By Chisum H.B. No. 3460
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the issuance of emergency and temporary orders and
1-3 permits by the Texas Natural Resource Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 5, Water Code, is amended by adding
1-6 Subchapter K to read as follows:
1-7 SUBCHAPTER K. EMERGENCY AND TEMPORARY ORDERS
1-8 Sec. 5.401. EMERGENCY AND TEMPORARY ORDERS AND PERMITS;
1-9 TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS. (a) The
1-10 commission may issue temporary or emergency mandatory, permissive,
1-11 or prohibitory orders, temporarily issue permits by temporary or
1-12 emergency order, or temporarily suspend or amend permit conditions
1-13 by temporary or emergency order for the purposes and in the manner
1-14 provided by this subchapter.
1-15 (b) The commission may issue an emergency order under this
1-16 subchapter after providing the notice and opportunity for hearing
1-17 that the commission considers practicable under the circumstances
1-18 or without notice or hearing. Except as provided by Section 5.403,
1-19 if the commission requires notice and hearing before issuing the
1-20 order, notice shall be given not later than the 10th day before the
1-21 date set for the hearing. The commission shall give notice not
1-22 later than the 20th day before the date set for a hearing on a
2-1 temporary order.
2-2 (c) The commission may by order or rule delegate to the
2-3 executive director the authority to receive applications and issue
2-4 emergency orders under this subchapter and to authorize a
2-5 representative or representatives in writing to act on the
2-6 executive director's behalf under this subchapter.
2-7 (d) Any person other than the executive director or the
2-8 executive director's representative who desires an emergency or
2-9 temporary order under this subchapter must submit a sworn written
2-10 application to the commission. The application must contain:
2-11 (1) a description of the condition of emergency or
2-12 other condition justifying the issuance of the order;
2-13 (2) a statement setting forth facts which support the
2-14 findings required under this subchapter;
2-15 (3) an estimate of the dates on which the proposed
2-16 order should begin and end;
2-17 (4) a description of the action sought and the
2-18 activity proposed to be allowed, mandated, or prohibited; and
2-19 (5) any other statements or information required by
2-20 this subchapter or by the commission.
2-21 (e) If the commission or the executive director or the
2-22 executive director's representative issues an emergency order under
2-23 this subchapter without a hearing, the order shall set a time and
2-24 place for a hearing to be held before the commission or its
2-25 designee as soon as practicable after the order is issued.
2-26 (f) At or following the hearing required under Subsection
2-27 (e), the commission shall affirm, modify, or set aside the
3-1 emergency order. A hearing to affirm, modify, or set aside an
3-2 emergency order shall be conducted in accordance with Chapter 2001,
3-3 Government Code, and commission rules. Commission rules concerning
3-4 hearings to affirm, modify, or set aside emergency orders must
3-5 include provisions for presentation of evidence by the applicant
3-6 under oath, presentation of rebuttal evidence, and
3-7 cross-examination of witnesses.
3-8 (g) An emergency or a temporary order issued under this
3-9 subchapter must be limited to a reasonable time specified by the
3-10 order. The term of an emergency order may not exceed 120 days. An
3-11 emergency order may be renewed once for not longer than 60 days.
3-12 (h) Notice of the issuance of an emergency order shall be
3-13 provided in accordance with commission rules.
3-14 (I) Chapter 2001, Government Code, does not apply to the
3-15 issuance of an emergency order under this subchapter without a
3-16 hearing.
3-17 (j) Sections of the statutes under which the commission acts
3-18 and which require notice of hearing or which set procedures for the
3-19 issuance of permits do not apply to a hearing on an emergency order
3-20 issued under this subchapter unless they specifically require
3-21 notice for emergency orders, but such general notice of the hearing
3-22 shall be given as in the judgment of the commission is practicable
3-23 under the circumstances.
3-24 (k) An emergency or temporary order issued under this
3-25 subchapter does not vest in the permittee or grantee any rights and
3-26 shall expire and be canceled in accordance with its terms.
3-27 (l) The commission may prescribe rules and adopt fees which
4-1 are necessary to carry out the provisions of this subchapter.
4-2 Sec. 5.402. EMERGENCY ORDERS, PERMITS FOR DIVERSION AND USE
4-3 OF WATER, AND AMENDMENTS TO WATER RIGHTS; TEMPORARY TRANSFERS OF
4-4 USE OF WATER RIGHTS. (a) Except as provided by Section 5.403 of
4-5 this code, the commission may by emergency order issue a permit for
4-6 the diversion and use of water, an order, or an amendment to an
4-7 existing water right if it finds that emergency conditions exist
4-8 which present an imminent threat to the public health, safety, and
4-9 welfare or the environment and which override the necessity to
4-10 comply with established statutory procedures and there are no
4-11 feasible practicable alternatives to the emergency authorization.
4-12 (b) If an imminent threat to the public health, safety, and
4-13 welfare or the environment exists which requires emergency action
4-14 before the commission can take action as provided by Subsection (a)
4-15 of this section and there are no feasible alternatives, the
4-16 executive director may grant an emergency order. If the executive
4-17 director issues an emergency order under this subsection, the
4-18 commission shall hold a hearing as provided for in Section 5.401 of
4-19 this Subchapter as soon as practicable but in no event later than
4-20 10 days after issuance of the authorization to affirm, modify, or
4-21 set aside the order. The requirements of Section 5.401, Subsection
4-22 (d) of this subchapter shall be satisfied by the applicant on or
4-23 before such hearing date.
4-24 (c) The requirements of Section 11.132 of this code relating
4-25 to the time for notice, newspaper notice, and method of giving a
4-26 person notice do not apply to a hearing held on an application for
4-27 an emergency order under this section, but such general notice of
5-1 the hearing shall be given as the commission considers practicable
5-2 under the circumstances.
5-3 (d) The commission may grant an emergency order under this
5-4 section for the temporary transfer and use of all or part of a
5-5 surface water right for other than domestic or municipal use to a
5-6 retail or wholesale water supplier for domestic or municipal use.
