Texas 2009 - 81st Regular

Texas Senate Bill SB1846 Compare Versions

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1	1	81R33584 SMH-F
2	2	By: Hegar S.B. No. 1846
3	3	Substitute the following for S.B. No. 1846:
4	4	By: Corte C.S.S.B. No. 1846
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the powers and duties of the Texas Commission on
10	10	Environmental Quality and related entities.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subchapter C, Chapter 341, Health and Safety
13	13	Code, is amended by adding Section 341.0365 to read as follows:
14	14	Sec. 341.0365. ADDITIONAL REQUIREMENTS FOR OWNERS AND
15	15	OPERATORS OF CERTAIN WATER WELLS. (a) In addition to any
16	16	applicable requirements under this chapter or other law, a person
17	17	who owns or operates a water well that, for compensation, provides
18	18	water to not fewer than 3 and not more than 14 residences for any
19	19	purpose shall ensure that the well water is treated with chlorine or
20	20	a chlorine compound.
21	21	(b) The chlorination system for the well water must be
22	22	designed by a professional water engineer. The owner or operator of
23	23	the well must submit the plans to the commission for approval before
24	24	use of the chlorination system. The owner or operator of the well
25	25	shall maintain the chlorination system and keep the system in
26	26	functional operating condition.
27	27	(c) In coordination with the local health department, the
28	28	owner or operator of the well must perform testing for foreign
29	29	organisms in the water, including fecal coliform bacteria and E.
30	30	coli bacteria, every six months. The owner or operator of the well
31	31	must provide the commission and the recipients of water from the
32	32	well with the results of the testing.
33	33	SECTION 2. Section 5.1175, Water Code, is amended to read as
34	34	follows:
35	35	Sec. 5.1175. PAYMENT OF PENALTY BY INSTALLMENT. (a) The
36	36	commission by rule may [shall] allow a person who [small business
37	37	that] owes a monetary civil or administrative penalty imposed for a
38	38	violation of law within the commission's jurisdiction or for a
39	39	violation of a license, permit, or order issued or rule adopted by
40	40	the commission to pay the penalty in periodic installments. The
41	41	rule must provide a procedure for a person [qualified small
42	42	business] to apply for permission to pay the penalty over time.
43	43	(b) [The rule must classify small businesses by their net
44	44	annual receipts and number of employees. A business that is a
45	45	wholly owned subsidiary of a corporation may not qualify as a small
46	46	business under this section.
47	47	[(c)] The rule may vary the period over which the penalty
48	48	may be paid or the amount of the periodic installments according to
49	49	the amount of the penalty owed and the size of the business that
50	50	owes the penalty. The period over which the penalty may be paid may
51	51	not exceed 36 [12] months.
52	52	SECTION 3. Section 7.002, Water Code, is amended to read as
53	53	follows:
54	54	Sec. 7.002. ENFORCEMENT AUTHORITY. The commission may
55	55	initiate an action under this chapter to enforce provisions of this
56	56	code and the Health and Safety Code within the commission's
57	57	jurisdiction as provided by Section 5.013 of this code and rules
58	58	adopted under those provisions. The commission or the executive
59	59	director may institute legal proceedings to compel compliance with
60	60	the relevant provisions of this code and the Health and Safety Code
61	61	and rules, orders, permits, or other decisions of the commission.
62	62	The commission may delegate to the executive director the authority
63	63	to issue an administrative order including the authority to assess
64	64	penalties or order corrective measures to ensure compliance with
65	65	the provisions of this code and the Health and Safety Code within
66	66	the commission's jurisdiction as provided by Section 5.013 of this
67	67	code and rules adopted under those provisions.
68	68	SECTION 4. Section 13.043, Water Code, is amended by
69	69	amending Subsection (h) and adding Subsection (h-1) to read as
70	70	follows:
71	71	(h) The commission or the executive director may[, on a
72	72	motion by the executive director or by the appellant under
73	73	Subsection (a), (b), or (f) of this section,] establish interim
74	74	rates to be in effect until a final decision is made.
75	75	(h-1) If the commission sets a final rate that is lower than
76	76	the interim rate established under Subsection (h), the retail
77	77	public utility shall refund or credit the difference between the
78	78	interim rate and the final rate plus interest as determined by the
79	79	commission, unless otherwise agreed to by the parties to the
80	80	proceeding. If the commission sets a final rate that is higher than
81	81	the interim rate, the retail public utility may collect the
82	82	difference between the interim rate and the final rate unless
83	83	otherwise agreed to by the parties to the proceeding.
