(a) Site Classification Under Review. Regardless of any other section of Chapter 60 of this title (relating to Compliance History), the executive director may designate a site's current compliance history classification as "under review" if the executive director determines that exigent circumstances exist due to an event at the site. The executive director shall make any such designation no later than 90 days after exigent circumstances begin. The designation as "under review" is effective immediately and written notice will be issued to the site's owner and operator, as readily identifiable through agency records. Unless a Notice of Decision to Reclassify is issued under subsection (b) of this section, the designation shall expire on the 91st day after the date of the written notice of designation. For the purpose of this section, exigent circumstances must include:
  (1) Significant community disruption;
  (2) Emergency response by a federal or state governmental authority to address an actual, unauthorized release of pollutants, contaminants, or other materials regulated by the agency; and
  (3) The event must have resulted in one or more of the following:
    (A) the issuance of an emergency order by a federal or state governmental authority;
    (B) the issuance of a temporary restraining order or temporary injunction at the request of the state, related to compliance with "applicable legal requirements" under the jurisdiction of the commission, as defined by §60.1(c)(1) of this title (relating to Compliance History);
    (C) the use of significant federal or state resources, such as the activation of an incident command system; or
    (D) an actual, unauthorized release of pollutants, contaminants, or other materials regulated by the agency, which causes:
      (i) the evacuation of off-site persons from homes, places of employment, or other locations;
      (ii) the sheltering in place by off-site persons in homes, places of employment, or other locations;
      (iii) the creation of a traffic hazard or interference with normal use of a navigable waterway, railway, or road; or
      (iv) injury or death of a person directly attributable to the release.
(b) Notice of Decision to Reclassify. The executive director may then decide to reclassify a site's compliance history to "suspended." The executive director will consider any available information concerning whether the event in question was caused through any fault of the site's owner or operator. The executive director may make such a decision no sooner than 30 days and no later than 90 days after a site's classification is designated as "under review," and the executive director shall send written notice to the site's owner and operator, as readily identifiable through agency records, of the decision to reclassify the site's compliance history to suspended. The noticed reclassification shall not become final until the effective date under subsection (f) of this section.
(c) Evaluation of Permit Applications. To the extent any permit applications are pending for authorizations at the site, upon the executive director's written Notice of Decision to Reclassify a site's compliance history to "suspended" and until the agency has evaluated the pending permit application in light of the event, unless legally obligated otherwise or the decision is withdrawn or set aside, the agency shall not take action to issue, renew, amend, or modify a permit specific to the site. Based on the evaluation, the agency may:
  (1) approve the permit;
  (2) approve the permit with changes, which may include additional protective measures to address conditions that caused or resulted from the event; or
  (3) deny the permit.
(d) Demonstration that Reclassification Not Warranted. At any time prior to filing a motion for commission review of the executive director's Notice of Decision to Reclassify, the site's owner or operator may demonstrate to the executive director that reclassification is not warranted. If the executive director determines that reclassification is not warranted, the executive director shall withdraw the decision to reclassify the site's compliance history to suspended by providing written notice to the site's owner and operator, as readily identifiable through agency records.
(e) Motion for Commission Review of the Executive Director's Decision. The executive director's decision to reclassify a site's compliance history to suspended under this section may be appealed to the commission only by persons who own or operate the site, and pursuant to the following procedures:
  (1) A motion for commission review of the executive director's decision shall be filed with the Chief Clerk not later than 90 days after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section.
  (2) The commission or the general counsel may, by written order, extend the period of time for taking action on the motion so long as the period for taking action is not extended beyond 180 days after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section.
  (3) The motion shall provide the name, address, and daytime telephone number of the person filing the motion, and a brief explanation of the person's owner or operator status as it relates to the site being reclassified.
  (4) The motion shall state the grounds for the appeal and the specific relief sought. The appeal must also include all documentation and argument in support of the motion.
  (5) At the request of the general counsel or a commissioner, the motion for review of the executive director's decision to reclassify will be scheduled for consideration during a commission meeting. At the commission meeting, the commission may act on the motion by affirming or setting aside the executive director's decision to reclassify in whole or in part. A Commission Order for its action under this paragraph shall not contain conclusions of law.
  (6) If the commission does not act on the motion under paragraph (5) of this subsection, then the motion will be addressed as follows:
    (A) Unless an extension of time is granted, if a motion for review of the executive director's decision to reclassify is not acted on by the commission within 115 days after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section, the motion is overruled by operation of law; or
    (B) In the event of an extension, the motion is overruled by operation of law on the date fixed by the order granting the extension, or in the absence of a fixed date, on the 181st day after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section.
  (7) During the pendency of any judicial review of the reclassification to suspended, the reclassification shall remain for the purpose of this rule.
(f) Effective Date of Reclassification.
  (1) If no timely motion for commission review is filed pursuant to subsection (e) of this section, the site's compliance history shall be reclassified to suspended on the 91st day after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section; or
  (2) If a timely motion for commission review is filed pursuant to subsection (e) of this section, the site's compliance history shall be reclassified to suspended on the date a commission order affirming the executive director's decision to reclassify is signed or, in the absence of such an order, on the date the motion is overruled by operation of law.
(g) Effects of Reclassification. While a site's compliance history is reclassified to suspended under this section:
  (1) The agency shall continue to evaluate applications for permits specific to the site under subsection (c) of this section; and
  (2) The site shall be treated as an unsatisfactory performer for the purposes of §60.3 of this title (relating to Use of Compliance History), except that the owner or operator of a reclassified site may demonstrate to the executive director that authorizations under §60.3(a)(3)(A)(i) and (ii) would still be appropriate. Upon such a demonstration, the executive director may decide to allow for such authorizations regardless of the prohibitions in §60.3(a)(3)(A)(i) and (ii).
(h) Duration of Reclassification. A site's compliance history reclassification under this rule to suspended shall remain for at least one year after the effective date of reclassification, and then until the earliest of:
  (1) the executive director provides written notice of the determination that the reclassification is no longer warranted, after the executive director decides that:
    (A) the exigent circumstances have been resolved; and
    (B) the cause of the event has been identified and corrective actions have been implemented that appropriately reduce or eliminate the likelihood that the same or a similar event will reoccur;
  (2) an enforcement action arising from the event has been resolved and resulted in a component that is accounted for in the site's compliance history, or such enforcement case is neither pending nor anticipated by the executive director; or
  (3) three years after the effective date of reclassification.

Source Note: The provisions of this §60.4 adopted to be effective June 23, 2022, 47 TexReg 3543