5-7 In addition to the requirements contained in Section 5.401,
5-8 Subsection (b) of this subchapter, the commission may direct that
5-9 the applicant will timely pay the amounts for which the applicant
5-10 may be potentially liable under this subsection and will fully
5-11 indemnify and hold harmless the state, the executive director, and
5-12 the commission from any and all liability for the order sought. The
5-13 commission may order bond or other surety in a form acceptable to
5-14 the commission as a condition for such emergency order.
5-15 (e) The person granted an emergency order under Subsection
5-16 (d) of this section is liable to the owner from whom the use is
5-17 transferred for the fair market value of the water transferred as
5-18 well as for any damages proximately caused by the transfer of use.
5-19 If, within 60 days of the termination of the order, the parties do
5-20 not agree on the amount due, or if full payment is not made, either
5-21 party may file a complaint with the commission to determine the
5-22 amount due. The commission shall adopt rules establishing a dispute
5-23 resolution procedure for a complaint filed under this subsection.
5-24 After exhausting all administrative remedies under this subsection,
5-25 an aggrieved party may file suit to recover or determine the amount
5-26 due in a district court in the county where the diversion point or
5-27 points of the surface water right which use is being transferred is
6-1 located. The prevailing party in a suit filed under this subsection
6-2 is entitled to recover court costs and reasonable attorney's fees.
6-3 Sec. 5.403. EMERGENCY SUSPENSION OF PERMIT CONDITIONS
6-4 RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND
6-5 INSTREAM USES. (a) The commission may by emergency or temporary
6-6 order suspend permit conditions relating to beneficial inflows to
6-7 affected bays and estuaries and instream uses when the commission
6-8 finds that an emergency exists that cannot practicably be resolved
6-9 in other ways.
6-10 (b) Before the commission suspends a permit condition under
6-11 this section, written notice of the proposed suspension must be
6-12 given to the Parks and Wildlife Department. The commission shall
6-13 give the Parks and Wildlife Department an opportunity to submit
6-14 comments on the proposed suspension for a period of 72 hours from
6-15 receipt of such notice and shall consider those comments before
6-16 issuing an order imposing the suspension.
6-17 (c) The commission may suspend permit conditions under this
6-18 section without notice to any other interested party other than the
6-19 Parks and Wildlife Department as provided by Subsection (b).
6-20 However, all affected persons shall be notified immediately by
6-21 publication.
6-22 Sec. 5.404. EMERGENCY WORKS SAFETY ORDERS. The commission
6-23 may issue an emergency order, either mandatory or prohibitory in
6-24 nature, directing the owner of a dam, levee, or other water-storage
6-25 or flood-control work to repair, modify, maintain, dewater, or
6-26 remove a work if the commission finds that the existing condition
6-27 of the work is causing or will cause extensive or severe property
7-1 damage or economic loss to others or is posing an immediate and
7-2 serious threat to human life or health and that other procedures
7-3 available to the commission to remedy or prevent the occurrence
7-4 will result in unreasonable delay.
7-5 Sec. 5.405. EMERGENCY ORDERS TO COMPEL WATER OR SEWER
7-6 SERVICE. The commission may issue an emergency order to:
7-7 (1) compel a water or sewer service provider that has
7-8 obtained or is required to obtain a certificate of public
7-9 convenience and necessity to provide continuous and adequate water
7-10 or sewer service, or both, if it finds that the discontinuance of
7-11 the service is imminent or has occurred because of the service
7-12 provider's actions or failure to act;
7-13 (2) compel a retail public utility to provide an
7-14 emergency interconnection with a neighboring retail public utility
7-15 for the provision of temporary water or sewer service, or both, if
7-16 it finds that service discontinuance or serious impairment in
7-17 service is imminent or has occurred; and
7-18 (3) establish reasonable compensation for temporary
7-19 service required under Subdivision (2) and allow the retail public
7-20 utility receiving the service to make a temporary adjustment to its
7-21 rate structure to ensure proper payment.
7-22 Sec. 5.406. EMERGENCY ORDERS FOR OPERATION OF UTILITY THAT
7-23 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
7-24 The commission may issue an emergency order appointing a willing
7-25 person to temporarily manage and operate a utility under Section
7-26 13.4132, and notice of the action is adequate if the notice is
7-27 mailed or hand delivered to the last known address of the utility's
8-1 headquarters.
8-2 Sec. 5.407. EMERGENCY ORDERS FOR RATE INCREASES IN CERTAIN
8-3 SITUATIONS. (a) Notwithstanding the requirements of Section
8-4 13.187, the commission may authorize an emergency rate increase for
8-5 a utility for which a person has been appointed under Section 5.406
8-6 or 13.4132 or for which a receiver has been appointed under Section
8-7 13.412 if the increase is necessary to ensure the provision of
8-8 continuous and adequate services to the utility's customers.
8-9 (b) A utility that receives an emergency rate increase under
8-10 this section shall provide to each ratepayer notice of the increase
8-11 as soon as possible, but not later than the first utility bill
8-12 issued at the new rate.
8-13 (c) Notwithstanding the provisions of Section 5.401(g), an
8-14 order may be issued under this section for a term of up to 15
8-15 months. The commission shall schedule a hearing to establish a
8-16 final rate within 15 months after the date on which an emergency
8-17 rate increase takes effect. The additional revenues collected
8-18 under an emergency rate increase are subject to refund if the
8-19 commission finds that the rate increase was larger than necessary
8-20 to ensure continuous and adequate service.
8-21 Sec. 5.408. TEMPORARY AND EMERGENCY ORDERS AND
8-22 AUTHORIZATIONS TO DISCHARGE UNTREATED OR PARTIALLY TREATED
8-23 WASTEWATER. (a) The commission may issue an emergency or a
8-24 temporary order relating to the discharge of waste or pollutants
8-25 into or adjacent to water in the state when this is necessary to
8-26 enable action to be taken more expeditiously than is otherwise
8-27 provided by Chapter 26 to effectuate the policy and purposes of
9-1 that chapter, if it finds that:
9-2 (1) the discharge is unavoidable to prevent loss of
9-3 life, serious injury, severe property damage, or severe economic
9-4 loss or to make necessary and unforeseen repairs to a facility;
9-5 (2) there are no feasible alternatives to the proposed
9-6 discharge;
9-7 (3) the discharge will not cause significant hazard to
9-8 human life and health, unreasonable damage to the property of
9-9 persons other than the applicant, or unreasonable economic loss to
9-10 persons other than the applicant; and
9-11 (4) the discharge will not present a significant
9-12 hazard to the uses that will be made of the receiving water after
9-13 the discharge.
