By: Bivins S.B. No. 1874
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the issuance of emergency and temporary orders and
1-2 permits by the Texas Natural Resource Conservation Commission.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 5, Water Code, is amended by adding
1-5 Subchapter L to read as follows:
1-6 SUBCHAPTER L. EMERGENCY AND TEMPORARY ORDERS
1-7 Sec. 5.501. EMERGENCY AND TEMPORARY ORDER OR PERMIT;
1-8 TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITION. (a) For
1-9 the purposes and in the manner provided by this subchapter, the
1-10 commission:
1-11 (1) may issue a temporary or emergency mandatory,
1-12 permissive, or prohibitory order; and
1-13 (2) by temporary or emergency order may:
1-14 (A) issue a temporary permit; or
1-15 (B) temporarily suspend or amend a permit
1-16 condition.
1-17 (b) The commission may issue an emergency order under this
1-18 subchapter after providing the notice and opportunity for hearing
1-19 that the commission considers practicable under the circumstances
1-20 or without notice or hearing. Except as provided by Section 5.508,
1-21 notice must be given not later than the 10th day before the date
1-22 set for a hearing if the commission requires notice and hearing
1-23 before issuing the order. The commission shall give notice not
2-1 later than the 20th day before the date set for a hearing on a
2-2 temporary order.
2-3 (c) The commission by order or rule may delegate to the
2-4 executive director the authority to:
2-5 (1) receive applications and issue emergency orders
2-6 under this subchapter; and
2-7 (2) authorize, in writing, a representative or
2-8 representatives to act on the executive director's behalf under
2-9 this subchapter.
2-10 (d) Chapter 2001, Government Code, does not apply to the
2-11 issuance of an emergency order under this subchapter without a
2-12 hearing.
2-13 (e) A law under which the commission acts that requires
2-14 notice of hearing or that sets procedures for the issuance of
2-15 permits does not apply to a hearing on an emergency order issued
2-16 under this subchapter unless the law specifically requires notice
2-17 for an emergency order. The commission shall give the general
2-18 notice of the hearing that the commission considers practicable
2-19 under the circumstances.
2-20 (f) An emergency or temporary order issued under this
2-21 subchapter does not vest in the permit holder or recipient any
2-22 rights and expires in accordance with its terms.
2-23 (g) The commission may prescribe rules and adopt fees
2-24 necessary to carry out and administer this subchapter.
2-25 Sec. 5.502. APPLICATION FOR EMERGENCY OR TEMPORARY ORDER. A
3-1 person other than the executive director or the executive
3-2 director's representative who desires an emergency or temporary
3-3 order under this subchapter must submit a sworn written application
3-4 to the commission. The application must:
3-5 (1) describe the condition of emergency or other
3-6 condition justifying the issuance of the order;
3-7 (2) allege facts to support the findings required
3-8 under this subchapter;
3-9 (3) estimate the dates on which the proposed order
3-10 should begin and end;
3-11 (4) describe the action sought and the activity
3-12 proposed to be allowed, mandated, or prohibited; and
3-13 (5) include any other statement or information
3-14 required by this subchapter or by the commission.
3-15 Sec. 5.503. NOTICE OF ISSUANCE. Notice of the issuance of
3-16 an emergency order shall be provided in accordance with commission
3-17 rules.
3-18 Sec. 5.504. HEARING TO AFFIRM, MODIFY, OR SET ASIDE ORDER.
3-19 (a) If the commission, the executive director, or the executive
3-20 director's representative issues an emergency order under this
3-21 subchapter without a hearing, the order shall set a time and place
3-22 for a hearing to affirm, modify, or set aside the emergency order
3-23 to be held before the commission or its designee as soon as
3-24 practicable after the order is issued.
3-25 (b) At or following the hearing required under Subsection
4-1 (a), the commission shall affirm, modify, or set aside the
4-2 emergency order.
4-3 (c) A hearing to affirm, modify, or set aside an emergency
4-4 order shall be conducted in accordance with Chapter 2001,
4-5 Government Code, and commission rules. Commission rules concerning
4-6 a hearing to affirm, modify, or set aside an emergency order must
4-7 provide for presentation of evidence by the applicant under oath,
4-8 presentation of rebuttal evidence, and cross-examination of
4-9 witnesses.
4-10 Sec. 5.505. TERM OF ORDER. An emergency or temporary order
4-11 issued under this subchapter must be limited to a reasonable time
4-12 specified by the order. Except as otherwise provided by this
4-13 subchapter, the term of an emergency order may not exceed 180 days.
4-14 An emergency order may be renewed once for a period not to exceed
4-15 180 days.
