Water Code
CHAPTER 5. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 5.001. Definitions.
In this chapter:
(1) "Board" means the Texas Water Development Board.
(2) "Commission" means the Texas Natural Resource
Conservation Commission.
(3) "Executive director" means the executive director of the
Texas Natural Resource Conservation Commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.001,
eff. Aug. 12, 1991.
Sec. 5.002. Scope of Chapter.
The powers and duties enumerated in this chapter are the
general powers and duties of the commission and those incidental
to the conduct of its business. The commission has other
specific powers and duties as prescribed in other sections of
this code and other laws of this state.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
SUBCHAPTER B. ORGANIZATION OF THE TEXAS NATURAL RESOURCE
CONSERVATION
COMMISSION
Sec. 5.011. Purpose of Chapter.
It is the purpose of this chapter to provide an organizational
structure for the commission that will provide more efficient and
effective administration of the conservation of natural resources
and the protection of the environment in this state and to define
the duties, responsibilities, authority, and functions of the
commission and the executive director.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.003,
eff. Aug. 12, 1991.
Sec. 5.012. Declaration of Policy.
The commission is the agency of the state given primary
responsibility for implementing the constitution and laws of this
state relating to the conservation of natural resources and the
protection of the environment.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.004,
eff. Aug. 12, 1991.
Sec. 5.013. General Jurisdiction of Commission.
(a) The commission has general jurisdiction over:
(1) water and water rights including the issuance of water
rights permits, water rights adjudication, cancellation of
water rights, and enforcement of water rights;
(2) continuing supervision over districts created under
Article III, Sections 52(b)(1) and (2), and Article XVI,
Section 59, of the Texas Constitution;
(3) the state's water quality program including issuance of
permits, enforcement of water quality rules, standards, orders,
and permits, and water quality planning;
(4) the state's weather modification program including the
issuance of permits and licenses and the enforcement of
permits, licenses, rules, standards, and orders relating to
weather modification;
(5) the determination of the feasibility of certain federal
projects;
(6) the adoption and enforcement of rules and performance of
other acts relating to the safe construction, maintenance, and
removal of dams;
(7) conduct of the state's hazardous spill prevention and
control program;
(8) the administration of the state's program relating to
inactive hazardous substance, pollutant, and contaminant
disposal facilities;
(9) the administration of a portion of the state's injection
well program;
(10) the administration of the state's programs involving
underground water and water wells and drilled and mined shafts;
(11) the state's responsibilities relating to regional waste
disposal;
(12) the responsibilities assigned to the commission by
Chapters 361, 363, 382, 401, and 402, Health and Safety Code;
(13) the administration of the national flood insurance
program;
(14) administration of the state's water rate program under
Chapter 13 of this code; and
(15) any other areas assigned to the commission by this code
and other laws of this state.
(b) The rights, powers, duties, and functions delegated to the
Texas Department of Water Resources by this code or by any other
law of this state that are not expressly assigned to the board
are vested in the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(75), eff. Sept.
1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.005, eff.
Aug. 12, 1991.
Sec. 5.014. Sunset Provision.
The Texas Natural Resource Conservation Commission is subject
to Chapter 325, Government Code (Texas Sunset Act). Unless
continued in existence as provided by that chapter, the
commission is abolished and this chapter expires September 1,
2001.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985; Acts 1987, 70th Leg., ch. 167, Sec. 2.20(46), eff. Sept.
1, 1987.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.006,
eff. Aug. 12, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 17, Sec.
5.19(a), eff. Nov. 12, 1991.
Sec. 5.015. Construction of Title.
This title shall be liberally construed to allow the commission
and the executive director to carry out their powers and duties
in an efficient and effective manner.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
SUBCHAPTER C. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Sec. 5.051. Commission.
The Texas Natural Resource Conservation Commission is created as
an agency of the state.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.008,
eff. Aug. 12, 1991.
Sec. 5.052. Members of the Commission; Appointment.
(a) The commission is composed of three members who are
appointed by the governor with the advice and consent of the
senate to represent the general public.
(b) The governor shall make the appointments in such a manner
that each member is from a different section of the state.
(c) Appointments to the commission shall be made without regard
to the race, color, handicap, sex, religion, age, or national
origin of the appointees.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1993, 73rd Leg., ch. 485, Sec. 1, eff. June 9,
1993.
Sec. 5.053. Eligibility for Membership.
A person is not eligible to serve on the commission if the
person or the person's spouse:
(1) is employed by or participates in the management of a
business entity or other organization regulated by the
commission or receiving funds from the commission;
(2) owns, controls, or has, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by the commission or receiving funds
from the commission; or
(3) uses or receives a substantial amount of tangible goods,
services, or funds from the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.053. Eligibility for Membership.
Text of section effective upon delegation of NPDES permit
authority
(a) A person is not eligible to serve on the commission if the
person or the person's spouse:
(1) is employed by or participates in the management of a
business entity or other organization regulated by the
commission or receiving funds from the commission;
(2) owns, controls, or has, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by the commission or receiving funds
from the commission; or
(3) uses or receives a substantial amount of tangible goods,
services, or funds from the commission.
(b) In addition to the eligibility requirements in Subsection
(a) of this section, persons who are appointed to serve on the
commission for terms which expire after August 31, 2001, must
comply at the time of their appointment with the eligibility
requirements established under 33 U.S.C. Sections 1251-1387, as
amended.
Added by Acts 1995, 74th Leg., ch. 310, Sec. 1, eff. Aug. 28,
1995.
For text of section effective until delegation of NPDES permit
authority, see Sec. 5.503, ante
Sec. 5.054. Removal of Commission Members.
(a) It is a ground for removal from the commission if a member:
(1) does not maintain during the service on the commission
the qualifications required for appointment to the commission;
(2) violates a prohibition established by Sections 5.059 and
5.060 of this code;
(3) is unable to discharge his duties for a substantial
portion of the term for which he was appointed because of
illness or disability; or
(4) is absent from more than one-half of the regularly
scheduled commission meetings that the member is eligible to
attend during each calendar year, except when the absence is
excused by a majority vote of the commission.
(b) The validity of an action of the commission is not affected
by the fact that it was taken when a ground for removal of a
member of the commission existed.
(c) If a member of the commission has knowledge that a
potential ground for removal exists, he shall notify the chairman
of the commission of that ground. The chairman of the commission
shall then notify the governor that a potential ground for
removal exists.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.055. Officers of State; Oath.
Each member of the commission is an officer of the state as
that term is used in the constitution, and each member shall
qualify by taking the official oath of office.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.056. Terms of Office.
(a) The members of the commission hold office for staggered
terms of six years, with the term of one member expiring every
two years. Each member holds office until his successor is
appointed and has qualified.
(b) A person appointed to the commission may not serve for more
than two six-year terms.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.057. Full-Time Service.
Each member of the commission shall serve on a full-time basis.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.058. Officers; Meetings.
(a) The governor shall designate the chairman of the
commission. He shall serve as chairman until the governor
designates a different chairman.
(b) The chairman may designate another commissioner to act for
him in his absence.
(c) The chairman shall preside at the meetings and hearings of
the commission.
(d) The commission shall hold regular meetings and all hearings
at times specified by a commission order and entered in its
minutes. The commission may hold special meetings at the times
and places in the state that the commission decides are
appropriate for the performance of its duties. The chairman or
acting chairman shall give the other members reasonable notice
before holding a special meeting.
(e) A majority of the commission is a quorum.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.059. Conflict of Interest.
An officer, employee, or paid consultant of a trade association
in an industry regulated by the commission may not be a member of
the commission or employee of the commission, nor may a person
who cohabits with or is the spouse of an officer, managerial
employee, or paid consultant of a trade association in an
industry regulated by the commission be a member of the
commission or an employee of the commission grade 17 or over,
including exempt employees, according to the position
classification schedule under the General Appropriations Act.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.060. Lobbyist Prohibition.
