish rules for the control ofsolid waste.
§35.701. Emergency Orders.

Thecommissionorthe·executive director may issue anemergency administrative orderunder Health and Safety Code, §361.272, in the mannerprovidedby this chapter.Texas Natural Resource Conservation Commission Chapter 35

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SUBCHAPTERK : AIRORDERS §§35.801-35.809

STATUTORY AUTHORITY Page 83

The new sections are adoptedunder Texas WaterCode (TWC), Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections ofthe TWC underwhich 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 setpolicy by rule. Additionally, relevant sections ofthe Health and Safety Code include: §382.017, which establishes the commission's rulemaking authority; §382.024 and §382.025 which establish the authority ofthe commissionto issue airorders and what factors the commission must consider when issuing such orders; §382.051, which establishes the commission's authority to adopt rules concerning airpermits; and §382.0513, which establishes the commission's authority to adopt rules concerning permit conditions.

§35.801. Emergency OrdersBecauseofCatastrophe.

The commission orexecutive director may issue emergency orders underTexas Water Code, §5.515, to authorize immediate action for the addition, replacement, orrepairoffacilities orcontrol equipment, and authorizing associated emissions ofair contaminants, whenever a catastrophe necessitates such construction and emissions otherwiseprecludedunder the TCAA. Forpurposes of this section, a catastrophe is an unforeseen event including, but not limitedto, an act ofGod, an act of

# .. Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD Page 84

war, severe weather conditions, explosions, fire, orother similar occurrences beyond the reasonable control ofthe operator, which renders a facility or its functionally related appurtenances inoperable.
§35.802. 

### Application for an

### Emergency Order.

The owner oroperator ofa facility, as that term is defined in Texas Health and Safety Code, §382.003, desiring to obtain an orderunder this subchapter shall submit an application inaccordance with §35.24 ofthis title (relating to Application for Emersency or Temporary Order). The application must containthe information requiredby that sectionand the following:
(1) a statement that the proposed construction and emissions are essential to prevent loss oflife, serious injury, severe property damage, or severe economic loss not attributableto the applicant's actions, and are necessary for the addition, replacement, orrepair offacilities or control equipment necessitated by a catastrophe;
(2) a description ofthe catastrophe;
(3) a statementthat 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 ofair pollution;Texas Natural Resource Conservation Commission Chapter 35

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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 otherproperty owned by the owner oroperator ofthe damaged facility, which produces the same intermediates, products, orby-products, providing that no
more than a

### de minimis increase will occur in the predicted concentration ofthe aircontaminants at or beyond the property line at such otherproperty;
(6) adescription ofthe proposed construction and the type and quantity ofair contaminants to be emitted;
(7) an estimate ofthe dates onwhich the proposed construction and emissions will begin and end;
(8) an estimate ofthe date onwhich the facility will begin operation;
(9) a statement that any construction ormodification will not interfere with the attainment ormaintenance ofnational ambient airquality standards orviolate applicable portions ofthe control strategy; and
(10) any other information or item the executive director may require to support or explainthe need for, orto expedite the issuance of, an emergency order; including information regarding the applicability ofand compliance with[aliY federal requirement}for new ormodified 

# l

/ j' J f •. ,'.(:::> ' ,Vl4 ':J /t./e"" L**~-** r I**~** · +-• ( · n , , sources. ')

- 

### <7

### c**~·)** 

### 'v 0 

### s· l'rv,/.
........**1'--o-c.o--~---·,**Texas Natural Resource Conservation Commission Chapter 35

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### §35.803. PublicNotification. Page 86

The commission or executive director shallpublish notice ofthe issuance ofan emergency order in the 

### Texas Registeras soon as practicable after issuance ofthe order. Ifthe order is issued prior to a hearing, the order shall fix atime and locationfor ahearing which is to be held as soon as practicable afterthe order is issued. Notice ofany hearing shall be published in a newspaper of
. general circulation inthe nearest municipality not later than tendays before the hearing. Notice ofthe issuance and notice ofthe hearing may be consolidated for publication in the newspaper.


