By Solomons                                      H.B. No. 644

      75R2585 JJT-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to protection of public drinking water systems.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 341.031(a), Health and Safety Code, is

 1-5     amended to read as follows:

 1-6           (a)  Public drinking water must be free from deleterious

 1-7     matter and must comply with the standards established by the

 1-8     commission[, the United States Public Health Service,] or the

 1-9     United States Environmental Protection Agency.  The commission may

1-10     adopt and enforce rules to implement the federal Safe Drinking

1-11     Water Act (42 U.S.C. Section 300f et seq.).

1-12           SECTION 2.  Subchapter C, Chapter 341, Health and Safety

1-13     Code, is amended by adding Section 341.0315 to read as follows:

1-14           Sec. 341.0315.  PUBLIC DRINKING WATER SUPPLY SYSTEM

1-15     REQUIREMENTS.  (a)  To preserve the public health, safety, and

1-16     welfare, the commission shall ensure that public drinking water

1-17     supply systems:

1-18                 (1)  supply safe drinking water in adequate quantities;

1-19                 (2)  are financially stable; and

1-20                 (3)  are technically sound.

1-21           (b)  The commission shall encourage and promote the

1-22     development and use of regional and areawide drinking water supply

1-23     systems.

1-24           (c)  Each public drinking water supply system shall provide

 2-1     an adequate and safe drinking water supply.  The supply must meet

 2-2     the requirements of Section 341.031 and commission rules.

 2-3           SECTION 3.  Subchapter C, Chapter 341, Health and Safety

 2-4     Code, is amended by amending Section 341.035 and by adding Sections

 2-5     341.0351-341.0356 to read as follows:

 2-6           Sec. 341.035.  APPROVED PLANS REQUIRED FOR PUBLIC WATER

 2-7     SUPPLIES.  (a)  Except as provided by Subsection (d), a person may

 2-8     not begin construction of a public drinking water supply system

 2-9     unless:

2-10                 (1)  the executive director approves a business plan

2-11     for the system; and

2-12                 (2)  the commission approves the plans and

2-13     specifications for the system.

2-14           (b)  The prospective owner or operator of the system must

2-15     provide the executive director a business plan that demonstrates

2-16     the system has available the financial, managerial, and technical

2-17     resources adequate to ensure future operation of the system in

2-18     accordance with applicable laws and rules.  The executive director

2-19     shall:

2-20                 (1)  review the business plan; and

2-21                 (2)  order the prospective owner or operator of the

2-22     system to provide adequate financial assurance of ability to

2-23     operate the system in accordance with applicable laws and rules, in

2-24     the form of a bond or as specified by the commission, unless the

2-25     executive director finds the business plan demonstrates adequate

2-26     financial capability.

2-27           (c)  The prospective owner or operator of the system shall

 3-1     provide to the commission [A person contemplating establishing a

 3-2     drinking water  supply system for public use must submit] completed

 3-3     plans and specifications for review and approval in accordance with

 3-4     commission rules adopting standards.

 3-5           (d)  A person is not required to file a business plan under

 3-6     Subsection (a) or (b) if the person:

 3-7                 (1)  is a county;

 3-8                 (2)  is a retail public utility as defined by Section

 3-9     13.002, Water Code, unless that person is a water and sewer utility

3-10     as defined by that section; or

3-11                 (3)  has executed an agreement with a political

3-12     subdivision to transfer the ownership and operation of the water

3-13     supply system to the political subdivision [to the commission

3-14     before construction of the system.  The commission shall approve

3-15     plans that conform to the state's water safety laws.  The water

3-16     supply system may be established only on the commission's

3-17     approval].

3-18           Sec. 341.0351.  NOTIFICATION OF SYSTEM CHANGES.  [(b)]  Any

3-19     agency, including a municipality, supplying a drinking water

3-20     service to the public that intends to make a material or major

3-21     change in a water supply system that may affect the sanitary

3-22     features of that utility must give written notice of that intention

3-23     to the commission before making the change.

3-24           Sec. 341.0352.  ADVERTISED QUALITY OF WATER SUPPLY.  [(c)]  A

3-25     water supply system owner, manager, or operator or an agent of a

3-26     water supply system owner, manager, or operator may not advertise

3-27     or announce a water supply as being of a quality other than the

 4-1     quality that is disclosed by the commission's latest rating.