A person who is required to register as a lobbyist under
Chapter 305, Government Code, by virtue of his activities for
compensation in or on behalf of a profession related to the
operation of the commission may not serve as a member of the
commission or act as the general counsel to the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985; Acts 1987, 70th Leg., ch. 167, Sec. 2.19(24), eff. Sept.
1, 1987.
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF THE COMMISSION
Sec. 5.101. Scope of Subchapter.
The powers and duties provided by this subchapter are the general
powers and duties of the commission and those incidental to the
conduct of its business. The commission has other specific
powers and duties as prescribed in other sections of the code and
other laws of this state.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.102. General Powers.
(a) The commission has the powers to perform any acts whether
specifically authorized by this code or other law or implied by
this code or other law, necessary and convenient to the exercise
of its jurisdiction and powers as provided by this code and other
laws.
(b) The commission may call and hold hearings, receive evidence
at hearings, administer oaths, issue subpoenas to compel the
attendance of witnesses and the production of papers and
documents, and make findings of fact and decisions with respect
to its jurisdiction under this code and other laws and rules,
orders, permits, licenses, certificates, and other actions
adopted, issued, or taken by the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.103. Rules.
(a) The commission shall adopt any rules necessary to carry out
its powers and duties under this code and other laws of this
state.
(b) The commission shall adopt reasonable procedural rules to
be followed in a commission hearing. The executive director may
recommend to the commission for its consideration any rules that
he considers necessary.
(c) Rules shall be adopted in the manner provided by Chapter
2001, Government Code. As provided by that Act, the commission
must adopt rules when adopting, repealing, or amending any agency
statement of general applicability that interprets or prescribes
law or policy or describes the procedure or practice requirements
of an agency. The commission shall follow its own rules as
adopted until it changes them in accordance with that Act.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1993, 73rd Leg., ch. 802, Sec. 1, eff. June 18,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1,
1995.
Sec. 5.1035. Rules Regarding Drinking-Water Standards.
Before adopting rules regarding statewide drinking-water
standards, the commission shall hold public meetings, if
requested, at its regional offices to allow municipalities, water
supply corporations, and other interested persons to submit data
or comments concerning the proposed drinking-water standards.
Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.41, eff. Sept. 1,
1997.
Sec. 5.104. Memoranda of Understanding.
(a) The commission and board by rule shall develop memoranda of
understanding as necessary to clarify and provide for their
respective duties, responsibilities, or functions on any matter
under the jurisdiction of the commission or board that is not
expressly assigned to either the commission or board.
(b) The commission may enter into a memorandum of understanding
with any other state agency and shall adopt by rule any
memorandum of understanding between the commission and any other
state agency.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.105. General Policy.
Except as otherwise specifically provided by this code, the
commission, by rule, shall establish and approve all general
policy of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.106. Budget Approval.
The commission shall examine and approve all budget
recommendations for the commission that are to be transmitted to
the legislature.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.107. Advisory Councils.
The commission may create and consult with advisory councils,
including councils for the environment, councils for public
information, or any other councils that the commission may
consider appropriate.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.108. Executive Director.
(a) The commission shall appoint an executive director to serve
at the will of the commission.
(b) The board shall exercise the powers of appointment which
the Texas Water Rights Commission had the authority to exercise
on August 30, 1977, except for those powers of appointment
expressly provided to the Texas Water Rights Commission in
Chapters 50 through 63 inclusive, of the Water Code, which are
delegated to the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.109. Chief Clerk.
(a) The commission shall appoint a chief clerk who shall serve
at the will of the commission.
(b) The chief clerk shall assist the commission in carrying out
its duties under this code and other law.
(c) The chief clerk shall issue notice of public hearings held
under the authority of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.009,
eff. Aug. 12, 1991.
Sec. 5.110. General Counsel.
(a) The commission shall appoint a general counsel who shall
serve at the will of the commission.
(b) The general counsel is the chief legal officer for the
commission.
(c) The general counsel must be an attorney licensed to
practice law in this state.
(d) The general counsel shall perform the duties and may
exercise the powers specifically authorized by this code or
delegated to the general counsel by the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.111. Standards of Conduct.
The commission shall provide to its members, appointees, and
employees as often as is necessary information regarding their
qualifications under this code and their responsibilities under
applicable laws relating to standards of conduct for state
officers or employees.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.112. Public Testimony Policy.
The commission shall develop and implement policies that will
provide the public with a reasonable opportunity to appear before
the commission and to speak on any issue under the jurisdiction
of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985; Acts 1987, 70th Leg., ch. 977, Sec. 1, eff. June 19,
1987.
Sec. 5.113. Commission and Staff Responsibility Policy.
The commission shall develop and implement policies that
clearly separate the respective responsibilities of the
commission and the staff.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.114. Applications and Other Documents.
Applications and other documents to be filed with the
commission for final action under this code shall be filed with
the executive director and handled in the manner provided by this
code.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.115. Persons Affected in Commission Hearings; Notice of Application.
(a) For the purpose of an administrative hearing held by or for
the commission involving a contested case, "affected person," or
"person affected," or "person who may be affected" means a person
who has a personal justiciable interest related to a legal right,
duty, privilege, power, or economic interest affected by the
administrative hearing. An interest common to members of the
general public does not qualify as a personal justiciable
interest. The commission is not required to hold a hearing if
the commission determines that the basis of a person's request
for a hearing as an affected person is not reasonable or is not
supported by competent evidence. The commission shall adopt
rules specifying factors which must be considered in determining
whether a person is an affected person in any contested case
arising under the air, waste, or water programs within the
commission's jurisdiction and whether an affected association is
entitled to standing in contested case hearings.
(b) At the time an application for a permit or license under
this code is filed with the executive director and is
administratively complete, the commission shall give notice of
the application to any person who may be affected by the granting
of the permit or license.
(c) At the time an application for any formal action by the
commission that will affect lands dedicated to the permanent
school fund is filed with the executive director or the
commission and is administratively complete, the commission shall
give notice of the application to the School Land Board. Notice
shall be delivered by certified mail, return receipt requested,
addressed to the deputy commissioner of the asset management
division of the General Land Office. Delivery is not complete
until the return receipt is signed by the deputy commissioner of
the asset management division of the General Land Office and
returned to the commission.
(d) The commission shall adopt rules for the notice required by
this section.
(e) The notice must state:
(1) the identifying number given the application by the
commission;
(2) the type of permit or license sought under the
application;
(3) the name and address of the applicant;
(4) the date on which the application was submitted; and
(5) a brief summary of the information included in the
permit application.
(f) The notice to the School Land Board under this section
shall additionally:
(1) state the location of the permanent school fund land to
be affected; and
(2) describe any foreseeable impact or effect of the
commission's action on permanent school fund land.
(g) A formal action or ruling by the commission on an
application affecting permanent school fund land that is made
without the notice required by this section is voidable by the
School Land Board as to any permanent school fund lands affected
by the action or ruling.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.010,
eff. Aug. 12, 1991; Acts 1993, 73rd Leg., ch. 991, Sec. 6, eff.
Sept. 1, 1993; Acts 1995, 74th Leg., ch. 882, Sec. 1, eff. Sept.
1, 1995.
Sec. 5.116. Hearings; Recess.
The commission may recess any hearing or examination from time
to time and from place to place.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.117. Mandatory Enforcement Hearing.
(a) The executive director shall monitor compliance with all
permits and licenses issued by the commission under this code,
and if the evidence available to the executive director through
this monitoring process indicates that a permittee or licensee is
in substantial noncompliance with his permit or license for a
period of four months, or for a shorter period of time if the
executive director considers an emergency to exist, the executive
director shall report this fact to the commission together with
the information relating to the noncompliance.