9-14 (b) A person desiring a temporary or an emergency order
9-15 under this section must submit a sworn written application to the
9-16 commission under Section 5.401(d) that must also contain the
9-17 following:
9-18 (1) a statement of the volume and quality of the
9-19 proposed discharge;
9-20 (2) an explanation of the measures proposed to
9-21 minimize the volume and duration of the discharge; and
9-22 (3) an explanation of the measures proposed to
9-23 maximize the waste treatment efficiency of units not taken out of
9-24 service or facilities provided for interim use.
9-25 Sec. 5.409. EMERGENCY ORDERS CONCERNING UNDERGROUND OR
9-26 ABOVEGROUND STORAGE TANKS. (a) The commission may issue an
9-27 emergency order to the owner or operator of an underground or
10-1 aboveground storage tank regulated under Chapter 26 prohibiting the
10-2 owner from allowing or continuing a release or threatened release
10-3 and requiring the owner to take the actions necessary to eliminate
10-4 the release or threatened release, if it finds that:
10-5 (1) there is an actual or threatened release of a
10-6 regulated substance; and
10-7 (2) more expeditious action than is otherwise provided
10-8 under Chapter 26 is necessary to protect the public health or
10-9 safety or the environment from harm.
10-10 (b) An emergency order issued under this section shall be:
10-11 (1) mailed by certified mail, return receipt
10-12 requested, to each person identified in the order;
10-13 (2) hand delivered to each person identified in the
10-14 order; or
10-15 (3) on failure of service by certified mail or hand
10-16 delivery, served by publication one time in the Texas Register and
10-17 one time in a newspaper with general circulation in each county in
10-18 which any of the persons identified in the order has a last known
10-19 address.
10-20 Sec. 5.410. EMERGENCY ADMINISTRATIVE ORDERS TO PERSONS
10-21 RESPONSIBLE FOR SOLID WASTE. The commission or the executive
10-22 director may issue emergency administrative orders under Sections
10-23 361.272 and 361.274, Health and Safety Code, in the manner provided
10-24 by this subchapter.
10-25 Sec. 5.411. EMERGENCY ORDERS CONCERNING ACTIVITIES OF SOLID
10-26 WASTE MANAGEMENT. The commission may issue an emergency order
10-27 concerning an activity of solid waste management under its
11-1 jurisdiction, even if that activity is not covered by a permit, if
11-2 it finds that an emergency requiring immediate action to protect
11-3 the public health and safety exists.
11-4 Sec. 5.412. EMERGENCY ORDERS CONCERNING ON-SITE SEWAGE
11-5 DISPOSAL SYSTEMS. (a) The commission may issue an emergency
11-6 order suspending the registration of the installer of an on-site
11-7 sewage disposal system, regulating an on-site sewage disposal
11-8 system, or both, if it finds that an emergency exists and that the
11-9 public health and safety is endangered because of the operation of
11-10 an on-site sewage disposal system that does not comply with Chapter
11-11 366, Health & Safety Code, or a rule adopted under that chapter.
11-12 (b) If the emergency order issued under this section is
11-13 adopted without notice or hearing, the order shall set a time and
11-14 place for a hearing to affirm, modify, or set aside the order not
11-15 later than the 30th day after the date on which the emergency order
11-16 is issued.
11-17 Sec. 5.413. ORDERS ISSUED UNDER AIR EMERGENCIES. (a) If
11-18 the commission finds that a generalized condition of air pollution
11-19 exists that creates an emergency requiring immediate action to
11-20 protect human health or safety, it may, with the concurrence of the
11-21 governor, issue an emergency order requiring any person causing or
11-22 contributing to the air pollution to immediately reduce or
11-23 discontinue the emission of air contaminants.
11-24 (b) If the commission finds that emissions from one or more
11-25 sources are causing imminent danger to human health or safety but
11-26 that there is not a generalized condition of air pollution under
11-27 Subsection (a), it may issue an emergency order requiring the
12-1 persons responsible for the emissions to immediately reduce or
12-2 discontinue the emissions.
12-3 (c) Notwithstanding Section 5.401, the commission shall
12-4 affirm, modify, or set aside an order issued under this section not
12-5 later than 24 hours after the hearing begins and without
12-6 adjournment of the hearing.
12-7 (d) This section does not limit any power that the governor
12-8 or another officer may have to declare an emergency and to act on
12-9 the basis of that declaration if the power is conferred by law or
12-10 inheres in the office.
12-11 Sec. 5.414. ISSUANCE OF EMERGENCY ORDER BECAUSE OF
12-12 CATASTROPHE. (a) The commission may issue an emergency order
12-13 authorizing immediate action for the addition, replacement, or
12-14 repair of facilities or control equipment necessitated by a
12-15 catastrophe occurring in this state and the emission of air
12-16 contaminants during the addition, replacement, or repair of those
12-17 facilities, if the actions and emissions are otherwise precluded
12-18 under Chapter 382, Health and Safety Code, and if the commission
12-19 finds that:
12-20 (1) the construction and emissions are essential to
12-21 prevent loss of life, serious injury, severe property damage, or
12-22 severe economic loss not attributable to the applicant's actions
12-23 and are necessary for the addition, replacement, or repair of a
12-24 facility or control equipment necessitated by the catastrophe;
12-25 (2) there are no practicable alternatives to the
12-26 proposed construction and emissions; and
12-27 (3) the emissions will not cause or contribute to air
13-1 pollution.
13-2 (b) An order issued under this section must:
13-3 (1) authorize action only on:
13-4 (A) property on which a catastrophe has
13-5 occurred; or
13-6 (B) other property that is owned by the owner or
13-7 operator of the damaged facility and that produces the same
13-8 intermediates, products, or by-products; and
13-9 (2) contain a schedule for submission of a complete
13-10 application for a permit under Section 382.0518, Health and Safety
13-11 Code.
