BILL ANALYSIS



S.B. 1660
By: Ratliff (Yost)
May 11, 1995
Committee Report (Unamended)


BACKGROUND
Historically, environmental enforcement cases were commonly settled
by the entry of agreed orders that only recited the allegations of
the Texas Natural Resource Conservation Commission.  A respondent
made no admission that the respondent had violated any commission
rule.

More recently, however, the commission has been insisting that
Texas law requires the commission to make substantive findings of
fact and conclusions of law in agreed orders.

A respondent who signs such an agreed order is vulnerable to tort
actions by private parties.  Texas considers a violation of
statutes or regulations to be negligence, and recognizes a cause of
action in negligence per se.  Thus, plaintiffs in tort litigation
may try to use the commission's recitation of adverse findings and
conclusions against a respondent.


PURPOSE
As proposed, S.B. 1660 authorizes the Texas Natural Resource
Conservation Commission to limit its findings of fact and
conclusions of law in agreed orders to jurisdictional findings. 
The bill also authorizes an agreed order to include a reservation
that the order is not an admission of wrongdoing or intended for
use in private litigation.


RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.


SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 26.136, Water Code, by adding Subsections
(p) and (q), as follows:

     (p) Declares that the Texas Natural Resource Conservation
     Commission (commission) is not required to make findings of
     fact or conclusions of law, other than an uncontested finding
     that the commission has jurisdiction, in an agreed order
     compromising or settling an alleged violation of this chapter. 
     Authorizes an agreed order to include a reservation that the
     order is not an admission of a violation of this chapter or a
     rule adopted under this chapter, the occurrence of a violation
     is in dispute, or the order is not intended to become part of
     a party's or a facility's compliance history.
     
     (q) Provides that an agreed order issued by the commission
     shall not be admissible against a party to that order in a
     civil proceeding, unless the proceeding is brought by the
     attorney general's office to (1) enforce the terms of that
     order, or (2) pursue violations of the Water Code or Health
     and Safety Code.
     
     SECTION 2.     Amends Section 361.251, Health and Safety Code, by
adding Subsections (v) and (w), to make a conforming change.

SECTION 3. Amends Section 361.252, Health and Safety Code, by
adding Subsections (r) and (s), to make a conforming change.

SECTION 4. Amends Section 382.088, Health and Safety Code, by
adding Subsections (k) and (l), to make a conforming change.

SECTION 5. Effective date: September 1, 1995.

SECTION 6. Emergency clause.


SUMMARY OF COMMITTEE ACTION
S.B.1660 was considered by the committee in a formal meeting on May
11, 1995.
No testimony was received.
The bill was reported favorably without amendment, with the
recommendation that it do pass and be printed, by a record vote of
7 ayes, 0 nays, 0 pnv, 2 absent.