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.