### §35.804. Issuance ofOrder.

The commissionorexecutive director may issue an orderunder this subchapter ifit is found that:
(1) the proposed construction and emissions are essential to prevent loss oflife, serious injury, severeproperty damage, or severe economic loss not attributable to the applicant's actions and
are necessary for the addition, replacement, orrepair offacilities or control equipment that is necessitated by a catastrophe;
(2) there are no practicable alternatives to the proposed construction and emissions;
(3) theemissions will not cause or contribute to a condition ofairpollution;Texas Natural Resource Conservation Commission Chapter 35

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(4) any construction ormodification will not interfere with the attainment or Page 87

maintenance ofnational ambient air quality standards orviolate applicable portions ofthe control strategy; (5) the proposed construction oremissions will occur only:
(A) at property where the catastrophe occurred; or
(B) at other property owned bythe owneroroperator ofthe damaged facility which produces the same intermediates, products, orby-products, so long as there will be no more than
a

### de minimis increase in the predicted concentration ofthe aircontaminants at orbeyondthe property line at such otherproperty;
(6) the time limits in the orderfor the beginning and completion ofthe proposed construction and emissions are reasonable; and
(7) the schedule in the order for submission ofacomplete permit application is reasonable.Texas Natural Resource Conservation Commission Chapter 35

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§35.805. 

### Contents ofanEmergency Order. Page 88

In addition to the requirements of §35.26 ofthis title (relating to Contents ofEmergency or Temporary Order), an emergency order issued under this subchapter shall contain at least the following:

(1) a description ofthe emergency construction and emissions to be authorized;
(2) reasonable time limits for the beginning and the completion ofthe proposed construction and emissions;
(3) authorization for action only atthe property where the catastrophe occurred oron other property owned by the owner or operator ofthe damaged facility, which also produces the same intermediates, products, orbyproducts, provided there will be no more than a de minimis increase in the concentration ofair contaminants at orbeyond the property line at such other property;
( 4) the requirementthat any construction or modificationwill not interfere withthe attainment or maintenance ofnational ambient airquality standards orviolate applicableportions ofthe control strategy; and
(5) a schedule for submission ofa complete constructionpermit application under provisions ofTCAA, §382.0518.Texas Natural Resource ConservationCommission Chapter 35

- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD


### §35.806. Requirement to Apply 

### for a Permit or Modification. Page 89

The owner oroperator ofa facility for which an emergency orderhas been issued under this subchapter shall submit an application within 60 days ofissuance ofthe orderunderTexas Water Code, §5.515; TCAA, §382.0518; and Chapter 116, Subchapter Bofthis title (relating to New Source Review Permits). The application shall be reviewed and acted upon by the executive director without regard to construction activity authorizedby the emergency order. The appropriate permit fee shall be due and payable under §§116.140, 116.141, and 116.143 ofthis title (relating to Permit Fees). Costs and expenses related to additions, replacement, orrepair offacilities orcontrol equipment shall not be
a consideration in any determination 

### in the review ofthis application.


### §35.807. Mfinnationofan Emergency Order.

The commission shall affirm a proposed orissued order ifthe applicant shows at the hearing, by apreponderance ofthe evidence, that:
(1) the proposed construction and emissions are essential to prevent loss oflife, serious injury, severepropertydamage, orsevere economic loss not attributable to the applicant's actions and
are necessary for the addition, replacement, orrepair offacilities orcontrol equipmentthat is necessitatedby a catastrophe;
(2) there are no practicable alternatives to the proposed construction and emissions;Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD
(3) the emissions will not cause orcontribute to a condition ofair pollution;
(4) any constructionormodificationwill not interfere with the attainment or Page 90

maintenance ofnational ambient air quality standards orviolate applicable portions ofthe control strategy; and
(5) the proposed constructionor emissions will occuronly:
(A) at property where the catastrophe occurred; or
(B) at otherproperty owned by the owner oroperator ofthe damaged facility which produces the same intermediates, products, orby-products, so long as there will be no more than
a

### de minimis increase in the predicted concentrationofthe air contaminants at orbeyond the property line at such otherproperty;
(6) the time limits inthe orderfor the beginning and completion oftheproposed construction and emissions are reasonable; and
(7) the schedule inthe orderfor submission ofa completepermitapplication is reasonable.Texas Natural Resource Conservation Commission Chapter 35 -Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD


### §35.808. ModificationofanEmergency Order. Page 91

The commissionshall modify a proposed orissued order ifthe hearing record shows that:
(1) construction and emissions otherwise precluded under the TCAA are essential to prevent loss oflife, serious injury, severe property damage, or severe economic loss not attributable to the applicant's actions and are necessary for the addition, replacement, orrepair offacilities orcontrol equipment that is necessitated by a catastrophe;
(2) there is no practicable alternative to such construction and emissions; and
(3) modification ofcertain terms ofthe proposed or issued order is necessary to make the order, construction, and/or emissions meet the requirements stated in §35.807 ofthis title (relating to Affirmation ofan Emergency Order).