4-16 Sec. 5.506. EMERGENCY SUSPENSION OF PERMIT CONDITION
4-17 RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND
4-18 INSTREAM USES. (a) The commission by emergency or temporary order
4-19 may suspend a permit condition relating to beneficial inflows to
4-20 affected bays and estuaries and instream uses if the commission
4-21 finds that an emergency exists that cannot practicably be resolved
4-22 in another way.
4-23 (b) The commission must give written notice of the proposed
4-24 suspension to the Parks and Wildlife Department before the
4-25 commission suspends a permit condition under this section. The
5-1 commission shall give the Parks and Wildlife Department an
5-2 opportunity to submit comments on the proposed suspension for a
5-3 period of 72 hours from receipt of the notice and must consider
5-4 those comments before issuing an order imposing the suspension.
5-5 (c) The commission may suspend a permit condition under this
5-6 section without notice except as required by Subsection (b).
5-7 (d) The commission shall notify all affected persons
5-8 immediately by publication.
5-9 Sec. 5.507. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
5-10 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
5-11 The commission may issue an emergency order appointing a willing
5-12 person to temporarily manage and operate a utility under Section
5-13 13.4132. Notice of the action is adequate if the notice is mailed
5-14 or hand delivered to the last known address of the utility's
5-15 headquarters.
5-16 Sec. 5.508. EMERGENCY ORDER FOR RATE INCREASE IN CERTAIN
5-17 SITUATIONS. (a) Notwithstanding the requirements of Section
5-18 13.187, the commission may authorize an emergency rate increase for
5-19 a utility for which a person has been appointed under Section 5.507
5-20 or 13.4132 or for which a receiver has been appointed under Section
5-21 13.412 if the increase is necessary to ensure the provision of
5-22 continuous and adequate services to the utility's customers.
5-23 (b) A utility that receives an emergency rate increase under
5-24 this section shall provide to each ratepayer notice of the increase
5-25 as soon as possible, but not later than the first utility bill
6-1 issued at the new rate.
6-2 (c) Notwithstanding Section 5.505, an order may be issued
6-3 under this section for a term not to exceed 15 months. The
6-4 commission shall schedule a hearing to establish a final rate
6-5 within 15 months after the date on which an emergency rate increase
6-6 takes effect. The additional revenues collected under an emergency
6-7 rate increase are subject to refund if the commission finds that
6-8 the rate increase was larger than necessary to ensure continuous
6-9 and adequate service.
6-10 Sec. 5.509. TEMPORARY OR EMERGENCY ORDER RELATING TO
6-11 DISCHARGE OF WASTE OR POLLUTANTS. (a) The commission may issue an
6-12 emergency or temporary order relating to the discharge of waste or
6-13 pollutants into or adjacent to water in the state if:
6-14 (1) the order is necessary to enable action to be
6-15 taken more expeditiously than is otherwise provided by Chapter 26
6-16 to effectuate the policy and purposes of that chapter; and
6-17 (2) the commission finds that:
6-18 (A) the discharge is unavoidable to:
6-19 (i) prevent loss of life, serious injury,
6-20 or severe property damage;
6-21 (ii) prevent severe economic loss or
6-22 ameliorate serious drought conditions, to the extent consistent
6-23 with the requirements for United States Environmental Protection
6-24 Agency authorization of a state permit program; or
6-25 (iii) make necessary and unforeseen
7-1 repairs to a facility;
7-2 (B) there is no feasible alternative to the
7-3 proposed discharge;
7-4 (C) the discharge will not cause significant
7-5 hazard to human life and health, unreasonable damage to the
7-6 property of persons other than the applicant, or unreasonable
7-7 economic loss to persons other than the applicant; and
7-8 (D) the discharge will not present a significant
7-9 hazard to the uses that will be made of the receiving water after
7-10 the discharge.
7-11 (b) A person desiring a temporary or emergency order under
7-12 this section must submit an application under Section 5.502 that,
7-13 in addition to complying with that section:
7-14 (1) states the volume and quality of the proposed
7-15 discharge;
7-16 (2) explains the measures proposed to minimize the
7-17 volume and duration of the discharge; and
7-18 (3) explains the measures proposed to maximize the
7-19 waste treatment efficiency of units not taken out of service or
7-20 facilities provided for interim use.
7-21 Sec. 5.510. EMERGENCY ORDER CONCERNING UNDERGROUND OR
7-22 ABOVEGROUND STORAGE TANKS. (a) The commission may issue an
7-23 emergency order to the owner or operator of an underground or
7-24 aboveground storage tank regulated under Chapter 26 prohibiting the
7-25 owner or operator from allowing or continuing a release or
8-1 threatened release and requiring the owner or operator to take the
8-2 actions necessary to eliminate the release or threatened release,
8-3 if the commission finds that:
8-4 (1) there is an actual or threatened release of a
8-5 regulated substance; and
8-6 (2) more expeditious action than is otherwise provided
8-7 under Chapter 26 is necessary to protect the public health or
8-8 safety or the environment from harm.