 4-2           Sec. 341.0353.  DRINKING WATER SUPPLY COMPARATIVE RATING

 4-3     INFORMATION.  [(d)]  The commission shall assemble and tabulate all

 4-4     necessary information [data] relating to public drinking water

 4-5     supplies at least once each year and as often during the year as

 4-6     conditions demand or justify.  The information [data] forms the

 4-7     basis of an official comparative rating of public drinking water

 4-8     supply systems.

 4-9           Sec. 341.0354.  HIGHWAY SIGNS FOR APPROVED SYSTEM RATING.

4-10     [(e)]  A water supply system that attains an approved rating is

4-11     entitled to erect signs of a design approved by the commission on

4-12     highways approaching the municipality in which the water supply

4-13     system is located.  The signs shall be immediately removed on

4-14     notice from the commission if the water supply system does not

4-15     continue to meet the specified standards.

4-16           Sec. 341.0355.  FINANCIAL ASSURANCE FOR CERTAIN SYSTEMS.  The

4-17     commission shall require the owner or operator of a public drinking

4-18     water supply system that was constructed without the approval

4-19     required by Section 341.035 and that has a history of noncompliance

4-20     with this subchapter or commission rules or is subject to a

4-21     commission enforcement action to:

4-22                 (1)  provide the executive director with a business

4-23     plan that demonstrates that the system has available the financial,

4-24     managerial, and technical resources adequate to ensure future

4-25     operation of the system in accordance with applicable laws and

4-26     rules; and

4-27                 (2)  provide adequate financial assurance of the

 5-1     ability to operate the system in accordance with applicable laws

 5-2     and rules in the form of a bond or as specified by the commission.

 5-3           Sec. 341.0356.  ORDER TO STOP OPERATIONS.  (a)  A public

 5-4     water supply system shall stop operations on receipt of a written

 5-5     order of the executive director or the commission issued under this

 5-6     section.

 5-7           (b)  The executive director or the commission may order a

 5-8     public water supply system to stop operations if:

 5-9                 (1)  the system was constructed without the approval

5-10     required by Section 341.035; or

5-11                 (2)  the executive director determines the system

5-12     presents an imminent health hazard.

5-13           (c)  An order issued under this section may be delivered by

5-14     personal service or by mail.

5-15           (d)  A water supply system subject to an order under this

5-16     section, on written request, is entitled to an opportunity for an

5-17     expedited hearing at a commission agenda.

5-18           (e)  The public water supply system may not resume operations

5-19     until the commission, the executive director, or a court authorizes

5-20     the resumption.

5-21           SECTION 4.  Sections 341.047(a) and (b), Health and Safety

5-22     Code, are amended to read as follows:

5-23           (a)  A person commits an offense if the person:

5-24                 (1)  violates a provision of Section 341.031;

5-25                 (2)  violates a provision of Section 341.032(a) or (b);

5-26                 (3)  violates a provision of Section 341.033(a)-(f);

5-27                 (4)  constructs a drinking water supply system without

 6-1     submitting completed plans and specifications as required by

 6-2     Section 341.035(c) [341.035(a)];

 6-3                 (5)  begins construction of [establishes] a drinking

 6-4     water supply system without the commission's approval as required

 6-5     by Section 341.035(a);

 6-6                 (6)  violates a provision of Section 341.0351 or

 6-7     341.0352 [341.035(b) or (c)];

 6-8                 (7)  fails to remove a sign as required by Section

 6-9     341.0354 [341.035(e)]; or

6-10                 (8)  violates a provision of Section 341.036.

6-11           (b)  An offense under Subsection (a) is a Class C misdemeanor

6-12     [punishable by a fine of not less than $100].

6-13           SECTION 5.  Sections 341.048(b)-(i), Health and Safety Code,

6-14     are amended to read as follows:

6-15           (b)  A person who causes, suffers, allows, or permits a

6-16     violation under this subchapter shall be assessed a civil penalty

6-17     of not less than $50 nor more than $10,000 [$500] for each

6-18     violation.  Each day of a continuing violation is a separate

6-19     violation.

