ACG C.S.H.B. 3460 75(R) BILL ANALYSIS ENVIRONMENTAL REGULATION C.S.H.B. 3460 By: Chisum 4-10-97 Committee Report (Substituted) BACKGROUND The power to issue emergency and temporary orders allows the Texas Natural Resource Conservation Commission to address unforeseen circumstances. For example, these orders allow the agency to respond to water shortages during drought periods, and exceedances of capacity in sewage systems during floods. A survey of existing statutes reveals substantial differences among agency programs in the procedures followed for issuing emergency and temporary orders. In certain instances, the Commission lacks altogether the authority to issue emergency orders. These procedures also are set out in different areas of the statutes, making it difficult to understand the controlling law. These problems may result in a lack of understanding of the requirements for temporary and emergency orders on the part of the regulated community and the general public. PURPOSE As proposed, the legislation will make it easier for the regulated community and the public to locate and understand why and how the Texas Natural Resource Conservation Commission issues emergency and temporary orders. RULEMAKING AUTHORITY Rulemaking authority is granted to the Texas Natural Resource Conservation Commission under SECTION 1 and SECTION 6 of this bill (Sections 5.501 and 16.236, Water Code). SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 5 of the Water Code to add a new Subchapter L. Sec. 5.501. (a) Authorizes the commission to issue temporary and emergency orders consistent with the purposes and requirements of the subchapter which may be mandatory, permissive or prohibitory, to issue temporary permits by temporary or emergency order, and to suspend or amend permit conditions by temporary or emergency order. (b) Sets out requirements for notice for hearings on temporary and emergency orders; requires the commission to hold a hearing prior to issuing temporary orders and to do so where practicable before issuing emergency orders; provides that except as provided for orders relating to instream flows, notice required must be given not later than 10 days before the hearing date, and that for a temporary order notice must be issued at least 20 days prior to the hearing. (c) Authorizes the commission to delegate to the executive director the power to receive applications and issue emergency orders, and to authorize a representative to act on the executive director's behalf. (d) Provides that the issuance of emergency orders without a hearing is not a contested case hearings under Chapter 2001, Government Code. (e) Provides that the notice and procedural provisions of the statutes other than Subchapter L based on which the commission acts do not apply to emergency orders, unless those statutes contain provisions specifically applicable to emergency orders. (f) Provides that emergency and temporary orders do not create any rights for the recipient. (g) Authorizes the commission to promulgate rules and fees necessary to carry out its duty under Subchapter L. Sec. 5.502. Requires a person other than the executive director who desires a temporary or emergency order to submit a sworn application containing the condition justifying the order, the time period of the order and the action sought. Sec. 5.503. Requires that notice of emergency orders be issued consistent with commission rules. Sec. 5.504. (a) Requires that for emergency orders issued without a prior hearing, the order must set a date for a hearing be set to review the order as soon as practicable. (b) Provides that the order must be affirmed, modified or set aside at the hearing. (c) Provides that a hearing held under Section 5.504 is a contested case under Chapter 2001, Government Code, and that commission rules must provide for presentation of evidence under oath and cross-examination of witnesses. Sec. 5.505. Requires that temporary and emergency orders be limited to a reasonable time period, and that emergency orders last no longer than 180 days with one 180 day renewal. Sec. 5.506. (a) Authorizes the commission to issue permits for diversion and use of water by emergency order, and to issue orders and amendments to existing permits, certified filings, or certificates of adjudication on a finding of emergency conditions presenting an imminent threat to public health, safety and welfare or the environment which override the need for compliance with ordinary procedures, if no feasible practicable alternatives exist to the emergency order; limits permits to no more than 120 days, with one 60 day renewal. (b) Authorizes the executive director to issue emergency orders where action is required before the commission can act; requires the commission to hold a hearing on emergency orders no later than 10 days after an emergency order is issued by the executive director; requires the applicant to comply with the requirements of Section 5.501 before the executive director acts on the request. (c) Provides that the requirements of Section 11.132 do not apply to emergency orders and requires the commission to give notice as practicable. Sec. 5.507. (a) Authorizes the commission to grant emergency orders to use non-domestic or non-municipal water rights for domestic or municipal use. (b) Authorizes