Section 35.25 - Notice and Opportunity for Hearing(a) An emergency order under this chapter may be issued with notice and an opportunity for hearing, or without notice and an opportunity for hearing, as provided by this chapter.(b) If an emergency order is issued under this chapter without a 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.30 Tex. Admin. Code § 35.25
The provisions of this §35.25 adopted to be effective December 10, 1998, 23 TexReg 12413; Amended by Texas Register, Volume 45, Number 19, May 8, 2020, TexReg 3057, eff. 5/14/2020