8-9 (b) An emergency order issued under this section must be:
8-10 (1) mailed by certified mail, return receipt
8-11 requested, to each person identified in the order;
8-12 (2) hand delivered to each person identified in the
8-13 order; or
8-14 (3) on failure of service by certified mail or hand
8-15 delivery, served by publication one time in the Texas Register and
8-16 one time in a newspaper with general circulation in each county in
8-17 which any of the persons identified in the order has a last known
8-18 address.
8-19 Sec. 5.511. EMERGENCY ADMINISTRATIVE ORDER TO PERSON
8-20 RESPONSIBLE FOR SOLID WASTE. The commission or the executive
8-21 director may issue an emergency administrative order under Section
8-22 361.272 or 361.274, Health and Safety Code, in the manner provided
8-23 by this subchapter.
8-24 Sec. 5.512. EMERGENCY ORDER CONCERNING ACTIVITY OF SOLID
8-25 WASTE MANAGEMENT. The commission may issue an emergency order
9-1 concerning an activity of solid waste management under the
9-2 commission's jurisdiction, even if that activity is not covered by
9-3 a permit, if the commission finds that an emergency requiring
9-4 immediate action to protect the public health and safety exists.
9-5 Sec. 5.513. EMERGENCY ORDER CONCERNING ON-SITE SEWAGE
9-6 DISPOSAL SYSTEM. (a) The commission may issue an emergency order
9-7 suspending the registration of the installer of an on-site sewage
9-8 disposal system, regulating an on-site sewage disposal system, or
9-9 both, if the commission finds that an emergency exists and that the
9-10 public health and safety is endangered because of the operation of
9-11 an on-site sewage disposal system that does not comply with Chapter
9-12 366, Health and Safety Code, or a rule adopted under that chapter.
9-13 (b) If an order issued under this section is adopted without
9-14 notice or hearing, the order must set a time, not more than 30 days
9-15 after the order is issued, for a hearing to affirm, modify, or set
9-16 aside the order.
9-17 Sec. 5.514. ORDER ISSUED UNDER AIR EMERGENCY. (a) If the
9-18 commission finds that a generalized condition of air pollution
9-19 exists that creates an emergency requiring immediate action to
9-20 protect human health or safety, the commission, with the
9-21 concurrence of the governor, may issue an emergency order requiring
9-22 a person causing or contributing to the air pollution to
9-23 immediately reduce or discontinue the emission of air contaminants.
9-24 (b) If the commission finds that emissions from one or more
9-25 sources are causing imminent danger to human health or safety but
10-1 that there is not a generalized condition of air pollution under
10-2 Subsection (a), the commission may issue an emergency order
10-3 requiring the persons responsible for the emissions to immediately
10-4 reduce or discontinue the emissions.
10-5 (c) Notwithstanding Section 5.504, the commission shall
10-6 affirm, modify, or set aside an order issued under this section not
10-7 later than 24 hours after the hearing under that section begins and
10-8 without adjournment of the hearing.
10-9 (d) This section does not limit any power that the governor
10-10 or another officer may have to declare an emergency and to act on
10-11 that declaration if the power is conferred by law or inheres in the
10-12 office.
10-13 Sec. 5.515. EMERGENCY ORDER BECAUSE OF CATASTROPHE.
10-14 (a) The commission may issue an emergency order authorizing
10-15 immediate action for the addition, replacement, or repair of
10-16 facilities or control equipment necessitated by a catastrophe
10-17 occurring in this state and the emission of air contaminants during
10-18 the addition, replacement, or repair of those facilities if the
10-19 actions and emissions are otherwise precluded under Chapter 382,
10-20 Health and Safety Code.
10-21 (b) An order issued under this section:
10-22 (1) may authorize action only on:
10-23 (A) property on which a catastrophe has
10-24 occurred; or
10-25 (B) other property that is owned by the owner or
11-1 operator of the damaged facility and that produces the same
11-2 intermediates, products, or by-products; and
11-3 (2) must contain a schedule for submitting a complete
11-4 application for a permit under Section 382.0518, Health and Safety
11-5 Code.
11-6 (c) The person applying for an emergency order must
11-7 demonstrate that there will be no more than a de minimis increase
11-8 in the predicted concentration of air contaminants at or beyond the
11-9 property line of the other property on which action is authorized
11-10 under Subsection (b)(1)(B). The commission shall review and act on
11-11 an application submitted as provided by Subsection (b)(2) without
11-12 regard to construction activity under an order under this section.