13-12 (c) The person applying for an emergency order must
13-13 demonstrate that there will be no more than a de minimis increase
13-14 in the predicted concentration of air contaminants at or beyond the
13-15 property line of the other property on which action is authorized
13-16 under Subsection (b)(1)(B). The commission shall review and act on
13-17 an application submitted as provided by Subsection (b)(2) without
13-18 regard to construction activity under an order under this section.
13-19 (d) An applicant desiring an emergency order under this
13-20 section must submit a sworn written application to the commission
13-21 under Section 5.401(d) that must also contain the following:
13-22 (1) a description of the catastrophe;
13-23 (2) a statement that:
13-24 (A) the construction and emissions are essential
13-25 to prevent loss of life, serious injury, severe property damage, or
13-26 severe economic loss not attributable to the applicant's actions
13-27 and are necessary for the addition, replacement, or repair of a
14-1 facility or control equipment necessitated by the catastrophe;
14-2 (B) there are no practicable alternatives to the
14-3 proposed construction and emissions; and
14-4 (C) the emissions will not cause or contribute
14-5 to air pollution;
14-6 (3) an estimate of the dates on which the proposed
14-7 construction or emissions, or both, will begin and end;
14-8 (4) an estimate of the date on which the facility will
14-9 begin operation; and
14-10 (5) a description of the quantity and type of air
14-11 contaminants proposed to be emitted.
14-12 (e) In this section, "catastrophe" means an unforeseen
14-13 event, including an act of God, an act of war, severe weather,
14-14 explosions, fire, or similar occurrences beyond the reasonable
14-15 control of the operator, that makes a facility or its related
14-16 appurtenances inoperable.
14-17 Sec. 5.415. EMERGENCY ORDERS UNDER SECTION 401.056, HEALTH
14-18 AND SAFETY CODE. The commission may issue an emergency order under
14-19 Section 401.056, Health and Safety Code, in the manner provided by
14-20 this subchapter.
14-21 Sec. 5.416. EMERGENCY ORDERS FOR CORRECTIVE ACTION AND
14-22 MEASURES. (a) The commission may issue an emergency order under
14-23 Section 401.270, Health and Safety Code, to a person responsible
14-24 for an activity, including a past activity, concerning the recovery
14-25 or processing of source material or the disposal of by-product
14-26 material requiring any action, including a corrective measure that
14-27 is necessary to correct or remove the threat, if it finds that
15-1 by-product material or the operation by which that by-product
15-2 material is derived threatens the public health and safety and the
15-3 environment, regardless of whether the activity was lawful at the
15-4 time.
15-5 (b) An emergency order may be issued under this section to:
15-6 (1) restrain the person from allowing or continuing
15-7 the release; and
15-8 (2) require the person to take any action necessary to
15-9 provide and implement an environmentally sound remedial action plan
15-10 designed to eliminate the release or threatened release.
15-11 (c) An emergency order issued under this section shall be:
15-12 (1) mailed by certified mail, return receipt
15-13 requested, to each person identified in the order;
15-14 (2) hand delivered to each person identified in the
15-15 order; or
15-16 (3) on failure of service by certified mail or hand
15-17 delivery, served by publication one time in the Texas Register and
15-18 one time in a newspaper with general circulation in each county in
15-19 which any of the persons identified in the order has a last known
15-20 address.
15-21 (d) If the order issued under this section is adopted
15-22 without notice or hearing, the order shall set a time, at least 10
15-23 but not more than 30 days following the date of issuance of the
15-24 order, for a hearing to be held to affirm, modify, or set aside the
15-25 order. All provisions of the order shall remain in effect during
15-26 the pendency of the hearing unless otherwise altered by the
15-27 commission.
16-1 SECTION 2. Section 12.052, Water Code, is amended to read as
16-2 follows:
16-3 Sec. 12.052. DAM SAFETY. (a) The commission shall make and
16-4 enforce rules and orders and shall perform all other acts necessary
16-5 to provide for the safe construction, maintenance, repair, and
16-6 removal of dams located in this state.
16-7 (b) Rules and orders made by the commission shall be made
16-8 after proper notice and hearing as provided in the rules of the
16-9 commission.
16-10 (c) If the owner of a dam that is required to be
16-11 constructed, reconstructed, repaired, or removed in order to comply
16-12 with the rules and orders promulgated under Subsection (a) of this
16-13 section wilfully fails or refuses to comply within the 30-day
16-14 period following the date of the commission's order to do so or if
16-15 a person wilfully fails to comply with any rule or other order
16-16 issued by the commission under this section within the 30-day
16-17 period following the effective date of the order, he is liable to a
16-18 penalty of not more than $1,000 a day for each day he continues to
16-19 violate this section. The state may recover the penalty by suit
16-20 brought for that purpose in the district court of Travis County.
16-21 (d) The commission may issue an emergency order under
16-22 Subchapter K, Chapter 5 of this code [If the commission determines
16-23 that the existing condition of the dam is creating or will cause
16-24 extensive or severe property damage or economic loss to others or
16-25 is posing an immediate and serious threat to human life or health
16-26 and that other procedures available to the commission to remedy or
16-27 prevent the occurrence of the situation will result in unreasonable
17-1 delay, the commission may issue an emergency order, either
17-2 mandatory or prohibitory in nature, directing the owner of a dam to
17-3 repair, modify, maintain, dewater, or remove the dam which the
17-4 commission determines is unsafe. The emergency order may be issued
17-5 without notice to the dam owner or with notice the commission
17-6 considers practicable under the circumstances. The notice does not
17-7 have to comply with Chapter 2001, Government Code].
17-8 (e) [If the commission issues an emergency order under
17-9 authority of this section without notice to the dam owner, the
17-10 commission shall fix a time and place for a hearing which shall be
17-11 held as soon as practicable to affirm, modify, or set aside the
17-12 emergency order. The notice does not have to comply with Chapter
17-13 2001, Government Code. If the nature of the commission's action
17-14 requires further proceedings, those proceedings shall be conducted
17-15 as appropriate under the Administrative Procedure and Texas
17-16 Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
17-17 Statutes).]
17-18 [(f)] Nothing in this section or in rules or orders made by
17-19 the commission shall be construed to relieve an owner or operator
17-20 of a dam or reservoir of the legal duties, obligations, or
17-21 liabilities incident to ownership or operation.