84	84	SECTION 5. Subsection (c), Section 13.131, Water Code, is
85	85	amended to read as follows:
86	86	(c) The commission shall fix proper and adequate rates and
87	87	methods of depreciation, amortization, or depletion of the several
88	88	classes of property of each utility and shall require every utility
89	89	to carry a proper and adequate depreciation account in accordance
90	90	with those rates and methods and with any other rules the commission
91	91	prescribes. Rules adopted under this subsection must require the
92	92	book cost less net salvage of depreciable utility plant retired to
93	93	be charged in its entirety to the accumulated depreciation account
94	94	in a manner consistent with accounting treatment of regulated
95	95	electric and gas utilities in this state. Those rates, methods, and
96	96	accounts shall be utilized uniformly and consistently throughout
97	97	the rate-setting and appeal proceedings.
98	98	SECTION 6. Subsection (a), Section 13.145, Water Code, is
99	99	amended to read as follows:
100	100	(a) A utility may consolidate more than one system under a
101	101	single tariff on a regional or statewide basis [only] if[:
102	102	[(1) the systems under the tariff are substantially
103	103	similar in terms of facilities, quality of service, and cost of
104	104	service; and
105	105	[(2)] the tariff provides for rates that promote water
106	106	conservation for single-family residences and landscape
107	107	irrigation.
108	108	SECTION 7. Section 13.187, Water Code, is amended by
109	109	amending Subsections (f), (i), (j), (k), (l), (n), and (o) and
110	110	adding Subsection (l-1) to read as follows:
111	111	(f) The regulatory authority may set the matter for hearing
112	112	on its own motion at any time within 120 days after the effective
113	113	date of the rate change. [If more than half of the ratepayers of the
114	114	utility receive service in a county with a population of more than
115	115	2.5 million, the hearing must be held at a location in that county.]
116	116	(i) The regulatory authority or the executive director,
117	117	pending final action in a rate proceeding, may order the utility to
118	118	deposit all or part of the rate increase received or to be received
119	119	into an escrow account with a financial institution approved by the
120	120	regulatory authority. Unless otherwise agreed to by the parties to
121	121	the rate proceeding, the utility shall refund or credit against
122	122	future bills all sums collected during the pendency of the rate
123	123	proceeding in excess of the rate finally ordered plus interest as
124	124	determined by the regulatory authority.
125	125	(j) For good cause shown, the regulatory authority or the
126	126	executive director may authorize the release of funds to the
127	127	utility from the escrow account during the pendency of the
128	128	proceeding.
129	129	(k) If the regulatory authority receives at least the number
130	130	of complaints from ratepayers required for the regulatory authority
131	131	to set a hearing under Subsection (e), the regulatory authority or
132	132	the executive director may, pending the hearing and a decision,
133	133	suspend the date the rate change would otherwise be effective.
134	134	Except as provided by Subsection (d-1), the proposed rate may not be
135	135	suspended for longer than:
136	136	(1) 90 days by a local regulatory authority; or
137	137	(2) 250 [150] days by the commission or executive
138	138	director.
139	139	(l) During [At any time during] the pendency of the rate
140	140	proceeding the regulatory authority or the executive director may
141	141	fix interim rates to remain in effect until a final determination is
142	142	made on the proposed rate. The regulatory authority may fix interim
143	143	rates at any time during the pendency of the rate proceeding. The
144	144	executive director may fix interim rates not later than the 120th
145	145	day after the proposed effective date of the proposed rate change.
146	146	The interim rates established by the executive director may not be
147	147	lower than the rates on the utility's approved tariff or higher than
148	148	those in the application of the utility. In establishing an interim
149	149	rate, the executive director shall consider only representative
150	150	operating data for the test year proposed in the application of the
151	151	utility. The executive director may request additional data or
152	152	information for the test year. In establishing an interim rate, the
153	153	executive director shall consider:
154	154	(1) whether the interim rate will preserve the
155	155	financial integrity of the utility during the period that the
156	156	interim rate is in effect;
157	157	(2) whether the interim rate will provide sufficient
158	158	money for the capital improvements necessary to provide facilities
159	159	capable of providing adequate and continuous utility service during
160	160	the period that the interim rate is in effect;
161	161	(3) whether the interim rate equitably distributes
162	162	costs across and is consistent in application to each class of
163	163	affected customers; and
164	164	(4) any other factor that the executive director
165	165	considers adequately balances the public interest and that of the
166	166	utility.
