1-1     By:  Bivins                                           S.B. No. 1874

 1-2           (In the Senate - Filed March 14, 1997; March 24, 1997, read

 1-3     first time and referred to Committee on Natural Resources;

 1-4     April 25, 1997, reported adversely, with favorable Committee

 1-5     Substitute by the following vote:  Yeas 8, Nays 0; April 25, 1997,

 1-6     sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1874                  By:  Bivins

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to the issuance of emergency and temporary orders and

1-11     permits by the Texas Natural Resource Conservation Commission;

1-12     imposing a civil penalty.

1-13           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-14           SECTION 1.  Chapter 5, Water Code, is amended by adding

1-15     Subchapter L to read as follows:

1-16                SUBCHAPTER L.  EMERGENCY AND TEMPORARY ORDERS

1-17           Sec. 5.501.  EMERGENCY AND TEMPORARY ORDER OR PERMIT;

1-18     TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITION.  (a)  For

1-19     the purposes and in the manner provided by this subchapter, the

1-20     commission:

1-21                 (1)  may issue a temporary or emergency mandatory,

1-22     permissive, or prohibitory order; and

1-23                 (2)  by temporary or emergency order may:

1-24                       (A)  issue a temporary permit; or

1-25                       (B)  temporarily suspend or amend a permit

1-26     condition.

1-27           (b)  The commission may issue an emergency order under this

1-28     subchapter after providing the notice and opportunity for hearing

1-29     that the commission considers practicable under the circumstances

1-30     or without notice or hearing.  Except as provided by Section 5.508,

1-31     notice must be given not later than the 10th day before the date

1-32     set for a hearing if the commission requires notice and hearing

1-33     before issuing the order.  The commission shall give notice not

1-34     later than the 20th day before the date set for a hearing on a

1-35     temporary order.

1-36           (c)  The commission by order or rule may delegate to the

1-37     executive director the authority to:

1-38                 (1)  receive applications and issue emergency orders

1-39     under this subchapter; and

1-40                 (2)  authorize, in writing, a representative or

1-41     representatives to act on the executive director's behalf under

1-42     this subchapter.

1-43           (d)  Chapter 2001, Government Code, does not apply to the

1-44     issuance of an emergency order under this subchapter without a

1-45     hearing.

1-46           (e)  A law under which the commission acts that requires

1-47     notice of hearing or that sets procedures for the issuance of

1-48     permits does not apply to a hearing on an emergency order issued

1-49     under this subchapter unless the law specifically requires notice

1-50     for an emergency order.  The commission shall give the general

1-51     notice of the hearing that the commission considers practicable

1-52     under the circumstances.

1-53           (f)  An emergency or temporary order issued under this

1-54     subchapter does not vest in the permit holder or recipient any

1-55     rights and expires in accordance with its terms.

1-56           (g)  The commission may prescribe rules and adopt fees

1-57     necessary to carry out and administer this subchapter.

1-58           Sec. 5.502.  APPLICATION FOR EMERGENCY OR TEMPORARY ORDER.  A

1-59     person other than the executive director or the executive

1-60     director's representative who desires an emergency or temporary

1-61     order under this subchapter must submit a sworn written application

1-62     to the commission.  The application must:

1-63                 (1)  describe the condition of emergency or other

1-64     condition justifying the issuance of the order;

 2-1                 (2)  allege facts to support the findings required

 2-2     under this subchapter;

 2-3                 (3)  estimate the dates on which the proposed order

 2-4     should begin and end;

 2-5                 (4)  describe the action sought and the activity

 2-6     proposed to be allowed, mandated, or prohibited; and

 2-7                 (5)  include any other statement or information

 2-8     required by this subchapter or by the commission.

 2-9           Sec. 5.503.  NOTICE OF ISSUANCE.  Notice of the issuance of

2-10     an emergency order shall be provided in accordance with commission

2-11     rules.

2-12           Sec. 5.504.  HEARING TO AFFIRM, MODIFY, OR SET ASIDE ORDER.

2-13     (a)  If the commission, the executive director, or the executive

2-14     director's representative issues an emergency order under this

2-15     subchapter without a hearing, the order shall set a time and place

2-16     for a hearing to affirm, modify, or set aside the emergency order

2-17     to be held before the commission or its designee as soon as

2-18     practicable after the order is issued.

2-19           (b)  At or following the hearing required under Subsection

2-20     (a), the commission shall affirm, modify, or set aside the

2-21     emergency order.

2-22           (c)  A hearing to affirm, modify, or set aside an emergency

2-23     order shall be conducted in accordance with Chapter 2001,

2-24     Government Code, and commission rules.  Commission rules concerning

2-25     a hearing to affirm, modify, or set aside an emergency order must

2-26     provide for presentation of evidence by the applicant under oath,

2-27     presentation of rebuttal evidence, and cross-examination of

2-28     witnesses.

2-29           Sec. 5.505.  TERM OF ORDER.  An emergency or  temporary order

2-30     issued under this subchapter must be limited to a reasonable time

2-31     specified by the order.  Except as otherwise provided by this

2-32     subchapter, the term of an emergency order may not exceed 180 days.

2-33     An emergency order may be renewed once for a period not to exceed

2-34     180 days.

2-35           Sec. 5.506.  EMERGENCY PERMIT TO DIVERT AND USE WATER;

2-36     AMENDMENT TO WATER RIGHT.  (a)  Except as provided by Section 5.508

2-37     and after notification to the governor, the commission by emergency

2-38     order may issue a permit to divert and use water or amend an

2-39     existing permit, certified filing, or certificate of adjudication

2-40     for an initial period not to exceed 120 days if the commission

2-41     finds that:

2-42                 (1)  emergency conditions exist that present an

2-43     imminent threat to the public health, safety, and welfare or the

2-44     environment and that override the necessity to comply with

2-45     established statutory procedures; and

2-46                 (2)  there is no feasible practicable alternative to

2-47     the emergency authorization.  The emergency authorization may be

2-48     renewed once for a period not to exceed 60 days.

2-49           (b)  The executive director may issue an emergency order if

2-50     an imminent threat to the public health, safety, and welfare or the

2-51     environment exists that requires emergency action before the

2-52     commission can take action under Subsection (a) and there is no

2-53     feasible alternative.  If the executive director issues an

2-54     emergency order under this subsection, the commission shall hold a

2-55     hearing as provided for in Section 5.504 as soon as practicable but

2-56     not later than 10 days after issuance of the order to affirm,

2-57     modify, or set aside the order.  The person desiring the emergency

2-58     order must comply with Section 5.504 before the executive director

2-59     may act on the request for emergency action.

2-60           (c)  The notice requirements of Section 11.132 relating to

2-61     the time for notice, newspaper notice, and method of giving a

2-62     person notice do not apply to a hearing held on an application for

2-63     an emergency order under this section.  The commission shall give

2-64     the general notice of the hearing that the commission considers

2-65     practicable under the circumstances.

