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You are here: Home / Permitting / Air Permits / PermitByRule / Historical Rules / old116 / 1298 / Title 30 TAC Chapter 116 Rule Change, December 10, 1998

Title 30 TAC Chapter 116 Rule Change, December 10, 1998

Synopsis of specific rules from air permitting that were in effect on this date.

Permanent Rule Adoption

Subchapter E

1. Purpose. This change transmittal provides the page(s) that reflect changes and addition to the Texas Natural Resource Conservation Commission (commission) Volume of Permanent Rules.

2. Explanation of Change. On November 18, 1998, the commission adopted 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 implemented Senate Bill (SB) 1876, 75th Legislature, 1997, and continued the commission's effort to consolidate agency procedural rules and make certain processes consistent among different agency programs. This action also included certain changes necessary to implement SB 1, 75th Legislature, 1997, which are noted as follows. Finally, certain provisions of the rules constituted a revision to the state implementation plan (SIP). Specifically, Chapter 35, Subchapters A, B, C, and K and revised § 116.410 were adopted as changes to the SIP. This submission replaced the 1993 submission of the rules in Chapter 116, Subchapter E that were revised or repealed in this action.

Sections 35.24, 35.302, 35.303, 35.801, 35.802, and 35.804-35.808 were 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 were not republished.

On November 18, 1998, the commission adopted an amendment to § 116.410, concerning emergency orders. The commission also adopted the repeal of § § 116.411-116.418, concerning emergency orders. The amendment was adopted with changes to the proposed text as published in the July 3, 1998, issue of the Texas Register (23 TexReg 6920). The repeals were adopted without changes and were not republished. This action was also be submitted to the United States Environmental Protection Agency (EPA) as a revision to the SIP.

On November 18, 1998, the commission adopted the repeal of § 291.10 and § 291.13, concerning procedural rules related to utilities. The commission also adopted amendments to § § 291.14, 291.22, 291.142, and 291.143, concerning emergency orders and the operations of certain utilities. The repeals and amendments were adopted without changes to the proposed text as published in the July 3, 1998, issue of the Texas Register (23 TexReg 6922) and were not republished.

On November 18, 1998, the commission adopted the repeal of § 297.57 and new § 297.57, concerning emergency suspension of permit conditions. The new section was adopted with changes to the proposed text as published in the July 3, 1998, issue of the Texas Register (23 TexReg 6926). The repeal was adopted without changes and was not republished. This action implemented SB 1876 and continued the commission's effort to consolidate agency procedural rules and make certain processes consistent among different agency programs.

On November 18, 1998, the commission adopted amendments to § § 305.21, 305.29, 305.31, and 305.535, concerning emergency and temporary orders. The commission also adopted the repeal of § § 305.22-305.28, 305.30, and 305.32, concerning emergency orders. Finally, the commission adopted new § 305.30, concerning emergency actions. The amendments, repeals, and new section were adopted without changes to the proposed text as published in the July 3, 1998, issue of the Texas Register (23 TexReg 6928) and were not republished. This action implemented SB 1876 and continued the commission's effort to consolidate agency procedural rules and make certain processes consistent among different agency programs.

On November 18, 1998, the commission adopted amendments to § § 321.80, 321.132, 321.134, 321.152, 321.158, 321.219, 321.232, 321.239, and 321.258, concerning emergency and temporary orders. The amendments were adopted without changes to the proposed text as published in the July 3, 1998, issue of the Texas Register (23 TexReg 6932) and were not republished. This action implemented SB 1876 and continued the commission's effort to consolidate agency procedural rules and make certain processes consistent among different agency programs.

On November 18, 1998, the commission adopted an amendment to § 334.83, concerning emergency orders. The amendment was adopted without changes to the proposed text as published in the July 3, 1998, issue of the Texas Register (23 TexReg 6937) and was not republished. This action implemented SB 1876 and continued the commission's effort to consolidate agency procedural rules and make certain processes consistent among different agency programs.