17-22 SECTION 3. Subsection (d), Section 13.041, Water Code, is
17-23 amended to read as follows:
17-24 (d) The commission may issue an emergency order under
17-25 Subchapter K, Chapter 5 of this code [orders, with or without a
17-26 hearing:]
17-27 [(1) to compel a water or sewer service provider that
18-1 has obtained or is required to obtain a certificate of public
18-2 convenience and necessity to provide continuous and adequate water
18-3 service, sewer service, or both, if the discontinuance of the
18-4 service is imminent or has occurred because of the service
18-5 provider's actions or failure to act; and]
18-6 [(2) to compel a retail public utility to provide an
18-7 emergency interconnection with a neighboring retail public utility
18-8 for the provision of temporary water or sewer service, or both, for
18-9 not more than 90 days if service discontinuance or serious
18-10 impairment in service is imminent or has occurred].
18-11 SECTION 4. Section 13.253, Water Code, is amended to read as
18-12 follows:
18-13 Sec. 13.253. IMPROVEMENTS IN SERVICE; INTERCONNECTING
18-14 SERVICE. After notice and hearing, the commission may: (1) order
18-15 any retail public utility that is required by law to possess a
18-16 certificate of public convenience and necessity to provide
18-17 specified improvements in its service in a defined area if service
18-18 in that area is inadequate or is substantially inferior to service
18-19 in a comparable area and it is reasonable to require the retail
18-20 public utility to provide the improved service;
18-21 (2) order two or more public utilities or water supply
18-22 or sewer service corporations to establish specified facilities for
18-23 the interconnecting service; or
18-24 (3) issue an emergency order[, with or without a
18-25 hearing,] under Subchapter K, Chapter 5 [Section 13.041] of this
18-26 code.
18-27 SECTION 5. Subsection (b), Section 13.4132, Water Code, is
19-1 amended to read as follows:
19-2 (b) The commission may issue an emergency order appointing
19-3 [appoint] a person and authorizing an emergency rate increase
19-4 under Subchapter K, Chapter 5 of this code [section by emergency
19-5 order, and notice of the action is adequate if the notice is
19-6 mailed or hand-delivered to the last known address of the utility's
19-7 headquarters].
19-8 SECTION 6. Section 16.236, Water Code, is amended to read as
19-9 follows:
19-10 Sec. 16.236. CONSTRUCTION OF LEVEE WITHOUT APPROVAL OF
19-11 PLANS; LEVEE SAFETY. (a) The No person may construct, attempt to
19-12 construct, cause to be constructed, maintain, or cause to be
19-13 maintained any levee or such other improvement on, along, or near
19-14 any stream of this state that is subject to floods, freshets, or
19-15 overflows so as to control, regulate, or otherwise change the
19-16 floodwater of the stream without first obtaining approval of the
19-17 commission.
19-18 (b) The commission shall make and enforce rules and orders
19-19 and shall perform all other acts necessary to provide for the safe
19-20 construction, maintenance, repair, and removal of levees located in
19-21 this state.
19-22 (c) If the owner of a levee that is required to be
19-23 constructed, reconstructed, repaired, or removed in order to comply
19-24 with the rules and orders promulgated under Subsection (a) of this
19-25 section wilfully fails or refuses to comply within the 30-day
19-26 period following the date of the commission's order to do so or if
19-27 a person wilfully fails to comply with any rule or other order
20-1 issued by the commission under this section within the 30-day
20-2 period following the effective date of the order, the person is
20-3 liable to a penalty of not more than $25,000 a day for each day the
20-4 person continues to violate this section. The state may recover
20-5 the penalty by suit brought for that purpose in the district court
20-6 of Travis County.
20-7 (d) The commission may issue an emergency order under
20-8 Subchapter K, Chapter 5 of this code.
20-9 (e) Nothing in this section or in rules or orders made by
20-10 the commission shall be construed to relieve an owner or operator
20-11 of a levee of the legal duties, obligations, or liabilities
20-12 incident to ownership or operation.
20-13 SECTION 7. Section 26.0191, Water Code, is amended to read
20-14 as follows:
20-15 Sec. 26.0191. TEMPORARY AND EMERGENCY ORDERS AND
20-16 AUTHORIZATIONS TO DISCHARGE UNTREATED OR PARTIALLY TREATED
20-17 WASTEWATER. [(a)] The commission may issue temporary or emergency
20-18 orders relating to the discharge of waste or pollutants under
20-19 Subchapter K, Chapter 5 of this code [when this is necessary to
20-20 enable action to be taken more expeditiously than is otherwise
20-21 provided by this chapter to effectuate the policy and purposes of
20-22 this chapter.]
20-23 [(b) A person desiring to obtain a temporary or emergency
20-24 order to discharge waste or pollutants, including untreated or
20-25 partially treated wastewater, into or adjacent to water in this
20-26 state shall submit a sworn application to the commission containing
20-27 the following information and any other information the commission
21-1 requires:]
21-2 [(1) a statement that the discharge is unavoidable to
21-3 prevent loss of life, serious injury, severe property damage, or
21-4 severe economic loss, or to make necessary and unforeseen repairs
21-5 to a facility, that there are no feasible alternatives to the
21-6 proposed discharge, and that the discharge will not cause
21-7 significant hazard to human life and health, unreasonable damage to
21-8 property of persons other than the applicant, or unreasonable
21-9 economic loss to persons other than the applicant;]
21-10 [(2) a statement that the proposed discharge will not
21-11 present a significant hazard to the uses that may be made of the
21-12 receiving water after the discharge;]
21-13 [(3) an estimate of the dates on which the proposed
21-14 discharge will begin and end;]
21-15 [(4) a statement of the volume and quality of the
21-16 proposed discharge;]
21-17 [(5) an explanation of measures proposed to minimize
21-18 the volume and duration of the discharge; and]
21-19 [(6) an explanation of measures proposed to maximize
21-20 the waste treatment efficiency of units not taken out of service or
21-21 facilities provided for interim use.]