### §35.809. SettingAside anEmergency Order.

The commission shall set aside aproposed or issued order ifit is not shown, 

### inaccordance with §35.807 ofthis title (relating to Affirmation ofan Emergency Order) or §35.808 ofthis title (relating to Modification ofan Emergency Order), that the order shouldbe either affirmed ormodified and adopted
as modified.Texas Natural Resource Conservation Commission Chapter 35- Emergency and Temporary Orders and Permits Rule Log No. 97142-035-AD

SUBCHAPTERL : ON-SITE SEWAGEDISPOSAL 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. Otherrelevant
. sections ofthe TWC under which the commissiontakes 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 setpolicy by rule. Additionally, relevant sections ofthe Health and Safety Code include: §366.012, which establishes the commission's authority to establish rules for on-site disposal systems.
§35.901. EmergencyOrderConcerningOn-siteSewageDisposal System.

The commissionmay issue an emergency order suspending the registration ofthe installer ofan on-site sewage disposal system, regulating anon-site sewage disposal system, orboth, ifthe commission finds that an emergency exists andthat the public health and safety is endangered because ofthe operation ofan on-site sewage disposal system that does notcomply with Texas Health and Safety Code, Chapter 366, ora rukadopted under that chapter.

# EVALUATION OF TESTIMONY Chapter 116- 

# .. Texas Natural Resource Conservation Commission

Chapter 116 -ControlofAir Pollutionby Permits

for New Construction orModification Rule Log No. 97142-035-AD

The Texas Natural Resource ConservationCommission (commission) adopts anamendment 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 ofthe 

### 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 implementationplan (SIP).

This action is part ofthe commission's implementation ofSenate Bill (SB) 1876, 75th Legislature, 1997, which consolidated the commission'semergency and temporary order authority. In addition to these amendments and repeals, the commission is concurrently adopting the consolidated agency emergency and temporary orderprovisions under a new Chapter 35, concerning Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment ofPermit Conditions. The commission is also concurrently adopting amendments to emergency and temporary orderprovisions 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 ofthe 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 concurrentlypublished in this editionofthe 

### Texas Register.Texas Natural Resource Conservation Commission Chapter 116

- Control ofAirPollutionby Permits

for New Construction orModification Rule Log No. 97142-035-AD

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 oremergency mandatory, permissive, orprohibitory orders, and issue temporarypermits or suspendpermit conditions by temporary oremergency order. It allows the commission to issue emergency orders with orwithout notice. Additionally, it authorizes the commission to delegate authority to the executive directorto receive applications and issue emergency orders and authorize representatives to act onhis orherbehalf. 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 commissionto 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 ofa catastrophic event, which now defines "catastrophe" in adopted new §35.801, concerning EmergencyOrders Because ofCatastrophe. This amended section will be submitted to the United States Environmental ProtectionAgency (EPA) as a revision to the SIP. The term "catastrophic event" has beenchanged to "catastrophe" to be consistent with the statute.Texas Natural Resource Conservation Commission Chapter 116

- Control ofAir Pollution by Pennits

for New Construction orModification Rule Log No. 97142-035-AD Page 95

The adopted repeals concernprovisions 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 ofthe emergency order and the hearing to affinn, modify, or set aside for the applicant to publish in a newspaper ofgeneral circulation inthe nearest municipality. not later than the tenth daybefore the hearing, but not later than the tenth day before the hearing. This is a change from prior §116.412, which requires only 

### TexasRegisternotice as soon as practicable after issuance. The commission also adopts confonning changes, as well as regulatory refonnchanges to tenninology that were identified during the commission's review ofChapter 116 underArticle IX, §167, ofHouse Bill 1, 75th Legislature, 1997, the General Appropriations Act.

FINAL REGULATORY IMPACT ANALYSIS Staffhas reviewed the proposed rulemaking under the regulatory analysis requirements ofTexas Government Code, §2001.0225, and has detennined that the rulemalcing is not subject to §2001.0225 because it does not meet the definition ofa "majorenvironmental rule" as defined in that statute, and it does not meet any ofthe 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 authoritybyTWC, §5.501. The rules also concern procedural requirements ofthe agency, such as delegation ofthe authority to issue such orders by theTexas Natural Resource Conservation Commission Chapter 116

- Control ofAirPollutionby Permits

for New Construction orModification Rule Log No. 97142-035-AD Page 96

commission to the executive director, and are a result ofthe commission's continuing regulatory reform effort.