6-20           (c)  [If it is shown on a trial of the defendant that the

6-21     defendant has previously been assessed a civil penalty under this

6-22     section within a year before the date on which the violation being

6-23     tried occurred, the defendant shall be assessed a civil penalty of

6-24     not less than $50 nor more than $1,000 for each subsequent

6-25     violation under this subchapter.  Each day of a continuing

6-26     violation is a separate violation.]

6-27           [(d)]  If it appears that a person has violated, is

 7-1     violating, or threatens to violate a provision under this

 7-2     subchapter, the commission, a county, or a municipality may

 7-3     institute a civil suit in a district court for:

 7-4                 (1)  injunctive relief to restrain the person from

 7-5     continuing the violation or threat of violation;

 7-6                 (2)  the assessment and recovery of a civil penalty; or

 7-7                 (3)  both injunctive relief and a civil penalty.

 7-8           (d) [(e)]  The commission is a necessary and indispensable

 7-9     party in a suit brought by a county or municipality under this

7-10     section.

7-11           (e) [(f)]  On the commission's request, the attorney general

7-12     shall institute a suit in the name of the state for injunctive

7-13     relief, to recover a civil penalty, or for both injunctive relief

7-14     and civil penalty.

7-15           (f) [(g)]  The suit may be brought in:

7-16                 (1)  Travis County;

7-17                 (2)  [, in] the county in which the defendant resides;

7-18     or

7-19                 (3)  [, or in] the county in which the violation or

7-20     threat of violation occurs.

7-21           (g) [(h)]  In a suit under this section to enjoin a violation

7-22     or threat of violation of this subchapter, the court shall grant

7-23     the state, county, or municipality, without bond or other

7-24     undertaking, any injunction that the facts may warrant including

7-25     temporary restraining orders, temporary injunctions after notice

7-26     and hearing, and permanent injunctions.

7-27           (h) [(i)]  Civil penalties recovered in a suit brought under

 8-1     this section by a county or municipality shall be equally divided

 8-2     between:

 8-3                 (1)  the state; and

 8-4                 (2)  the county or municipality that first brought the

 8-5     suit.

 8-6           SECTION 6.  Section 341.049(a), Health and Safety Code, is

 8-7     amended to read as follows:

 8-8           (a)  If a person causes, suffers, allows, or permits a

 8-9     violation of this subchapter or a rule or order adopted under this

8-10     subchapter, the commission may assess a penalty against that person

8-11     as provided by this section.  The penalty shall not be less than

8-12     $50 nor more than $10,000 [$500] for each violation.  Each day of a

8-13     continuing violation may be considered a separate violation.

8-14           SECTION 7.  Section 13.301, Water Code, is amended to read as

8-15     follows:

8-16           Sec. 13.301.  REPORT OF SALE, MERGER, ETC.; INVESTIGATION;

8-17     DISALLOWANCE OF TRANSACTION.  (a)  A utility or a water supply or

8-18     sewer service corporation, on or before the 120th day before the

8-19     effective date of a sale, acquisition, lease, or rental of a water

8-20     or sewer system that is required by law to possess a certificate of

8-21     public convenience and necessity or the effective date of a merger

8-22     or consolidation with such a water supply or sewer service

8-23     corporation, shall:

8-24                 (1)  file a written application with [notify] the

8-25     commission; and

8-26                 (2)  [give public notice] unless public notice is

8-27     waived by the executive director for good cause shown, give public

 9-1     notice of the  action [at least 120 days before the effective date

 9-2     of any sale, acquisition, lease, or rental of any water or sewer

 9-3     system required by law to possess a certificate of public

 9-4     convenience and necessity or of any merger or consolidation with

 9-5     such a utility or water supply or sewer service corporation].

 9-6           (b)  If the person purchasing or acquiring the water or sewer

 9-7     system is a utility, the application must include a business plan

 9-8     that demonstrates the system has available the financial,

 9-9     managerial, and technical resources adequate to provide continuous

9-10     and adequate service to the service area being acquired and to all

9-11     service areas for which the utility is certificated.  If the

9-12     executive director finds that the utility has not demonstrated

9-13     adequate financial capability to provide that service, the

9-14     executive director may order the utility to provide adequate

9-15     financial assurance in the form of a bond or as specified by the

9-16     commission.