the commission to order the recipient to pay any liabilities resulting from the order and to indemnify the commission, executive director and state for liabilities resulting from the order or to provide financial assurance; clarifies that the commission may not grant an emergency order that would cause a violation of a federal statute or regulation. (c) Provides that the recipient of water transferred from non-domestic or municipal use under an emergency order is liable to the owner of the right for fair market value of the water and damages proximately caused by the transfer; provides that if the transferor and transferee cannot agree on the amount owed, or if payment is not made within 60 days, either party may file a complain with the commission to determine the amount (d) Requires the commission to establish a dispute resolution procedure for complaints; provides that a suit would be available upon exhaustion of administrative remedies; allows the prevailing party in a suit to recover court costs and attorney's fees. Sec. 5.508. (a) Authorizes the commission to suspend permit conditions relating to instream uses and beneficial inflows to bay and estuaries by emergency or temporary order on a finding of an emergency that cannot be practicably resolved otherwise. (b) Requires the commission to issue prior written notice to the Parks and Wildlife Department; requires the commission to consider any comments received by the commission within 72 hours from the time the Department received the notice. (c) Authorizes the commission to suspend permit requirements under this section without additional notice. (d) Requires that all affected persons must be immediately notified by publication. Sec. 5.509. Authorizes the commission to issue emergency orders to repair, remove or mitigate conditions of a water storage or flood control structures where other commission procedures would result in unreasonable delay and on a finding that the condition is causing or will cause severe property damage or economic loss, or if the condition poses an immediate and serious threat to human life or health. Sec. 5.510. Authorizes the commission to issue emergency orders requiring the provision of continuous or adequate water or sewer service on a finding that discontinuance has happened or is imminent; authorizes the commission to issue an emergency order to compel a retail public utility to provide an emergency interconnection on a finding that discontinuance or serious impairment has happened or is imminent; authorizes the commission to set reasonable compensation to the providing utility, and to allow the receiving utility to adjust its rates accordingly. Sec. 5.511. Authorizes the commission to issue a temporary order appointing a temporary manager of a utility discontinuing operation; provides that notice is adequate if mailed or hand delivered to the last known address of the utility's headquarters. Sec. 5.512. (a) Authorizes the commission to issue emergency rate increases for water utilities where necessary to ensure continuous and adequate service in cases of receivership or where a temporary manager has been appointed under Section 5.511. (b) Requires a utility to provide notice of an emergency rate increase to each ratepayer as soon as possible, but not later than the first bill under the new rate. (c) Provides that orders for emergency rate increases may extend up to 15 months; requires the commission to set a hearing for a final rate within 15 months after the increase is effective; provides that additional revenues under an emergency increase are subject to refund if the commission finds that the increase was larger than necessary. Sec. 5.513. (a) Authorizes the commission to issue emergency or temporary orders for the discharge of waste into state waters if the order is required to allow quicker action than is otherwise available, and if the commission finds that the discharge is unavoidable to prevent loss of life, serious injury, severe property damage or to make unforeseen repairs; requires that there be no feasible alternatives; requires that the discharge not cause a significant hazard to property, human health, or uses of the receiving waters, or an unreasonable economic loss. (b) Requires a person requesting an order to submit a sworn statement of the discharge volume, planned mitigation measures, and measures proposed to maximize treatment efficiency of operating facilities in addition to complying with the requirements of Section 5.502. Sec. 5.514. (a) Authorizes the commission to issue emergency orders prohibiting the owner or operator of an underground storage tank from allowing a release and requiring the owner or operator to take actions necessary to eliminate the release on a finding that a release is threatened and that quicker action is needed than is available under Chapter 26. (b) Requires notification of emergency orders by mail, hand delivery or publication to each person identified in an order. Sec. 5.515. Authorizes the commission to issue emergency administrative orders under Sections 361.272 and 361.274, Health and Safety Code in the manner provided under Subchapter L. Sec. 5.516. Authorizes the commission to issue emergency orders regarding solid waste management where an immediate action is necessary to protect public