21-22 [(c) The commission may issue emergency orders relating to
21-23 the discharge of waste or pollutants without notice and hearing, or
21-24 with such notice and hearing as the commission considers
21-25 practicable under the circumstances, only if the commission finds
21-26 the applicant's statement made under Subsection (b)(1) of this
21-27 section to be correct.]
22-1 [(d) If the commission issues an emergency order under this
22-2 authority without a hearing, the order shall fix a time and place
22-3 for a hearing to be held before the commission, which shall be held
22-4 as soon after the emergency order is issued as is practicable.]
22-5 [(e) At the hearing, the commission shall affirm, modify, or
22-6 set aside the emergency order. Any hearing on an emergency order
22-7 shall be conducted in accordance with Chapter 2001, Government
22-8 Code, or the rules of the commission. Any set of commission rules
22-9 concerning a hearing on an emergency order must include provisions
22-10 for presentation of evidence by the applicant under oath,
22-11 presentation of rebuttal evidence, and cross-examination of
22-12 witnesses.]
22-13 [(f) If emergency conditions exist which make it necessary
22-14 to take action more expeditiously than is otherwise provided by
22-15 this section, the executive director may authorize the discharge of
22-16 untreated or partially treated wastewater from a permitted facility
22-17 into or adjacent to water in the state if he determines that the
22-18 discharge is unavoidable to prevent loss of life, serious injury,
22-19 severe property damage, or severe economic loss, or to make
22-20 necessary and unforeseen repairs to the facility, that there are no
22-21 feasible alternatives to the discharge, and that the discharge will
22-22 not cause significant hazard to human life and health, unreasonable
22-23 damage to property of persons other than the applicant, or
22-24 unreasonable economic loss to persons other than the applicant. If
22-25 the executive director issues an authorization to discharge under
22-26 this authority, the commission shall hold a hearing as provided for
22-27 in Subsection (d) of this section as soon as practicable but in no
23-1 event later than 10 days after issuance of the authorization to
23-2 affirm, modify or set aside the authorization. The requirements of
23-3 Subsection (b) of this section shall be satisfied by the applicant
23-4 on or before such hearing date.]
23-5 [(g) The requirements of Section 26.022 of this code
23-6 relating to the time for notice, newspaper notice, and method of
23-7 giving a person notice do not apply to a hearing held on an
23-8 emergency permit under this section, but such general notice of the
23-9 hearing shall be given as the commission, under Subsections (c) and
23-10 (e) of this section, considers practicable under the circumstances.]
23-11 [(h) Temporary orders other than emergency orders require a
23-12 hearing before issuance of the order. The commission shall give
23-13 notice not less than 20 days before the date set for the hearing].
23-14 SECTION 8. Subsection (a), Section 26.021, Water Code, is
23-15 amended to read as follows:
23-16 (a) The [Except for those hearings required to be held
23-17 before the commission under Section 26.0191(b) of this code, the]
23-18 commission may authorize the chief administrative law judge of the
23-19 State Office of Administrative Hearings to call and hold hearings
23-20 on any subject on which the commission may hold a hearing.
23-21 SECTION 9. Subsection (a), Section 26.022, Water Code, is
23-22 amended to read as follows:
23-23 (a) Except as otherwise provided in Sections 5.401, 5.408,
23-24 [26.0191] and 26.176 of this code, the provisions of this section
23-25 apply to all hearings conducted in compliance with this chapter.
23-26 SECTION 10. Section 26.354, Water Code, is amended to read
23-27 as follows:
24-1 Sec. 26.354. EMERGENCY ORDERS. The commission [(a)
24-2 Notwithstanding any other provision of this chapter, the executive
24-3 director] may issue an emergency order [orders] to owners or
24-4 operators of [the persons identified in Subsection (e) of this
24-5 section if it appears that:]
24-6 [(1) there is an actual or threatened release of a
24-7 regulated substance from an] underground or aboveground storage
24-8 tanks under Subchapter K, Chapter 5 of this code [tank; and]
24-9 [(2) the executive director determines that more
24-10 expeditious corrective action than is otherwise provided for under
24-11 this chapter is necessary to protect the public health and safety
24-12 or the environment from harm.]
24-13 [(b) An order issued under Subsection (a) of this section
24-14 may prohibit a person from allowing or continuing the release or
24-15 threatened release and require the person to take the actions
24-16 necessary to eliminate the release or threatened release.]
24-17 [(c) An emergency order issued under this section shall be:]
24-18 [(1) mailed by certified mail, return receipt
24-19 requested, to each person identified in the order;]
24-20 [(2) hand delivered to each person identified in the
24-21 order; or]
24-22 [(3) on failure of service by certified mail or hand
24-23 delivery, served by publication one time in the Texas Register and
24-24 one time in a newspaper with general circulation in each county in
24-25 which any of the persons had a last known address.]
24-26 [(d) An emergency order issued under this section does not
24-27 require notice or an adjudicative hearing before its issuance. If
25-1 the executive director issues an order under this section, the
25-2 commission shall fix a time and place for a hearing to affirm,
25-3 modify, or set aside the emergency order issued by the executive
25-4 director. The hearing before the commission shall be held as soon
25-5 as practicable after the issuance of the emergency order.]
25-6 [(e) The executive director may issue orders under this
25-7 section to the following persons:]
25-8 [(1) the owner of an underground or aboveground
25-9 storage tank; or]
25-10 [(2) the operator of an underground or aboveground
25-11 storage tank].
25-12 SECTION 11. Section 361.274, Health and Safety Code, is
25-13 amended to read as follows:
25-14 Sec. 361.274. NO PRIOR NOTICE CONCERNING ADMINISTRATIVE
25-15 ORDER. An administrative order under Section 361.272 does not
25-16 require prior notice or an adjudicative hearing before the
25-17 commission. An emergency administrative order may be issued under
25-18 Subchapter K, Chapter 5, Water Code.
25-19 SECTION 12. Section 361.301, Health and Safety Code, is
25-20 amended to read as follows:
25-21 Sec. 361.301. EMERGENCY ORDER. [(a)] The commission may
25-22 issue an emergency mandatory or prohibitory order concerning an
25-23 activity of solid waste management under its jurisdiction as
25-24 provided by Subchapter K, Chapter 5, Water Code, even if the
25-25 activity is not covered by a permit[, if the commission determines
25-26 that an emergency requiring immediate action to protect the public
25-27 health and safety or the environment exists.]