2-66           Sec. 5.507.  EMERGENCY ORDER FOR TEMPORARY TRANSFER OF USE OF

2-67     WATER RIGHT.  (a)  The commission by emergency order may grant the

2-68     temporary transfer and use of all or part of a water right permit,

2-69     certified filing, or certificate of adjudication for other than

 3-1     domestic or municipal use to a retail or wholesale water supplier

 3-2     for public health and safety purposes.

 3-3           (b)  The commission may direct the applicant to timely pay

 3-4     the amounts for which the applicant may be potentially liable under

 3-5     this section and to fully indemnify and hold harmless the state,

 3-6     the executive director, and the commission from any and all

 3-7     liability for the order sought.  The commission may order bond or

 3-8     other surety in a form acceptable to the commission as a condition

 3-9     for an emergency order under this section.  The commission may not

3-10     grant an emergency authorization under this section that would

3-11     cause a violation of a federal regulation.

3-12           (c)  A person granted an emergency order under this section

3-13     is liable to the owner from whom the use is transferred for the

3-14     fair market value of the water transferred and for any damages

3-15     proximately caused by the transfer of use.  If, within 60 days of

3-16     the termination of the order, the parties do not agree on the

3-17     amount due, or if full payment is not made, either party may file a

3-18     complaint with the commission to determine the amount due.

3-19           (d)  The commission may use dispute resolution procedures for

3-20     a complaint filed under this section. After exhausting all

3-21     administrative remedies under this section, an owner from whom the

3-22     use is transferred may file suit to recover or determine the amount

3-23     due in a district court in the county where the owner resides or

3-24     has its headquarters.  The prevailing party in a suit filed under

3-25     this subsection is entitled to recover court costs and reasonable

3-26     attorney's fees.

3-27           Sec. 5.508.  EMERGENCY SUSPENSION OF PERMIT CONDITION

3-28     RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND

3-29     INSTREAM USES.  (a)  The commission by emergency or temporary order

3-30     may suspend a permit condition relating to beneficial inflows to

3-31     affected bays and estuaries and instream uses if the commission

3-32     finds that an emergency exists that cannot practicably be resolved

3-33     in another way.

3-34           (b)  The commission must give written notice of the proposed

3-35     suspension to the Parks and Wildlife Department before the

3-36     commission suspends a permit condition under this section.  The

3-37     commission shall give the Parks and Wildlife Department an

3-38     opportunity to submit comments on the proposed suspension for a

3-39     period of 72 hours from receipt of the notice and must consider

3-40     those comments before issuing an order imposing the suspension.

3-41           (c)  The commission may suspend a permit condition under this

3-42     section without notice except as required by Subsection (b).

3-43           (d)  The commission shall notify all affected persons

3-44     immediately by publication.

3-45           Sec. 5.509.  EMERGENCY WORKS SAFETY ORDER.  The commission

3-46     may issue a mandatory or prohibitory emergency order directing the

3-47     owner of a dam, levee, or other water-storage or flood-control work

3-48     to repair, modify, maintain, dewater, or remove a work if the

3-49     commission finds that:

3-50                 (1)  the existing condition of the work is causing or

3-51     will cause extensive or severe property damage or economic loss to

3-52     others or is posing an immediate and serious threat to human life

3-53     or health; and

3-54                 (2)  other procedures available to the commission to

3-55     remedy or prevent the occurrence will result in unreasonable delay.

3-56           Sec. 5.510.  EMERGENCY ORDER TO COMPEL WATER OR SEWER

3-57     SERVICE.  The commission may issue an emergency order to:

3-58                 (1)  compel a water or sewer service provider that has

3-59     obtained or is required to obtain a certificate of public

3-60     convenience and necessity to provide continuous and adequate water

3-61     or sewer service, or both, if the commission finds that

3-62     discontinuance of service is imminent or has occurred because of

3-63     the service provider's actions or failure to act;

3-64                 (2)  compel a retail public utility to provide an

3-65     emergency interconnection with a neighboring retail public utility

3-66     to provide temporary water or sewer service, or both, if the

3-67     commission finds that discontinuance of or serious impairment to

3-68     service is imminent or has occurred; and

3-69                 (3)  establish reasonable compensation for temporary

 4-1     service required under Subdivision (2) and allow the retail public

 4-2     utility receiving the service to make a temporary adjustment to its

 4-3     rate structure to ensure proper payment.

 4-4           Sec. 5.511.  EMERGENCY ORDER FOR OPERATION OF UTILITY THAT

 4-5     DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.

 4-6     The commission may issue an emergency order appointing a willing

 4-7     person to temporarily manage and operate a utility under Section

 4-8     13.4132.  Notice of the action is adequate if the notice is mailed

 4-9     or hand delivered to the last known address of the utility's

4-10     headquarters.

4-11           Sec. 5.512.  EMERGENCY ORDER FOR RATE INCREASE IN CERTAIN

4-12     SITUATIONS.  (a)  Notwithstanding the requirements of Section

4-13     13.187, the commission may authorize an emergency rate increase for

4-14     a utility for which a person has been appointed under Section 5.511

4-15     or 13.4132 or for which a receiver has been appointed under Section

4-16     13.412 if the increase is necessary to ensure the provision of

4-17     continuous and adequate services to the utility's customers.

4-18           (b)  A utility that receives an emergency rate increase under

4-19     this section shall provide to each ratepayer notice of the increase

4-20     as soon as possible, but not later than the first utility bill

4-21     issued at the new rate.

4-22           (c)  Notwithstanding Section 5.505, an order may be issued

4-23     under this section for a term not to exceed 15 months.  The

4-24     commission shall schedule a hearing to establish a final rate

4-25     within 15 months after the date on which an emergency rate increase

4-26     takes effect.  The additional revenues collected under an emergency

4-27     rate increase are subject to refund if the commission finds that

4-28     the rate increase was larger than necessary to ensure continuous

4-29     and adequate service.

4-30           Sec. 5.513.  TEMPORARY OR EMERGENCY ORDER RELATING TO

4-31     DISCHARGE OF WASTE OR POLLUTANTS.  (a)  The commission may issue an

4-32     emergency or temporary order relating to the discharge of waste or

4-33     pollutants into or adjacent to water in the state if:

4-34                 (1)  the order is necessary to enable action to be

4-35     taken more expeditiously than is otherwise provided by Chapter 26

4-36     to effectuate the policy and purposes of that chapter; and

4-37                 (2)  the commission finds that:

4-38                       (A)  the discharge is unavoidable to:

4-39                             (i)  prevent loss of life, serious injury,

4-40     or severe property damage;

4-41                             (ii)  prevent severe economic loss or

4-42     ameliorate serious drought conditions, to the extent consistent

4-43     with the requirements for United States Environmental Protection

4-44     Agency authorization of a state permit program; or

4-45                             (iii)  make necessary and unforeseen

4-46     repairs to a facility;

4-47                       (B)  there is no feasible alternative to the

4-48     proposed discharge;

4-49                       (C)  the discharge will not cause significant

4-50     hazard to human life and health, unreasonable damage to the

4-51     property of persons other than the applicant, or unreasonable

4-52     economic loss to persons other than the applicant; and

4-53                       (D)  the discharge will not present a significant

4-54     hazard to the uses that will be made of the receiving water after

4-55     the discharge.