(b) On receiving a report from the executive director under
Subsection (a) of this section, the commission shall call and
hold a hearing to determine whether the permittee or licensee who
is the subject of the executive director's report has been in
substantial noncompliance with his permit or license.
(c) At the conclusion of the hearing, the commission shall
issue one of the following orders stating that:
(1) no violation of the permit or license has occurred;
(2) a violation of the permit or license has occurred but
has been corrected and no further action is necessary to
protect the public interest;
(3) the executive director is authorized to enter into a
compliance agreement with the permittee or licensee;
(4) a violation of the permit or license has occurred and an
administrative penalty is assessed as provided by this code; or
(5) a violation of the permit or license has occurred, and
the executive director is directed to have enforcement
proceedings instituted against the permittee or licensee.
(d) A compliance agreement under Subsection (c)(3) of this
section is not effective unless it is approved by the commission.
If the commission determines at a hearing that a permittee or
licensee has not complied with the terms of the compliance
agreement, the commission may direct the executive director to
institute enforcement proceedings.
(e) The executive director, on receiving an order from the
commission directing institution of enforcement proceedings,
shall take all necessary steps to have enforcement proceedings
instituted.
(f) The commission may compel the attendance of the governing
body or any other officer of any permittee or licensee at any
hearing held under this section.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.011,
eff. Aug. 12, 1991.
Sec. 5.1175. Payment of Penalty by Installment.
(a) The commission by rule shall allow a small business that
owes a monetary civil or administrative penalty imposed for a
violation of law within the commission's jurisdiction or for a
violation of a license, permit, or order issued or rule adopted
by the commission to pay the penalty in periodic installments.
The rule must provide a procedure for a qualified small business
to apply for permission to pay the penalty over time.
(b) The rule must classify small businesses by their net annual
receipts and number of employees. A business that is a wholly
owned subsidiary of a corporation may not qualify as a small
business under this section.
(c) The rule may vary the period over which the penalty may be
paid or the amount of the periodic installments according to the
amount of the penalty owed and the size of the business that owes
the penalty. The period over which the penalty may be paid may
not exceed 12 months.
Added by Acts 1995, 74th Leg., ch. 112, Sec. 1, eff. May 17,
1995.
Sec. 5.118. Power to Administer Oaths.
Each member of the commission, the chief clerk, or a hearings
examiner may administer oaths in any hearing or examination on
any matter submitted to the commission for action.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.119. Commission to be Knowledgeable.
The commission shall be knowledgeable of the watercourses and
natural resources of the state and of the needs of the state
concerning the use, storage and conservation of water and the use
and conservation of other natural resources and of the need to
maintain the quality of the environment in the state.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.012,
eff. Aug. 12, 1991.
Sec. 5.120. Conservation and Quality of Environment.
The commission shall administer the law so as to promote the
judicious use and maximum conservation and protection of the
quality of the environment and the natural resources of the
state.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.013,
eff. Aug. 12, 1991.
Sec. 5.121. Public Information.
(a) The commission shall comply with Section 2001.004,
Government Code, by indexing and making available for public
inspection all rules and all other written statements of policy
or interpretations formulated, adopted, or used by the commission
in the discharge of its functions.
(b) The commission shall comply with Section 2001.004,
Government Code, by indexing and making available for public
inspection all of the commission's final orders, decisions, and
opinions.
Added by Acts 1987, 70th Leg., ch. 638, Sec. 1, eff. Sept. 1,
1987.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(71), (72),
eff. Sept. 1, 1995.
Sec. 5.122. Delegation of Uncontested Matters to Executive Director.
(a) The commission by rule or order may delegate to the
executive director the commission's authority to act on an
application or other request to issue, renew, reopen, transfer,
amend, extend, withdraw, revoke, terminate, or modify a permit,
license, certificate, registration, or other authorization or
approval if:
(1) required notice of the application or request for the
authorization or approval has been given;
(2) the holder of or applicant for the authorization or
approval agrees in writing to the action to be taken by the
executive director; and
(3) the application or request:
(A) is uncontested and does not require an evidentiary
hearing; or
(B) has become uncontested because all parties have
agreed in writing to the action to be taken by the executive
director.
(b) A person affected by an action the executive director takes
on a matter delegated under this section may appeal the executive
director's action to the commission unless the action is a
decision:
(1) regarding a federal operating permit under Subchapter C,
Chapter 382, Health and Safety Code; or
(2) specified as final and appealable by the commission rule
that delegates the decision to the executive director.
(c) A person affected by a decision of the executive director
on a matter delegated under this section that regards a federal
operating permit under Subchapter C, Chapter 382, Health and
Safety Code, may:
(1) petition the administrator of the United States
Environmental Protection Agency in accordance with rules
adopted under Section 382.0563, Health and Safety Code; or
(2) file a petition for judicial review under Section
382.032, Health and Safety Code.
(d) The commission's authority under this section is cumulative
of the commission's authority to delegate its powers, duties, or
rights under any other law.
Added by Acts 1995, 74th Leg., ch. 860, Sec. 1, eff. Aug. 28,
1995. Amended by Acts 1997, 75th Leg., ch. 302, Sec. 1, eff.
Sept. 1, 1997.
Sec. 5.123. Report on Enforcement Actions.
Text of section as added by Acts 1997, 75th Leg., ch. 304, Sec.
1, and Acts 1997, 75th Leg., ch. 1082, Sec. 1
(a) Not later than December 1 of each year, the commission
shall:
(1) prepare an electronic report on its enforcement actions
for the preceding fiscal year, including a comparison with its
enforcement actions for each of the preceding five fiscal
years; and
(2) provide the report to the governor, lieutenant governor,
and speaker of the house of representatives.
(b) The report shall separately describe the enforcement
actions for each type of regulatory program, including programs
under Chapters 26 and 27 of this code and Chapters 361, 382, and
401, Health and Safety Code.
(c) The description of enforcement actions for each type of
regulatory program shall include:
(1) the number of inspections;
(2) the number of notices of violations;
(3) the number of enforcement actions;
(4) the type of enforcement actions;
(5) the amount of penalties assessed, deferred, or
collected; and
(6) any other information the commission determines
relevant.
(d) As soon as possible after the end of each fiscal year, the
attorney general shall provide the commission information on
enforcement actions referred by the commission to the attorney
general that were resolved during the preceding fiscal year or
are pending at the end of that fiscal year.
Added by Acts 1997, 75th Leg., ch. 304, Sec. 1, eff. May 26,
1997; Acts 1997, 75th Leg., ch. 1082, Sec. 1, eff. Sept. 1, 1997.
For text of section as added by Acts 1997, 75th Leg., ch. 1203,
Sec. 1, see Sec. 5.123, post.
Sec. 5.123. Regulatory Flexibility.
Text of section as added by Acts 1997, 75th Leg., ch. 1203, Sec.
1
(a) The commission by order may exempt an applicant from a
requirement of a statute or commission rule regarding the control
or abatement of pollution if the applicant proposes to control or
abate pollution by an alternative method or by applying an
alternative standard that is:
(1) at least as protective of the environment and the public
health as the method or standard prescribed by the statute or
commission rule that would otherwise apply; and
(2) not inconsistent with federal law.
(b) The commission by rule shall specify the procedure for
obtaining an exemption under this section. The rules must
provide for public notice and for public participation in a
proceeding involving an application for an exemption under this
section.
(c) The commission's order must provide a specific description
of the alternative method or standard and condition the exemption
on compliance with the method or standard as the order
prescribes.
(d) The commission by rule may establish a reasonable fee for
applying for an exemption under this section.
(e) A violation of an order issued under this section is
punishable as if it were a violation of the statute or rule from
which the order grants an exemption.
(f) A permit may satisfy a requirement to demonstrate need by
showing need on a regional basis considering economic impacts.
(g) This section does not authorize exemptions to statutes or
regulations for storing, handling, processing, or disposing of
low-level radioactive materials.