TAKINGS IMPACT ASSESSMENT The commission has prepared a takings impact assessment for these rules underTexas Government Code, §2007.043. The following is a summary ofthat assessment. The specific purpose ofthese rules is to implement the statutoryprovisions ofTWC, Chapter 5, Subchapter L. Adoption ofthese rules will also provide for the delegation ofauthority to issue emergency orders by the commissionto the executive director, consolidate agency procedural rules, and make certainprocesses consistent among different agency programs. Adoption ofthese rules will substantially advance these specific purposes by providing specific provisions on these matters. Promulgation and enforcement ofthese rules will not burdenprivate real property which is the subject ofthe rules because they only establish a new procedural mechanism for these types oforders.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commissionhas reviewedthe rulemaking and found that the rules are neitheridentified in Coastal Coordination Act ImplementationRules, 31 TAC §505.11, relating to Actions and Rules Subjectto the Coastal Management Program, nor will they affect any action/authorization identified in Coastal Coordination Act ImplementationRules, 31 TAC §505.11. Therefore, the adopted rules·are not subjectto the CMP.Texas Natural Resource ConservationConunission Chapter 116

- Control ofAir Pollutionby Permits

for New ConstructionorModification Rule Log No. 97142-035-AD

HEARING AND COMMENTERS Page 97

Apublic hearing regarding the proposed rules was held in Austin onAugust 3, 1998, and the public conunentperiod also closed onAugust 3, 1998. No oral conunents were received at the public hearing, but EPA submitted written conunents onthe proposal.

ANALYSIS OFTESTIMONY EPA statedthat the rules referenced in Chapter 116, SubchapterE are not now part ofthe approved SIP and that this is implied otherwise in the preamble to the proposedrules. EPA suggested that the conunissionclarify that the Chapter 35 rules will be submitted to EPA as a new portionofthe SIP.



### The commission agreesthatthe sentenceusedinthepreamblegave theimpressionthat SubchapterE is 

### currentlypartofthe SIP. Chapter 116, SubchapterE was submittedtothe EPA
as a SIPrevisionin 1993 andno SIPapprovalhasbeen given by EPA as ofthis date. The commissionhasmadethisclarificationsuggestedby EPA.

EPA indicated that its understanding is that Chapter 116, SubchapterE has beenmoved to Chapter 35, Subchapter K with no substantive changes.


### Althoughmany oftherules in

### SubchapterK were movedverbatimfrom Chapter 116, there are provisionsinChapter35 which aredifferent fromthe previous rules. Applicable definitionshave beenaddedto SubchapterA. Theauthorityfortheexecutive directorto actis 

### includedinTexas Natural Resource ConservationCommission Chapter 116- Control ofAir Pollutionby Permits

for New Construction orModification Rule Log No. 97142-035-AD Page 98



### SubchapterB. Thehearingprovisionsarein SubchapterC. Tennlimits 

### andapplicationfees havebeenadded andareincludedinSubchapterC. Inaddition, therequirementfor notice in a newspaper ofgeneralcirculationhasbeenaddedin Subchapter K.

STATUTORY AUTHORITY The amendment is adoptedunderTWC, §§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'sgeneral authority to adopt rules. Section 5.105 establishes the commission's authority to setpolicy by rule. Section5.501 establishes the commission's authority to adopt rules to implement the emergency and temporary order provisions ofTWC, Chapter5, Subchapter L. Section 382.017 establishes the commission's authority to adopt rules. Sections 382.024and 382.025 establishthe authority ofthe commissionto issue air orders and what factors the commissionmust considerwhen issuing suchorders. Section382.051 establishes the authority ofthe commissionto adoptrules concerningpermits. Section 382.0513 establishes the authority ofthe commissionto establish certainpermit·conditions.

# STAFF RECOMMENDATIONS Chapter 116Texas Natural Resource Conservation Commission Chapter 116

- Control ofAir Pollutionby Pennits

for New Construction orModification Rule Log No. 97142-035-AD

CHAPTER 116 l?age 99

CONTROL OFAIRPOLLUTIONBY PERMITSFORNEW CONSTRUCTION OR MODIFICATION SUBCHAPTERE : EMERGENCY ORDERS §116.410

§116.410. Applicability.

The owneroroperatorofa facility may apply to the commissionor the executive director for
an emergency orderunder_!exas Water Code.