4-56           (b)  A person desiring a temporary or emergency order under

4-57     this section must submit an application under Section 5.502 that,

4-58     in addition to complying with that section:

4-59                 (1)  states the volume and quality of the proposed

4-60     discharge;

4-61                 (2)  explains the measures proposed to minimize the

4-62     volume and duration of the discharge; and

4-63                 (3)  explains the measures proposed to maximize the

4-64     waste treatment efficiency of units not taken out of service or

4-65     facilities provided for interim use.

4-66           Sec. 5.514.  EMERGENCY ORDER CONCERNING UNDERGROUND OR

4-67     ABOVEGROUND STORAGE TANKS.  (a)  The commission may issue an

4-68     emergency order to the owner or operator of an underground or

4-69     aboveground storage tank regulated under Chapter 26 prohibiting the

 5-1     owner or operator from allowing or continuing a release or

 5-2     threatened release and requiring the owner or operator to take the

 5-3     actions necessary to eliminate the release or threatened release,

 5-4     if the commission finds that:

 5-5                 (1)  there is an actual or threatened release of a

 5-6     regulated substance; and

 5-7                 (2)  more expeditious action than is otherwise provided

 5-8     under Chapter 26 is necessary to protect the public health or

 5-9     safety or the environment from harm.

5-10           (b)  An emergency order issued under this section must be:

5-11                 (1)  mailed by certified mail, return receipt

5-12     requested, to each person identified in the order;

5-13                 (2)  hand delivered to each person identified in the

5-14     order; or

5-15                 (3)  on failure of service by certified mail or hand

5-16     delivery, served by publication one time in the Texas Register and

5-17     one time in a newspaper with general circulation in each county in

5-18     which any of the persons identified in the order has a last known

5-19     address.

5-20           Sec. 5.515.  EMERGENCY ADMINISTRATIVE ORDER TO PERSON

5-21     RESPONSIBLE FOR SOLID WASTE.  The commission or the executive

5-22     director may issue an emergency administrative order under Section

5-23     361.272 or 361.274, Health and Safety Code, in the manner provided

5-24     by this subchapter.

5-25           Sec. 5.516.  EMERGENCY ORDER CONCERNING ACTIVITY OF SOLID

5-26     WASTE MANAGEMENT.  The commission may issue an emergency order

5-27     concerning an activity of solid waste management under the

5-28     commission's jurisdiction, even if that activity is not covered by

5-29     a permit, if the commission finds that an emergency requiring

5-30     immediate action to protect the public health and safety exists.

5-31           Sec. 5.517.  EMERGENCY ORDER CONCERNING ON-SITE SEWAGE

5-32     DISPOSAL SYSTEM.  (a)  The commission may issue an emergency order

5-33     suspending the registration of the installer of an on-site sewage

5-34     disposal system, regulating an on-site sewage disposal system, or

5-35     both, if the commission finds that an emergency exists and that the

5-36     public health and safety is endangered because of the operation of

5-37     an on-site sewage disposal system that does not comply with Chapter

5-38     366, Health and Safety Code, or a rule adopted under that chapter.

5-39           (b)  If an order issued under this section is adopted without

5-40     notice or hearing, the order must set a time, not more than 30 days

5-41     after the order is issued, for a hearing to affirm, modify, or set

5-42     aside the order.

5-43           Sec. 5.518.  ORDER ISSUED UNDER AIR EMERGENCY.  (a)  If the

5-44     commission finds that a generalized condition of air pollution

5-45     exists that creates an emergency requiring immediate action to

5-46     protect human health or safety, the commission, with the

5-47     concurrence of the governor, may issue an emergency order requiring

5-48     a person causing or contributing to the air pollution to

5-49     immediately reduce or discontinue the emission of air contaminants.

5-50           (b)  If the commission finds that emissions from one or more

5-51     sources are causing imminent danger to human health or safety but

5-52     that there is not a generalized condition of air pollution under

5-53     Subsection (a), the commission may issue an emergency order

5-54     requiring the persons responsible for the emissions to immediately

5-55     reduce or discontinue the emissions.

5-56           (c)  Notwithstanding Section 5.504, the commission shall

5-57     affirm, modify, or set aside an order issued under this section not

5-58     later than 24 hours after the hearing under that section begins and

5-59     without adjournment of the hearing.

5-60           (d)  This section does not limit any power that the governor

5-61     or another officer may have to declare an emergency and to act on

5-62     that declaration if the power is conferred by law or inheres in the

5-63     office.

5-64           Sec. 5.519.  EMERGENCY ORDER BECAUSE OF CATASTROPHE.

5-65     (a)  The commission may issue an emergency order authorizing

5-66     immediate action for the addition, replacement, or repair of

5-67     facilities or control equipment necessitated by a catastrophe

5-68     occurring in this state and the emission of air contaminants during

5-69     the addition, replacement, or repair of those facilities if the

 6-1     actions and emissions are otherwise precluded under Chapter 382,

 6-2     Health and Safety Code.

 6-3           (b)  An order issued under this section:

 6-4                 (1)  may authorize action only on:

 6-5                       (A)  property on which a catastrophe has

 6-6     occurred; or

 6-7                       (B)  other property that is owned by the owner or

 6-8     operator of the damaged facility and that produces the same

 6-9     intermediates, products, or by-products; and

6-10                 (2)  must contain a schedule for submitting a complete

6-11     application for a permit under Section 382.0518, Health and Safety

6-12     Code.

6-13           (c)  The person applying for an emergency order must

6-14     demonstrate that there will be no more than a de minimis increase

6-15     in the predicted concentration of air contaminants at or beyond the

6-16     property line of the other property on which action is authorized

6-17     under Subsection (b)(1)(B).  The commission shall review and act on

6-18     an application submitted as provided by Subsection (b)(2) without

6-19     regard to construction activity under an order under this section.