Added by Acts 1997, 75th Leg., ch. 1203, Sec. 1, eff. Sept. 1,
1997.
For text of section as added by Acts 1997, 75th Leg., ch. 304,
Sec. 1, and Acts 1997, 75th Leg., ch. 1082, Sec. 1, see Sec.
5.123, post.
SUBCHAPTER E. ADMINISTRATIVE PROVISIONS FOR COMMISSION
Sec. 5.171. Audit.
The financial transactions of the commission are subject to audit
by the state auditor in accordance with Chapter 321, Government
Code.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1989, 71st Leg., ch. 584, Sec. 73, eff. Sept. 1,
1989.
Sec. 5.172. Funds From Other State Agencies.
Any state agency that has statutory responsibilities for
environmental pollution or environmental quality control and that
receives a legislative appropriation for these purposes may
transfer to the commission any amount mutually agreed on by the
commission and the agency, subject to the approval of the
governor.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.014,
eff. Aug. 12, 1991.
Sec. 5.173. Public Information Relating to Commission.
The commission shall prepare information of public interest
describing the functions of the commission and describing the
commission's procedures by which complaints are filed with and
resolved by the commission. The commission shall make the
information available to the general public and the appropriate
state agencies.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.174. Copies of Documents, Proceedings, Etc/statutes
(a) Except as otherwise specifically provided by this code and
subject to the specific limitations provided by this code, on
application of any person the commission shall furnish certified
or other copies of any proceeding or other official record or of
any map, paper, or document filed with the commission. A
certified copy with the seal of the commission and the signature
of the chairman of the commission or the executive director or
chief clerk is admissible as evidence in any court or
administrative proceeding.
(b) The commission shall provide in its rules the fees that
will be charged for copies and is authorized to furnish copies,
certified or otherwise, to a person without charge when the
furnishing of the copies serves a public purpose. Other statutes
concerning fees for copies of records do not apply to the
commission, except that the fees set by the commission for copies
prepared by the commission may not exceed those prescribed in
Chapter 603, Government Code.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(13), eff.
Sept. 1, 1995.
Sec. 5.175. Inspection of Water Pollution Records.
Text of section effective until delegation of NPDES permit
authority
All information, documents, and data collected by the
commission in the performance of its duties are the property of
the state. Subject to the limitations of this code, all records
are open to inspection by any person during regular office hours.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.015,
eff. Aug. 12, 1991.
For text of section effective upon delegation of NPDES permit
authority, see Sec. 5.175, post
Sec. 5.175. Inspection of Water Pollution Records.
Text of section effective upon delegation of NPDES permit
authority
(a) All information, documents, and data collected by the
commission in the performance of its duties are the property of
the state.
(b) Except as provided by Subsection (c) of this section,
records, reports, data, or other information obtained relative to
or from sources or potential sources of discharges of water
pollutants shall be available to the public during regular office
hours.
(c) If a showing satisfactory to the executive director is made
by any person that those records, reports, data, or other
information, other than effluent data, would divulge methods or
processes entitled to protection as trade secrets, the commission
shall consider those records, reports, data, or other information
as confidential.
(d) This chapter may not be construed to make confidential any
effluent data, including effluent data in records, reports, or
other information, and including effluent data in permits, draft
permits, and permit applications.
(e) Records, data, or other information considered confidential
may be disclosed or transmitted to officers, employees, or
authorized representatives of the state or of the United States
with responsibilities in water pollution control. However, this
disclosure or transmittal may be made only after adequate written
assurance is given to the executive director that the
confidentiality of the disclosed or transmitted records, data, or
other information will be afforded all reasonable protection
allowed by law by the receiving officer, employee or authorized
representative on behalf of, and under the authority of, the
receiving agency or political entity.
(f) The executive director may not disclose or transmit
records, data, or other information considered confidential if he
has reason to believe the recipient will not protect their
confidentiality to the most reasonable extent provided by law.
Amended by Acts 1985, 69th Leg., ch. 795, Secs. 1.001, 1.168.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.016,
eff. Aug. 12, 1991.
For text of section effective until delegation of NPDES permit
authority, see Sec. 5.175 ante
Sec. 5.176. Complaint File.
The commission shall keep an information file about each
complaint filed with the commission relating to an entity
regulated by the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.177. Notice of Complaint.
If a written complaint is filed with the commission relating to
an entity regulated by the commission, the commission at least as
frequently as quarterly and until final disposition of the
complaint shall notify the parties to the complaint of the status
of the complaint unless notice would jeopardize an undercover
investigation.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.178. Annual Reports; Biennial Appendixes .
(a) On or before December 1 of each even-numbered year, the
commission shall file with the governor and the members of the
legislature a written report that includes a statement of the
activities of the commission during the preceding fiscal
biennium.
(b) The report due by December 1 of an even-numbered year shall
include, in addition:
(1) the commission's recommendations for necessary and
desirable legislation; and
(2) the following reports:
(A) the assessments and reports required by Sections
361.0219(c), 361.0232, 361.485, 361.510, 371.063, and
382.141, Health and Safety Code; and
(B) the reports required by Section 26.0135(d) of this
code and Section 5.02, Chapter 133, Acts of the 69th
Legislature, Regular Session, 1985.
(c) As part of the biennial reports required by this section
that are to be filed by December 1, 2000, and every four years
after that date, the commission shall file a municipal solid
waste report, to include the plans required by Sections 361.020
and 361.0201, Health and Safety Code, and an assessment of
commercial nonhazardous waste disposal capacity as required by
Section 361.0233, Health and Safety Code.
(d) The commission shall file annually with the governor and
the presiding officer of each house of the legislature a complete
and detailed written report accounting for all funds received and
disbursed by the commission during the preceding year. The form
of the annual report and the reporting time shall be that
provided in the General Appropriations Act.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1997, 75th Leg., ch. 1082, Sec. 2, eff. Sept. 1,
1997.
Sec. 5.179. Seal.
The commission shall have a seal bearing the words Texas
Natural Resource Conservation Commission encircling the oak and
olive branches common to other official seals.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.017,
eff. Aug. 12, 1991.
SUBCHAPTER F. EXECUTIVE DIRECTOR
Sec. 5.221. General Responsibilities of the Executive Director.
The executive director shall manage the administrative affairs of
the commission subject to this code and other laws and under the
general supervision and direction of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.223. Administrative Organization of Commission.
Subject to approval of the commission, the executive director
may organize and reorganize the administrative sections and
divisions of the commission in a manner and in a form that will
achieve the greatest efficiency and effectiveness.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.224. Information Request to Board.
(a) With regard to any matter pending before the commission,
the executive director may obtain from the board information
relating to that matter.
(b) On receiving a request from the executive director, the
board should make the requested information available within 30
days after the information is requested and shall make the
requested information available not later than 90 days after the
information is requested.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.225. Career Ladder Program.
The executive director or his designee shall develop an
intraagency career ladder program, one part of which shall
require the intraagency posting of all nonentry level positions
concurrently with any public posting.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.226. Merit Pay.
The executive director or his designee shall develop a system
of annual performance evaluations based on measurable job tasks.
All merit pay for commission employees must be based on the
system established under this section.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.227. Equal Employment Opportunity Policy.
(a) The executive director or his designee shall prepare and
maintain a written policy statement to assure implementation of a
program of equal employment opportunity whereby all personnel
transactions are made without regard to race, color, handicap,
sex, religion, age, or national origin. The policy statement
must include:
(1) personnel policies including policies relating to
recruitment, evaluation, selection, appointment, training, and
promotion of personnel;
(2) a comprehensive analysis of the commission's work force
that meets federal and state guidelines;
(3) procedures by which a determination can be made of
significant underutilization in the commission's work force of
all persons for whom federal or state guidelines encourage a
more equitable balance; and
(4) reasonable methods to address appropriately areas of
significant underutilization in the commission's work force of
all persons for whom federal or state guidelines encourage a
more equitable balance.