health and safety. Sec. 5.517. Authorizes the commission to issue emergency orders suspending a registration issued under Chapter 366, Health and Safety Code, or regulating a disposal system where operation of a system not complying with commission rule or Chapter 366 endangers public health and safety. Sec. 5.518. (a) Authorizes the commission, with concurrence of the governor, to issue an emergency order requiring a person to immediately reduce or cease emitting air contaminants causing or contributing to a generalized condition of air pollution creating an emergency requiring immediate action to protect human health and safety. (b) Authorizes the commission to issue an emergency order requiring persons to immediately reduce or cease emissions on a finding the emissions are causing imminent danger to human health or safety, but not a generalized condition of air pollution. (c) Requires the commission to issue a decision affirming, modifying or setting aside emergency orders not later than 24 hours after a hearing begins, and without adjournment of the hearing. (d) Clarifies that the section does not limit the authority of the governor or other officer to declare an emergency. Sec. 5.519. (a) Authorizes the commission to issue emergency orders for the immediate addition, replacement or repair of facilities and the emissions associated with the repair where the construction is required by a catastrophe. (b) Requires that an order under this section must include a schedule for submission of a complete application for a permit under Section 382.0518, Health and Safety Code; requires that an order under this section be issued only to facilities located on property where the catastrophe occurred or on property owned by the same person owning the property where the catastrophe occurred and that produces the same products or by-products as that property. (c) Requires the person requesting the emergency order to show that the increase in concentrations of contaminants will not be more than de minimis at the property line. (d) Requires a person requesting an order to file a sworn application which complies with Section 5.502 and which includes a description of the catastrophe, a statement that the construction complies with the requirements of necessity, lack of alternatives and protection of the environment, an estimate of the construction period and a description of the contaminants to be emitted. (e) Defines "catastrophe". Sec. 5.520. Authorizes the commission to issue emergency orders under Section 401.056, Health and Safety Code, as provided in Subchapter L. Sec. 5.521. (a) Authorizes the commission to issue emergency orders under Section 401.270, Health and Safety Code, requiring a person responsible for a radioactive waste processing activity to take any action necessary, including corrective measures, to address an apparent actual or threatened release of source or byproduct material presenting an imminent and substantial danger to public health and safety or the environment. (b) Provides that emergency orders may restrain persons from allowing releases and may require a person to implement a remedial action plan. (c) Provides that emergency orders must be mailed, hand-delivered or delivered by public notice to persons identified in the orders. (d) Provides that if an emergency order is adopted without prior hearing, the commission must hold a hearing within 10 to 30 days of issuance. SECTION 2. Amends Sec. 12.052, Water Code, to reference Subchapter L; deletes prior language on emergency orders; renumbers former subsection(f) as subsection (e). SECTION 3. Amends Sec. 13.041, Water Code, to reference Section 5.510; deletes prior language on emergency orders. SECTION 4. Amends Sec. 13.253, Water Code, to authorize the commission to compel water or sewer service consistent with Section 5.510. SECTION 5. Amends Sec. 13.4132, Water Code, to reference Section 5.511; deletes prior language on emergency orders. SECTION 6. Amends Sec. 16.236, Water Code, to add new subsections (b) through (e), and to delete the prior sections. (b) Requires the commission to adopt and enforce rules and orders to provide for safe construction, removal and repair of levees. (c) Establishes civil penalties of $25,000 per day for wilful failure to comply within the allotted period with commission rules and orders under subsection (a); authorizes the state to bring suit in Travis County. (d) Authorizes the commission to issue emergency orders pertaining to levees under Section 5.509. (e) Clarifies that rules and orders adopted by the commission to not relieve a levee owner of other legal duties or liabilities. SECTION 7. Amends Sec. 26.0191, Water Code, to reference Section 5.513; deletes prior language on emergency orders. SECTION 8. Amends subsection (a) of Section 26.021, Water Code, to delete the reference to subsection (b) of Section 26.0191. SECTION 9. Amends subsection (a) of Section 26.022, Water Code, to reference Sections 5.501, 5.504, 5.513 and 26.176, and to delete the reference to Section 26.0191. SECTION 10. Amends Sec. 26.354, Water Code, to reference Section 5.514; deletes prior language on emergency orders. SECTION 11. Amends Sec. 361.274, Health and Safety Code, to reference Subchapter L of the Water Code. SECTION 12. Amends Sec. 361.301, Health and Safety