6-20           (d)  An applicant desiring an emergency order under this

6-21     section must submit an application under Section 5.502 that, in

6-22     addition to complying with that section:

6-23                 (1)  describes the catastrophe;

6-24                 (2)  states that:

6-25                       (A)  the construction and emissions are essential

6-26     to prevent loss of life, serious injury, severe property damage, or

6-27     severe economic loss not attributable to the applicant's actions

6-28     and are necessary for the addition, replacement, or repair of a

6-29     facility or control equipment necessitated by the catastrophe;

6-30                       (B)  there is no practicable alternative to the

6-31     proposed construction and emissions; and

6-32                       (C)  the emissions will not cause or contribute

6-33     to air pollution;

6-34                 (3)  estimates the dates on which the proposed

6-35     construction or emissions, or both, will begin and end;

6-36                 (4)  estimates the date on which the facility will

6-37     begin operation; and

6-38                 (5)  describes the quantity and type of air

6-39     contaminants proposed to be emitted.

6-40           (e)  In this section, "catastrophe" means an unforeseen

6-41     event, including an act of God, an act of war, severe weather,

6-42     explosions, fire, or similar occurrences beyond the reasonable

6-43     control of the operator, that makes a facility or its related

6-44     appurtenances inoperable.

6-45           Sec. 5.520.  EMERGENCY ORDER UNDER SECTION 401.056, HEALTH

6-46     AND SAFETY CODE.  The commission may issue an emergency order under

6-47     Section 401.056, Health and Safety Code, in the manner provided by

6-48     this subchapter.

6-49           Sec. 5.521.  EMERGENCY ORDERS FOR CORRECTIVE ACTION AND

6-50     MEASURES.  (a)  The commission may issue an emergency order under

6-51     Section 401.270, Health and Safety Code, to a person responsible

6-52     for an activity, including a past activity, concerning the recovery

6-53     or processing of source material or the disposal of by-product

6-54     material that requires any action, including a corrective measure

6-55     that is necessary to correct or remove the threat, if it appears

6-56     that there is an actual or threatened release of source material or

6-57     by-product material that presents an imminent and substantial

6-58     danger to the public health and safety or the environment,

6-59     regardless of whether the activity was lawful at the time.

6-60           (b)  An emergency order may be issued under this section to:

6-61                 (1)  restrain the person from allowing or continuing

6-62     the release; and

6-63                 (2)  require the person to take any action necessary to

6-64     provide and implement an environmentally sound remedial action plan

6-65     designed to eliminate the release or threatened release.

6-66           (c)  An emergency order issued under this section must be:

6-67                 (1)  mailed by certified mail, return receipt

6-68     requested, to each person identified in the order;

6-69                 (2)  hand delivered to each person identified in the

 7-1     order; or

 7-2                 (3)  on failure of service by certified mail or hand

 7-3     delivery, served by publication one time in the Texas Register and

 7-4     one time in a newspaper with general circulation in each county in

 7-5     which any of the persons identified in the order has a last known

 7-6     address.

 7-7           (d)  If an order issued under this section is adopted without

 7-8     notice or hearing, the order must set a time, at least 10 but not

 7-9     more than 30 days after the date the order is issued, for a hearing

7-10     to affirm, modify, or set aside the order.  All provisions of the

7-11     order remain in effect during the pendency of the hearing unless

7-12     otherwise altered by the commission.

7-13           SECTION 2.  Subsections (d), (e), and (f), Section 12.052,

7-14     Water Code, are amended to read as follows:

7-15           (d)  The commission may issue an emergency works safety order

7-16     under Section 5.509.  [If the commission determines that the

7-17     existing condition of the dam is creating or will cause extensive

7-18     or severe property damage or economic loss to others or is posing

7-19     an immediate and serious threat to human life or health and that

7-20     other procedures available to the commission to remedy or prevent

7-21     the occurrence of the situation will result in unreasonable delay,

7-22     the commission may issue an emergency order, either mandatory or

7-23     prohibitory in nature, directing the owner of a dam to repair,

7-24     modify, maintain, dewater, or remove the dam which the commission

7-25     determines is unsafe.  The emergency order may be issued without

7-26     notice to the dam owner or with notice the commission considers

7-27     practicable under the circumstances.  The notice does not have to

7-28     comply with Chapter 2001, Government Code.]

7-29           (e)  [If the commission issues an emergency order under

7-30     authority of this section without notice to the dam owner, the

7-31     commission shall fix a time and place for a hearing which shall be

7-32     held as soon as practicable to affirm, modify, or set aside the

7-33     emergency order.  The notice does not have to comply with Chapter

7-34     2001, Government Code.  If the nature of the commission's action

7-35     requires further proceedings, those proceedings shall be conducted

7-36     as appropriate under the Administrative Procedure and Texas

7-37     Register Act, as amended (Article 6252-13a, Vernon's Texas Civil

7-38     Statutes).]

7-39           [(f)]  Nothing in this section or in rules or orders made by

7-40     the commission shall be construed to relieve an owner or operator

7-41     of a dam or reservoir of the legal duties, obligations, or

7-42     liabilities incident to ownership or operation.

7-43           SECTION 3.  Subsection (d), Section 13.041, Water Code, is

7-44     amended to read as follows:

7-45           (d)  The commission may issue an emergency order to compel

7-46     water or sewer service under Section 5.510 [orders, with or without

7-47     a hearing:]

7-48                 [(1)  to compel a water or sewer service provider that

7-49     has obtained or is required to obtain a certificate of public

7-50     convenience and necessity to provide continuous and adequate water

7-51     service, sewer service, or both, if the discontinuance of the

7-52     service is imminent or has occurred because of the service

7-53     provider's actions or failure to act; and]

7-54                 [(2)  to compel a retail public utility to provide an

7-55     emergency interconnection with a neighboring retail public utility

7-56     for the provision of temporary water or sewer service, or both, for

7-57     not more than 90 days if service discontinuance or serious

7-58     impairment in service is imminent or has occurred].

7-59           SECTION 4.  Section 13.253, Water Code, is amended to read as

7-60     follows:

7-61           Sec. 13.253.  Improvements in Service; Interconnecting

7-62     Service.  After notice and hearing, the commission may:

7-63                 (1)  order any retail public utility that is required

7-64     by law to possess a certificate of public convenience and necessity

7-65     to provide specified improvements in its service in a defined area

7-66     if service in that area is inadequate or is substantially inferior

7-67     to service in a comparable area and it is reasonable to require the

7-68     retail public utility to provide the improved service;

7-69                 (2)  order two or more public utilities or water supply

 8-1     or sewer service corporations to establish specified facilities for

 8-2     the interconnecting service; or

 8-3                 (3)  issue an emergency order to compel water or sewer

 8-4     service, with or without a hearing, under Section 5.510 [13.041 of

 8-5     this code].

 8-6           SECTION 5.  Subsection (b), Section 13.4132, Water Code, is

 8-7     amended to read as follows:

 8-8           (b)  The commission by emergency order issued under Section

 8-9     5.511 may appoint a person under this section and may authorize an

8-10     emergency rate increase under Section 5.512 [by emergency order,

8-11     and notice of the action is adequate if the notice is mailed or

8-12     hand-delivered to the last known address of the utility's

8-13     headquarters].