(b) The policy statement shall be filed with the governor's
office before November 1, 1985, cover an annual period, and be
updated at least annually. The governor's office shall develop a
biennial report to the legislature based on the information
submitted. This report may be made individually or as a part of
other biennial reports made to the legislature.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.228. Appearances at Hearings.
The position of and information developed by the commission
shall be presented by the executive director or his designated
representative at hearings of the commission and the hearings
held by federal, state, and local agencies on matters affecting
the public's interest in the state's environment and natural
resources, including matters that have been determined to be
policies of the state. The executive director shall be named a
party in hearings before the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.018,
eff. Aug. 12, 1991.
Sec. 5.229. Contracts.
(a) The executive director, on behalf of the commission, may
negotiate with and with the consent of the commission enter into
contracts with the United States or any of its agencies for the
purpose of carrying out the powers, duties, and responsibilities
of the commission.
(b) The executive director, on behalf of the commission, may
negotiate with and with the consent of the commission enter into
contracts or other agreements with states and political
subdivisions of this state or any other entity for the purpose of
carrying out the powers, duties, and responsibilities of the
commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.230. Enforcement.
On approval of the commission, the executive director may
enforce the terms and conditions of any permit, certified filing,
certificate of adjudication, order, standard, or rule by
injunction or other appropriate remedy in a court of competent
jurisdiction.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.231. Travel Expenses.
The executive director is entitled to receive actual and
necessary travel expenses. Other employees of the commission are
entitled to receive travel expenses as provided in the General
Appropriations Act.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.232. Employee Moving Expenses.
If provided by legislative appropriation, the commission may
pay the costs of transporting and delivering the household goods
and effects of employees transferred by the executive director
from one permanent station to another when, in the judgment of
the executive director, the transfer will serve the best interest
of the state.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.233. Gifts and Grants.
The executive director may apply for, request, solicit,
contract for, receive, and accept money and other assistance from
any source to carry out the powers and duties under this code and
other law.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.019,
eff. Aug. 12, 1991.
Sec. 5.234. Applications and Other Documents.
(a) An application, petition, or other document requiring
action of the commission shall be presented to the executive
director and handled as provided by this code or other law and in
the rules adopted by the commission.
(b) After an application, petition, or other document is
processed, it shall be presented to the commission for action as
required by law and rules of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.020,
eff. Aug. 12, 1991.
Sec. 5.235. Fees.
(a) The executive director shall charge and collect the fees
prescribed by law. The executive director shall make a record of
fees prescribed when due and shall render an account to the
person charged with the fees. Each fee is a separate charge and
is in addition to other fees unless provided otherwise. Except
as otherwise provided, a fee assessed and collected under this
section shall be deposited to the credit of the water resource
management account.
(1) Notwithstanding other provisions, the commission by rule
may establish due dates, schedules, and procedures for
assessment, collection, and remittance of fees due the
commission to ensure the cost-effective administration of
revenue collection and cash management programs.
(2) Notwithstanding other provisions, the commission by rule
shall establish uniform and consistent requirements for the
assessment of penalties and interest for late payment of fees
owed the state under the commission's jurisdiction. Penalties
and interest established under this section shall not exceed
rates established for delinquent taxes under Sections 111.060
and 111.061, Tax Code.
(b) Except as otherwise provided by law, the fee for filing an
application or petition is $100 plus the cost of any required
notice. The fee for a by-pass permit shall be set by the
commission at a reasonable amount to recover costs, but not less
than $100.
(c) The fee for filing a water permit application is $100 plus
the cost of required notice.
(d) The fee for filing an application for fixing or adjusting
rates is $100 plus the cost of required notice.
(e) A person who files with the commission a petition for the
creation of a water district or addition of sewage and drainage
powers or a resolution for a water district conversion must pay a
one-time nonrefundable application fee. The commission by rule
may set the application fee in an amount not to exceed the costs
of reviewing and processing the application, plus the cost of
required notice. This fee is the only fee that the commission
may charge with regard to the processing of an application for
creation of a water district, addition of sewage or drainage
powers, or conversion under this code.
(f) A person who files a bond issue application with the
commission must pay an application fee set by the commission.
The commission by rule may set the application fee in an amount
not to exceed the costs of reviewing and processing the
application, plus the cost of required notice. If the bonds are
approved by the commission, the seller shall pay to the
commission a percentage of the bond proceeds not later than the
seventh business day after receipt of the bond proceeds. The
commission by rule may set the percentage of the proceeds in an
amount not to exceed 0.25 percent of the principal amount of the
bonds actually issued. Proceeds of the fees shall be used to
supplement any other funds available for paying expenses of the
commission in supervising the various bond and construction
activities of the districts filing the applications.
(g) The fee for recording an instrument in the office of the
commission is $1.25 per page.
(h) The fee for the use of water for irrigation is 50 cents per
acre to be irrigated.
(i) The fee for impounding water, except under Section 11.142
of this code, is 50 cents per acre-foot of storage, based on the
total holding capacity of the reservoir at normal operating
level.
(j) The fee for other uses of water not specifically named in
this section is $1 per acre-foot, except that no political
subdivision may be required to pay fees to use water for recharge
of underground freshwater-bearing sands and aquifers or for
abatement of natural pollution.
(k) A fee charged under Subsections (h) through (j) of this
section for one use of water under a permit from the commission
may not exceed $50,000. The fee for each additional use of water
under a permit for which the maximum fee is paid may not exceed
$10,000.
(l) The fees prescribed by Subsections (h) through (j) of this
section are one-time fees, payable when the application for an
appropriation is made. However, if the total fee for a permit
exceeds $1,000, the applicant shall pay one-half of the fee when
the application is filed and one-half within 180 days after
notice is mailed to him that the permit is granted. If the
applicant does not pay all of the amount owed before beginning to
use water under the permit, the permit is annulled.
(m) If a permit is annulled, the matter reverts to the status
of a pending, filed application and, on the payment of use fees
as provided by Subsections (h) through (l) of this section
together with sufficient postage fees for mailing notice of
hearing, the commission shall set the application for hearing and
proceed as provided by this code.
(n)(1) Each provider of potable water or sewer utility service
shall collect a regulatory assessment from each retail customer
as follows:
(A) A public utility as defined in Section 13.002 of
this code shall collect from each retail customer a
regulatory assessment equal to one percent of the charge for
retail water or sewer service.
(B) A water supply or sewer service corporation as
defined in Section 13.002 of this code shall collect from
each retail customer a regulatory assessment equal to
one-half of one percent of the charge for retail water or
sewer service.
(C) A district as defined in Section 49.001 of this code
that provides potable water or sewer utility service to
retail customers shall collect from each retail customer a
regulatory assessment equal to one-half of one percent of
the charge for retail water or sewer service.
(2) The regulatory assessment may be listed on the
customer's bill as a separate item and shall be collected in
addition to other charges for utility services.
(3) The commission shall use the assessments collected under
this subsection solely to pay costs and expenses incurred by
the commission in the regulation of districts, water supply or
sewer service corporations, and public utilities under Chapter
13, Water Code.
(4) The commission shall annually use a portion of the
assessments to provide on-site technical assistance and
training to public utilities, water supply or sewer service
corporations, and districts. The commission shall contract
with others to provide the services.
(5) The commission by rule may establish due dates,
collection procedures, and penalties for late payment related
to regulatory assessments under this subsection. The executive
director shall collect all assessments from the utility service
providers.
(6) The commission shall assess a penalty against a
municipality with a population of more than 1.5 million that
does not provide municipal water and sewer services in an
annexed area in accordance with Section 43.0565, Local
Government Code. A penalty assessed under this paragraph shall
be not more than $1,000 for each day the services are not
provided after March 1, 1998, for areas annexed before January
1, 1993, or not provided within 4 1/2 years after the
effective date of the annexation for areas annexed on or after
January 1, 1993. A penalty collected under this paragraph
shall be deposited to the credit of the water resource
management account to be used to provide water and sewer
service to residents of the city.