3. Effect of Change. SB 1876 consolidated various statutory provisions governing emergency and temporary orders under new Texas Water Code (TWC), Chapter 5, Subchapter L. The new statute expressly authorizes the commission to issue temporary or emergency mandatory, permissive, or prohibitory orders, and issue temporary permits or suspend permit conditions by temporary or emergency order. It allows the commission to issue emergency orders with or without notice. Additionally, it authorizes the commission to delegate authority to the executive director to receive applications and issue emergency orders and authorize representatives to act on his or her behalf. General application, term, and hearing requirements applicable to all affected programs are included. Finally, specific requirements are listed for specific program areas. The statute will allow the commission or the executive director to act expeditiously to address unforeseen circumstances.

These adopted rules conform with the provisions provided in TWC, Chapter 5, Subchapter L, and provide procedural requirements for implementation. TWC, § 5.501, concerning Emergency and Temporary Order or Permit; Temporary Suspension or Amendment of Permit Condition, expressly authorizes the commission to prescribe rules necessary to carry out and administer Subchapter L.

The adopted new Chapter 35 contains both general provisions that are applicable to all affected programs and program-specific requirements. The latter are largely derived from emergency and temporary order rules that already existed in other chapters within Title 30 of the Texas Administrative Code (for example, Chapter 305, Subchapter B). These provisions were derived from pre-existing 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, some substantive changes were 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 adopted changes to program-specific requirements that result from the passage of SBs 1 and 1876. Finally, the commission adopted changes to clarify some notice requirements for temporary and emergency orders, as well as a fee increase. These changes are noted where applicable.

Adopted new Subchapter A, concerning Purpose, Applicability, and Definitions, sets forth certain general provisions necessary for administration of the chapter. Adopted new § 35.1, concerning Purpose, provides that the purpose of the new chapter is to implement the commission's authority under TWC, Chapter 5, Subchapter L, to issue temporary or emergency mandatory, permissive, or prohibitory orders, and by those orders to issue temporary permits or temporarily suspend or amend permit conditions. This provision is in accordance with TWC, § 5.501, which contains the statutory authorization for the issuance of these orders. This subchapter has also been submitted to the 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 is to provide general definitions for the chapter and to help administer the provisions of TWC, Chapter 5, Subchapter L. An emergency order is defined as an order that must be issued immediately in order to protect human health and safety or the environment; or for reasons specified in adopted new § 35.302, concerning Application for Emergency and Temporary Orders to Discharge. The definition of severe property damage is the same as that in § 305.2, concerning Definitions, and is necessary for the requirements governing water quality emergency and temporary orders. Temporary order is defined as an order of short-duration which must be issued as quickly as possible, or which might allow an authorization for a short-term activity, setting conditions and limitations that will adequately protect human health or safety or the environment, or for the reasons specified in new § 35.302.

Adopted new Subchapter B, concerning Authority of Executive Director, is comprised of three sections and regards delegation to the executive director, as authorized by TWC, § 5.501. New § 35.11, concerning Purpose and Applicability, provides that the purpose of Subchapter B is to allow the executive director to act on behalf of the commission. This subchapter will also be submitted to EPA as a revision to the SIP.

Adopted new § 35.12, concerning Authority of the Executive Director, authorizes the executive director, or a representative or representatives authorized in writing by the executive director, to act on his or her behalf to receive applications for and issue emergency orders. The section also provides notice and hearing procedures.

Adopted new § 35.13, concerning Eligibility of Executive Director, provides for the authority of the executive director or the executive director's representative to act on Texas pollutant discharge elimination system (TPDES) permits or other TPDES-related approvals if the executive director meets the qualifications specified in § 50.41, concerning Eligibility of Executive Director.

Adopted new Subchapter C, concerning General Provisions, provides general requirements for issuing emergency and temporary orders. Adopted new § 35.21, concerning Action by Commission or Executive Director, allows the commission or executive director to issue temporary or emergency orders and, by temporary or emergency order, to issue a temporary permit or temporarily suspend or amend a permit condition. The new provisions implement TWC, § 5.501. This subchapter will also be submitted to EPA as a revision to the SIP.