8-14           SECTION 6.  Section 16.236, Water Code, is amended to read as

8-15     follows:

8-16           Sec. 16.236.  CONSTRUCTION OF LEVEE WITHOUT APPROVAL OF

8-17     PLANS; LEVEE SAFETY.  (a)  No person may construct, attempt to

8-18     construct, cause to be constructed, maintain, or cause to be

8-19     maintained any levee or other such improvement on, along, or near

8-20     any stream of this state that is subject to floods, freshets, or

8-21     overflows so as to control, regulate, or otherwise change the

8-22     floodwater of the stream without first obtaining approval of the

8-23     plans by the commission.

8-24           (b)  The commission shall make and enforce rules and orders

8-25     and shall perform any other act necessary to provide for the safe

8-26     construction, maintenance, repair, or removal of a levee located in

8-27     this state.

8-28           (c)  If the owner of a levee that is required to be

8-29     constructed, reconstructed, repaired, or removed in order to comply

8-30     with the rules adopted and orders issued under Subsection (b)

8-31     wilfully fails or refuses to comply within the 30-day period

8-32     following the date of the commission's order to do so or if a

8-33     person wilfully fails to comply with any rule or other order issued

8-34     by the commission under this section within the 30-day period

8-35     following the effective date of the order, the person is liable for

8-36     a penalty of not more than $25,000 a day for each day the person

8-37     continues to violate this section.  The state may bring suit to

8-38     recover the penalty in the district court of Travis County.

8-39           (d)  The commission may issue an emergency works safety order

8-40     under Section 5.509.

8-41           (e)  Nothing in this section or in rules adopted or orders

8-42     issued by the commission under this section relieves an owner or

8-43     operator of a levee of a legal duty, obligation, or liability

8-44     incident to ownership or operation.  [Any person who violates any

8-45     provision of this section is guilty of a misdemeanor and upon

8-46     conviction is punishable by a fine of not more than $100.  A

8-47     separate offense is committed each day a structure constructed in

8-48     violation of this section is maintained.]

8-49           [(c)  At the request of the executive director, the attorney

8-50     general shall file suit in a district court of Travis County to

8-51     enjoin any violation or threatened violation of this section.  In

8-52     the suit, the attorney general may seek to have the illegal levee

8-53     or other improvement removed and the preexisting conditions

8-54     restored and may also collect civil penalties of up to $100 a day

8-55     for each day a violation occurs.]

8-56           [(d)  This section does not apply to:]

8-57                 [(1)  dams permitted by the commission or recognized as

8-58     valid by final decree in any proceeding begun under Subchapter G,

8-59     Chapter 11, of this code;]

8-60                 [(2)  dams authorized by Section 11.142 of this code;]

8-61                 [(3)  a levee or other improvement within the corporate

8-62     limits of a city or town provided:  (a) plans for the construction

8-63     or maintenance or both must be approved by the city or town as a

8-64     condition precedent to starting the project and (b) the city or

8-65     town requires that such plans be in substantial compliance with

8-66     rules and standards adopted by the commission; or]

8-67                 [(4)  a levee or other improvement within the

8-68     boundaries of any political subdivision which has qualified for the

8-69     National Flood Insurance Program as authorized by the National

 9-1     Flood Insurance Act of 1968 (Title 42, U.S.C., Sections 4001-4127)

 9-2     provided:  (a) plans for the construction or maintenance or both

 9-3     must be approved by the political subdivision which is

 9-4     participating in the national flood insurance program as a

 9-5     condition precedent to starting the project and (b) the political

 9-6     subdivision requires that such plans be in substantial compliance

 9-7     with rules and standards adopted by the commission;]

 9-8                 [(5)  projects implementing soil and water conservation

 9-9     practices set forth in a conservation plan with a landowner or

9-10     operator and approved by the governing board of a soil and water

9-11     conservation district organized under the State Soil Conservation

9-12     Law, as amended (Article 165a-4, Vernon's Texas Civil Statutes),

9-13     provided that the governing board finds the practices do not

9-14     significantly affect stream flooding conditions on, along, or near

9-15     a state stream.]

9-16           [(e)  On projects located within the corporate limits of a

9-17     city or town or within the boundaries of any political subdivision

9-18     which are exempt from the provisions of this section by Subdivision

9-19     (3) or (4) of Subsection (d) above, any person whose property is

9-20     located outside of the corporate limits of such city or town or of

9-21     the boundaries of such a political subdivision and whose property

9-22     is affected or potentially affected by the effect of the project on

9-23     the floodwaters of the stream may appeal the decision of such

9-24     political subdivision.  The appeal shall be in writing and shall

9-25     specify the grounds therefor and a copy shall be sent by certified

9-26     mail to the project applicant and to the city or town or such

9-27     political subdivision.  The timely filing of such an appeal with

9-28     the executive director suspends the decision of the city or town or

9-29     political subdivision until a final decision is rendered by the

9-30     commission.  The executive director shall review the complaint and

9-31     investigate the facts surrounding the nature of the complaint.  If

9-32     the executive director finds that the complaint is frivolous or

9-33     nonmeritorious or made solely for purposes of harassment or delay,

9-34     then he shall dismiss the appeal.  Otherwise, the executive

9-35     director shall refer the appeal to the commission which shall after

9-36     due notice hold a hearing to determine whether the project should

9-37     be approved using the standards established by the commission and

9-38     shall hear such appeal de novo under the procedural rules

9-39     established by the commission for other reclamation projects.]

9-40           SECTION 7.  Section 26.0191, Water Code, is amended to read

9-41     as follows:

9-42           Sec. 26.0191.  TEMPORARY OR [AND] EMERGENCY ORDER RELATING

9-43     [ORDERS AND AUTHORIZATIONS] TO DISCHARGE OF WASTE OR POLLUTANTS

9-44     [UNTREATED OR PARTIALLY TREATED WASTEWATER].  [(a)]  The commission

9-45     may issue a temporary or emergency order [orders] relating to the

9-46     discharge of waste or pollutants under Section 5.513 [when this is

9-47     necessary to enable action to be taken more expeditiously than is

9-48     otherwise provided by this chapter to effectuate the policy and

9-49     purposes of this chapter].