9-17           (c)  The commission shall, with or without a public hearing,

9-18     investigate the sale, acquisition, lease, or rental to determine

9-19     whether the transaction will serve the public interest.

9-20           (d) [(c)]  Before the expiration of the 120-day notification

9-21     period, the executive director shall notify all known parties to

9-22     the transaction of the executive director's decision whether to

9-23     request that the commission hold a public hearing to determine if

9-24     the transaction will serve the public interest.  The executive

9-25     director may request a hearing if:

9-26                 (1)  the application filed with [notification to] the

9-27     commission or the public notice was improper;

 10-1                (2)  the person purchasing or acquiring the water or

 10-2    sewer system is inexperienced as a utility service provider;

 10-3                (3)  the person or an affiliated interest of the person

 10-4    purchasing or acquiring the water or sewer system has a history of:

 10-5                      (A)  noncompliance with the requirements of the

 10-6    commission or the Texas Department of Health; or

 10-7                      (B)  [of] continuing mismanagement or misuse of

 10-8    revenues as a utility service provider;

 10-9                (4)  the person purchasing or acquiring the water or

10-10    sewer system cannot demonstrate the financial ability to provide

10-11    the necessary capital investment to ensure the provision of

10-12    continuous and adequate service to the customers of the water or

10-13    sewer system; or

10-14                (5)  there are concerns that the transaction may not

10-15    serve the public interest, after the application of the

10-16    considerations provided by Section 13.246(c) for determining

10-17    whether to grant a certificate of convenience and necessity.

10-18          (e) [(d)]  Unless the executive director requests that a

10-19    public hearing be held, the sale, acquisition, lease, or rental may

10-20    be completed as proposed:

10-21                (1)  at the end of the 120-day period; or

10-22                (2)  [may be completed] at any time after the executive

10-23    director notifies the utility or water supply or sewer service

10-24    corporation that a hearing will not be requested.

10-25          (f)  If a hearing is requested or if the utility or water

10-26    supply or sewer service corporation fails to make the application

10-27    as  [provide the] required [notification] or to provide public

 11-1    notice, the sale, acquisition, lease, or rental may not be

 11-2    completed unless the commission determines that the proposed

 11-3    transaction serves the public interest.

 11-4          (g)  A sale, acquisition, lease, or rental of any water or

 11-5    sewer system required by law to possess a certificate of public

 11-6    convenience and necessity that is not completed in accordance with

 11-7    the provisions of this section is void.

 11-8          (h) [(e)]  This section does not apply to:

 11-9                (1)  the purchase of replacement property; or

11-10                (2)  [to] a transaction under Section 13.255 of this

11-11    code.

11-12          (i) [(f)]  If a public utility facility or system is sold and

11-13    the facility or system was partially or wholly constructed with

11-14    customer contributions in aid of construction derived from specific

11-15    surcharges approved by the regulatory authority over and above

11-16    revenues required for normal operating expenses and return, the

11-17    public utility may not sell or transfer any of its assets, its

11-18    certificate of convenience and necessity, or its controlling

11-19    interest in an incorporated utility, unless the utility provides to

11-20    the purchaser or transferee before the date of the sale or transfer

11-21    a written disclosure relating to the contributions.  The disclosure

11-22    must contain, at a minimum, the total dollar amount of the

11-23    contributions and a statement that the contributed property or

11-24    capital may not be included in invested capital or allowed

11-25    depreciation expense by the regulatory authority in rate-making

11-26    proceedings.

11-27          (j) [(g)]  A utility or a water supply or sewer service

 12-1    corporation that proposes to sell, assign, lease, or rent its

 12-2    facilities shall notify the other party to the transaction of the

 12-3    requirements of this section before signing an agreement to sell,

 12-4    assign, lease, or rent its facilities.