Adopted new § 35.22, concerning Term and Renewal of Orders, provides that unless otherwise noted by a program-specific requirement, the term of an emergency order is a maximum of 180 days, and that an emergency order may be renewed once for an additional period of up to 180 days by submittal of a new application. The section also provides that a temporary order is limited to a reasonable time specified by the order. This provision implements TWC, § 5.505, concerning Term of Order.

Adopted new § 35.23, concerning Effect of Orders, provides that an emergency or temporary order does not vest any rights in the permit holder or recipient and expires in accordance with its terms.

Adopted new § 35.24, concerning Application for Emergency or Temporary Order, specifies requirements governing applications. The section prescribes the necessary contents of the application and requires its filing with the chief clerk. Subsection (b) specifies that an application for an emergency or temporary order for a bypass of untreated and partially treated wastewater, if the state has national pollutant discharge elimination system (NPDES) authorization, will constitute prior notice of an anticipated bypass, as required by § 305.535. Section 35.24 also requires copies of the application to be provided to the division director of the appropriate program on behalf of the executive director, and to the public interest counsel, at the same time it is filed with the chief clerk. Finally, the section prescribes the manner in which applications are to be signed. The new section implements TWC, § 5.502, concerning Application for Emergency or Temporary Order, and contains procedural requirements necessary for implementation. The section was modified from the proposal to reflect the recent delegation of the national pollutant discharge elimination system (NPDES) authorization.

Adopted new § 35.25, concerning Notice and Opportunity for Hearing, provides the notice and hearing requirements for emergency and temporary orders. The section provides that an emergency order can be issued with or without notice and/or opportunity for hearing, and that if one is issued without a hearing, the order will set a time and place for a hearing to affirm, modify, or set aside the order to be held before the commission or its designee as soon as practicable after the order is issued. In addition, the section provides that unless otherwise provided by program-specific requirements, notice of a hearing for issuance of an emergency order or to affirm, modify, or set aside the order must be given not later than the tenth day before the date set for the hearing and provide that an affected person may request an evidentiary hearing on the issuance of the emergency order. The section also provides that temporary orders require a hearing before their issuance, and that notice must be given not later than the 20th day before the hearing and provide that an affected person can request an evidentiary hearing on issuance of the temporary order. Program-specific notice requirements are also set out. Some of these notice requirements are not in existing Chapter 305 and provide clarification of notice requirements. In addition, the newspaper notice for air catastrophes is in addition to the requirement for notice to be given in the Texas Register. The adopted section implements TWC, § 5.504.

Adopted new § 35.26, concerning Contents of Emergency or Temporary Order, contains the minimum requirements for information that must be included in these types of orders. The contents are derived from the application requirements contained in TWC, § 5.502.

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 fee from $100 to $500 in order to more adequately cover commission expenses incurred when issuing these orders.

Adopted new Subchapter D concerns Emergency Suspension of Beneficial Inflows. The subchapter implements TWC, § 5.506, concerning Emergency Suspension of Permit Condition Relating to Beneficial Inflows to Affected Bays and Estuaries and Instream 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 Instream 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 adopted no substantive changes to the requirements as they existed in Chapter 297.

Adopted new Subchapter E concerns Emergency Orders for Utilities. The subchapter implements TWC, § 5.507, concerning Emergency Order for Operation of Utility that Discontinues Operation or is Referred for Appointment of Receiver, and § 5.508, concerning Emergency Order for Rate Increase in Certain Situations. Adopted Subchapter E also includes provisions necessary to implement SB 1, and it includes commission rules from Chapter 291 that have been moved to new Chapter 35. While largely derived from preexisting commission rules, the commission is also allowing the executive director to issue the orders under this subchapter, as authorized by TWC, § 5.501.

Adopted new § 35.201, concerning Emergency Order for Operation of Utility that Discontinues Operation or is Referred for Appointment of a Receiver, authorizes the commission or executive director to appoint a person by emergency order to temporarily manage and operate a utility that has discontinued or abandoned operations, or which has been or is being referred to the attorney general for the appointment of a receiver under TWC, § 13.412. This provision implements both TWC, § 5.508, concerning these types of orders; and TWC, § 13.412, as amended by SB 1, which expanded the definition of abandonment. The adopted new section also authorizes the issuance of an emergency order in accordance with current § 291.142, concerning Operation of Utility that Discontinues Operation or is Referred for Appointment of a Receiver, and § 291.143, concerning Operation of a Utility by a Temporary Manager.