9-50           [(b)  A person desiring to obtain a temporary or emergency

9-51     order to discharge waste or pollutants, including untreated or

9-52     partially treated wastewater, into or adjacent to water in this

9-53     state shall submit a sworn application to the commission containing

9-54     the following information and any other information the commission

9-55     requires:]

9-56                 [(1)  a statement that the discharge is unavoidable to

9-57     prevent loss of life, serious injury, severe property damage, or

9-58     severe economic loss, or to make necessary and unforeseen repairs

9-59     to a facility, that there are no feasible alternatives to the

9-60     proposed discharge, and that the discharge will not cause

9-61     significant hazard to human life and health, unreasonable damage to

9-62     property of persons other than the applicant, or unreasonable

9-63     economic loss to persons other than the applicant;]

9-64                 [(2)  a statement that the proposed discharge will not

9-65     present a significant hazard to the uses that may be made of the

9-66     receiving water after the discharge;]

9-67                 [(3)  an estimate of the dates on which the proposed

9-68     discharge will begin and end;]

9-69                 [(4)  a statement of the volume and quality of the

 10-1    proposed discharge;]

 10-2                [(5)  an explanation of measures proposed to minimize

 10-3    the volume and duration of the discharge; and]

 10-4                [(6)  an explanation of measures proposed to maximize

 10-5    the waste treatment efficiency of units not taken out of service or

 10-6    facilities provided for interim use.]

 10-7          [(c)  The commission may issue emergency orders relating to

 10-8    the discharge of waste or pollutants without notice and hearing, or

 10-9    with such notice and hearing as the commission considers

10-10    practicable under the circumstances, only if the commission finds

10-11    the applicant's statement made under Subsection (b)(1) of this

10-12    section to be correct.]

10-13          [(d)  If the commission issues an emergency order under this

10-14    authority without a hearing, the order shall fix a time and place

10-15    for a hearing to be held before the commission, which shall be held

10-16    as soon after the emergency order is issued as is practicable.]

10-17          [(e)  At the hearing, the commission shall affirm, modify, or

10-18    set aside the emergency order.  Any hearing on an emergency order

10-19    shall be conducted in accordance with Chapter 2001, Government

10-20    Code, or the rules of the commission.  Any set of commission rules

10-21    concerning a hearing on an emergency order must include provisions

10-22    for presentation of evidence by the applicant under oath,

10-23    presentation of rebuttal evidence, and cross-examination of

10-24    witnesses.]

10-25          [(f)  If emergency conditions exist which make it necessary

10-26    to take action more expeditiously than is otherwise provided by

10-27    this section, the executive director may authorize the discharge of

10-28    untreated or partially treated wastewater from a permitted facility

10-29    into or adjacent to water in the state if he determines that the

10-30    discharge is unavoidable to prevent loss of life, serious injury,

10-31    severe property damage, or severe economic loss, or to make

10-32    necessary and unforeseen repairs to the facility, that there are no

10-33    feasible alternatives to the discharge, and that the discharge will

10-34    not cause significant hazard to human life and health, unreasonable

10-35    damage to property of persons other than the applicant, or

10-36    unreasonable economic loss to persons other than the applicant.  If

10-37    the executive director issues an authorization to discharge under

10-38    this authority, the commission shall hold a hearing as provided for

10-39    in Subsection (d) of this section as soon as practicable but in no

10-40    event later than 10 days after issuance of the authorization to

10-41    affirm, modify or set aside the authorization.  The requirements of

10-42    Subsection (b) of this section shall be satisfied by the applicant

10-43    on or before such hearing date.]

10-44          [(g)  The requirements of Section 26.022 of this code

10-45    relating to the time for notice, newspaper notice, and method of

10-46    giving a person notice do not apply to a hearing held on an

10-47    emergency permit under this section, but such general notice of the

10-48    hearing shall be given as the commission, under Subsections (c) and

10-49    (e) of this section, considers practicable under the circumstances.]

10-50          [(h)  Temporary orders other than emergency orders require a

10-51    hearing before issuance of the order.  The commission shall give

10-52    notice not less than 20 days before the date set for the hearing.]

10-53          SECTION 8.  Subsection (a), Section 26.021, Water Code, is

10-54    amended to read as follows:

10-55          (a)  The [Except for those hearings required to be held

10-56    before the commission under Section 26.0191(b) of this code, the]

10-57    commission may authorize the chief administrative law judge of the

10-58    State Office of Administrative Hearings to call and hold hearings

10-59    on any subject on which the commission may hold a hearing.

10-60          SECTION 9.  Subsection (a), Section 26.022, Water Code, is

10-61    amended to read as follows:

10-62          (a)  Except as otherwise provided in Sections 5.501, 5.504,

10-63    5.513, [26.0191] and 26.176 [of this code], the provisions of this

10-64    section apply to all hearings conducted in compliance with this

10-65    chapter.

10-66          SECTION 10.  Section 26.354, Water Code, is amended to read

10-67    as follows:

10-68          Sec. 26.354.  Emergency Orders.  The commission

10-69    [(a)  Notwithstanding any other provision of this chapter, the

 11-1    executive director] may issue an emergency order [orders] to an

 11-2    owner or operator of [the persons identified in Subsection (e) of

 11-3    this section if it appears that:]

 11-4                [(1)  there is an actual or threatened release of a

 11-5    regulated substance from] an underground or aboveground storage

 11-6    tank under Section 5.514[; and]

 11-7                [(2)  the executive director determines that more

 11-8    expeditious corrective action than is otherwise provided for under

 11-9    this chapter is necessary to protect the public health and safety

11-10    or the environment from harm].

11-11          [(b)  An order issued under Subsection (a) of this section

11-12    may prohibit a person from allowing or continuing the release or

11-13    threatened release and require the person to take the actions

11-14    necessary to eliminate the release or threatened release.]

11-15          [(c)  An emergency order issued under this section shall be:]

11-16                [(1)  mailed by certified mail, return receipt

11-17    requested, to each person identified in the order;]

11-18                [(2)  hand delivered to each person identified in the

11-19    order; or]

11-20                [(3)  on failure of service by certified mail or hand

11-21    delivery, served by publication one time in the Texas Register and

11-22    one time in a newspaper with general circulation in each county in

11-23    which any of the persons had a last known address.]

11-24          [(d)  An emergency order issued under this section does not

11-25    require notice or an adjudicative hearing before its issuance.  If

11-26    the executive director issues an order under this section, the

11-27    commission shall fix a time and place for a hearing to affirm,

11-28    modify, or set aside the emergency order issued by the executive

11-29    director.  The hearing before the commission shall be held as soon

11-30    as practicable after the issuance of the emergency order.]

11-31          [(e)  The executive director may issue orders under this

11-32    section to the following persons:]

11-33                [(1)  the owner of an underground or aboveground

11-34    storage tank; or]

11-35                [(2)  the operator of an underground or aboveground

11-36    storage tank.]

11-37          SECTION 11.  Section 361.274, Health and Safety Code, is

11-38    amended to read as follows:

11-39          Sec. 361.274.  No Prior Notice Concerning Administrative

11-40    Order.  An administrative order under Section 361.272 does not

11-41    require prior notice or an adjudicative hearing before the

11-42    commission.  An emergency administrative order may be issued under

11-43    Subchapter L, Chapter 5, Water Code.