11-13 (d) An applicant desiring an emergency order under this
11-14 section must submit an application under Section 5.502 that, in
11-15 addition to complying with that section:
11-16 (1) describes the catastrophe;
11-17 (2) states that:
11-18 (A) the construction and emissions are essential
11-19 to prevent loss of life, serious injury, severe property damage, or
11-20 severe economic loss not attributable to the applicant's actions
11-21 and are necessary for the addition, replacement, or repair of a
11-22 facility or control equipment necessitated by the catastrophe;
11-23 (B) there is no practicable alternative to the
11-24 proposed construction and emissions; and
11-25 (C) the emissions will not cause or contribute
12-1 to air pollution;
12-2 (3) estimates the dates on which the proposed
12-3 construction or emissions, or both, will begin and end;
12-4 (4) estimates the date on which the facility will
12-5 begin operation; and
12-6 (5) describes the quantity and type of air
12-7 contaminants proposed to be emitted.
12-8 (e) In this section, "catastrophe" means an unforeseen
12-9 event, including an act of God, an act of war, severe weather,
12-10 explosions, fire, or similar occurrences beyond the reasonable
12-11 control of the operator, that makes a facility or its related
12-12 appurtenances inoperable.
12-13 Sec. 5.516. EMERGENCY ORDER UNDER SECTION 401.056, HEALTH
12-14 AND SAFETY CODE. The commission may issue an emergency order under
12-15 Section 401.056, Health and Safety Code, in the manner provided by
12-16 this subchapter.
12-17 Sec. 5.517. EMERGENCY ORDERS FOR CORRECTIVE ACTION AND
12-18 MEASURES. (a) The commission may issue an emergency order under
12-19 Section 401.270, Health and Safety Code, to a person responsible
12-20 for an activity, including a past activity, concerning the recovery
12-21 or processing of source material or the disposal of by-product
12-22 material that requires any action, including a corrective measure
12-23 that is necessary to correct or remove the threat, if it appears
12-24 that there is an actual or threatened release of source material or
12-25 by-product material that presents an imminent and substantial
13-1 danger to the public health and safety or the environment,
13-2 regardless of whether the activity was lawful at the time.
13-3 (b) An emergency order may be issued under this section to:
13-4 (1) restrain the person from allowing or continuing
13-5 the release; and
13-6 (2) require the person to take any action necessary to
13-7 provide and implement an environmentally sound remedial action plan
13-8 designed to eliminate the release or threatened release.
13-9 (c) An emergency order issued under this section must be:
13-10 (1) mailed by certified mail, return receipt
13-11 requested, to each person identified in the order;
13-12 (2) hand delivered to each person identified in the
13-13 order; or
13-14 (3) on failure of service by certified mail or hand
13-15 delivery, served by publication one time in the Texas Register and
13-16 one time in a newspaper with general circulation in each county in
13-17 which any of the persons identified in the order has a last known
13-18 address.
13-19 (d) If an order issued under this section is adopted without
13-20 notice or hearing, the order must set a time, at least 10 but not
13-21 more than 30 days after the date the order is issued, for a hearing
13-22 to affirm, modify, or set aside the order. All provisions of the
13-23 order remain in effect during the pendency of the hearing unless
13-24 otherwise altered by the commission.
13-25 SECTION 2. Section 26.0191, Water Code, is amended to read
14-1 as follows:
14-2 Sec. 26.0191. TEMPORARY OR [AND] EMERGENCY ORDER RELATING
14-3 [ORDERS AND AUTHORIZATIONS] TO DISCHARGE OF WASTE OR POLLUTANTS
14-4 [UNTREATED OR PARTIALLY TREATED WASTEWATER]. [(a)] The commission
14-5 may issue a temporary or emergency order [orders] relating to the
14-6 discharge of waste or pollutants under Section 5.509 [when this is
14-7 necessary to enable action to be taken more expeditiously than is
14-8 otherwise provided by this chapter to effectuate the policy and
14-9 purposes of this chapter].
14-10 [(b) A person desiring to obtain a temporary or emergency
14-11 order to discharge waste or pollutants, including untreated or
14-12 partially treated wastewater, into or adjacent to water in this
14-13 state shall submit a sworn application to the commission containing
14-14 the following information and any other information the commission
14-15 requires:]
14-16 [(1) a statement that the discharge is unavoidable to
14-17 prevent loss of life, serious injury, severe property damage, or
14-18 severe economic loss, or to make necessary and unforeseen repairs
14-19 to a facility, that there are no feasible alternatives to the
14-20 proposed discharge, and that the discharge will not cause
14-21 significant hazard to human life and health, unreasonable damage to
14-22 property of persons other than the applicant, or unreasonable
14-23 economic loss to persons other than the applicant;]
14-24 [(2) a statement that the proposed discharge will not
14-25 present a significant hazard to the uses that may be made of the
15-1 receiving water after the discharge;]
15-2 [(3) an estimate of the dates on which the proposed
15-3 discharge will begin and end;]
15-4 [(4) a statement of the volume and quality of the
15-5 proposed discharge;]
15-6 [(5) an explanation of measures proposed to minimize
15-7 the volume and duration of the discharge; and]
15-8 [(6) an explanation of measures proposed to maximize
15-9 the waste treatment efficiency of units not taken out of service or
15-10 facilities provided for interim use.]