# §5.5~5(~~apter 35.ofthis title (relating to Emergency and Temporary Orders and Pennits; Temporary SuspensionorAmendment ofPennit Conditions), to authorize immediate action for the addition, replacement, orrepair offacilities or control equipment, and authorizing associated emissions ofair contaminants, whenever a catastrophe necessitates such constructionand emissions otherwiseprecludedunder the Texas CleanAir Act.Texas Natural Resource Conservation Commission Chapter 116

- Control ofAir Pollution by Permits

for New ConstructionorModification Rule Log No. 97142-035-AD



### SUBCHAPTERE :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. Section5.103 establishes the commission's general authority to adopt rules. Section 5.105 establishes the commission's authority to set policy by rule. Section5.501 establishes the commission's authority to adopt rules to implementthe emergency and temporary orderprovisions ofTexas 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 ofthe commission to issue air orders and what factors the commissionmust consider whenissuing such orders. Section 382.051 establishes the authority ofthe commission to adopt rules concerning permits. Section 382.0513 establishes the authority ofthe commissionto establish certain permitconditions.

§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 ofAir Pollution by Permits

for New Construction or Modification Rule Log No. 97142-035-AD


### §116.414. Afftrmation ofanEmergencyOrder.
§116.415. ContentsofanEmergency Order.
§116.416. Requirementto Apply for a PermitorModification.
§116.417. Modification ofanEmergency Order.
§116.418. SettingAside anEmergency Order. P..age lOl

## • TEXAS NATURAL RESOURCE CONSERVATION COMMISSION

AN ORDER adopting a revision to the State ImplementationPlan concerning amendments to 30 TAC Chapters 35 and 116; Docket No. 98-0418-RUL. \\1IEREAS, onNovember 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 30TAC Chapter 116 implement Senate Bill1876, 75th Legislature, 1997, and consolidate the Commission'sprocedural 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, Chapter2001 (Vernon's 1993); and 40 Code ofFederal Regulations, §51.102, the commission staff, afterproper notice, conducted apublic hearing on August 3, 1998, to consider a proposed revision to the SIP; and \\1IEREAS, the Commissionduly circulated to interested persons, the Regional Administrator ofthe U.S. Environmental Protection Agency (EPA), and all applicable local air pollution control agencies, hearing notices ofits intended action; and \\1IEREAS, interestedpersons were invited to submit data, views, and recommendations on the proposed revisions, either orally or in writing, at the hearing; and \\1IEREAS, copies ofthe proposed amendments were available for public inspection at the Commission's central office and regional offices priorto the scheduled hearing; and \\1IEREAS, data, views, and recommendations ofinterested persons were submitted to the Commission staffat the hearing and were consideredby the Commission staffas reflected in the attached analysis oftestimony; and WHEREAS, the Commissionfinds that said analysis oftestimony includes the names ofall interested groups or associations offering comment on the amendments and theirposition 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 ofthe Texas CleanAir Act; and WHEREAS, the Commissionfinds that the reasonedjustification and factual bases for the proposed amendments are fully set out in the analysis oftestimony; andI 

### \ 

### DOCKET NO. 98-0418-RUL PAGETWO WHEREAS, the Comffii;sionhe;eby certifies thatthe amendments, as adopted, have been reviewedby legal counsel and found to be

### a valid exercise ofthe commission's legal authority. NOW, THEREFORE, BEIT ORDERED BY THE COMMISSION THAT: I. The amendment to the SIP appended to this Order is hereby adopted andpromulgated; 2. Onbehalfofthe Commission, the Chairman shouldtransmit a certified copy ofthis Order, together with the adopted amendments, to the Governor ofTexas for submittal to the Regional Administrator ofthe EPA as aproposed revisionto the Texas SIPpursuant to the Federal Clean Air Act, §110, as amended; and 3. The Executive Directoris instructed to file a certified copy ofthe adopted amendments to 30TAC Chapter 35 and 30 TAC Chapter 116 with the Secretary ofState pursuant to the Administrative ProcedureAct.
Issued date: 

# NOV 2 31998 TEXAS NATURALRESOURCE 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 underTexas 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 ofPermit 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 necessaryto 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, 1998, 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, 291.1o, 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 newTexas WaterCode (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 orwithout notice. Additionally, it authorizes the commission to delegate authority to the executive directorto 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, Chapter5, 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 programsand 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



### ADOPTEDRULES December4, 1998 23 TexReg 12413to 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 ortemporarily 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 orderthat must be issued immediatelyin orderto 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 thatwill 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, authorizesthe executive director, ora 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 temporaryorders. 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 bythe 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 reflectthe 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 laterthan 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 December4, 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. Thesubchapter 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 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 implementsTWC, §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 underthis 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 ofa Utilityby 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 Chapter35, andthe commission adopts no substantive changes to those requirements as they previously existed. Adopted new Subchapter F concerns WaterQuality 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 directorto issue the orders underthis 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 oradjacentto anywater in the statewhen 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 orderto provide specific information, including a statement that the order is necessary to enable action to betaken moreexpeditiouslythan is otherwise provided byTWC, 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 issuanceofanemergencyortemporary 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.