11-44          SECTION 12.  Section 361.301, Health and Safety Code, is

11-45    amended to read as follows:

11-46          Sec. 361.301.  Emergency Order.  [(a)]  The commission may

11-47    issue an emergency mandatory, permissive, or prohibitory order

11-48    concerning an activity of solid waste management under its

11-49    jurisdiction under Section 5.516, Water Code, even if the activity

11-50    is not covered by a permit[, if the commission determines that an

11-51    emergency requiring immediate action to protect the public health

11-52    and safety or the environment exists].

11-53          [(b)  The order may be issued without notice and hearing or

11-54    with notice and hearing the commission considers practicable under

11-55    the circumstances.]

11-56          [(c)  If an emergency order is issued under this section

11-57    without a hearing, the commission shall set a time and place for a

11-58    hearing to be held in accordance with the rules of the commission

11-59    to affirm, modify, or set aside the emergency order.]

11-60          [(d)  The requirements of Section 361.088 concerning public

11-61    notice do not apply to the hearing, but general notice of the

11-62    hearing shall be given in accordance with the rules of the

11-63    commission.]

11-64          SECTION 13.  Section 366.016, Health and Safety Code, is

11-65    amended to read as follows:

11-66          Sec. 366.016.  Emergency Orders.  The [(a)  If the]

11-67    commission or authorized agent may issue an emergency order

11-68    concerning an on-site sewage disposal system under Section 5.517,

11-69    Water Code [determines that an emergency exists and that the public

 12-1    health or safety is endangered because of the operation of an

 12-2    on-site sewage disposal system that does not comply with this

 12-3    chapter or a rule adopted under this chapter, the commission or

 12-4    authorized agent by order may:]

 12-5                [(1)  suspend the registration of the installer;]

 12-6                [(2)  regulate the on-site sewage disposal system; or]

 12-7                [(3)  both suspend the registration and regulate the

 12-8    system].

 12-9          [(b)  The order may be issued without notice and hearing.]

12-10          [(c)  If the emergency order is issued without a hearing, the

12-11    commission or authorized agent shall set a time and place for a

12-12    hearing to affirm, modify, or set aside the emergency order to be

12-13    held not later than the 30th day after the date on which the

12-14    emergency order is issued.]

12-15          [(d)  General notice of the hearing shall be given in

12-16    accordance with the laws of this state and rules adopted by the

12-17    commission or authorized agent.]

12-18          [(e)  The hearing shall be conducted in accordance with the

12-19    commission's rules or laws and rules governing the authorized

12-20    agent.]

12-21          SECTION 14.  Section 382.026, Health and Safety Code, is

12-22    amended to read as follows:

12-23          Sec. 382.026.  Orders Issued Under Emergencies.  The

12-24    commission may issue an order under an air emergency under Section

12-25    5.518, Water Code. [(a)  When it appears to the commission or the

12-26    executive director that there exists a generalized condition of air

12-27    pollution that creates an emergency requiring immediate action to

12-28    protect human health or safety, the commission or the executive

12-29    director shall, with the governor's concurrence, order any person

12-30    causing or contributing to the air pollution immediately to reduce

12-31    or discontinue the emission of air contaminants.]

12-32          [(b)  If the commission or the executive director finds that

12-33    emissions from one or more sources are causing imminent danger to

12-34    human health or safety, but that there is not a generalized

12-35    condition of air pollution under Subsection (a), the commission or

12-36    the executive director may order the persons responsible for the

12-37    emissions immediately to reduce or discontinue the emissions.]

12-38          [(c)  An order issued under this section must set a time and

12-39    place of a hearing to be held before the commission as soon after

12-40    the order is issued as practicable.]

12-41          [(d)  Section 382.031, relating to notice of a hearing, does

12-42    not apply to a hearing under this section, but a general notice of

12-43    the hearing shall be given that is, in the judgment of the

12-44    commission or the executive director, practicable under the

12-45    circumstances.  The commission shall affirm, modify, or set aside

12-46    the order not later than 24 hours after the hearing begins and

12-47    without adjournment of the hearing.]

12-48          [(e)  This section does not limit any power that the governor

12-49    or other officer may have to declare an emergency and to act on the

12-50    basis of that declaration if the power is conferred by law or

12-51    inheres in the office.]

12-52          SECTION 15.  Subsection (b), Section 382.030, Health and

12-53    Safety Code, is amended to read as follows:

12-54          (b)  Except for hearings required to be held before the

12-55    commission under Section 5.504, Water Code [382.026], the

12-56    commission may authorize the executive director to:

12-57                (1)  call and hold a hearing on any subject on which

12-58    the commission may hold a hearing; and

12-59                (2)  delegate the authority to hold any hearing called

12-60    by the executive director to one or more commission employees.

12-61          SECTION 16.  Subsection (e), Section 382.031, Health and

12-62    Safety Code, is amended to read as follows:

12-63          (e)  This section applies to all hearings held under this

12-64    chapter except as otherwise specified by Section 382.017[, 382.026,

12-65    or 382.063].

12-66          SECTION 17.  Section 382.063, Health and Safety Code, is

12-67    amended to read as follows:

12-68          Sec. 382.063.  Issuance of Emergency Order Because of

12-69    Catastrophe.  [(a)]  The commission may issue an emergency order

 13-1    because of catastrophe under Section 5.519, Water Code [or the

 13-2    executive director, on delegation of authority from the commission,

 13-3    by emergency order may authorize immediate action for the addition,

 13-4    replacement, or repair of facilities or control equipment

 13-5    necessitated by a catastrophe occurring in this state, and the

 13-6    emission of air contaminants during the addition, replacement, or

 13-7    repair of those facilities, if the actions and emissions are

 13-8    otherwise precluded under this chapter].

 13-9          [(b)  An order issued under this section must:]

13-10                [(1)  be limited to a reasonable time specified by the

13-11    order;]

13-12                [(2)  authorize action only on:]

13-13                      [(A)  property on which the catastrophe occurred;

13-14    or]

13-15                      [(B)  other property that is owned by the owner

13-16    or operator of the damaged facility and that produces the same

13-17    intermediates, products, or by-products; and]

13-18                [(3)  contain a schedule for submission of a complete

13-19    application under Section 382.051.]

13-20          [(c)  Under Subsection (b)(2)(B), the person applying for an

13-21    emergency order must demonstrate that there will be no more than a

13-22    de minimis increase in the predicted concentration of the air

13-23    contaminants at or beyond the property line of the other property.

13-24    The commission shall review and act on an application submitted as

13-25    provided by Subsection (b)(3) without regard to construction

13-26    activity under an order under this section.]