Code, by deleting prior language on emergency orders to include in former subsection (a) the word "permissive" between "mandatory" and "prohibitory"; includes a reference to Section 5.516 of the Water Code. SECTION 13. Amends Sec. 366.016, Health and Safety Code, to reference Section 5.517 of the Water Code; deletes prior language on emergency orders. SECTION 14. Amends Sec. 382.026, Health and Safety Code, to authorize the commission to issue emergency orders consistent with Section 5.518, Water Code; deletes prior language on emergency orders. SECTION 15. Amends subsection (b) of Sec. 382.030, Health and Safety Code, to reference section 5.504 of the Water Code. SECTION 16. Amends subsection (e) of Section 382.031, Health and Safety Code, to delete a reference to Sections 382.026 and 382.063. SECTION 17. Amends Sec. 382.063, Health and Safety Code, to authorize the commission to issue emergency orders consistent with Section 5.519 of the Water Code; deletes prior language on emergency orders. SECTION 18. Amends Sec. 401.056 to add a new subsection (g) authorizing the commission to delegate its authority under Section 401.056 to the executive director. SECTION 19. Amends Sec. 401.270, Health and Safety Code, by deleting subsections (b), (c) and (d); renumbers the subsequent sections; adds a new subsection (c) authorizing the commission to issue emergency orders consistent with Section 5.521, Water Code. SECTION 20. Repeals Sections 11.139, 11.148, 13.041(f) and 13.4133, Water Code. SECTION 21. (a) The Act takes effect September 1, 1997. (b) Provides that Subchapter L applies only to orders relating to an act or occurrence taking place on or after September 1, 1997; provides that orders relating to acts occurring before September 1, 1997 will be governed by law effective at the time of the occurrence. (c) Provides that Section 6 of the Act applies only to a violation occurring on or after September 1, 1997 of an order issued under Section 16.236 as amended by the Act; provides that violations occurring before that date are governed by law in effect at the time of violation. SECTION 22. Emergency clause. COMPARISON OF SUBSTITUTE TO ORIGINAL The following changes are made by the substitute to the original bill: SECTION 1, Subchapter K of the original bill is relettered as Subchapter L in the substitute, and Sections 5.401 et seq. are renumbered as Sections 5.501 et seq. The substitute changes SECTION 2 et seq. of the original bill by making amendments to conform the references to the new denomination, and to specific sections within the subchapter. The substitute clarifies Section 5.401 found in SECTION 1 of the original bill, in subsection (a), that orders are to be issued consistent with the subchapter; subsections (i), (j), (k) and (l) in the original bill are relettered as subsections (d), (e), (f) and (g), respectively, of Section 5.501; grammatical changes are made in former subsection (e); former subsection (d) is redesignated Section 5.502 in the substitute; former subsections (e) and (f) are redesignated, and divided into subsections (a),(b) and (c) of new Section 5.504; former subsection (h) is redesignated as new Section 5.503; former subsection (g) is redesignated as Section 5.505, and a general limit of 180 days with a single 180 day extension is substituted for the 120 day / 60 day limits in the original bill. Section 5.402 of SECTION 1 of the original bill is redesignated Section 5.506 of the substitute. The substitute divides original subsection (a) into subdivisions (1) and (2), adds a limit to orders of 120 days with a 60 day renewal and adds language relating to permits, certified filings and certificates of adjudication. The substitute changes the first sentence of subsection (b) to begin with the phrase "the executive director may issue an emergency order" and changes the last sentence of the subsection to refer to the executive director and to clarify that the requirements of Section 5.501 must be fulfilled prior to action on an order. The substitute makes a nonsubstantive grammatical change in subsection (c). The substitute redesignates former subsection (d) and (e) as Section 5.507, dividing the former subsections into new subsections (a), (b), (c) and (d). In new subsection (a), (b) and (c) the substitute makes certain nonsubstantive grammatical changes, and in new subsection (b) adds a sentence to clarify that the commission may not issue an order in violation of federal law. Section 5.403 of SECTION 1 of the original bill is redesignated Section 5.508, nonsubstantive changes in grammar are made in subsection (a), (b) and (c) and the last sentence of subsection (c) is redesignated subsection (d). Section 5.404 of SECTION 1 of the original bill is redesignated Section 5.509, nonsubstantive changes in grammar are made, and the section is divided into subdivisions (1) and (2). Section 5.405 of SECTION 1 of the original bill is redesignated Section 5.510, and nonsubstantive changes in grammar are made in subdivisions (1) and (2). Section 5.406 of SECTION 1 of the original bill is redesignated Section 5.511, and nonsubstantive changes in grammar are made. Section 5.407 of SECTION 1 of the original bill is redesignated Section 5.512, and references to other sections of the subchapter are changed to account for new