Adopted new § 35.202, concerning Emergency Order for Rate Increase in Certain Situations, authorizes the commission or executive director to authorize an emergency rate increase for a utility under certain conditions. Specific requirements in the section are entirely derived from § 291.22, concerning Notice of Intent to Change Rates, that have been moved to the new Chapter 35, and the commission adopted no substantive changes to those requirements as they previously existed.

Adopted new Subchapter F concerns Water Quality Emergency and Temporary Orders. The subchapter implements TWC, § 5.509, concerning Temporary or Emergency Order Relating to Discharge of Waste or Pollutants, and includes existing commission rules that have been moved to the new Chapter 35 from Chapter 305, Subchapter B. While largely derived from those preexisting commission rules, the rules as adopted allow the executive director to issue the orders under this subchapter, as authorized by TWC, § 5.501. The commission takes this action in order to provide for the more expeditious issuance of emergency and temporary orders.

Adopted new § 35.301, concerning Emergency and Temporary Orders Authorized, authorizes the commission or executive director to issue emergency orders, and the commission to issue temporary orders, for the discharge of waste or pollutants into or adjacent to any water in the state when expeditious action is necessary.

Adopted new § 35.302, concerning Application for Emergency and Temporary Orders to Discharge, contains application requirements that are specific to Subchapter F. In addition to the application requirements specified in adopted § 35.24, this adopted section requires a person desiring to obtain an emergency or temporary order to provide specific information, including a statement that the order is necessary to enable action to be taken more expeditiously than is otherwise provided by TWC, Chapter 26, to effectuate the policy and purposes of that chapter, and statements on the nature of the adopted discharge. Additionally, the section reflects a change in the law that provides that amelioration of serious drought conditions can be a condition necessitating the issuance of an emergency or temporary order to the extent consistent with state assumption of the NPDES program. Further, since the state assumed the NPDES program on September 15, 1998, the commission has changed the language of the proposed rule to delete references to emergency and temporary orders issued prior to assumption of the program.

Adopted new § 35.303, concerning Emergency Orders and Temporary Orders, provides the conditions under which the commission or executive director may issue emergency or temporary orders.

Adopted new Subchapter G concerns Solid Waste and Uranium By-product Emergency Orders. It implements TWC, § 5.511, concerning Emergency Administrative Order Concerning Imminent and Substantial Endangerment, and § 5.512, concerning Emergency Order Concerning Activity of Solid Waste Management, and contains provisions from existing commission rules. While largely derived from preexisting commission rules, the commission is allowing the executive director to issue the orders under this subchapter, as authorized by TWC, § 5.501.

Adopted new § 35.401, concerning Emergency Orders for Nonhazardous Solid Waste Activities and Underground Injection of Uranium By-product Materials, authorizes the commission or executive director to issue a mandatory or prohibitory emergency order regarding any activity of solid waste management within its jurisdiction, whether the activity is covered by permit or not, if it determines that an emergency exists. The section also provides for terms of these orders. The new section was derived from § 305.29, concerning Emergency Orders for Solid Waste Activities. As noted, the commission authorizes the executive director to issue these orders, as allowed by statute. In addition, the commission is adding requirements for underground injection control emergency orders previously only set out in federal rules.

Adopted new § 35.402 concerns Emergency Actions Concerning Hazardous Waste, and was derived in its entirety from previous § 305.30, concerning Emergency Actions Concerning Hazardous Waste. As previously noted, the commission is allowing the executive director to issue orders under the adopted section.

Adopted Subchapter H concerns Radioactive Substances and Materials Emergency Orders. The adopted subchapter implements TWC, § 5.516, which authorizes the issuance of emergency orders under Health and Safety Code (HSC), § 401.056, concerning Emergency Orders.