### ADOPTEDRULES December4, 1998 23 TexReg 12415Adopted 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 ofsolid 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 HazardousWaste, 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 directoraction if it is determinedthat radioactivesubstances threaten the public health or safety orthe 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 forcommission andexecutive director action to impound or order the impoundment of radioactive material possessed by any person notequipped to observe, orfailing to observe, the provisions ofthe 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 underTRCA or Chapter 336. The section also provides for the disposition ofthe 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 StorageTanks, authorizes the commission or executive directorto issue an orderto the owner or operator of an underground storage tank regulated underTWC, Chapter26, 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 derivedfrom §334.83, concerning EmergencyOrders. 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 orthe 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 informationthat mustbe 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 ofthe national ambient air quality standards (NAAQS) or violate applicable portions ofthe 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 December4, 1998 Texas Register

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### ..
Adopted new §35.803, concerning Public Notification, is derived from §116.412 and contains.changesto rules asthey 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 laterthan 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 requirementthat the executive directororcommission 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, concerningAffirmation 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 ordersuspend· 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 hasdeterminedthatthe rulemaking is notsubject 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 andtemporary order rules underonechapter. 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 forthese rules underTexas 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, Chapter5, 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 consistentwith 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 December4, 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. Underthe 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 Apublic 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 responseto 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 newspaperof generalcirculation has been added in Subchapter K. EPAstatedthatthe 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 Chapter35 rules will be submitted to EPA as a new portion of the SIP. The commission agrees thatthe 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 Chapter35, SubchaptersA, 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 priorto 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 purposeof 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, consistentwith applicable portions ofthestate'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 December4, 1998 Texas Register'.

at which the catastrophe occurred, priorto 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 otherproperty; and therewill be no morethan 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 underwhich 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 emergencyorder, as well as opportunity for public comment and opportunity to challenge the emergency order, are included in Chapter35. Notice ofthe emergencyorder 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 applicationwithin 60 days, therewill 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 § 101.11 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 §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, start-up, and shutdown activities. Whether or not an event qualifies for an exemption does not affect the issuance of an emergencyorder. An upsetmay be caused by acatastrophe, 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 properlyduring 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 undertheemergency 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 directorwithout 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; §5.105, 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 toestablish rules for the control of solid waste; §366.012, which es
### ADOPTED RULES December4, 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· lishesthe commission's authorityto 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 ofExecutive 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 underwhich the commission takes this action include: §5.103, which establishes the commission's general authority to adopt rules; §5.105, 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 authorityto 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: §5.103, which establishes the commission's general authority to adopt rules; §5.105, 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 TexReg12420 

### December4, 

### 1998 Texas Registerto adopt rules concerning air permits; §382.0513, which establishes the commission's authorityto 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. ApplicalionforEmergency or Temporary Order. (a) A person wanting an emergency ortemporary orderunder 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 ofthis 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 bypassrequirements under 9305.535 ofthis title (relatingto Bypasses from TPDES Permitted Facilities). (c) The application must: (I) state the mme, address, and telephone number ofthe 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 ofemergency orothercondition justifying the issuance ofthe order; (4) allege facts to sUpport any llndings required underthis chapter; (5) estimate the dates on which the proposed ordershould 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 oftheapplication must beprovided to the division directorofthe appropriateprogramon behalfoftheexecutive 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 ofthe 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, orvice- president ofthe corporation in charge ofa principal business function, oranyotherpersonwho performs similarpolicyordecisionmaking 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 ordelegation to applicablecorporate 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 ageneral partnerorthe 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 theexecutive directoror 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, orthosepersonsdirectly responsible forgathering 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 offine and imprisonment for knowing violations." (6) For hazardous solid waste applications, the owner and operator ofa facility must sign the application. (7) For radioactive material license applications under Chapter336ofthistitle (relatingto Radioactive Substance Rules), the applicant or person duly authorized to act for and on the applicant's behalfmust sign the application. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise ofthe 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, 1998 For further information, please call: (512) 239-1966 