(7) The regulatory assessment does not apply to water that
has not been treated for the purpose of human consumption.
(o) A fee imposed under Subsection (j) of this section for the
use of saline tidal water for industrial processes shall be $1
per acre-foot of water diverted for the industrial process, not
to exceed a total fee of $5,000.
Amended by Acts 1985, 69th Leg., ch. 239, Sec. 38, eff. Sept. 1,
1985. Renumbered from Sec. 5.182 and amended by Acts 1985, 69th
Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. Amended by Acts
1987, 70th Leg., ch. 399, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1991, 72nd Leg., ch. 710, Sec. 10, eff. Aug. 26,
1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.021, eff.
Aug. 12, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 4.01,
eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 564, Sec. 1.02,
eff. June 11, 1993; Acts 1993, 73rd Leg., ch. 746, Sec. 1, eff.
Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 772, Sec. 1, eff. Aug.
30, 1993; Acts 1997, 75th Leg., ch. 333, Sec. 1, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1010, Sec. 4.42, eff. Sept. 1,
1997.
Sec. 5.236. Groundwater Contamination Reports.
(a) If the executive director acquires information that
confirms that a potential public health hazard exists because
usable groundwater has been or is being contaminated, the
executive director, not later than the 30th day after the date on
which the executive director acquires the information confirming
contamination, shall give written notice of the contamination to
the following persons:
(1) the county judge and the county health officer, if any,
in each county in which the contamination has occurred or is
occurring;
(2) any person under the commission's jurisdiction who is
suspected of contributing to the contamination; and
(3) any other state agency with jurisdiction over any person
who is suspected of contributing to the contamination.
(b) The executive director shall give the notice in the manner
and form, and include the information, required by rule of the
commission.
Added by Acts 1987, 70th Leg., ch. 393, Sec. 1, eff. Sept. 1,
1987.
Sec. 5.237. Operating Fund.
(a) The Texas Natural Resource Conservation Commission
Operating Fund is established in the treasury. At the request of
the commission, the comptroller is authorized to transfer to an
account in the operating fund any appropriations made to the
commission for the purpose of making expenditures. After
expenditures have been made from the operating fund and proper
line-item appropriations identified, the commission shall submit
periodic adjustments to the comptroller in summary amounts to
record accurate cost allocations to the appropriate funds and
accounts. Periodic adjustments under this section shall be made
at least quarterly.
(b) The commission will establish and maintain accounting
records adequate to support the periodic reconciliation of
operating fund transfers and document expenditures from each fund
or account. All expenditures shall be made consistent with
provisions of law relating to the authorized use of each fund or
account from which appropriations are made to the commission.
Added by Acts 1993, 73rd Leg., ch. 746, Sec. 2, eff. Aug. 30,
1993.
Sec. 5.238. Delegation of Executive Director's Authority or Duty.
Text of section added by Acts 1997, 75th Leg., ch. 302, Sec. 2
The executive director may delegate to the executive director's
staff any authority or duty assigned to the executive director
unless the statute, rule, or order assigning or delegating the
authority or duty specifies otherwise.
Added by Acts 1997, 75th Leg., ch. 302, Sec. 2, eff. Sept. 1,
1997.
For text of section as added by Acts 1997, 75th Leg., ch. 333,
Sec. 2, see Sec. 5.238, post.
Sec. 5.238. Administrative Account.
Text of section as added by Acts 1997, 75th Leg., ch. 333, Sec. 2
The commission administrative account is an account in the
general revenue fund. The account consists of reimbursements to
the commission for services provided by the commission and other
sources specified by law and authorized by legislative
appropriation.
Added by Acts 1997, 75th Leg., ch. 333, Sec. 2, eff. Sept. 1,
1997.
For text of section as added by Acts 1997, 75th Leg., ch. 302,
Sec. 2, see Sec. 5.238 ante.
SUBCHAPTER G. OFFICE OF PUBLIC INTEREST COUNSEL
Sec. 5.271. Creation and General Responsibility of the Office of Public
Interest Counsel.
The office of public interest counsel is created to ensure that
the commission promotes the public's interest and is responsive
to environmental and citizens' concerns including environmental
quality and consumer protection.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28,
1989.
Sec. 5.272. Public Interest Counsel.
The office shall be headed by a public interest counsel
appointed by the commission. The executive director may submit
the names and qualifications of candidates for public interest
counsel to the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28,
1989.
Sec. 5.273. Duties of the Public Interest Counsel.
The counsel shall represent the public interest and be a party
to all proceedings before the commission.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28,
1989.
Sec. 5.274. Staff.
The office shall be adequately staffed to carry out its
functions under this code.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28,
1989.
Sec. 5.275. Appeal.
A ruling, decision, or other act of the commission may not be
appealed by the counsel.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Amended by Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28,
1989.
SUBCHAPTER H. DELEGATION OF HEARINGS
Sec. 5.311. Delegation of Responsibility.
(a) The commission may delegate to an administrative law judge of
the State Office of Administrative Hearings the responsibility to
hear any matter before the commission and to issue interlocutory
orders related to interim rates under Chapter 13.
(b) Except as provided in Subsection (a), the administrative law
judge shall report to the commission on the hearing in the manner
provided by law.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Renumbered from V.T.C.A., Water Code Sec. 5.313 and amended by
Acts 1995, 74th Leg., ch. 106, Sec. 2, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 6.01, eff. Sept.
1, 1997.
Sec. 5.312. Time Limit for Issuance or Denial of Permits.
(a) Except as provided in Subsection (b), all permit decisions
shall be made within 180 days of the receipt of the permit
application or application amendment or the determination of
administrative completeness, whichever is later.
(b) This section does not apply to permits issued under
federally delegated or approved programs unless allowed under
that program.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.022, eff.
Aug. 12, 1991. Renumbered from V.T.C.A., Water Code Sec. 5.314
by Acts 1995, 74th Leg., ch. 106, Sec. 2, eff. Sept. 1, 1995.
Sec. 5.313. Hearing Examiners Referenced in Law.
Any reference in law to a hearing examiner who has a duty
related to a case pending before the commission means an
administrative law judge of the State Office of Administrative
Hearings.
Amended by Acts 1995, 74th Leg., ch. 106, Sec. 2, eff. Sept. 1,
1995.
SUBCHAPTER I. JUDICIAL REVIEW
Sec. 5.351. Judicial Review of Commission Acts.
(a) A person affected by a ruling, order, decision, or other act
of the commission may file a petition to review, set aside,
modify, or suspend the act of the commission.
(b) A person affected by a ruling, order, or decision of the
commission must file his petition within 30 days after the
effective date of the ruling, order, or decision. A person
affected by an act other than a ruling, order, or decision must
file his petition within 30 days after the date the commission
performed the act.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.352. Remedy for Commission or Executive Director Inaction.
A person affected by the failure of the commission or the
executive director to act in a reasonable time on an application
to appropriate water or to perform any other duty with reasonable
promptness may file a petition to compel the commission or the
executive director to show cause why it should not be directed by
the court to take immediate action.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.353. Diligent Prosecution of Suit.
The plaintiff shall prosecute with reasonable diligence any
suit brought under Section 5.351 or 5.352 of this code. If the
plaintiff does not secure proper service of process or does not
prosecute his suit within one year after it is filed, the court
shall presume that the suit has been abandoned. The court shall
dismiss the suit on a motion for dismissal made by the attorney
general unless the plaintiff after receiving due notice can show
good and sufficient cause for the delay.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.354. Venue.
A suit instituted under Section 5.351 or 5.352 of this code
must be brought in a district court in Travis County.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.355. Appeal of District Court Judgment.