Adopted new § 35.501, concerning Emergency Orders Relating to Radioactive Substances, provides for commission or executive director action if it is determined that radioactive substances threaten the public health or safety or the environment, and that a licensee managing the radioactive substances is unable to remove the threat. The section also provides program-specific notice and hearing requirements, as well as provisions relating to financial assurance. The section is entirely derived from § 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 adopted no other changes to the rules concerning this matter as they currently exist, and the provisions are simply incorporated into the new Chapter 35.

Adopted new § 35.502, concerning Emergency Impoundment of Radioactive Material, provides for commission and executive director action to impound or order the impoundment of radioactive material possessed by any person not equipped to observe, or failing to observe, the provisions of the Texas Radiation Control Act (TRCA), the rules of 30 TAC Chapter 336 (concerning Radioactive Substance Rules), or a license or order issued by the commission under TRCA or Chapter 336. The section also provides for the disposition of the radioactive material. The section is derived from § 305.32, concerning Emergency Impoundment of Radioactive Material, and the only change to the rules as they previously existed is to provide for action by the executive director. The commission adopted no other changes to the rules concerning this matter as they previously existed, and the provisions are simply incorporated into the new Chapter 35.

Adopted new Subchapter I concerns Storage Tank Emergency Orders. The subchapter implements TWC, § 5.510, which authorizes the issuance of these orders. Adopted § 35.601, concerning Emergency Order Concerning Underground or Aboveground Storage Tanks, authorizes the commission or executive director to issue an order to the owner or operator of an underground storage tank regulated under TWC, Chapter 26, and 30 TAC Chapter 334 (concerning Underground and Aboveground Storage Tanks). The section contains program-specific requirements concerning the content of the order, and it provides for the delivery of the order to people identified in the order. The section is derived from § 334.83, concerning Emergency Orders. The only significant change from the previous rules adopted by the commission is to provide for action by the commission, as well as the executive director, whereas the existing rule provides only for action by the executive director. Otherwise, the commission adopted no other changes to the rules concerning this matter as they previously existed, and the provisions are simply incorporated into the new Chapter 35.

Adopted new Subchapter J, concerning Imminent and Substantial Endangerment, implements TWC, § 5.511, concerning Emergency Administrative Order Concerning Imminent and Substantial Endangerment. Adopted § 35.701, concerning Emergency Orders, allows the commission or the executive director to issue an emergency administrative order under HSC, § 361.272, in the manner prescribed by adopted Chapter 35.

Adopted new Subchapter K, concerning Air Orders, implements TWC, § 5.514 and § 5.515, concerning Order Issued Under Air Emergency and Emergency Order Because of Catastrophe, respectively. The adopted rules are derived from Chapter 116, Subchapter E, concerning Emergency Orders. The commission adopted changes to make the provisions consistent with SB 1876. This subchapter will also be submitted to EPA as a revision to the SIP. It replaces the rules that were found in Chapter 116, Subchapter E.

Adopted new § 35.801, concerning Emergency Orders Because of Catastrophe, authorizes the commission or executive director to issue an emergency order authorizing immediate action for the addition, replacement, or repair of facilities or control equipment, and authorizing associated emissions of air contaminants, whenever a catastrophe necessitates such action that would otherwise be precluded by the Texas Clean Air Act (TCAA). Catastrophe is defined. The commission revised the term "catastrophic event" to "catastrophe" to be consistent with the statute.

Adopted new § 35.802, concerning Application for an Emergency Order, requires the submission of an application in accordance with adopted § 35.24. The section also provides the information that must be submitted in addition to the general application requirements. The section is derived from § 116.411, concerning Application for an Emergency Order. The commission clarified the proposed rule language by providing that the term "facility," as used in Subchapter K, is the same definition of that term in TCAA, § 382.003. The requirement that the application include a statement that any construction or modification will not interfere with the attainment or maintenance of the national ambient air quality standards (NAAQS) or violate applicable portions of the control strategy was added, and is consistent with expectations in previous emergency orders. These changes were made in response to comments. In addition, the commission revised the term "catastrophic event" to "catastrophe" to be consistent with the statute.