15-11 [(c) The commission may issue emergency orders relating to
15-12 the discharge of waste or pollutants without notice and hearing, or
15-13 with such notice and hearing as the commission considers
15-14 practicable under the circumstances, only if the commission finds
15-15 the applicant's statement made under Subsection (b)(1) of this
15-16 section to be correct.]
15-17 [(d) If the commission issues an emergency order under this
15-18 authority without a hearing, the order shall fix a time and place
15-19 for a hearing to be held before the commission, which shall be held
15-20 as soon after the emergency order is issued as is practicable.]
15-21 [(e) At the hearing, the commission shall affirm, modify, or
15-22 set aside the emergency order. Any hearing on an emergency order
15-23 shall be conducted in accordance with Chapter 2001, Government
15-24 Code, or the rules of the commission. Any set of commission rules
15-25 concerning a hearing on an emergency order must include provisions
16-1 for presentation of evidence by the applicant under oath,
16-2 presentation of rebuttal evidence, and cross-examination of
16-3 witnesses.]
16-4 [(f) If emergency conditions exist which make it necessary
16-5 to take action more expeditiously than is otherwise provided by
16-6 this section, the executive director may authorize the discharge of
16-7 untreated or partially treated wastewater from a permitted facility
16-8 into or adjacent to water in the state if he determines that the
16-9 discharge is unavoidable to prevent loss of life, serious injury,
16-10 severe property damage, or severe economic loss, or to make
16-11 necessary and unforeseen repairs to the facility, that there are no
16-12 feasible alternatives to the discharge, and that the discharge will
16-13 not cause significant hazard to human life and health, unreasonable
16-14 damage to property of persons other than the applicant, or
16-15 unreasonable economic loss to persons other than the applicant. If
16-16 the executive director issues an authorization to discharge under
16-17 this authority, the commission shall hold a hearing as provided for
16-18 in Subsection (d) of this section as soon as practicable but in no
16-19 event later than 10 days after issuance of the authorization to
16-20 affirm, modify or set aside the authorization. The requirements of
16-21 Subsection (b) of this section shall be satisfied by the applicant
16-22 on or before such hearing date.]
16-23 [(g) The requirements of Section 26.022 of this code
16-24 relating to the time for notice, newspaper notice, and method of
16-25 giving a person notice do not apply to a hearing held on an
17-1 emergency permit under this section, but such general notice of the
17-2 hearing shall be given as the commission, under Subsections (c) and
17-3 (e) of this section, considers practicable under the circumstances.]
17-4 [(h) Temporary orders other than emergency orders require a
17-5 hearing before issuance of the order. The commission shall give
17-6 notice not less than 20 days before the date set for the hearing.]
17-7 SECTION 3. Subsection (a), Section 26.021, Water Code, is
17-8 amended to read as follows:
17-9 (a) The [Except for those hearings required to be held
17-10 before the commission under Section 26.0191(b) of this code, the]
17-11 commission may authorize the chief administrative law judge of the
17-12 State Office of Administrative Hearings to call and hold hearings
17-13 on any subject on which the commission may hold a hearing.
17-14 SECTION 4. Subsection (a), Section 26.022, Water Code, is
17-15 amended to read as follows:
17-16 (a) Except as otherwise provided in Sections 5.501, 5.504,
17-17 5.509, [26.0191] and 26.176 [of this code], the provisions of this
17-18 section apply to all hearings conducted in compliance with this
17-19 chapter.
17-20 SECTION 5. Section 26.354, Water Code, is amended to read as
17-21 follows:
17-22 Sec. 26.354. Emergency Orders. The commission
17-23 [(a) Notwithstanding any other provision of this chapter, the
17-24 executive director] may issue an emergency order [orders] to an
17-25 owner or operator of [the persons identified in Subsection (e) of
18-1 this section if it appears that:]
18-2 [(1) there is an actual or threatened release of a
18-3 regulated substance from] an underground or aboveground storage
18-4 tank under Section 5.510[; and]
18-5 [(2) the executive director determines that more
18-6 expeditious corrective action than is otherwise provided for under
18-7 this chapter is necessary to protect the public health and safety
18-8 or the environment from harm].
18-9 [(b) An order issued under Subsection (a) of this section
18-10 may prohibit a person from allowing or continuing the release or
18-11 threatened release and require the person to take the actions
18-12 necessary to eliminate the release or threatened release.]