 12-5          SECTION 8.  Section 13.302, Water Code, is amended to read as

 12-6    follows:

 12-7          Sec. 13.302.  PURCHASE OF VOTING STOCK IN ANOTHER PUBLIC

 12-8    UTILITY:  REPORT.  (a)  A utility may not purchase voting stock in

 12-9    another utility doing business in this state and a person may not

12-10    acquire a controlling interest in a utility doing business in this

12-11    state unless the person or utility files a written application with

12-12    [notifies] the commission [of the proposed purchase or acquisition]

12-13    not later than the 61st day before the date on which the

12-14    transaction is to occur.  If a utility proposes to acquire a

12-15    controlling interest in another utility, the application must

12-16    include a business plan that demonstrates that the utility

12-17    acquiring the controlling interest has available the financial,

12-18    managerial, and technical resources adequate to provide continuous

12-19    and adequate service.  If the executive director finds that the

12-20    utility has not demonstrated adequate financial capability to

12-21    provide that service, the executive director may order the utility

12-22    to provide adequate financial assurance in the form of a bond or as

12-23    specified by the commission.

12-24          (b)  The executive director may request that the commission

12-25    hold a public hearing on the transaction if the executive director

12-26    believes that a criterion [criteria] prescribed by Section

12-27    13.301(d) [13.301(c)] of this code applies.

 13-1          (c)  Unless the executive director requests that a public

 13-2    hearing be held, the purchase or acquisition may be completed as

 13-3    proposed:

 13-4                (1)  at the end of the 60-day period; or

 13-5                (2)  [may be completed] at any time after the executive

 13-6    director notifies the person or utility that a hearing will not be

 13-7    requested.

 13-8          (d)  If a hearing is requested or if the person or utility

 13-9    fails to make the application to the commission as [provide the]

13-10    required  [notification to the commission], the purchase or

13-11    acquisition may not be completed unless the commission determines

13-12    that the proposed transaction serves the public interest.  A

13-13    purchase or acquisition that is not completed in accordance with

13-14    the provisions of this section is void.

13-15          SECTION 9.  Section 13.411, Water Code, is amended to read as

13-16    follows:

13-17          Sec. 13.411.  ACTION TO ENJOIN OR REQUIRE COMPLIANCE.   (a)

13-18    If it appears to the commission that any retail public utility or

13-19    any other person or corporation is engaged in or is about to engage

13-20    in any act in violation of this chapter or of any order or rule of

13-21    the commission entered or adopted under this chapter or that any

13-22    retail public utility or any other person or corporation is failing

13-23    to comply with this chapter or with any rule or order, the attorney

13-24    general on request of the commission, in addition to any other

13-25    remedies provided in this chapter, shall bring an action in a court

13-26    of competent jurisdiction in the name of and on behalf of the

13-27    commission against the retail public utility or other person or

 14-1    corporation to enjoin the commencement or continuation of any act

 14-2    or to require compliance with this chapter or the rule or order.

 14-3          (b)  If the executive director determines that the failure of

 14-4    the owner or operator of a water utility to properly operate,

 14-5    maintain, or provide adequate facilities presents an imminent

 14-6    threat to human health or safety, the executive director shall

 14-7    immediately:

 14-8                (1)  notify the utility's representative; and

 14-9                (2)  initiate enforcement action consistent with:

14-10                      (A)  this subchapter; and

14-11                      (B)  procedures adopted by the commission.

14-12          SECTION 10.  Section 13.412, Water Code, is amended by

14-13    amending Subsection (a) and by adding Subsection (f) to read as

14-14    follows:

14-15          (a)  At the request of the commission, the attorney general

14-16    shall bring suit for the appointment of a receiver to collect the

14-17    assets and carry on the business of a water or sewer utility that:

14-18                (1)  has abandoned operation of its facilities;

14-19                (2)  [or] violates a final order of the commission;

14-20                (3)  [or] allows any property owned or controlled by it

14-21    to be used in violation of a final order of the commission;

14-22                (4)  fails to pay a bill or obligation owed to a retail

14-23    public utility or to an electric or gas utility so that the utility

14-24    has issued a notice of discontinuance of necessary services;

14-25                (5)  fails to provide appropriate water or wastewater

14-26    treatment so that a potential health hazard results;

14-27                (6)  fails adequately to maintain a facility so that a

 15-1    potential results for:

 15-2                      (A)  low pressure;

 15-3                      (B)  an extended outage;

 15-4                      (C)  repeated service interruptions; or

 15-5                      (D)  a health hazard;

 15-6                (7)  fails to provide customers adequate notice of a

 15-7    health hazard or potential health hazard;

 15-8                (8)  fails to secure an alternative available water

 15-9    supply during an outage;

15-10                (9)  displays a pattern of hostility towards or

15-11    repeatedly fails to respond to the commission or the utility's

15-12    customers;

15-13                (10)  fails to provide the commission with adequate

15-14    information on how to contact the utility for normal business and

15-15    emergency purposes; or

15-16                (11)  informs the commission that the owner is

15-17    abandoning the system.

