| (a) An emergency order under this chapter may be issued
with notice and an opportunity for hearing, or without notice and
an opportunity for hearing, as provided by this chapter.
(b) If an emergency order is issued under this chapter
without a hearing, the order shall set a time and place for a hearing
to affirm, modify, or set aside the order to be held before the commission
or its designee as soon as practicable after the order is issued.
(c) Except as otherwise provided by this chapter, notice
of a hearing to affirm, modify, or set aside an emergency order under
this chapter shall be given not later than the tenth day before the
date set for the hearing. This notice shall provide that an affected
person may request an evidentiary hearing on issuance of the emergency
order.
(d) Temporary orders require a hearing before the issuance
of the order. Notice of a hearing on a temporary order shall be given
not later than the 20th day before the hearing on the order. This
notice of hearing shall provide that an affected person may request
an evidentiary hearing on issuance of the temporary order.
(e) In addition to the notice requirements provided
elsewhere in these rules, notice shall be provided as follows.
(1) For water quality temporary orders, notice of a
hearing that is held before issuance of the order shall be provided:
(A) by mail to persons requesting public notice of
certain applications, in accordance with §39.407 of this title
(relating to Mailing Lists) and to persons or agencies identified
in §39.413 of this title (relating to Mailed Notice);
(B) by publication by the applicant in a newspaper
of largest general circulation that is published in the county in
which the facility is located or proposed to be located. If a newspaper
is not published in the county in which the facility is located or
proposed to be located, the notice must be published in the newspaper
of general circulation in the county in which the facility is located
or proposed to be located. The applicant must file an affidavit with
the chief clerk certifying facts that constitute compliance with the
publication requirements. The deadline to file the affidavit is 15
days after publication of the notice. Filing an affidavit certifying
facts that constitute compliance with notice requirements creates
a rebuttable presumption of compliance with the requirement to publish
notice; and
(C) at least 20 days before the hearing.
(2) For water quality emergency orders, notice of the
issuance of the order and the hearing to affirm, set aside, or modify
if a hearing is held shall be provided in accordance with paragraph
(1)(A) and (C) of this subsection.
(3) For nonhazardous underground injection control
(UIC) emergency orders, notice shall be mailed and published at least
30 days before the hearing to affirm, modify, or set aside the emergency
order, as is required by Chapter 39 of this title (relating to Public
Notice) for notice of a hearing on an application for a UIC permit.
(4) For nonhazardous solid waste emergency orders,
notice shall be mailed and published not later than the tenth day
before the hearing to affirm, modify, or set aside the emergency order,
as is required by Chapter 39 of this title for notice of a hearing
on an application for a nonhazardous waste permit.
(5) For hazardous solid waste emergency orders, including
UIC emergency orders, notice shall be mailed and published at least
30 days before the hearing to affirm, modify, or set aside the emergency
order, as required by Chapter 39 of this title for notice of a hearing
on an application for a hazardous waste permit. The commission must
also give at least 45 days for public comment before issuing the order.
(6) For suspension of beneficial inflows under Texas
Water Code, §11.148, notice shall be published in a newspaper
or newspapers of general circulation in the affected area not later
than the 15th day before the hearing to all affected persons.
(7) For water utility emergency orders for operation
of a utility, notice shall be mailed or hand delivered to the utility
not later than the tenth day before the hearing to affirm modify or
set aside.
(8) For water utility temporary rate increase orders,
notice shall be mailed or delivered to the affected ratepayers not
later than the tenth day before the hearing to affirm, modify, or
set aside.
(9) For air catastrophe emergency orders, notice shall
be published in a newspaper of general circulation in the nearest
municipality not later than the tenth day before the hearing.
(10) For generalized condition of air pollution emergency
orders, the timing, method, and recipients of notice shall be as practicable
under the circumstances.
(11) For radioactive substances emergency orders, notice
shall be provided by personal service or certified mail to those named
in the order not later than the tenth day before the hearing to affirm,
modify, or set aside.
(12) For radioactive material impoundment, notice shall
be provided by personal service or certified mail to those named in
the order not later than the tenth day before the hearing to affirm,
modify, or set aside.
(13) For petroleum storage tank emergency orders, notice
shall be provided by certified mail, hand delivery, or if that fails,
one time in the Texas Register or
published once in the county newspaper not later than the tenth day
before the hearing to affirm, modify, or set aside.
(14) For imminent and substantial endangerment emergency
orders, notice shall be given by certified mail for hand delivery
to the person named in the order, and if that fails, published once
in the Texas Register and once in
the newspaper of general circulation not later than the tenth day
before the hearing to affirm, modify, or set aside.
(15) For on-site sewage and disposal system emergency
orders, notice shall be mailed to those in the order not later than
ten days before the hearing to affirm, modify, or set aside.
(f) Statutes or rules requiring notice of hearing or
setting procedures for the issuance of permits do not apply to a hearing
on an emergency order issued under this chapter unless they specifically
require notice for an emergency order.
(g) If the commission acts on an application for a
temporary order, or the commission or executive director acts on an
application for an emergency order, the chief clerk or the office
designated by the executive director shall mail notice of the action
to the applicant, the executive director, public interest counsel,
and other persons who have filed hearing requests or public comment.
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