# • • • Subchapter D. Emergency Suspension ofBeneficial Inflows 30 TAC §35.101 STATUTORY AUTHORITY


### ADOPTED RULES December4, 1998 23 TexReg 12421The new section is adopted underTWC, Chapter5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections of the TWC underwhich 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 ofthe Secretary of State on November 20, 1998. TRD-9817748 Margaret Hoffman Director, Environmental Law Division Texas Natural Resource Conservation Commission Effective date: December 1O, 1998 Proposal publication date: July 3, 1998 Forfurther 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 underwhich the commission takes this action include: §5.103, which establishes the commission's general authority to adopt rules; §5.105, 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 newsections are adopted underTexasWaterCode (TWC), Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sectionsofthe TWC underwhich the commissiontakes this action include: §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authorityto set policy by rule; and §26.011, which establishes the commission's authority over water quality in the state.**.~35.302.** Applicationfor 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 ofthat chapter; (l3) the discharge is unavoidable to: (i) prevent loss of life, serious injury, or severe property damage; (ii) to makenecessary 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 otherthan the applicant; and (E) the proposed discharge will not present a significant hazard to the uses that may be made ofthe 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 maintenanceduring normal periods ofequipment 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 ofequipment downtime or preventive maintenance: (3) a statement ofthe volume and quality ofthe proposed discharge:(4) an explanation of measures proposed to minimize the volume and duration ofthe discharge: (5) an explanation ofmeasures proposed to maximize the wastetreatmentefficiency ofunits nottaken outofservice orfacilities 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 subchaptershall submit an application


### 23 TexReg 12422 December4, 1998 Texas Registerin accordance with**~35.24** ofthis title. The application must contain the information required by that section and the following: (I) statements that: (A) the orderis 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 ofthat 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 otherthan the applicant; and (E) the proposed discharge will nol present a significant hazard to the area ofor surrounding the discharge; (2) a statement ofthe volume and quality ofthe proposed discharge;(3) an explanation ofmeasures proposed to minimize the volume and duration ofthe discharge; (4) an explanation ofmeasures proposed to maximize the wastetreatmenteiTiciency ofunits nottaken outofservice orfacilities provided for interim use; and (5) for temporary orders, a list of potentially affected persons in accordance with**~305.48(a)(2)** ofthis title. §35.303. Emerf?ency Ordersand Temporary Orders. (a) The commission or executive director may issue emergency orders, ami the commission may issue temporaryorders, under this subchapter only ifit 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 ofthat 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 ofthe NPDES program. (3) for discharges adjacent to waters in the state, the discharge is unavoidable to prevent loss oflife, serious injury, severe propertydamage, to ameliorate serious droughtconditions, orto 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 ifthe 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 ofthe 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 underTexas WaterCode (lWC), Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections ofthe TWC underwhich 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 authorityto 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 November20, 1998. TRD-9817751 Margaret Hoffman Director, Environmental Law Division Texas Natural Resource Conservation Commission


### ADOPTED RULES December4, 1998 23 TexReg 12423Effective 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 underTexas WaterCode (TWC), Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary**or?er~.** Other relevant sections ofthe TWC underwhich the comm1ss1on 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. 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 establishesthecommission's authorityto 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 ofthe 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 sectionsofthe TWC underwhich the commissiontakes 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 pol1cy by rule; §26.351, wh1ch establishes the commission's authority concerning corrective ac· tion; and §26.354, which establishesthe commission's authority to issue emergency ordersconcerning petroleumstorage 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 ofthe TWC underwhich the commissiontakes 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. 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 ofthe 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 underTexasWater Code (TWC), Chapter 5, Subchapter L, which establishes the commission's authority concerning emergency and temporary orders. Other relevant sections ofthe TWC underwhich the commissiontakes 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. 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 commissionto issue airorders and whatfactorsthe 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 ofCatastrophe. 