designations. Section 5.408 of SECTION 1 of the original bill is redesignated Section 5.513, certain subdivisions and clauses are redesignated, nonsubstantive changes in grammar are made to subsections (a) and (b) and subdivisions (a)(2)(B), (b)(1), (b)(2) and (b)(3), and references to other sections of the subchapter are changed to account for new designations. Section 5.409 of SECTION 1 of the original bill is redesignated Section 5.514, and the reference to "owner" is corrected to use the phrase "owner or operator" consistently in the section; a nonsubstantive change in grammar is made in subsection(b). Section 5.410 of SECTION 1 of the original bill is redesignated Section 5.515, and nonsubstantive changes in grammar are made. Section 5.411 of SECTION 1 of the original bill is redesignated Section 5.516, and nonsubstantive changes in grammar are made. Section 5.412 of SECTION 1 of the original bill is redesignated Section 5.517; subsection (b) is deleted in the substitute. Section 5.413 of SECTION 1 of the original bill is redesignated Section 5.518, nonsubstantive changes in grammar are made to subsection (a), and references to other sections of the subchapter are changed to account for new designations. Section 5.414 of SECTION 1 of the original bill is redesignated Section 5.519. In subsection (a), the substitute eliminates a duplicative findings requirement. In subsection (b) and (d), the substitute makes nonsubstantive changes in grammar. Section 5.415 of SECTION 1 of the original bill is redesignated Section 5.520. Section 5.416 of SECTION 1 of the original bill is redesignated Section 5.521 and nonsubstantive changes in grammar are made in subsections (a), (b) and (d). The substitute amends the language in subsection (a) to allow the commission to issue an order if an actual or threatened release of byproduct or source material is apparent to be consistent with existing statutory requirements. In SECTION 3 of the original bill, the reference to Subchapter K is deleted, and the substitute clarifies language clarifying that emergency orders must be to compel water or sewer service. In SECTION 4 of the original bill, in subdivision (3) of Section 13.253, the existing statutory language "with or without a hearing" is reinstated by the substitute, and the phrase "to compel water or sewer service" is added by the substitute after the word "order". In SECTION 5 of the original bill, the substitute omits the inserted language "issue an emergency order appointing", reinstates the word "appoint" and inserts the phrase "by emergency order issued under Section 5.511" between the words "commission" and "may". In SECTION 6 of the original bill, the substitute replaces the word "levees" with "a levee" in subsection (b) of the original bill. In the first sentence of subsection (c) in the original bill, the substitute inserts the word "adopted" between the words "rules" and "and", replaces the word "promulgated" with the word "issued", deletes the phrase "of this section" and replaces the word "to" after "liable" with the word "for". In the second sentence of subsection (c) of the original bill, the substitute inserts the phrase "bring suit to" between the words "may" and "recover" and deletes the phrase "by suit brought for that purpose". In subsection (e) of the original bill, the substitute inserts the phrase "adopted" between the words "rules" and "and", replaces the word "promulgated" with the word "issued", replaces the phrase "shall be construed to relieve" with the phrase "under this section relieves", replaces the last "the" with the word "a", and makes the words "duties", "obligations" and "liabilities" singular. The substitute also clarifies that subsections (b), (c), (d) and (e), as they are currently found in the statute, are deleted. In SECTION 7 of the original bill the substitute changes the title changed to read "TEMPORARY OR EMERGENCY ORDERS TO DISCHARGE WASTE OR POLLUTANTS", reflecting current law. In the first sentence the word "a" is inserted between the words "issue" and "temporary", and the word "order" is made singular. In SECTION 9 of the original bill, the substitute in subsection (a) deletes the phrase "of this code", and includes a references to Section 5.513. In SECTION 10 of the original bill, the substitute replaces the word "owners" with the phrase "an owner" and reinstates the word "an" before the word "underground". In SECTION 12 of the original bill, the substitute inserts the word "permissive" between the words "mandatory" and "or". In SECTION 13 of the original bill, the substitute inserts the word "an" between the words "issue" and "emergency", changes the word "orders" to "order", and replaces the phrase "under Subchapter K, Chapter 5 of this Code" with the phrase "concerning an on-site sewage disposal system under Section 5.517, Water Code". In SECTION 15 of the original bill, the substitute omits the reference to Section 5.412. In SECTION 18 of the original bill, the substitute transfers the phrase "by order or rule" found at the end of the sentence to the point between the words "commission" and "may". In SECTION 20 of the original bill, subsection (f) of Section 13.041, Water Code, is inserted in the repealer. In SECTION 21 of the original bill, the substitute adds new language clarifying the application of