26-1 [(b) The order may be issued without notice and hearing or
26-2 with notice and hearing the commission considers practicable under
26-3 the circumstances.]
26-4 [(c) If an emergency order is issued under this section
26-5 without a hearing, the commission shall set a time and place for a
26-6 hearing to be held in accordance with the rules of the commission
26-7 to affirm, modify, or set aside the emergency order.]
26-8 [(d) The requirements of Section 361.088 concerning public
26-9 notice do not apply to the hearing, but general notice of the
26-10 hearing shall be given in accordance with the rules of the
26-11 commission].
26-12 SECTION 13. Section 366.016, Health & Safety Code, is
26-13 amended to read as follows:
26-14 Sec. 366.016. EMERGENCY ORDERS. [(a) If the] The commission
26-15 or authorized agent may issue emergency orders under Subchapter K,
26-16 Chapter 5 of this code. [determines that an emergency exists and
26-17 that the public health and safety is endangered because of the
26-18 operation of an on-site sewage disposal system that does not comply
26-19 with this chapter or a rule adopted under this chapter, the
26-20 commission or authorized agent by order may:]
26-21 [(1) suspend the registration of the installer;]
26-22 [(2) regulate the on-site sewage disposal system; or]
26-23 [(3) both suspend the registration and regulate the
26-24 system.]
26-25 [(b) The order may be issued without notice and hearing.]
26-26 [(c) If the emergency order is issued without a hearing, the
26-27 commission or authorized agent shall set a time and place for a
27-1 hearing to affirm, modify, or set aside the emergency order to be
27-2 held not later than the 30th day after the date on which the
27-3 emergency order is issued.]
27-4 [(d) General notice of the hearing shall be given in
27-5 accordance with the laws of this state and rules adopted by the
27-6 commission or authorized agent.]
27-7 [(e) The hearing shall be conducted in accordance with the
27-8 commission's rules or laws and rules governing the authorized
27-9 agent.]
27-10 SECTION 14. Section 382.026, Health and Safety Code, is
27-11 amended to read as follows:
27-12 Sec. 382.026. ORDERS ISSUED UNDER EMERGENCIES. The
27-13 commission may issue an order under an air emergency as provided by
27-14 Subchapter K, Chapter 5, Water Code [(a) When it appears to the
27-15 commission or the executive director that there exists a
27-16 generalized condition of air pollution that creates an emergency
27-17 requiring immediate action to protect human health or safety, the
27-18 commission or the executive director shall, with the governor's
27-19 concurrence, order any person causing or contributing to the air
27-20 pollution immediately to reduce or discontinue the emission of air
27-21 contaminants.]
27-22 [(b) If the commission or the executive director finds that
27-23 emissions from one or more sources are causing imminent danger to
27-24 human health or safety, but that there is not a generalized
27-25 condition of air pollution under Subsection (a), the commission or
27-26 the executive director may order the persons responsible for the
27-27 emissions immediately to reduce or discontinue the emissions.]
28-1 [(c) An order issued under this section must set a time and
28-2 place of a hearing to be held before the commission as soon after
28-3 the order is issued as practicable.]
28-4 [(d) Section 382.031, relating to notice of a hearing, does
28-5 not apply to a hearing under this section, but a general notice of
28-6 the hearing shall be given that is, in the judgment of the
28-7 commission or the executive director, practicable under the
28-8 circumstances. The commission shall affirm, modify, or set aside
28-9 the order not later than 24 hours after the hearing begins and
28-10 without adjournment of the hearing.]
28-11 [(e) This section does not limit any power that the governor
28-12 or other officer may have to declare an emergency and to act on the
28-13 basis of that declaration if the power is conferred by law or
28-14 inheres in the office].
28-15 SECTION 15. Subsection (b), Section 382.030, Health and
28-16 Safety Code, is amended to read as follows:
28-17 (b) Except for hearings required to be held before the
28-18 commission under Sections 5.401(e) and (f) and 5.412, Water Code
28-19 [Section 382.026], the commission may authorize the executive
28-20 director to:
28-21 (1) call and hold a hearing on any subject on which
28-22 the commission may hold a hearing; and
28-23 (2) delegate the authority to hold any hearing called
28-24 by the executive director to one or more commission employees.
28-25 SECTION 16. Subsection (e), Section 382.031, Health and
28-26 Safety Code, is amended to read as follows:
28-27 (e) This section applies to all hearings held under this
29-1 chapter except as otherwise specified by Section 382.017[, 382.026,
29-2 or 382.063].
29-3 SECTION 17. Section 382.063, Health and Safety Code, is
29-4 amended to read as follows:
29-5 Sec. 382.063. ISSUANCE OF EMERGENCY ORDER BECAUSE OF
29-6 CATASTROPHE. [(a)] The commission may issue an emergency order
29-7 because of catastrophe under Subchapter K, Chapter 5, Water Code
29-8 [or the executive director, on delegation of authority from the
29-9 commission, by emergency order may authorize immediate action for
29-10 the addition, replacement, or repair of facilities or control
29-11 equipment necessitated by a catastrophe occurring in this state,
29-12 and the emission of air contaminants during the addition,
29-13 replacement, or repair of those facilities, if the actions and
29-14 emissions are otherwise precluded under this chapter.]
29-15 [(b) An order issued under this section must:]
29-16 [(1) be limited to a reasonable time specified by the
29-17 order;]
29-18 [(2) authorize action only on:]
29-19 [(A) property on which the catastrophe occurred;
29-20 or]
29-21 [(B) other property that is owned by the owner
29-22 or operator of the damaged facility and that produces the same
29-23 intermediates, products, or by-products; and]
29-24 [(3) contain a schedule for submission of a complete
29-25 application under Section 382.051.]
29-26 [(c) Under Subsection (b)(2)(B), the person applying for an
29-27 emergency order must demonstrate that there will be no more than a
30-1 de minimis increase in the predicted concentration of the air
30-2 contaminants at or beyond the property line of the other property.
30-3 The commission shall review and act on an application submitted as
30-4 provided by Subsection (b)(3) without regard to construction
30-5 activity under an order under this section.]