18-13 [(c) An emergency order issued under this section shall be:]
18-14 [(1) mailed by certified mail, return receipt
18-15 requested, to each person identified in the order;]
18-16 [(2) hand delivered to each person identified in the
18-17 order; or]
18-18 [(3) on failure of service by certified mail or hand
18-19 delivery, served by publication one time in the Texas Register and
18-20 one time in a newspaper with general circulation in each county in
18-21 which any of the persons had a last known address.]
18-22 [(d) An emergency order issued under this section does not
18-23 require notice or an adjudicative hearing before its issuance. If
18-24 the executive director issues an order under this section, the
18-25 commission shall fix a time and place for a hearing to affirm,
19-1 modify, or set aside the emergency order issued by the executive
19-2 director. The hearing before the commission shall be held as soon
19-3 as practicable after the issuance of the emergency order.]
19-4 [(e) The executive director may issue orders under this
19-5 section to the following persons:]
19-6 [(1) the owner of an underground or aboveground
19-7 storage tank; or]
19-8 [(2) the operator of an underground or aboveground
19-9 storage tank.]
19-10 SECTION 6. Section 361.274, Health and Safety Code, is
19-11 amended to read as follows:
19-12 Sec. 361.274. No Prior Notice Concerning Administrative
19-13 Order. An administrative order under Section 361.272 does not
19-14 require prior notice or an adjudicative hearing before the
19-15 commission. An emergency administrative order may be issued under
19-16 Subchapter L, Chapter 5, Water Code.
19-17 SECTION 7. Section 361.301, Health and Safety Code, is
19-18 amended to read as follows:
19-19 Sec. 361.301. Emergency Order. [(a)] The commission may
19-20 issue an emergency mandatory, permissive, or prohibitory order
19-21 concerning an activity of solid waste management under its
19-22 jurisdiction under Section 5.512, Water Code, even if the activity
19-23 is not covered by a permit[, if the commission determines that an
19-24 emergency requiring immediate action to protect the public health
19-25 and safety or the environment exists].
20-1 [(b) The order may be issued without notice and hearing or
20-2 with notice and hearing the commission considers practicable under
20-3 the circumstances.]
20-4 [(c) If an emergency order is issued under this section
20-5 without a hearing, the commission shall set a time and place for a
20-6 hearing to be held in accordance with the rules of the commission
20-7 to affirm, modify, or set aside the emergency order.]
20-8 [(d) The requirements of Section 361.088 concerning public
20-9 notice do not apply to the hearing, but general notice of the
20-10 hearing shall be given in accordance with the rules of the
20-11 commission.]
20-12 SECTION 8. Section 366.016, Health and Safety Code, is
20-13 amended to read as follows:
20-14 Sec. 366.016. Emergency Orders. The [(a) If the]
20-15 commission or authorized agent may issue an emergency order
20-16 concerning an on-site sewage disposal system under Section 5.513,
20-17 Water Code [determines that an emergency exists and that the public
20-18 health or safety is endangered because of the operation of an
20-19 on-site sewage disposal system that does not comply with this
20-20 chapter or a rule adopted under this chapter, the commission or
20-21 authorized agent by order may:]
20-22 [(1) suspend the registration of the installer;]
20-23 [(2) regulate the on-site sewage disposal system; or]
20-24 [(3) both suspend the registration and regulate the
20-25 system].
21-1 [(b) The order may be issued without notice and hearing.]
21-2 [(c) If the emergency order is issued without a hearing, the
21-3 commission or authorized agent shall set a time and place for a
21-4 hearing to affirm, modify, or set aside the emergency order to be
21-5 held not later than the 30th day after the date on which the
21-6 emergency order is issued.]
21-7 [(d) General notice of the hearing shall be given in
21-8 accordance with the laws of this state and rules adopted by the
21-9 commission or authorized agent.]
21-10 [(e) The hearing shall be conducted in accordance with the
21-11 commission's rules or laws and rules governing the authorized
21-12 agent.]
21-13 SECTION 9. Section 382.026, Health and Safety Code, is
21-14 amended to read as follows:
21-15 Sec. 382.026. Orders Issued Under Emergencies. The
21-16 commission may issue an order under an air emergency under Section
21-17 5.514, Water Code. [(a) When it appears to the commission or the
21-18 executive director that there exists a generalized condition of air
21-19 pollution that creates an emergency requiring immediate action to
21-20 protect human health or safety, the commission or the executive
21-21 director shall, with the governor's concurrence, order any person
21-22 causing or contributing to the air pollution immediately to reduce
21-23 or discontinue the emission of air contaminants.]
21-24 [(b) If the commission or the executive director finds that
21-25 emissions from one or more sources are causing imminent danger to
22-1 human health or safety, but that there is not a generalized
22-2 condition of air pollution under Subsection (a), the commission or
22-3 the executive director may order the persons responsible for the
22-4 emissions immediately to reduce or discontinue the emissions.]