167	167	(l-1) If the executive director establishes an interim rate
168	168	under Subsection (l), the executive director shall issue an order
169	169	establishing the interim rate that states the basis on which the
170	170	executive director established the interim rate, after taking into
171	171	consideration the factors provided by this section.
172	172	(n) For good cause shown, the regulatory authority or the
173	173	executive director may at any time during the proceeding require
174	174	the utility to refund money collected under a proposed rate before
175	175	the rate was suspended or an interim rate was established to the
176	176	extent the proposed rate exceeds the existing rate or the interim
177	177	rate.
178	178	(o) If a regulatory authority other than the commission or
179	179	the executive director establishes interim rates or an escrow
180	180	account, the regulatory authority must make a final determination
181	181	on the rates not later than the first anniversary of the effective
182	182	date of the interim rates or escrowed rates or the rates are
183	183	automatically approved as requested by the utility.
184	184	SECTION 8. Subchapter F, Chapter 13, Water Code, is amended
185	185	by adding Section 13.193 to read as follows:
186	186	Sec. 13.193. UTILITY FACILITIES CONSTRUCTION AND
187	187	IMPROVEMENT CHARGE. (a) Notwithstanding any other provision of
188	188	this chapter, a utility may assess a utility facilities
189	189	construction and improvement charge to recover the depreciation and
190	190	return on investment of a utility facilities construction and
191	191	improvement project that:
192	192	(1) is completed and placed into service between two
193	193	consecutive statements of intent to change the utility's rates or
194	194	tariff filed under Section 13.187; and
195	195	(2) serves the utility's certificated service area,
196	196	including a facility used for:
197	197	(A) the production, transmission, storage,
198	198	distribution, or provision of potable or recycled water to the
199	199	public; or
200	200	(B) the collection, transportation, treatment,
201	201	or disposal of sewage.
202	202	(b) The commission by rule shall require a utility that
203	203	proposes to assess a utility facilities construction and
204	204	improvement charge under this section:
205	205	(1) to file a tariff establishing a just and
206	206	reasonable manner for calculating the charge; and
207	207	(2) to receive the executive director's approval of
208	208	the tariff.
209	209	(c) In adopting rules under Subsection (b), the commission
210	210	shall ensure that:
211	211	(1) not later than the 60th day before a utility's
212	212	proposed inclusion of a charge or a proposed increase of a charge in
213	213	a tariff under this section, the utility submits to the executive
214	214	director for review of a project's eligibility a written notice
215	215	that contains:
216	216	(A) the amount of the proposed charge or increase
217	217	of a charge;
218	218	(B) the proposed implementation date for the
219	219	charge or increase of a charge;
220	220	(C) a list of completed, eligible capital
221	221	projects, and related depreciation and return on investment for
222	222	which the utility seeks reimbursement through the charge or
223	223	increase of a charge; and
224	224	(D) a calculation of the projected total annual
225	225	increase in revenue due to the charge or increase of a charge;
226	226	(2) the total amount the utility is authorized to
227	227	recover annually through a charge assessed under this section and
228	228	the amount the utility actually recovers are subject to annual
229	229	audit by the executive director;
230	230	(3) the amount of the charge the utility requests
231	231	authorization to assess is based on the amount necessary to ensure
232	232	that the charge yields a rate of return on invested capital that is
233	233	equal to:
234	234	(A) the rate of return approved for the utility
235	235	in the utility's most recent approved base rate or tariff change
236	236	application filed under Section 13.187; or
237	237	(B) the rate of return proposed by the utility,
238	238	if the rates in the utility's most recent base rate or tariff change
239	239	application were approved by settlement;
240	240	(4) the cumulative annual amount the utility proposes
241	241	to recover from the charge does not exceed an amount equal to 10
242	242	percent of the utility's annual revenue;
243	243	(5) the utility does not implement an increase under
244	244	this section more often than twice every calendar year;
245	245	(6) the charge is applied to each customer included in
246	246	the tariff;
247	247	(7) the utility provides to each customer written
248	248	notice of the charge on the initial tariff filing that proposes to
249	249	implement the charge; and
250	250	(8) the charge is subject to a true-up or
251	251	reconciliation at the utility's next rate case filed under Section
252	252	13.187.
