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