Adopted new § 35.803, concerning Public Notification, is derived from § 116.412 and contains changes to rules as they previously existed in that section. In addition to the publication of notice in the Texas Register, the new section requires the commission or executive director to prepare the notice of the emergency order and the hearing to affirm, modify, or set aside for the applicant to publish in a newspaper of general circulation in the nearest municipality not later than the tenth day before the hearing. This is a change from prior § 116.412, which required only Texas Register notice as soon as practicable after issuance, but not later than the tenth day before the hearing. The new section also contains changes allowing either the commission or the executive director to act.

Adopted new § 35.804, concerning Issuance of Order, authorizes the commission or executive director to issue an order under this subchapter if certain conditions are found to exist. The requirement that the executive director or commission must find that any construction or modification will not interfere with the attainment or maintenance of the NAAQS or violate applicable portions of the control strategy was added. This change was made in response to comment. In addition, the commission revised the term "catastrophic event" to "catastrophe" to be consistent with the statute.

Adopted new § 35.805, concerning Contents of an Emergency Order, prescribes content requirements that are in addition to those specified in § 35.38. The provisions are derived entirely from § 116.415, concerning Contents of an Emergency Order. The requirement that the order include the requirement that any construction or modification will not interfere with the attainment or maintenance of the NAAQS or violate applicable portions of the control strategy was added. This change was made in response to comment. In addition, the commission revised the term "catastrophic event" to "catastrophe" to be consistent with the statute.

Adopted new § 35.806, concerning Requirement to Apply for a Permit or Modification, requires the owner or operator of a facility for which an emergency order has been issued to submit an application within 60 days of issuance of the order in accordance with statute and commission rules. The section is derived from the previous § 116.416, concerning Requirement to Apply for a Permit or Modification. The citation to the repealed statute, TCAA, § 382.063, has been replaced with the correct citation to the TWC.

Adopted new § 35.807, concerning Affirmation of an Emergency Order, provides the conditions under which the commission affirms a adopted or issued order. The section is derived in its entirety from § 116.414, concerning Affirmation of an Emergency Order. The requirement that the order include the requirement that any construction or modification will not 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 § 35.808, 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 Emergency Order Concerning On-site Sewage Disposal System, authorizes the commission to issue an emergency order suspending the registration of an installer of an on-site sewage disposal system, regulating an on-site sewage disposal system, or both, under certain conditions.

The adopted amendments to § 116.410, concerning Applicability, added a reference to new Chapter 35, made a conforming change, and deleted the definition of a catastrophic event, which now defines "catastrophe" in adopted new § 35.801, concerning Emergency Orders Because of Catastrophe. This amended section was submitted to the EPA as a revision to the SIP. The term "catastrophic event" has been changed to "catastrophe" to be consistent with the statute.

The adopted repeals concern provisions incorporated into the new Chapter 35. These provisions are moved in their entirety to new § 35.12 and Chapter 35, Subchapter K. In that new subchapter, the commission does change notice requirements. Adopted new § 35.803 requires the commission or executive director to prepare the notice of the emergency order and the hearing to affirm, modify, or set aside for the applicant to publish in a newspaper of general circulation in the nearest municipality not later than the tenth day before the hearing, but not later than the tenth day before the hearing. This is a change from prior § 116.412, which requires only Texas Register notice as soon as practicable after issuance. The commission also adopted 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.

The adopted repeal of § 291.10, concerning Request for Public Hearing, removed procedural requirements that duplicate those in Chapter 55, concerning Requests for Contested Case Hearings; Public Comment. The commission took this action to continue the consolidation of agency procedural rules.

The adopted repeal of § 291.13, concerning Record of Proceeding, eliminated the requirement that a record be kept of all proceedings before the commission. This requirement duplicated requirements in current commission procedural rules and was therefore unnecessary.

The adopted amendments to § 291.14, concerning Emergency Orders, made nonsubstantive clarifying and conforming changes to reference TWC, § 5.507 and § 5.508, and the new Chapter 35.

The adopted amendment to § 291.22, concerning Notice of Intent to Change Rates, amended subsection (g) to reference the new Chapter 35 and make conforming changes. The amendment also eliminated specific requirements governing emergency rate increases that have been moved to § 35.202, concerning Emergency Order for Rate Increase in Certain Situations.