253	253	(d) Notwithstanding any other provision of this code, the
254	254	implementation of a utility facilities construction and
255	255	improvement charge or an increase in a utility facilities
256	256	construction and improvement charge is not subject to a contested
257	257	case hearing under Chapter 2001, Government Code.
258	258	(e) This section does not apply to a utility that has in
259	259	place a negotiated stay-out agreement on September 1, 2009.
260	260	SECTION 9. Subsection (c), Section 13.242, Water Code, is
261	261	amended to read as follows:
262	262	(c) The commission may by rule allow a municipality or
263	263	utility or water supply corporation to render retail water or sewer
264	264	service without a certificate of public convenience and necessity
265	265	if the municipality has given notice under Section 13.255 [of this
266	266	code] that it intends to provide retail water or sewer service to an
267	267	area or if the utility or water supply corporation has less than 15
268	268	potential connections and is not within the certificated area of
269	269	another retail public utility.
270	270	SECTION 10. Section 13.248, Water Code, is amended to read
271	271	as follows:
272	272	Sec. 13.248. CONTRACTS VALID AND ENFORCEABLE. Contracts
273	273	between retail public utilities designating areas to be served and
274	274	customers to be served by those retail public utilities, when
275	275	approved by the commission or the executive director after public
276	276	notice [and hearing], are valid and enforceable and are
277	277	incorporated into the appropriate areas of public convenience and
278	278	necessity.
279	279	SECTION 11. Subsection (h), Section 26.0135, Water Code, is
280	280	amended to read as follows:
281	281	(h) The commission shall apportion, assess, and recover the
282	282	reasonable costs of administering the water quality management
283	283	programs under this section [from users of water and wastewater
284	284	permit holders in the watershed according to the records of the
285	285	commission generally in proportion to their right, through permit
286	286	or contract, to use water from and discharge wastewater in the
287	287	watershed]. Irrigation water rights, non-priority hydroelectric
288	288	rights of a water right holder that owns or operates privately owned
289	289	facilities that collectively have a capacity of less than two
290	290	megawatts, and water rights held in the Texas Water Trust for terms
291	291	of at least 20 years will not be subject to this assessment. The
292	292	cost to river authorities and others to conduct water quality
293	293	monitoring and assessment shall be subject to prior review and
294	294	approval by the commission as to methods of allocation and total
295	295	amount to be recovered. The commission shall adopt rules to
296	296	supervise and implement the water quality monitoring, assessment,
297	297	and associated costs. The rules shall ensure that water users and
298	298	wastewater dischargers do not pay excessive amounts, [that program
299	299	funds are equitably apportioned among basins,] that a river
300	300	authority may recover no more than the actual costs of
301	301	administering the water quality management programs called for in
302	302	this section, and that no municipality shall be assessed cost for
303	303	any efforts that duplicate water quality management activities
304	304	described in Section 26.177. [The rules concerning the
305	305	apportionment and assessment of reasonable costs shall provide for
306	306	a recovery of not more than $5,000,000 annually. Costs recovered by
307	307	the commission are to be deposited to the credit of the water
308	308	resource management account and may be used only to accomplish the
309	309	purposes of this section. The commission may apply not more than 10
310	310	percent of the costs recovered annually toward the commission's
311	311	overhead costs for the administration of this section and the
312	312	implementation of regional water quality assessments. The
313	313	commission, with the assistance and input of each river authority,
314	314	shall file a written report accounting for the costs recovered
315	315	under this section with the governor, the lieutenant governor, and
316	316	the speaker of the house of representatives on or before December 1
317	317	of each even-numbered year.]
318	318	SECTION 12. Section 49.321, Water Code, is amended to read
319	319	as follows:
320	320	Sec. 49.321. DISSOLUTION AUTHORITY. After notice [and
321	321	hearing], the commission or executive director may dissolve any
322	322	district that is inactive for a period of five consecutive years and
323	323	has no outstanding bonded indebtedness.
324	324	SECTION 13. Section 49.324, Water Code, is amended to read
325	325	as follows:
326	326	Sec. 49.324. ORDER OF DISSOLUTION. The commission or the
327	327	executive director may enter an order dissolving the district [at
328	328	the conclusion of the hearing] if the commission or executive
329	329	director [it] finds that the district has performed none of the
330	330	functions for which it was created for a period of five consecutive
331	331	years [before the day of the proceeding] and that the district has
332	332	no outstanding bonded indebtedness.