30-6 [(d) To receive an emergency order under this section, a
30-7 person must submit a sworn application to the commission or
30-8 executive director. The application must contain any information
30-9 the commission requires and:]
30-10 [(1) a description of the catastrophe;]
30-11 [(2) a statement that:]
30-12 [(A) the construction and emissions are
30-13 essential to prevent loss of life, serious injury, severe property
30-14 damage, or severe economic loss not attributable to the applicant's
30-15 actions and are necessary for the addition, replacement, or repair
30-16 of a facility or control equipment necessitated by the catastrophe;]
30-17 [(B) there are no practicable alternatives to
30-18 the proposed construction and emissions; and]
30-19 [(C) the emissions will not cause or contribute
30-20 to air pollution;]
30-21 [(3) an estimate of the dates on which the proposed
30-22 construction or emissions, or both, will begin and end;]
30-23 [(4) an estimate of the date on which the facility
30-24 will begin operation; and]
30-25 [(5) a description of the quantity and type of air
30-26 contaminants proposed to be emitted.]
30-27 [(e) The commission or executive director may issue an
31-1 emergency order under this section after providing the notice and
31-2 opportunity for hearing that the commission or executive director
31-3 considers practicable under the circumstances. If the commission
31-4 requires notice and hearing before issuing the order, it shall give
31-5 notice not later than the 10th day before the date set for the
31-6 hearing.]
31-7 [(f) Notice of the issuance of an emergency order shall be
31-8 provided in accordance with commission rules.]
31-9 [(g) If the commission or executive director issues an
31-10 emergency order under this section without a hearing, the order
31-11 shall set a time and place for a hearing to be held before the
31-12 commission or its designee as soon after the emergency order is
31-13 issued as practicable.]
31-14 [(h) Section 382.031, relating to notice of a hearing, does
31-15 not apply to a hearing on an emergency order, but such general
31-16 notice of the hearing shall be given that in the judgment of the
31-17 commission or the executive director is practicable under the
31-18 circumstances.]
31-19 [(I) At or following the hearing, the commission shall
31-20 affirm, modify, or set aside the emergency order. A hearing on an
31-21 emergency order shall be conducted in accordance with Chapter 2001,
31-22 Government Code and commission rules.]
31-23 [(j) In this section, "catastrophe" means an unforeseen
31-24 event, including an act of God, an act of war, severe weather,
31-25 explosions, fire, or similar occurrences beyond the reasonable
31-26 control of the operator that makes a facility or its functionally
31-27 related appurtenances inoperable].
32-1 SECTION 18. Section 401.056, Health and Safety Code, is
32-2 amended by adding Subsection (g) to read as follows:
32-3 (g) The commission may delegate its authority under this
32-4 section to its executive director by order or rule.
32-5 SECTION 19. Section 401.270, Health and Safety Code, is
32-6 amended to read as follows:
32-7 Sec. 401.270. CORRECTIVE ACTION AND MEASURES. (a) If the
32-8 commission finds that by-product material or the operation by which
32-9 that by-product material is derived threatens the public health and
32-10 safety or the environment, the commission by order may require any
32-11 action, including a corrective measure, that is necessary to
32-12 correct or remove the threat.
32-13 (b) [The commission may issue an emergency order to a person
32-14 responsible for an activity, including a past activity, concerning
32-15 the recovery or processing of source material or the disposal of
32-16 by-product material if it appears that there is an actual or
32-17 threatened release of source material or by-product material that
32-18 presents an imminent and substantial danger to the public health
32-19 and safety or the environment, regardless of whether the activity
32-20 was lawful at the time. The emergency order may be issued without
32-21 notice or hearing.]
32-22 [(c) An emergency order may be issued under Subsection (b)
32-23 to:]
32-24 [(1) restrain the person from allowing or continuing
32-25 the release or threatened release; and]
32-26 [(2) require the person to take any action necessary
32-27 to provide and implement an environmentally sound remedial action
33-1 plan designed to eliminate the release or threatened release.]
33-2 [(d) An emergency order issued under Subsection (b) shall:]
33-3 [(1) be delivered to the person identified by the
33-4 order by certified mail, return receipt requested;]
33-5 [(2) be delivered by hand delivery to the person
33-6 identified by the order; or]
33-7 [(3) on failure of delivery of the order by certified
33-8 mail or hand delivery, be served on the person by publication:]
33-9 [(A) once in the Texas Register; and]
33-10 [(B) once in a newspaper of general circulation
33-11 in each county in which was located the last known address of a
33-12 person identified by the order.]
33-13 [(e)] The commission shall use the security provided by the
33-14 license holder to pay the costs of actions that are taken or that
33-15 are to be taken under this section. The commission shall send to
33-16 the comptroller a copy of its order together with necessary written
33-17 requests authorizing the comptroller to:
33-18 (1) enforce security supplied by the licensee;
33-19 (2) convert an amount of security into cash, as
33-20 necessary; and
33-21 (3) disburse from the security in the fund the amount
33-22 necessary to pay the costs.
33-23 (c) The commission may issue an emergency order under this
33-24 section as provided by Subchapter K, Chapter 5, Water Code [(f) If
33-25 the order issued by the commission pursuant to this section is
33-26 adopted without notice or hearing, the order shall set a time, at
33-27 least 10 but not more than 30 days following the date of issuance
34-1 of the emergency order, and a place for a hearing to be held in
34-2 accordance with the rules of the commission. As a result of this
34-3 hearing, the commission shall decide whether to affirm, modify, or
34-4 set aside the emergency order. All provisions of the emergency
34-5 order shall remain in force and effect during the pendency of the
34-6 hearing, unless otherwise altered by the commission].
34-7 SECTION 20. Sections 11.139, 11.148, and 13.4133, Water
34-8 Code, are repealed.
34-9 SECTION 21. This Act takes effect September 1, 1997.
34-10 SECTION 22. The importance of this legislation and the
34-11 crowded condition of the calendars in both houses create an
34-12 emergency and an imperative public necessity that the
34-13 constitutional rule requiring bills to be read on three several
34-14 days in each house be suspended, and this rule is hereby suspended.