A judgment or order of a district court in a suit brought for
or against the commission is appealable as are other civil cases
in which the district court has original jurisdiction.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.356. Appeal by Executive Director Precluded.
A ruling, order, decision, or other act of the commission may
not be appealed by the executive director.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 5.357. Law Suits; Citation.
Law suits filed by and against the commission or executive
director shall be in the name of the commission. In suits
against the commission or executive director, citation may be
served on the executive director.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985.
SUBCHAPTER J. CONSOLIDATED PERMIT PROCESSING
Sec. 5.401. Consolidated Permit Processing.
(a) If a plant, facility, or site is required to have more than
one permit issued by the commission and the applications for all
permits required by the commission are filed within a 30-day
period, the commission, on request of the applicant, shall
conduct coordinated application reviews and one consolidated
permit hearing on all permits requested to be consolidated by the
applicant and may issue one consolidated permit. On request of
the applicant, the commission shall issue one consolidated
permit.
(b) The executive director shall designate one permit program as
the lead program for coordination, and that program is the point
of contact regarding the consolidated permit.
(c) The executive director may require separate processing of
consolidated applications or may return to the applicant parts of
an application if the executive director determines that the
applicant has submitted an incomplete application or if the
applicant does not respond as requested to notices of deficiency.
(d) A federal operating permit governed by the requirements of
Sections 382.054-382.0543, Health and Safety Code, may not be
consolidated with other permits under this subchapter.
Added by Acts 1997, 75th Leg., ch. 1373, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.402. Request for Separate Processing.
(a) At any time before the public notice of the opportunity to
request a hearing on a permit application, the applicant may
request that consolidated applications be processed separately as
determined by the executive director. The executive director
shall process the applications separately if the applicant
submits a timely request under this subsection.
(b) At any time after the notice of opportunity to request a
hearing but before referral of the matter to the State Office of
Administrative Hearings, the executive director may separate the
applications for processing on a showing of good cause by the
applicant that the applications should be processed separately.
For purposes of this subsection, "good cause" includes a change
in the statutory or regulatory requirements governing a permit or
a substantial change in the factual circumstances surrounding the
applications for permits.
(c) After an application has been referred to the State Office
of Administrative Hearings, the applicant may have the
applications processed separately only on a showing of compliance
with commission procedural rules regarding the withdrawal of
applications.
Added by Acts 1997, 75th Leg., ch. 1373, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.403. Renewal Period for Consolidated Permit.
The renewal period for a consolidated permit issued under this
subchapter is the shortest term set by any state or federal
statute or rule governing one or more of the authorizations
sought in the consolidated permit.
Added by Acts 1997, 75th Leg., ch. 1373, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.404. Renewal of Permits.
A permit issued under this subchapter or a permit issued before
and effective on September 1, 1997, that authorizes more than one
permit program may be renewed, amended, or modified as a
consolidated permit or may be separated by program and the
permits may be processed separately and subject to the renewal,
amendment, or modification requirements of applicable law
governing operations at the facility, plant, or site.
Added by Acts 1997, 75th Leg., ch. 1373, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.405. Fees.
(a) Except as provided by Subsection (b), the fee for a
consolidated permit shall be computed as if the permits
consolidated had been processed separately.
(b) The commission by rule may reduce the fee for a
consolidated permit below the total amount that the applicant
would have paid for processing the applications separately if the
commission finds that consolidated processing results in savings
to the agency.
Added by Acts 1997, 75th Leg., ch. 1373, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.406. Rules.
The commission may adopt rules to effectuate the purposes of
this subchapter, including rules providing for:
(1) combined public notices of permits issued under the
authority of this section; or
(2) procedures for the processing and issuing of
consolidated permits.
Added by Acts 1997, 75th Leg., ch. 1373, Sec. 1, eff. Sept. 1,
1997.
SUBCHAPTER L. EMERGENCY AND TEMPORARY ORDERS
Sec. 5.501. Emergency and Temporary Order or Permit; Temporary Suspension
or Amendment of Permit Condition.
(a) For the purposes and in the manner provided by this
subchapter, the commission:
(1) may issue a temporary or emergency mandatory, permissive, or
prohibitory order; and
(2) by temporary or emergency order may:
(A) issue a temporary permit; or
(B) temporarily suspend or amend a permit condition.
(b) The commission may issue an emergency order under this
subchapter after providing the notice and opportunity for hearing
that the commission considers practicable under the circumstances
or without notice or hearing. Except as provided by Section
5.506, notice must be given not later than the 10th day before
the date set for a hearing if the commission requires notice and
hearing before issuing the order. The commission shall give
notice not later than the 20th day before the date set for a
hearing on a temporary order.
(c) The commission by order or rule may delegate to the executive
director the authority to:
(1) receive applications and issue emergency orders under this
subchapter; and
(2) authorize, in writing, a representative or representatives to
act on the executive director's behalf under this subchapter.
(d) Chapter 2001, Government Code, does not apply to the issuance
of an emergency order under this subchapter without a hearing.
(e) A law under which the commission acts that requires notice of
hearing or that sets procedures for the issuance of permits does
not apply to a hearing on an emergency order issued under this
subchapter unless the law specifically requires notice for an
emergency order. The commission shall give the general notice of
the hearing that the commission considers practicable under the
circumstances.
(f) An emergency or temporary order issued under this subchapter
does not vest in the permit holder or recipient any rights and
expires in accordance with its terms.
(g) The commission may prescribe rules and adopt fees necessary
to carry out and administer this subchapter.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.502. Application for Emergency or Temporary Order.
A person other than the executive director or the executive
director's representative who desires an emergency or temporary
order under this subchapter must submit a sworn written
application to the commission. The application must:
(1) describe the condition of emergency or other condition
justifying the issuance of the order;
(2) allege facts to support the findings required under this
subchapter;
(3) estimate the dates on which the proposed order should
begin and end;
(4) describe the action sought and the activity proposed to
be allowed, mandated, or prohibited; and
(5) include any other statement or information required by
this subchapter or by the commission.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.503. Notice of Issuance.
Notice of the issuance of an emergency order shall be provided
in accordance with commission rules.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.504. Hearing to Affirm, Modify, or Set Aside Order.
(a) If the commission, the executive director, or the executive
director's representative issues an emergency order under this
subchapter without a hearing, the order shall set a time and
place for a hearing to affirm, modify, or set aside the emergency
order to be held before the commission or its designee as soon as
practicable after the order is issued.
(b) At or following the hearing required under Subsection (a),
the commission shall affirm, modify, or set aside the emergency
order.
(c) A hearing to affirm, modify, or set aside an emergency
order shall be conducted in accordance with Chapter 2001,
Government Code, and commission rules. Commission rules
concerning a hearing to affirm, modify, or set aside an emergency
order must provide for presentation of evidence by the applicant
under oath, presentation of rebuttal evidence, and
cross-examination of witnesses.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.505. Term of Order.
An emergency or temporary order issued under this subchapter
must be limited to a reasonable time specified by the order.
Except as otherwise provided by this subchapter, the term of an
emergency order may not exceed 180 days. An emergency order may
be renewed once for a period not to exceed 180 days.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.506. Emergency Suspension of Permit Condition Relating to Beneficial
Inflows to Affected Bays and Estuaries and Instream Uses.
(a) The commission by emergency or temporary order may suspend
a permit condition relating to beneficial inflows to affected
bays and estuaries and instream uses if the commission finds that
an emergency exists that cannot practicably be resolved in
another way.
(b) The commission must give written notice of the proposed
suspension to the Parks and Wildlife Department before the
commission suspends a permit condition under this section. The
commission shall give the Parks and Wildlife Department an
opportunity to submit comments on the proposed suspension for a
period of 72 hours from receipt of the notice and must consider
those comments before issuing an order imposing the suspension.
(c) The commission may suspend a permit condition under this
section without notice except as required by Subsection (b).