15-18          (f)  Notwithstanding Section 64.031, Civil Practice and

15-19    Remedies Code, a receiver appointed under this section may apply to

15-20    the commission for approval to acquire the water and sewer

15-21    utility's facilities and transfer the utility's certificate of

15-22    convenience and necessity.  The receiver must apply  in accordance

15-23    with this chapter.

15-24          SECTION 11.  Sections 13.4132(a) and (c), Water Code, are

15-25    amended to read as follows:

15-26          (a)  The commission, after providing to the utility notice

15-27    and an opportunity for a hearing at a commission agenda,  may

 16-1    authorize a willing person to temporarily manage and operate a

 16-2    utility if the utility:

 16-3                (1)  [that] has discontinued or abandoned operations or

 16-4    the provision of services;

 16-5                (2)  has been or is being referred to the attorney

 16-6    general for the appointment of a receiver under Section 13.412 of

 16-7    this code;

 16-8                (3)  fails to pay a bill or obligation owed to a retail

 16-9    public utility or to an electric or gas utility so that the utility

16-10    has issued a notice of discontinuance of necessary services;

16-11                (4)  fails to provide appropriate water or wastewater

16-12    treatment so that a potential health hazard results;

16-13                (5)  fails adequately to maintain a facility so that a

16-14    potential results for:

16-15                      (A)  low pressure;

16-16                      (B)  an extended outage;

16-17                      (C)  repeated service interruptions; or

16-18                      (D)  a health hazard;

16-19                (6)  fails to provide customers adequate notice of a

16-20    health hazard or potential health hazard;

16-21                (7)  fails to secure an alternative available water

16-22    supply during an outage;

16-23                (8)  displays a pattern of hostility towards or

16-24    repeatedly fails to respond to the commission or the utility's

16-25    customers;

16-26                (9)  fails to provide the commission with adequate

16-27    information on how to contact the utility for normal business and

 17-1    emergency purposes; or

 17-2                (10)  informs the commission that the owner is

 17-3    abandoning the system.

 17-4          (c)  A person appointed under this section has the powers and

 17-5    duties necessary to ensure the continued operation of the utility

 17-6    and the provision of continuous and adequate services to customers,

 17-7    including the power and duty to:

 17-8                (1)  read meters;

 17-9                (2)  bill for utility services;

17-10                (3)  collect revenues;

17-11                (4)  disburse funds;

17-12                (5)  access all system components; and

17-13                (6)  [(5)] request rate increases.

17-14          SECTION 12.  This Act takes effect September 1, 1997.

17-15          SECTION 13.  (a)  The requirement of Section 341.035, Health

17-16    and Safety Code, as amended by this Act, that certain persons must

17-17    provide the executive director of the Texas Natural Resource

17-18    Conservation Commission with a business plan, applies only to the

17-19    prospective owner or operator of a public drinking water supply

17-20    system for which construction begins on or after September 1, 1997.

17-21          (b)  Section 341.0355, Health and Safety Code, as added by

17-22    this Act, applies to the owner or operator of a public drinking

17-23    water supply system regardless of the date construction of the

17-24    system began.

17-25          SECTION 14.  (a) A change in law made by this Act that

17-26    applies to a criminal, civil, or administrative penalty applies

17-27    only to an offense committed or violation that occurs on or after

 18-1    the effective date of this Act.

 18-2          (b)  An offense committed or violation that occurs before the

 18-3    effective date of this Act is governed by the law in effect

 18-4    immediately before that date and that law is continued in effect

 18-5    for that purpose.

 18-6          SECTION 15.  The importance of this legislation and the

 18-7    crowded condition of the calendars in both houses create an

 18-8    emergency and an imperative public necessity that the

 18-9    constitutional rule requiring bills to be read on three several

18-10    days in each house be suspended, and this rule is hereby suspended.