ACG S.B. 1874 75(R)BILL ANALYSIS


ENVIRONMENTAL REGULATION
S.B. 1874
By: Bivins (Chisum)
5-15-97
Committee Report (Amended)


BACKGROUND

The power to issue emergency and temporary orders allows the Texas Natural
Resource Conservation Commission (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 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 of this bill (Sections 5.501(c), 5.501(g),
5.503, and 5.504(c), Water Code) and under SECTION 13 of this bill (Sec.
401.056(g), Health and Safety Code). 

Although rulemaking authority is not expressly granted to the Texas
Natural Resource Conservation Commission in SECTION 1 of this bill (Sec.
5.513(a), Water Code), rulemaking authority of the agency is referenced. 

SECTION BY SECTION ANALYSIS


SECTION 1.  Amends Chapter 5 of the Water Code by adding a new Subchapter
L. 

Sec. 5.501. (a) Authorizes the commission  to issue temporary and
emergency orders 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
in stream 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 hearing 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, alleged facts, the time
period of the order, the action sought and any other information requested
by the executive director. 

Sec. 5.503. Requires that notice of emergency orders be issued consistent
with commission rules. 

Sec.  5.504. (a) Requires that emergency orders issued without a prior
hearing must set a date for a hearing 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. Limits temporary and emergency orders to a reasonable time
period, with emergency orders limited to no longer than 180 days with one
180 day renewal. 

Sec. 5.506.  (a) Authorizes the commission to suspend permit conditions
relating to in stream 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. 5.507.  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. 5.508.  (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 5.507. 

(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. 5.509.  (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, or severe property damage, to prevent severe
economic loss or to ameliorate a serious drought condition consistent with
a delegated federal program, 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. 

(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. 5.510.  (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. 5.511.  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. 5.512.  Authorizes the commission to issue emergency orders regarding
solid waste management where an immediate action is necessary to protect
public health and safety. 

Sec. 5.513. (a) 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. 

(b) Requires an order issued without notice or hearing to set a time not
more than 30 days after issuance for a hearing. 

Sec. 5.514.  (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. 5.515.  (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; requires commission to act on an application
without regard to construction activity under an order under this section. 
 
(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. 5.516. Authorizes the commission to issue emergency orders under
Section 401.056, Health and Safety Code, as provided in Subchapter L. 

Sec. 5.517.  (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. 26.0191, Water Code, to reference Section 5.509;
deletes prior language on emergency orders applicable to wastewater. 

SECTION 3.  Amends subsection (a) of Section 26.021, Water Code, to delete
the reference to subsection (b) of Section 26.0191(b). 

SECTION 4.  Amends subsection (a) of Section 26.022, Water Code, to
reference Sections 5.501, 5.504 and 5.509, and to delete the reference to
Section 26.0191. 

SECTION 5.  Amends Sec. 26.354, Water Code, to reference Section 5.510;
deletes prior language on emergency orders applicable to storage tanks. 

SECTION 6.  Amends Sec. 361.274, Health and Safety Code, to reference
Subchapter L, Chapter 5 of the Water Code. 

SECTION 7.  Amends Sec. 361.301, Health and Safety Code, by deleting prior
language on emergency orders relating to solid waste management activities
and includes in former subsection (a) the word "permissive" between
"mandatory" and "prohibitory"; includes a reference to Section 5.512 of
the Water Code. 

SECTION 8.  Amends Sec. 366.016, Health and Safety Code, to reference
Section 5.513 of the Water Code; deletes prior language on emergency
orders for on-site sewage systems. 

SECTION 9.  Amends Sec. 382.026, Health and Safety Code, to authorize the
commission to issue emergency orders consistent with Section 5.514, Water
Code; deletes prior language on emergency orders for air emergencies. 

SECTION 10.  Amends subsection (b) of Sec. 382.030, Health and Safety
Code, to reference section 5.504 of the Water Code. 

SECTION 11.  Amends subsection (e) of Section 382.031, Health and Safety
Code, to delete a reference to Sections 382.026 and 382.063. 

SECTION 12.  Amends Sec. 382.063, Health and Safety Code, to authorize the
commission to issue  emergency orders consistent with Section 5.515 of the
Water Code; deletes prior language on emergency orders for catastrophes. 

SECTION 13.  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 14.  Amends Sec. 401.270, Health and Safety Code, by deleting
subsections (b), (c), (d) and (f) relating to emergency orders for
radioactive waste; renumbers the subsequent sections; adds a new
subsection (c) authorizing the commission to issue emergency orders
consistent with Section 5.517, Water Code. 

SECTION 15.  Repeals Sections 13.041(f) and 13.4133, Water Code.

SECTION 16.  (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. 

SECTION 17.  Emergency Clause. 

EXPLANATION OF AMENDMENT(S)

The committee amendment does several things:
 (1)  corrects an erroneous reference to Sec. 5.508, Water Code and
replaces the reference with Sec. 5.506, Water Code. 
 (2)  deletes the absolute effective date of September 1, 1997, and allows
for an exception to the September 1, 1997 effective date. 
 (3)  provides that if legislation becomes law as a result of the 75th
Legislature, Regular Session, that transfers jurisdiction of by-product
radioactive material from uranium mines from the Texas Natural Resource
Conservation Commission (commission) to the Texas Department of Health,
then the provisions in the bill allowing the commission to issue emergency
or temporary orders have no effect.