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.