### 23 TexReg 12424 December4, 1998 Texas RegisterThe commission or executive director may issue emergency orders under Texas Water Code, §5.515, to authorize immediate action for the addition, replacement, orrepairoffacilities orcontrol equipment, and authorizing associated emissions of air contaminants, whenever a catastrophe necessitates such constmction and emissions otherwise precluded undertheTCAA.Forpurposes ofthis section, acatastrophe is an unforeseen event including, but not limited to, an act ofGod, an act ofwar, severe weatherconditions, explosions, fire, orothersimilar occurrences beyond the reasonable control of the operator, which renders a facility orits functionally related appurtenances inoperable. §35.802. Applicationfor 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 oflife, 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 ofthe 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 occurin the predicted concentration ofthe air contaminants at or beyond the property line <tt such otherproperty; (6) a description oftheproposed construction andthe 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 ofthe 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 (I0) 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 qfOrder. The commission or executive director may issue an order under this subchapter ifit 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 ofbcilitics 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 airpollution;

### ("?(~any construction or modification will not interfere with tl';e-attftinment or maintenance of national ambient air quality standards or violate applicable p01tions ofthe 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 theorderforthebeginning and completion of the proposed construction and emissions arc reasonable; and (7) the schedule in theorder for submission ofa complete permit application is reasonable. .935.805. Contents ofan 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 ofthe emergency construction and emissions to be authorized; (2) reasonable time limits for the beginning and the completion ofthe 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, orbyproducts, provided therewill 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 ofTCAA, §382.0518. .935.806. Requirement to Applyfor a Permit orMod(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 I16.143 of this title (relating to Permit Fees). Costs and expenses related to additions, replacement, or repair offacilities orcontrol equipment shall notbe aconsideration in any determination in the review ofthis application. .\'\]5.807. Affirmation of an Emergenq Order.


### ADOPTEDRULES December4, 1998 23 TexReg 12425'**-~··**

The commission shall affirm a proposed or issued order if the applicant shows at the hearing, by a preponderance ofthe 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 offacilities 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 ofair pollution; (4) any construction or modification will not interfere with the attainment or maintenance of national ambient air quality standards or violate applicable portions ofthe 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 orderfor the beginning and completion of the proposed construction and emissions arc reasonable; and (7) the**s~;hcdule** in theorderfor submission ofa complete permit application is reasonable.**.~35.808.** Modification of an Emergency Order. Thecommissionshall modify aproposedorissued order ifthehearing 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 ofcertain terms ofthe proposed orissued order is necessary to make the order, construction. and/or emissions meet the requirements stated in §35.807 of this title (relating to Affirmation ofan 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 ofthe TWC underwhich 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.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 ofthe 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 Chapter33, concerning Consolidated Permit Processing. This action is published in this edition ofthe 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 December4, 1998 Texas Register'.;

pan1graph (l)(A) of this subsection. The function of this working group may be delegatedtoan existing group with similarcomposition 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 ofany 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 ofthe conformity determination for an area is the date of thejoint 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, ifnecessary. (B) In the event that the MPO or TxDOT determines that every effort has been made to address the commission'sconcerns, and that no further progress is possible, the MPO or TxDOT shall notify the commissionexecutivedirectorin writing to this effect. This subparagraph shall becitedby the MPO orTxDOTin any notification ofa conflict which may require action by the Governor, or his orher delegate under subparagraph (C) ofthis paragraph. (C) The commission has 14 calendar days from date ofreceiptofnotification, as required in subparagraph (B) ofthis paragraph, to appeal to the Governor. If the commission appeals to the Governor, the final conformity determination must then have the concurrence ofthe Governor. The Governor may delegate his orher role in this process, but not to thecommission orcommission staff, alocal air quality agency, the Texas Transportation Commission or TxDOT staff, or an MPO. This subparagraph shall be cited by the commission in any notification ofa conflict which may require action by the Governor or his or her delegate. Ifthe commission does not appeal to the Governor within 14 calendar days from receipt ofwritten notification, the MPO orTXDOTmay 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 ofthe 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 orTIP. 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 ofthe 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 

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# • Chapter 116. Control ofAir 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 December4, 1998 Texas Register

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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, orset aside forthe applicantto publish in a newspaperof general circulation in the nearest municipality not later than the tenth day before the hearing, but not laterthan 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 determinedthatthe rulemaking is notsubject 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 forthese rules underTexas 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, Chapter5, 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 Apublic 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 EPAstatedthatthe 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 Chapter35 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 newspaperof generalcirculation has been added in Subchapter K. 

### Subchapter E. Emergency Orders 30 TAC §116.410 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,



### ADOPTEDRULES December4, 1998 23 TexReg 12435and 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 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 ofPermit Conditions), to authorize immediate action for the addition, replacement, or repair offacilities 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, §§5.103, 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 5.1 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 

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# • • 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 orAmendment 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**~us** pend 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 directorto 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 December4, 1998 Texas Register