The adopted amendments to § 291.142, concerning Operation of a Utility that Discontinues Operation or is Referred for Appointment of a Receiver, implemented both SB 1 and SB 1876. The section was 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 was expanded in accordance with TWC, § 13.412, as amended by SB 1. Finally, the section was amended to reference new Chapter 35 and remove the provision that notice of the action is adequate if the notice is mailed or hand-delivered to the last known address of the utility's headquarters. This provision was moved to new § 35.201, and is therefore unnecessary.

The adopted amendments to § 291.143, concerning Operation of a Utility by a Temporary Manager, also implemented both SB 1 and SB 1876. The section expressly grants to a person appointed to temporarily manage and operate a utility the power to take certain actions. The person, in addition to the previously existing duties, can also now access all system components. These changes implemented TWC, § 13.4132, as amended by SB 1. Finally, the amendments made nonsubstantive conforming changes to reference TWC, § 5.507, and the new Chapter 35.

The adopted repeal of § 297.57 moved existing requirements from § 297.57, concerning Emergency Suspension of Permit Conditions, into the new Chapter 35. These provisions may be found in Chapter 35, Subchapter D, concerning Emergency Suspension of Beneficial Inflows. There were no substantive changes to the requirements as they currently exist.

The new § 297.57 simply references the commission's authority under TWC, § 5.506, and the new Chapter 35. The section also allows the executive director to act, as authorized by TWC, § 5.501.

The adopted amendment to § 305.21, concerning Emergency Orders and Temporary Orders Authorized, provided reference to the commission's authority under TWC, § 5.509, and the new Chapter 35. The amendment also made conforming changes.

The adopted repeals of § 305.22, concerning Application for Orders or Authorizations to Discharge; § 305.23, concerning Emergency Orders; and § 305.25, concerning Executive Director Authorizations to Discharge, deleted provisions that have been moved to Chapter 35, Subchapter F, concerning Water Quality Emergency and Temporary Orders.

The adopted repeals of § 305.24, concerning Notice; § 305.26, concerning Hearings for Temporary Orders, Executive Director Authorizations and Emergency Orders; § 305.27, concerning Application Fees; and § 305.28, concerning Renewals of Emergency and Temporary Orders, deleted provisions that are addressed in Chapter 35, Subchapter C, concerning General Provisions.

The adopted amendments to § 305.29, concerning Emergency Orders for Solid Waste Activities, provided reference to the commission's authority under TWC, § 5.512, and the new Chapter 35, and made conforming changes. The amendments also deleted provisions that have been moved to Chapter 35, Subchapter G, concerning Solid Waste and Uranium By-product Emergency Orders.

The adopted new § 305.30, concerning Emergency Actions Concerning Hazardous Waste, referenced the commission's authority under TWC, § 5.512, and the new Chapter 35 and contains conforming changes. The repeal of § 305.30, concerning Emergency Actions Concerning Hazardous Waste, deleted provisions that have been moved to Chapter 35, Subchapter G.

The adopted amendments to § 305.31, concerning Emergency Orders Relating to Radioactive Substances and § 305.32, concerning Emergency Impoundment of Radioactive Material, referenced the commission's authority under TWC, § 5.512, and the new Chapter 35 and made conforming changes. The amendments also deleted provisions that have been moved to Chapter 35, Subchapter H, concerning Radioactive Substances and Materials Emergency Orders.

The adopted amendments to § 305.535, concerning Bypasses from TPDES Permitted Facilities, made conforming changes to reflect the new Chapter 35. The section was also amended to grant to the commission the authority to determine if the required conditions for authorizing a bypass are met. The executive director had that authority in the rules as they previously existed.

The adopted amendments in Chapter 321 made nonsubstantive changes to make cross-references to the new Chapter 35, as well as to Chapter 70, concerning Enforcement. The commission also adopted nonsubstantive changes to terminology for regulatory reform purposes.

The amendment to § 334.83, concerning Emergency Orders, provided reference to the commission's authority under TWC, § 5.510, and the new Chapter 35. The amendment also made a conforming change and deleted provisions that were moved to proposed Chapter 35, Subchapter I, concerning Storage Tank Emergency Orders.


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