22-5 [(c) An order issued under this section must set a time and
22-6 place of a hearing to be held before the commission as soon after
22-7 the order is issued as practicable.]
22-8 [(d) Section 382.031, relating to notice of a hearing, does
22-9 not apply to a hearing under this section, but a general notice of
22-10 the hearing shall be given that is, in the judgment of the
22-11 commission or the executive director, practicable under the
22-12 circumstances. The commission shall affirm, modify, or set aside
22-13 the order not later than 24 hours after the hearing begins and
22-14 without adjournment of the hearing.]
22-15 [(e) This section does not limit any power that the governor
22-16 or other officer may have to declare an emergency and to act on the
22-17 basis of that declaration if the power is conferred by law or
22-18 inheres in the office.]
22-19 SECTION 10. Subsection (b), Section 382.030, Health and
22-20 Safety Code, is amended to read as follows:
22-21 (b) Except for hearings required to be held before the
22-22 commission under Section 5.504, Water Code [382.026], the
22-23 commission may authorize the executive director to:
22-24 (1) call and hold a hearing on any subject on which
22-25 the commission may hold a hearing; and
23-1 (2) delegate the authority to hold any hearing called
23-2 by the executive director to one or more commission employees.
23-3 SECTION 11. Subsection (e), Section 382.031, Health and
23-4 Safety Code, is amended to read as follows:
23-5 (e) This section applies to all hearings held under this
23-6 chapter except as otherwise specified by Section 382.017[, 382.026,
23-7 or 382.063].
23-8 SECTION 12. Section 382.063, Health and Safety Code, is
23-9 amended to read as follows:
23-10 Sec. 382.063. Issuance of Emergency Order Because of
23-11 Catastrophe. [(a)] The commission may issue an emergency order
23-12 because of catastrophe under Section 5.515, Water Code [or the
23-13 executive director, on delegation of authority from the commission,
23-14 by emergency order may authorize immediate action for the addition,
23-15 replacement, or repair of facilities or control equipment
23-16 necessitated by a catastrophe occurring in this state, and the
23-17 emission of air contaminants during the addition, replacement, or
23-18 repair of those facilities, if the actions and emissions are
23-19 otherwise precluded under this chapter].
23-20 [(b) An order issued under this section must:]
23-21 [(1) be limited to a reasonable time specified by the
23-22 order;]
23-23 [(2) authorize action only on:]
23-24 [(A) property on which the catastrophe occurred;
23-25 or]
24-1 [(B) other property that is owned by the owner
24-2 or operator of the damaged facility and that produces the same
24-3 intermediates, products, or by-products; and]
24-4 [(3) contain a schedule for submission of a complete
24-5 application under Section 382.051.]
24-6 [(c) Under Subsection (b)(2)(B), the person applying for an
24-7 emergency order must demonstrate that there will be no more than a
24-8 de minimis increase in the predicted concentration of the air
24-9 contaminants at or beyond the property line of the other property.
24-10 The commission shall review and act on an application submitted as
24-11 provided by Subsection (b)(3) without regard to construction
24-12 activity under an order under this section.]
24-13 [(d) To receive an emergency order under this section, a
24-14 person must submit a sworn application to the commission or
24-15 executive director. The application must contain any information
24-16 the commission requires and:]
24-17 [(1) a description of the catastrophe;]
24-18 [(2) a statement that:]
24-19 [(A) the construction and emissions are
24-20 essential to prevent loss of life, serious injury, severe property
24-21 damage, or severe economic loss not attributable to the applicant's
24-22 actions and are necessary for the addition, replacement, or repair
24-23 of a facility or control equipment necessitated by the catastrophe;]
24-24 [(B) there are no practicable alternatives to
24-25 the proposed construction and emissions; and]
25-1 [(C) the emissions will not cause or contribute
25-2 to air pollution;]
25-3 [(3) an estimate of the dates on which the proposed
25-4 construction or emissions, or both, will begin and end;]
25-5 [(4) an estimate of the date on which the facility
25-6 will begin operation; and]
25-7 [(5) a description of the quantity and type of air
25-8 contaminants proposed to be emitted.]
25-9 [(e) The commission or executive director may issue an
25-10 emergency order under this section after providing the notice and
25-11 opportunity for hearing that the commission or executive director
25-12 considers practicable under the circumstances. If the commission
25-13 requires notice and hearing before issuing the order, it shall give
25-14 notice not later than the 10th day before the date set for the
25-15 hearing.]
25-16 [(f) Notice of the issuance of an emergency order shall be
25-17 provided in accordance with commission rules.]
25-18 [(g) If the commission or executive director issues an
25-19 emergency order under this section without a hearing, the order
25-20 shall set a time and place for a hearing to be held before the
25-21 commission or its designee as soon after the emergency order is
25-22 issued as practicable.]