333	333	SECTION 14. Subsection (a), Section 49.326, Water Code, is
334	334	amended to read as follows:
335	335	(a) Appeals from an [a commission] order dissolving a
336	336	district shall be filed and heard in the district court of any of
337	337	the counties in which the land is located.
338	338	SECTION 15. Subsection (b), Section 54.030, Water Code, is
339	339	amended to read as follows:
340	340	(b) The governing body of a district which desires to
341	341	convert into a district operating under this chapter shall adopt
342	342	and enter in the minutes of the governing body a resolution
343	343	declaring that in its judgment, conversion into a municipal utility
344	344	district operating under this chapter and under Article XVI,
345	345	Section 59, of the Texas Constitution, would serve the best
346	346	interest of the district and would be a benefit to the land and
347	347	property included in the district. The resolution shall also
348	348	request that the commission approve [to hold a hearing on the
349	349	question of] the conversion of the district.
350	350	SECTION 16. Section 54.032, Water Code, is amended to read
351	351	as follows:
352	352	Sec. 54.032. CONVERSION OF DISTRICT: NOTICE. (a) Notice
353	353	of the conversion [hearing] shall be given by publishing notice in a
354	354	newspaper with general circulation in the county or counties in
355	355	which the district is located.
356	356	(b) The notice shall be published once a week for two
357	357	consecutive weeks [with the first publication to be made not less
358	358	than 14 full days before the time set for the hearing].
359	359	(c) The notice shall:
360	360	(1) [state the time and place of the hearing;
361	361	[(2)] set out the resolution adopted by the district
362	362	in full; and
363	363	(2) [(3)] notify all interested persons how they may
364	364	offer comments [to appear and offer testimony] for or against the
365	365	proposal contained in the resolution.
366	366	SECTION 17. Section 54.033, Water Code, is amended to read
367	367	as follows:
368	368	Sec. 54.033. CONVERSION OF DISTRICT; FINDINGS. (a) If
369	369	[After a hearing, if] the commission or the executive director
370	370	finds that conversion of the district into one operating under this
371	371	chapter would serve the best interest of the district and would be a
372	372	benefit to the land and property included in the district, the
373	373	commission or executive director [it] shall enter an order making
374	374	this finding and the district shall become a district operating
375	375	under this chapter and no confirmation election shall be required.
376	376	(b) If the commission or the executive director finds that
377	377	the conversion of the district would not serve the best interest of
378	378	the district and would not be a benefit to the land and property
379	379	included in the district, the commission or executive director [it]
380	380	shall enter an order against conversion of the district into one
381	381	operating under this chapter.
382	382	(c) The findings of the commission or the executive director
383	383	entered under this section shall be subject to appeal or review
384	384	within 30 days after entry of the order [of the commission] granting
385	385	or denying the conversion.
386	386	(d) A copy of the [commission] order converting a district
387	387	shall be filed in the deed records of the county or counties in
388	388	which the district is located.
389	389	SECTION 18. Sections 49.322 and 54.031, Water Code, are
390	390	repealed.
391	391	SECTION 19. Section 13.145(a), Water Code, as amended by
392	392	this Act, applies only to an application for approval of a tariff
393	393	filed on or after the effective date of this Act. An application
394	394	filed before the effective date of this Act is governed by the law
395	395	in effect on the date the application is filed, and that law is
396	396	continued in effect for that purpose.
397	397	SECTION 20. The changes in law made by Section 13.187, Water
398	398	Code, as amended by this Act, apply only to a rate application or
399	399	appeal filed with the Texas Commission on Environmental Quality on
400	400	or after the effective date of this Act. A rate application or
401	401	appeal filed with the commission before the effective date of this
402	402	Act is governed by the law as it existed immediately before the
403	403	effective date of this Act, and that law is continued in effect for
404	404	that purpose.
405	405	SECTION 21. The changes in law made by Section 13.193, Water
406	406	Code, as added by this Act, apply only to a project that is
407	407	completed and placed into service on or after the effective date of
408	408	this Act. A project that is completed and placed into service before
409	409	the effective date of this Act is subject to the law in effect at
410	410	that time, and that law is continued in effect for that purpose.
411	411	SECTION 22. (a) Except as provided by Subsection (b) of
412	412	this section, this Act takes effect September 1, 2009.
413	413	(b) Section 341.0365, Health and Safety Code, as added by
414	414	this Act, takes effect September 1, 2010.