(d) The commission shall notify all affected persons
immediately by publication.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.507. Emergency Order for Operation of Utility That Discontinues
Operation or is Referred for Appointment of Receiver.
The commission may issue an emergency order appointing a
willing person to temporarily manage and operate a utility under
Section 13.4132. Notice of the action is adequate if the notice
is mailed or hand delivered to the last known address of the
utility's headquarters.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.508. Emergency Order for Rate Increase in Certain Situations.
(a) Notwithstanding the requirements of Section 13.187, the
commission may authorize an emergency rate increase for a utility
for which a person has been appointed under Section 5.507 or
13.412 or for which a receiver has been appointed under Section
13.4132 if the increase is necessary to ensure the provision of
continuous and adequate services to the utility's customers.
(b) A utility that receives an emergency rate increase under
this section shall provide to each ratepayer notice of the
increase as soon as possible, but not later than the first
utility bill issued at the new rate.
(c) Notwithstanding Section 5.505, an order may be issued under
this section for a term not to exceed 15 months. The commission
shall schedule a hearing to establish a final rate within 15
months after the date on which an emergency rate increase takes
effect. The additional revenues collected under an emergency
rate increase are subject to refund if the commission finds that
the rate increase was larger than necessary to ensure continuous
and adequate service.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.509. Temporary or Emergency Order Relating to Discharge of Waste or
Pollutants.
(a) The commission may issue an emergency or temporary order
relating to the discharge of waste or pollutants into or adjacent
to water in the state if:
(1) the order is necessary to enable action to be taken more
expeditiously than is otherwise provided by Chapter 26 to
effectuate the policy and purposes of that chapter; and
(2) the commission finds that:
(A) the discharge is unavoidable to:
(i) prevent loss of life, serious injury, or
severe property damage;
(ii) prevent severe economic loss or
ameliorate serious drought conditions, to the extent consistent
with the requirements for United States Environmental Protection
Agency authorization of a state permit program; or
(iii) make necessary and unforeseen repairs
to a facility;
(B) there is no feasible alternative to the proposed
discharge;
(C) the discharge will not cause significant hazard to
human life and health, unreasonable damage to the property
of persons other than the applicant, or unreasonable
economic loss to persons other than the applicant; and
(D) the discharge will not present a significant hazard
to the uses that will be made of the receiving water after
the discharge.
(b) A person desiring a temporary or emergency order under this
section must submit an application under Section 5.502 that, in
addition to complying with that section:
(1) states the volume and quality of the proposed discharge;
(2) explains the measures proposed to minimize the volume
and duration of the discharge; and
(3) explains the measures proposed to maximize the waste
treatment efficiency of units not taken out of service or
facilities provided for interim use.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.510. Emergency Order Concerning Underground or Aboveground Storage
Tanks.
(a) The commission may issue an emergency order to the owner or
operator of an underground or aboveground storage tank regulated
under Chapter 26 prohibiting the owner or operator from allowing
or continuing a release or threatened release and requiring the
owner or operator to take the actions necessary to eliminate the
release or threatened release, if the commission finds that:
(1) there is an actual or threatened release of a regulated
substance; and
(2) more expeditious action than is otherwise provided under
Chapter 26 is necessary to protect the public health or safety
or the environment from harm.
(b) An emergency order issued under this section must be:
(1) mailed by certified mail, return receipt requested, to
each person identified in the order;
(2) hand delivered to each person identified in the order;
or
(3) on failure of service by certified mail or hand
delivery, served by publication one time in the Texas Register
and one time in a newspaper with general circulation in each
county in which any of the persons identified in the order has
a last known address.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.511. Emergency Administrative Order Concerning Imminent and
Substantial Endangerment.
The commission or the executive director may issue an emergency
administrative order under Section 361.272, Health and Safety
Code, in the manner provided by this subchapter.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.512. Emergency Order Concerning Activity of Solid Waste Management.
The commission may issue an emergency order concerning an
activity of solid waste management under the commission's
jurisdiction, even if that activity is not covered by a permit,
if the commission finds that an emergency requiring immediate
action to protect the public health and safety exists.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.513. Emergency Order Concerning On-Site Sewage Disposal System.
(a) The commission may issue an emergency order suspending the
registration of the installer of an on-site sewage disposal
system, regulating an on-site sewage disposal system, or both, if
the commission finds that an emergency exists and that the public
health and safety is endangered because of the operation of an
on-site sewage disposal system that does not comply with Chapter
366, Health and Safety Code, or a rule adopted under that
chapter.
(b) If an order issued under this section is adopted without
notice or hearing, the order must set a time, not more than 30
days after the order is issued, for a hearing to affirm, modify,
or set aside the order.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.514. Order Issued Under Air Emergency.
(a) If the commission finds that a generalized condition of air
pollution exists that creates an emergency requiring immediate
action to protect human health or safety, the commission, with
the concurrence of the governor, may issue an emergency order
requiring a person causing or contributing to the air pollution
to immediately reduce or discontinue the emission of air
contaminants.
(b) If the commission finds that emissions from one or more
sources are causing imminent danger to human health or safety but
that there is not a generalized condition of air pollution under
Subsection (a), the commission may issue an emergency order
requiring the persons responsible for the emissions to
immediately reduce or discontinue the emissions.
(c) Notwithstanding Section 5.504, the commission shall affirm,
modify, or set aside an order issued under this section not later
than 24 hours after the hearing under that section begins and
without adjournment of the hearing.
(d) This section does not limit any power that the governor or
another officer may have to declare an emergency and to act on
that declaration if the power is conferred by law or inheres in
the office.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.515. Emergency Order Because of Catastrophe.
(a) The commission may issue an emergency order authorizing
immediate action for the addition, replacement, or repair of
facilities or control equipment necessitated by a catastrophe
occurring in this state and the emission of air contaminants
during the addition, replacement, or repair of those facilities
if the actions and emissions are otherwise precluded under
Chapter 382, Health and Safety Code.
(b) An order issued under this section:
(1) may authorize action only on:
(A) property on which a catastrophe has occurred; or
(B) other property that is owned by the owner or
operator of the damaged facility and that produces the same
intermediates, products, or by-products; and
(2) must contain a schedule for submitting a complete
application for a permit under Section 382.0518, Health and
Safety Code.
(c) The person applying for an emergency order must demonstrate
that there will be no more than a de minimis increase in the
predicted concentration of air contaminants at or beyond the
property line of the other property on which action is authorized
under Subsection (b)(1)(B). The commission shall review and act
on an application submitted as provided by Subsection (b)(2)
without regard to construction activity under an order under this
section.
(d) An applicant desiring an emergency order under this section
must submit an application under Section 5.502 that, in addition
to complying with that section:
(1) describes the catastrophe;
(2) states that:
(A) the construction and emissions are essential to
prevent loss of life, serious injury, severe property
damage, or severe economic loss not attributable to the
applicant's actions and are necessary for the addition,
replacement, or repair of a facility or control equipment
necessitated by the catastrophe;
(B) there is no practicable alternative to the proposed
construction and emissions; and
(C) the emissions will not cause or contribute to air
pollution;
(3) estimates the dates on which the proposed construction
or emissions, or both, will begin and end;
(4) estimates the date on which the facility will begin
operation; and
(5) describes the quantity and type of air contaminants
proposed to be emitted.
(e) In this section, "catastrophe" means an unforeseen event,
including an act of God, an act of war, severe weather,
explosions, fire, or similar occurrences beyond the reasonable
control of the operator, that makes a facility or its related
appurtenances inoperable.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997.
Sec. 5.516. Emergency Order Under Section 401.056, Health and Safety
Code.
The commission may issue an emergency order under Section
401.056, Health and Safety Code, in the manner provided by this
subchapter.
Added by Acts 1997, 75th Leg., ch. 1072, Sec. 1, eff. Sept. 1,
1997