25-23 [(h) Section 382.031, relating to notice of a hearing, does
25-24 not apply to a hearing on an emergency order, but such general
25-25 notice of the hearing shall be given that in the judgment of the
26-1 commission or the executive director is practicable under the
26-2 circumstances.]
26-3 [(i) At or following the hearing, the commission shall
26-4 affirm, modify, or set aside the emergency order. A hearing on an
26-5 emergency order shall be conducted in accordance with Chapter 2001,
26-6 Government Code and commission rules.]
26-7 [(j) In this section, "catastrophe" means an unforeseen
26-8 event, including an act of God, an act of war, severe weather,
26-9 explosions, fire, or similar occurrences beyond the reasonable
26-10 control of the operator that makes a facility or its functionally
26-11 related appurtenances inoperable.]
26-12 SECTION 13. Section 401.056, Health and Safety Code, is
26-13 amended by adding Subsection (g) to read as follows:
26-14 (g) The commission by order or rule may delegate its
26-15 authority under this section to its executive director.
26-16 SECTION 14. Section 401.270, Health and Safety Code, is
26-17 amended to read as follows:
26-18 Sec. 401.270. Corrective Action and Measures. (a) If the
26-19 commission finds that by-product material or the operation by which
26-20 that by-product material is derived threatens the public health and
26-21 safety or the environment, the commission by order may require any
26-22 action, including a corrective measure, that is necessary to
26-23 correct or remove the threat.
26-24 (b) [The commission may issue an emergency order to a person
26-25 responsible for an activity, including a past activity, concerning
27-1 the recovery or processing of source material or the disposal of
27-2 by-product material if it appears that there is an actual or
27-3 threatened release of source material or by-product material that
27-4 presents an imminent and substantial danger to the public health
27-5 and safety or the environment, regardless of whether the activity
27-6 was lawful at the time. The emergency order may be issued without
27-7 notice or hearing.]
27-8 [(c) An emergency order may be issued under Subsection (b)
27-9 to:]
27-10 [(1) restrain the person from allowing or continuing
27-11 the release or threatened release; and]
27-12 [(2) require the person to take any action necessary
27-13 to provide and implement an environmentally sound remedial action
27-14 plan designed to eliminate the release or threatened release.]
27-15 [(d) An emergency order issued under Subsection (b) shall:]
27-16 [(1) be delivered to the person identified by the
27-17 order by certified mail, return receipt requested;]
27-18 [(2) be delivered by hand delivery to the person
27-19 identified by the order; or]
27-20 [(3) on failure of delivery of the order by certified
27-21 mail or hand delivery, be served on the person by publication:]
27-22 [(A) once in the Texas Register; and]
27-23 [(B) once in a newspaper of general circulation
27-24 in each county in which was located the last known address of a
27-25 person identified by the order.]
28-1 [(e)] The commission shall use the security provided by the
28-2 license holder to pay the costs of actions that are taken or that
28-3 are to be taken under this section. The commission shall send to
28-4 the comptroller a copy of its order together with necessary written
28-5 requests authorizing the comptroller to:
28-6 (1) enforce security supplied by the licensee;
28-7 (2) convert an amount of security into cash, as
28-8 necessary; and
28-9 (3) disburse from the security in the fund the amount
28-10 necessary to pay the costs.
28-11 (c) The commission may issue an emergency order under this
28-12 section as provided by Section 5.517, Water Code.
28-13 [(f) If the order issued by the commission pursuant to this
28-14 section is adopted without notice or hearing, the order shall set a
28-15 time, at least 10 but not more than 30 days following the date of
28-16 issuance of the emergency order, and a place for a hearing to be
28-17 held in accordance with the rules of the commission. As a result
28-18 of this hearing, the commission shall decide whether to affirm,
28-19 modify, or set aside the emergency order. All provisions of the
28-20 emergency order shall remain in force and effect during the
28-21 pendency of the hearing, unless otherwise altered by the
28-22 commission.]
28-23 SECTION 15. Subsection (f), Section 13.041, and Section
28-24 13.4133, Water Code, are repealed.
28-25 SECTION 16. (a) This Act takes effect September 1, 1997.
29-1 (b) Subchapter L, Chapter 5, Water Code, as added by this
29-2 Act, applies only to the issuance of an emergency or temporary
29-3 order concerning an act or occurrence that takes place on or after
29-4 September 1, 1997. The issuance of an emergency or temporary order
29-5 concerning an act or occurrence that takes place before September
29-6 1, 1997, is governed by the law in effect at the time the act or
29-7 occurrence took place, and the former law is continued in effect
29-8 for that purpose.
29-9 SECTION 17. The importance of this legislation and the
29-10 crowded condition of the calendars in both houses create an
29-11 emergency and an imperative public necessity that the
29-12 constitutional rule requiring bills to be read on three several
29-13 days in each house be suspended, and this rule is hereby suspended.