13-27          [(d)  To receive an emergency order under this section, a

13-28    person must submit a sworn application to the commission or

13-29    executive director.  The application must contain any information

13-30    the commission requires and:]

13-31                [(1)  a description of the catastrophe;]

13-32                [(2)  a statement that:]

13-33                      [(A)  the construction and emissions are

13-34    essential to prevent loss of life, serious injury, severe property

13-35    damage, or severe economic loss not attributable to the applicant's

13-36    actions and are necessary for the addition, replacement, or repair

13-37    of a facility or control equipment necessitated by the catastrophe;]

13-38                      [(B)  there are no practicable alternatives to

13-39    the proposed construction and emissions; and]

13-40                      [(C)  the emissions will not cause or contribute

13-41    to air pollution;]

13-42                [(3)  an estimate of the dates on which the proposed

13-43    construction or emissions, or both, will begin and end;]

13-44                [(4)  an estimate of the date on which the facility

13-45    will begin operation; and]

13-46                [(5)  a description of the quantity and type of air

13-47    contaminants proposed to be emitted.]

13-48          [(e)  The commission or executive director may issue an

13-49    emergency order under this section after providing the notice and

13-50    opportunity for hearing that the commission or executive director

13-51    considers practicable under the circumstances.  If the commission

13-52    requires notice and hearing before issuing the order, it shall give

13-53    notice not later than the 10th day before the date set for the

13-54    hearing.]

13-55          [(f)  Notice of the issuance of an emergency order shall be

13-56    provided in accordance with commission rules.]

13-57          [(g)  If the commission or executive director issues an

13-58    emergency order under this section without a hearing, the order

13-59    shall set a time and place for a hearing to be held before the

13-60    commission or its designee as soon after the emergency order is

13-61    issued as practicable.]

13-62          [(h)  Section 382.031, relating to notice of a hearing, does

13-63    not apply to a hearing on an emergency order, but such general

13-64    notice of the hearing shall be given that in the judgment of the

13-65    commission or the executive director is practicable under the

13-66    circumstances.]

13-67          [(i)  At or following the hearing, the commission shall

13-68    affirm, modify, or set aside the emergency order.  A hearing on an

13-69    emergency order shall be conducted in accordance with Chapter 2001,

 14-1    Government Code and commission rules.]

 14-2          [(j)  In this section, "catastrophe" means an unforeseen

 14-3    event, including an act of God, an act of war, severe weather,

 14-4    explosions, fire, or similar occurrences beyond the reasonable

 14-5    control of the operator that makes a facility or its functionally

 14-6    related appurtenances inoperable.]

 14-7          SECTION 18.  Section 401.056, Health and Safety Code, is

 14-8    amended by adding Subsection (g) to read as follows:

 14-9          (g)  The commission by order or rule may delegate its

14-10    authority under this section to its executive director.

14-11          SECTION 19.  Section 401.270, Health and Safety Code, is

14-12    amended to read as follows:

14-13          Sec. 401.270.  Corrective Action and Measures.  (a)  If the

14-14    commission finds that by-product material or the operation by which

14-15    that by-product material is derived threatens the public health and

14-16    safety or the environment, the commission by order may require any

14-17    action, including a corrective measure, that is necessary to

14-18    correct or remove the threat.

14-19          (b)  [The commission may issue an emergency order to a person

14-20    responsible for an activity, including a past activity, concerning

14-21    the recovery or processing of source material or the disposal of

14-22    by-product material if it appears that there is an actual or

14-23    threatened release of source material or by-product material that

14-24    presents an imminent and substantial danger to the public health

14-25    and safety or the environment, regardless of whether the activity

14-26    was lawful at the time.  The emergency order may be issued without

14-27    notice or hearing.]

14-28          [(c)  An emergency order may be issued under Subsection (b)

14-29    to:]

14-30                [(1)  restrain the person from allowing or continuing

14-31    the release or threatened release; and]

14-32                [(2)  require the person to take any action necessary

14-33    to provide and implement an environmentally sound remedial action

14-34    plan designed to eliminate the release or threatened release.]

14-35          [(d)  An emergency order issued under Subsection (b) shall:]

14-36                [(1)  be delivered to the person identified by the

14-37    order by certified mail, return receipt requested;]

14-38                [(2)  be delivered by hand delivery to the person

14-39    identified by the order; or]

14-40                [(3)  on failure of delivery of the order by certified

14-41    mail or hand delivery, be served on the person by publication:]

14-42                      [(A)  once in the Texas Register; and]

14-43                      [(B)  once in a newspaper of general circulation

14-44    in each county in which was located the last known address of a

14-45    person identified by the order.]

14-46          [(e)]  The commission shall use the security provided by the

14-47    license holder to pay the costs of actions that are taken or that

14-48    are to be taken under this section.  The commission shall send to

14-49    the comptroller a copy of its order together with necessary written

14-50    requests authorizing the comptroller to:

14-51                (1)  enforce security supplied by the licensee;

14-52                (2)  convert an amount of security into cash, as

14-53    necessary; and

14-54                (3)  disburse from the security in the fund the amount

14-55    necessary to pay the costs.

14-56          (c)  The commission may issue an emergency order under this

14-57    section as provided by Section 5.521, Water Code.

14-58          [(f)  If the order issued by the commission pursuant to this

14-59    section is adopted without notice or hearing, the order shall set a

14-60    time, at least 10 but not more than 30 days following the date of

14-61    issuance of the emergency order, and a place for a hearing to be

14-62    held in accordance with the rules of the commission.  As a result

14-63    of this hearing, the commission shall decide whether to affirm,

14-64    modify, or set aside the emergency order.  All provisions of the

14-65    emergency order shall remain in force and effect during the

14-66    pendency of the hearing, unless otherwise altered by the

14-67    commission.]

14-68          SECTION 20.  Sections 11.139 and 11.148, Subsection (f),

14-69    Section 13.041, and Section 13.4133, Water Code, are repealed.

 15-1          SECTION 21.  (a)  This Act takes effect September 1, 1997.

 15-2          (b)  Subchapter L, Chapter 5, Water Code, as added by this

 15-3    Act, applies only to the issuance of an emergency or temporary

 15-4    order concerning an act or occurrence that takes place on or after

 15-5    September 1, 1997.  The issuance of an emergency or temporary order

 15-6    concerning an act or occurrence that takes place before September

 15-7    1, 1997, is governed by the law in effect at the time the act or

 15-8    occurrence took place, and the former law is continued in effect

 15-9    for that purpose.

15-10          (c)  The change in law made by Section 6 of this Act applies

15-11    only to a violation of an order issued under Section 16.236, Water

15-12    Code, as amended by this Act, that occurs on or after September 1,

15-13    1997.  A violation that occurs before that date is governed by the

15-14    law in effect at the time the violation occurred, and the former

15-15    law is continued in effect for that purpose.

15-16          SECTION 22.  The importance of this legislation and the

15-17    crowded condition of the calendars in both houses create an

15-18    emergency and an imperative public necessity that the

15-19    constitutional rule requiring bills to be read on three several

15-20    days in each house be suspended, and this rule is hereby suspended.

15-21                                 * * * * *